1. GHULAM SAFDAR SHAH, J.-This petition for leave to appeal, which is directed against the judgment of Lahore High Court, dated 15-6-1976; arises in the following circumstances:-- The parties herein were at loggerheads with each other in regard to one kanal of land comprised in Khasra No. 733 situated in the revenue estate of Muhri Ghazan Mughalabad. Rawalpindi Cantonment. The nature of the precise dispute, which in the end culminated in the arm fight between them, was that each one of them claimed to be in exclusive possession of the said land.
2. The prosecution case is that on 20-9-1967, at 8 a.m. Bostan (P. W. 3) alongwith his brother Manzoor (P. W. 1), Sultan (P. W. 7) and Qaim Din (P. W. 4) were busy constructing on the disputed land a boundary wall when the respondents herein (the father and his two sons) arrived at the scene armed with fire-arms; it is alleged that when respondents reached the disputed land Faiz Ahmad (respondent No. 1) raised a lalkara that he would finally settle with the P. Ws. The long-standing dispute; that at this Faiz Ahmad and his two sons aimed their weapons at the P. Ws. Who started running. But even so they fired at them in consequence of which P. W. Manzoor Hussain was hit in both his legs, Sultan (P. W.) on the upper part of his left glutial region, and P. Ws. Qaim Din on the upper part of the back of his left forearm and on the inner side of the left knee with pellets and Bostan on the inner side of the back part of his right thigh. Besides these four injured P. Ws., the occurrence was witnessed by Khan Muhammad (P. W. 8) and Noor Ahmad (P. W. 10) both of whom, have, during the trial supported the case of prosecution.
3. The F. I. R. Was lodged by Bostan (P. W. 3) at the Police Post of ' R. A. Bazar, situated half a mile away from the place of occurrence at 8-30 a. m on the same day on the basis of which regular F. I. R.
4. Was later recorded' at the police station. The F. I. R. In question was recorded by S. L P. Bashir Ahmad (P. W. 18), who thereafter proceeded to the spot and prepared the injury statements of the four P.
5. Ws. And then got them examined at the District Headquarters Hospital by Doctor Muhammad Siddiq (P. W. 12) who found the following injuries on their persons--- Manzoor Hussain (P. W.)----
(1) Lacerated wound 6' x 6' whole depth of leg (leaving the skin only intact en the posterior side) on front of middle third of right leg. Muscles and bones were broken into pieces, by the wound, the foot and the lower part of the leg are almost separated from the rest of the body. The shalwar on the leg was also blown off into pieces. X-ray was advised.
(2) Lacerated wound of entrance with inverted edges 1 -- x 1 -- x connected through and through with the wound of exit on the middle third of inner side of leg. X-ray was advised.
(3) Lacerated wound of exit 3' x 1 --" on middle third of outer part of left leg. The wound was connected through and through with the wound of entrance (i.e. Injury No. 2).
6. Sultan Khan- Lacerated wound 2 -- x 2 -- x 4 -- deep on upper part of left glutial region. There was big bole in the shalwar which was marked and signed by him. X-ray was advised.
7. Qaim Din-
(1) Circular pellet wound --' diameter x depth not probed on the upper part of back of left forearm.
(2) Circular pellet wound -- diameter x depth not probed on the inner side of the left knee.
8. Bostan- Circular pellet wound -- diameter (wound of entrance) on the inner side of back of upper part of right thigh. The wound was connected with the wound of exit through the muscles (through which the probe passed easily) on the outer side of back of thigh at the same level of entrance. The diameter of exit was -- where the edges of the wound were averted while the edges of the entrance wound were inverted.
9. He was of the view that injuries 1 and 2 on the -person of Manzoor Hussain were caused by fire-arm and were grievous; on the person of Sultan Khan was also grievous; on the person of Qaim Din v ere simple; and on the person of Bostan was also simple. After completing the formalities, the Investigating Officer arrested the respondents and at the conclusion of the investigation challaned them in the Court of Mr. Muzaffar Hussain Zaidi, Magistrate Section 30, Rawalpindi, to stand their trial under section 307/34, P. P. C. The learned Magistrate, in view of the evidence produced before him by the prosecution, and the defence, found 'the respondents guilty of the charge, convicted each one of them and sentenced them to seven years' R. I. Each with a fine of Rs. 3,000 each or in default to undergo R. I. For one year. Being aggrieved, the three of them filed against the said judgment appeal in Lahore High Court which was allowed by the impugned order, consequently their convictions and sentences were set aside -and they were set at liberty.
