' HASNAT AHMAD KHAN, J.---Vide judgment, dated 31-10-1992 passed by the learned Addl. Sessions Judge Burewala the appellants namely Ahmed Din and Muhammad Iqbal were found guilty under section 302/34, P.P.C. And sentenced to imprisonment for life along with a fine of Rs,10,000 each, in default of payment of said fine, both of the accused were ordered to undergo further R.I. For two years. Muhammad Iqbal accused was also convicted under section 307, P.P.C. And sentenced to five years R.I. With a fine of Rs,2000, in default of payment of fine they are ordered to further undergo R.I. For one year. Sentences awarded to Muhammad Iqbal accused were ordered to run concurrently. However, the benefit of section 382-B, Cr.P.C. Was given to both the accused. Said judgment has been challenged by the accused through this appeal.
2. Brief facts of the case which was registered on the statement of Muhammad Ibrahim, complainant vide F.I.R. No, 85, dated 15-6-1989 Exh.P.L. Are that he being Food Grain Inspector was posted at Bonga Hayat Centre, Sahiwal on 14-6-1989, he came at home after taking leave. His father had given a house temporarily to Ahmad Din appellant 10/12 days prior to the occurrence, he asked Ahmad Din appellant to vacate said house. Ahmad Din took out some of his luggage while Muhammad Iqbal appellant placed his luggage in their house and forcibly occupied the same. His father told him about said incident, when the complainant visited his chak. Thereupon he along with his father went to the house and asked Muhammad Iqbal and others to vacate the same but they refused. In the morning of the fateful day his father called a panchayat in which Muhammad Iqbal and Ahmad Din were asked to vacate the house. They after great hesitation agreed to do so.
However, when the complainant accompanied by his father, Nazir Ahmad and Muhammad Sultan went to get the house vacated Ahmad Din appellant armed with gun, Abdur Razzaq co-accused armed with revolver and Muhammad Iqbal accused armed with pistol emerged from the house and came into the courtyard. After raising Lalkara, Ahmad Din appellant fired with his gun hitting left thigh of the complainant's father whileMuhammad Iqbal fired with his pistol hitting on the right thigh of the deceased. Ahmad Din repeated the fire hitting the right cheek of the deceased. Abdur Razzaq co-accused unsuccessfully tried to fire with his revolver but the same was snatched by Nazir Ahmad P.W. Muhammad Iqbal appellant caused tire-arm injury on the head of Nazir Ahmad P.W. Ahmad Din appellant along with his gun was apprehended at the spot. However, Muhammad Iqbal made good his escape. Muhammad Yaqoob father of the complainant succumbed to the injuries on the spot.
3. The complainant proceeded for registration of case to the police station and got his statement Exh.P.L recorded there.
4. The police during the investigation prepared injury statement of Muhammad Yaqoob deceased and inquest report Exh.P.N. The postmortem examination was conducted upon the dead-body of Muhammad Yaqoob. He collected the blood-stained.Earth from the spot.
5. Muhammad Hussain Lamberdar produced Ahmad Din appellant before the Investigating Officer along with his gun which was taken into possession vide Exh.P.J. He produced the revolver .30 bore along with seven bullets found loaded therein which was taken into possession vide Exh.P.K.
6. During the investigation at the spot the Investigating Officer took into possession three empties of .12 bore gun vide recovery memo. Exh.P.1. Injury statement of Nazir Ahmad was also prepared. As Ahmad Din appellant and his wife Mst. Naziran Bibi were found injured. Their injury statements were also prepared and they were referred to the hospital for medical examination.
7. After completion of the investigation the appellants along withAbdur Razzaq co-accused were challaned and charge-sheeted.
8. During the trial the prosecution produced eleven witnesses in support of its version. Mazhar Hussain, Draftsman appeared as P.W.1. And proved the said plan. Dr. Abdul Ghafoor who medically examined Nazir Ahmad, P.W. Ahmad Din appellant and Naziran Bibi wife of the appellant, appeared as P.W.2 and proved the medico-legal reports. According to him Nazir Ahmad, P.W. Received the following injury:-- "A fire-arm wound (pellet wound) 0.5 c.m. In diameter on the back of head."
' The detail of injuries suffered by Ahmad Din appellant as given by the said doctor is as under:--
(1) An incised wound 8 cm x 1 cm x bone deep on the middle and front part of head.
(2) A lacerated wound 10 cm x 1 cm x bone deep on the side of top of head 2 cm behind injury No,1.
(3) Ahmad Din injured complained of 'pain' on the back in the lumber region.
' According to him injury No,1 was caused by sharp edged weapon while injuries No,2 and 3 were result of blunt weapon.
