P L D 1968 Lahore 974 (PLP)

SHAUKAT ALI, J.‑

Shahra (41), his brother Hussain (36) and their cousin Bahadur (71), were tried along with Ata Muhammad and Patch Muhammad by the Additional Sessions Judge, Montgomery, under sections 302/149, 307/149 and 148, P. P. C. for having formed themselves into an unlawful assembly with the common object of committing the murder of Lalu and for the attempted murders of Rehmat Ali, Mst. Hanifan and Bashir Ahmad P. Ws. and in the prosecution of that common object of the said unlawful assembly to have actually on the 22nd of P 1964, in the early hours of the day committed the murder of Lulu, and attempted to cause injuries to Rehmat Ali Mst, Hanifan and Bashir Ahmad P. Ws. in the area of Chak No. 92/E. B, Tehsil Pakpattan, District Montgomery. The learned Additional Sessions Judge, who tried them, acquitted Ata Muhammad and Fateh Muhammad of all the charges, but convicted Shahra, Hussain and Bahadur under section 302/34, P. P. C. for the murder of Lalu and sentenced them to trans portation for life. He, however, acquitted them of the charge under sections 148 and 307/149, P. P. C. The convicts have appealed.

2. The occurrence which culminated in the death of Lalu has its origin in a dispute about the land in Square No. 7 of Chak No. 9z/E. B. The prosecution case is that Lalu deceased and his father Kalu were members of the Co‑operative Farming Society and were allotted land in square No. 7 under the Scheme in the year 1950. After the demise of Kalu, his one‑half share of land in rectangle No. 7 was also allotted to Lalu deceased and he continued in its cultivating possession till the year 1957‑

58. Lalu deceased was convicted in a criminal case and was sentenced to three months' R. I. After his release from the Jail he shifted to Bahawalnagar. When Lalu deceased was away to Bahawalnagar, Shahra, Hussain and Bahadur appellants took possession of the land in Square No. 7 without any allot ment from the Co‑operative Farming Society. The Society Issued a demand notice to Latu deceased for Rs. 2,

800. On receipt of, this demand notice Lalu came back to Chak No. 392/E. B. about 11 months prior to this incident. He asked the Co‑operative Farming Society to deliver the possession of the land and thereafter he could pay the arrears. In consequence, the Co‑operative Farming Society passed a resolution on the 9th of March 1964 Exh. P. C. in which it was resolved that Hussain appellant was in illegal possession of the land and its possession should be delivered to Lalu deceased. A copy of this resolution was transmitted to the Assistant Registrar, Co‑operative Farming Society, Montgomery, for its implementation. The appellants declined to surrender the possession in pursuance of the resolution, whereupon Lalu deceased convened a Panchayat on 15th April 1964, which was attended by the deceased and the appellants besides, Bashir Ahmad, Rahmat Ali, Muhammad Sadiq, Chiragh and Muhammad Siddique P. Ws. The Panchayat decided to deliver the possession of the land to Lalu and the appellants accepted the decision. Another resolution Exh. P. D. was passed to the effect that Lalu would tale possession of the vacant land and the land under crops would be handed over to him after the crop was harvested. In pur suance of this resolution possession of Acre No. 25, the vacant land, was delivered to the deceased. It is said that on the morn ing of 22nd April 1964 at 6 a.m. Lalu deceased was ploughing in Acre No. 24 of Square No. 7 when Shahra armed with a pistol, Hussain with a spear, Babadur with a hatchet, Ata Muhammad with a Gandasa and Fateh Muhammad with a Gandasi appeared on the scene and assaulted the deceased, who ran for his life. Hussain and Bahadur appellants accosted him. The deceased crossed the channel and came in front of the Dhari of Shahra appellant, where they struck him with their respective weapons. Hussain appellant struck the first blow with the spear hitting the deceased below his jaw at the neck. Thereafter all of them started inflicting blows on the deceased. Rahmat Ali, Mst. Hanifan and Bashir Ahmad P. Ws. attempted to intervene whereupon Shahra appellant fired three shots at them with his pistol but they were not hit. Before leaving the scene of crime all the accused inflicted more blows to Lalu deceased who succumbed to the injuries at the spot.

