P L D 1975 Supreme Court 556 (PLP)

SALAHUDDIN AHMED, J.-These two appeals are by special leave of this Court. Criminal Appeal No. 32 arises out of an order passed by the Lahore High Court acquitting the eleven accused-respondents of charges under sections 148 and 302, 307 and 324 read with section 149 of the Paktstan Penal Code. Criminal Appeal No. 33 is by the six convicts who were convicted under sections 302, 307, tab and 324 read with section 149 of the Pakistan Penal Code by the lamed Additional Sessions Judge, Rawalpindi, and their convictions were maintained by the High Court and the sentences of death passed on four of them were confirmed while the sentences of death passed on other two namely, Fateh Muhammad and Amir Zaman were commuted to transportation for life. The incident took place on the 6th of September 1968 at about sunrise in which three persons were killed namely, Abdul Khaliq, Sabir Hussain and Mansabdar, and several other persons injured. According to the prosecution case, Abdul Khaliq, Sabir Hussain, Mansabdar, accompanied by Iqbal Hussain (P.W. 14) Muhammad Sadiq and Masud went to the land belonging to Abdul Khaliq (one of the deceased) and started ploughing it. Having seen them Mazhar Ali and Asghar Ali (two of the accused persons) left ploughing their field, and proceeded towards their house. Soon all the 17 accused persons accompanied by Mukhtar (era. absconder) arrived at the place of incident. Among the accused Muhammad Banaras, War Ali, Ghulam Murtaza and Riaz Mahmood were armed with guns, Asghar Ali was armed with a pistol, and Mukhtar Ahmad with a rifle. Of the remaining accused Meero and Abdul Aziz were armed with hatchets each, while Afsar had a hockey-stick and the rest except Haji Faiz Ali had a stick each. Haji Faiz Ali accused was empty-handed. Haji Faiz Ali asked Abdul Khaliq not to plough the land, and the latter replied that the land was in their possession and they could not be stopped from ploughing it. The accused persons then opened the attack upon the deceased and his com panions. Asghar and Banaras fired at Abdul Khaliq, and killed him. Zafar Ali and Mukhtar Ahmad fired with gun and rifle respectively at Mansabdaa (another deceased) and Nemat Khan (not produced). Mansabdar was killed. The prosecution witnesses who were cutting-grass nearby, were attracted to the spot, and they saw the occurrence. Banzras fired at Iqbal Hussain P. W., and hit him on his right hand. Nasir and Aziz gave hatchet blows each to Siddiq (not examined), and Banaras fired at trim. Mst. Resham, Mst. Zeenat and Ali Akhtar P. Ws. tried to rescue the deceased and their companions but Mst. Zeenat has struck with a hatchet by Nasir. Mst. Resham P. W. and one Nemat Khan (not produced) were also injured in the incident. Ali Akhtar P. W. was fired at and injured by Asghar Ali while the former was sitting by the side of the dead body of his son Mansabdar deceased. P. W. Iqbal Hussain went to Police Station Rau at, and lodged a first information report on the same day at 9-30 a.m. which 'was recorded by S. H. O. Sajjad Hussain (P. W. 2t). The police officer prepared the injury statement of Iqbal Hussain. The S. H. O. arrived at the spot at 11-30 a.m. and found Siddiq (given up), Mat. Zeenat (P. W. l6), Ali Akbar (P. W. 17), Mst. Resham (P. W. 15) and Nemat Khan (given up) present at the spot and having injuries on their person. The Investigating Officer prepared their injury statements and sent them to hospital. P. W. Iqbal was also sent to the hospital. The police officer found the dead bodies of the aforesaid three persons lying on the spot and after having prepared their injury statements and inquest reports, sent their bodies to the mortuary. Blood-stained earth was collected from the field of Abdul Khaliq. A chaka and a chabak were recovered from the spot. They were blood stained. Blood-stained earth from two other places at a distance of 15 feet from the first place of recovery of blood-stained earth and at a distance of 30 feet from them were also collected. Blood-stained earth from where the three dead bodies were lying was also collected. An empty lying near the dead body of Sabir Hussain was seized. Nine empties including one of 12 bore and another of 32 bore were also recovered from the place, anal, duly seized and sealed. On the 7th of September 1968 Asghar Ali, Mazhar Ali, Manzoor Ali, Faiz Ali,-Abdul Aziz, Banaras, Ishtiaq and Mir Zaman were arrested from Dhok Muqaddam. Asghar Ali produced, inter alts, his licensed revolver (P. 8). and the revolver was seized and sealed. He had injuries on his person and the Sub-Inspector after having prepared the injury statement sent him to, the hospital for medical examination. Banaras produced his licensed gun (P. 9) and this was also duly seized and. sealed. Aziz is said to have led to the recovery of a blood-stained hatchet from his house and this was also duly seized and sealed. On the 8th of September 1968, War Ali, Mahboob, Fateh Muhammad and Murtaza were arrested, and War Ali produced his licensed gun (P. 11) and it was duly seized and sealed. Ghulam Murtaza produced a blood stained shot-gun (P. 12) and this was also duly seized and sealed. These seized crime weapons and empties were deposited at the Police Station on the 9th September 1968. On the 8th of September 1968, Riaz appeared at the Police Station alongwith his gun (P. 13), and he was arrested and the gun was seized and sealed and deposited at the Police Station on the same day. Naseer also appeared at the Police Station and he was arrested. All the accused pleaded not guilty to the charges framed against them Asghar Ali and Mazhar Ali are brothers while Haji Faiz Ali is their father. Their cage is that they were in possession of the land of Khasra No. 4145 which was purchased by them. On the day of occurrence, they were plough ing the land in the said khasra when about 50/60 persons surrounded them from three sides, and started firing at them. In the course of this firing Asghar Ali was hit and injured, and he and his brother then fled away to save their lives. Haji Faiz Ali further stated that on the 31st of July 1968, be had employed tractors to level the said land, but on the interference of the residents of the locality, he stopped using the tractors. He complained against certain persons including P. Ws. Ali Akbar, lqbal and Mansabdar deceased to the Senior Superintendent of Police. The application was referred to the S. H. O. of the Police Station and he directed Haji Faiz Ali to get the land demarcated and the latter accordingly applied to the Tehsildar for demarcation of the land. The rest of the accused persons said they had been