' The present five appellants were sent up by Mehar Police for offences under sections 302, 148 and 149, P. P. C. For having on 21-9-1971 at breakfast time, committed rioting armed with hatchets and lathis and caused the death of one Qadir Bux, near survey No. 62 Deh Garhi Jagir, Taluka Mehar.
The complainant had also implicated in his F. I. R. One Hondomal as the main accused. He was not, however, sent up by the police and later on a direct complaint was filed against Hondomal in the Court of Civil Judge & F. C. M., Mehar on 21-4-1972. The six accused including the five appellants and Hondomal were committed to stand their trial in the Court of Session. The learned Additional Sessions Judge, Dadu however, found that there was no unlawful assembly nor was there any rioting committed by the accused persons though fight had taken place due to dispute over survey No. 63 between the two parties; that since the deceased had only received a blunt weapon injury on his head and he had died after a month and a half in the hospital due to spetae-caemia.
He found appellant Taj Muhammad only to be guilty of offence under section 304(2), P. P. C. And sentenced him to R. I. For 5 years. Other four appellants were found guilty of minor offences under section 323 or 324, P. P. C. And they were sentenced to six months or two years respectively. The main accused Hondomal was, however, acquitted. The five convicted accused have accordingly preferred this appeal.
2. The facts of this case in brief are that Survey No. 63 in Deh Garhi Jagir was originally the property of Sultan Ahmad Chandio Jagirdar. Hondomal accused was, however, the owner of Zamindari rights. Taj Muhammad the main appellant in this case was the hari of Hondomal on this survey number in the years 1970-71 and 1971-72. This survey number had at one time been allotted by the Mukhtiarkar Mehar as Rehabilitation Officer in the name of complainant Abdullah. This was sometime in the year 1959-60, the land having been considered to be evacuee property but accused Hondomal claimed this land as his own and he continued to cultivate this land through his hari Taju at the time of the alleged offence as pointed out by Muhammad Ayub Tapedar Exh. 5 and as per Field Book entry Exh.
7. It appears that on the date of the incident on 21-9-1971 complainant Abdullah and his nephew Qadir Bux and Labourer Muhammad Machhi came on this land for the purpose of cultivation on the basis of the allotment order of Mukhtiarkar, Mehar. Possibly this information reached Hondomal and his Kamdar Taju who along with the remaining appellants Usman, Muhammad, Soomar and Ishaque came to their survey number to see what was happening. They protested to Abdullah as to why he had wrongfully occupied their survey number. A fight then ensued as Abdullah resisted and refused to vacate the survey number. It is the case of the complainant and his witnesses that appellant Taju gave a sharp-sided hatchet blow on the head of Qadir Bux, Usman pave blunt-side hatchet blow on his eye while Ishaque also dealt a blunt side hatchet blow on his lower jaw as a result of which Qadir Bux fell down. That Soomar and Muhammad gave lathi blows to complainant Abdullah on his arms and head. On their cries Prosecution Witnesses Gul and Piral working in the nearby cultivation came running and rescued them.
3. According to the medical evidence Qadir Bux had sustained a lacerated wound on the left side of the skull and anterioposterily measuring 3"x 4" scalp deep. He had also a left black eye and abrasion on left cheek. On the person of Abdullah there were abrasions and swelling of the left fore-arm. Qadir Bux remained as in-door patient in the hospital and there was no evidence of any fracture due to the injury on the head. He, however, expired in the hospital on 4-11-1971 at 1-45 a.m.
The post-mortem examination revealed that death was not the immediate and direct result of the injuries, The injured was showing some central nervous system symptoms due to head injury and he died on account of septae-caemia as a result of low resistance due to prolonged illness and confinement to bed due to hatchet injuries.
4. As compared to the above injuries on Qadir Bux and Abdullah appellant Taj Muhammad had 5 blunt-weapon injuries on his person, appellant Usman had 8 such injuries including a lacerated wound on the head, appellant Ishaque had one abrasion on the right fore-arm.
