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Criminal Appeal No. 707 and Murder Reference No. 178 of 1978, decided on 2nd April, 1980.

---S. 103, clause fourthly--Right of defence of property--Accused stopped after giving single injury to deceased in sudden fight which proved harder than intended--Injury proved fatal after ten days- Existence of reasonable apprehension could not be equated with actual infliction of grievous hurt--Injury landing of vital part of body of accused justifying reasonable apprehension of grievous hurt--Case was thus covered by clause fourthly of 5.103, P.P.C. and accused could not be held to have exceeded right of self-defence.--[Private defence, right of].

Muhammad Khan v. Crown A I R 1949 Lah. 128; Sardari and another v. State PLD 1970 SC 212 and Waryam and others v. State PLD 1975 Lah. 152 ref.

---S. 302--Evidence Act (I of 1872), S.32--Dying declaration- Veracity--Statement of deceased recorded after sixteen and half hours- Doctor examining deceased within two hours and declaring general condition upto mark--Doctor giving no reason for disability of deceased to make statement--Magistrate not requested to record statement--Two more accused named in supplementary statement--No explanation for recording further statement--Statement of deceased, held, was wholly incapable of any reliance whatsoever and rejected.

---S. 302--Delayed F.I.R.--F.I.R. lodged after 18 hours although police station was at distance of one mile--Injured witness present in hospital not examined for registration of case--Held, long delay in report was sufficient to discredit prosecution case as highly suspicious.

---S. 302--Right of defence of property--Accused in actual possession of room-- Interference with possession by deceased--Held, accused had legitimate right to use force to present act of deceased--Even trespasser in possession could not be evicted by force by anyone including owner and was entitled to defend possession--Accused could not be denied right of defence of property--Accused acquitted.

Aitzaz Ahsan for Appellant.

Khawaja Shaukat Ali for the State.

Rashid Murtaza for the Complainant.

Dates of hearing: 1st and 2nd April, 1980.

.--Sardar Ali, Muhammad Bashir cousins inter se, Shujaat Ali son of Sardar Mahmood Ahmad son of Muhammad Bashir, Mirasi by caste, and Sanaullah a Jat, all residents of village Jethekee within the area of Police Station, Sambarial, District Sialkot were tried by learned Sessions Judge, Sialkot on the charges of rioting, murder and attempted murder. Shujaat Ali accused was convicted under section 302, Pakistan Penal Code for the murder of Muhammad Usman deceased and sentenced to death plus fine of Rs.1,000 in default rigorous imprisonment for three months. The accused was also ordered to pay to the heirs of the deceased an amount of Rs.1,000 by way of compensation, or to suffer rigorous imprisonment for three months. Mahmood Ahmad accused was held guilty under section 307, P.P.C. for having attempted at the life of Muhammad Arshad a witness in the case and ordered to suffer rigorous imprisonment for two years with a fine of Rs.1,000 in default further rigorous imprisonment for three months. The accused was further ordered to pay Rs.1,000 to the injured witness by way of compensation or to undergo further rigorous imprisonment for three months. The remaining three accused were acquitted on benefit of doubt. Shujaat Ali alone has appealed to challenge his conviction and sentence. We have also to consider the reference by learned Sessions Judge for confirmation of death sentence passed on the said convict. Mst. Irshad Begum, mother of Muhammad Usman deceased has filed petition in revision under section 439, Criminal Procedure Code to assail acquittal altogether of Sardar Ali, Muhammad Bashir and Sanaullah and that of Mahmood Ahmad on the charge of murder. The appeal, reference and the revisional application will be disposed of by this judgment.

