1990 SCMR 57 (PLP)

2. The prosecution case against the respondent Shujat Ali and his associates was that he had been in occupation of a room owned by the village proprietary body which happened to be adjacent to the mosque and close to the shop of Shujat Ali. He had been occupying it since about a year. There were complaints that he was using the room for immoral purposes. Shujat Ali was Mirasi and his father Sardar Ali and the father of Mehmood accused, Bashir were first consins. The proprietary body was Kakeyzai or Jat. Sanaullah accused was a Jat and an owner of adjacent property.

3. On 23rd of April, 1977 at about 8‑30 p.m. Usman and Arshad (PW‑11) locked the room occupied by Shujat Ali from outside with a view to dispossess him from it so that the immoral activities may be discontinued. Allegedly soon thereafter, Shujat Ali armed with a knife, his father Sardar Ali, Bashir, Mehmood and Sanaullah armed with Sotas carne there. Sardar Ali caught hold of Usman. Shujat Ali gave a knife blow to him. Bashir caught hold of Arshad and his son Mchmood gave a Sota blow to Arshad. Others also gave Sota' blows to Arsahd. The Injured were removed to the Hospital. The Doctor informed the Police Station about the arrival of the injured whereupon Muhammad Sharif A.S.1. (PW‑14) reached there at about 11.00 p.m., enquired from the doctor about the ability of Usman to make a statement. He was reported to be unfit to make such a statement. Next day when at 2.30 p.m. the Doctor reported him fit, his statement Exh. P.R. was recorded on which the case was registered at Police Station.

4. During tile course of the investigation, Shujat Ali led to the recovery of the Chhury from a shop and recoveries were made from others of their Sotas which were taken into possession by the Police.

5. The injured Usman died on 4th of May, 1977 whereupon the offence was altered from section 307, P,P.C. to section 302, P.P.C.

6. At the trial Shujat Ali and Mehmcxod alone accepted their presence at the time of occurrence. The others claimed to be absent. Shujat Ali made the following statement: "The true facts are that the room in question belongs to us and has always been in our possession. In the last elections of March, 1977, we were the supporters of the People's Party whereas the complainant party was the supporter of P.NA. and the complainant party expected that being Mocens we should also support the P.N.A. On account of this, the complainant party decided to deprive us of this room. On the day of occurrence, Usman deceased and Arshad P.W. came armed and tried to take forcible possession of the room by locking the same though our articles were lying in that room and they had no right to take possession of the room from us. I and Mahmood accused tried to restrain Muhammad Usman deceased and Arshad P.W. and I wanted to open the lock of the room on which we were attacked by the deceased and Arshad P.W. and we acted in exercise of the right of self‑defence and l inflicted one injury on the person of Usman deceased and Mahmood Ahmad accused inflicted only one injury on Arshad P.W. We were also injured at the hands of Usman deceased and Arshad P.W. We were not formally arrested by the Police till the time when most of our injuries did disappear. As Usman died on 4‑5‑1977, therefore, we were shown to have been formally arrested. As the injuries on Mahmood had not disappeared, therefore, he was not produced before any doctor till 6‑5‑1977 and even on that date, the injury on his head had not healed though the rest of the injuries had by then disappeared." Mehmood Ahmed also subscribed to it.

