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Criminal Appeal No. 12 of 1985, decided on 2nd February,1987.

‑‑‑S. 304, Part I‑‑Right of private defence, whether exceeded‑‑Dispute over possession of land‑‑Occurrence taking place in Khasra No.2753‑ Husband of accused admittedly in Hissadari possession of Khasra No.2878‑‑Husband of accused, complainant party and others, co‑owners of Khasra No.2752 adjoining Khasra Nos.2753 and 2878‑‑Husband of accused also co‑owner in joint possession of Khasra No.2753‑‑Cultivation of Khasra No.2753, shown by co‑owners through joint tenant‑‑Father of deceased getting correction of Khasra Girdawari about 20 days before occurrence showing tenant under him alone‑‑Correction of Khasra Girdawari not made in presence of husband of accused nor he was informed‑‑Adjoining Khasra Nos. 2878 and 2752 in possession of accused‑‑Deceased and his father trying to cultivate land‑‑Tender aged son and daughter of accused (acquitted co‑accused), resisting cultivation‑‑Deceased seen grappling with children by accused who caused two injuries with Churri to deceased‑‑Accused acting under impulse of mother's love, having reasonable apprehension of her children under danger of grievous hurt, held, had right to defend person of her minor children and also had right to protect joint possession of her husband.‑‑[Private defence, right of].

‑‑‑S.304, Part I‑‑Nature of offence and quantum of sentence‑‑Accused found acting under right of self‑defence of person and property, causing two fatal blows to deceased‑‑Accused, held, exceeded right of self‑defence and was found rightly convicted under S. 304, Part Sentence of imprisonment for life was found excessive thus reduced to 5 years' R.I. in circumstances.‑‑[Private defence, right of‑‑Sentence].

Muhammad Munir Paracha for Appellant.

Raja Abdul Ghafoor for the State.

Nemo for the Complainant.

Date of hearing: 2nd February, 1987.

This is an appeal by Mst. Hashmat Bibi 50 against her conviction under section 304(1) P.P.C. by learned Additional Sessions Judge, Attock, who vide judgment dated 16‑1‑1986 sentenced her to imprisonment for life and fine of Rs.10,000 or in default one year's R.I. It was ordered that the fine, if recovered, will be paid as compensation to heirs of the deceased. She was allowed benefit of section 382‑B, Cr.P.C. as well.

Azhar Abbas 14 and Mst. Khairun Nisa 12, both children of Mst. Hashmat Bibi appellant, were acquitted by the same judgment.

Muhammad Ali Shah complainant filed Criminal Revision No.29 of 1986 for enhancement of the sentence of Mst. Hashmat Bibi and for conviction of the two acquitted accused. It was not admitted and only ordered to be heard alongwith the connected appeal. This judgment will dispose of both these matters together.

2. The occurrence in this case took place at 10‑00 a.m. on 5‑2‑1984 in land known as Ziaratwali in the area of village Malhuwali, about 38 kilometres from Police Station Makhad Sharif, District Attock. The F.I.R. Exh.P.G. was recorded at the Police Station on the same day at 1‑00 p.m. by S.I. Muhammad Bashir P.W.12 at the instance of Muhammad Ali Shah P.W.9. It was stated by Muhammad Ali Shah in his First Information Report that Gulab Shah was his brother who lived in Multan. During the days of occurrence he had come to supervise construction of a mosque in the village. His son Abdul Ali, an employee in Auqaf Department, Lahore, on coming to know about the presence of his father Gulab Shah also arrived in the village. it was further stated in the F.I.R. that Khadim Hussain Shah had his land contiguous to the land of Gulab Shah to the north of the village. Khadim Hussain Shah resided in a Dhoke in his land. On 5‑2‑1984, at about 10‑00 a.m., he alongwith Gulab Shah and Abdul Ali Shah went to the land to hand over the same to Baharam Khan for cultivation as tenant. Baharam Khan was not present and as such, his wife Mst. Hussain Bibi asked Muhammad Taqi to bring a pair of bullocks alongwith plough in the said land. When they all reached in the land known as Ziaratwali, Azhar Abbas accused armed with Danda came from his nearby Dhoke shouting Lalkata that the land belonged to him and he would not permit ploughing of the same. He gave Danda blow to Abdul Ali which fell on his cheek. Abdul Ali tried to snatch Danda from Azhar Abbas in which process they both grappled. In the meanwhile, Mst. Hashmat Bibi and her daughter Mst. Kahir un Nisa reached there, it was stated by the complainant that he tried to intervene but Mst. Khairun Nisa also started grappling with Abdul Ali alongwith her brother Azhar Abbas. Mst. Hashmat Bibi gave two Chhuri blows to Abdul Ali who fell down. This occurrence was witnessed by Muhammad Taqi and Mst. Hussain Bibi as well. The accused ran away. Abdul Ali died at the spot as a result of the injuries.