falsely involved on account of relationship with Haji Faiz Ali. Riaz Mahmood also pleaded alibi alleging that on the day of occurrence he was lying ill in the Cantonment hospital at Multan. He produced three defence witnesses in support of his alibi. The trial Court did not rely on the evidence of the Arms Expert as regards the matching of the crime weapons with the crime empties on the ground that the crime empties were not sent to the Forensic Science Labora tory immediately after the recovery but were sent after the crime weapons had beers recovered from the various accused persons. The learned Judges of the High Court were of the opinion that the eye witnesses were closely related to the three deceased persona, and that they exaggerated the number of the assailants. It was found that all the accused were living descendants of one Habibullah and the witnesses sought to rope them all. The High Court did not disagree with the trial Court for not relying on the evidence of the Arms Expert. According to the first information report the number of assailants were given as 18 including Mastana absconder and Meero son of Kalu. On checking with the original this Meero was found to be Seero, son of Kalu. All the eye-witnesses, however, mentioned Naseer Ali, son of Muhammad Shafi, as one of the accused instead of the said Seero, son of Kalu. At the outset I feel it necessary to consider a question that has not beech considered by either Courts, and that has altered the complexion of tea entire case. It appears from the evidence of P. W. 19 Faiz Talab Khan Patwari that on the 27th of July 1968. Haji Faiz Ali accused, father of Asghar Ali and Mazhar Ali, applied for demarcation of Khaara Nos. 4145, 4146, 4147, 4138 and 4159 of village Takht Pari. Upon an order passed on this application, P. W. 19 Faiz Talab Khan Patwari and P. W. 20 Muhammad Hussain Shah, Girdawar, proceeded to the spot and conducted the demarca tion and prepared a report. These two witnesses found that about one kanal and nine marlas area of khasra No. 4145 had been included in Khsara No. 4114 which was in the cultivating possession of Abdul Khaliq deceased. The Patwari said in cross-examination that when they went to demarcate the land they did not find Abdul Khaliq (deceased) in actual physical possession of the aforesaid one kanal and 9 marlas of land. This is supported by the evidence of P. W. Muhammad Hussain Shah Girdawar. According to the site plan, it appears that all the alamats of the case except one were recovered from Khasra Nos. 4114 and 4113. The bodies of the three persons killed were recovered from Khasra ho. 4113 which is adjacent north of Khasra No. 4114. Only one blood-stained cartridge was recovered from Khasra No. 4145 from a spot almost on the border line of Khasra No. 4114. Without going into the details of possession it appears clear that there was a dispute between the parties over some portion of the land in Khasra No. 4145, and some other khasras and Haji Faiz Ali had taken steps to have the lands demarcated. It was, therefore, improbable that he and his men would take the law into their hands to enforce their just or supposed right over the land. That being so the possibility of the deceased and the complainant party having gone upon the disputed land to plough could not be excluded. Furthermore the facts that Asghar Ali was fired at and received a grievous hurt and the prosecution was silent as to how he was so hurt support the likelihood of the existence of a right of private defence of person and property on the part of the accused persons. In these circumstances the charge of rioting and consequently the application of section 149 of the Penal Code cannot be sustained. The fact, however, that all the three dead b tidies and almost the entire alamats of the case were recovered outside Khasra No. 4145, indicated that even if the accused party had initially the right of private defence to oppose arid turn out the deceased and the complainant party from the land in dispute, this right ceased to exist as soon as the deceased and the complainant party left the land in dispute. The circumstances clearly established the fact of the deceased persons and their men were injured when they were not on any) part of Khasra No. 4145. The accused persons, therefore, could only be held guilty for specific offences committed by them. I now proceed to consider Criminal Appeal No. 32 of 1973 which is an appeal from the order of the High Court acquitting the accused respondents, namely, Haji Faiz Ali, his son Asghar Ali, Mazhar Ali, Manzoor Ali and Mukhtar Ahmad, Ishtiaq Ahmad, Nasir Ali. Mahboob Hussain, Muhammad Afzal alias Afsar, Rashid Ali and Abdul Aziz. Haji Faiz Ali is an old man of 60 years of age. He was not armed, and only the proverbial lalkara has been attributed to him. He was neither injured himself nor caused injury to anybody. No specific role has been 'D attributed to him. Manzoor Ali, Ishtiaq Ahmad. Mahboob Hussain ands Rashid Ali each had a lathi, and Muhammad Arzal alias Afsar had a hockey- stick. None of these convicts is alleged to have caused any injury and no specific role has been assigned to any one of them. The learned Judges of the High Court were of the view that the prosecution had exaggerated the number of the accused persons. and they accordingly kept in mind the tendency on the part of the people in our country to rope in more persons than were actually involved in any incident, and gave the benefit of doubt at all these six accused persons. In these circumstances we are unable to say that this is a perverse view or based on no reasonable ground. As regards Naseer Ali, son of Shafi, be was not named is the first information report. It was alleged that he was armed with a hatchet an struck Siddique and Mst. Zeenat (P. W. 16) with the hatchet. No hatchet was recovered from his possession. Siddique was never produced for examination and he was given up by the prosecution as unnecessary. The t medical evidence had disclosed that P. W. Zeenat had one incised wound 6' x 3' in the web of left index and thumb. In the first information report this injury was attributed to one Seero, son of kalu. Prosecution has led no evidence whatsoever to prove that Seero, son of Kalu is the same person as Naseer Ali, son of Shafi. Naseer Ali was thus entitled to acquittal, and he was rightly acquitted. Mazhar Ali and Asghar Ali are brothers being sons of Haji Faiz Ali. Mazbar Ali was said to have been armed with a hatchet but no hatchet was recovered from him. No specific role has been attributed to Mazhar Ali. The learned Judges were not correct when they said that Mazhar Ali admitted his