P (PLP)

ABDUL AZIZ, C. J.‑Two persons Qadir Bakhsh and Amir Bakhsh were tried under section 302/34, Indian Penal Code, for having committed the murder of two brothers Ata Muhammad and Ghulam Muhammad, sons of Amir Khan on 15th of July 1949. Amir Bakhsh was acquitted but Qadir Bakhsh .was sen tenced to death. The appeal of Qadir Bakhsh is before this Court against his conviction and sentence. The story of the prosecution briefly is that in the afternoon of 15th of July 1949 a few goats belonging to the accused trespassed into a field owned by Asmatullah Khan P. W. 1 and leased to Zar Ali Khan. ~ The deceased being the private servants of Asmatullah Khan rounded up the goats with intent to take them to cattle -pound. The goats escaped and joined the rest of the flock. The deceased again chased them to seize. The accused resisted the action of the deceased with the result that the fight took place among the parties and the deceased received kulhari blows on their heads 'which caused their death. The accused Qadir Bakhsh also received some injuries as appears from the statement of injuries prepared by the Sub‑Inspector on the same day. See Exhibit PQ. The occurrence was seen by Ghulam Rasool P. W.

3. Nasrullah Jan P. W. 4 and Mst. Ghulam Maryam P. W.

2. Ghulam Rasool P: W. 3 went to his master Muhammad Asmat ullah Khan leaving Nasrullah Jan on the spot with the dead bodies. Ismatullah Khan made the First Information Report Exhibit PA to Khaliq Dad Khan, Sub‑Inspector P. W.13 who proceeded to the scene of occurrence, prepared the necessary state ments of injuries and the inquest reports and sent the dead bodies for post‑mortem examination and they were examined on 16th of July 1949. In the opinion of the Doctor the death in both cases was due to head injuries as a result of which the skull bones were, cut, the brain substance was also out. It is also alleged that the weapons of offence, i.e. kulharies were recovered on 16th and 17th of July 1949. Amir Bakhsh is said to have produced his own kulhari Exhibit. P2, while Exhibit P1 kulhari of Qadir Bakhsh was produced by his brother Bachoo. The accused had not pleaded guilty. The learned Sessions judge disbelieved Ghulam Rasool and Nasrullah Jan P. Ws. and de pending on the evidence of Mst. Ghulam Maryam coupled with the statement of Qadir Bakhsh recorded his conviction and acquitted Amir Bakhsh. Malik Karam Ezad who had argued the appeal on behalf of his client had contended that the state ment of Mst. Ghulam Maryam which was believed by the learned Sessions judge was equally unreliable; because it was full of discrepancies and she had made contradictory statement before the police, Committing Magistrate and the Sessions Judge. His further contention was that lust. Ghulam Maryam was under the influence of a big landlord whose servants were killed, consequently she could not be treated as a dependable witness. The finding of the learned Sessions judge as regards the incredibility of the two witnesses P. W. 3 and P. W. 4 has not been challenged by the prosecution. Out of these so‑called eye‑witness the evidence of Ghulam Maryam is alone left. I would not think it very necessary to discuss her evidence at length at the present stage as I am of opinion that Qadir Bakhsh has himself admitted that he has caused the death of these men but in the exercise of his private defence. The learned counsel for the appellant leaving his first stand that the evidence of Mst. Ghulam Maryam could not be believed, consequently there was no case against his client had to support the plea of his client of the exercise of the private defence to protect his person and property. ‑ The only question consequently for determination in this appeal is whether the appellant had according to the facts of the case right of private defence and in the exercise of his right to pro tect his person and property, he was justified to commit murders. In order to decide this question, it is to be seen as was contended by the learned counsel for the appellant whether the deceased were legally competent to seize the goats that had trespassed into the Jowar field, though belonging to Asmatullah Khan but under the cultivation of Zar Ali. Section 10 of Cattle Trespass Act reads as below:

