' MUHAMMAD NAWAZ ABBASI, J.--- This criminal appeal under section 417(2-A), Cr.P.C. Has been preferred by Muhammad Sarwar witness in the case F.I.R. No,172, dated 27-4-1993 registered at Police Station Gujjar Khan, District Rawalpindi, against the acquittal of Haji Punno Khan, 72/73 years, Ameer Zaman aged 56/58 years, sons of Ilam Din, Muhammad Sajid and Muhammad Rafaqat sons of Amir Zaman, aged about 27/28 and 22 years, respectively, through judgment, dated 6-4- 1995 delivered by learned Additional Sessions Judge, Rawalpindi, from the charge under section 302/324/148/149, P.P.C. For the allegation of committing Qatl-e-Amd of Bagh Ali and Mahboob Hussain and causing injuries to Mst. Shehnaz Bibi in the area of Dhoke Ghurki Dakhli Khanpur within the limits of Police Station Gujjar Khan. The State has not filed any separate appeal against the judgment in question.
2. The prosecution case as contained in the F.I.R. And summarized in the statements of the eye- witnesses at the trial is as follows:-- "The agricultural land situated adjacent to our house (complainant side) is owned and possessed by us. Muhammad Amir and Punnu sons of Ilam Din claimed their ownership over the said land.
The land was under dispute in a Civil suit pending before the Civil Judge at Gujjar' Khan. The land in question being under cultivation of Bagh Ali, he sowed wheat crop in it. Thereafter, Punnu Khan and Amir Zaman also sowed wheat crop in the said land. On the eventful day i,e, 27-4-1993 at 7-20 a.m.
The complainant along with his father Bagh Ali and uncle Mahboob Hussain, Mst. Shahnaz Bibi wife of Muhammad Iqbal, Mst. Naseem Bibi, his wife and Mst. Gul Fareen wife of Muhammad Sarwar were harvesting the wheat crops, when Amir Zaman and Punnu Khan, real brothers, armed with hatchets, whereas Sakhawat and Sajid sons of Amir Zaman armed with guns appeared at the scene and raising Lalkara to teach a lesson for harvesting the wheat crops from the land and attacked on them. Punnu Khan directed the remaining accused not to allow them to go alive today. Bagh Ali and Mahboob Hussain run inside their Haveli located near the land and while taking out their licensed guns were near the wall inside the Haveli when Sakhawat Hussain fired a gun shot which hit Bagh Ali on his face, who fell on the ground, whereupon Mahboob Hussain deceased fired a shot with his licensed gun at Sakhawat Hussain, but it hit Mst. Aansa Bibi wife of Sakhawat and she also fell on the ground. Sajid Hussain accused fired a shot with his.Gun at Mahboob Hussain, which proved fatal to his life. On our hue and cry Sakhawat Hussain fired, which caused injuries to Mst. Shahnaz Bibi on her head. In the meanwhile, Punnu Khan when tried to scale over the wall of the Haveli, he was caused hatchet blow on left hand by Muhammad Safdar. Bagh Ali succumbed to the injuries at the spot, whereas Mahboob Hussain expired while he was being taken to the hospital. The quarrel took place over the dispute of land."
3. Muhammad Safdar and Mst. Shahnaz Bibi (P.Ws.17 and 18), who sustained injuries during the occurrence, have repeated the prosecution story at trial as given in the F.I.R. The occurrence is admitted with plea of self-defense. Punnu Khan, respondent in his statement under section 342, Cr.P.C. In answer to question No,9 that "why this case is against you and why the P.Ws. Have deposed against you?" stated as under:- "We are owners in possession of Khasra No,2400 while the complainant party has no concern, whatsoever with this land nor they had filed any civil suit against us about this Khasra number. On the day and time of occurrence, I along with Mst. Naik Bibi, Mst. Zubeda Bibi and Mst. Ansa Bibi, sister, brother's wife and a daughter respectively was cutting wheat crop when the complainant party having armed themselves committed criminal trespass into our field and started causing injuries to us. On our hue and cry, and shirks Sakhawat co-accused rushed to the spot along with a gun and in order to save our lives fired at the assailants otherwise we would have been killed. I informed the police and we all apprised them of true facts but they in collusion with the complainant party did not register our case and also changed the venue of the occurrence. The whole occurrence took place in our field. Ameer Zaman, Rafaqat and Sajid were not present at the spot. Similarly, Muhammad Safdar, Mst. Shahnaz Bibi P.Ws. Were also not present there. Even Mst.
