P L D 1954 Lahore 602 (PLP)

S. A. RAHMAN, J.‑Boga, Fajju and Naik were tried by the learned Sessions Judge, Multan, for the murder of one, Hasnun, under section 302 P. P. C. and for the injuries caused to his son Rafiq under section 324 P. P. C. The learned trial judge convicted the accused under section 326 P. P. C. and sentenced them to four years' rigorous imprison ment each. The convicts sent three appeals from jail, but later a consolidated appeal on their behalf was filed through counsel. There is also a revision petition by Rafiq praying for the enhancement of the sentence awarded to the accused. This order will dispose of the appeals and the revision petition together. The incident, which gave rise to these appeals, happened on the 26th of April 1953, a pehr after sunrise, in Chak No. 13/8‑A. R., thana Tolamba, District Multan. It was reported at the police station at 10‑30 a.m. the same day by Rafiq (P. W. 12), the son of the deceased Hasnun and the injured eyewitnesses. Hasnun deceased and his son, Rafiq, had migrated from Hissar District and settled down in Chak No. 13/8‑A.R. after the partition. The prosecution case was that Hasnun had been originally an allottee of some land on a temporary basis. On the 29th of February 1952 he was allotted a part of killa No. 4 of square No. 37 on a provisional‑permanent basis, in addition to some other land. Prior to this allotment, Bhallu, father of Boga and Fajju accused, was in possession of this area. The third accused, Naik, is a cousin of Boga and Fajju. Hasnun wanted to evict Bhallu from this land but the attempt was resisted. On the 10th of October 1952, on a complaint being made to the police about an impending breach of the peace, both Bhallu and Hasnun were proceeded against under section 107, Cr. P. C. Due to the intervention of the village panchayat, however, the quarrel was patched up between the parties, on the 8th of November 1952. On the 25th of April 1953, apparently, Bhallu had again made a report to the police against Hasnun, alleging, inter alia, that Hasnun wanted to eject him from his land which was in his possession, vide Exh. P. Q. Rafiq (P. W. 12) alleged in Court that after the panchayat's intervention it was agreed that Bhallu would vacate the disputed land after gathering the harvest and that in fact possession was delivered to the deceased, of the northern portion of killa No. 4, a few days before the occurrence. On the day of the incident, the father and the son were working in this field when the three appel lants are said to have arrived armed with spears and to have attacked Hasnun causing him fatal injuries. Rafiq went to the rescue of his father and some injuries were also caused to him. He, however, ran away to the village. The noise had attracted Khushi Muhammad Gujjar (P W. 13), Khushi Muhammad Arain (P. W. 14), Ismail (P. W. 15), and Rafi (P. W. 16) to the spot. Hasnun was found dead. The accused ran away from the scene. The autopsy on the person of the deceased revealed a grievous incised wound on his head, two stab wounds on his chest and two incised wounds on his left forearm. One of the chest wounds had proved fatal as under it the heart was cut. Rafiq, on examination, was found to bear four simple incised injuries on his person. When examined in the committing Court, Boga had stated that he was ploughing the land which was in his possession on the day of occurrence, when Hasnun and Rafiq came up to oust him forcibly therefrom. In self defence he snatched a spear from the hand of Rafiq and gave a blow with it to Hasnun. The other two accused pleaded non‑participation in the offence. This version was not substantiated by any evidence. The prosecution case rests on the tesitmony of Rafiq (P.W.12) the two Khushi Muhammads (P. W. 13) and (P. W. 14) and Ismail (P. W. 15). Rafi was merely tendered for cross-examination, but no question was put to him. The learned trial Judge, after discussing their evidence, reached the conclu sion that the possession of the disputed site was still with the accused, although it had been allotted to the deceased. He held that the deceased and his son had committed criminal trespass into this land and, therefore, the accused persons had the right of private defence of property. After going through the evidence on record, I am disposed to accept this finding as correct. No serious exception has been taken to it on behalf of the Crown, Although Rafiq stated that he had a small stick with him which he used in self‑defence, yet there is nothing to show that any of the accused persons was injured. The story of Boga that he had snatched a spear from Rafiq and used it to good effect against the deceased fails to carry conviction. The defence story, I agree with the learned trial judge, was false. The question then is what offence if any, had been brought home to the accused persons. The fatal injury was specifically ascribed in this case to Boga accused only. The other accused had inflicted either simple or grievous hurt with a sharp- edged weapon. Clearly they had the right of private defence of property on the facts found and therefore they could inflict any harm short of death on the trespassers. On this view, Naik and Fajju could not be said to have committed any offence. Boga alone could be held guilty of excess in this respect and obviously no vicarious liability could attach to his co‑accused, because of his individual act. Moreover, if Boga is held to have exceeded his right of private defence of property, he should have been convicted of culpable homicide not amounting to murder rather than under section 326 P. P. C. However in view of the decision of the Federal Court in Safder Ali's case (PLD 1953 FC 93.) although the injury caused to the deceased by Boga was sufficient in the ordinary course of nature to lead to death and was, therefore, one which could have entailed his conviction under Part I of section 304A P. P. C., no intention to kill or to cause a necessarily fatal injury could be attributed to him and this accused could only have been convicted under Part II of section 304 P. P. C. At least the knowledge may be attributed to him that he was likely to kill the deceased with the blow that he delivered in his heart region. Another difficulty, however, confronts me owing to the recent majority decision of the Federal Court in Shera v. Crown (PLD 1954 FC 141.). It has been authoritatively laid down therein that an appellate Court cannot convert a conviction of a lesser offence into one of a higher offence in appeal and then enhance the sentence under its revisional powers without there being B an appeal against the acquittal by the Crown under section 417 Cr. P. C. I am, therefore, constrained to hold that the convic tion of Boga appellant cannot be altered to one under section 304 P. P. C. Consequently I retain his conviction under section 326 P. P. C. intact. I consider that the cir cumstances of the case would justify enhancement of his sentence on the revisional side. While maintaining his convic tion under section 326 P. P. C., therefore, I direct that he should suffer seven years, rigorous imprisonment. Naik and Fajju accused are acquitted of all charges and they will be released forthwith. The appeals and the revision petition are allowed to this extent. A. H. Order accordingly.