' Munshi Khan etc. Appellants were acquitted vide short order, dated 19-12-1992. Following are the reasons for the acquittal:
2. Munshi Khan etc. Were tried by Additional Sessions Judge, Depalpur for the murders of Faiz and Younas and murderous assault upon Saeed Muhammad (P.W.8) and vide judgment, dated 4-8- 1992 convicted and sentenced as under:--
(i) All appellants under section 304/149, P.P.C. To 10 years' R.I. Each and a fine of Rs,10,000 each or in default thereof two years' R.I. Each on two counts.
(ii) Under section 307/149, P.P.C. To five years' R.I. Each and a fine of Rs,5,000 each or in default thereof one year's R.I. Each and
(iii) Under section 148, P.P.C. Two years' R.I. Each.
' The sentences were ordered to run concurrently. They were granted the benefit of the provisions of section 382-B, Cr.P.C. Whole of the fine, if recovered, was ordered to be paid to the heirs of the two deceased and injured P.W.8 Saeed Muhammad according to their shares respectively.
' Mst. Rashidan Bibi, Saeed alias Mangal and Umer Din accused were, however, acquitted.
3. The occurrence took place on the central line of Killas Nos.9 and 10 of Square No,39 of village Dargan on 7-7-1989 at 6-30 p.m. And the F.I.R. (Exh.P.G.) was recorded on the statement of Sajwar Ali complainant (P.W.7) on the same day at 9-00 p.m. By Muhammad Sharif, Inspector (P.W.13) at the Police Station Hujra Shah Muqeem, at a distance of 12 Kms. From the spot.
4. The version given in the F.1.R. Was that about 11 years back Akbar Ali, the real maternal-uncle of the complainant sold his 33 Acres of land in the village to Munshi Khan. The complainant filed suit for pre-emption which was pending in the Supreme Court. The land was occupied by the complainant alongwith his maternal-uncles Faiz and Muhammad Younas (deceased) on 4-7- 1989. Four acres of rice and 2-1/2 acres Charri crops were sown. On this Hassan Khan reported a case to the police against them, it was under investigation and on the very day of occurrence the police visited the village for their arrest. Akbar Ali, the father of the complainant was actually taken into custody by the police while the others slipped away.
5. The version in the F.I.R. Proceeds that after the police had left, the complainant alongwith Faiz and Younas (deceased) went to guard the land and their crops. At about 6-30 p.m. When they were on the central line of Killas Nos. 9 and 10 of Square No,39, Subhan and Ismail appellants armed with rifles, Muhammad Ibrahim appellant, and Mst. Rashida Bibi accused with hatchets and Munshi Khan, Hassan Khan appellants and Umar Din accused carrying Sotas assaulted them. The attack was opened by Ismail who fired and hit Faiz (deceased) on the left cheek. Faiz was further injured by Munshi Khan appellant, Mst. Rashida and Umar Din accused. Younas (deceased) was injured by Munshi Khan, Hassan Khan and Subhan Khan appellants. Saced Muhammad P.W. Who had reached on the report of firing and alarm, was belaboured by Hassan Khan and Ismail appellants. Ramzan (given up P.W.) also reached the spot and witnessed the occurrence. It is also in the F.I.R. That in the meanwhile Muhammad Saced accused, a near relative of the appellants also reached with .12 bore gun and went on firing. When the occurrence was going on many people of village collected at the spot on seeing whom the appellants and their co-accused left alongwith their weapons. While leaving the spot the appellants carried away the rifle of Faiz Ahmad (deceased) and .12 bore gun of Muhammad Younas (deceased). Both Faiz and Younas expired at the spot. It is also there in the F.I.R. In a passing manner that when the attack was being mounted by the appellants' party Muhammad Younas (deceased) had also fired a shot in the legs of Munshi Khan appellant and injured him.
6. Dr. Muhammad Zahid (P.W.14) performed the post-mortem examination on the dead bodies of Faiz and Younas deceased at 8-00 a.m. On 8-7-1989. On the body of Faiz Ahmad there were 11 injuries, 1 and 3 by firearm, the rest by blunt object and all ante-mortem. The fire-arm injuries were sufficient to result in death in the ordinary course of nature. The death was immediate and the time between the death and post-mortem examination was stated to be 12 to 15 hours.
' Younas, deceased had 7 injuries, 1 and 2 were by fire-arm and the rest by blunt object, all ante- mortem. The death was immediate and the time between the death and post-mortem was 12 to 15 hours. The fire-arm injuries were sufficient to result in death in the ordinary course of nature.
' On the same day at 8-00 a.m. This very doctor medically examined Said Muhammad (P.W.8) and observed an incised wound 3.5 c.m. x 1 c.m. x c.m. Deep on the right side of the skull and was 8 c.m.
From right ear and 3 c.m. From mid line and 16 c.m. From posterior hair line and an abrasion 2.5 c.m. x 1 c.m. On the left anterior superior illiac spine and was 18 c.m. From umblicus. The first injury was by sharp-edged and the other by blunt object. The injuries were of 8 to 10 hours duration.
7. Dr. Tahir Khalil (P.W.5) while posted as Medical Officer, Hujra on 8-7-1989 at 12-00 noon examined Muhammad Ismail appellant who was having a lacerated wound 2 c.m. x 0.8 c.m. x 0.4 c.m. On the top of skull and an abrasion 0.5 c.m. x 0.2 c.m. At the right thumb. Both the injuries were simple, by blunt object and of a duration of 18 to 20 hours.
' He also examined Munshi Khan appellant when he was brought by the police and he was having 7 injuries, one by blunt object and the rest by fire-arm of a duration of 18 to 20 hours.
