1988 PLP 352 (SCMR)

SHAFIUR RAHMAN, J.--The petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated 29-1-1980, whereby the appeal of the respondents against their conviction and sentence under section 302/307/325/324/148/149, P.P.C. was allowed and it was held that the acts of these respondents in causing deaths of two persons and injuries to five others was protected being in exercise of right of private defence of property as well as their body and did not constitute any offence. The prosecution case in brief was that there was a plot of land in village Thathi Khurd Sialkot Cantonment which was in cultivating possession of the respondents. In the consolidation which had taken place only a year or two before the occurrence this land had been included in the Abadi of the village. It happened to be in front of the house of the complainant party. They were keen to obtain its possession to utilise it. On the 14th of December, 1976, they stocked hay on it and when an objection was raised by the accused party, they promised to remove it soon the same day. On their not doing so it is said that the respondents armed with hatchets, Sota and Chhuri launched an attack on them in the same plot and caused the death of Dilawar Hussain and Mst. Hussain Bibi and injuries to five others. The injured appeared as witnesses to the occurrence. The respondents pleaded that the land was in their possession and when the complainant party sought to oust and substitute them they resisted and thus occurrence took place in which they also received injuries. The trial Court came to the conclusion that the defence version was totally incorrect and was to be disbelieved and found that the statement of the eye-witnesses was straightforward and their version was convincing. They were convicted and sentenced for the offences for which they were charged. Muhammad Sharif was alone sentenced to death. By the impugned judgment, the High Court re-examined the evidence and concluded as follows:-- "In the result, we hold that act of the appellants in causing deaths of the deceased and injuries to the prosecution witnesses was protected by right of self-defence of property as well as of body and did not constitute any offence as provided in section 96 Pakistan Penal Code, allow this appeal and set aside their convictions and sentences." Mr. Ejaz Ahmad Khan, the learned counsel for the petitioner, did not dispute the finding that the open site was,in fact earlier in the cultivating possession of the accused party, that it was in consolidation, that it was included in the Abadi and that it was adjacent to the house of the complainant. His contention was that it was an open site after being included in the Abadi. It was not in the possession of the respondents. Besides, the act of the complainant of stocking hay thereon was a casual temporary act and they had promised to remove it from there. The respondents had not only in such circumstances no right to use arms but even if they had the right of private defence of their property they had exercised it in a manner to exceed that right and they were, therefore, responsible for the act. This fact being not disputed that the complainant had since long an eye over the land and that the respondents did not want to give possession of it, the act of the complainant in stocking hay on the ground notwithstanding their promise to remove it would amount to a criminal act of trespass inviting the intervention of the respondents. The complainant cannot plead their own act of trespass as mitigation nor can the respondents be said to have no right at all to use some violence in vacating that trespass. In the impugned judgment of the High Court, the injuries received by the accused party had been reproduced and taken note of. They are numerous and they could rightly create an impression in the minds of the accused keeping in view the mood of the complainant that unless it was effectively resisted not only they would lose possession over the land but also receive grievous injury. In such a situation while on their own land they would be justified as held by the High Court in resisting the criminal act of the complainant and using weapons which they had for meeting resistance and attack. The finding of the High Court that their act was in exercise of their right of self-defence of property as well as of body and did not constitute any offence and that that right was not exceeded appears to be based on material on record and cannot for that reason be open to exception. Leave to appeal is, therefore, refused. M.I./M-269/S Petition dismissed.