3. Rahmat Ali, Mst. Hanifan and Bashir Ahmad P. Ws. then proceeded to the Chak and narrated the incident to Muhammad Siddique Lambardar and Muhammad Sadiq P. Ws. Bashir Ahmad P. W. in the company of Muhammad Siddique Lambardar P. W. proceeded to Police Station Gagoo. When they reached hurewala they learnt that the Sub‑Inspector was in Chak No. 423/E. B. in connection with the investigation of a criminal case. Therefore, Bashir Ahmad P. W. proceeded to the Chak and made his statement Exh. P. E. to Sher Dil Khan, Sub‑Inspector (p. W. 15). The formal First Information Report Exh. P. E./1 was recorded by Nazir Ahmad M. C. (P. W. 11) at 2‑15 p.m. the same day. The Sub‑Inspector then proceeded to the spot and reached there at 3‑45 p.m. After reaching the spot he prepared the injury sheet and the inquest report of Lalu deceased and despatched the dead body to the mortuary for post‑mortem examination. He put under arrest Shahra appellant and got removed chaddar P. 11 and shirt P. 12 from his person and made them into a sealed parcel vide memo. Exh. P. H. He also got removed shirt P. 14 and chaddar P. 15 from the person of Hussain appellant and made them into a sealed parcel vide Memo. Exh. P, K. He also took into possession chaddar P. 16 and shirt P. 17 after removing the same from the person of Bahadur appellant vide Memo. Exh. P. M. Shahra appellant while in police custody led to the recovery of pistol P. 6 and five live cartridges P. 13/1‑5 from an earthen bin from inside his residential but which were taken into possession and sealed into a parcel vide Memo. Exh. P. J. Hussain appellant also led to the recovery of blood‑stained spear P. 7 from underneath the heap of cotton stack in front of his but. The same was taken into posses sion and sealed into a parcel vide Memo. Exh. P. L. Bahadur appellant also got recovered hatchet P. 8 which was stained with blood from his residential hut. The same was sealed into a parcel vide Memo. Exh. P. N. Shahra appellant was found injured. The Sub‑Inspector prepared his injury sheet and got him medically examined.

4. Doctor Rashid Ahmad Khan, Medical Officer (P. W. 1) conducted post‑mortem examination on the dead body of Lalu on 23rd April 1964 at 10 a.m. and found the following injuries thereon :‑ (1) An incised wound antero‑posterior 2 " x " x 1 1/3", on the left outer ankle, cutting the outer malleolus through from above downwards and inwards. The chaddar was cut against the injury. (2) An incised wound, 1 " x " (gapping) x " It was 1 " above injury No. 1 Fibula bone was cut underneath. Chaddar bore cut against the injury. (3) An oblique incised wound, 1 " x 1" (flappy) x ", on the outer part of the back of the dorsum of left foot. The Chaddar bore a cut against that. (4) An incised wound 1 7/8" x 1/3" bone deep, on the front and left of the skin of lower third of left leg. The Chaddar bore a cut against that. The tendons were cut. (5) An incised wound 3" x " x " on the upper part of the front of knee " above tha patellar margin directed dounwards under the patellar bone. (6) A skirl deep cut, 4" x 1/8", on the bottom of left thigh outer aide of front. (7) A skin deep cut, 2 " x 1/8", across injury No. 6. (8) A skin deep cut, 2" x 1/8". It was 1 " above injury No. 7. (9) A skin deep cut, 1" x 1/4". It was " above the preceding injury. The Chaddar bore cuts against all these in juries. (10) An incised wound, 3 " x 3 " (flappy) skin deep, on the front and inner aspect: of the right leg, just below its middle. (11) An abrasion, 1" x 1/4", on the lower part of the front of right knee, inner side. (12) An incised wound, 1 " x 1/8" skin deep, on the upper third of the inner aspect of right leg. (13) An abrasion, 1/4" x 1/8", on the top of the skin of right leg. (14) An incised wound, 3/4" x 1/4", cutting the phalynx underneath, on the back of the upper digit of left middle finger. (15) Four skin deep cuts in a line on the back of the four fingers of the left hand, about " x 1/8" each. (16) An incised wound, 3 " x 1" cutting through the bottom of right ulna and through the inner side of right wrist joint from back. (17) A stab wound, 1" x 3/4", going into the mouth after breaking the mandible bone, just outside the chin. (18) A stab wound 1" x ", going into the mouth after breaking angle of the left mandible bone. (19) A contused wound, 2" x " bone deep, on the back of left ear. It had caused fracture of the petrous portion of the right temporal bone. The fracture had extended over to the middle fossa of the left side of base of skull to its left frontal, right over to the right frontal fossa of the base of skull. (20) A stab wound, " x 1/3 x 1 7/8", on the left side of face, 1" in front of the left ear, directed downwards and forwards. (21) A contusion, 3 " x ", on the right parietal promi nence. The scalp was lacerated underneath. (22) A braided bruise, 4 " x ", on the left shoulder. In the opinion of the doctor death was due to shock and haemorrhage caused by the injuries. All the injuries collectively and injuries Nos. 16 and 19 individually were sufficient in the ordinary course of nature to cause death. Injuries Nos. 11, 13, 19, 21 and 22 were caused with blunt weapon, injuries Nos. 17, 18 and 20 with sharp‑pointed weapon and the rest with sharp edged weapon. Injuries Nos. 1, 2, 14, 16, 17, 18 and 19 were grievous and the rest were simple.