presence in course of his examination, under section 342 of the P. P. C. All that Mazhar Ali said was that two hours before the occurrence he went along with his brother Asghar Ali to plough the land purchased by their father Haji Faiz Ali but they were attacked, and Asghar Ali was injured by a firearm, but they managed to escape. This is no admission of their presence at the time the present occurrence took place. Consistent with the principles of safe administration of criminal justice Mazhar Ali has been rightly acquitted. According to the consistent evidence of eyewitnesses Asghar Ali, armed with a pistol and Banaras armed with a gun fired at Abdul Khaliq with their respective weapons. Asghar Ali is further alleged to have fired with his pistol at P. W. Akhtar Ali. The doctor who examined P. W. Ali Akbar found on him a lacerated wound 1/10' round on the front of neck middle line caused by a fire-arm. The doctor, however, was of the view that this injury could be caused by a pellet and not by a bullet. This of course ruled out firing by a pistol or a revolver. As has been noticed earlier a revolver and not a pistol was recovered from Asghar Ali. Among other kinds of injuries Abdul Khaliq deceased had the following fire-arms injuries:-- (1) A round wound 1/4' round in middle line of the abdomen 4' below, the umblicus going inwards and upwards passing through the large gut greater omentum, spleen left done of dispharagm and through the whole length of left lung producing wound of exit ' round on the middle of the top of the left shoulder 4' on the left of the root of neck. There was mark on the shirt for the wound of entry. (2) An incised wound x 1/8' on the abdomen 1/4" on the left of middle line and 2" below the umblicus. There was cut on the shirt. (3) Two pellet shot wounds and four marks on the front of left shoulder. Two pellets were removed. - The doctor has failed to specify the kind of fire-arm used in causing the first named injury. It appears, however, that the convict Asghar Ali had a similar wound namely a round wound " on the inner side of left fore-arm and the doctor said that this injury could be the result of a pellet shot or by a small bullet. Asghar Ali is, therefore, entitled to the benefit of doubt that injury No. 1 on Abdul Khaliq might have been caused by a pellet and not by a bullet, and if that be so Asghar Ali could not be held responsible for having caused this injury to Abdul Khaliq with a pistol or a revolver. I, therefore, think that Asghar Ali has been rightly acquitted. Mukhtar is alleged to have fired at Mansabdar deceased with a rifle. No rifle bas been recovered from Mukhtar. The medical evidence disclosed no bullet injury on Mansabdar. Mukhtar's conviction was, therefore, rightly not sustained by the High Court. As regards Abdul Aziz, he is alleged to have injured Siddique with hatchet. A blood-stained hatchet was recovered at his instance. Prosecution gave up Siddique as unnecessary, with the result that he w not examined. In the absence of Siddique, therefore, the recovery of blood-stained hatchet from Abdul Aziz was useless. It could only have been used as a corroborative piece of evidence. Abdul Aziz, therefore, has teen rightly acquitted by the High Court. For the reasons stated above, I find no reason to interfere with the order of the acquittal passed by the High Court in respect of the 11 accused respon dents. The appeal is accordingly dismissed. I now come to Criminal Appeal No.

33. This appeal is by six convicts, namely, Zafar Ali, Muhammad Banaras, Ghulam Murtaza, Riaz Mahmood, Fateh Mohd and Mir Zaman, who have been convicted and sentenced under sections 148, 302 read with section 149 of the Pakistan Penal Code. Having regard to the observations that I made above in respect of the pos session of the disputed land, I may forthwith say that none of the appellants, can be held guilty of rioting or for any offence constructively under section 149 of the Pakistan Penal Code. Upon the evidence the possibility of the existence of a right of private defence on the part of the accused persons can not be reasonably excluded and, therefore, they can only be held guilty indi vidually for any offence committed by them. Zafar Ali is said to have fired at Mansabdar deceased with a gun. The High Court relied upon the evidence of Iqbal Hussain (P. W. 14), Met. Resham Jan (P. W. 15), Mst. Zeenat (P. W. 16) and Ali Akbar (P. W. 17). All these witnesses received injuries in course of the incident, and although then three persons last named were related to Mansabdar deceased namely, Mst. Resham Jan (P W. 15), Mst. Zeenat (P. W. 16) and Ali Akbar (P. W. 17), Iqbal Hussain (P. W. 14) was found to be independent and disinterested. Mohd. Ashraf (P. W. 13) son-in-law of Abdul Khaltq deceased, also implicated afar Ali as one of the persons who bad fired at Munsabdar deceased. Zafar Ali was arrested on the 8th of September 1968 end a single barrel '12 bore gun made in U. S. A. with a licence was recovered from him. The medical evidence shows a large number of pellet shot marks on Mansabdar and several pellets were recovered from his body. The medical evidence, therefore, also lends support to the ocular evidence implicating Zafar Ali. Mohd. Banaras was charged with firing at Abdul Khaliq deceased with a gun and killing him. He was also accused of injuring with gun P Ws. Iqbal Hussain and Siddique. He was arrested on the 7th of September 1968 and a single barrel gun of 12 bore made in U.S.A. with a licence was recovered from him. So far ac Siddique is concerned, we have noticed already that he has been given up as unnecessary by the prosecution. The medical evidence discloses that Iqbal Hussain P, W. had suffered, among others, two lacerated wounds on two fingers caused by a firearm. Thus in his case too the medical evidence as well as the recovery of the gun supported the ocular evidence. Ghulam Murtaza was accused of shooting at and killing Sabir Hussain deceased with a gun. He was arrested on the 8th of September 1968 and his shot gun with two live cartridges were recovered from him. The medical evidence showed that Sabir Hussain had around wound. 