WARYAM Versus THE STATE

Waryam aged 70, his two sons Sarwar and Muhammad Ali, his brother's son Yasin, his collateral Haqnawaz and his sister's husband, Rajab Ali were ‑tried for the murder of Sulaiman, a young man of about eighteen years of age, in Chak No. 545/G. B. Police Station Garb, District Lyallpur. Waryam, his two sons Sarwar and Muhammad Ali, and Yasin his nephew have been .convicted under section 302/34, P. P. C. and sentenced to transportation for life each. Their two co‑accused Haqnawaz and Rajab Ali were acquitted.

2. The occurrence took place on 3rd of November 1968, at about sunset at Chah Shahmandwala, Dakhli village Jalli Tehrana, Police Station diarh, District Lyallpur. The parties descend from the same common ancestor and own land in village Jalli Tehrana in the District of Lyallpur as well as in Chaukbandi in the District of Sahiwal Warvam and his son Sarwar have taken their residence at Chaukhandi where they look after their land while Muhammad Ali and Yasin are said to have cultivated their land at Chah Shahmandwala in village Jalli Tehrana.

The complainant party in this case are descendants of Ahmad while the accused are the descendants of Shahmand Both of them were brothers. They had another brother by the name of Hamad, whose descendants Haitam etc. have their permanent residence in village Chaukhandi, but they owned Killas Nos. 7/1, 7/2, 8 to 13 and 18 to 22 in Square No. 26 and Killa No. 6/1 in square No. 27 at Chah Shahmandwala. Haitam, his mother and his two sisters exchanged their land at Chah Shahmandwala with Qasim and Hasan in .exchange for their land situated in village Chaukhandi vide mutation No. 43 Exh. P. X. sanctioned on 26th of August 1968. The complainant party claim that after this mutation was sanctioned, they took possession of the property and started living in the Ihata in Killa No. 7/1 of square No. 26. The accused party also own 12 Killas of land on this well.

3. The venue of the crime in this case is Killa No. 7/1 which is an Ihata measuring 7 kanals 18 marlas and has been entered in the revenue papers as "Ghair Mumkin Abadi".

4. Each party in this case lost the life of one man. While Khan, a member of the accused party on the showing of the prosecution evidence met his death at the hands of Sulaiman deceased, the latter is said to have been fired at by Yasin and thus met his death. In this incident, besides the loss .of the life of Sulaiman, two other persons, Qasim and Nasir Ahmad received pellet injuries. A bullock is also said to have received a pellets injury.

5. The prosecution story, as narrated in the Court, is that the com plainant party were already in possession of this Ihata and that on the. evening of the incident, they had come in a gadda with two quilts, a charpoy and a bag of wheat to dump the same in a room. The gadda was driven by Hamad (P. W. 19) a servant of Qasim P. W. The other persons present in the gadda were Qasim (P. W. 16), Hasan, Ghulam, Waryam, Nasir (P. W. 18) and Sulaiman deceased. The prosecution asserted that Sulaiman was already occupying a kotha in this Ihata and he and Qasim P. W. intended to stay on in the Ihata to supervise cultivation. When the members of the complainant party were near the Ihata, they saw the appellants and their co‑accused entering the Ihata from the eastern side. Khan deceased demanded why the members of the complainant party had come there and objected to their presence. Qasim P. W. said that it was their own land and they had a right to place their goods there. Waryam appellant thereupon raised a lalkara and Khan deceased'fired from his gun which hit Nasir P. W. on the foot. Suliaman deceased thereafter gave a blow, with a phawra (a wooden spade) on the head of Khan. Khan retreated but be was pursued by Sulaiman and given a number of phawra blows. Khan fell dead in front of the kotha which according to the complainant party, was occupied by Sulaiman. Sarwar fired a gun by which a bullock was bit. When Sulaiman was returning, Waryam again raised a lalkara that he was returning after killing Khan. He asked Yasin to fire, Yasin thereupon fired on Sulaiman who received injuries on the lower part of his neck and upper part of his. chest. Sulaiman fell down and the accused made good their escape. Qasim received a pellet injury on his eye‑brow. He claims to have sent one Ghulam to lodge a report in the Police Station.