"The cultivator or occupier of any land, or any person who has advanced cash for‑ the cultivation of "the crop or produce on any land, or the vendee or mortgagee of such crop or produce or any part thereof, may seize or cause to be seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce thereon, and (send them or. cause them to be sent within twenty four hours) to the pound established for the village in which the land is situate. It is clear from the language of the section that it deals with the impounding of cattle trespassing on the land of another and doing damage thereto or any crop or pro perty thereon. It is not anybody that can seize such cattle:" The persons empowered to seize the cattle are : (1) the cultivator of the land; (2) the occupier; (3) any person who has advanced cash for the cultivation of the crop or produce; (4) the vendee of such crop or produce; and (5) the mortgagee of the crop or produce on the land. The owner of the crop unless he is an occupier as well, does; not come within the ambit of this section and any person who acts on his behalf is not competent to effect seizure under section 10 of the Cattle Tresspass Act. This conclusion is sup ported by 9 Calcutta Weekly Notes 624 (Ram Karan Thakur and others v. Emperor). In that case an Indigo Factory supplied to the Rayats the seed and paid for the labour of sowing Indigo on the land of the Rayats but no advance in cash was proved to have been made by the Factory. It was held that the Factory may have an interest in the crops grown but it has not an interest which comes with section 10 of the Cattle Trespass Act and the seizure of the buffaloes of Rayat damaging the crop by a peon of the Factory was not a seizure by any person authorised to make it. It was so held because Factory was neither the cultivator nor the occupier of the land. In 50 I. C. 1006 the land was let out by the owner on a, Barga lease. It was held, that under section 10 of the Cattle Trespass Act the lessor had no right to seize the cattle trespass ing on the land, unless it was shown that Bargadar was a mere servant of the so‑called lessor, who continued to be the occupier of the land within the meaning of the section. It is the case of the prosecution here that the land in which the trespass took place was leased to Zar Ali' by Ismatullah Khan. Ismatullah Khan himself had admitted in the First Information Report that his entire land in the village was leased. He was, therefore, neither the cultivator of the land nor its occupier. He had no right, therefore, to seize the cattle which had trespassed into the land which was under the occupation and the cultivation of Zar Ali. If he himself was unauthorised to make seizure of the cattle his servants could not derive right from their master which was not possessed by him. It is, therefore, clear that the action of the deceased was illegal. The next question is whether in those circumstances the accused had right of private defence or not to protect his person and property. Section 97 of the Indian Penal Code relates to right of private defence of the body and the property. It reads;

Every person has a right, subject to the restrictions contained in section 99, to defend‑

First.‑His own body, and the body of any other person against any offence affecting the human body; Secondary.‑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, robbery, mischief or criminal trespass or which is an attempt to commit theft, rob bery, mischief or criminal trespass. Section 99 of the Penal Code is to be read along with it. It reads :--`There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant, acting in good faith under colour of his office though that direction may not be strictly justifiable by law. There is no right of private defence in case in which there is time to have recourse to the protection of the public authorities. In right of private defence, no case extends to the inflict ing of more harm than it is necessary to inflict for the purpose of defence. Explanation 1.‑A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant. Explanation 2.‑A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless be knows, or has reason to believe that the person doing the act is acting by such direction or unless such person states the authority under which he acts, or if lie has authority in writing, unless he produces such authority, if demanded. Section 100 may also be read along with it:‑ "The right of private defence of the body ex tends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:‑ First.‑Such an assault as may reasonably cause the appre hension that death will otherwise be the consequence of such assault; Secondly.‑Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault: Thirdly.‑An assault with the intention of committing rape; Fourthly.‑An assault with the intention of satisfying unnatu ral lust; Fifthly.‑‑An assault with the intention of kidnapping or abducting; Sixthly.‑An assault with the intention of wrongfully confin ing a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Section 97 lays down a general proposition relating to the right of private defence of the body and the property. Sections 99 and 100 lay down the limits under which such a right can be exercised. If the person exercising the right of private defence exceeds those limits he commits an offence. According to section 97, therefore, right of private defence of the body accrues against any office affecting the human body while against the property whether movable and immovable when any of the offence enumerated in the section is committed or is attempted to be committed. The question to be considered therefore, is whether the act of the deceased did amount to any of the offences enumerated in section 97 of the Penal Code. In 1946 N. 221 it, was held that where a person legally seizes cattle belonging to another with a view to impound them he commits theft though he has no intention of causing wrongful gain to himself. The same view was adopted in 1943