5. The same doctor examined Shahra appellant on the 24th April 1964 and found a lacerated wound, 1 " x 1/8'' bone deep, mainly on the radial side front and back of the middle digit of left middle finger. The skin was intact on the ulnar side of the finger. There was no injury to the bone or joint. The margins of the wound were charred. There was faint tattooing, " x ", on the inner part of the front of lowest digit of the left index finger, " above its tip. The injury was simple and caused by fire‑arm. On a query by the police, the doctor opined that the injury could be self suffered.

6. Shahra appellant denied the prosecution allegations and stated that Lalu deceased was the tenant‑at‑will under the Society. He left the Chak in 1958 and the Society gave the land to him for cultivation and they (appellants) were paying the Batai to the Society regularly. According to him he and his other relatives were in peaceful possession of the land since several years and Lalu was recalled to the village by their enemies, who wanted him to take forcible possession of the land and that on the day of the occurrence Lalu along with his relatives and friends came to the land to take forcible possession of it. Lalu started ploughing the land near the Dhari and on the protest he abused and threatened that he and his friends would forcibly take the possession of the land and would demolish their Dhari also. When he protested Lalu fired at him from point blank range and that he had grappled with the deceased to save his life. He (Shahra) fell down. When other persons came to save him and his property Lalu fired at them. He took shelter in his Dhari and did not know what happened subsequently. When asked to add anything to his statement he replied as under:‑-- " Lalu was a bad character and he was being prosecuted in a case under section 19 (f) of the Arms Act in the Court of the A. D. M. Bahawalnagar. We applied for the copy and the A. D. M.., Bahawalnagar ordered that it should be got prepared and supplied. In spite of that, we have not been able to get the said copy. I, however, produce the order of the A. D. M. which is Exh. D. J. Bashir Ahmad and Rahmat P. Ws. are the relatives of the deceased. They belong to one party. They have conspired against me and fabricated a false case. Bashir P. W. is in the habit of bringing false charges against innocent persons. On 3‑9‑64 when one Nura was murdered a day earlier, he took Hanif with him to Gaggo Police Station and got the report Exh. F. K. made at the Police Station. The presence of Sadiq is mentioned in the F. I. R. of that case. The police found the accused in that case as innocent and challaned Hanif complainant, Muhammad Sadiq and Bashir P. Ws. of this case for the murder of Nura and their trial is pending. The police has fabricated entries of the alleged meeting of 15‑4‑

64. We never gave up the possession of the land to Lalu deceased. Had we done so, we would not have objected to his taking possession. I am innocent." Hussain and Bahadur appellants denied their presence at the spot. No evidence was called in defence.

