Muhammad Altaf, Nisar-ul-Haq, Muhammad Sharif and Muhammad Aslam petitioners were convicted for an offence under Section 324, PPC vide judgment dated 11.4.2003 passed by the learned Judicial Magistrate Section 30, Mianwali and were sentenced to rigorous imprisonment for two years each and a fine of Rs, 1,000/- each or in default of payment thereof to undergo simple imprisonment for one month each. The petitioners were also convicted for an offence under Section 337-A (ii), PPC and were sentenced to rigorous imprisonment for two years each and to pay Arsh amounting to 5% of Diyat The petitioners were further convicted for an offence under Section 337-F(iii), PPC and were sentenced to rigorous imprisonment for two years each and to pay Daman of Rs, 1,000/- each. All the sentences of imprisonment passed against the petitioners were ordered to run concurrently and the benefit under, Section 382-B, Cr.P.C. was extended to the petitioners. The petitioners challenged their convictions and sentences before the Court of Session, Mianwali through an appeal and the complainant of this case also preferred a revision petition before the Court of Session, Mianwali seeking enhancement of the petitioners' sentences. The said appeal and the revision petition were decided by the learned Additional Sessions Judge, Mianwala vide consolidated judgment dated 10.2.2004 whereby the petitioners' appeal was dismissed, the complainant's revision petition was allowed and the sentences passed against the petitioners by the learned trial Court were enhanced. According to the said judgment the petitioners were sentenced to rigorous imprisonment for four years each and a fine of Rs, 5,000/- each for an offence under Section 324, PPC and in case of their failure to pay the fine they were ordered to undergo simple imprisonment for three months each. The petitioners' sentences for an offence under Section 337-A(ii), PPC were also enhanced to rigorous imprisonment for four years each and their sentences for an offence under Section 337-F(iii), PPC were enhanced to rigorous imprisonment for three years each and the amount of Daman payable by them was enhanced to Rs, 3,000/- each. All the sentences of imprisonment passed against the petitioners were ordered to run concurrently and the benefit under Section 382-B, Cr.P.C. was extended to them. The petitioners have challenged the said judgment passed by the learned Additional Sessions Judge, Mianwali before this Court through the present revision petition maintaining that their convictions had wrongly been recorded and upheld by the learned trial Court and the learned appellate Court respectively.
2. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance.
3. The main issue in this case was as to whether the petitioners' party was in physical possession of the land in dispute or not and whether it was the complainant party which had aggressed against the petitioner's party or not. In this context it has straightaway been observed by me that according to the FIR lodged by the petitioners' party regarding the same incident and also according to the private complaint instituted by the accused party of the FIR against the present petitioners and their acquitted co-accused it was the petitioner's party which was in possession of the relevant parcel of land at the time of the present occurrence. Rana Munawar Ali complainant (PW1), Mumtaz (PW2) and Zulfiqar (PW3) had all admitted before the learned trial Court in so many words that at the time of the present occurrence it was the petitioners' party which was in physical possession of the land in dispute although it had been maintained by them that the petitioners' party was in illegal and unjustified possession of the same. The contents of Paragraph. No, 10 of the judgment passed by the learned trial Court as well as the contents of Paragraph No, 13 of the judgment passed by the learned appellate Court clearly show that even the learned trial Court as well as the learned appellate Court had found it to have been established beyond doubt that at the time of the present occurrence it was the petitioners' party which was in physical possession of the relevant piece of land. The learned trial Court as well as the learned appellate Court had also referred to the document brought on the record as Exhibit-DA establishing that the petitioners' party was in actual physical possession of the relevant parcel of land at the time of the present occurrence. It is not disputed that the place of occurrence in this case was the same piece of land which was in possession of the petitioners' party at the relevant time. It has, thus, surprised me to learn that both the learned Courts below had found the petitioners guilty and had, convicted and sentenced them as mentioned and detailed above. It may be that the petitioners' party might not be in lawful possession of the said piece of land but the law is quite settled on the point that even a person in peaceful and settled but unlawful possession of a property is entitled to exercise his right of private defence vis-a-vis an attempt by his adversaries to take forcible possession of such property. In the case in hand the factual possession as found by the learned Courts below was that the petitioners' party was in settled and peaceful possession of the relevant parcel of land for the last many years and its continued possession of that land was being agitated against by the complainant party before civil and criminal fora for many years before taking place of the present occurrence. A perusal of the impugned judgments passed by the learned trial Court and the learned appellate Court shows that despite their findings regarding possession of the petitioners' party they had stopped short of declaring any party as the aggressor in this case and the petitioners had been convicted and sentenced mainly because the learned Court below had found them to be "at fault" for not delivering possession of the relevant property to the complainant party in time. There is, however, every indication available on the record of the present case to conclude that a peaceful and settled possession of the relevant land by the petitioners, which the complainant party maintained to be unlawful or unjustified, had been tried by the complainant party of this case to be disturbed and in such a IN by the complainant party some members of the complainant party had received injuries at the hands of the petitioners' party. This critical aspect of the present case had unfortunately been conveniently overlobked by the learned Courts below. In that backdrop, notwithstanding the rights of either of the parties to the relevant land under the civil law, I have not been able to convince myself regarding the alleged criminality of the petitioners in defending their peaceful and settled possession of the relevant land. This revision petition is, therefore, allowed, the convictions and sentences of the petitioners recorded by the learned trial Court and upheld/enhahced by the learned appellate Court are set aside and the petitioners are acquitted of the charge. They shall be released from the jail forthwith if not required in any other case.