' SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the two convicted of offences under sections 302 and 307, P.P.C. To examine whether in A view of the observations made by the High Court in para. 16 of its judgment a case was not made out for the exercise of right of private defence of their person and property and of having not exceeded it.
2. The prosecution case against the two appellants and one Usman was that after the consolidation proceedings in the year 1973 a private arrangement had been made between one Fateh Muhammad P.W.4 and the appellant Sattu Khan, whereby they were to exchange four kanals of land. Fateh Muhammad had handed over the possession of four kanals to Sattu Khan but Sattu Khan was not parting with his own four kanals which were to be given in exchange to Fateh Muhammad. Fateh Muhammad was, therefore seeking back the land he had given. The old Khasra Number of this disputed plot was 749 and after consolidation it had been given No, 1547. On the morning of 7th of August, 1975, the complainant party comprising the deceased Fajroo, Fateh Muhammad P.W.4, Chandar Khan P.W.8, Badar Din P.W.5, Hashmal P.W.6, were present and had ploughed the field and were mending the boundary. Sarsmal P.W.10 was also present in the adjacent field. The two appellants Sattu Khan and Lehr Khan arrived there alongwith Usman Khan acquitted accused. The first two appellants were armed with .12 bore single barrel guns while the third accused, Usman Khan was armed with hatchet. Sattu Khan fired with his gun at Fajroo which hit on the abdomen of Fajroo who fell down on the ground. When Sattu tried to reload his gun, Fateh Muhammad inflicted the Sota blows to Sattu Khan as a result of which Sattu Khan fell down.
Fateh Muhammad snatched the gun from Sattu Khan. Lehr Khan, appellant also fired a shot injuring Badar Din P.W.S. Badar Din was able to snatch the gun from Lehr Khan which was handed over to Sarsmal P.W.10 and produced before the Investigating Officer. The acquitted accused Usman gave a hatchet blow on the head of Sarsmal. The hatchet of Usman also fell on the ground.
The appellants and Usman retreated from the spot without taking their weapons with them. Fajroo died at the spot; Badar Din had received injuries on his person. Fateh Muhammad went to the Police Station Chunian and lodged a report about the occurrence at 10.25 a.m. On the same day.
Manzar Ali Shah, P.W.14, recorded the report, inspected the spot and made recoveries. A shoe, Exh.
P.3 belonging to appellant Sattu Khan was taken into possession from the spot alongwith three crime empties of .12 bore and two live cartriges of .12 bore. The two guns were also produced by the witnesses. Sattu Khan was arrested from the Hospital and so was the appellant Lehr Khan. Usman was arrested on 27-8-1975 and he was also found injured. Fajroo's post-mortem revealed the following injuries:- "135. Circular wounds in an area of 12 x 12" on the abdomen measuring about 2/10" diameter each.
These wounds were more dense in the epigastrum wherc>these wounds were mated together at places. These wounds have gone into the abdominal cavity. Peritonial cavity was full of dark colour blood. Liver both lobes were lacerated and perforated through by pellets. Stomach was also perforated through by pellets. Mesentery intestines were also perforated at places. Mesenteric blood vessels and interior vena cava and abdominal aorta were also injured. Pancreas was also injured by pellets. 28 pellets were removed from the body. Spleen and kidney were not injured.
Heart was empty. Bladder contained 4 ozs. Of urine. Stomach also contained semi-digested food.
Rest of the organs of the body were healthy except those already described."
' Badar Din (P.W.5) had the following injuries on his person:-
(1) Lacerated wound (R) temporal region 2" x 2" x skin deep.
(2) Lacerated wound 1" x1/2" x skin deep.
(3) Lacerated wound (R) forearm 1/2" x 1/2" x muscle deep.
(4) Lacerated wound (R) upper arm 3" x 1/4" x 1/4".
(5) Multiple pellets (fire-arm) wounds crossing in the abdomen (efogastrium) (eight)."
' The appellant, Sattu Khan had the following injuries on his person:- "(1) Lacerated wound 4" x 1/4" x bone deep anterio posteriorly on the top of head.
(2) Lacerated wound 1/4" x 1/4" x bone deep ulner side or right forearm. Lower part with evidence of fracture of lower end of ulna confirmed by X-ray examination. X-ray was attached with the report.
(3) Confusion 2" x 2" back of right hand.
(4) Contusion 3" x 3" back of left hand.
(5) Abrasion 1/4" x 1/10" on the left thumb.
(6) Lacerated wound 2-1/2" x 1/2" x skin deep in front of left leg below the knee.
(7) Contusion 3" x 1-1/2" in front of right leg upper part."
' Lehr Khan, accused had the following injuries on his person:- "(1) Lacerated wound 3/4" x 1/4" x skin deep right anterior part of skull.
(2) Lacerated wound 1" x 1/4" on the right side of face near the lower part of nose.
(3) Lacerated wound 1/2" x 1/10" x skin deep just below the right eye.
(4) Abrasion between injuries Nos. 2 and 3.