10. Mr. Shahudul Haq, the learned counsel for petitioner Manzoor Hussain has assailed the judgment of High Court on two grounds :-
(1) That the learned Judge, in setting aside the judgment of trial Magistrate, has not only misread the evidence in material respects but was mainly influenced by the written complaint, dated 20-9- 1967 which Faiz Ahmad is alleged to have filed with S. I. P. Muhammad Bashir (P. W. 18) but the same was not exhibited as evidence in this case.
(2) That the theory put forward by respondents in the trial Court that they had caused injuries to P.
11. Ws. In exercise of the right of private defence of their person and property, namely, the disputed piece of land of which they were in exclusive possession for about twelve years was belated as well as improbable.
12. Now both these contentions seem to have been thoroughly examined in the High Court and were rejected. By going through the judgment of High Court it would be seen that as against the six witnesses examined on behalf of prosecution, the respondents herein had produced ten witnesses in defence as also documentary evidence, namely, extracts from the record-- of-rights, copies of jamabandis and a registered deed all pertaining to the disputed property in which they were shown to be the owners and in uninterrupted possession since 1965-66. The learned Judge in the High Court has taken pains to analyse all the said evidence in great detail in reaching the conclusion that the learned trial Magistrate, who had evidently failed to comprehend the true scope and nature of the dispute between the parties had erred in convicting the respondents. We respectfully agree with this conclusion. It is common ground between the parties that the bone of contention in this case which culminated in the fight in which the four P. Ws. Were unfortunately injured, was the piece of land comprised in Khasra No. 733. It is true that according to the P. Ws.
13. They were not only the owners of the said piece of land but were also in possession of it. But except for their oral testimony, they were unable to substantiate their claim by any documentary evidence. As against this, the respondents herein had not only produced authentic documentary evidence from the revenue record but also received support from the evidence of Qazi Azizur Rehman, Halqa Patwari (P. W. 14) who had deposed "it is correct that the land on the western side of Khasra No. 735 min and of the house of Ahmad Khan is lying vacant and not covered by construction. It is correct that Colonel Faiz Ahmad accused is shown in possession of Khasra No. 733 from 1956-57 up-to-date according to the record-of-rights and succeeding jamabandi".
14. The extract from the record-of-rights (Exh. PA/1) would seem to support the said statement of Qazi Azizur Rehman, for in Column No. 4 of it respondent Faiz Ahmad is mentioned to be in the exclusive cultivating possession of the disputed land. Furthermore, according to Sultan (P. W. 7) and Khan Muhammad (P. W. 8), it was the very same land which was the subject-matter of dispute between the parties for the last twelve years respecting which, however, a little before the occurrence, there was some settlement by which the possessory rights of respondents was acknowledged by P. Ws.
15. But they soon seem to have repented, consequently restarted asserting their counter claim and in order to give to their claim a practical shape on the day of occurrence they seem to have come to the land and started constructing a wall on it to which the respondents naturally objected and which ended up in the unfortunate incident. In these circumstances, the learned Judge in the High Court was right to hold that it were the P. Ws. Who had committed criminal trespass on the land within the meaning of section 441, P. P. C. Which reads as under :- "441. Criminal trespass.-Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
16. Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence, is said to commit `criminal trespass'."
17. In his statement under section 342, Cr. P. C., in answer to a question as to why this case had been brought against him, respondent Faiz Ahmad gave a lengthy answer which, however, may be reproduced with advantage :- "I am not a sentimental man but do believe in self-respect. My fife, honour and property as also the honour of my women folks was attacked with the Commissioner of Police which now supports all the goonda elements. My opponent fired straight at me but the bullet bit my servant on his head. I saved myself simply because of my Military experience otherwise there was no chance of my saving myself because a pistol and gun were fired at me. My servant had fired in self-defence and there was no intention on his part to kill. The whole case has been fabricated to bring humiliation to me and my family and in order to help the opposite-party because I belong to one single family which is opposed to whole other village. The object was to ruin the career of my sons who were going for commission in the army. I present my detailed statement to the Court in typed form. All the pages are signed by me. This statement consists of nearly three pages. I also produce a registered deed of the land under dispute. The boundaries of the land given in this land are exactly the same as stated in the site plan of this dispute land prepared by the Police. The other one is the copy of the mutation, again said I produce an extract from jamabandi relating to this disputed piece of land. (Both these documents are marked D. 1 and D. 2 respectively while the statement of the accused is marked as D. 3.)."