5. The learned Additional Sessions Judge, Dadu did not believe the prosecution witnesses with regard to the presence of accused Hondomal at the scene. He also acquitted all the appellants of rioting and did not hold all of them liable for the death of Qadir Bux. The learned Additional Sessions Judge also came to the conclusion on evidence that accused Hondomal had been falsely implicated due to dispute over survey number 63; that the oral and documentary evidence showed that appellant Taju had cultivated survey number 63, at the time of the incident and there was no evidence that complainant Abdullah had at any time cultivated this disputed land.
6. It has accordingly been argued by Mr. S. M. Sohail on behalf of the appellants that since appellant Taju was the hart on this land and had cultivated this land, the act of the complainant with regard to coming to survey number 63 with intention to cultivate the same amounted to criminal trespass; that the appellants were, therefore, entitled to right of private defence: that the party of the deceased were actually the aggressors.
7. The entries in the Field Book, Exh. 7, khasra girdwari Exh. 12-A defienitely show that survey number 63 was cultivated by Taju Machhi on behalf of zamindar Hondomal during 1970-71 Kharif and Rabbi and 1971-72 Kharif and Rabbi. No documentary or oral evidence has been produced by the complainant to show that he was in actual possession. Possibly the complainant and the deceased had come on this land to take possession and to cultivate it by force. The facts and circumstances of the case as revealed in evidence do not rule out the possibility that the complainant party had trespassed on survey No. 63 when the party of the appellants came there to safeguard their possession of this survey number. The incident of fight actually took place according to the sketch and the evidence of the tapedar in the uncultivated land in survey No. 62 at the border of the disputed survey number 63. I would in this connection refer to a decision of Lahore High Court in the case of Kirparam v. Emperor . The facts of that case were more or less the same as that of the present case. The disputed land had been in exclusive possession of the accused for six months prior to the occurrence. On the day of the occurrence the complainant party went to the land in order to take forcible possession. The accused party learning of this arrived at the spot and attacked the complainants' party with a view to evict them. In the fight between the two parties large number of persons were injured and one of the complainant party died. It was held that the complainant party by merely entering upon the land and by letting loose their cattle had not acquired possession of the land. Their act amounted to criminal trespass and the most that could be said was that they had obtained temporary occupation of the land. In view of the fact that the trespass was still continuing when the accused party arrived, they had a right to defend their possession by virtue of section 105. No question of recourse to public authorities arose in a case of this kind. It could not be said that the proper course for the accused party was to run to the police and seek their aid; that initially section 104, applied and in order to defend their possession the accused were not entitled to cause death of any of the offenders but the other side offered obstruction and inflicted injuries to the accused party. In view of the fact that the accused were acting in the exercise of their right of self-defence, the deceased and his companions had no right of private defence against them and the right of private defence of person accrued in favour of the accused and that right extended to the causing of any harm including death.
8. In the present case also serious injuries have been caused to the accused party. Possibly these injuries were caused by the complainant party who wanted to resist eviction and to hold possession of this survey number. Both the parties appear to have been armed with lathis and these lathis were used even on the head. There was, therefore, reasonable apprehension in the mind of the accused party that death or grievous hurt would be caused to them. Under these circumstances it cannot be said that by causing a blunt weapon injury on the head of the deceased the right of private defence was exceeded. No hatchet injury was caused either to the deceased or to any other member of that party. I accordingly find that the appellants are entitled to the benefit of reasonable doubt that in all probability the injuries to the party of the deceased were caused in the exercise of the right of private defence since the A deceased party were the trespassers. No offence, therefore, appears to have been committed by any of the appellants. Their convictions and sentences are seta side, they are acquitted and their appeal is accepted.
9. The appellants are on bail, their bail bonds are hereby discharged and they need not surrender. (1947) 48 Cr. L J 503