7. The trial Court after examining the prosecution evidence and the plea of the respondent Shujat Ali, recorded the following conclusions:‑‑ "According to the prosecution evidence, the room of the Daira was in the use of the people of the village on the occasions of death. and marriages It cannot be said that it was in permanent use of Shujaat Ali accused. The mutation copy Ex. D.B. does not show that the room of die Daira was in possession of the accused. The plea of self‑defence is not plausible and, therefore, cannot be accepted. When Muhammad Usman deceased and Muhammad Arshad P.W. locked the room, the accused mentioned above came prepared armed with Chhurri and Sota and inflicted injures on the person of Usman deceased with Chhurri and also on the person of Muhammad Arshad P.W. with Sota. There is nothing in the evidence to show that the deceased was armed and Shujaat Ali accused apprehended injuries from him. Japha is attributed to Sardar Ali and Bashir accused. They did not receive any injuries during the occurrence. It has not been proved by the prosecution beyond any reasonable doubt that Sanaullah accused had any connection with his co‑accused Shujaat Ali and Mahmood Ahmad accused. Their case appears to me not free from doubt and they are entitled to the benefit of doubt." Finding the offence under section 302, P.P.C. made out against Shujat Ali and under section 307, P.P.C. against Mehmood, they were convicted. Shujat Ali was sentenced to death and Mehmood was sentenced to two years R.I. The others were acquitted. 8.While seized of the question of confirmation of death sentence of Shujat Ali and a Revision Petition filed by Mst. Ishad Begum, challenging acquittal of the others on the charge of murder, the learned Judges in the High Court reappraised the entire evidence and rejected the dying declaration on the ground that in spite of time and an opportunity available to the prosecution it was not got recorded by a Minister. The F.I.R. was taken to be delayed inordinately i.e. recorded after eighteen hours. Except for Arshad the other eye‑witnesses were found to be not present at the time of the occurrence. The veracity of Arshad P.W. 11 was found suspect. The injury received by Mehmood accused was found not to have been owned by any of the prosecution witnesses and was suppressed. On these facts the learned Judge concluded as follows:‑ "There is no tangible material to show that the appellant had sustained injuries and the marks of injuries had disappeared by the time he was shown to have been arrested formally on 3‑5‑1977. However, Mahmood Ahmad accused had an injury in the head which though established by medical evidence was denied by all the eye‑witnesses in the case. Prosecution had made full efforts to hush the injury of the accused. He was sent to the hospital after three days of his arrest. The injury on him which had landed on vital part of the body justified a reasonable apprehension in the mind of the accused that they would suffer grievous hurt at the hands of the complainant side. Exercise of reasonable apprehension is not to be equated with equal infliction of grievous hurt. The case is therefore covered by Clause Fourthly of section 103, Pakistan Penal Code. The appellant who had stopped after having given a single injury to the deceased in a sudden fight which unfortunately had proved harder than it was intended to be and proved fatal after ten days of the incident could not be held to have exceeded the right of self‑defence. We are not impressed by the argument advanced by learned State Counsel that the appellant had acted beyond what law permits him to do. In view of our finding in the foregoing para we accept the appeal, set aside conviction and sentence of the appellant, acquit him of the charge and order his release forthwith if not wanted in any other case. Conviction of Mahmood Ahmad who has not appealed is liable to be set aside precisely for the same reasons which had accounted for acquittal of the appellant. However, we do not pass any order for his release as he had already undergone the sentence awarded to him by learned Sessions Judge."

9. Mr. Waheed ud Din Virk, Advocate, the learned counsel for the appellant has taken us through the law extensively, particularly section 103 and the other allied provisions of the Pakistan Penal Code with a view to demonstrate that no right of private defence of property was at all available as the assailant had the time and opportunity to have recourse to the law. According to the learned counsel, the trial Court had rightly convicted the respondent and that conviction was not liable to interference.

10. It is an elementary principle that while examining the cases of criminal trespass one has to take note of the circumstances. The circumstances which generally aggravate the offence of criminal trespass are the way in which it is committed and the end for which it is committed. In the present case it is clear that the object of Usman and Arshad PW‑11 however laudable was to oust Shujat Ali from the room which admittedly was in his possession since about a year. To achieve that end not only they brought their own lock and placed it on the entrance door of the room but also positioned themselves outside with a view to ensure that the respondent did not enter the room. In other words the deceased and Arshad both took care not only to defend the achievement of their end but to ensure that none interfered in their doing so. When Shujat Ali came there, naturally he came there to secure an entry to his own room and not to attack. Resistance ensued. In the process Usman received a single knife blow. Mehmood received injury on his head which the prosecution did not own while Arshad PW. 11 also had injuries on his head and abrasions on body. In this background where most of the material prosecution evidence was disbelieved by the High Court, the plea of the accused had to prevail because the circumstances brought on record clearly established its plausibility. Looking to the injury of Mehmood on the head and also to the object for which the deceased and his companion had taken positions outside the room occupied by Shujat Ali clearly made out a case of exercise of right of private defence of person and property and on the material on record it could not be said that there was no threat to the property and person of the respondent and his associate such as could justify their using the weapon which they did use.

11. We rind that the acquittal recorded is not liable to interference on any sound principle recognized for administering criminal justice. The appeal is, therefore, dismissed. The bail bonds shall stand discharged against the respondent Shujat Ali. MA.K./I‑99/S Appeal dismissed.