280. It was held by Ghulam Hussain, J." where an owner of cattle uses force to get his cattle, which are wrongfully taken to pound, released he is not guilty of any offence as he has a right to protect his cattle in the exercise of the right of private defence 1947 Lah. 355 was relied upon. Two facts therefore are clear; firstly, that the seizure of the goats by the deceased was illegal and secondly, that the accused was competent to use force to rescue his goats. Section 97 therefore does come into play to help the accused. The question for consideration remains whether the right of private defence was exercised within the limits prescribed in sec tion 99 and 100 of the Penal Code. In order to determine this position I have to revert to the evidence on this point. The main contention of the Crown counsel was that the deceased were unarmed and there was no apprehension of any danger to the accused's body. But there was no reply on the part of the learned counsel to the fact that the accused under section 97 of the Penal Code had got inherent right to rescue his goats when they were being seized illegally. I am not prepared to accept the first con tention of the learned counsel. I should not refer to the evidence of the two eye‑witness who were treated by the learned Sessions Judge as unreliable. I am unable to attach any importance to the statement of Mst. Ghulam Maryam because her statement is con tradictory. I have therefore to find out from the other material on the file whether the accused had got the right to protect his body. The evidence on the file shows that Qadir Bakhsh appel lant appeared before the Sub‑Inspector without any delay. The statement of injuries Exhibit PQ prepared by the Sub‑Inspector refers to 3 injuries on his body. The medical examination shows that the accused had an incised wound on the palm of his left hand. This wound leaves no doubt for me to conclude that it was caused by some sharp‑edged weapon, because I have no ground to reject the view of the medical witness who had clearly stated that it was caused by a sharp‑edged weapon. The question is whether it was caused during the fight or after the fight and was self‑inflicted. The doctor does not say that it was self inflicted. According to the doctor, the duration of the injury takes us to the time when the fight took place among the two parties. It is in the evidence of Mst. Ghulam Maryam that the fight did take place between the parties. If it is not proved that the wound was self-inflicted and it is proved that the accused bad approached the police without any delay and it is also proved that there was fight between the parties, then it would be unjust to hold that the injury was not caused to the accused at the time of the occurrence. If this be the conclusion then it is evident that the assailant of the accused was armed with a sharp‑edged weapon. This is further clear from the prosecution evidence itself as the accused gave fatal blows to the deceased one after the other the deceased could not inflict any wound to the deceased at that time. Evidently the accused received the injury by a sharp‑edged weapon from the deceased before he attacked them. This fact therefore, proves beyond doubt that the deceased were armed with some deadly weapon. It is said that they carried a sickle but this is the state ment of unreliable witnesses. I, cannot attach importance to this evidence in the presence of the opinion of the doctor. Sickle could not cause any incised wound consequently the use of the sickle by the deceased is out of question. The deceased were armed with some sharp‑edged weapon which was used by them. This certainly justified the accused to exercise the right of private defence to protect his body. I have stated more than once that the evidence of Ghulam Rasool P. W. 3 end Nasrullah Jan P. W. 4 was thrown out by the learned Sessions Judge. I have grave hesitation to accept what Mst. Ghulam Maryam says. Mst. Ghulam Maryam had deposed that the accused had run and brought the kulhari. When I disbelieve her mainly, I do not accept this portion of her state ment. From these circumstances my conclusion is that the accused either already carried a kulhari or picked it up then and there and when he was attacked by a sharp‑edged weapon he in order to protect himself used the kulhari and injured the two persons who died on the spot. From these circumstances the con clusion is that the seizure of the goats belonging to the accused by the deceased was illegal and amounted to theft and he was compe tent to use‑ force to get them released and that in the scuffle which had ensued between the parties the accused was injured by a sharp edged weapon and consequently he was justified to exercise the right of private defence to protect his person. But there is no doubt that he had exceeded the right of the private defence to protect his person and property. The question arises what offence is committed by him. The deceased were guilty of theft. They had caused an injury by a sharp‑edged weapon to the accused and this lead to a sudden fight in which there was lack of premeditation, and consequently, I am of opinion that his case falls within the purview of section 304(2) Pakistan Penal Code. The question of sentence needs my careful consideration. The deceased themselves were primarily responsible for this unfortunate incident. They themselves invited this calamity on them. They had no right to seize the goats of the accused. They did not rest contented when the, gots had got out of their Possession but further chased them to round them up. They were labouring under the misconception of their dignity being wounded by the audacious act of the accused. They resisted the release of the goats and in so doing they caused an incised wound to the appellant. In a similar case, i.e., 1946 N. 221 a sentence of 3 years rigorous imprisonment was considered sufficient when the death of one person was caused. In the present case a sentence of eight years rigorous imprisonment would meet the ends of justice. The appeal is accepted and the conviction of the appellant under section 302 Indian Penal Code ie set aside and also the sentence of death passed against him. He is convicted under section 304(2) Indian Penal Code and is sentenced to eight years rigorous imprisonment. Sultan Khan Mukhtar of the appellant is present: Announced. MAHMOOD KHAN, J.‑I am constrained to record dissenting note. The facts of the case need not be stated. The important contentions of the learned counsel for the appellant were the following :‑