' The doctor had also examined Ibrahim appellant who was having an abrasion 1 c.m. x 0.3 c.m. On the left side of skull which was simple and by a blunt object of a duration of 18 to 20 hours.
8. T,he defence version was given by Munshi Khan appellant as under:-- "The P.Ws. Have deposed against me due to ulterior motive and due to relationship with the complainant party. I have been falsely involved in this case due to ulterior motive. In fact on 7-7- 1989 at about 6-30 p.m. I, Hassan Khan, Ismail and Ibrahim were present in our own and possessed land. Younis deceased armed with .12 bore shot gun, Faiz Ahmad deceased armed with 7 m.m. Rifle and Said P.W. Armed with Sota trespassed into our land and made murderous assault on me, Ibrahim, Ismail and Asghar, with the intent to evict us as a result of which I, Ibrahim and Ismail received injuries from their hands. Asghar Khan armed with .12 bore gun, Ismail armed with Sota, Ibrahim armed with hatchet acted in self-defence of their person and property, as a result of which Faiz, Younis and Said received injuries. Umer Din, Saeed, Subhan and Rashidan were not present at the spot at the time of alleged occurrence."
9. Muhammad Sharif, Inspector (P.W.13) had investigated the case. He arrested Munshi Khan, Ibrahim, Ismail, Subhan appellants and Muhammad Saeed accused on 8-7-1989. Hassan Khan appellant was arrested on 11-7-1989. Munshi Khan, Ibrahim, Ismail were injured and he got them medically examined. In cross-examination he admitted that during investigation the complainant party did not apprise him that the possession of the land had been delivered to them 8 days before the occurrence. He also admitted that Younas deceased was armed with an unlicensed gun at the time of occurrence and Faiz deceased was carrying his licensed 7 mm rifle. He, however, denied the suggestion that the gun and the rifle of the deceased were lying with their dead bodies and he had taken the same into possession from there. He also admitted the suggestion that in addition to the two deceased Said Muhammad, P.W. Ismail, Ibrahim and Munshi Khan appellants, according to his investigation, were injured in the occurrence. The occurrence had taken place in Killa No,9 of Square No,39 and the complainant party was neither the owners nor in possession of this land.
10. Learned counsel for the appellants has contended that it was a clear case of defence of person and property, the conclusion reached by the learned trial Court was also in support of it and yet the conviction was recorded. According to him the approach of the learned trial Judge in recording the conviction was not proper. After hearing the learned counsel for the State as well as the complainant and going through the record, the contention seems to be correct.
11. From the statement of Muhammad Akram, Revenue Patwari (P.W.1) it is clear that the land was purchased from Akber, the maternal-uncle of the complainant and the two deceased by Munshi Khan and Hassan Khan appellants on 8-5-1978. After the sale Akber became a stranger in the village. After having purchased the two appellants entered in possession of the land and were continuing in possession since then. Even Killa No,9 of Square No,39 was in the possession of the appellants. According to the F.I.R., the complainant had entered in possession of the. Land on 4-7- 1989 i,e. Only three days before the occurrence. Sajwar Ali complainant (P.W.7) deposed that the accused handed over the possession of half of the land to him about 8 days prior to the occurrence. He also stated that Hassan Khan appellant reported a criminal case against them, the police came to the village, arrested his father and he and others fled away. He admitted in cross- examination that the whole of the land owned by his father was sold to Munshi Khan etc., Munshi Khan and Hassan Khan were in possession of all the land, his suit for possession through pre- emption was dismissed by the Civil Court, his appeal had also been truned down upto the High Court and the matter was now pending in the Supreme Court. He also admitted that not a single Marla of land was in his ownership in Square No,39 or in the whole of the village. He also stated that his deceased maternal-uncles had no concern with the disputed land and they were just with him for his help. He also admitted that prior to the occurrence the accused party moved applications to the police that they (the complainant party) were bent upon taking possession of the land forcibly and unlawfully. Case F.I.R. No,240 was registered on 5-7-1989 under section 440/148/149, P.P.C.
Against him, Akber Ali and others. He however, denied that on the day of occurrence, when the appellants were in possession of the land, he alongwith others assaulted to take forcible possession while armed with fire-arms and injured Munshi Khan, Ismail and Ibrahim appellants.
The other eye-witnesses are Said Muhammad and Raman (P.Ws. 8 and 9). Their statements also do not advance the prosecution case. From the prosecution evidence, it is apparent that the father of the complainant had sold whole of the land in his village to Munshi Khan and Hassan Khan appellants who were in continuous possession thereof, the pre-emption suit of the complainant had been dismissed upto the High Court and the matter on his behalf was pending in the Supreme Court. The complainant was bent upon taking forcible possession, apprehending danger, the appellant party had moved the police even previous to the occurrence and with respect to the alleged taking over of a possession a few days before the occurrence, case was reported against them and on the day of occurrence, the police visited the village, arrested the father of the complainant while the others slipped away. According to the version given at the trial Faiz deceased was carrying his licensed 7 mm rifle and Younas deceased unlicensed double barrel .12 bore gun. Younas had used the gun according to the version in the F.I.R. And injured Munshi Khan appellant. Thus, the act of the complainant and the deceased amounted to clear criminal trespass and when resisted, the appellants used fire-arms. Thus, in view of the provisions of sections 97, 99 and 103, P.P.C. The appellants were justified to defend their property and persons and to cause the death in such defence. It cannot be said that the right of self-defence of person or property was exceeded.
12. The upshot is that the appeal succeeds. The convictions and sentences are hereby set aside with the result that the appellants be set free forthwith if not required to be detained in any other case.