1987 PLP 1718 (SCMR)

ASLAM RIAZ HUSSAIN, J. ‑‑Sattu Khan and Lehar Khan petitioners seek leave to appeal against the judgment of the High Court dated 25‑3‑1987, dismissing their appeal in a case under section 302, P.P.C.

2. The two petitioners were tried alongwith Usman Khan for the murder of Fajra Khan (deceased) and making murderous assault on Badar Din (P.W.5).

3. Motive for the occurrence is stated to be that the complainant party wanted to take possession of the land which was in possession and ownership of Sattu Khan accused after the consolidation proceedings which took place two years earlier.

4. The prosecution case, briefly, is that Fateh Muhammad complainant had given 4 kanals of land to Sattu Khan petitioner during the consolidation proceedings in exchange for 4 kanals which Sattu Khan petitioner promised to give him. The complainant handed over possession of the said land to Sattu Khan accused petitioner but the latter resiled and did not give possession of his 4 kanals to the complainant. Thereupon the complainant filed an appeal; got stay order and then tried to take possession by making 'wat bandi' etc. Sattu Khan etc. reached the place of occurrence and wanted to retake the possession. Hence the present occurrence, As against this the plea of defence taken by the accused petitioners was that the accused who were in possession of the land in dispute when the complainant party started ploughing it in order to take forcible possession thereof and also acted aggressively, causing genuine apprehension of danger of life to the accused. The accused, therefore, acted in defence of their property as well as person.

5. In the course of investigation it was found that apart from the deceased and the injured P.W., Sattu Khan and Lehar Khan petitioners had also received injuries during the incident, which may be mentioned here for facility of reference:‑ Sattu Khan accused‑petitioner. (1) Lacerated wound 4" x " x bone deep antero posteriorly on the top of head. (2) Lacerated wound 3/4" X " x bone deep ulner side of right forearm, lower part with evidence of fracture of lower end of ulna confirmed by X‑Ray examination. (3) Contusion 2" x 2" on the back of right hand. (4) Contusion 3" x 3" on the back of left hand. (5) Abrasion " x 1/10" on the left thumb. (6) Lacerated wound 2 " x " skin deep in front of left leg below the neath. (7) Contusion 3" x 1 " in front of right leg upper part. (1) Lacerated wound 3/4" x " x skin deep right anterior part of skull. (2) Lacerated wound 1" x " x 3/4" on the right side of face near the lower part of nose. (3) Lacerated wound " x 1/10" x skin deep just below the right eye. (4) Abrasion between injuries Nos. 2 and 3. (5) Contusion 2" x 2" on the back of right hand. (6) Contusion 2"x 2" on the back of left hand. (7) Lacerated wound 1" x " bone deep in front of left hand.

6. At the trial, in support of its case prosecution relied on the testimony of 5 eye‑witnesses. There was, however, no incriminating recovery connecting the accused with the crime. The testimony of the eyewitnesses was, therefore, sought to be corroborated by the injuries on the person of Badar Din (P.W.5). The prosecution also relied on the motive and the medical evidence.

7. Petitioners' counsel has referred us to paragraph 16 of the impugned judgment of the High Court to submit that the reasons recorded by the High Court in the said paragraph for rejecting the plea of defence of person and property raised by the petitioners show that the learned High Court has fallen in error in that respect and that the same requires further consideration by this Court. He submitted further that the ambiguity and infirmity in. the statement of the Patwari as to who was in possession of the property in dispute at the relevant time should not militate against the accused petitioners and any doubt in that behalf ought to have been resolved in favour of the petitioners. The question needs consideration. Leave is, therefore, granted for that purpose. M.I./S‑48/S Leave granted.