The motive was stated to be that the land which Gulab Shah wanted to give to Baharam Khan for cultivation was claimed by Azhar Abbas etc. to be owned by them.

Muhammad Ali Shah complainant, leaving the dead body at the spot went to Police Station for report.

3. The police after registration of the case undertook investigation. The dead body of Abdul Ali aged about 30 years was sent for post‑mortem examination which was conducted by Dr. Muhammad Ibrahim P.W.1 at 9‑00 a.m. on 6‑2‑1984. On external examination, the Medical Officer found three injuries on the dead body. Injury No.l was "a contused wound 1.5 c.m. x 1 c.m. on right cheek." Injury No.2 was "an incised wound 1.5 c. m. x 0.5 c. m. going inwards and upwards on middle of right mid‑axillary line'. Injury No. 3 was an incised wound 1.5 c.m. x 0.5 c. m. , about 0.5 c. m. medial to injury No.2 going inwards and upwards." On internal examination, right pleura, right lung, and right side of diaphragm were found ruptured. The chest cavity was filled with blood. The death was due to shock and haemorrhage as a result of injuries 2 and 3 which were sufficient to cause death in ordinary course of nature. Both these injuries were of grievous nature. Injury No. l was by blunt weapon while remaining 2 injuries were by sharp‑edged weapon. The time between injuries and death was 3 to 6 hours while post‑mortem was conducted after about 18 to 24 hours of death.

4. The Investigating Officer S.I. Muhammad Bashir P.W.12 during inspection of spot on 5‑12‑1984 collected blood‑stained earth from the place of occurrence.

The three accused were arrested on 7‑2‑1984.

Mst. Hashmat Bibi on 7‑2‑1984 led to the recovery of blood‑stained Chhuri P.8 from her house which was taken in possession by S.I. Muhammad Bashir P.W.12 vide memo. Exh.P.E. in presence of Safdar Ali Shah P.W.6 and Mati‑ul‑Hasnain P.W., not examined.

On the same day, Azhar Abbas accused led to the recovery of Danda P.9 vide memo. Exh.P.F. in presence of same witnesses.

The Investigating Officer took in possession application dated 20‑8‑1983 by Gulab Shah for correction of the entries of Khasra Girdawari relating to Khasra No. 2753 measuring 33 Kanals 19 Marlas, copies of the orders of Revenue Officer, copies of Khasra Girdawari and copies of Jamabandi.

The accused were challaned after completion of investigation.

5. In support of its case, prosecution examined 12 witnesses in all. Muhammad Ali Shah P.W.9 Mst. Hussain Bibi P.W.10 and Muhammad Taqi P.W.11 were examined as eye‑witnesses. The recoveries of crime weapons were witnessed by Safdar Ali Shah P.W.6. The medical evidence was furnished by Dr. Muhammad Ibrahim P.W.1 as given in detail above. The case was investigated by S.I. Muhammad Bashir P.W.12. The evidence of rest of the witnesses was of formal nature.

Mst. Hashmat Bibi in her statement after close of prosecution evidence stated that the land known as Ziaratwali was owned by her husband Khadim Hussain and that they were in its possession for the last over 30/35 years. She stated that she has been implicated falsely in this case. She denied recovery of Chhuri P.8 at her instance. Azhar Abbas and Mst. Khairun Nisa accused also pleaded innocence. They did not produce any evidence in defence.

The learned trial Judge placed reliance on the prosecution evidence and came to the conclusion that Mst. Hashmat Bibi accused acted under grave and sudden provocation. He, therefore, convicted her as stated above.

6. The learned counsel appearing on behalf of the appellant contended that he would not deny the participation of Mst. Hashmat Bibi accused in this occurrence; she acted in defence of her person and property; and that she did not exceed her said right." The learned counsel in alternate argued that "at its maximum Mst. Hashmat Bibi could have been convicted under section 304 (II), P.P.C." He finally submitted that the sentence awarded to the appellant was excessive. The learned State counsel did not question the conviction of Mst. Hashmat Bibi under section 304 (I), P.P.C. It was argued by him that the sentence awarded to the accused was adequate and proper because she gave two Chhuri blows to the deceased.

