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Criminal Petition No. 406 of 1982, decided on 2nd December, 1985.

(Against the judgment and order of the Lahore High Court, Lahore, dated 11‑10‑1982 in Criminal Appeal No. 1139 of 1980).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302 & 307‑‑Dispute over possession of land‑‑Both parties using fire‑arms‑‑Accused's plea of right of private defence of property not sustained because they were not found in possession of land in dispute‑‑Individual responsibilities for crime assigned as far as discernible from prosecution evidence and convictions upheld by High Court‑‑Leave to appeal‑ Contentions raised that benefits accruing to petitioners on account of a sudden fight in which they had neither acted cruelly nor taken undue advantage, should have been afforded to them; and as some of accused were acquitted by trial Court, credibility of prosecution case having been shaken, case was not proved beyond reasonable doubt‑‑Accused having trespassed over land in an attempt to reclaim possession, had provided cause for conflict which immediately ensued‑‑Where such provocation or initiative had come from very person who claims a right of self‑defence, it could not be allowed for simple reason that but for such an initiative or provocation on his part, which was not justified, occurrence might not have taken place at all‑‑Petitioners after having initiated act of trespass, wanted to sustain it and intervened when an attempt was made by persons effectively in possession of land, to remove intrusion‑‑Right of self‑defence as such could not be claimed by petitioners‑‑Fight having been invited by petitioners by their own deliberate act, was neither sudden nor spontaneous which could invite application of Exception to S. 300, P.P.C.‑‑High Court having followed safer course by making accused responsible for their individual acts and no question of law requiring further examination being involved, leave to appeal refused.

‑‑‑S. 300, Exception (2)‑‑Self‑defence‑‑Trespass by accused to reclaim possession of land‑‑Where such provocation or initiative had come from very person who was claiming a right of self‑defence, it could not be allowed for simple reason that but for such an initiative and provocation on his part which was not justified, occurrence might not have taken place at all‑‑Petitioner, held, not entitled to right of self‑defence.‑ [Private defence, right or]

Nemat Khan, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners.

M. Yousaf Khan, Advocate Supreme Court for the State.

‑The eleven petitioners, one of whom stands convicted of the offence under section 302, P.P.C. and all others under section 307, P.P. C. seek leave to apeal against the judgment of the Lahore High Court, dated 3rd of November, 1982 whereby their appeals were accepted only partly.

The prosecution case against the petitioners was that Yasin petitioner had been dispossessed from an open space in front of and near his shop in village Mirzapur at a distance of five miles from Police Station, Wahndo, Tehsil and District Gujranwala. He had instituted a civil suit against Najeebullah under section 9 of the Specific Relief Act. The civil suit had failed on account of a technical deficiency as the site plan of the property of which possession was sought and from which dispossession was alleged had not been filed alongwith the plaint. Notwithstanding this Yasin had stacked hay in that open space and had plastered it with mud. On the morning of 22nd May, 1975 at about 9 a.m. Ibrahim deceased alongwith a few of his companions was present at the Haveli of Najeebullah close to this open space and they were deliberating over this act of Yasin of reclaiming possession of what was considered by them to be part of Haveli when the petitioners alongwith the acquitted accused came upon them with a view to teach them a lesson for disputing the possession of Yasin over the land, They were all armed with fire‑arms and started firing at those gathered including Najeebullah (not produced). The petitioner Nannu had fired an effective rifle shot at Ibrahim killing him at the spot. There was firing from the side of the complainant party also. The result of this firing by the two groups was that Ibrahim on the complainant's side was killed on the spot and fourteen others received fire‑arm injuries. On the petitioners' side the two petitioners Naseeruddin and Yasin and four others namely Wakil, Allauddin, Ismail and Mohyuddin received fire‑arm injuries.

The plea of the petitioners in the trial Court was that the plot was effectively in possession of Yasin and Naseeruddin and the complainant party wanted to disturb their possession. They and the other petitioners were exercising their right of private defence of the property and they were falsely implicated as the aggressors.

