1. ' Slama RAHMAN, J.-Leave to appeal was granted to the complainant Ghulam Ali. To examine the correctness of the judgment of the High Court Lahore dated 2-4-1979 whereby the seven respondents convicted by the trial Court under section 302/149 (three counts) and 148, P. P. C. Were acquitted and the acquittal of eight others ordered by the trial Court was maintained and only two, Rasab and Muhammad Afzal, were found guilty under section 304(1), P. P. C. (three counts) for exceeding the right of private defence of their person and property and sentenced to life imprisonment. Leave to appeal was also granted to these two convicts against their conviction and sentence under section 304(1), P. P. C. (three counts).
2. The prosecution case, in brief, was that Muhammad Iqbal and Anar Khan owned, among others, 14 kanals 16 marlas of land in village Jalalpur Sharif. A portion of it was in cultivation of Painda respondent. The owners w inted Painda to vacate the tenancy but Painda refused to do so and also warned that nobody, else should purchase or cultivate this land. On 13-9-1976 by a registered deed Saif Ali (P. W. 13) and Habib Khan deceased purchased this land. The very next day Mst. Irshad Begum, wife of Habib deceased (not produced), reported to Bahawal Haq, Habib and Ghulam Ali who were inside the house that Rasab and others were ploughing the land purchased by them.
3. Bahawal Haq and Habib went forward into the field and asked Rasab, Shera and Ghulam Rasool respondents who were ploughing the fields not to do so as they had purchased it. In the meantime, Ghulam Ali (P. W. 11) followed by Irshad Begum joined them as also Saif Ali (P. W. 13) and Abdullah deceased who were returning after ploughing their own field. It is said that Ghulam Rasool accused replied that he would give them a taste of purchasing that land and thereafter they 'stopped sloughing the field, took up spears lying nearby and mounted the attack. Rasab respondent gave the first spear blow in the abdomen of Habib who fell on the ground. Shen, gave a spear blow on the right shoulder of Bahawal Haq. On this the other respondents Painda, Akram, Zaman armed with sofas and Inayat, Manzoor and Nazir accused armed with hatchets, Muhammad Sher armed with spear came, out of the dera of Painda accused raising lalkara. Bahawal Haq tried to escape but was overtaken by some of the respondents and inflicted injuries. Rasab, Shera and Ghulam Rasool respondents caused injuries to Habib. Abdullah was also given spear blows and lathi blows.
4. In the occurrence Rasab and Afzal respondents also received minor injuries. At the spot three persons of the complainant party namely Bahawal Haq, Habib and Abdullah were done to death.
5. Ghulam Ali went to the Police Station, Jalalpur Sharif and lodged the report about the occurrence at 8 a. m. Ch. Muhammad Ashraf (P. W. 14) S. I. After recording the report went to the spot, attended to the dead bodies, despatched them for post-mortem examination and took into possession the blood-stained earth etc. From the spot. He arrested the accused but no recoveries could be effected. The post-mortem revealed that Bahawal Haq received nineteen incised injuries, Habib had received eight incised injuries and three abrasions, while Abdullah had received nine incised injuries, three abrasions, one fracture and one lacerated wound.
6. ' The respondents, except for Rasab and Afzal, denied being present or to have participated in the occurrence. They alleged that they had been implicated falsely on account of previous enmity.
7. Rasab stated that he and Afzal were ploughing their land near their dera when the three deceased armed with "dandas" assaulted and injured them and then they injured them with "barchis" in self- defence. The same was the statement of Afzal.
8. ' The trial Court held that the prosecution case was that the occurrence had taken place in Field Khasra No, 245 which according to revenge record did not belong to Iqbal and Anar Khan, was not sold to Saif Ali and Habib and was not in cultivating possession of Painda and other respondents.
