1973 PCr (PLP)

2. The incident arose over the possession of Killa No. 15 of Square No. 90 situate in village Khan Bahadur in the jurisdiction of Hujra Police Station in the Sahiwal district. This Killa number along with several other fields was originally the property of the appellant Sheikh Ahmad, but in consolidation proceedings this land came to the share of the complainant party. It is alleged that the appellant Sheikh Ahmad was no willing to part with possession even though the Consolidation Scheme was finalised and possessions were, to be transferred in accordance therewith. Ultimately, on an application made'-'by Muhammad Ramzan deceased on the 26th of May 1967, the Additional Deputy Commissioner made an order (Exh. P. N.) on the 5th of July 1967 that possession be delivered to the complainant party. This order was received by Girdawar Qanungo Zafar Ahmad (P. W. 10) on the 1st of August 1967, and he delivered Malakana possession to the complainant party on the 1st of December 1967 in the presence of Consolidation Patwari Ata Ullah (P. W. 11).

3. The appellant Sheikh Ahmad was, however, pursuing the matter by wax of appeal and revision on the consolidation side. His appeal was dismissed by the Additional Deputy Commissioner. (Consolidation) on the 31st of July 1968 and his revision petition met the same fate under the orders of the Additional Commis sioner, Multan, dated the 18th of October 1968. It appears however that on the 3rd of July 1968 Sheikh Ahmad had succeeded in obtaining an order regarding the maintenance of status quo from the Additional Deputy Commissioner. This is proved by the Record Keeper Khushi Muhammad (P. W. 12).

4. On the 10th of July 1968 the deceased Muhammad Ramzan made an application (Exh. D. F). to the District Inspector of Police at Dipalpur alleging that although possession of the disputed land had been delivered to him under the orders of the consolidation authorities in Rabi 1968, and he had prepared the land for Kharif 1968, yet the appellants had forcibly dispossessed him on gun point. This complaint was investigated by Sub Inspector Abdul Karim (D. W 1) who recommended, vide his report Exh. D. L., dated the 4th of September 1968, that the case be cancelled as the allegations of the deceased Muhammad Ramzan were not supported by the witnesses at the spot. However, from Exh. D. F. and the admissions made by the two brothers of the deceased, namely, Ali Muhammad (P. W. 3) and Said (P. W. 4), it becomes abundantly clear that the physical possession from the 10th of July 1968 onward remained with the appellants. In the presence of this document I do not think it necessary to examine the mass of revenue entries placed on the record by both sides. The learned counsel appearing for the State concedes that there is no further evidence with the prosecution to show that after the 10th of July 1968, on which date Exh. D. F. was made by the deceased, possession was ever restored to the complainant partly.

5. The present incident took place on the 27th of October 1968 at 10 a.m. According to the prosecution, the deceased and his brothers were working in the disputed field when they were attacked by the appellants. The father Sheikh Ahmad shouted the proverbial lalkara whereas Walla inflicted dang blows on the head of the deceased. This appellant then also injured Ali Muhammad (P.W. 3). The appellants Ali Muhammad, Muhammad Ashiq and Hamida caused injuries to Ali Muhammad as well as to Said. It may be stated that the appellant Ali Muhammad has since died and the appeal therefore abates so far as he is concern ed. After causing injuries to the deceased and his brothers, the appellants are said to have retreated from the spot.

6. The first information report was made at 2-30 p.m. by Ali Muhammad and was recorded by Sub-Inspector Ahmad Bakhsh (P. W. 18).

7. The post-mortem examination conducted by Dr. Muhammad Asghar shows that the deceased Ramzan had sustained two blunt weapon injuries on his head which were sufficient in the ordinary course of nature to cause death.

8. The witnesses All Muhammad and Said were examined by Dr. Tufail Muhammad. He also examined the two injured accuser., persons, namely, Ashiq and Wails. The injuries on all these four persons, except Said, were found to be simple in nature. Said had sustained a fracture on his arm.