The trial Court held the prosecution case proved and convicted all of them under section 302/149, P.P.C. and sentenced them to imprisonment for life and a fine of Rs.5,000 each or in default thereof to suffer R.I. for three years. They were also convicted under section 307/149, P.P.C. and sentenced to R.I. for ten years and a fine of Rs.3,000 each and in default thereof to suffer R.I. for another term of two years. They were all convicted under section 449, P.P.C. and sentenced to five years' R.I. and a fine of Rs.2,000 each or in default to undergo R.I. for one year. Finally, they were convicted under section 148, P.P.C. and were required to undergo R.I. for two years each.

On appeal the High Court by the impugned judgment found that the open space which was the bone of contention between the parties was not bounded and was in fact an open space and for that reason set aside the conviction under section 449 read with section 149, P.P.C. and also the sentence therefore. The petitioners were held to be not in possession of the plot over which a dispute had taken place mainly on account of the earlier suit filed by Yasin claiming possession of the same. It was clear to the High Court that both the parties had fire‑arms with them and further that a fight had ensued over the hay and both had used fire-arms. Individual responsibility for the crime was, however, assigned as far discernible from the prosecution evidence and Nannu alone was held guilty for firing and causing the death of Ibrahim. Three of the convicts who are not amongst the petitioners were acquitted by the High Court because their specific role was not mentioned or their participation was not fully made out. The sentence of the petitioner Nannu under section 302, P.P.C. was maintained. However, as regards the other petitioners while maintaining individual convictions under section 307, P.P.C. the sentence of imprisonment was converted into one already, undergone maintaining that of fine and the order of compensation with regard to it. They were all given benefit of section 382‑B, Cr.P.C:

The learned counsel for the petitioners in the first instance attempted to show that the open space not far from the shop of Yasin was effectively in his possession as was evident by the hay stack duly mud‑plastered which undisputedly belonged to Yasin. It was, according to the learned counsel; the complainant party which was the aggressor had used the fire‑arms and caused injuries to at least six persons on the petitioners' side. In the alternative, it has been contended that on the findings of the High Court itself there was a fight in which both the parties were equal, well‑armed, well‑matched and had fired at each other. 'That being (he position, the benefits accruing to the petitioners on acquit of a sudden fight in which they had neither acted cruelly nor taken undue advantage should have been afforded to them. Besides, according to the learned counsel, as a few of the accused were acquitted by the trial Court and next by the High Court the credibility of the prosecution case itself was shaken and the case could not be held to have been proved beyond reasonable doubt.

From the material on the record it appears that Yasin had (alleged his dispossession from this very plot and had sought possession under section 9 of the Specific Relief Act. On the failure of that suit, he had stacked the hay there to in evidence of his possession. This was, in view of his own "conduct and dealings, of an act of trespass on his, part over the land. He provided the cause for conflict which immediately ensued after his having attempted to reclaim possession. Where such provocation or initiative had come from the very person who is claiming a right of self‑defence it cannot be allowed for the simple reason that but for such an initiative and provocation on his part which was not justified the occurrence may not have taken place at all. It was, therefore, a case where after having initiated or committed an act of trespass the petitioners wanted to sustain it and intervened when an attempt was made by the person effectively in its possession to remove the intrusion. The right of self‑defence as such could not be, therefore, claimed by the petitioners.

It was not a sudden fight because the fight had actually been invited by the petitioners by their own act, It was a deliberate act on their part. The matters went out of hand when over the removal of the act of trespass both the parties appeared with fire‑arms on the scene and started firing without restraint. All fights are riot sudden fights inviting the application of exception to section 300, P.P.C. This was one such fight which was neither sudden nor spontaneous. The High Court, it appears, had followed the safer course of burdening the individuals by making them responsible for their individual acts. This does not by itself indicate that element of unlawful assembly or rioting as such being absent the benefit of exception to section 300, P.P.C. should automatically accrue to the petitioners.

We find that the petition raises no such question of law as may require further examination in this Court and leave to appeal is, therefore, refused.

M.I. Petition dismissed.

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