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Criminal Appeal No. 336 of 1981, heard on 19th January, 1983.

‑‑‑Ss. 148,302 & 307/149‑‑Defence of property and person, right of‑ Land allotted to complainant party during consolidation proceedings‑ Allotment set aside in appeal‑‑Land in dispute in physical possession of accused and their family members‑‑Complainant party coming there for taking possession of land‑‑Complainant party neither residing there nor cultivating disputed land or any land nearby‑‑Right of defence of property and self‑defence, held, was made out in circumstances.‑ [Private defence, right of].

‑‑‑Ss. 148, 302 & 307/149‑‑Right of private defence, exceeding of‑ Accused or any of their companion, receiving no injury at hands of complainant party‑‑No evidence of any apprehension of death or fear of suffering grievous injury‑‑Right of private defence, held, was exceeded in circumstances.‑‑[Private defence, right of].

Waryam etc. v. State P L D 1975 Lah. 152 ref.

‑‑‑Ss. 148, 302, 325&30'7/149‑‑Nature of offence‑‑Accused causing only one injury on head of deceased with Sota and not repeating injury to deceased even after his falling down‑‑No intention to commit murder or knowledge that deceased would die as result thereof, held, could be gathered‑‑Conviction and sentence under S. 302, P.P.C. set aside and conviction for offence under S. 325, P.P.C. recorded in circumstances.

Ahmed etc. v. State P L D 1971 S C 720 ref.

Raja Muhammad Anwar and Raja Muhammad Sabir for Appellants.

Muhammad Anwar Bhore for A.‑G. for the State.

Date of hearing: 19th January, 1983.

Shahadat, aged 44 years, Jagdev, aged 28 years and Falak Sher son of Shahadat, aged 18 years (according to the judgment), aged 15 years, according to Ahmad (P.W.7) have filed appeal against the order, dated 1‑6‑1981 of Additional Sessions Judge, Jhang, whereby the learned Additional Sessions Judge convicted appellant Falak Sher under section 302, P.P.C. for causing the death of Ata Muhammad, sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000, in default of payment of fine to suffer three years' R.I. Appellant Shahadat has been convicted under section 323, P.P.C. for causing simple injuries to Muhammad Ali (P.W.8) and sentenced to pay a fine of Rs.2,000, in default whereof to suffer one year's R.I. Appellant Jagdev has been convicted under section 323, P.P.C. and sentenced to pay a fine of Rs.2,000 in default of payment of fine to suffer one year's R.I.

2. The occurrence in this case took place on 18‑8‑1979 at Sehriwela, in Killa No. 22, Square No. 13, in the area of village Harsa Nahra, Police Station Bhowana. The occurrence was reported by Muhammad Ali (P.W.8), vide F.I.R. (Exh. PX) recorded by Safdar Ali, S.I. (P.W.10), on the same day, at 7‑45 a.m.

3. According to the F.I.R., the prosecution case briefly is that Muhammad Ali complainant alongwith Ata Muhammad (deceased), Ahmad (P.W.7), Pehlwan (P.W.9), and P.Ws. Nura, Abdullah, Mst. Roshan, Mst. Haleeman and Mst. Rasulan, had come to their land in village Harsa Nahra 3/4 days prior to the occurrence because of shortage of fodder. On the day of occurrence at Sehriwela, the three appellants accompanied by acquitted accused, Akbar, Sadiq, Muhammad, Anwar, Nusrat, Mahmood and Shahadat son of Raja. armed with Dangories came there. At that time, it was moon light and a hurricane was also burning. On the Lalkara raised by acquitted accused Muhammad that the complainant should be taught a lesson for taking possession of the land, Falak Sher appellant gave a Sota blow on the head of Ata Muhammad when he had been caught into Japha by Sadiq and Akbar acquitted accused. When the deceased fell down, Jagdev appellant gave him a blow with his Dangori, which fell on the waist of the deceased. Shahadat appellant gave a Dangori blow to the complainant on his head. Anwar acquitted accused is stated to have given injuries to Mst. Nusrat and Mst. Roshan. Mahmood and Shahadat acquitted accused caused injuries to Nur Muhammad. Mst. Rasulan, Mst. Janatan, Mst. Haleeman, Abdullah, Ghulam and Pehlwan P.Ws. were given injuries by the acquitted accused. Whereafter, they left for their Dera. Ata Muhammad and the other injured persons were brought to the hospital, where all of them were examined. Ata Muhammad died the same day at about 11 a.m.

4. The Sub‑Inspector after recording the F.I.R. went to the hospital, recorded the statements of the P.Ws. visited the spot and took into possession blood‑stained earth from the spot.