1 " wound on the outer side of right thigh, and 20 pellets and two caret boards were reco. vered from the wound. There was blackening of Shalwar at the wound of entry. There were six pellet shot wounds and marks on the upper part of left side of chest. Five pellets were recovered from this wound. Medical evidence also discloses two pellet shots marks on the left side of the neck and multiple pellet shot marks on the left shoulder and upper arm. 25 pellets and 2 card boards were recovered from his body and handed over to the police. Riaz Mahmood was also accused of firing at Sabir Hussain deceased with a gun and killing him. He was arrested on the 13th of September 1966 and a gun made in U. S. A. was recovered from him. The medical evidence noticed already supports the accusation. As regards Fateh Mohd. and Mir Zaman, they are said to have given Lathi blows to Mst. Resham (P. W. 15) wife of Ali Akbar and mother of Mansabdar deceased. P. W. Mo. Resham has stated that Fateh Mohd. and Mir Zaman inflicted stick blows on her when she was standing near the dead body of her son Mansabdar deceased. The occurrence took place at day-time, and it was natural to expect her to recognise her assailants. The medical evidence shows that Mst. Resham P. W. bad a lacerated wound 3" x " on the right side scalp, swelling 2 x 2 on the left upper arm and swel ling 2 x 2 on the right upper arm. All these injuries were caused by a blunt weapon. The doctor had advised X-ray of the skull and this indicated that he apprehended that injury No. I was more serious than it looked. The injury was kept under observation. The number of injuries fitted the number of assailants. The medical evidence, therefore, fully supported tile evidence of P. W. Resham. In view of the circumstances mentioned above, there is no doubt that the six appellants were very much concerned in the incident and they participated in it by actually causing injuries to the said three deceased persons and to some of the prosecution witnesses as mentioned above. The question, however, is what offences have been committed by them. In; view of the circumstances mentioned above, it seems to me that these six appel lants exceeded their right of private defence against the deceased and their party and must be held guilty for the offences proved against them. Upon an anxious consideration of the facts and circumstances of the case I think that War Ali, Mohd. Banaras, Ghulam Murtaza and Riaz Mahmood are entitled to the benefit of exception (2) of section 300 of the P. P. C. an I would accordingly alter the conviction of Zafar Ali and Mohd. Banaras under t section 302 to one under section 304, Part I of tile Pakistan Penal Code for having fired at and killed Mansabdar and Abdul Khaliq respectively. I would also convict Ghulam Murtaza and Riaz Mahmood under section 304, Part I read with section 34 of the Pakistan Penal Code for having shot at and killed Sabir Hussain. Each one of these four appellants are sentenced to imprison ment for life, and also to pay a fine of Rs. 500 each. In case the fines are realised they shall be paid to the heirs of the three deceased parsons, Mansabdar, Abdul Khaliq and Sabir Hussain, fine from War Ali going to the heirs of Mansabdar, from Mohd. Banaras going to the heirs of Abdul Khaliq and those from Ghulam Murtaza and or Riaz Mahmood is going to the heirs of Sabir Hussain, I would also convict Fateh Mohd. and Mir Zaman under sec tion 323 read with section 34 of the Pakistan Penal Code for having caused hurt to P. W. Resham with lathi blows and sentence them thereunder to one year's. rigorous imprisonment each and also to pay a fine of Rs. 20) each and in default to suffer rigorous imprisonment for one month each in addition to the substantive sentence of one year's rigorous imprisonment. HAMOODUR REHMAN, C. J.--I have now had the advantage of reading the separate opinion proposed to be delivered in these appeals by my learned brethern, Salahuddin Ahmed. J. and Muhammad Gul, J. They are both agreed that the Criminal Appeal No 32 of 1973, which is against the acquittal of I1 out of the 17 accused persons, should be dismissed. I also agree with this conclusion. As regards Criminal Appeal No. 33 of 1973, which is against the conviction of six of the remaining accused persons, namely, Zafar All, Muhammad Banaras, Ghulam Murtaza, Riaz Muhammad, Fateh Muhammad and Mir Zaman, under sections 148 and 302/149, P. P. C. Salahuddin Ahmed, J. is of the opinion that they cannot be made liable either for the offence of rioting under section 148, P. P. C. or vicariously under section 149, P. P. C. because "upon the evidence, the possibility of the existence of a right of a private defence on the part of the accuse) persons. cannot be reasonably excluded and, therefore, they can only be held guilty individually for any offence committed by them." Applying this principle, he has nevertheless come to the conclusion that "there is no doubt that the six appellants are very much concerned in the incident and they participated in it by actually causing injuries to the said three deceased persons acid some of the prosecution witness is as mentioned above" but he has found that Zafar Ali, Muhammad Banaras, Ghulam Murtaza and Riaz Muhammad were entitled to the benefit of subsection (2) of section 300, P. P. C. Hence, he has altered their convictions from sections 302, P. P. C. to 304/Part I, P. P. C. and sentenced each of them to imprisonment for life as also to pay a fine of Rs. 500 each. Fateh Muhammad and Mir Zaman have, on the other hand, only been convicted under section 323/34. P. P. C. for having caused simple hurt to P. W. Resham with 'Lathi' blows and sentenced to one year's rigorous imprisonment each and also a fine of Rs. 200 each. Muhammad Gul, J. on the other band has found it difficult to persuade himself to agree with the analysis of criminal liability made by Salahuddin Ahmed, J. In his view, all these six convicts were guilty of riming and their criminal liability had to be determined accordingly. In view of this conflict of opinion it has become necessary for me to express my own views on the points on which my learned brethren differ. The fundamental question, on which they have differed, is the question of possession of the portion of the land in dispute between the parties. Salahuddin Ahmed, J. has stated that Haji Faiz Ali (one of the acquitted accused) and his sons, Asghar Ali and Mazhar Ali, had purchased 115 kanals, 6 marlas of land comprised in Khasras Nos. 4145, 4146, 4147, 4138 and 4159 in village Takht Pari, Tehsil and District Rawalpindi, from one -Sh. Moor Muhammad (a resident of Bahawalpur), a confirmed allottee of the land. 