7. I have gone through the record of this case. Azhar Abbas accused is son of Mst. Hashmat Bibi accused and Mst. Khairun Nisa accused is her daughter. Khadim Hussain Shah is husband of Mst. Hashmat Bibi. Mir Zaman Patwari P.W.4 admitted in cross‑examination that Khasra No. 2878 was in Hissadari possession of father of Mst. P Khairun Nisa and Azhar Abbas accused. He stated that "occurrence took place in Khasra No. 2753 and intervening the two Khasra numbers, there is Khasra No. 2752." The Investigating Officer took in possession copies of revenue record vide memo. Exh.P.H. Copy of Register Haqdaran for the year 1977‑78 indicates that Khadim Hussain son of Waris Shah, Gulab Shah and others were co‑owners of Khasra No. 2752. Similarly, according to another copy of Register Haqdaran for the year 1977‑78, Khadim Hussain son of Waris Shah was co‑owner in Khasra No. 2753 where the present occurrence took place. In column No.4 of Register Haqdaran regarding cultivation, Khadim Hussain is shown to be in joint possession of Khasra No.2753. According to the entries in Khasra Girdawari from Kharif 1981 to Rabi 1983, Khasra No. 2753 measuring 33 Kanals 19 Marlas was in possession of the co‑sharers through Nawab son of Gulab tenant. However, Gulab Shah in August 1983, filed an application claiming that the tenant was not under all the co‑owners but was under him alone. He, therefore, requested for correction of the entries in the Khasra Girdawari. This application, after some enquiries, was accepted and the Settlement Officer on 16‑1‑1984, i.e. about 20 days before the present occurrence ordered correction of the Khasra Girdawari. It is apparent from the revenue record that Khadim Hussain husband of Mst. Hashmat Bibi accused was co‑sharer in Khasra No. 2753; that he and other co‑sharers were recorded to be in possession of this Khasra number through Nawab son of Gulab tenant; and that the entry in the Khasra Girdawari was ordered to be changed only about 20 days before this occurrence. There is no evidence on record that the order dated 16‑1‑1984 directing correction of Khasra Girdawari was passed in presence of Khadim Hussain or that he was informed of the said order before this occurrence. It was, therefore, natural for Azhar Abbas, a young lad of 14 years of age, to resist the cultivation of the said Khasra number by Gulab Shah or his tenant. It is in evidence that the adjoining Khasras Nos. 2878 and 2752 were in possession of Khadim Hussain aforesaid. It is prosecution's own case that Abdul Ali deceased tried to snatch Danda from Azhar Abbas. They both grappled. Mst. Khairun Nisa, a small girl aged about 12 years also grappled with Abdul Ali deceased to help her brother. Mst. Hashmat Bibi accused seeing Abdul Ali deceased grappling with Azhar Abbas and Mst. Khairun Nisa naturally tried to save her children. She acted under impulse of mother's love She had seen Abdul Ali Shah, a grown up adult, grappling with her children of tender age. She, therefore, had reasonable apprehension that her minor children may not get grievously hurt. She had a right to defend the person of her minor children. It is in evidence that her husband Khadim Hussain Shah was co‑owner in Khasra No.2753 in which the present occurrence took place. As held above, there was no evidence that Khadim Hussain Shah or any of the accused had knowledge of the order of correction of Khasra Girdawari dated 16‑1‑1984. No mutation of Sehat Kasht on the basis of the order dated 16‑1‑1984 was sanctioned. According to Khasra Girdawari, Khadim Hussain Shah was also in possession of Khasra No. 2753 as co‑sharer. The adjoining Khasra Nos. 2878 and 2752 were in possession of Khadim Hussain. His Dhoke was located in Khasra No. 2878. It was, therefore, an instinctive act of Azhar Abbas to resist the interference in their possession by Gulab Shah, Abdul Ali Shah and others. Mst. Hashmat Bibi, therefore, also had right to protect joint possession of her husband over Khasra No. 2753. It is in evidence that she caused two fatal blows on the person of Abdul Ali Shah deceased. In view of this, I am of the view that she exceeded her right of private defence. She was rightly convicted under section 304(I), P.P.C. However, the sentence awarded to her is excessive. The trouble was initiated by Gulab Shah, father of Abdul Ali deceased. In view of the circumstances mentioned above, the conviction of Mst. Hashmat Bibi appellant under section 304 (I), P.P.C. is maintained but her sentence is reduced to five years' R.I. plus fine of Rs.1,000 or in default six months' R.I. She will be allowed benefit of section 382‑B, Cr.P.C. This appeal is dismissed subject to above modification.

8. In view of the above decision in appeal, the connected criminal revision is dismissed in limine.

S.A. /H‑3/L Sentence reduced.

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