' SA EEDUR REHMAN, J.-The appellants Jan Ahmad (aged 41 years), Wall Muhammad alias Wali Dad (aged 29 years) and Hameed Khan (aged 27 years) were convicted by a learned Additional Sessions Judge at Multan of offences under sections 302, 307 and 447 read with section 34 of the Pakistan Penal Code for causing the death of Barkat and Ghulam Murtaza Shah, committing murderous assault on Falaksher (P. W. 12) Muhammad Afzal (P. W. 13), Mehr Waryam and Liaqat and criminal trespassing. For the offence under section 302, P. P. C. Jan Ahmad and Wali Muhammad appellants were sentenced to death on each count while Hameed Khan to imprisonment for life. They were also directed to pay fine of Rs, 2,000 each, or, in default, to receive rigorous imprisonment for one year. For the offence under section 307, P. P. C. They were awarded rigorous imprisonment for three years and for criminal trespassing three months rigorous imprisonment each. Five other persons namely, Allah Bakhsh, Abdur Razzaq, Naseera, Muhammad Sharif and Haq Nawaz were also tried together on the same charges but they were acquitted. The appellants have preferred a joint appeal against their convictions and sentences and the learned Additional Sessions Judge has also made a reference to this Court under section 374 of the Code of Criminal Procedure for confirmation of the sentences of death imposed upon Jan .Ahmad and Wali Muhammad appellants. This judgment will dispose cf both these matters.
2. The complainant party was the resident of village Maulapur within the jurisdiction of Police Station, Kabirwala District Multan. Together with some other co-sharers, they were the joint owners of land comprising Khasra No, 2/25 abutting Kabirwala, Multan Road at a distance of 1 bigha from their dera and about two furlongs from the Police Station.
3. It was the case of the prosewtion that Muhammad Afzal (P. W. 13) one of the co-sharers entered into an agreement (Exh. D. B.) to lease out one kanal of land out of Khasra No, 2/25 to Jan Ahmad appellant who was a resident of Chak No, 9-A/8-R Police Station, Talumba. When Waryam (P. W. 14) came to know about it he directed Muhammad Afzal (P. W. 13) not to do so whereupon Muhammad Afzal returned the lease money to Jan Ahmad appellant. But Jan Ahmad insisted that he should get the possession of the land in terms of the agreement. About 4/5 days before the occurrence the appellants accompanied by the acquitted co-accused and some other persons went to the dera of Waryam (P. W. 14), where Ghulam Mustafa (P. W. 11), Muhammad Afzal (P. W. 13), Mubarik Ali, Rabnawaz, Muhammad Hussan, Falaksher and Liaqat deceased and 3/4 other persons were present. Jan Ahmad appellant demanded that Muhammad Afzal (P. W. 13) should receive back the amount and deliver possession of the land to him. But Waryam (P. W. 14) told him that since the land was a joint holding, he was not prepared to do it.
' On 2-9-1975 at 12-30 in the night when Ghulam Mustafa (P. W. 11) and Vs'aryam (P. W. 14) were sleeping at their dera, Falaksher (P. W. 12) informed them that Jan Ahmad appellant along with his companions had brought a loaded truck and were unloading the same on the land by demolishing the wall. Ghulam Mustafa (P. W. 11), Falaksher (P. W. 12), Muhammad Afzal (P. W. 13), Waryam (P. W.
14), Liaqat and Barkat decaased went to the spot to find out what was the matter. They saw that Jan Ahmad and Wali Muhammad appellants armed with guns, Hameed Khan appellant with a pistol, Allah Bakhsh and Abdur Razzaq acquitted co-accused armed with hatchets and Naseera, Muhammad Sharif and Haq Nawaz acquitted co-accused armed with dangs were present there and 5/6 other persons were unloading the truck. They told Jan Ahmad appellant that they would not permit him to take forcible possession of the land. In the meantime Mubarik Ali, Rabnawaz and Muhammad Hassan also arrived there. Jan Ahmad appellant did not listen to them and exhorted his companions to finish them. He opened the fire hitting Waryam (P. W. 14) on his left shoulder and he fell down. Muhammad Afzal (P. W. 13), Falaksher (P. W. 12) and Liaqat stepped forward when Wali Muhammad and Jan Ahmad appellants fired at them and they also fell down. Hameed Khan appellants fired at Ghulam Mustafa (P. W. 11) but missed the target. Barkat and Ghulam Murtaza Shah deceased tried to run away but Wali Muhammad and Jan Ahmad appellants fired at them hitting them on their backs and they too fell down. The acquitted co-accused kept on raising lalkaras. Several persons from the locality were attracted to the spot whereupon the assailants decamped. The injured persons were removed to the Civil Hospital, Kabirwala.
' On receipt of information from the Hospital, S.
1. Ibrahim Khalid (P. W. 16) went to the Hospital and recorded statement Exh. P. C. Of Ghulam Mustafa (P. W. 11) there on the same night at 2-12 a.m. On the basis of this statement formal F. I. R.