'The mutation was attested on the 31st March 1968, but the land sold being `Ghair Mumkin' or 'Benjar Qadeem' it was not clear as to whether the vendor had been able to deliver possession of the lands to the purchasers. Faiz Ali, It appears, on the 27th August 1968, applied to the Tehsildar, Rawalpindi. for the demarcation of the land purchased by him and his sons, vide Exh. P. G. G /3. This application itself shows that Faiz Ali was com plaining therein that the neighbouring owners had obliterated the boundary marks of his lands and encroached upon them. The Tehsildar asked the Girdawar on the same date to submit a report after demarcating the lands, by 4th September 1967. Faiz Ali again made a statement on solemn affirmation before the Girdawar (vide Exh. P. G. G/3) to the effect that on demarcation it had been found that some area had been encroached upon and that the encroachment had been separately shown in the 'Naqsha Tajawaz'. He also complained in this that none, except Muhammad Sharif, from the other side was present and went on to state that if now the boundary marks are removed or "if possession of the land was not received", then be would take proper steps in that behalf. This would seem to indicate that Faiz Ali had not received possession of the land encroached upon, which bad been shown by the girdawar separately as 4145/ I, measuring 1 kanal, 9 marlas, on the "Naqsha Tajawaz", on the back of 'Aks Shajra' (Exh. P. G. G/1). In this Aks Shajra also it is stated that the encroached area is under the possession of Abdul Khaliq, resident of Gangal, village Takht Pari. In the report of the girdawar, filed on the 29th August 1967, it is confirmed that Knasra No. 4145/1, measuring I kanal, 9 marlas, was found to be in the possession of Abdul Khaliq and this was shown to Haji Faiz Ali ;(vide Exh. P. G. G/2). The Halqa Patwari Faiz Talab Khan (P. W. 19) also stated in chief that: "At the spot, Abdul Khaliq (deceased) was found in possession of 1 kanal, 9 marlas of land comprising Khasra No. 4145/1." This was, according to the patwari, in the cultivating possession of one, Muhammad Zamen son of Faizu, who was also in the cultivating possession of Khasra No. 4114. In cross-examination, however, he stated that when be sent to demarcate the land he did "not find Abdul Khaliq, deceased, in actual physical possession" of 1 kanal 9 marlas, which was found encroached upon in Khasra No. 4145. He did not support the claim of Haji Faiz Alt that the latter bad previously used a tractor to plough Khasra No. 4145 even after the demarcation, but he did admit that when he went to demarcate the land, he found that Khasra No. 4114 had been ploughed. The patwari again visited the spot on the 9th September 1968, to prepare the site plan of the incident and on this occasion, he says, he again found Khasra No. 4114 ploughed Haji Faiz Ali was never in possession of Khasra No. 4114. He found only portions of Khasra No. 4145, claimed by Faiz Ali. to have marks of a bulldozer at a distance of about 15 or 20 karams from the boundary line of Khasra No. 4114, on the second occasion. The girdawar (P. W. 20) too maintained in examination-in-chief that Khasra No. 4145/1, which had been found to be included in Khasra No. 4114, was in the cultivating possession of Abdul Khaliq (deceased). It was also elicited from him in cross-examination chat on the admission of Haji Faiz Ali himself when he (the latter) wanted to use tractors on the lands purchased by him the residents of the locality raised objection stopping him from doing so". Haji Faiz Ali had then complained to the police and it is the police who had asked him to get the lands demarcated. The remarks of the patwari in cross-examination that he did not find Abdul Khaliq (deceased) in actual physical possession, has been picked up by Salahuddin Ahmed, J., for drawing the inferences that Abdul Khaliq (deceased) was not in possession, but, with respect, it must be pointed out that this should have been read alongwith his evidence in examination-in-chief where he stated that the actual cultivating possession was of Muhammad Zaman son of Faizu, who was a tenant under Abdul Khaliq and his co-owners. Salahuddin Ahmed, J., was also wrong, in my opinion, in holding that the girdawar had supported the patwari in this, because, the girdawar too had actually stated in examination-in-chief that Khasra No. 4114 was in the cultivating possession of Abdul Khaliq (deceased) and that Khasra No. 4145/1 shad been included in Khasra No. 4114, but in cross-examination again, he was confronted with the khasra girdawara, which did not show Abdul Khaliq (deceased) in cultivating possession. In spite of this, however, he maintained that, when at the spot, he learnt that Abdul Khaliq (deceased) was in cultivating possession of Khasra No. 4114, he did not make any retort with regard to the non-mention of this fact in khosra girdawari. On this evidence, I find myself, with respect, unable to agree with Salahuddin Ahmed, J., that the Khasra No. 4145/1 was ever in possession of Haji Faiz Ali or his sons. I also find it difficult to agree that it was, therefore, improbable that he and his men would take the law into their hands to enforce their just or supposed right over the land. The evidence of the prosecution is that they did take the law into their own hands. Salahuddin Ahmed, J. himself he found that evidence reliable by holding that all these six accused participated to this incident. If they were never in possession as I am inclined to hold, then the question would certainly arise whether they have committed an offence of rioting or not. I feel that in the facts of this case, if Faiz Ali and his sons were never in possession, then the attempt to take possession by fore did amount to rioting. The next question on which my learned brethren have differed is the question as to whether any right of private defence of person accrued in this case. Salahuddin Ahmed, J. has taken the view that "the possibility of the deceased and the complainant party having gone upon the disputed land to plough could not be excluded", in the circumstances of this case and there was also the possibility that the complainant party fired the first shot which hit Asghar Ali and then the accused party retaliated. If this had been so then some recoveries should have been made from Khasra No. 4145/1. On the other hand, as found by Salahuddin Ahmed, J. himself all except one, of the recoveries were made from Khasra Nos. 4114 and 4113. The bodies of the deceased were also recovered from Khasra N a. 4113. Only one bullet cartridge was recovered from Khasra No. 4145, from a place which is almost ran the border line of Khasra No. 4114. This would also seem to indicate that it is the accused party who were trying to enter Khasra No. 4114 and not trying to prevent the complainant party from entering 4145/1. I cannot, therefore, agree with Salahuddin Ahmed, J. that there was any question of the right of private defence being available to any of the accused persons. The defence story, as pointed out by Muhammad Gul, J., is wholly improbable. If actually 50 or 60 persons had