1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,407 of 2000 filed by Dhuman Khan appellant who was convicted under sections 302/324 and 353, P.P.C. And sentenced as under by the learned Judge Anti-Terrorism Court, Lahore vide judgment dated 3-3- 2000 as under:-- ' Death on two counts with further direction to pay compensation Rs,10,000 in default 6 months' under section 302(b), P.P.C.
2. 10 years' R.I. On two counts and to. Pay a fine of Rs,10,000 on to counts in default R.I. For one year under section 324, P.P.C. For causing attempt to murder on Tayyab Shaheen and Atif Iqbal.
3. 2 years' R.I. And to pay a fine of Rs,5,000 in default six months' R.I. Under section 353, P.P.C.
4. ' Murder Reference No,249/T of 2000 for confirmation of death sentence or otherwise shall also be replied through this judgment.
5. ' Occurrence in this case had taken place at 12-00 noon on 17-3-1997 at a distance of 1/2 kilometer from Police Station Green Town, Lahore while the matter was reported to the Police at 12-30 p.m. On the same day through written complaint Exh.P.M and the formal F.I.R. Exh.P.M/1 was recorded by Sher Muhammad, A.S.I.
6. ' Briefly stated the facts_of the case are that on the day of occurrence, the complainant along with Asif Iqbal, Magistrate, Khawaja Javed Aslam, Mian Gul Rukh, Deputy Director, Saeed Butt, Haji Abdur Rashid, Nisar Ahmad, Malik Akbar, Ch. Jehangir, Tayyab Shaheen, Khawaja Sikandar, Zulfiqar Ali and other officials of the LDA reached at Plot No,2 Block No,4 Sector C-2, Quaid-e-Azam Town, Lahore at 11-00 a.m. Because the said plot was the property of LDA (Lahore Development Authority) and Dhuman Khan was occupying the same illegally. The officials of the LDA asked the inmates of the house to vacate the same but Dhuman extended threat that if household are thrown out, it will not be good., However, tne officials of the LDA started demolishing the house through a bulldozer which work was almost complete and only some Malba was to be removed when all of a sudden at about 12-00 noon, Dhuman alongwith two others came at the spot and resorted to indiscriminate firing. As a result of firing one fire shot hit Jehangir who died at the spot, the other fire shot hit Mian Gul Rukh, two fire shots also hit Tayyab Shaheen P.W. And similarly one snot hit a passer by Atif Iqbal, P.W Investigation of the case was taken over by Tanveer Raza, S.I. Who after investigation died his natural death. He during the investigation took into possession clothes of the deceased Muhammad Jehangir vide memo.P. A . Blood-stained earth was taken into possession vide memos. Exh.P.D and Exh.P.E. From the place of occurrence two crime empties P.7 and P.8 were taken into possession vide memo. Exh.P.F. A .30 bore pistol on the pointation of Dhuman appellant was also recovered which was secured vide memo. Exh.P.N. The site plan of the place of occurrence E h.P.0 by the. Investigating Officer. The inquest report . Of J.Ehangir deceased was Exh.PT. After completion of the formal investigation, 'the appellant Dhuman was challaned to face the trial.
7. ' At the trial. The prosecution in order to prove its case produced 17 witnesses in all, Maqsood, S.I.
8. Was examined as C.W.'1, thereafter, the learned P.P. Tendered in evidence report of the Chemical Examiner PZ, report of the Forensic Science Laboratory Exh.P.AA and closed the prosecution case, the appellant in his statement under section 342, Cr.P.C. Pleaded false implication. However, after conclusion of the trial, the appellant was convicted and sentenced as stated above.
9. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that the whole action of the officials of the LDA was illegal and without any legal justification inasmu ch as they did not comply with the pre-requisite requirement of issuing a notice to show cause to the appellant as required under sections 39 and 40 of the Lahore Development Authority, Act, 1975. Elaborating his arguments, learned counsel submits that if any penal action was to be taken against Dhuman Khan for dispossessing him from the property in question, there was a procedure prescribed for it which has not been followed. Further submits that there is not an iota of evidence on record from the side of the prosecution that any notice was ever sent or served upon the convict/appellant. Learned counsel has read before us sections 39 and 40 of the Act and has also taken us through the statement of P.Ws. 13 and 14 to submit that no notice of show cause was ever served upon the appellant requiring him to vacate the property by removing his structure. He submits that it is not the case of any prosecution witness that any notice was ever sent or served upon the deceased. Adds -that without conceding but assuming for the sake of arguments that the appellant was in illegal possession of the plot in question even then when the appellant asked for time to show the document of his title, it was incumbent upon the officials of the LDA to have paid some heed to .His request but they did not rather despite being beseeched by the wife and mother of the appellant, the officials of the department bulldozed his house before his eyes. According to the learned counsel when the law provides a thing to be done in a particular manner, deviation therefrom -would be an illegality. Further adds that it is settled proposition of law that even a trespasser is within his right to defend his possession even against the owner. Learned counsel for the appellant submits that the action of the officials of the LDA being illegal and against the principle of natural justice, conviction and sentence recorded against the convict/appellant is not legal and the appellant is entitled to acquittal. The nut ell of arguments of learned counsel for the appellant is that whatever the appellant id, he did in defence of his property, hence the prosecution has miserably failed to provides case against the appellant.
10. Learned counsel has also drawn our attention to sections 97,99,103 and 105, P. P C . To submit that the appellant exercised his right of defenc of property. Reliance has also been placed on PLD 1965 Karachi 637, PLD 1970 S.0 12, PLD 1975 Lahore 152 and PLJ 1976 SC 190 and 1990 SCM R 595.
11. ' Learned counsel for the appellant has also referred to Writ Petition NO.1036 of 1997 filed by him against the LDA to substantiate his claim that he was a bona ide purchaser for consideration from the wife of Muhammad Siddique the original all the from the Housing Department.
12. ' On the other hand, learned co el for the State submits that the appellant is named in the F.I.R. With specific role killing two innocent persons and causing injuries so to two persons, it was a broad daylight occurrence, there was no question of any 'mistaken identity but admits that be ore demolishing the house of the appellant, the LDA should have issued a notice as required under the LDA Act which has not been one in the instant case.
13. ' We have heard learned counsel for the parties at length and have gone through the record with able assistance. In the case, there are two deceased persons n. Early Jehangir and Mian Gul Rukh while namely Tayyab Shaheen and Atif Iqbal are injured. Atif Iqbal the injured was not produced as having been won over. Occurrence had taken place at 12-00 noo on 17-3-1997 while the matter was reporte to the police at 12-30 the same day. Prosecution produced four eye-witnesses in this case namely, Muhammad Qasim Wasti, Magistrate (P. W . 13), Tayyab Shaheen injured as P.W.14 and Asif Iqbal P.W.15 and Saeed Mahmood as P.W.16 while Kh. Javed Aslam, Haji Abdul Rashid, Nisar Ahmad, Malik Akbar, Kh. Sikandar, Zulifqar Ali and Muzaffar Ahmad were given up as being unnecessary. Dr. (Capt.) Bashir Ahmad Khan (P.W.4) had medically examined Tayyab Shaheen and Atif Iqbal, Dr. Muhammad Naveed Tahir (P.W.5) conducted post-mortem examination on the dead body of Mian Gul Rukh while Dr. Muhammad Ali (P.W.6) conducted postmortem examination on the dead body of deceased Jehangir. As far as implication of the appellant is concerned, there could not be two views. In our considered view, it was Dhuman appellant who had committed the murder of two deceased and caused injuries to the two persons.
14. ' The moot point in the instant case is whether the appellant had acted in the right of defence of his property and whether he had exceeded the said right. For the just decision of the controversy, we would first of a like to reproduce here section 39 of the Lahore Development Authority Act, 1975 which reads as under:- "39. The Deputy Commissioner or any person authorized by him in this behalf, may summarily eject any person in unauthorized occupation of any land or property vested in the Authority and .May for such ejectment use such force as may be necessary: ' Provide that no action under this section shall be taken without providing an opportunity of being heard to the person to be affected thereby."
15. ' A bare perusal of the proviso to above quoted section would show that no action under the said section have been taken without providing an opportunity of being heard to the person to be affected thereby. This proviso is based on the principle of natural justice which is to be read into every enactment/statute, even if not so stated. It has been so held in various judicial pronouncements.