9. Considering the case of the accused, in the alternative, the learned Sessions Judge found that in respect of Khasra No, 238 or 245 they could have no right of self defence of their property. There was found to be enmity between the parties, and it was taken by the trial Court to be a part of the plan or the design of the respondents that they had come armed with spears and kept themselves in readiness while ploughing the field. The learned Sessions Judge considered the prosecution evidence creditworthy and the statements of the two eye-witnesses were found to inspire confidence. The trial Court obtained corroboration from the motive-part of the version and the prompt lodging of the F. I. R. Containing full details. However, caution was exercised and benefit of doubt extended to Ghulam Rasool Gondal, Muhammad Bashir and Nazir respondents on the grounds that they belonged to another village, had no direct motive to be involved in the occurrence, were not related to the other respondents and there was "enmity of the complainant party with these three accused" and for these reasons their presence itself was doubted. Painda, Zaman and Akram respondents were found to be too old to have given effective blows to the victims and as they were assigned sota blows and it was doubtful whether sota injuries were at all received by the persons who died in the occurrence except about one injury of Abdullah benefit of doubt was extended to them as well. Inayat, Manzoor and Nazir who were said to be armed with hatchets were also given benefit of doubt as it was found that there was no full-blooded blow given by the hatchet to anyone of the deceased persons. In this manner the trial Court acquitted eight out of seventeen respondents and convicted nine of them under sections 148 and 302, P. P. C.
10. Sentenced them to 2 years' R. I. For the first offence and to death (three counts) except for Ghulam Rasool who on account of his tender age was sentenced to life imprisonment (three counts).
11. ' On appeal and while dealing with the confirmation of the death sentence awarded to the respondents the High Court endorsed the finding of the trial Court that the eye-witnesses of the occurrence were interested and for that reason it was necessary to look for corroboration. The motive and the injuries could not, according to the learned Judges, provide necessary corroboration and none being available against convicted-respondents other than Rasab and Afzal, the other seven were also given benefit of doubt and acquitted. Rasab and Afzal were, however, found to be injured in the same occurrence and considered with the prosecution evidence the High Court held that they had the initial right of private defence of their person and property observing as follows :- ' In the instant case, Rasab and Muhammad Afzal appellants were ploughing a field rightly or wrongly believing it to be theirs. The deceased arrived there and stopped them from doing so. They received injuries at the hands of all the deceased and in retaliation picked up barchhis and attacked them. In the peculiar circumstances of the case we are of the view that the right of self- defence of person and property was available to them and they might have also been provoked."
12. ' They were therefore, found guilty under section 304-I, P. P. C. (three counts) and their sentence was ' reduced to imprisonment for life and the fine awarded by the trial Court (Rs, one thousand on each count) was maintained with the direction that if realized the entire amount should be paid to the legal heirs of the three deceased in equal shares.
13. ' In the appeal against acquittal of the respondents it has been urged that Ghulam Ali (P. W. 11) and Saif Ali (P. W. 13) were natural witnesses of the occurrence, and had made consistent statements implicating them. The nature and the number of injuries on the persons of those involved in the occurrence from both sides clearly indicated that it was more of a retaliatory and punitive attack by the respondents totally lacking in good faith, restraint and necessity which must all be present in order to justify the very accrual of the right of private defence of person and property.
14. ' As regards convicts' appeal, their learned counsel urged that it was established from prosecution's own evidence that the appellants and their relatives were in cultivating possession of the land as tenants, had no intentions of vacating their possession and had made it clear on more than one occasion. In this background, on the very next day of their purchase the complainant party intruded into the land, opened attack, hit the head, a vital part of the body of Rasab and the injury caused to Muhammad Afzal on head was as reported by the Doctor by "a heavy danda or by a big piece of stone". Such an intrusion and attack in the background of admitted enmity and litigation between the parties not only gave rise to the right of private defence of person and property but fully covered the actions of the convict appellant and their associates, and there could be no question of exceeding that right.
15. ' Taking up first the appeal against acquittal of the respondents on the charge under section 302, P.
16. P. C. It must be noticed that the trial Court, on the one hand, considered the eye-witnesses to be natural and trustworthy and corroboration existing in the form of motive and prompt lodging of the F. I. R. With full details but at the same time proceeded to dilute the full effect of this evidence by way of abundant caution. In the first place, looking to the injuries of Habib which were said to have been caused by a blunt weapon in line with the doctor's opinion it was held that they could have been caused in scuffle or due to friction with some hard substance as those injuries were not the result of a direct hit. Similar opinion was expressed with regard to injuries Nos. 11, 12 and 14 on the person of Abdullah deceased. In this manner some of the respondents who were said to be armed with sotas were given the benefit of doubt. Similarly the medical evidence was taken into consideration with regard to injuries attributed to Inyat, Manzoor and Nazir who were all said to be armed with hatchets. It was concluded from the medical evidence that the sharp-edged injuries on the person of deceased could as well be by the blows given by spears and may not have been the full-blooded blows given by hatchets. In the same manner, as motive was lacking in the case of Ghulam Rasool Gondal, Muhammad Bashir and Nazir who belonged to another village were not related to other respondents and were not directly involved in the dispute and the complainant party was inimical to them otherwise, were given benefit of doubt.