Gulfareen Bibi and Mst. Tasleem Bibi were not present there. Sakhawat Hussain had arrived on hearing our shirks."
' The respondent giving the above version stated that Amir Zaman, Rafaqat and Sajid of the accused side and Muhammad Safdar and ' Mst. Shahnaz Bibi of the complainant party were not present at the spot.
4. The complainant party lost two persons, namely, Bagh Ali and Mahboob Hussain and Muhammad Safdar as well as Mst. Shahnaz Bibi P.Ws. Were caused injuries, whereas Haji Punnu Khan, Mst. Aansa Bibi and Mst. Naib Bibi of accused side sustained injuries in the occurrence.
5. Dr. Qazi Tariq Mahmood, (P.W.5) conducted the post-mortem of Bagh Ali deceased on 27-4-1993 and found the following injuries on his person:--
(1) A fire-arm lacerated wound of exit with averted edges measuring 1.2 c.m. x 1 c.m. Posterior to left lower 1/3rd of ear pinna with underline fracture.
(2) Fire-arm wound of exit lateral to left eye underline fracture of the bone.
(3) Fire-arm wound of entry 3 c.m. x 1.5 c.m. In mid of forehead with a continuous fracture of mid line of the skull.
(4) A fire-arm wound of entry 3 c.m. x 4 c.m. (lacerated) extending from the bridge of the pose and left eye upto the forehead. It was brain deep with underline fracture of the skull. The wound was directed upwards laterally and backward.
(5) A fire-arm lacerated wound of entry 3 c.m. x 1.5 c.m. About 2 c.m. Lateral to right of nostral with underline fracture of bone.
(6) A fire-arm lacerated wound of entry .8 c.m. x 8 c.m. About 2 c.m. Above injury No,5, with fracture of underline the bone.
(7) Fire-arm lacerated wound of entry .8 c.m. x .8 c.m. On right cheek with underline fracture of bone.
(8) Fire-arm lacerated wound of entry 3 c.m. x 1.5 c.m. On and laterally right eyebrow and slightly above it with fracture of underline.
(9) A lacerated wound 2.5 c.m. x 2.5 c.m. On right arm of lateral forehead which was muscle deep.
6. On the same day, he medically examined Mst. Shahnaz Bibi an injured witness on 1-5-1993 and found the following injuries on her person:-- "A small lacerated wound with blackish scalp over it about .3 c.m. x .3 c.m. With surrounding red inflamed area of about 1 c.m. x 1 c.m. On back of head, slightly on right side of mid line about 13 c.m.
Above and behind left ear pinna (upper margin), X-Rays were advised of skull. A.P. And lateral view."
7. Dr. Muhammad Latif (P.W.1) conducted post-mortem on the dead body of Mahboob Hussain on 28-4-1993 and found the following injuries on his person:--
(1) A large fire-arm lacerated wound of entry 6 c.m, x 8 c.m. Covering the area of right cheek, right side of bridge of nose, and nostril, right eyebrow up to the lateral edge and right forehead including the whole right eye with only one flap of skin around the eye was attached to bridge of nose. The wound was directed upward, backward, and medially and it was brain deep.
(2) There were multiple about 30 small fire-arm lacerated wounds of entry each measuring about .2 c.m. x .2 c.m. Around injury No, 1 . The small pellet wounds were covering right check, front of right ear, right side of mid line of forehead including its lateral area and right side of nose. Some of these wounds were skin deep and some were bone deep.