collected there and resorted t indiscriminate firing, more than one person on the side of the accused would have received very serious injuries. The only person who received a gunshot injury, was Asghar Ali and that also of not a very serious nature. I cannot also draw any adverse inference against the prosecution for not disclosing this injury on Asghar Ali. It is quite possible that the prosecution witnesses may not have noticed the injury, as Asghar Ali was not found lying injured at the spot. It is also difficult to believe that the complainant party, if they were the aggressors, would have gone on such errand accompanied by their women folk, Mst. Resham Jan and Mst. Zeenat Bibi (the mother and wife o Mansabdar deceased) who too were actually injured at the spot. Asghar Ali was actually arrested on the following day from Goth Muqaddam and it was then that the injury on his person was discovered. It was declared to be a firearm injury and was kept under observation. The doctor is not in a position to say as to what was the result of the observation. The trial Court has taken the view that this was self-inflicted but even, if this was not so it was not dangerous to life. It was only noticed afterwards. On the side of the complainant party, three people have been killed and the injured witnesses had between them 15 injuries. The deceased person had also 14 injuries which had been caused by firearms. If the complainant party had been the aggressors and some of them were armed with firearms then many more on the side of the accused would have bee injured, and would have received more than a total of two injuries on only one person. One of these was only an abrasion. In the circumstances, on a careful re-examination of the evidence, regret my inability to agree with my learned brother Salahuddin Ahmed, J. that this is a case of individual liability. I am inclined to agree wit Muhammad Gul, J., that all the six accused not only participated but 0 participated in prosecution of their common object to forcibly take possession of the land in dispute and were rightly convicted under sections 14 and 302/149, P. P. C. I also agree with him that while maintaining their convictions, the sentences of the first four appellants should be reduced to transportation for life and a fine of Rs. 3,000 each, or, in default, further rigorous imprisonment for three years each. The convictions and sentences of the others shall be maintained unaltered. MUHAMMAD GUL., J.--I have had the benefit of perusing the judgment proposed to be delivered by my learned brother Salahuddin Ahmed, J. in these two cross appeals arising out of the same incident. I agree with my learned brother that Criminal Appeal No. 32 by Muhammad Ashraf against the acquittal of 11 respondents named therein, be dismissed for the reasons stated in the judgment of my learned brother. In the other appeal, while I concur that the involvement of six appellants namely Muhammad Banaras, Zafar Ali, Ghulam Murtaza, Riaz Muhammad, Fateh Muhammad and Mir 2aman (hereinafter collectively referred to as the appellants) is established beyond reasonable doubt, I regret, and say with great respect, that I cannot persuade myself to agree with my learned brother over the analysis of their criminal liability. In my humble view they are guilty ref rioting and their criminal liability is to be determined on that basis. The incident which took place on the morning of the 6th September 1968 was a sequel to a dispute relating to the possession of agricultural land and there is no background of previous enmity between the parties apart from that. It is in the evidence of Faiz Alam patwari P. W. 19 that about six months before the incident Faiz Ali (one of the acquitted accused) and his sons purchased land measuring 115 kanals 16 marlas bearing Khasra Nos. 4145, 4146, 4147, 4138 and 4159 situate in village Takht Pari, Tehsil and District Rawalpindi from one Sheikh Noor Muhammad, a displaced person and confirmed allottee of the land. Mutation was attested on 31-3-1968. Certain other facts of considerable significance to the case, appear on the record which need be stated at the outset. Copy of the entry in the Registry Haqdaran Exh. DG/3, shows that the land sold to Faiz Ali and his sons is either ghair mumkin or banjar qadim, and Sheikh Noor Muhammad was a resident of Model Town, Bahawalpur and not of village Takht Pari where the land is situate. There is nothing to indicate that Sheikh Noor Muhammad was in cultivating possession of the land either himself or through tenants. The further fact is that Faiz Ali on 27-8-1968 applied before the Tehsildar Rawalpindi, for the demarcation of the land sold to him and his sons. The application is Exh. P. G. G/3. In this application, be complained that the land sold to him is ghair mumkin and the owners of the adjoining areas have done away with its boundaries, and encroached over it. Accordingly, he requested that the girdawar be directed to demarcate the land. On the same day the Tehsildar passed an order directing the girdawar to demarcate the land and to submit the report before 4-9-1968. Pursuant to the above direction, the girdawar accompanied by patwari went to the spot on 29-8-1968 and after carrying out measurement reported that out of Khasra No. 4145, Abdul Khaliq had encroached over an area measuring 1 kanal 9 marlas which he had included in the contiguous field Khasra No. 4114 to the west in his possession. The encroachment is indicated in the accompanying map Exh. P. G. G/1 and is designated by separate No. 4145/1 marking it off from the remainder area which is shown as No. 4145/2. Before the girdawar actually carried out the measurement, Faiz Ali made a statement Exh. P. G. G/5 before him asking him to identify the land sold to him b fixing the boundary stones. Then occurs the most significant part of hi statement that if he is unable to secure possession of the land then he would take appropriate proceedings for the redress of his grievance. It is manifest from this evidence that until the actual measurement at the spot on 29-8-1968 by the girdawar, Faiz Ali had not been able to secure the possession of the land sold to him and his son. The girdawar with the help of the patwari carried out measurements at the spot, prepared Naqsha Tajawaz pointing out the area under encroachment. The report goes on to show that out of the area sold to Faiz Ali and his sons, some part of Khasra No. 4159 had also been occupied by Mansabdar deceased. There are two opposing versions of the incident. The prosecution case briefly was that on the morning of 6-9-1968 Sabir Hussain and Mansabdar (two of the deceased