17. ' The learned Judges in the High Court accepted the fact that the parties were inimical to each other and looked for corroboration required in the case of interested witnesses. They could find none in the medical evidence as injuries according to the learned Judges only pointed out the location or the seat of injury and nothing more. The High Court concluded as follows :- "We are aware that the ocular testimony is highly interested and inimical with the motive to implicate innocent persons along with the guilty ones. There may be more than two members of the accused party who might have been involved in the commission of crime. It is evident from the statements of Rasab and Muhammad Afzal appellants made in the trial Court that they had participated in the occurrence. Both these appellants are injured and, therefore, their presence on the spot is established. They had stated that they caused injuries to the three deceased with barchis in self-defence as well as in defence of property and that the rest of the appellants or acquitted co-accused were not present. Thus in or considered opinion, Rasab and Muhammad Afzal appellants had participated in the occurrence not only because the ocular testimony is to the effect that they had caused injuries to the deceased but also due to their own admissions in their statements before the trial Court. As for the other appellants or the acquitted co-accused it cannot be definitely stated as to which of them might have participated in the occurrence or which of them was guilty and how many of them were innocent but falsely implicated. We have no yard stick to apply in their case and have no criterion by which we can pick and choose the guilty ones from amongst them. In that view of the matter, in or opinion, apart from the acquitted co-accused, the participation of the appellants other than Rasab and Muhammad Afzal, in the occurrence is not free from doubt. Consequently, the conviction as well as sentences awarded to the appellants other than Rasab and Muhammad Afzal were not proper and they should have been given the benefit of doubt which we hereby given to them."
18. It cannot be said that any legal error was committed in looking for strong corroboration in order to give effect to the statements made by interested witnesses like Ghulam Ali (P. W. 11) and Saif Ali (P.
19. W. 13). The required degree of corroboration in this case could not come either from the motive or from the medical evidence. It had to be from some other piece of evidence but there was none in the case of the acquitted respondents. The number of injuries on the person of the deceased indicated that more persons than the two convict appellants had participated in the occurrence but the identity of each one of the accused persons had to be linked and properly established by evidence. This was not done. The learned Judges on the basis of material on record concluded that the "ocular testimony is highly interested and inimical with a motive to implicate innocent persons along with the guilty ones". This finding is not against the weight of evidence. Once such a conclusion was drawn, it was the duty of the Court to insist on strong corroboration. The High Court adopted and applied the correct legal principles in appraising the statement of interested witnesses and we are not in a position in an appeal against acquittal to interfere with the judgment.
20. ' Coming now to the appeal of the two convicts it has been urged that as there was an attempt to oust them from the land, as they had been subjected to attack by heavy stone or a heavy danda, as reported by the doctor, and injuries had been caused on the head, vital part of the body, they could legitimately apprehend serious harm to their person and property if they did not use equally or more effective weapon in warding off the threat. This argument omits to take note of the disparity of weapon, the nature of the sustained attack launched by the appellants and their associates and the vindictive or retaliatory injuries caused to the complainant party, leaving three persons dead with numerous injuries on their person, nine incised injuries on the person of Bahaul Hach eight incised injuries on the person of Habib and nine incised injuries on the person of Abdullah. The question there fore is not whether they had exceeded the right of private defence of their person or property but the question is whether the right of private defence of person did not at all accrue to them because of this feature of their disproportionately aggressive response to the seemingly peaceful overtures of the complainant party.
21. It is an admitted principle of law that where a sustained attack disproportionate to the threat has been launched and the reaction of the offenders appears to be retaliatory or punitive in nature and the beating is severe and prolonged there cannot be said to be that good faith and restraint B which is so necessary for claiming exercise of a right under section 99, P. P. C. In order to assess the exact criminal liability of the appellant certain features of the case deserve notice. Firstly, there was an effort or at least an attempt on the part of the previous owners of the land to oust or to discontinue the tenancy of the two convicts and their relatives from the disputed land. The tenants had, on their part, made it clear that they were not only not prepared to vacate the tenancy or possession, they had also warned that they would not permit the sale to anyone else nor permit anyone else to cultivate it. This warning could have a meaning and a purpose because of the most preferential right of pre-emption enjoyed by the tenants in case the land under their tenancy is sold.