2. Both sides belong to the same village. Dispute over possession of a room of village Daira a common place for the use of the village community has led to this incident in which Muhammad Usman deceased had lost his life and Muhammad Arshad (P.W.11) had sustained some injuries. Briefly stated, Shujaat Ali appellant had been allegedly using the room in question for drinking and womanizing which was resented to by the elders of the village. The appellant was asked vainly to desist from immoral activities. On 23-4-1977 at about 8-30 p.m. Muhammad Usman deceased and Muhammad Arshad (P.W.11) locked the room reportedly pursuant to a decision taken by the village community. The appellant who had a shop in front of the Daira and the remaining four accused rushed to the room, abused the deceased and Muhammad Arshad (P.W.11) and insisted that the room be unlocked. Sanaullah accused since acquitted, whose house adjoins the room in question proclaimed that the room shall remain open to which the deceased replied loudly that the room was locked. Sanaullah shouted that the deceased and Muhammad Arshad be done to death and he would see what could happen. Sardar Ali, father of the appellant held the deceased in his grip while the appellant dealt him an injury in the abdomen with Chhuri in his hand. Muhammad Arshad (P.W.11) stepped forward to intervene but he was held by Bashir accused and his son Mahmood Ahmad accused who as said above was held guilty for the offence of attempted murder, had caused three injuries to the witness with Sota in his hand. The occurrence was also seen by Ali Akbar, Malik Muhammad Raft Khan (P.Ws. 12/13). Fateh' Ali and Malik Imtiaz Saeed. The latter two were however, not examined and dropped allegedly having been brought over by the defence. The deceased and Muhammad Arshad (P. W.11) were rushed to Allama Iqbal Memorial Hospital at Sialkot where they were examined by Dr. Muhammad Aslam (P. W.2) at 10-30 p.m., 10-5a p.m. respectively. The deceased was found to have suffered an incised wound 1" x " depth not probed, on the right hypochondrium. General condition of the deceased was said to be 'up to the mark' with blood pressure 100/70 and pulse rate 100 p.m. the injury caused by sharp-edged weapon within a couple of hours was kept under observation (PB). The police was also informed over the phone that the deceased was admitted in hospital for further treatment. Muhammad Arshad (P.W.11) had following three injuries on his:---

(1) Lacerated wound 1 " x " x " in the middle of the head at the front parital region.

(2) Abraded contusion 2" x 1" on the left forearm.

(3) Contusion 1" x " on the right leg upper part.

The injuries were caused with blunt weapon within the same duration of two hours and were simple in nature (PE) Muhammad Sharif Assistant Sub-Inspector Police Station 'C' Division Sialkot (P.W.14) reached the hospital sometime between 10/11 p.m. and enquired from the doctor if the deceased was fit to make statement. The query (P.C.) was replied in negative by the doctor (P.C./1). Clothes (P.3/P.4) on the person of the deceased when brought to the hospital were taken into possession by means of memo. Exh.P.J. The query when repeated next day (P.D.) was replied in affirmative (P.D./1). Consequently, the statement (P.R.) of the deceased was taken down by the Assistant Sub-Inspector at 1 p.m. and was sent to Police' Station, Sambrial within whose area the occurrence had taken place where formal first information report (P.R./2) was registered at 2-30 p.m. by Abdul Qadir, Assistant Sub-Inspector. The latter was not examined and given up as his attendance before the Court could not be procured without undue delay etc. After registration of the case Fazal Hussain A.S.I. Police Station Sambrial also visited the hospital and recorded supplementary statement (P.R./3) of the deceased which was confined to addition of the names of Malik Muhammad Raft Khan and Malik Imtiaz Saeed as witnesses of occurrence. Thereafter, the said Assistant Sub-Inspector visited the site and collected blood-stained earth, vide memo. (P.O.), Cot and bedding of the appellant (P.9 to P.13) lying inside the room in question were taken into possession through Memo. P.Q. The injury of the deceased was on 28-4-1977 declared grievous and dangerous to life (EXh.P.B./1). The accused excepting Sanaullah were arrested on 3-5-1977. The recoveries alleged against the appellant and others will be noticed in due course.

3. The deceased passed away on 4-5-1977 and the main charge was modified from section 307, Pakistan Penal Code to section 302, Pakistan Penal Code.

Post-mortem examination was conducted with reference to inquest report (P.S.) by the same doctor (Dr. Muhammad Aslam Bhatti) who has examined the deceased when alive. The external wound was the same as noticed in Exh.P.B. except increase in its length from 1" to 4" due to operation. On disection peritonium mesentry, and large intestines were inflamed. In the opinion of the doctor death was caused by peritonitis lead toxaemia resulting from the said injury which was declared sufficient to cause death in the ordinary course of nature (Exh.P.F.).

