1990SCMR491 (PLP)

‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Two parallel theories adopted by parties‑‑‑Both parties claimed possession over land ‑‑‑Patwari Halqa favoured possession of accused party and as such complainant party was to be held to have committed trespass on coming to land in possession of accused‑‑ Leave to appeal granted to consider whether it was a case under S.304, Part 1, P.P.C. and whether accused had not exceeded their right of private defence and defence of property only. Muhammad Munir Peracha, Advocate Supreme Court and Manzoor Ilahi, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 25th June, 1989. S. USMAN ALI SHAH, J.‑‑Abdul Qadeer petitioner alongwith his brother Abdul Hakim were tried by the Additional Sessions Judge, Attock, for the murders of Mian Muhammad and Muhammad Refhan and for causing murderous assault on the lives of Muhammad Yousaf and Sajid Mehmood. They were charged under section 302/307/34, P.P.C. but at the conclusion of their trial the learned trial Judge acquitted Abdul Hakim from the charges against him and convicted Abdul Qadeer petitioner under section 302, P.P.C. for causing twin murders of the both deceased, sentenced him to death on each count with fine of Rs.10,000 on each count or in default of payment to suffer further R.I. for 1 year. The petitioner was further convicted under section 307, P.P.C. for making murderous assault on the life of Muhammad Yousaf and sentenced him to five years' R.I. and fine of Rs.5,000 and in default to undergo further six months' R.I. In appeal before the High Court, the conviction of the petitioner was maintained but his death sentence was reduced to imprisonment for life, vide impugned judgment. Hence this petition for leave to appeal. After having heard the learned counsel in support of this petition and having gone through the record of the case, we have observed that there are two parallel theories adopted by the parties. The question of possession over Khasra No.2152 is claimed by both the parties. The complainant party claimed ownership in possession of the land measuring 2 kanals 11 marlas in the said Khasra and at the time of occurrence they were levelling their land and making `kiyaris' while the other side i.e. the accused party claimed possession of Khasra No.2152 and were busy in making `bannas' of the field when the complainant party came to take forcible possession by ploughing over it. The Patwari Halqa favoured the possession of the petitioner's party as such the complainant party are to be held to have committed trespass on coming to the land in possession of the petitioner. Under the circumstances we grant leave to appeal to see whether it was a case under section 304, Part I, P.P.C., and whether they have not exceeded their right of private defence and defence of property only. M.A.K./A‑605/S Leave granted.