6. It appears from the record that F. I. R. No. 128 was lodged by Mohammad Ali appellant 9n respect of the same incident against nine persons including the three eye‑witnesses. The Sub‑Inspector came to the spot and it was then that he recorded F. I. R. Exh. P. H. in this case which is based on the statement of Qasim P. W. The two cross‑cases went to Court with the result described above.

7. At the trial, Qasim (P. W. 16) an uncle of the deceased, Nasir (P. W. 18) a brother of the deceased and Hamad (P. W. 19) who is described. as a servant of Qasim, appeared as eye‑witnesses. They claimed that they were already in possession of Ihata where the occurrence took place and Sulaiman deceased who was son of Hasan, a brother of Qasim, was already residing there.

8. The stand taken by the accused was that they and their predecessors- in‑interest had been in possession of the land in dispute for about sixty years. as a result of a private partition and on the day of the occurrence Sulaiman deceased and other members of the complainant party had come to the Ihata which is the venue of the crime to dispossess them forcibly. It was. their case that Khan deceased on their side was attacked by Sulaiman deceased and other members of the complainant party and he fired in self defence as a result of which Sulaiman met his death. Muhammad Ali, appellant further said that he bad lodged an F. I. R. against Waryam, Qasim, Gul Muhammad, Ata Muhammad and Haitam under section 307. P. P. C. on 20th of April 1968, for making a murderous assault on his brother Yasin. He said that it was due to the old background of enmity that the witnesses had appeared against the accused. The accused also brought on record copies of Dhal Bach Exhs. D. D. and D. E. and Khasra Girdawris of the Canal Patwari Exhs. E. J. to D. M. The Dhal Bach indi cates that some of the accused were assessed to land revenue. The particulars of the land that they occupied is not mentioned there. In the Khasra prepared by the Canal Patwari, Muhammad son of Waryam and his brother Yasin are shown to be cultivating a part of the disputed land in square No. 26.

9. The learned trial Court after analysing the evidence came to the conclusion that the possession of the disputed land had all along been that of the complainant party and the assertion of the accused that they had become the owners of the disputed land, as a result of a private partition effected about sixty years ago, was unfounded. It did not choose to rely on the Dhal Bach and the Khasra of the Canal Patwari produced by the accused to show their possession of the land.

The learned trial Judge also came to the conclusion that the accused were armed with more than one gun because in his view the alleged shot fired by Khan, even if it had hit Sulaiman, could not have hit the deceased, Nasir, and the bullock at one and the same time. He in this connection took note of the fact that the level of the injury on Sulaiman deceased was higher than those on the foot of the deceased and the leg of the bullock.

10. According to the statement of Nazir Ahmad Patwari (P. W. 13) there are six kothas and a mosque in Khasra No. 7/1. We find from the entries in Khasra Girdawaris Exh. P. E. which starts from October 1965 and finishes on the 1st of March 1968, that while Khasra No. 7/1 is Ghair Mumkin Abadi, Khasra No. 7/2 is the Ghair Mumkin tubewell Waryamwala. In Khasra Girdawari dated 24th of October 1968 (Exh. P. D.) the same entry finds mention with regard to Khasra Nos. 7/1 and 7/2 but the word "Waryam wala" against Khasra No. 7/2 is omitted. It was, however, admitted by Nazir Ahmad Patwari before the committing Magistrate that the aforesaid tubewell has been installed by Waryam accused. In the F. I. R. the first informant had stated that all the accused were present in the Ihata when the complainant party came there with a gadda. The other eye‑witnesses had also made similar statements before the police. At the trial, however, they said that the accused entered from another passage into the Ihata in their presence although Nasir (P. W. 18) said that the passage was on the eastern side and Hamad (P. W. 19) said that it was on the southern side of the Ihata.