Mahmood Ahmad accused though arrested on 3-5-1977 was referred to the hospital on 6-5-1977, vide injury sheet Exh.P.T. The accused was examined by Dr. Muhammad Nawaz Chaudhry (P.W.1) and found to have a lacerated wound 1" x " skin deep on the top and middle of the head which was in healing stages. The injury was caused by blunt weapon and was simple in nature (Exh.P.A.).

Chhuri stained with blood (P.5) was recovered from the shop of the appellant at his instance, vide memo. Exh.P.K. and made into a sealed parcel. Mahmood Ahmad and Muhammad Bashir had also led to the recovery of Sotas (P.6/P.7), respectively from the said shop which the Investigating Officer took into possession by means of memo. P.L./P.M. Sota (P.6) the recovery of which was attributed to Mahmood Ahmad was also allegedly stained with blood and alike Chhuri P.5 was made into a sealed parcel. Sanaullah accused was arrested on 9-5-1977 and Sota (P.8) was recovered from his house on 13-5-1977, vide memo. Exh.P.N.

4. It will be seen from the above resume of facts of the case that the charge against the appellant rests on the statement of the deceased (P.R.) which was proved as dying declaration under section 32, Evidence Act, direct evidence of occurrence provided by Muhammad Arshad, Ali Akbar and Malik Muhammad Raft (P.Ws. 11 to 13) of whom the latter was named by the deceased in supplementary statement (P.R.) and recovery of Chhuri (P.5). The appellant had in his statement denied that the deceased and Muhammad Arshad were assaulted in the manner alleged by the prosecution, and came up with a plea of right of self-defence contending that they had all along been in possession of the room as owners. They were supporting Pakistan People's Party during the last general elections in the country in the year 1977 while the complainant side were supporting P. N . A . abbreviated name of Pakistan National Alliance a combination of several political parties. The complainant party insisted that accused being menials in the village should also support P. N. A . and had assumed forcible possession of the room though their articles were lying inside. The appellant and his co-accused Mahmood Ahmad wanted to open the lock whereat they were attacked by the deceased and Muhammad Arshad (P.W.11). The appellant had inflicted injury to the deceased and Mahmood Ahmad had caused one injury to Muhammad Arshad (P.W.11) in exercise of right of self-defence. They were taker into custody by the police much earlier but were shown arrested formally on 3-5-1977 so that the injuries on them may disappear. However, the mark of injury on Mahmood Ahmad had persisted and he was sent to the hospital on 6-5-1977. Copy of Mutation No. 2109 by means of which Hayat Muhammad father of Sardar Ali father of the appellant, and Muhammad Bashir accused father of Mahmood Ahmad accused had become land owners and co-sharers in the village under section 6 of Tenancy Act was tendered in evidence. Mahmood Ahmad accused had owned the statement of the appellant while the remaining three accused had pleaded false implication in the case.

5. Muhammad Arshad, Ali Akbar and Malik Muhammad Rafi Khan (P.Ws. 11 to 13) supported the prosecution case that the deceased and Muhammad Arshad had locked the room so that it may not be used for drinking and immoral purposes by the appellant. All the five accused in the case had arrived there and attacked them as alleged by the deceased in his statement (P.R.). We find no hesitation in rejecting the statement (P.R.) of the deceased as wholly incapable of any reliance whatever. The doctor who had examined the deceased within two hours of the incident had stated that general condition of the deceased was 'up to the mark'. It is not clear to us why the deceased was unfit to make statement within half an hour of his examination. Muhammad Sharif A.S.I. (P.W.14) had stated that the deceased was unable to make statement due to injection. This fact is not to be found in the statement of the doctor. To ensure genuineness of the statement, a Magistrate could also be requested without much difficulty to take down the statement. The deceased had made a supplementary statement (P.R./1) before Fazal Hussain, Assistant Sub-Inspector (P.W.15) sometime after his statement (P.R.) was recorded by Muhammad Sharif (P.W.14) wherein he had named two more persons as witnesses of occurrence. It is not explained why it was found necessary to record further statement of the deceased. In the circumstances, the statement (P.R.) of the deceased must be left out as highly doubtful.

