1988 PLP 1121 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑The respondents, herein, were tried for causing the murder of Muhammad Ismail on 20‑9‑1979 at 9‑30 a. m. in the area of Hamza Ghous within the Police Station Saddar, Sialkot. The incident arose over the building of a wall around the land measuring about 19 Marlas sold to Sadiq by the complainant party. This was resisted by the respondents on the ground that this land was jointly owned and possessed by the complainant party and the respondent No.2 who is a wife of respondent No.1. Respondent No.2 had also filed a suit .earlier to prevent the sale and had also lodged a complaint of breach of peace in regard to the proposed handing over of the possession of a portion of land to the vendee. On the day of incident two persons namely Ishfaq (P.W.8) and Khalid Mahmood (P.W.9) were called to supplement the strength of the complainant party to raise the wall. Both the respondents suffered injuries during the transaction in which the deceased lost his life as a result of the fatal injury caused by knife blow besides two others which were simple in nature. Ishfaq one of the prosecution witnesses also suffered an incised injury which was also simple in nature. The trial Court had convicted respondent No.1 but had acquitted respondent No.2. The complainant filed two revisions, one for the enhancement of sentence of respondent No.1 and the other against the acquittal of respondent No.2. Appellant Muhammad Siddique filed an appeal against his conviction. The High Court acquitted Muhammad Siddique and dismissed both the revisions. Further, the High Court after carefully evaluating the evidence in the context of the plea of self‑defence held as under: "It is to be noticed that the duration of the injuries was given by the Doctor as within three days which would include the day of occurrence as well. On the other hand when it is considered that the complainant party was present at the spot in strength and was constructing the boundary wall despite the protest of the accused party which had also filed a civil suit to stop the sale, the defence version becomes more plausible that the injuries found on the person of the appellant and the respondent were inflicted by some members of the complainant party." The High Court did not believe the prosecution case that there was an earlier partition of the property as there was no evidence to sustain it. The High Court, therefore, further held that "no co‑sharer had a right to appropriate for his exclusive possession a specific part of the joint property without the consent of the other co‑sharers. " Therefore, the construction of the boundary wall was an invasion on the right of respondent No.2 as a co‑sharer and they had a right to defend their possession and use force, if necessary. In this view of the matter, because of the injuries suffered by the two respondents and taking note of the fact that the complainant party was far more in strength than the respondents, the High Court conceded to the respondents' the right of self‑defence. The conclusions arrived at by the High Court on the evidence are reasonable and we find no error in the assessment of the evidence. Accordingly, there is no scope for granting leave to the petitioner and the petition, therefore, stands dismissed. M. Y. H./A‑215/S Leave refused.