Exh. PC/1 was registered at the police station.
4. Dr. Abdul Ghaffar (P. W. 1) on 2-9-1974 at 1-40 a.m. Performed ante-mortem examination of Barkat deceased and found pellet wounds 1/4' x 1/4' on back of the chest and abdomen in an area of 12' 9'. He was semi unconscious and was referred to Nishtar Hospital, Multan for treatment where he died the same day.
' The doctor on the same day also performed ante-mortem examination of Ghulam Murtaza Shah deceased and found two fire-arm injuries, one comprising eight pellets wounds on back of the left arm and the other multiple pellet wounds with inverted margins on back on the lower half of the chest up to upper part of pelvis. He was in severe shock and semi-unconscious. He died on the same night at 3 a.m.
' The doctor on the same day also examined the injured witnesses. He found eight pellets wounds, some of them multiple at various parts on Muhammad Afzal (P. W. 13), four pellets wounds, two on the chest, one on the left shoulder and one on the index finger of Liaqat, a fire-arm wound 3' on the front of the left forearm with a corresponding wound of exit, and the left humorous fractured, on Waryam (P. W. 14), three small pellet wounds on Falaksher (P. W. 12).
' The same doctor on 2-9-1974 at 9 a.m. Performed the post-mortem examination of Ghulam Murtaza Shah deceased and found the same injuries as noted at the ante-mortem examination.
On dissection, he found most of the internal organs damaged. He opined that the death had occurred due to shock and haemorrhage as a result of the injuries which were sufficient in the ordinary course of nature to cause death. On the same day at 4-30 p.m. He also performed the post-mortem examination of Barkat deceased and found the same injuries as noted at the ante- mortem examination. He opined that the death had occurred due to shock and haemorrhage as a result of the injury which was sufficient in the ordinary course of nature to cause death.
5. The appellants pleaded not guilty and denied the allegations against them. Jan Ahmad appellant made a detailed statement to the effect that he was in possession of the land in pursuance of the lease agreement. Waryam (P. W. 14) wanted him to quit the land but he did not agree. On the night of occurrence when he was sleeping at the spot along with his companions the complainant party armed with fire-arms came there and encircled them and started firing. He also fired a few shots with his licensed pistol to scare them away. The fires shot by the complainant party itself hit Ghulam Murtaza Shah and Barkat deceased. He tendered copies of the Aks Shajra Exh. D. A. Lease agreement Exh. D. B., plaint Exh. D. C. Order of status quo Exh. DC/1, and its notice Exh.
D/C/2. The other appellants adopted his statement. They ied no evidence in defence.
6. The case of the prosecution rests entirely upon the ocular account provided by Ghulam Mustafa (P. W. 11), Falaksher (P. W. 12), Muhammad Afzal (P. W. 13) and Muhammad Waryam (P. W. 14). Liaqat Ali, Mubark Ali, Muhammad Hassan and Rabnawaz also cited in the F. I. R. As eye-witnesses were given up the prosecution, Liaqat All as being unnecessary and the others as having been won over.
Waryam (P. W. 14) was an uncle, Ghulam Mustafa (P. W. 11) a cousin and Muhammad Afzal (P. W. 13) a brother of Barkat deceased. Falaksher (P. W. 12) was private servant of Muhammad Waryam (P.
W. 14). All of them, except Falaksher bore marks of gunshot injuries. Thus their presence at the spot stands established which is also admitted by the appellants. They have fully supported the prosecution case at the trial.
7. The appellants have also admitted the occurrence but gave their own version. It is thus a case of two opposite versions, each side claiming that the other side was the aggressor. Each side claimed to be in possession of the disputed land and defending its possession. Jan Ahmad appellant claimed to have taken the possession of the land under the terms of the lease agreement (Exh. D.
B.) while the complainant party asserted that, in fact, possession was not delivered to him. A reference to the document itself will show that Muhammad Afzal (P. W. 13) agreed to lease out one kanal of lard from Khasra No, 2/25 to Jan Ahmad appellant for a period of 15 years starting 20th of August 1974 ending 19th of August 1989 on the terms given therein. The annual rent was fixed at Rs, 1,100. The lessee was to pay Rs, 2,000 as advance. The possession was to be delivered on receipt of the first year rent and advance of Rs, 2,000 to be adjosted for future rents. The lessor had received Rs, 1,100 as rent and Rs, 2,000 as advance and delivered possession on the spot. Muhammad Afzal (P. W. 13) admitted, at the trial, that he had received Rs, 2,000 but denied the receipt of rent of Rs, 1,100. He stated taat the possession of the land was to be delivered after the receipt of Rs, 1,100. He, however, admitted that according to the written agreement Exh. D. B. He had received Rs, 2,000 as advance and also Rs, 1,100 as rent and delivered the possession on the spot to Jan Ahmad appellant. He led no evidence to prove that, in fact, he had not received Rs, 1,100 as rent. His claim that he had not received Rs, 1,100 is, therefore, belied. He also admitted that all the co-sharers had privately partitioned the land. Ghulam Mustafa (P. W. 11) had also admitted before the Committing Magistrate, though denied at the trial, that the land had been partitioned by the co-sharers through family settlement. Muhammad Afzal (P. W. 13) denied knowledge if he was in exclusive possession of this land in the year 1972-1973. Faqir Muhammad (P. W. 7), the Revenue patwari of the circle concerned stated that Muhammad Afzal (P. W. 13) was in exclusive possession of the Khasra in question in the year 1972-73 and that it was the same land which he had shown in the copy of Aks Shajra Exh. D. A. Prepared by him on 12-8-1974 at the request of Jan Ahmad appellant. The story about the return of the lease money to Jan Ahmad appellant does not appear to be convincing.