6. The first information report was lodged after about eighteen hours of the incident although police station was as close to the place of occurrence as one mile. Muhammad Arshad (P.W.11) was examined in the hospital simultaneously with the deceased on the night of incident. Muhammad Sharif (P.W.14) admits that he knew that another injured (Muhammad Arshad P.W.11) was brought in the hospital alongwith the deceased. He could have been examined by Muhammad Sharif for registration of case. It is not believable that Muhammad Arshad (P.W.11) who was injured alongwith the deceased should have left the hospital abruptly within half an hour when the deceased was detained there for further treatment. Muhammad Arshad or 'Ali Akbar (P. W.12) who is also closely related to the deceased in that Mst. Safia a first cousin of Ali Akbar was married to the deceased could have also made report a, the police station. This long delay in the report was sufficient to discredit the prosecution case as highly suspicious. In view of delay inn the report it also could not be said with any confidence that Ali Akbar or Malik Muhammad Raft Khan (P.Ws. 12/13) whose name also did not appear in the initial statement (P.R.) of the deceased were present at the time of incident and had seen the occurrence. Muhammad Arshad (P.W.11) had injuries on him and the defence also admits his participation in the incident. However, the injuries would make his presence at the time of incident fairly certain but cannot guarantee the veracity of his statement.

7. It is sufficiently clear from the statement (P.R.) of the deceased and evidence of witnesses at the trial that the appellant was in actual possession of the room for the last one year. The cot and bedding of appellant (P.9-P.13) were taken into possession from inside the room, next day of the incident (P.Q.). Statement of Malik Muhammad Rafi Khan (P.W.13) makes the position clearer. He has admitted in his cross-examination that the room was in the use of Shujaat Ali appellant for the last one year prior to the occurrence. The allegation that the appellant used to indulge in drinking and adulterous pursuits in the room itself shows that the appellant enjoyed actual possession over the room. As said above, the accused (Mirasis) had also become co-owners in the village (D.E.). They had as much right to the use of the room as other villagers. The act of the deceased and Muhammad Arshad (P.W.11) in having put lock on the room constituted interference with the possession of the appellant over the room or in any case an infringement of right of the accused to the user of the room. The accused had a legitimate right to use force to thwart the act of the accused. Learned counsel for the appellant said that for the sake of argument he would go a long way to concede that the appellant had no right to exclusive use of the room as the same was meant for the use of the entire community. At worst, the appellant will be deemed to have been in possession of the room without any right. Continuous possession over the room for a long period of one year had conferred on the appellant a legal right to defend his possession. The contention has a force in it. Even a trespasser in settled possession cannot beg evicted by force by anyone including the owner and is entitled to defend his possession. Reference be made to the case Muhammad Khan v. Crown A I R 1949 Lah. 128. The rule laid down in that case has been followed in several other cases including a case in the Supreme Court Sardari and another v. State P L D 1970 SC 212. In Waryam and others v. State P L D 1975 Lah. 152. It was held with reference to the case of Muhammad Khan that the question of title is apart from the question of possession. Where possession is with one party and the title with the other, the person in settled possession had the right to repel aggression. The appellant could not, therefore, be denied the right of defence of property.

8. There is no tangible material to show that the appellant had sustained injuries and the marks of injuries had disappeared by the time he was shown to have been arrested formally on 3-5-1977. However, Mahmood Ahmed accused had an injury in the head which though established by medical evidence was denied by all the three eye-witnesses in the case. Prosecution had made full efforts to hush the injury of the accused. He was sent to the hospital after three days of his arrest. The injury on him which had landed on vital part of the body justified a reasonable apprehension in the mind of the accused that they would suffer grievous hurt at the hands of the complainant side. Existence of reasonable apprehension is not to be equated with actual infliction of grievous hurt. The case is, therefore, covered by clause fourthly of section 103, Pakistan Penal Code. The appellant who had stopped after having given a single injury to the deceased in a sudden fight which unfortunately had proved harder than it was intended to and proved fatal after ten days of the incident could not be held to have exceeded the right of self-defence. We are not impressed by the argument advanced by learned State counsel that the appellant had acted beyond what the law permits him to do.

9. In view of our finding in the foregoing para. we accept the appeal, set aside conviction and sentence of the appellant, acquit him of the charge and order his release forthwith if not wanted in any other case.

10. Conviction of Mahmood Ahmad who had not appealed is liable to be set aside precisely for the same reasons which had accounted for acquittal of the appellant. However, we do not pass any order for his release as he had already undergone the sentence awarded to him by learned Sessions Judge.

H. A. K./4266/L Appeal accepted.

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