' The detail of injuries of Naziran Bibi wife of Ahmad Din appellant as narrated by the said doctor is as under:-- "An incised wound 5 cin x 0.5 cm x bone deep on the middle and upper part of forehead, with swelling and blackening around both eyes. Bleeding from both the nostrils was present. Patient was conscious, pupils were not dilated and were equal in size and reacted to light. B.P. 130/80. Pulse was 110 per minute. Respiration was normal".
' According to said doctor injury No,1 had been caused by a sharp-edged weapon.
9. Dr. Arshad Pervaiz, who conducted the autopsy upon the dead-body of Muhammad Yaqoob, deceased appeared as P.W.3. The detail of injuries received by said Muhammad Yaqoob is as under:--
(1) A fire-arm wound 1.5 c.m iu diameter on upper part of right cheek. Bone underneath was healthy.
(2) A fire-arm wound 1.5 c.m. In diameter on upper most part of left thigh, underneath bone and vessels were healthy.
(3) A fire-arm wound 1.5 c.m in diameter on inner and upper part of right thigh, underlying blood sealed and handed over to the police. Walls, ribs and cartilages of thorax were healthy. Pleurae, larynx and tranchea and right lung and left lung all were healthy. Right femoral artery was injured.
10. P.W.4 and P.W.5 are formal witnesses while Bashir Ahmad, constable proved the recoveries of the pistols etc. Muhammad Nawaz who identified the dead-body of Muhammad Yaqoob appeared as P.W.8. Nazir Ahmad and Ibrahim appeared as P.W.9 and P.W.10 respectively and gave the ocular version while Muhammad Iqbal Sabir, S.-I appeared as P.W.11 and gave the detail of the investigation conducted by him. After tendering the reports of Chemical Examiner, Serologist and Technical Services as Exhs. P.D. P.Q..And P.R. The learned DDA closed the prosecution case whereafter the statements of both theappellants and Abdur Razzaq co-accused were recorded by the learned trial Court. In answer to question No,6 Ahmad Din appellant gave the following reply:-- "No punchayat was convened. No promise was made by us to give the possession of the house to Muhammad Yaqub deceased. In fact Muhammad Yaqub along with other hired persons being armed with sotas and hatchet committed criminal trespassed into the house occupied by us and after demolishing some portion of the walls abused me and my wife Mst. Naziran. I again told them that Muhammad Yaqub and others should face the civil litigations but they persisted in getting the possession and they were adamant to get forcible possession from us. But I refused to give the possession on which they had attacked me and my wife with sotas and hatchets and they caused injuries on our vital part of the body to get the forcible possession. In exercise of the right of defence of private person and also in defence of my wife Mst. Naziran and also to maintain the possession of the house I had fired some shots from my licenced .12 bore gun to scare away the assailants including Muhammad Yaqub. Some pellets hit Muhammad Yaqub deceased. I did not intentionally cause murder of Muhammad Yaqub. Muhammad Yaqub etc. Were the aggressors whereas I and my wife were the aggressees. Muhammad Iqbal and Abdul Razzaq my co-accused were not present at the spot at the time of attack on me made by Muhammad Yaqub etc."
' In reply to question No,7 he replied in the following manner:- "I have already stated above that Muhammad Iqbal and Abdul Razzaq were not present at the place of occurrence at the time of alleged occurrence. I had brought out my licensed .12 bore gun and made some fire in exercise of the right of the private defence and to maintain the possession. I do not know where the pellets of the shots hit Muhammad Yaqub, Pistol .32 bore was not with me or with any of my co-accused. It was also my licensed pistol which was taken away by the police from my house. I had made a detailed statement in the above question."
11. In support of the appeal, learned counsel for the appellants has contended that the time and place of the occurrence is not denied and it is a case in which Ahmad Din while exercising the right of private defence of property as well as bodies resorted to firing while Muhammad Iqbal did not participate in the occurrence. He has further contended that the prosecution was guilty of suppression of the injuries suffered by Ahmad Din appellant and his wife. According to him no independentwitness was produced to support the case of the prosecution. He has further maintained that it is a case of two versions. Keeping the said two versions in juxtaposition the defence version advanced by Ahmad Din appellant is more probable and nearer to the truth and when the right of self-defence of property as well as body accrued in favour of Ahmad Din appellant, he was not expected to weigh the same in golden scales and as such he did not exceed the same.
12. The learned State counsel has opposed this appeal on the ground that the prosecution successfully proved its case beyond any shadow of doubt and the defence version was not worth acceptance.