persons) accompanied by lqbal Hussain P. W., 14, Muhammad Siddiq and Masood (not produced) had gone to the spot to help Abdul Khaliq deceased plough his land in Khasra No. 5114 in which he had included a strip of land measuring 1 kanal 9 marlas forming part of Khasra No. 4145 sold to Faiz Ali and his sons. Asghar Ali and Mazhar Ali (acquitted accused) who were ploughing the adjoining field stopped ploughing and went towards their house but returned shortly thereafter with the other accused in the case numbering 18 in all, who, with the exception of Faiz Ali who was empty-handed, were variously armed. Faiz Ali asked Abdul Khaliq to stop ploughing but the latter replied that the land being ploughed was in his possession and nobody can stop him from ploughing it. The accused then attacked Abdul Khaliq and his companions resulting in the death of Abdul Khaliq, Sabir Hussain and Mansabdar and injuries to Iqbal Hussain, Mst. Resham Jan, Ali Akbar P. Ws. and Muhammad Siddiq and Nemat Khan (not produced). The defence version on the other hand was that Asghar Ali and Mazhar Ali were ploughing apparently Khasra No. 4145 when about 50 to 60 armed persons attacked them from three sides and started firing on them. They, however, escaped towards the Kassi though, however, Asghar Ali received two injuries one of which was a round wound on the inner side of the left forearm and the other was abrasion mark 1" x " just proximal to the first injury. The first injury was kept under observation and later found grievous. The remaining 17 accused including the appellants pleaded alibi. According to the defence version the three deceased died due to indiscriminate firing by 50 to 60 persons who came to attack Asghar Ali and Mazhar Ali. No evidence was produced in support of this version. The learned trial Judge accepted the prosecution version, though he excluded from his consideration the evidence of Muhammad Ashraf P. W. 13 and evidence relating to the matching of empties with the guns recovered. As to the defence version the trial judge observed in paragraph 20 of his judgment as follows:- "The theory put forward by Asghar Ali and Mazhar Ali accused giving a counter-version about the incident is not at all convincing. It is unbelievable that about fifty or sixty persons came armed with various weapons to attack these two accused, but without causing any damage to them, themselves suffered a heavy loss. The defence has tried to make a capital out of the injuries found on the person of Asghar Ali accused. It is true that the prosecution witness have not explained these injuries, but the circumstances show that these were self-suffered in order to create a defence." The learned trial Judge also addressed himself to the plea of private defence of property but rejected it with the following observations:- "It is true that some land of Haji Faiz Ali was found to be under the unauthorized possession of Abdul Khaliq deceased, after demarcation but the only remedy available to Haji Faiz Ali accused to get possession of this land was to proceed against him in accordance with law. Since he had taken the law in his own hand and collected a large number of his relatives to forcibly dispossess Abdul Kaliq deceased from this land, it cannot be said that the benefit of any exception provided in the Penal Code is available to them. In acquitting the 11 respondents in Appeal No. 32. the High Court, merely gave them benefit of doubt because the eye-witnesses had tended to exaggerate number of the accused. However, it is important to point out that the prosecution version as such was not disbelieved by the High Court. As to whether because of the two injuries suffered by Asghar Ali regarding which no explanation was forthcoming from the prosecution side any plea of self-defence will avail to the six appellants, it was pointed out by this Court in Ali Zaman v. The State (1963 P S C R 47): " .. that in the absence of proof of aggression by the other side the plea of self-defence is not available, and cannot ordinarily be thought to be established by the mere existence of slight injuries on the person of the accused" Similarly, in Ibrahim and others v. The State (1961 P S C R 103) this Court observed:- " . the disproportion between the injuries received by the accused which indicated a short attack delivered with no great force and the injuries caused to the deceased and their companions that case proved that the attack on the deceased and their companions was sustained and carried out with great determination and without regard to the consequences." In these circumstances the plea of self-defence in both cases was negatived. In the 1961 case the appellants were initially given a beating and in the course of same fight caused the death of one, a serious injury on the head of another and a very large number of injuries to a third by way of retaliation. The trial Judge in that case found that the accused had the right of self-defence which they had exceeded and therefore found them guilty under section 304, Part II. On appeal to the High Court, the accused were held guilty of offence under section 302/34, P. P. C. and the judgment .of the High Court was upheld by this Court on appeal by the accused on the basis of the above dictum. In the instant case as against the two injuries, described above caused to Asghar Ali (the acquitted accused) Abdul Khaliq, Mansabdar and Sabir Hussain deceased respectively had 5, 5 and 4 injuries on their persons of which 9 were caused by firearms. Similarly, Iqbal Hussain the first informant suffered three injuries including one by fire-arm. Muhammad Siddiq had 8 injuries of which 5 were incised wounds and two by firearm. Mst. Zeenat Bibi and Rasham Jan respectively suffered one and three injuries on their persons. This marked disproportion between the injuries suffered on the side of the prosecution and the two injuries to one of the accused, would in my view at once attract the principle laid down in the above two precedent cases noticed above. Therefore, a plea of self-defence is not available to the appellants and a fortiori, there is no question of their exceeding right of self-defence. It yet remains to be seen whether in the circumstances of the case any right of. private defence of property was available to the appellants in which case alone the effect of exceeding that right shall fall for consideration. Section 97, Pakistan Penal Code, recognises the "right" to defend inter alia the property whether movable or immovable, of himself or of any other person against any act which is an offence falling under the definition of theft . . . . . or criminal trespass or which is an