16. ' Not a single P.W. Has even claimed that any show-cause notice was ever issued or served upon the appellant nor even this fact was alleged or put to the appellant in his statement under section 342, Cr.P.C. Saeed Mahmood Butt, P.W.16, Assistant Estate Officer, LDA had admitted at page 131 of the paper book:- "Those notices are available with the office in printed forms. This notice is always of 7 days. We send the reminders to the persons who do not turn up after the dispatch of first notice. The period mentioned in the second notices only for 3 days. If a person is in illegal encroachment and who does not turn up after the second notice then we challan him. "
17. ' The other P. Ws. Have also accepted that a notice is to be issued in such-like matters. Had such notice been issued, this unfortunate occurrence might not have taken place .Because the convict appellant have got the opportunity to establish his peaceful possession and lawful title before a Court of competent jurisdiction. In the case of Sardarai and another v. The State (PLD 1970 Supreme Court 212) their lordships of the Honourable Supreme Court of Pakistan ruled as under:-- "A landlord is not entitled to dispossess his tenant by force. He must obtain possession of his property in due course of law. If a landlord evicts his tenant without recourse to law, the tenant is entitled to resist his possession by force against him. If a tenant is dispossessed by his landlord and he does not acquiesce with that act, he is entitled to re-enter himself but he should not use more force than is necessary."
18. ' In Wayram and 3 others v. The State (PLD 1975 Lahore 152), it was observed as under:-- "The question of titled is quite apart from the question of possession. Where possession is with one party and the title with the other, the person in settled possession has the right to repel aggression.
19. A causal act of possession would not have the effect of interrupting possession of the rightful owner but where there are indications that a person who has no title to a particular property had been in its settled possession for a long time, the law gives him a right to protect his possession by use of necessary force. The question whether he had or had not the right of possession is immaterial."
20. ' In the case of Muhammad Ashraf v. Fazal Ali and others (PLJ 1976 Supreme Court 190) it was observed by their lordships of the apex Court that:- "It is well-established" proposition that section 97, P.P.C. Gives right to a person to maintain his existing peaceful possession of property even by use of force, if necessary, regardless of the question whether or not he had the lawful right to possess. In other words, the object of the section is not to protect title, but to maintain peace by protecting peaceful possession irrespective of title."
21. The prosecution has failed to produce or place on record any document to show that e convict appellant was ever issued or served with a show-cause notice to vacate property which according to LDA, convict was possessing illegally. Admitte the appellant was in settled peaceful possession, his house could not have been demolished unless a notice of show cause w given to him. A contingent of officials from the LDA along with bulldozers and the Police went to the spot and firstly demolished the boundary wall and then demolished the house. The appellant, his mother and wife had been beseeching the officials not to demolish the house and the appellant had been making requests time and again to see the documents of his title which were summarily rejected and he was not given adequate and proper opportune to explain his position. We cannot countenance to such practice as in that eventuality there would be no end to it and it will be a law of jungle in a country which has its own laws Constitution. When in front of eyes of a person, his whole life saving is destroyed ruined, he cannot be expected of to act in a manner in which a man of prudence would act. In the way and the manner in which the appellant acted, he did so in exercise of rig t of defence of property and under provocation.
22. ' Section 40 of the Act provides that the Deputy Commissioner or any other person authorized by him or the Authority in this behalf, may, after giving the person affected by the order an opportunity of being heard, remove, demolish or alter the building structure of work, or stop the use of the said land etc. It is thus crystal clear that to any action under the Act, an opportunity of being heard is pre- requisite which is lacking in the instant case.
23. ' Section 97, P.P.C. Says that every person has a right, subject to the restrictions contained in section 99, to defend his own body and the body of any other person against any offence affecting the human body and 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.
24. This shows that every person has a right to act in his defence whether bodily or for property.
25. Section 103, P.P.C. Is also relevant at this stage which reads as under:- "103. When the right of private defence of property extends to causing death. The right of private defence of property extends under the restrictions mentioned in section 99 to the voluntary causing of death or of any other harm to the wrong doer if the offence the committing of which or the attempting to commit which occasions the exercise of the right be an offence of any of the description hereinafter enumerated namely:-- ' First: Robbery; ' Secondly: House breaking by night; ' Thirdly: Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property; ' Fourthly: Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."