13. I have heard learned counsel for the parties and have gone through the record very minutely. At the very outset it has been noticed that the dispute of a house became the cause of present occurrence and the contents of the F.I.R, itself show that admittedly both the appellants were in possession of the said house which was owned by the deceased and possession of the same had been delivered to Ahmad Din temporarily who on demand of the complainant refused to hand over the possession of the same to the complainant. The perusal of the F.I.R. And statements of the eye-witnesses further reveal that on the demand of the complainant Muhammad Iqbal appellant had replied that a civil suit had already been filed, upon which a panchayat was convened in which the appellants allegedly made a promise to vacate the house but admittedly the possession was not handed over to the complainant who along with the complainant and other witnesses went to the house in question to get it vacated upon which the unfortunate incident took place in which Muhammad Yaqub succumbed to the fire-arm injuries while Ahmad Din appellant and his wife received serious injuries. Mere perusal of the F.I.R. Through which the legal machinery was put into motion shows that it was the complainant side which invited the trouble to take the law into their own hands by getting the house vacated from the possession of the appellants otherwise than in due course. Though admittedly the deceased was owner of the house who in case of refusal of the appellants to deliver the possession of the same to him he should have adopted the legal recourse to get the possession of the same and action of the complainant party gave the right of defence of property to the appellant.
14. During the whole trial it was the case of the appellant Ahmad Din that it was the complainant party who invited the trouble by trying to forcibly dispossess the appellants and at the time of occurrence thy launched an attack upon Ahmad Din appellant after arming themselves with deadly weapons like hatchets. The medical evidence corroborates the defence version inasmuch as on the day of occurrence Ahmad Din and his wife namely Mst. Naziran Bihi were got medically examined by the police. According to Dr. Abdul Ghafoor P.W.2, Ahmad Dinappellant received three injuries during the occurrence out of which one was incised wound having the length of 8 c.m.
Which was bone deep and the location of the said injury was on front part of the head. Second injury was of length of 10 c.m. And it was also bone deep. Mst. Naziran wife of the appellant suffered incised wound on the forehead which was also bone deep. The venue of the occurrence and the injuries suffered by Ahmad Din appellant and his wife show the possibility of the defence version being true one and it further shows that the complainant party was also armed with sharp-edged weapon as well as blunt weapon and causing of the injuries to a lady shows that the occurrence did take place in the house of Ahmad Din appellant after trespassing into the same. The nature of the injuries received by Ahmad Din appellant and his wife shows that the same were of serious nature. P.W.2. During the cross-examination admitted that Mst. Naziran Bibi survived due to the timely medical aid otherwise she could have also expired. At no stage the prosecution claimed that the said injury was just of friendly hands or self suffered. Ocular evidence of the eye-witnesses also supported the defence version. Ibrahim P.W.10 admitted in cross-examination that they had gone to the house in question to get the possession of the house. He further admitted that the appellants had told them about the filing of the civil suit in respect of the said house. The story does not end here and said witness further admitted that as the accused had agreed to get the house vacated, the complainant party persisted in getting its possession in spite of the fact that the accused were adamant in not giving its possession. He further admitted that Ahmad Din accused/appellant sustained injuries during the same occurrence but with mala fide he showed his ignorance as with what weapon Ahmad Din and his wife sustained injuries during the occurrence. P.W.11 who is the Investigating Officer of this case admitted during cross-examination that during the visit of the place of occurrence he had found that the possession of the house was with the accused and the occurrence took place and the complainant went to the spot to get possession of the house. He further admitted that Mst. Naziran Bibi received the injuries when she tried to rescue Ahmad Din. In view of such evidence and the categorical stand of the appellant through which he has claimed that it was the complainant party who trespassed into the house, occupied the same and demolished the portion of the walls and in exercise of right of self-defence of the property as well as to save himself and his wife he brought his licensed gun and in exercise of private defence he resorted to firing. Site-plan also supports defence version. The Defence version has been found to be more probable and nearer to the truth and as such the evidence of the complainant party in the shape of ocular evidence of the eye-witnesses as well as the injured witnesses and the recovery effected from the accused of no use for the prosecution and the prosecution story is disbelieved.
15. It is established principle that law does not authorize any person to take the law into his own hands and even some bodies were in illegal or unauthorised possession of any property, the owner of the same cannot resort to get the possession of the same through force and the occupation of the same could be within his right to defend the same.
16. Now I venture to see as to whether the act of the appellant while exercising his right of defence of property as well as bodies was apt or he exceeded in his right of self-defence while evaluating this aspect of the case the established principle of law whereby it has been held by the superior Courts that in process of exercise of right of self-defence the accused cannot be expected to weigh his action in golden scales and the accused cannot be expected to modular his defence step by step, while judging the case in this perspective I have come to the conclusion that accused did not exceed his right of self-defence of property and persons. He did not commit any offence while defending his property, himself and his wife.
17. In view of the discussion made above this appeal is accepted and the accused are acquitted of the charge. They are on bail. Their bail bonds stand discharged.