All the accused including the appellants were arrested on 21‑8‑ 1979. On the same day appellant Falak Sher led to the recovery of Dang (P.3), which was taken into possession vide memo. Exh. P.L. Appellant Shahadat led to the recovery of Dang (P.7), which was taken into possession vide memo. Exh. P.R. and appellant Jagdev led to the recovery of Dang (P. 9), which was taken into possession vide memo. Exh. P.R. All the memos. were attested by Muhammad Ali (P.W.6), given up P.W. Nur Ahmad and Safdar' Ali, S.I. (P.W. 10). None of the Dangs was found blood‑stained. Dangs were also recovered at the instance of the acquitted accused. After necessary investigation, the challan was put to Court.

5. At the trial the prosecution in all produced ten witnesses. The eye witness account has been furnished by Ahmad (P.W.7), Muhammad Ali (P.W 8) and Pehlwan (P.W.9). The recovery of Dangs from the appellants was proved by the evidence of Muhammad Ali (P.W.6) and Safdar Ali, S.I. (P.W.10). All the eye‑witnesses have stated that the appellants along with their other co‑accused had attacked them at Sehriwela where Falak Sher had caused an injury on the head of Ata Muhammad deceased, Jagdev had caused injury to the deceased while appellant Shahadat had caused injuries to Muhammad Ali complainant while the acquitted accused had caused injuries to Mst. Roshan, Nur Ahmad, Mst. Rasulan, Mst. Janatan, Mst. Haleeman, Abdullah P.W. (given up as being unnecessary) and to Pehlwan (P.W.9). They have also stated that they had come to village Harsa Nahra to their land from Chak No. 144, as there was deficiency of fodder in their Chak, accompanied by other P.Ws. who had not been produced.

6. According to Dr. Ataullah Awan (P.W.1), who had examined Ata Muhammad deceased before his death on the day of occurrence at 7‑30 a.m., the deceased bore a lacerated wound, 2" x 1/2" x bone deep on left and front side of head. X‑ray was advised. Both the eyes were found swollen and blackened. There was laceration, 2" x 2" on back side of right loin 2" from midline at fourth lumbar region. The injuries were kept under observation. The deceased was stated to be in serious condition.

The same doctor conducted the post‑mortem examination on 18‑8‑1979 at 3 p.m. on the dead body of Ata Muhammad. He noted the same injuries. According to his opinion, death was due to shock and haemorrhage due to injury on the head.

He had also examined Muhammad Ali (P.W.8) and found three lacerated wounds and swelling on the person of the injured. All the injuries were declared simple.

The other witnesses were also medically examined by him but since they have neither been produced at the trial nor the appellants have been found guilty of causing injuries to them, as such that aspect is of no consequence for deciding this appeal.

7. At the trial the appellants denied the allegations. Each of them in answer to a question Why the P.Ws. deposed against you and why you have been challaned ', stated "As explained by Akbar co‑accused". Falak Sher appellant in addition stated that he had no concern with the land in dispute. Each of them in answer to the question "Why this case against you", has given the same answer. Akbar, co‑accused of the appellants, in answer to the question, Have you anything else to say', made the following statement:‑‑

"They are all closely related to each other. During the consolidation proceedings, a major portion of our land was allotted to the complainant side due to the conspiracy of Halqa Patwari. We were divested of the ownership of about 45 Kanals of land also. We filed an appeal against the consolidation order and got a Stay Order. The complainant party tried to forcibly take possession of the land in dispute which was in our possession since time immemorial at night being armed with deadly weapons. They were resisted there, being aggressors. Later on they manoeuvred to falsely involve me in the present case. The possession of the land was never transferred nor the complainant party came there to live in that land. The land remained in our possession prior to the occurrence and even after the occurrence. It was restored to us in appeal. The appeal of the complainant party to the Commissioner was dismissed. Halqa Patwari Muhammad Sadiq played a mischievous role and m fact was responsible for this mishap which occurred due to the aggression of the complainant side. Some persons were injured in the occurrence but as it was a night time occurrence and the complainant party wanted to rope in their enemies, they did not report the matter against them:"

8. Ahmad (P.W. 7) has admitted in cross‑examination that Pehlwan (P.W.9) and Muhammad Ali (P.W.8) were maternal‑uncles of Ata Muhammad deceased and that he was uncle of the deceased. He has also admitted in cross‑examination that the land where the occurrence took place was in possession of the accused persons before the consolidation proceedings and that during consolidation the land was allotted to them, but this allotment was set aside on appeal filed by the accused persons and the land was given to them by the appellate Court. He has further admitted that the appeal filed by him against the last order in favour of the accused was dismissed in default and he had not sought any remedy further against the order of dismissal. He has also admitted that during the pendency of the appeal filed by the accused party they were granted a stay order. The witness, however, claimed that Girdawar and Patwari had given them. the possession of. the land. The other‑ witnesses have also accepted these suggestions. The claim of Ahmad P.W. 7 that Patwari and Girdawar had given them the possession of the land has been contradicted by Muhammad Sadiq Patwari (P.W.5), who has stated that no warrant of possession was issued in favour of the complainant after the sanction of consolidation scheme in their favour. He has admitted in cross- examination that he had made entries in the Khasra Girdawari showing the complainants to be in possession but the same entries were challenged by the accused party on which a Naib Tehsildar was deputed to make an inquiry on the spot, who after inquiry, superseded the entries made by him in the Khasra Girdawari. He has also stated that later on the entries in the Khasra Girdawari were corrected.