(3) A fire-arm lacerated wound of exit 2 c.m. x 1/2 c.m. x bone deep on and above the left side of bridge of nose.
(4) A fire-arm lacerated wound of exit .5 c.m. x .5 c.m. x bone deep just below and lateral to injury No,3.
(5) A fire-arm wound of exit .3 c.m. x .3 c.m. x bone deep about 1 c.m. Below injury No,4.
(6) 2 small fire-arm lacerated wounds of exit on left side of nostril, each measuring about .3 c.m. x .3 c.m."
8. On 27-4-1993, the same doctor medically examined the injured persons of the accused side, namely, Haji Punn. u Khan, Mst. Naik Bibi wife of ' Muhammad Sadiq, Mst. Zubeda Bibi wife of Meer Zaman, and Mst. Aansa Bibi wife of Sakhawat Hussain and traced the injuries on their persons in the following manner:--
(I) Haii Punnu Khan
(1) A lacerated wound 2.5 c.m. x 1.5 c.m. Bone deep on the right side of forehead just above the medial side of right eyebrow. X-Ray was advised.
(2) An abrasion 2 c.m. x 1-1/2 c.m. On the left side of forehead 2 c.m. Above the left eyebrow.
(3) Incised wound 5-1/2 c.m. x 1/2 c.m. With presence of blood clots and fresh bleeding as well X bone deep alongwith swelling and all over the back of left hand. Advised X-Ray.
(II) Mst. Naik Bibi
(1) Lacerated wound 5 c.m. x .5 c.m. x bone deep on occipital region at left side 7 c.m. Above the external occipital protuberance. Advised X-Ray skull.
(III) Mst. Zubeda Bibi
(1) Abrasion 1/2 c.m. x 1/2 c.m. Over the middle 1/2nd of right fore-arm on its back.
(2) Swelling 1 c.m. x 1 c.m. With tenderness over .The proximal interphalangeal joint of index finger of right hand. Advised X-Ray.
(3) Swelling 2.5 c.m. x 2.5 c.m. With abrasion 1 c.m. x .5 c.m. Over the base of little finger and ring finger of left hand at its back. Advised X-Ray.
(4) Complaint of tenderness of the base of middle finger of left hand at its back.
(IV) Mst. Aansa Bibi
(1) Lacerated wound 2-1/2 c.m. x 3/4 c.m. x 1/2 c.m. At 1-112 c.m. Above the left ear. It was sulcus and there was evidence of powder staining. Advised X-Ray skull. A.P. And lateral.
9. The material facts of the occurrence pertaining to the time, the place of occurrence and the use of weapons are not disputed. The dispute between the parties in the background as cause of fateful incident was the physical possession of the land at the spot. The respondents placing reliance on Aks Shajra Kishtwar '(Exhs.P.M. And P.N.) read with the statement of Muhammad Tufail, Patwari (P.W.10) claimed that they being joint owner in Khasra No,2400 in village were in cultivating possession of the land located in front of the house of deceased, whereas the complainant party denying the possession of the respondents on the said portion of land claimed their physical possession over the land. The perusal of the Aks Shajra Kishtwar (Exhs.P.M. And P.N.) and the Jamabandi for the year 1969-70 produced by the respondents in their defense, show the joint ownership of the respondents in the said Chars comprising an area of 86 Kanals, but these documents do not indicate that the respondents being co-owner in the Khasra in question were also in possession of the land situated in front of the house of Bagh Ali deceased and the complainant negated their claim of possession of that portion of the land. The perusal of the statement of Muhammad Tufail Patwari (P.W.10) also does not show that the respondents were in physical possession of the above said piece of land. However, the defense version to the extent that complainant party is not shown as owner in the Khasra in question in the Revenue Record is found supported through the statement of the Patwari and consequently their possession of the land is not proved through evidence. The ownership in the Khasra in question comprising 86 Canals of the land belongs to 216 owners in the village and unless the possession in the joint Khata is delivered through partition, the claim of possession over specific portion is not determinable. The evidence does not show that how and in what manner the respondents were in possession of the land under dispute for the purpose of exercise of right of self-defence. The complainant party even if was in possession at the spot without ownership could justifiably retain the same unless it would have taken from them through process of law, therefore, the possession of the complainant party, if any, without ownership would undo the plea of self-defence by the respondents to take life of their opponents on the basis of ownership in the land.