(5) Contusion 3" x 1-1/2" on the inner side of left knee.
(6) Contusion 2" x 2" on the back of right hand.
(7) Lacerated wound 1" x 1/4" x bone deep in front of right leg."
' Unman, acquitted accused had also one injury on his person which was on the right lower eye-lid having bluish discoloration indicating a healing contusion.
3. Sattu Khan admitted that he had exchanged four kanals of land with Fateh Muhammad P.W. But claimed that he had done it during the consolidation proceedings and with the approval of the Consolidation Officer and the possession had been exchanged. According to him, Fateh Muhammad wanted to resile from the exchange and had appealed to the Commissioner Consolidation and had even obtained a stay order on 28-7-1975, on the strength of which he wanted to forcibly take possession of this land. As regards the occurrence he stated as follows:- "On the day of occurrence I alongwith my brother Lehr Khan accused had gone for a round of our fields because our sugarcane crops were used to be damaged by wild boars. Lehr Khan was carrying a gun. Early in the morning rata Muhammad alongwith Fajroo, Badar Din and Sarsmal came with the ploughs and started ploughing our fields forcibly. They were carrying Dangs. I asked them not to take possession of my land forcibly but they started giving blows to me with their Dangs. My brother intervened and asked them to leave them alone but they started giving blows to Lehr Khan also. On this Lehr Khan first gave injuries with the barrel of gun but afterwards he fired at them and injured Fajroo Khan and Badar Din in order to defend me and in the exercise of right of self-defence and the defence of life and property."
' The ownership of the gun Exh.P.4 or its use was denied.
4. Lehr Khan made the following statement about thc occurrence:- "The fact is that on the day of occurrence I and Sattu Khan co-accused were guarding our field of sugar-cane because wild boars used to damage our crops. Early in the morning Fateh Muhammad alongwith Fajroo deceased, Badar Din and Sarsmal P.Ws. Brought their ploughs in Khasra No,1546. They were armed with Dangs. Sattu Khan asked them not to plough his fields forcibly but Fateh Muhammad told him that he had obtained stay order he must take possession and Fajroo Khan, Fateh Muhammad and others started giving blows to Sattu Khan. On this I intervened and gave them a Lalkara not to injure Sattu Khan. They also started injuring me. I at first injured Baddar Din with the barrel of the gun and when I found that they would not leave him and his brothers Sattu Khan and were bent upon taking forcible possession of the land which was in possession of Sattu Khan and was owned by him, I opened fire with the gun which was in my hand, in self-defence and for the defence of the possession of the property. Fajroo Khan and Baddar Din received injuries with the gunfire. Sattu Khan was not armed with any gun. Usman Khan was not present at the spot. Then we went to the village and I handed over the gun to Hussain Khan to whom it belonged and from him I had taken to have a round of our field."
5. The trial Court came to the conclusion that the question as to which party had been actually in possession at the relevant time was a matter wide open, but on the reasoning reproduced hereunder, the trial Court extended the right of private defence not to the appellants but to Fateh Muhammad:- "It means they had taken the possession, it may be fc cibly and the position of Fateh Muhammad P.W.4 may be of a trespasser, in this situation Sattu Khan accused had no right of self-defence of person and property. There is no objection on the record whether Fateh Muhammad P.W.4 started ploughing at Schri Vela or not. In the absence of any objection this would be admitted that till 8.00 a.m. Fateh Muhammad P.W.4 had got the possession and in fact at 8.00 a.m. When the occurrence took place Fateh Muhammad P.W. Was entitled to right of self-defence of person and property."
6. The ocular evidence was found not to implicate beyond reasonable doubt Usman but it was found sufficient to implicate the above two appellants. Both were found guilty under sections 302/34 and 307/34, P.P.C. The appellants were sentenced to undergo life imprisonment and to pay fine of Rs,10,000 under section 302/34, P.P.C., each. They were sentenced under section 307/34, P.P.C. To four years' R.I. And a fine of Rs,1,000 each.
7. On appeal, the High Court re-examined the entire evidence and on the question of right of private defence observed in para. 16 as hereunder:- "The regrettable thing in this case, is, that although it is the case of both the parties that the occurrence was the result of dispute about the possession of land, but here is no clear evidence on record to hold positively as to who was in possession. The statement of the Patwari, who could have given the correct position, does not inspire confidence. He had not produced or shown any document at the time of trial. His whole deposition was based on memory. Although, it was the duty of the prosecution to have proved positively the possession of the complainants to prove their case that the appellants had interfered in the possession of the complainants, but it was also for the appellants to bring something on record in support of their plea of having acted in defence of property. It is well-known law that the accused seeking advantage of some exception, has to bring something on record, or point out something from record, for bringing his case under that exception. The complainant, who stated in examination-in-chief, that he had given the possession of his four kanals of land to the appellants, during cross-examination, was given the chance to add that he had taken back the possession of the said land. Admittedly, he had also approached the Court of Commissioner (Consolidation) and had obtained status quo order. The trial Court in this matter came to the conclusion that even if the complainants were not in possession earlier to the day of occurrence, they had effectively taken charge of the land on that day by ploughing the land from Sehriwela till 8 a.m., and so the rightful course for the appellants was to have a recourse to legal remedies instead of taking possession themselves. This view of the trial Court seems to possess weight, considering the fact that it is not the case of the appellants that anything was sown in the land and if the complainants were not topped, the crop sown in the land would have been damaged and the damage could not have been undone. Mere ploughing of land lying vacant would not have furnished a right to the complainants, if appellants really felt that they were justifiably in possession of the land."