9. Learned counsel for the appellants has contended that it is clear from the prosecution's own evidence that the appellants and their other family members were in possession of the disputed land before the land was allotted to the complainant party by the Consolidation Officer, but the allotment was set aside on appeal. It is also contended that from the evidence of the eye‑witnesses and particularly, from the evidence of the Patwari also, it is obvious that the accused party including the appellants were in physical possession of the land. He has referred to the finding of the learned trial Court also wherein the learned Additional Sessions Judge has observed that the accused party was in physical possession of the land. The learned trial Court has, however, observed that the complainant party had come to the spot with a bona fide impression that since they have been allotted the land they could come there. Learned counsel has also contended that the story that the complainants were in possession since 3/4 days prior to the occurrence stands falsified by the statement of the Investigating Officer, who has categorically stated that he did not find any Chhapar or debris of Chhapar having been removed when he visited the spot. Learned counsel has contended that the complainants admittedly were residents of Chak No. 144. which was at a distance of five miles from the place of occurrence, and they could not have been residing there without having made any shelter or Dera, which certainly did not exist there and so no credence can be given to the story put forth by the complainants that they were there prior to the occurrence. He has contended that in fact the complainant party had, on the day of occurrence, tried to take possession of the land forcibly and when the accused party resisted, the complainant party suffered injuries. Learned counsel has not challenged the participation of the appellants in the occurrence. His case is that the appellants have not committed any offence as they had a right of defence of property which admittedly was in their possession since long and the allotment of the land to the complainant had also been cancelled on appeal filed by the accused party. It is argued that since the complainants had ventured to take forcible possession of the land, a right of defence of person had also accrued to the appellants. Learned counsel has placed reliance on Waryam etc. v. The State P L D 1975 Lah. 152. Lastly, it is argued that at the worst Falak Sher appellant can be held liable for having caused grievous injury to Ata Muhammad deceased but in no case he can be held liable for having intentionally committed the murder of Ata Muhammad. Learned counsel has relied upon Ahmad etc, v. The State P L D 1971 S C 720 in this connection

10. I have considered the arguments of the learned counsel for the appellants and have also gone through the judgments cited in this regard. There is enough material on record to agree with the learned counsel that the accused party was in possession of the land. That being the position, obviously the occurrence must have taken place when the complainant party had come there and they would have certainly come there to take I possession of the land, otherwise there was no occasion for them to be there as neither they were residing there nor they were cultivating the land in question or any land nearby. In the circumstances, a case of defence of property and self defence appears to have been made out.

However, I do not agree with the contention of the learned counsel for the appellants that the appellants did not exceed the right of private defence. There is nothing on the record to indicate that any of the, appellants or any of their companions (if there was any) received injuries s at the hands of the complainant party. There is also no evidence that they were under apprehension of death or fear of suffering grievous injuries. The facts of the case reported as Waryam etc. v. The State P L D 1975 Lah. 152 are different from the present case. In that case, the accused party had also lost the life of one man while defending possession of land and as such obviously a case for self‑defence to the extent of causing death of a person of the other party was made out and so they earned acquittal. While in the present case, nobody from the accused party has ever received any injury. In the case in hand appellant Falak Sher is stated to have caused injury on the head of Ata Muhammad (deceased) as a result of which hell died. Falak Sher, as noted above. attacked the deceased with a Sota but did l not cause more injuries to the deceased than one even after he had fallen on the ground. No intention to commit murder or knowledge that the deceased would die as a result thereof can be gathered. Taking light from the judgment of the Supreme Court P L D 1971 S C 720, I hold that Falak Sher, in the circumstances, is guilty of having caused grievous injury to Ata Muhammad deceased. His conviction and sentence under section 302, P.P.C. is, therefore, set aside. He is convicted under section 325, P.P.C., and sentenced to undergo seven years R.I. He is also sentenced to pay fine of Rs. 5,000 in default whereof to undergo two years R.I. Whole of the fine on recovery shall be paid to the heirs of the deceased. The other appellants, Jagdev and Shahadat have only been convicted under section 323, P.P.C. for having caused simple injuries. There is no material on record to differ with the conclusions arrived at by the learned trial Court in their case. There is no force in their appeal, the same is dismissed.

11. The learned Collector, Jhang shall be directed to effect the recovery of the fine imposed on appellant Falak Sher.

12. Appellant Falak Sher shall be given the benefit of the provisions of section 382‑B, Cr. P.C. and his period of detention during trial shall be considered as sentence already undergone.

S.A. /F‑16/L Sentence altered.

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