ABDUL QADEER CHAUDHRY, J.--This order would dispose of two petitions. In J.P. No.19-R/1989 leave to appeal has been sought by the petitioner Sada Hussain against his conviction. And Criminal Petition No.39-R/1989, has been filed by the complainant Fazal Hussain against the judgment of the High Court dated 6-2-1989 whereby the respondent No.2 Zahid Hussain was convicted under section 304-I P.P.C. And the revision of Fazal Hussain was dismissed. The Jail Petition is barred by 4 days. In view of the explanation given by the petitioner in the application for condonation of delay, the delay is condoned.
2. The facts in brief, are that on 6-6-1985, when the petitioner complainant and Anwar Hussain (P.W.8) had gone to the Dhoke of Allah Yar (D.W.2) to enquire about his health, they heard the running of a Tractor near the Dhoke and came out. They saw that accused Respondent No.1 armed with a .12 bore gun and his son Zahid Hussain Respondent No.2 armed with a revolver, were standing at the Banna while the Tractor was making the Banna. Noor Khan, deceased alongwith Muhammad Kham-reached there to ask Sada Hussain respondent No.1 not to construct the Banna.
Fazal Hussain petitioner-complainant and Anwar Hussain (P.W.8) also started towards that side.
When they reached near, Sada Hussain raised lalkara and fired hitting Noor Khan on the left side of his ribs. Noor Khan fell down and the tractor driver ran away. Before Sada Hussain respondent No.1 could re-load the gun, the petitioner and Anwar Hussain pounced upon him to snatch the gun and in the scuffle it was broken. Zahid Hussain respondent No.2 fired in the meantime and on this Sada Hussain was let off who ran away from the spot along with his son Zahid Hussain. Noor Khan was taken to the hospital in a Suzuki and he soon expired there.
2-A. Sada Hussain was convicted by the trial Court under section 302 P.P.C. And sentenced to death and fine of Rs.15000 or in default to undergo 2 years' R.I. It was directed that the fine if realised Rs.12000 should be paid to the legal heirs of the deceased as compensation.
3. The co-accused Zahid Hussain was acquitted. The convict Sada Hussain challenged his conviction before the High Court and the complainant Fazal Hussain filed a Criminal Revision against the acquittal of Zahid Hussain, respondent No.2. The High Court vide judgment dated 6-2- 1989 dismissed the criminal revision filed by Fazal Hussain and accepted the appeal of the respondent Sada Hussain. While setting aside his conviction under section 302 P.P.C., he. Was convicted under section 304-1 P.P.C. And sentenced to 10 years' R.I. And fine of Rs.5,000. It was also directed that the fine if recovered shall be paid to the heirs of the deceased.
4. We have heard Kh. Muhammad Yusuf Saraf, Advocate, learned counsel for the petitioner, and Sardar Muhammad Ishaque, learned counsel for the respondent Sada Hussain. The learned counsel for the respondent submitted that the petitioner had exercised his right of private defence of his property as he was in occupation of the land and the complainant and the deceased had come there therefore, the respondent had not committed any offence. The learned counsel for the petitioner-complainant stated that the deceased and P.W. 5 Fazal Hussain had come to the land without any arm but the accused persons had fired at the deceased. The defence plea was that Mst. Nazir Begum wife of the respondent Sada Hussain had been attacked by the deceased which attracted the accused and to save her he rushed to the spot with his gun but this plea was adjudged by the trial Court to be false as a forged document-about her injuries was produced by Mst. Nazir Begum as defence witness. The, learned counsel for the respondent has admitted that no weight can be given to the certificate (Ex.DD) as this certificate was not genuine. The learned High Court while convicting `the respondent under section 304-1, P.P.C. Observed as hereunder.
"The appellant was admittedly ploughing the land if not making the actual'Banna. So in this dispute the deceased along with others seems to have reached the spot and naturally would have asked the appellant not to construct the Banna, and this led to the trouble between the parties. The appellant had gone to the field armed with a gun and so it cannot be said that his intention was all too peaceful. The possibility that the deceased or his companions or some of them were armed with sticks also cannot be ruled out. From the medical evidence it is clear that shot upon the deceased was fired from a very close range. If, as is the version of the appellant the deceased and his two companions had caught hold of the gun and were struggling with him to snatch it, then it cannot be countenanced that they were so holding the gun that it went off hitting the deceased.
They would have at least taken the precaution that the barrel was not pointing at towards any of them. The case of the appellant is that on seeing his wife being belaboured he reached the spot and in that eventuality he must have, in natural course, fired from a distance to scare the assailants of his wife. So the defence version does not seem to be reasonable, probable or entertainable. What seems to have happened is that the appellant and the deceased came near each other and the former fearing that his gun would be snatched fired at the deceased from a very close range and before he could re-load the gun it was caught hold of by the companions of the deceased and in the struggle, it was broken into pieces, whereupon he seems to have run away in panic leaving the gun at the spot. There was no intention on the part of the deceased and his companions to commit criminal trespass nor the same was committed. Thus appreciating the situation we conclude that actually the appellant had fired and injured the deceased whereafter, as stated by the two eye-witnesses, the gun was tried to be snatched and was broken and then the appellant ran away. The appellant had no pre--design to commit the murder. He was ploughing his land and the deceased and his companions could have approached the authorities to redress the encroachment, if any, made or being made by the appellant over the Banna, instead of coming near the appellant so as to force him to fire at the deceased. The plea of defence of person and property has, therefore, been rightly raised by the learned counsel for the appellant but this did not extend to causing of more harm than was actually necessary i.e. The appellant could do harm to the deceased and his companions but short of death". .
5. The admitted position is that the incident had occurred in Khata No. 267 which was in occupation of the accused persons. They were mending the Banna of the land therefore the complainant party should have resorted to the legal process if they were under the bona fide belief that they were the owners of the disputed land. The right of private defence of property arises when specified offence against property is committed. A party in possession of land is legally entitled to defend his possession as an owner has a right to defend his possession and if need arises to turn out a trespasser. A person while exercising this right should, however, not use more force than reasonable to defend his possession. The learned counsel for the petitioner has referred to sections 97 and 441 P.P.C. In support of his contention. The finding of the High Court that the respondent had a right of private defence of property is not open to any exception. There can also be no second view except that the accused has exceeded his right of defence of property by taking the life of the deceased. The complainant party had gone to the land without any arm. The accused had not been attacked by the complainant party. The accused had not received any injury. There was no aggravated form of offence which necessitated the accused to cause greater force than was necessary by using the fire arm. In such circumstances, we see no force in both these petitions. The same are dismissed and leave to appeal is refused.