P (PLP)

MUHAMMAD JAN, J: Fateh Muhammad, aged 30 years, Yusaf, aged 22 years, Muhammad Amin, aged 20 years, and Sadiq. 12 years, sons of Amir, of Chak No. 3 S. P., Montgomery, were tried on charges under sections 332, 333 and 307 read with section 34 Pakistan Penal Code. Feteh Muhammad and Yusaf were convicted under section 332 and sentences to six month rigorous imprisonment each. Muhammad Amin was convicted under section 333 and 305 Pakistan Penal Code and sentenced to three year s rigours imprisonment on each count. The sentences were ordered to run concurrently. Sadiq was convicted under section 332 Pakistan Penal Code but owing to his youth was ordered to execute a bond in the sum of Rs. 1,000 under section 562, Criminal Procedure Code, for a period of one year. The case against them is that Haji Muhammad (P. W. 3), Ismail (P. W. 41 Khushi Muhammad (P. W. 5) and Riasat Ali (P. W. 6), peons of the tehsil, had gone to execute a warrant for their arrest on 28th June 1949 because they had failed to pay the land revenue due from them for kharif 1947and they assaulted the peons when they were acting in the discharge of their duty. The convicts appealed and the learned Sessions judge set aside their convictions and sentences on the ground that by virtue of memoran dum No. 526‑R (L) dated 14th February 1949 from the Deputy Secretary Revenue (L) to the Commissioner, Multan Division, Multan, the arrears of land revenue pertaining to kharif 1947, were not payable by refugee tenants but by the Custodian of Evacuee property. The appellants were, therefore, not liable to pay the land revenue for kharif 1947 which was demanded 'from them and in respect of which the warrant for their arrest was issued. As the process regarding which the incident had occurred was not considered to have been warranted by law the appellants had, in the opinion of the learned Sessions. Judge, committed no offence in causing hurt to the peons and had acted in the exercise of right of private defence. From this order of acquittal, the Crown has filed an appeal alleging that the acquittal of the res pondent has caused miscarriage of justice and praying that they should be suitably punished. Ch. Wali Muhammad, Naib Tehsildar, was examined as a witness in the case on 3rd August 1949 and he stated that the demand for kharif 1947 had not been remitted by the Government and land revenue for this harvest was being recovered from refu gees. He further deposed that the' accused had not paid the sum of Rs. 140/,6 on account of this harvest and he had issued warrant for their arrest which was to be executed up to 2nd July 1949. The learned counsel for the Crown has conceded that in view of the memorandum relied upon by the learned Sessions judge, the validity of the warrant for the arrest of the accused is not free from doubt; but he contends that the peons who were ordered to execute the warrant were public servants acting in good faith and under colour of their office, though their act may not have been strictly justified by law, and the accused had no right of private defence against them in the absence of any reasonable apprehension of death or grievous hurt. No such apprehension existed in this case and the assault on the peons, even if not punishable under section 332 or 333 Pakistan Penal Code, is clearly punishable under section 323 in the case of Yusaf and Sadiq, who caused simple hurts to Haji Muhammad (P. W. 3), under section 324 in the case of Fateh Muhammad, who caused a simple incised injury to Khushi Muhammad (P. W..5), and under section 307 in the case of Muhammad Amin who caused a grievous hurt with a sharp- edged weapon on the head of Ismail (P. W. 4). The case for the prosecution was supported by the evidence of the three injured peons Haji Muhammad, Khushi Muhammad and Ismail. Sadiq (P. W. 7.) and Khan (‑P. W. 8), residences of Chak No. 3 S. P., are independent witnesses and they too have supported the prosecution case. Dr. Qhdrat Ullah (C. W. 1) examined the injured peons on 18th June 1949. Khushi Muhammad had an incised wound 3 " X 1" muscle deep on the left forearm. Haji Muhammad had a contusion 1 "X 1" on the right hand and another contusion 3" X 1" on the back. Ismail had an incised wound 4 " long on the right side of the head. The skull was cut on the right side of the frontal bone and through the right ciliary arch of the frontal bone. The whole of the orbital cavity was exposed. The width of the wound was 4" and it was bleeding profusely from the gap in the scalp. The injury was grievous and dangerous to life. Ismail had four contusions on his back, shoulder and buttock. The doctor considered the condition of Ismail. serious and had his statement IEx.. P. G.) recoded by a Magistrate. This statement is to the same effect as the evidence given by Ismail. He has stated that he, Khushi Muhammad, Haji Muhammad and Riasat Ali, peons were deputed to execute the warrant (Ex. P. C.) and went to Chak No. 3 S. P. for this purpose. The accused were at their well and the peons asked Fateh Muhammad, Muhammad Yusaf and Amin to pay the amount of land revenue mentioned in Ex. P. C. They refused to do so. On their insist ing upon payment Fateh Muhammad brought out a spear, Muhammad Amin brought out a chhavi and the other two brought out lathis, Fateh Muhammad struck the witness with the handle of the spear and Muhammad Amin struck him with his chhavi on the head. His companions were also beaten by the accused. They had their belts with them and the accused knew that they were peons. The only difference between this evidence and the statement Ex. P. G. is that in the statement (P. G) the witness had stated that there were two other persons with Fatta, Yusaf and Muhammad Amin, one of whom was subsequently identified to be Sadiq and the other has not been traced. Haji Muhammad‑has stated that he was beaten by Yusaf and Sadiq whilst Fateh Muhammad and Amin attacked Ismail. Khushi Muhammad was also beaten by the accused. Khushi Muhammad and Riasat Ali were tendered for cross- examination which was declined. After going through the evidence and hearing the learned counsel for both sides we have no doubt that the respondents attacked the peons as