8. Hashmal Khan, P.W.6 was not believed by the High Court. The case of the prosecution was reconstructed following the law laid down by this Court in Syed All Bepari v. Nibaran Mollah and others PLD 1962 SC 502, and Lehr Khan was held not liable for causing the death of Fajroo, nor Sattu Khan for causing injuries to Badar Din. Lehr Khan's conviction under section 307, P.P.C. Alone was maintained while that of Sattu Khan's under section 302, P.P.C.
9. Mr. Imtiaz Muhammad Khan, Advocate, the learned counsel for the appellants has drawn our attention to the statement' of Khalid I-lussain(P.W.1), Revenue Patwari and Fateh Khan (P.W.4) complainant himself in which it has been admitted that possession of the land was attempted to be taken by the complainant party thereby ousting the possession of the appellants over the disputed land. The learned counsel has also contended that the view taken by the trial Court and the High Court with regard to ouster of the possession of the accused simply because the land had been ploughed from Sehriwela to 8.00 a.m. When it came to the notice of the accused, was sufficient to extend right of self-defence of property by Fatch Muhammad and in fact such a right could be exercised by Fateh Muhammad, the trespasser on the land, is erroneous. He has referred to the injuries and the fact that the weapons of offence were snatched by the appellant, to contend that it made out a case of hand to hand fight and not a one-sided aggression as was the complainant's case.
10. The High Court has discredited the Patwari on the ground that he had not produced or shown any document at the time of trial and his whole deposition was based on memory. This may not be correct because on 2-1-1979 when the Patwari appeared as a witness his statement was not completed but deferred with the following observations in the nature of directions to him by the Court:- "It has come to the notice of the Court that the said P.W. Has come without relevant record with him. He is bound down for the next date of hearing and directed to bring the record alongwith him."
' On the next date it is recorded that the witness was present with relevant record so his evidence was recorded. He made a categorical statement as hereunder:-- "Both the Khasra Nos. i.e, 1546 & 1547 which are shown in red ink in the site plan Exh.PA. Were owned and possessed by Sattu Khan accused etc. ' at the time of the occurrence It is correct that according to the Jama Bandi they are still in the ownership of Sattu Khan accused. According to the Gerdaveri of Kharif and Rabi 1975 these Khasra Nos. Were in possession of Sattu Khan accused. In Khasra Gerdaveri of Rabi 1976 Noor Din son of Naju is shown in possession of 1 kanal 11 marlas of Khasra No, 1547 under Sattu Khan accused. The possession of Noor Din of this Khasra No, remained up to Kharif 1976. Khasra No, 1546 throughout remained in possession of Sattu Khan accused, i.e, from the year 1973 up to 1976."
11. Fateh Muhammad (P.W. 4) also admitted in following words about his having taken its possession after obtaining the stay order:- "I handed over the possession of four kanals of land of my share to Sattu Khan accused. But in exchange of it he did not hand over the possession of 4 kanals of land as agreed upon by us I do not remember if I stated before the police that on obtaining stay order on 28-7-1975, I took possession of my previous Khasra Nos. I did not state so in Ex. P.L. (Confronted so recorded):
12. If ouster of the possession of the appellants had been attempted on that very morning then it was neither complete nor sufficient to confer a right of private defence on the trespasser like Fateh Muhammad (P.W. 4) and his companions. The right of private defence of person- and property existed and continued in favour of the appellants rather than of the complainant party. The close range from which the shots were fired clearly gives the impression that it was not a one-sided attack but as contended by the learned counsel for the appellants, they had protested and objected and had been subjected to attack and then they fired. It is clear from the evidence that they received the injuries first and fired thereafter. The non-aggressive role of the appellants is further established from the fact that, according to the prosecution case itself, though the complainant party was not effectively armed, nor had shown its superiority during the course of occurrence, it was able to deprive the appellants and their companions of their weapons which they brought, used or carried during the occurrence. This is rather surprising and unbelievable. The facts brought out in the evidence clearly make out a case of exercise of right of private defence of person and property in favour of the appellants. Further, the fact that the appellants, while on their own property had been attacked and injured first and had not fired more than one shot each in a situation where they were outnumbered would establish that they had not exceeded their right.
Hence the prosecution case is found not proved.
13. We, therefore, accept the appeal, set aside the conviction and sentence of the appellants. Lehr Khan who is on bail is discharged of his bail bond while Sattu Khan shall be released forthwith from jail unless his detention is required in some other case.