attempt to commit theft . . . . . or criminal trespass". The expression "criminal trespass" has been defined in section 441 of the Code. But in section 97, the expression appears to have been used in contradiction with civil trespass, and on the facts of the case, referred to in the beginning, there can be no manner o doubt that encroachment by Abdul Khaliq over the strip of land measuring kanal 9 marlas forming part of Khasra No. 4145 was civil trespass. Until 29-8-1968 when the girdawar carried out measurement to demarcate the boundaries of the land including Khasra No. 4145, this area of 1 kanal 9 marlas remained in "settled" possession of Abdul Khaliq. It was precisely for that reason that the area under encroachment was given a separate number 4145/1 in the Aks Shajra to mark it off from the remainder area which was numbered as 4145/2. There is nothing whatever to show that Abdul Khaliq had, at any time between the carrying out of measurement and the incident on 6-9-1968, surrendered the possession of this area to Faiz Ali. According to the report of girdawar Abdul Khaliq was not present at the time of measurement. Nothing, in my opinion, turns on the stray remark in the statement of Faiz Talab Khan patwari that Abdul Khaliq was not in possession of land, for according to the entry in Register Haqdaran relating to the, year 1966-67 Exh. DG/l, Abdul Khaliq deceased was shown in hissadari qabza of Khasra No. 4114 through his tenant Muhammad Zaman. This Khasra No. as pointed out already borders on Khasra No. 4145, a part of which was found to be in occupation of Abdul Khaliq purporting to be a part of adjoining Khasra No. 4114. Therefore, I am satisfied that Abdul Khaliq until the happening of the incident remained in peaceful thong unlawful occupation of 1 kanal 9 marlas. It is well established proposition that section 97, P. P. U. gives we right to a person to maintain his existing peaceful possession of property even by use of force, if necessary, regardless of the question whether or not he had the lawful right to possess. In other words the object of the section is not to protect title, but to maintain peace by protecting peaceful possession irrespective of title. This principle was brought out with succinctly in a recent judgment of this Court in Sardarai and another v. The State (P L D1970 S C 212) in which after a review of a number of cases the following propositions relevant to the instant case were laid down:-- (i) The possession of a party in possession of a property should not be disturbed unless he is evicted by due process of law. (ii) .. (iii) If a trespasser is in. settled possession of the land which means that he has been in possession of the property for a pretty long time without resistance he is entitled to defend his possession even against the rightful owner and he can be evicted only in due course of law. (iv) . These propositions are apt to this case. The site plan Exh: P. F. F. prepared by the patwari also shows that the incident took place in Khasra No. 4114 which as pointed out already included a part of Khasra No. 4145. Khasra No. 4114 as found by the Investigating Officer and the patwari to have been freshly ploughed. Of the 10 empties recovered; as many as 9 were actually found lying in the area of Khasra No. 4114 and the 10th was found just across the border line. Chakka and the blood-stained whip Exhs. P/6 and P/7 were also found lying in Khasra No. 4114. These circumstances inevitably lead to the conclusion that Abdul Khaliq deceased and his companions were attacked in Khasra No. 4114 when they were ploughing it. This should at once preclude any claim by the appellants of private defence of property. A fortiori, the appellants were members of unlawful assembly and their conviction under sections 302, 307 read with section 149, P. P. C. was rightly maintained by the High Court, besides their conviction for certain other lesser offences. The question of appropriate sentence has also exercised my mind. On the one hand there can be no doubt that the appellants and certain others who were given benefit of doubt had mounted a determined attack on Abdul Khaliq and his companions killing three of them. The fact nevertheless remains that the genesis of the trouble was unlawful occupation by Abdul Khaliq and Mansabdar deceased of certain portions of land purchased by Faiz Ali and his sons. There is also the fact that Faiz Ali had before the incident approached the police and then the Tehsildar in an effort to secure possession of the land by getting unlawful occupation of Abdul Khaliq and mansabdar vacated through the help of police and revenue authorities. It is a pity that after demarcation by the girdawar, Faiz Ali did not pursue the matter to its logical conclusion by filing a suit for the possession of the area under encroachment, in the civil Court. Conversely,) there was also certain amount of intransigence on the part of Abdul Khaliq to cling to the area under the encroachment even after the demarcation by the girdawar. These, in my opinion, are mitigating circumstances to justify lesser sentence for offences under section 302/149, P. P. C. But again the case of the first four appellants namely Zafar Ali, Muhammad Banaras, Ghulam Murtaza and Riaz Muhammad who were armed with guns Which they used effectively in the course of incident must be distinguished from the other two appellants who were armed with stick Therefore, while maintaining the conviction of all the six appellants named above to 302/149, I would sentence the first four appellants named above to transportation for life and a fine of Rs. 3,000 each, or in default to a further rigorous imprisonment of three years each. Fine if recovered shall be divided in three equal shares and paid to the heirs of each of the three deceased pro rata. But for the above modification, the judgment of the High Court is otherwise maintained and the Appeal No. 33 is dismissed. In accordance with the unanimous opinion of the Court Criminal Appeal No. 32 of 1973 is dismissed. In accordance with the opinion of the majority Criminal Appeal No. 33 is dismissed subject to the following modifications:- The convictions and sentences of all the six appellants under section 148 and 302/149, P. P. C. are maintained but the sentences of the first four appellants, namely, War Ali, Muhammad Banaras, Ghulam Murtaza and Riaz Muhammad, are reduced to transportation for life and a fine of Rs. 3,000 each or in default, further rigorous imprisonment for 3 years each. Fine, if recovered, shall be divided in three equal shares and paid to the heirs of each of the three deceased pro rata. S. A. H. Orders accordingly.