26. Considering the case of the appellant from the angle stated above, it is quite clear that the officials of the LDA including the two deceased and the injured had trespassed into the property in dispute.
27. ' It would not be out of place to mention here that Dhuman appellant also filed Writ Petition No,10366 of 1997 in which comments were called for and the auction of the plot in. Question was ordered not to be finalized. A Writ Petition bearing No,12343 of 1997 was also filed by Dhuman Khan appellant seeking registration of a criminal case against the officials of the LDA but the same was disposed of with the observation that the petitioner in the writ petition may institute a private complaint for the redress of his grievance.
28. Taking into consideration the provisions of sections 39 and 40 of the LDA Act, the P.P.C. And guided by the law laid down by their lordships of the Honourable Supreme Court in the precedents referred to above, we are of the considered opinion that it is not a case of capital punishment because the.
29. Occurrence had taken place at the spur of the moment and the way in which the officials of the LDA acted in demolishing the house of the appellant, he though exercised the right of defence of property but exceeded the same by killing two persons and causing injuries to two persons. In the case of Zafar Ali v. The State (1990 S.C.M.R 595) the sentence of death reduced to imprisonment for life by the High Court was maintained by observing as under:- "This is a case of no motive because the different motives advanced by the prosecution as well as by the defence have been disregarded by the Courts below. Admittedly, before the occurrence the deceased and Zafar Ali appellant had exchanged abuses on calling of Ahmad Bukhsh, mason (P: W.8) who was busy in the construction of the mosque, in the street and asked him to do some work for him after he finishes his work in the mosque. The eye-witnesses whose presence is proved at the spot had charged the appellant for having fatal fire on the deceased with his gun. The circumstances of the case are such where in the possibility cannot be ruled out that some over provocative night have been done by the deceased which attracted the appellant to go armed with the gun and tire at the deceased fatally. The benefit of this remote possibility has rightly been given to the accused and we consider that the sentence of life imprisonment with fine of Rs,20,000 or in default thereof 2 years. R.I. Was sufficient to meet the ends of criminal justice."
30. ' In the instant case the act of provocation is clear like a day because the deceased, the injured and other officials of the LDA and the police bulldozed the house of the appellant just half an hour before committing the murder of the two deceased and causing injuries to two injured. We, therefore, though maintain the conviction of "This is a case of no motive because the different motives advanced by the prosecution as well as by the defence have been disregarded by the Courts below. Admittedly, before the occurrence the deceased and Zafar Ali appellant had exchanged abuses on calling of Ahmad Bukhsh, mason (P: W.8) who was busy in the construction of the mosque, in the street and asked him to do some work for him after he finishes his work in the mosque. The eye-witnesses whose presence is proved at the spot had charged the appellant for having fatal fire on the deceased with his gun. The circumstances of the case are such where in the possibility cannot be ruled out that some over provocative night have been done by the deceased which attracted the appellant to go armed with the gun and tire at the deceased fatally.
31. The benefit of this remote possibility has rightly been given to the accused and we consider that the sentence of life imprisonment with fine of Rs,20,000 or in default thereof 2 years. R.I. Was sufficient to meet the ends of criminal justice."
32. In the instant case the act of provocation is clear like a day because the deceased, the injured and other officials of the LDA and the police bulldozed the house of the appellant just half an hour before committing the murder of the two deceased and causing injuries to two injured. We, therefore, though maintain the conviction of the appellant on two counts under section 302(b), P.P.C. But reduce his sentence from death to imprisonment for life. The sentences shall run concurrently was benefit of section 382-B, Cr.P.C. Sentence awarded to the appellant section 324, P.P.C. For causing injuries on the person of Atif Iqbal is set aside because Atif Iqbal the injured witness did not to appear in the witness-box. Rest of the sentences, that is under section 353, P.P.C.
33. And also under section 324, P.P.C. For causing injuries on the person of Tayyab Shaheen are maintained. Death sentence of the appellant is not confirmed. Murder Reference is replied in the negative.