10. While putting the prosecution case in juxtaposition with defense version and the independent analysis of the facts introduced by the prosecution and defense, it would show that the respondents were keen to get the possession of the particular piece land after purchase of a portion of 8 Kanals of land by Haji Punnu Khan in addition to the earlier joint ownership in the said Khasra a fortnight before the occurrence, whereas the complainant party being in occupation of the said land located in front of their houses either as owners or by reason of continuous physical possession resisted to the claim of the possession of the respondents, which resulted in the occurrence. According to the prosecution, the complainant party: with their ladies were harvesting the wheat crop in the land in question and as per defense plea, Haji Punnu Khan respondent and the ladies, namely, Mst. Naik Bibi, Mst. Zubeda Bibi and Mst. Aansa Bibi were cutting the wheat Crop from the said land, when the complainant party armed with deadly weapons trespassing into the field caused injuries to them and in consequence thereof Sakhawat, not respondent before us, with a view to save the lives of Haji Punnu Khan and the women fired at the deceased. The crux of the matter is that as per claim of the complainant party, their ladies were harvesting the crops, whereas according to the defence, the ladies of the family of Haji Punnu Khan were cutting the wheat crop from the field when this sad occurrence took place. As discussed earlier, both parties claimed actual physical possession of the land, but none could bring any independent evidence in proof of their respective claim except the oral assertion. The case of the prosecution is that accused party cultivated the field after cultivation of the same by the complainant and his father Bagh Ali deceased. The factum of harvesting the land in question by either of party is not proved through the Revenue Record as the Khasra Girdawari pertaining to the relevant period was not produced or placed on record either by the prosecution or the defense. Therefore, it can easily be visualized that the attempt of accused side to occupy the land was resisted by the complainant party, which led to this occurrence.
11. The determination of the controversy that who was aggressor and who aggressed needs detail examination of evidence in the light of the contentions raised by the learned counsel for the parties.
12. Learned counsel for the appellant contended as under:--
(i) That the houses of the respondents are situated at a distance of about six furlong from the place of occurrence and the Haveli of the deceased Bagh
(ii) That the injuries sustained by the ladies of the accused side and Punnu Khan respondent do not by itself suggest that the accused were not the aggressors.
(iii) That possession of the accused party on the land under dispute is not proved through any documentary evidence and mere joint ownership in the Khasra measuring 86 Canals of land could not justifiably provide a ground of self-defense.
(iv) That the injured witnesses have categorically deposed about the aggression of the accused and the accused despite taking specific defense plea did not produce their injured women as witnesses. ,
(v) That the admission of defence of the participation of the Haji Punnu Khan and Sakhawat Hussain absconder is a strong evidence in support of prosecution case.
(vi) That Sajid and Sakhawat Hussain ate assigned specific role of causing injuries to the deceased and the eye-witnesses which fact is confirmed by the medical and the evidence of motive.
(vii)
That admittedly Haji Punnu Khan purchased a parcel of land measuring eight Canals about a fortnight before the occurrence in Khasra No,2400 and he with a view to establish his possession in the land in joint Khata committed aggression upon the complainant party, which is proved through the fact that the accused armed with fire-arms came to the place of occurrence from a distance of six furlongs.
(viii)That there is enough direct as well as circumstantial evidence of the violence and aggression of accused.
(ix) That in the given facts the benefit of section 100, P.P.C. Being not available to the defence was wrongly given to the accused.