22. ' Secondly, it was in this background that only a day after having purchased the land the complainant party wanted to keep the tenants away from sloughing the field or exercising their tenancy rights. They had gone to the land in order to protest and to achieve their object of bringing to an end the possession of the cultivators over it. The parties were at loggerheads since 195t when criminal litigation started, with two other criminal cases one in 1967 and the other in 1971. Ghulam Ali (P. W. 11) made the following statement with regard to antecedent enmity "In 1951, Habib deceased and Abdur Rehman were injured and out of the present accused Inayat Mirza and Sultan accused were the accused of that case as well. Mirza and Sultan were convicted, but it is incorrect that they were acquitted in appeal. In the case of 1967, Rasab, Shera, Sultan, Mirza and Akram accused were also accused, and we having compromised on Qur'an the matter was dropped. The case was under section 307, P. P. C. The case was compromised in the court of a Magistrate at P. D. Khan. Evidence was produced and the prosecution version. Was not supported as we had already compromised, and the compromise was filed in writing. In the case of 1971, Rasab, Shera, Aster, Akram, Sultan, Allah Bakhsh and Inayat accused were also the accused. I do not know whether the case was challaned to the court but I was present on the day Mirza accused opened the door of Mosque and assured us on the Holy Qur'an, whereupon the matter was compromised. We again believed the accused when they offered the Mela on Holy Qur'an in 1971. It is incorrect that the case of 1971 was never compromised and the accused were acquitted. I know of the enmity with the accused since 1951."
23. ' The High Court has not recorded a definite finding whether they had gone out armed with "dandas" or had used stories picked up from the field.
24. ' The alleged assault by spear by persons out to protect their possession against criminal trespass should have prompted the trespassers to vacate their trespass and seek legal redress, if any available. Instead throwing of a stone and hitting the head could not in view of their criminal trespass be an act of defence of their person and this act would certainly provide the initial basis for the accused party to deal with them more firmly. However it is certain from the evidence on record that injury had been caused to Rasab on the head first before the complainant-party was attacked. This made the intruders the trespassers and the established law against c trespassers is that they cannot claim the right of private defence of their person unless they first bring to an end their own act of trespass.
25. ' Thirdly, Rasab gave a spear blow in the abdomen of Habib after he had received an injury on the head and he could reasonably apprehend that unless incapacitated more such injuries could follow. Muhammad Atrial appeared on the scene at a later stage and he too was first injured by Bahaul Haq deceased (as stated by Ghulam Ali P. W. 11) and then used the spear on Bahaul Haq.
26. The sequence of these events gave the appellants initially the right of private defence of their person. Finally in determining whether they exceeded that right or not the overall damage done to the parties, their comparative superiority in number and weapons, the nature and extent of likely threat to person and property had all to be taken into consideration and applying these tests it could be inferred that the appellants exceeded the right. To deny the appellants the very right of self-defence of their property and person would imply putting on two of them the blame of every injury caused to the complainant party. If that were the case then certainly their right of self- defence would not be rooted in good faith nor would exhibit that restraint and element of necessity which is implied in the right itself. The benefit flowing from prosecution's own evidence, that not the appellants individually but certain others against whom case was found not proved beyond reasonable doubt and who joined after the initial right of defence of property and person had accrued to the two appellants had acted cruelly and without restraint as a retaliatory and punitive measure, cannot be withheld from the appellants. In the circumstances and on the facts of the case the finding of guilt of the appellants, as one of exceeding the right of private defence of person and property is not liable to interference.
27. As regards the sentence, we consider that the fine and compensation awarded (Rs, 1000) is highly inadequate and does not meet the ends of justice. Hence maintaining the conviction of the appellants under section 304, Part 1, P. P. C. (three counts) and also the sentence of life imprisonment shall run concurrently, we would enhance the fine to Rs, 5,000 and in default 3 years' rigorous imprisonment on each charge and impose another sum of Rs, 1C00 under section 544-A, Cr. P. C. Or in default six months' R. I. (on each charge). The fine and amount of compensation recovered from each appellant shall in its entirety (Rs, thirty six thousand in all) be paid to the heirs of the three deceased as compensation. The two appeals stand disposed of accordingly.