(1) That Asmatullah Khan (P. W. 1) was neither cultivator nor occupier of the piece bf land on which the alleged trespass by the goats of the appellant had been made and therefore in view of section 10 of the Cattle Trespass Act, the deceased persons who were the watchmen appointed by P. W. 1 had no legal authority to impound the goats. (2) The deceased by their act of rounding‑up the herd belonging to the appellant, had committed the offence of theft which confer red right upon the appellant to defend his property. (3) The deceased had caused an incised wound on the hand of the appellant and he was therefore justified in defending his persons as well, by killing both the deceased persons. The objections shall be discussed in seriatem. In this case Asmatullah Khan (P. W. 1) has stated that he had leased his land in Mauza Bundo Rehan where the land in question is situated and that he shared the produce of the land with his tenants. He further stated that‑ the deceased were his servants and were entrust ed with the work of looking after the crop grown of the land. In other words, Asmatullah Khan was the owner of the land who shared the produce of the land with his tenants. Section 10 of the Cattle Tresspass Act reads thus :‑-- "The Cultivator or occupier of any land, or any person who has advanced cash, for the cultivation of the crop or produce on any land. or the vendee or mortgagee of such crop or produce, or any part thereof. may seize or cause to be seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce there. on, and (send them or cause them to be sent within twenty‑four hours) to the pound established for the village in which the land is situate": Obviously Asmatullah Khan is neither the cultivator, nor the vendee and mortgagee of the crop and nor be has advanced the cash for the cultivation of the crop. It is however to be seen, whether he is the occupier of the land or not as visaged by section

10. The word "occupier" has not been explained comprehensively by any ruling of a High Court. In 50 I. C. 1006 the view was taken that occupier of land within the meaning or section 10 depended entirely on the terms of the lease agreement. In that case the form of lease was analogous to "Mustajri" of the land in whose produce landlord had no interest whatsoever. Therefore, the facts in that case should not influence the determination of the present case. Similarly the case reported in 2 Cr. L. J. 345 does not solve the present difficulty; because, in that case there was a clear term for advancing cash to the lessee by the owners of an Indigo Factory. Since the cash was not advanced, it was held that the owners had no interest in the produce for the purposes of section

10. This case is based on different facts. The owner of the land is participant in its produce and for the purpose of protect ing it he has employed watchmen. The appointment of watchmen signifies tacit consent of his tenant who is the cultivator, because in this appointment for the purpose of protecting the crop the land lord and the tenant are equally interested. Loss of crop is equally detrimental to both of them. Therefore, when Asmatullah Khan says that he had appointed watchmen, it must be understood that the consent of his tenants was implied and the watchmen were performing their duties on behalf of the owner and the tenants. The term of tenancy has created common interests in the produce of the land, and the joint rights of the landlord with his tenant are thus established. It further becomes manifest that the occupa tion of land transferred by the landlord to his tenants was done under certain limitations, e. g., the right to own and posses jointly the produce of the land. That being so, it could not be denied that the rights of a landlord over the occupation of crop are in any manner inferior than the similar rights of his tenant. If a landlord can be said to enjoy jointly the possessory rights over the crop, it shall be complete denial of those rights not to recognise his joint rights in the occupation of the land by virtue of the terms of lease conferring upon him and his tenant mutual rights over the produce. This principle of law is manifested in 50 I. C. 1006. If on, the other hand, in spite of the term to share the produce of the land with the tenant, the landlord was held not to be in joint occupa tion then it would mean that in the absence of the tenant and in the view of the landlord, any number of cattle trespassing on the land could damage the crop as grievously as possible and the land lord could merely look on and not be in a position to impound them, for if he did so, he would be guilty of theft or of any other offence under the Cattle Trespass Act. I am of opinion that the existence of such condition would be against the very spirit of section