' The complainant moved an application under section 540, Cr.P.C. Before the trial Court for production of the documentary evidence in proof of the ownership of complainant party in the Khasra number in question, but the said application was not allowed. It has been contended on behalf of the appellant that if the prosecution would have allowed to bring on record the Revenue Record, the ownership and possession of the complainant party over the land in question could conveniently be proved.
13. Learned counsel representing the accused, respondents herein, answered in the following manner:--
(i) That the complainant party without ownership in the land could not claim the possession and resist the accused side from harvesting their land and cutting the wheat crop.
(ii) That site plan, the Aks Shajra Kishtwar (Exhs.P.M. And P.N.) and the Jamabandi for the year 1969- 70 produced in defense and the statement of the Patwari (P.W.10) established beyond doubt the ownership of the accused in the land and there being no proof of dispute of possession of the land except oral assertion, possession of the accused as owner of the land was not questionable.
(iii) That as per prosecution story, Mahboob Hussain deceased first fired at the accused party and then Sajid and Rafaqat fired at the deceased, which evidently supported the defense version that the accused did not commit aggression.
(iv) That presence of the ladies of accused in the land and sustaining injuries by them in the occurrence is a strong proof of the fact that the accused being in possession of the land were harvesting the wheat crop when the complainant party by force and violence wanted to oust the accused from the land forcibly and as a result thereof lost two lives in the fateful occurrence.
(v) That the injuries on the person of Punnu Khan and the fact that Mahboob Khan deceased first fired at Sakhawat Hussain which hit Mst. Aansa Bibi is a convincing circumstance in favor of the defense version. If the accused would have come prepared to commit the aggression, they would not have allowed any person of the complainant party to cause injuries to Punnu Khan with hatchet and the circumstance under which the occurrence took place manifestly favored the defense version that Sakhawat on coming to know about the aggression of the complainant party while reaching at the spot with a gun fired at the deceased to save the life of Punnu Khan and the ladies of his family.
(vi) That the motive was with the complainant side to dispossess the accused from the land located in the front of the house of Mahboob Hussain deceased.
(vii) That the accused while acting in exercise of their right of private defense without intention to kill and taking risk of their lives fired at the deceased.
' Learned counsel questioning the probative value of the empties recovered from the spot and the weapon of offence from the accused argued that the same are not usable as evidence against the accused as the guns belonging to the deceased were taken into possession from the field and they also used the fire-arm, therefore, the recovery of empties would negate the prosecution version of sustaining the injuries by the deceased near the wall of the Haveli and support the defense version of taking place of quarrel in the field. Learned counsel contended that the acquittal being a valuable right is not ordinarily to be interfered and that the prosecution case being shaky and leaning towards the defense version having the reasonable possibility of being true was rightly disbelieved by the trial Court giving benefit of section 100, P.P.C. To the accused.
14. We have heard the learned counsel for the parties at length and also minutely examined the evidence with their assistance. Muhammad Safdar and Mst. Shahnaz Bibi (P.Ws.17 and 18) and the injured eye-witnesses Mst. Gulfareen and Mst. Naseem Bibi were given as unnecessary. The statement of Muhammad Sardar (P.W.17) is as under:-- "That on 27-4-1993 at 7-15 a.m. He along with Bagh Ali and Mahboob Hussain deceased, Mst.
Shahnaz Bibi, Mst. Gul Fareen and Mst. Naseem Bibi was harvesting the wheat crop in the land under dispute when Sakhawat Hussain, absconder and Muhammad Sajid armed with rifles and Amir Zaman, Punnu Khan and Rafaqat armed with hatchets appeared at the scene. On the Lalkara raised by Punnu Khan to teach lesson to the complainant party for cutting the crop, the complainant and both deceased running into their Haveli brought out rifles and when reached near the outer wall of the Haveli, Sakhawat Hussain fired a shot at Bagh Ali and in exchange Mahboob Hussain deceased fired which hit Mst. Aansa Bibi and she was injured. Muhammad Sajid then fired at Mahboob Hussain and caused his death. The witness has denied the suggestion that the wheat crop was sown in the land belonged to accused party. He also denied the suggestion that the accused being the victim of aggression of complainant party fired at the deceased in their defence. The witness further denied the suggestion that actually occurrence took place in the field but subsequently the deceased were lifted to the Haveli. The witness has admitted that no suit involving the dispute of land between the parties was pending, but Khasra No,2400 comprising of 86 Canals and 13 Marlas of land was owned by different persons including the parties jointly. The witness forcefully denied the suggestion that the accused along with their women-folk were cutting the wheat crop from the land owned and possessed by them in Khata No,2400, when the complainant party trespassing into the field attacked upon them with the hatchets and in the meanwhile Sakhawat Hussain armed with gun reached at the spot, and in consequence thereof parties exchanged firing. The witness denying the plea of self-defense raised by the accused stated that they were the aggressors."
