P L D 1960 (W (PLP)

Ibrahim: A contused wound and two contusion marks, both caused with a blunt weapon. The contused wound was simple and the contusion marks grievous. Khushi Muhammad son of Dina: A superficial contused wound, simple in character, and caused with a blunt weapon. Rahmat: Two contused wounds and three abrasions, all simple and caused with a blunt weapon. Shafi: Two contused wounds, one being grievous ; both cause with a blunt weapon. Khushi Muhammad son of Jalal Three contused wounds, an abrasion, and a swelling ; all simple and caused with a blunt weapon.

8. All the appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Khushi son of Dina appellant made the following statement at the trial :‑ "I, accompanied by my son Ibrahim, went to the field where Muhammad Din deceased, Karim, Ghulam, Aziz and Waryam were present and Muhammad Din was ploughing the field. I asked them not to take possession of the land forcibly but that they should get me ejected first through legal process at which Waryam exhorted his sons make an attack upon me and my sons. They caused us injuries and we also caused them injuries. Muhammad Shafi, Rahmat and Khushi Muhammad, who were reaping their wheat crop nearby came to our help and they also received injuries."

9. The first question to be determined is as to who was in possession of Khasra No.

07. Bashir Ahmad Patwari (P. W. 5) stated at the trial :‑ "In Kharif 1951 and Rabi 1958 this entire number khasra was in the cultivating possession of Khushi Muhammad accused son of Din. He had sown wheat and gram in Rabi 1958." As regards the possession of Khasra No. 137, on the day of the occurrence, the learned Additional Sessions Judge has observed :‑ I must hold that Khushi was in occupation of this khasra number from Kharif 1957 to Rabi 1958, in his own right. It therefore follows that Khushi son of Dina accused was in lawful possession of Khasra No. 137 at the time of occurrence." I have considered the evidence on the, record. In my opinion, the evidence of the Patwari leaves no room for doubt that Khasra No. 137 was in possession of Khushi son of Dina (appellant) on the day of the occurrence. I now proceed to consider the case in the light of this observation.

10. Bashir Ahmad (P. W. 13) made the following statement at the trial :‑-- "I saw Muhammad Din deceased ploughing the field which had been vacated by Khushi son of Dina accused. Khushi Muhammad and his son Ibrahim went there and stopped the plough. They were armed with lathis. Thereupon Ghulam and Aziz P. Ws, came to the spot. After them Shafi, Khushi and Rahmat accused, sons of Jalal Din, came to the place of occurrence. Then an altercation started between the parties and later they came to blows and beat each other with their respective weapons." I have no hesitation in accepting the statement of Bashir Ahmad (P. W. 13). If this statement is accepted, it means that Muhammad Din deceased was a trespasser as he went and began to plough the land which was in possession of Khushi son of Dina appellant. Muhammad Din had no right to do so. It is l a well‑settled principle of law that if a tenant is holding over, al landlord is not allowed to go and take possession of the land or premises by force. His only remedy lies in taking possession through process of law. The tenant has a right to retain possession of the land or premises occupied by him, and cannot be ejected by force but only by due process of law. The landlord has no right to re‑enter unless the tenancy is so determined. This view is supported by King‑Emperor v. Haji Ghulam Mahomed Azam (I L R 43 Bom. 531). In that case the landlord had prevented a tenant who was holding over from entering the demised premises. The land lord was convicted of wrongful restraint. On revision, the High Court held that the accused was rightly convicted inasmuch as the tenant holding over had a position recognized by law and had a right to retain possession of the premises he occupied even against the landlord himself until dispossessed in due course of law. In view of the evidence on the record, I have held that Muhammad Din deceased attempted to take forcible possession of Khasra No. 137 and as such was a trespasser. In the circumstances Khushi son of Dina, who was in lawful possession of Khasra No. 137, had a right to defend the act of trespassing by using necessary force under clause (secondly) of section 97 of the Pakistan Penal Code. When he was attacked he had a right under section 100 of the Pakistan Penal Code to defend his person.

11. I have gone through the evidence of the medical officer, Dr. Fazal Ahmad P. W. In view of the number and nature of the injuries, it cannot be said that the appellants exceeded the right of self‑defence.

12. For the reasons stated above, I accept the appeal, set aside the convictions and sentences of the appellants, and acquit them. They shall be released forthwith if not required to be detained in connection with any other case. K.B.A. Appeal accepted.