alleged. The only question is whether they were justified in doing so, as held by the Sessions Judge: Learned counsel for the accused‑respondents has urged that the warrant for the arrest of the clients was illegal and they had the right to assault the peons in order to avoid arrest. In our opinion, they had no such right. The protection afforded under section 99 Pakistan Penal Code to public servants is not lost even if they make any mistake in the exercise of their proper functions. In this case the mistake, if any, was not made by the peons but by .the Naib Tehsildar whose orders they were bound to obey and the Naib Tehsildar too, cannot be said to have had no jurisdiction to issue warrants for the arrest .of persons who do not pay land revenue. In this case he may have exceeded that jurisdiction in ordering arrest of persons who, without his knowledge, had been exempted from payment of the revenue on account of kharif 1947. Section 99 Pakistan Penal Code applies to cases where there is excess of jurisdiction as distinct from a complete absence of jurisdiction. It applies where an official does wrongly that he might have done rightly; but not to cases where the act could not possibly have been done rightly. In Ghulam and others v. Emperor (A. I. R 1946 Lah. 851), it was held by Skemp, J. that where a number of bailiffs broken open the locks of the judgment‑debtor's house in order to effect attachment the act was not justified by law; but because it was done by public servants action in good faith under the colour of their office, the party of the judgment‑debtors had no right of private defence under section

99. In Thaba Singh and others v. Emperor (A. I. R. X1927 Lah. 851), it was held by Shadi Lal, C. J. that even if the warrant to be executed was defective the petitioner had no justification for beating the public ser vant executing it, because section 99 provides that there is no right of private defence against an act which does not reason ably cause apprehension of death or grievous hurt, if dons or attempted to be done by a public servant acting in good faith and under colour of his office, though that act may not be strictly justifiable by law. The petitioners were, therefore, held guilty under section 323 Indian Penal Code. In Ranjha Mal and an other v. Emperor (A. I. R. 1927 Lah. 706), Tek Chand, J. altered the conviction of the petitioner from section 332 to that under section 323 and rejected the contention of the counsel for the peti tioner that his client had acted in the exercise of the right of private defence of property inasmuch as he wanted to protect the reeds belonging to him and other villagers from being set on fire. Under section 99 Indian Penal Code the right of private defence against an injury by a public servant extends only to those cases in which there is a reasonable cause of apprehension of death or griev ous hurt being caused by such public servant. In Munshi Singh and others v. Emperor (29 Cr. L. J. 69), it was held that where 'a constable effects an arrest under colour of his office,, there is no right of private defence against him, even though the arrest is not strictly justified by law, In Attar Singh and others v. The Crown (9 P. R. 1918) a complaint was lodged against two persons under section 498 Penal Code for the abduction of Karmon, complainant's daughter‑in‑law. The Magis trate ordered the issue of a warrant for the arrest of Karmon and the warrant stated that M1st. Karmon was charged with an offence under section 498, Indian Penal Code. Under this warrant the Head Constable arrested 141st. Karmon and had taken her to a distance of about 200 qadams when a large concourse of people, including, the petitioners, removed the woman from the custody of the Head Constable and inflicted injuries upon him. The peti tioners were held to have been rightly convicted under section 147 Penal Code. In King Emperor v. Gaman and others (16 P. R. 191.3) some police officers acting bona fide under a defective search warrant were resisted by more than five persons who were acquitted on the ground that they were acting in the exercise of the right of private defence. The Local Government filed an appeal against the order of acquittal and it was held by a Division Bench that while the accused could not, under the circumstances .be convicted of offences under section 225‑B and 332 Indian Penal Code, they might nevertheless be convicted of an offence under, section 147 read with section 99, Indian Penal Code, if the common object of the unlawful assembly was to cause hurt and hurt was caused. If there were less than five persons concerned in the assault those who actually caused hurt would be liable to conviction under section 323, Indian Penal Code. The accused in this case, on being questioned by Court, merely denied their guilt and said that they will file written statements which they did not do. They, however, produced some witnesses in defence whose version is that they heard an alram raised by a boy of 9 or 16 years age, named Yasin, who was tied by one of the peons with a turban and saw that two peons had rounded up the cattle of the accused and were trying to take them away. Sadiq and Ata Muhammad requested the peens to release the cattle whereupon Ata Muhammad was given a blow by ore of the peens, which he warded off, and in return gave a blow to Ismail peon. Amir (D. W. 8), father of the accused, stated that the peons took him to a place near Anupa and having tied his hands and feet demanded Rs. 20 from him. No report of any such incident was made by the accused and the defence version was, in our opinion, rightly rejected by the trial Court. As a result of our findings we set aside the acquittal of the respondents and, convicting Fateh Muhammad, Yusaf and Sadiq under section 323 Pakistan Penal Code, we sentence Fateh Muhammad and Yusaf to six month's rigorous imprisonment each and order that Sadiq shall furnish security under section 562, Criminal Procedure Code, in the sum of Rs 1, 000 for a period of one year. We convict Muhammad Amin under section 307 P. P. C., and sentence him to three years rigorous imprisonment. To this extent the appeal is accepted. A. H. Appeal accepted.