11. It is established from the revenue records filed by the prosecution themselves that the tubewell by the name of "Waryamwala" had been installed in Killa No. 7/2 at least in 1965 or even before. Qasim P. W. stated at the trial that when they took possession of the Ihata there was only one kocha, three jhuggis and a mosque. On the other hand, the Patwari said that there were six kothas, two of which at points Nos. 7 and 8 in Exh. P. C/1, were reported to be in occupation of Farid, a prosecution witness in the counter case and Yasin appellant. It also appears from this plan that three of the residential kothas were occupied by Ahmad son of Nizam Faqir, Muhammad Yusaf son of Mahmood Faqir and Ghulam son of Bahawal. The Sub‑Inspector also supported the statement of the Patwari that one kotha was occupied by Yasin appellant and another by Farid aforementioned. He had stated before the committing Magistrate that one of the rooms contained the articles belonging to Yasin appellant. The Investigating Officer made a further significant admission to the effect that when he went to the spot he did not take into possession any quilt, bag of wheat or the cot which the complainant party claim ‑to have brought to the Ihata. The Investigating Officer said that he recorded the statement of Qasim Exh. P. H. at 2‑45 a m. and soon thereafter prepared the inquest report. The brief statement of facts in the inquest report, however, runs completely counter to the version contained in the F.

1. R. It, on the other hand, shows that the accused party were in possession of the disputed Ihata when the complainant party came and tried to dispossess them forcibly.

12. The circumstances of the case, therefore, indicate that the claim of the accused party that they were in possession of Ihata in dispute is not without substance. Their possession of Killa No. 7/2 is established since October, 1965. The admissions made by the Patwari and the S. I. indicate that Yasin appellant and his relative Farid were occupying two of the kothas while the other kothas were occupied by some persons other than the members of the complainant party. The fact that the articles alleged to have been brought by the complainant party to the Ibata were not shown to the Investigating Officer further indicates that the story that the deceased and his companions had gone to the Ihata 'with the innocent purpose of dumping their luggage is not correct.

13. Initially, the case of the prosecution was that the accused were in possession of the Ihata when the complainant party went there. They, however, charged the story at the trial and said that the accused had trespassed into the Ihata in their presence from another door. They further said that the sole assailant of Khan who died on the side of the accused was Sulaiman deceased, although their case before the police was that after Sulaiman had given a phawra blow to Khan deceased, the other members of the complainant party had also given him dang blows. This story was changed at the trial perhaps in order to deprive the accused of a possible plea of self‑defence.

The learned trial Judge found that this was an insignificant improvement. I do not agree. The prosecution became wiser and changed the story in order to show that the accused were not in possession of the disputed Ihata. I also find that the whole truth has not been told by the prosecution witnesses. Rajab the acquitted accused admittedly got injuries which remained unexplained. This shows that the complainant party in addition to causing the death of Khan had also injured Rajah.

14. In the F. I. R. it was stated that Sarwar's fire had not hit anybody, but at the trial in order to aggravate the part played by Sarwar, Qasim (P. W. 16) stated that the bullock was injured by the shot fired by Sarwar. Nasir (P. W. 18) however stated that the shot fired by Sarwar did not hit anybody and that the bullock and Qasim P. W. were hit by the shot fired by Muhammad Ali.

15. There is another factor which remained unnoticed by the trial Court. Sarwar appellant had lodged an F. I. R. under sections 148, 307/149, P. P. C. on 20th of April, 1968, in Police Station Nur Shah, District Sahiwal against Qasim P. W., his nephews Gul Muhammad and Ata Muhammad sons of Hasan and Haitam. It is not known how far this case proceeded, but we find from the karwai police that a copy of the F. I. R. was sent to the A. S. I. Taj Muhammad for purposes of investigation. Qasim when questioned, dented the registration of this case. It is not possible that he was unaware of the case registered against him and his relatives. There was, therefore, some background of hostility between the parties. The learned trial Court did not at all advert to this fact although Sarwar accused had specifically mentioned it in his statement and the copy of the F. I. R. was brought on record as Exh. D. H. In the circumstances, the trial Court, before convicting and sentencing the appellants, should have sought for some corroboration.