9. At the instance of the appellant Ashiq a hatchet was recovered on the 31st of October 1968 and a sang was recovered at the instance of the appellant Hamida. Another ding was recovered at the instance of the appellant Walla. The witness Ali Muhammad produced a kulhari and sort before the Investigating Offer.

10. The appellants pleaded not guilty at the trial and asserted that they had all along remained in possession of the disputed land, and that in fact the complainant party were the aggressors who attacked them for the purpose of taking forcible possession of the land in spite of the pendency of their revision petition on the consolidation side. The appellants have pleaded the exercise of the right of private defence of both person and property, and it has been argued on their behalf that in the circumstances of the case this right extended to the causing of death.

11. The learned Sessions Judge has held that the possession had been delivered to the complainant party and thereafter the appellants had no right to continue in possession, and therefore they must be treated as the aggressors and trespassers. The essential question therefore in this case is regarding the factum of possession.

12. As I have stated earlier, in order to determine this question it is enough to look at the latest document available at the record, namely, Exh. D. F. This document is a complaint made by Muhammad Ramzan deceased on the 10th of July 1968 to the District Inspector of Police alleging forcible dispossession by the appellants. As already mentioned the filing of this complaint is fully supported by the brothers of the deceased and is in any case proved by Sub-Inspector Abdul Karim (D. W 1). Irrespective of the conclusions reached by the Investigating Officer, it is clear from this complainant party stood ousted at least era the 10th of July 1968. Mr. Nemat Khan frankly concedes that there is nothing to show that the complainants were ever put back into possession after this stage. In other words it has to be held that on the 27th of October 1968 the appellants were in possession, even though as a result of using force on or about the 10th of July 1968. It is now settled law that if the possession of the trespasser has continued for an appreciable length of time and has matured into settled possession, then a right of private defence of the property would 4e,ratio tai the trespasser. The true owner would not have a right to resort to force. See Muhammad Khan and Others v. The Crown (P L D 1949 Lah. 421), Arif v. The State (P L D 1959 Lah. 606), Abdul Latif v. The State (P L D 1960 Lah. 62), Mobarak Ali and others v. The state (P L D 1961 Lah. 415) and Muhammad Buta and 3 others v. The State (1972 P Cr. L J 567).

13. Such being the case, the next question is whether the right of private defence which had accrued to the appellants has bean exceeded or not. As regards the right of private defence o property, the relevant provisions are contained in sections 103 and 104 of the Pakistan Penal Code. Reading the two sections together it becomes amply clear that the right does not extend to the causing off death in a case of trespassers like the one in which we are dealing here. It would extend to the causing of any other harm but not to the voluntarily causing of death.

14. However, the matter does not end here. It is in evidence that two of the appellants, namely, Walla and Ashiq, had injuries on their persons. Ashiq's injury was an incised wound on the shoulder and Walla had sustained a contused wound on the head. There is also evidence that the witness Ali Muhammad had produced a hatchet and a sots before the Investigating Officer, ostensibly as weapons of offence employed by the complainant party. In any case, the injuries found on the person of the two of the appellants remained unexplained by the prosecution, and in the circumstances the only hypothesis on which they can be explained is that, the complainant party was wielding at least one blunt weapon and one sharp-edged weapon which were used for causing injuries to Ashiq and Walla. The injuries being on the vital parts of the body and caused by deadly weapons, the right of the defence of the person which would accrue to these appellants, while defending their possession of the disputed land, would extend to the voluntary causing of death under section 100 of the Pakistan Penal Code. No elaborate argument is needed to see that some of the complainants being armed with deadly weapons the appellants would have reasonably entertained an apprehension of death-or, at least, of grievous hurt, so that they would be entitled to cause the death in defending themselves.

15. On this view of the matter it seems tome that the appellants were ac-ting within the law in defending their person and property, and they have not committed any offence even though during the exercise of their right of private defence they have caused the death of Ramzan and injuries to his brothers. Their convictions and sentences are therefore set aside and they are acquitted. They small be set at liberty, provided always that they are not required to be detained in any other connection. Appeal accepted.