Mst. Shahnaz Bibi (P.W.18), the injured witness, has corroborated Muhammad Safdar, her husband on each material point.
15. The occurrence is admitted. The field is located in front of house of the complainant and Muhammad Sarwar and Mst. Shahnaz Bibi sustained injuries during the occurrence. The dispute of land as bone of contention between the parties is also an established fact, therefore, the ocular account with statement of Patwari (P.W.10) along with Revenue Record produced by the parties and the motive relating to the dispute of land are essentially matter for the determination of guilt or innocence of the accused. The use of guns and hatchets by the parties in the occurrence being not denied, the recoveries of the weapon of offence and the empties are of not much significance.
Admittedly, both sides having sustained injuries in the occurrence, none can unilaterally use the medical evidence as source of aggression. The independent analysis of evidence brings us to the conclusion that actual physical possession of the land would only be the determining factor for effective disposal of this appeal. The statement of Muhammad Tufail, Patwari (P.W.10) is to the following effect:-- "I visited the place of occurrence on 29-4-1993 along with the police. I had taken along the Revenue Record also. I had prepared Aks Shajra Kishtwar which is Exh.P.M. And Exh.P.N. I also gave a report which is Exh.P.O. These documents are in my hand and signed by me. The report Exh.P.O. Was given by me on 2-5-1993 but it was in reference to 29-4-1993. Even Exh.P.M. And Exh.P.N. Were given by me on 2-5-1993. x x by the learned defense counsel.
' Even today I have brought along the original register of Jamabandi, Khasra Girdawari as well as the Aks Shajra. On 29-4-1993 the place of occurrence was shown to me by the police and the witnesses and in that field some wheat crop was cut and the other was standing. It is correct that the said field bears Khasra No,2400. It is correct that on 19-7-1993, Abid Hussain, S.-I. Vide his order Exh.D.E. Directed me to ascertain and report the Khasra number of the place of occurrence and my report to the effect that the said place is situated in Khasra No,2400 is Exh.D.E./1 which is signed by me and is in my hand. The place of occurrence is the same which is the disputed land. The land for which the parties had disputed and upon which the occurrence took place was Khasra No,2400.
The house of Bagh Ali was situated in Khasra No,2390 which is now marked Exh.P.M./1 and Exh.P.M./2.
It is correct that Bagh Ali and Mahboob Hussain deceased were neither the owners nor in possession of Khasra No,2400. It is correct that Mst. Naik Bibi, widow of Muhammad Sadiq, her sons Muhammad Siddique and Muhammad Hanif and her daughters Mst. Amina Bibi, Mst. Mukhtar Begum and Mst. Guftar Begum are entered in possession of Khasra No,2400 in Jamabandi for the year 1989-90. Even Mst. Aisha Bi daughter of Karam Elahi has been entered in possession of Khasra No,2400 vide Jamabandi for the year 1989-90. The said Jamabandi is the last Jamabandi and is still continued. On 18-3-1993 Punno Khan and Ameer Zaman sons of Ilam Din accused present in Court had purchased 8 Canals of land from Riasat Khan and others the owners of Khasra No,2400.