10. I therefore, hold that the deceased persons were per fectly justified in impounding the errant goats which‑ were destroy ing the crop. If it were to be held that the deceased had no authority to impound and the seizure of cattle was illegal, I am not even then prepared to accept the view that the deceased were guilty of theft. The law on this point is very clear. It is to be seen whether the taking of cattle was with dishonest intentions as contemplated by section 378 Pakistan Penal Code. Section 24 says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another commits theft. Keeping in view this definition of dishonesty, the deceased did not intend wrongful gain to themselves or wrongful loss of the goats to the appellant and therefore, they did not haul up the herd dishonestly. This principle was made abundantly manifest in A. I. R., (30) 1943 Oudh 280, by laying down the following rule:‑‑ "Illegal seizure of cattle and taking them to the pound is no offence. It does not amount to the offence of mischief as it is not causing such a change in the situation of property as diminishes its utility or value : the act does not do so per se, and the cattle when released are as useful as ever. It does not amount to the offence of theft because the essen tial element of taking property dishonestly, as contemplated by section 378 is lacking". In that case it was also held that the owners of a cattle which had been wrongfully seized had a right to protect their cattle. This branch of observation is to be read along with the law of self -defence of person and property and being subject to that law is meaningless without it. It could not adversely influence the consideration that unauthorised or illegal seizure of cattle with the intention of taking them to pound did not amount to theft or mischief. Same view, was expressed in 24 W. R. 7 Cr. Similarly Jhaman Lal v. Emperor reported in C. W. N. CCXXVIII, it was held that illegal seizure of cattle and taking them to pound did not amount to theft. Another case on the same question is reported in A. I. R. 1929 Nagpur

94. Hence I have no option but to hold that the deceased were not guilty of theft or attempt to commit theft. There was a minor incised wound on the hand of the appellant at the time of his arrest. It is contended that the wound was caused by the deceased persons. I am not prepared to believe this version for the simple reason, that there is no evidence on record to show that it was caused at the time of occurrence by any one of the deceased. On the contrary it is established beyond doubt that the deceased were not armed with any weapon except a sickle. The appellant himself did not allege that he was injured with the sickle. No prosecution witness says that sickle was used. The nature of the injury is such that even layman could say that it might be self‑inflicted. The mere fact that the appellant had a minor injury which could be self‑inflicted is not sufficient to hold that it was caused by the deceased. Similarly, I am not prepared to hold that the appellant had not run away home to bring his kulhari, but that he had it at the time of altercation with the deceased. Mo. Maryam (P. W. 2) is the rockbottom of the prosecution case. She is the only eye‑witness who has been believ ed by the learned Sessions Judge. Her statement is corroborated by the statement of the appellant. She has been very consistent in her story and her name finds place in the list of witnesses mentioned in the F. I. R. If she is to be held capable of telling such a lie that the appellant had run away home to fetch his kulhari, then she is a liar of the first water and the appellant should not be condemned on her solitary statement. But I do not find any material on the record to hold her a liar. In my opinion, there were no circumstances giving rise to self‑defence either of person or property. Surely, the possession of a sickle did not create the apprehension of grievous hurt or of death to the appel lant that by applying his kulhari, to the neck and head of the deceased the appellant killed them instaneously. I agree with the finding of facts by the learned Sessions judge and hold that the sentence of death awarded for double murder is fit to be confirmed. Further, if the sentence be altered into section 304 (2) Pakistan Penal Code then the appellant may be awarded separate sentence for each offence of culpable homicide not amounting to murder. K. M. A,/ A. H. Appeal rejected.