18. In answer to another question, whether rifle P. 3 was used in the commission of this crime? Faiz Ahmad answered in the affirmative saying "this was used by my servant Muhammad Hussain in self-defence to save my life and my men."
19. Now in this respect Faiz Ahmad is not only supported by the authentic' documentary evidence brought by him on the record of this case but Captain Ihsanur Rehman Bokhari (D. W. 3) and Chaudhry Ahmad Khan (D. W. 5) have also supported him. Both of them have deposed that on the day of occurrence, the P. Ws. Had come to the disputed land, which was in exclusive possession of Faiz Ahmad, and started building a wall to which Faiz Ahmad objected. But the P. Ws. Would no 'listen and insisted to proceed with the construction. Muhammad Ashraf (D. W. 10) also supports the stand taken by Faiz Ahmad saying that during the occurrence P. W. Manzoor Hussain, who was armed with a pistol, fired two shots at Faiz Ahmad who however, escaped any injury, as he dived behind the wall of a nearby bungalow, but one of the bullets hit him on his head as a result of which he was injured. Doctor Rauf Beg Mirza (D. W. 9) of the District Headquarters Hospital, Rawalpindi, was examined during the trial and he confirmed that Muhammad Ashraf was brought to him in injured condition on 20-9-1967, he had examined him for his head injury which was simple in nature (measuring 4" x --"x --") and was caused by a fire-arm. From all this evidence it would, therefore, be clear that by keeping the prosecution evidence in juxtaposition with the evidence produced by respon--dents, the defence theory would seem to be more probable. And consequently the learned Judge in the High Court was wholly right to hold that the prosecution had failed to prove its case against the respondents.
20. The learned counsel for petitioner, however, objected to the evidence of Doctor Rauf Beg Mirza on the ground that in the medico-legal report submitted by him on Muhammad Ashraf, he had not opined that the head injury caused to him was by a fire-arm. This objection of the learned counsel is undoubtedly supported by the medico legal report. But in his cross-examination all that Doctor Rauf Beg Mirza has said is that the head injury suffered by Ashraf could be caused by a friendly hand and not by '303 bullet. In other words he was not questioned if the injury to Muhammad Ashraf could be caused by a pistol, with which according to Muhammad Ashraf he had been effectively shot by P. W. Manzoor Hussain, and so it cannot be positively asserted that Muhammad Ashraf was not injured by a pistol.
21. Be that as it may, the short question in this case was whether the land in dispute was in exclusive possession of respondent Faiz Ahmad? By the authentic documentary evidence, as well as the evidence of disinterested witnesses, brought on the file of this case, this question has been right answered by the High Court in favour of Faiz Ahmad. In these circumstances, the respondents herein were wholly justified to take such measures and use such force which under the circumstances would be reasonable to get the said trespass vacated by the P. Ws. And in this respect section 97, P. P. C. Would seem to support them, which reads as under:- "97. Right of private defence of the body and of property.-Every person has a right, subject to the restrictions contained to section 99, to defend- First.-His own body, and the body of any other person, against any offence affecting the human body ; Secondly.-The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
22. Section 101, P. P. C. Says that in circumstances such as obtaining in the present case respondents herein would be justified to cause to P. Ws. Any harm other than death. And this is precisely what they have done. The injuries suffered by the four P. Ws. Are all in the non-vital parts of the bodies and so the respondents must be held to have taken reasonable care not to cause them more harm that was necessary. In Sardarai and another v. The State (PLD1970SC212) this aspect of the case had fallen for consideration and it was held as under :--
(i) The possession of a party in possession of a property should not be disturbed unless he is evicted by due process of law.
(ii) The right of private defence can be exercised against ant aggressor even if he be the rightful owner of the property. Owner of the property is not entitled to take law into his own hands merely because be has got a right to have possession restored by a civil Court. If he does so he will become liable for criminal trespass.
(iii) If a trespasser is in settled possession of the land which means that he has been in possession of the property for a pretty long time without resistance he is entitled to defend his possession even against the rightful owner and he can be evicted only in due course of law."
23. For all these reasons, the contentions raised by the learned counsel have no force in them, they are accordingly rejected. This petition, therefore, fails and is hereby dismissed.