On 11-4-1993, the Girdawari of Khasra No,2400 was done for Rabi crop. It is correct that Punno Khan and Ameer Zaman accused are mentioned in the said Khasra Girdawari and even subsequent entries in the Khasra Girdawari are in their names."
' The witness has not stated a single word about the possession of the accused in any form. The documents, namely, Jamabandi for the year 1969-70. Aks Shajra Kishtwar (Exhs.P.M. And P.N.) and the site plan can be helpful in establishing the ownership of the accused to the extent of their share in the Khasra No,2400 measuring 86 Canals but the same do not indicate the possession of the accused on the land under dispute or any other portion thereof in the Khata in question. Similarly, the possession of complainant is not proved through any documentary evidence. However, Muhammad Safdar (P.W.17) in the cross-examination in reply to a question stated that they were in physical possession of the disputed land since long. From the facts, it can he easily visualized that the parties clashed over making endeavor to establish their physical possession at the spot. The accused party carrying fire-arm and hatchets reached at the spot with their women to cut the wheat crop and the complainant side while making the attempt of accused of forcible occupation of land resisted them and as a result of clash both sides used weapon and caused injuries to each other. The accused party carrying arms came at the spot from a distance of six furlongs not with the intention to kill but to forcibly occupy the land by removing any resistance and consequently the participation of ladies of both sides in the circumstances was natural. Thus, the claim of mere ownership in joint Khata, the injuries sustained by Punnu Khan and the ladies of accused without proof of actual possession of the land would not show that the complainant party was aggressor and the accused acted in their right of private defence. The clash and encounter between the parties resulted into two deaths and more than two persons from each side sustained injuries. We, therefore, conclude that the occurrence happened as a result of free fight.
16. Muhammad Safdar P.W.17 stated in the cross-examination as under:-- "It is incorrect to suggest that on hue and cry raised by them, Sakhawat Hussain accused armed with gun reached the spot upon which both of them brought out their guns and resorted to firing causing injuries to Mst. Aansa Bibi."
' The reconstruction of the story unambiguously makes it clear that the quarrel between the parties in the field over the dispute of ownership of wheat crop and its cutting claiming possession on the land led to this occurrence which was of the character of free fight. The right of private defense being not available to the accused, they were responsible to their individual liability. Thus, in case of free fight on account of dispute of possession, none of the parties could claim private defense of property or of person. The accused party forcibly entering into the field started cutting wheat crop and the complainant party resisted the same and as a result of clash, both parties sustained injuries. Muhammad Sajid respondent herein and Sakhawat Hussain fired one shot each.
17. We having concluded that the parties caused injuries to each other in free fight, the individual liability of each accused will require to be determined. Muhammad Sajid accused is attributed fatal shot to Mahboob Hussain deceased and Sakhawat Hussain absconder allegedly fired at Bagh Ali, who is not before us. We, therefore, setting aside the acquittal of Sajid Hussain respondents herein through the judgment, dated 6-4-1995 delivered by learned Additional Sessions Judge allow this appeal to his extent and convict him as under:--
(I) Muhammad Sajid ' Under section 302(b), P.P.C. For committing Qatl-e-Amd of Mahboob Hussain as Ta'zir. Since he fired single shot in the free fight, which happened over the dispute of possession of land, we, therefore, are of the view that sentence of life imprisonment will be sufficient to meet the ends of justice. Hence, we order accordingly. However, he will get benefit of section 382-B, Cr.P.C. He will also pay a sum of Rs,20,000 as compensation to the legal heirs of Mahboob Hussain deceased under section 544-A, Cr.P.C. And in default will suffer S.I. For six months.
' Ameer Zaman, Muhammad Rafaqat and Punnu Khan are not attributed any injury to the deceased or to any witness. Amir Zaman and Muhammad Rafaqat armed with hatchet remained present without any active participation whereas Punnu Khan raised Lalkara and made an attempt to scale over the wall of Haveli, when was caused injuries by Muhammad Safdar P.W. And the complaint of the case. They being not responsible to any overt act, the appeal to their extent is dismissed.