16. The recoveries of gun from Yasin appellant and sota from Rajab, the acquitted accused, have not been relied upon by the learned trial Court. There are indications on the record that two members of the accused party were in occupation of two kothas in the disputed lhata. It is not shown that they had trespassed into the Ihata temporarily a few days before the occurrence. The Investigating Officer frankly conceded that during investiga tion he did not come to any conclusion as to which party was in possession. The accused had installed a tubewell in Killa No. 7/2 since a number of years and the assumption that they also occupied at least a part of Khasra No. 7/1 since a considerably long time, has some factual foundation. The parties are related to each other and the possession of the accused party should have been known to the owners of the lhata. It can, therefore, be presumed that the owners had acquiesced in their possession. The only course left to the complainant party under the circumstances of the case was to have recourse to law for the ouster of unauthorised occupants.

17. The claim of Qasim P. W. that Sulaiman deceased was putting up in the Ihata after the possession was transferred to them is not borne out from the plan of the spot or the statements made by the Patwari or the Investigating Officer. Qasim claimed that one Ghulam was their tenant and was residing in the same Ihata. It appears from the plan that Ghulam son of Bahawal Faqir and two other persons, namely, Ahmad and Yusaf were also occupying a room each in this Ihata. It is not known on whose behalf they were in possession. The Investigating Officer does not appear to have examined them. The occupation of the accused party had the semblance of settled possession. The question of title is quite apart from the question of possession. Where possession is with one party and the title with the other, the person in settled possession has the right to repel aggression. A casual act of possession would not have the effect of interrupting possession of the rightful owner but where there are indications that a person who has no title to a particular property had been in its settled possession for a long time, the law gives him a right to protect his possession by use of necessary force. The question whether he had or had not the right of possession is immaterial. In Muhammad Khan and others v. The Crown A I R 1949 Lah. 128 a Division Bench of the Lahore High Court observed as under:‑

"Where it is a question of right of self‑defence of property (a field), it must be shown that the person claiming such a right was in settled possession of the field. Where such a person had no title to the field, and had been evicted in due course of law, if he takes possession of it, the possession would be the possession of a pure trespasser. No one, including the true owner, has a right to dispossess the trespasser by force, if the trespasser is in settled possession of the land, and in such a case unless he is evicted in due course of law, he is entitled to defend his possession, even against the rightful owner. The possession which a trespasser is entitled to defend against a rightful owner must be a settled possession extending over a sufficient long period and acquiesced in by the true owner."

It appears to me that the complainant party had come to the Ihata in order to dispossess the accused and in the fight that ensued each party lost one man. It cannot be said as to which party started the fight.

18. In view of the fact that a case had been registered at the instance of Sarwar against Qasim and his relatives, it cannot be said that the evidence is disinterested. No corroboration is forthcoming regarding the participation of each one of the accused in the commission of the offence. Waryam and Sarwar were declared innocent by the police and it is admitted by the members of the complainant party that they resided at village Chaukhandi in the District of Sahiwal. Waryam is an old man of 70 years and was attributed a Lalkara whereas Sarwar was accused of ineffective firing for which there is no corroboration.

19. Another thing may not be left unnoticed. According to the Investigating Officer he prepared the inquest report soon after recording the statement of Qasim Exh. P. E. It has been mentioned above that the inquest report contained a version quite contrary to the F.

1. R. If the F.

1. R: had been drawn earlier than the inquest report, the latter document should have been in conformity with the former. This is not so. Qasim stated before the committing Magistrate that his statement was recorded at 12 p.m. at the tube‑well. This appears to be true. This admission further proves that there was no counter‑version before the Investigating Officer when the inquest report was prepared and the statement of Qasim was made at mid‑day after deliberation and consultation.

20. For all these reasons I fill that the prosecution story cannot be implicitly relied upon. I, therefore, give the benefit of doubt to all the appellants and acquit them. Waryam is on bail. He shall stand discharged from his bail bonds. Others shall be set at liberty unless they are lawfully required to be detained in some other case.

K. B. A. Appeal accepted.