The claim of Muhammad Afzal (P. W. 13) that he had returned the amount to Jan Ahmad remains unsubstantiated. He said that when he returned the amount to Jan Ahmad appellant no one else was present. Admittedly, he did not obtain any receipt for the amount or got back the document Exh. P. B. At that time. Even, afterwards he made no effort to get the receipt or obtain the document.
Jan Ahmad appellant having paid the amount he must have been naturally keen to get the possession of the land which was admittedly lying vacant.
' In view of the above facts and circumstances, we are of the opinion that the plea of Jan Ahmad appellant that he was in possession of the land in dispute appears to be true.
8. The question, however, arises, if in the circumstances of the case the appellants had any right of private defence of property. In Ahmad etc. v. The State (1) it was laid down as follows :- "The exercise of the right of self-defence of body or property is subject primarily to the restrictions contained ia section 99 of the Penal Code. One basic restriction in this behalf is that no harm is to be caused other than what is absolutely necessary for the exercise of the right of self-defence. If the harm caused to the offending party is out of all proportion to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right, the right of self-defence will stand completely negatived. This right is available only if it is rooted in good faith and no intention is manifested by the circumstances of doing more harm than is necessary for the purpose of self-defence."
9. It was contended by the learned counsel for the appellants that the complainant party came armed to forcibly dispossess the appellants. But no evidence was brought on the record to substantiate that the complainant party was carrying any arms. If they had, in fact, gone to the spot with a purpose to evict the appellants forcibly, they would not have been empty-handed but would have carried arms as they naturally must have expected resistance from the opposite- party. If, in fact, they had carried the weapons, they too would have used the same and in that event the result would have been quite different. But it is to be noticed that two of them were shot dead and three seriously injured without a scratch to the other side. Thus, the plea of the appellants that the complainant party came armed to forcibly evict them cannot be accepted.
The plea of
(1) PLD 1971 SC 720
(1) PLD 1960 Lah. 8$0 (21 PLD 1970 SC 212 ' the appellants that the complainant party received injuries at the hands of their own men, is also without substance and is rejected out of hand.
' Even if, for the sake of argument, it is conceded that the complainant party had intruded in the land to evict the appellants, the latter were only justified in evicting them from the land without causing them any harm other than that which was strictly necessary to fulfil their purpose. In a case where the trespasser is unarmed and there is no threat of grievous injuries to the person who is resisting the trespassers, he is not entitled to use such force as may result in killing such person. If he does so, he cannot claim that he was doing so in the right of his private defence and has exceeded in his right. In Muhammad Ishaq v. The State (1) which was approved by the Supreme Court in Sardarai and another v. The State (2) it was observed as follows :- "If, therefore, a person intentionally does an act which he knows will result in much more serious harm than the harm which the law allows him to cause in the exercise of the right of private defence, it could not be said that he was acting in the exercise of the right of private defence but happened to exceed that right."
' In the present case the appellants, without any justification whatsoever shot down the two deceased on the spot and caused gunshot injuries to the other three. The contention of the learned counsel for the appellants cannot be accepted that if an occasion for the exercise of a right of private defence arises and the person to whom the right has accrued uses force he will, at worst, be guilty of exceeding the right of the private defense, however grossly disproportionate to the necessity of the exercise of that right the force used might be. Section 99 of the Pakistan Penal Code lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense and section 104 of the Code makes it clear that the exercise of the right of private defense against offences mentioned in that section is circumscribed by the limits mentioned in section 99 of the Code. If, therefore, a person intentionally does an act which he knows, will result in much more serious harm than the harm which the law allows him to cause in the exercise of the right of private defence, it could not be said that he was acting in the exercise of the right of private defence but happened to exceeds that right.
4 For the reasons stated above, we are satisfied that the appellants have rightly been convicted and sentenced by the learned Additional Sessions Judge of offences under sections 302 and 307 of the Pakistan Penal Code. Hameed Khan appellant has already been awarded lesser penalty. There is no mitigating circumstance in favour of Jan Ahmad and Wali Muhammad appellants. The sentences of death imposed upon them are, therefore, confirmed. However, the conviction and sentence of the appellants under section 447, P. P. C. Is set aside.
' The appeal and the reference are disposed of accordingly.