7. In this case the dispute occurred over the possession of Square No. 7 in Chak No. 92/E. B. The appellants claim that they were in possession of the land in dispute while the prosecution case is that the accused had parted with the possession of the land in pursuance of the resolution of the Society and the decision of the Panchayat. It is in the evidence of Bashir‑ul‑Hassan Mahmud, Patwari Circle (P. W. 12), that Lalu deceased and his father Kalu were in possession of Square No. 7 as tenants of the Co‑operative Farming Society, Lalu deceased remained in possession of the same till Rabi, 1953 and thereafter, Bahadur and Shahra appellants were cultivating the square and were in possession of it. He clarified that, according to Khasra Girdawari Register, Shahra and Bahadur appellants were shown as tenants under the Co‑operative Farming Society from the year 1958 till the year 1964. He also professed that there was no entry in the Khasra Girdawari until Rabi, 1964 that the appellants were in unlawful possession of the land. He further admitted that according to the revenue papers, their possession was legal and lawful.

8. The examination of the resolution Exh. P. C. also shows that the appellants were in possession of this Square of land after the migration of Lalu deceased to Bahawalnagar and on the return of Lalu to the Chak the Co‑operative Farming Society was desirous to deliver the possession of the land in question to Lalu deceased and they passed a resolution Exh. P. C. on the 9th March 1964, and forwarded the same for its execution, as is obvious from the statement of Manzur Hussain Sub‑Inspector, Co‑operative Farming Society (P. W. 5). It is also clear from the statement of Manzur Hussain P. W. that the Society had to follow the ordinary law for ejecting their tenants and the Society has no power to eject the tenants by force. The claim of the prosecution that the appellants had agreed to surrender the possession of the land vide resolution Exh. P. D. does not inspire confidence. A cursory glance at the resolution shows that there are interpolations. Furthermore, the fact that the appellants did not thumb‑mark the proceedings also go to show that they did not join the proceedings and did not agree to surrender the land. Bashir Ahmad, President of the Co‑operative Farming Society (P. W. 2) was confronted with his statement Exh. D. D. wherein he did not state that the appellants had agreed to deliver the possession or that the deceased had ploughed the land. Mst. Hanifan P. W. also admitted in her statement Exh. D. F. before the police that on 20th April 1964, her husband told her that Hussain appellant had told him that if he would go for cultivating the land he would be taught a lesson. This evidence on the file conclusively establish that on the day of the incident the appellants were in legal and lawful possession of the land in question.

9. Learned counsel for the appellants contended that his clients acted in the exercise of the right of private defence of person as well ass property. Taking up the question whether there accrued to the appellants, particularly Shahra, the right of private defence of person we should say at once that there is no material on the record in support of the plea by Shahra. The story put forth by Shahra that he was injured as a result of firing by Lalu deceased by means of a pistol Is clearly negative by the medical evidence. The doctor opined that the Injury on the person of Shahra could be self‑suffered. We have minutely examined the statement of the medical witness and looked at the nature of the injury sustained by Shahra leaves no manner of doubt in our mind that it was not inflicted in the manner alleged by the defence. The plea that Shahra or his co‑appellants acted in exercise of the defence of persons, therefore, falls to the ground.

10. Turning to the question whether the appellants or anyone of them acted in the defence of the property, we find that! Lalu deceased in pursuance of the resolution of the Co‑operative Farming Society under the bona fide belief that he was entitled to possession started ploughing Killa No. 24 which was lying vacant. He caused no damage to the crop and even if it be held that he was a trespasser still the appellants had no right to assault and much less to kill him. The appellants had enough time to have e recourse to public authorities. If they had any right of defence of property in law, it extended only to the use of such force as was necessary to evict the trespasser. It did not give the appellants the right to attack the deceased with lethal weapons and cause as many as 22 injuries killing him out‑right.

11. There is ample evidence on the file to prove that all the three appellants inflicted injuries on the deceased which resulted in his death. We know that Bashir Ahmad P. W. is the paternal uncle of the deceased, while Rahmat Ali P. W. is his nephew and Mst. Hanifan P. W. is his wife, but that by itself is not enough to discard the ocular account. No material C discrepancy was pointed out in the evidence of these witnesses as to the actual incident. Their evidence finds corroboration from the statement of Baahir Ahmad P. W. who is an independent witness. There was no previous enmity between the deceased and the appellants. The ocular account also finds corroboration from the medical evidence, the recovery of blood‑stained clothes from the persons of the appellants and the weapons of offence at the instance of Bahadur and Hussain appellants. The offence committed by the appellants clearly fell under section 302/34, P. P. C.

12. The result is that we would maintain the conviction and sentence of the appellants and dismiss their appeal. C. M. S. Appeal dismissed.