P L D 1964 (W (PLP)

Zahoorul Haq for the State (on 3‑2‑1964). Dates of hearing : 20th January and 3rd February 1964. The present three appellants Allah Bachayo, Dhani Bux and Nabi Bux along with three others by name Allah Wadhayo, Gul Hasan and Hadi Bux were committed by the Sub‑Judge and F. C. M. Sanghar to stand their trial in the Court of Sessions at Sanghar for offences under sections 148 and 307 read with section 149, P. P. C. In the result, the three co‑accused were acquitted whereas the three appellants were convicted under sections 323/324/34, P. P. C. and were each sentenced to undergo rigorous imprisonment for three years.

2. The facts giving rise to this case are that the injured Sainbux, P. W. 1 had advanced a Taccavi loan of Rs. 1,500 to Allah Bachayo and Allah Wadhayo who were then his haris. These two haris failed to return the loan and injured Sainbux fearing that they may run away along with the forty heads of sheep that were then in their custody, on the day of the incident namely 22‑4‑1961 between 2 and 4 p. m. went to the house of the appellants situate some three blocks away from his house and brought all these forty sheep tethered there to his own house. That same evening at about 6 p. m. the three appellants along with the three co‑accused are alleged to have come to the house of injured Sainbux armed with hatchets and lathis. They remonstrated with Sainbux for having removed their sheep to which Sainbux replied that they had still to repay him the loan of Rs. 1,500 taken by them from him. On this a quarrel ensued in the course of which the six accused are alleged to have attacked injured Sainbux with the hatchets and lathis in their possession. On the cries of injured Sainbux his nephew Muhammad Ali and his first cousin Ismail P. W. 3 arrived on the scene and found four of the six accused attacking Sainbux whereas the remaining two were standing at the gate keeping guard. Some shots were then fired from the watch tower of Wadero Manthar whereupon the appellants took to their heels. They were pursued by Muhammad Ali, Ismail P. W. 3, Fakir Muhammad P. W. 4, Loung and others, and three of them namely the present three appellants were secured whereas the remaining three acquitted accused succeeded in making good their escape. It happened that same evening that Head Constable Ghulam Akbar P. W. 6 of Sinjhoro Police Station was returning from investigating a theft case at Khadro and as he was passing by this village he heard the report of a gunfire which brought him at once to the scene. There, he met complainant, Ismail P. W. 3 and saw the three appellants who had been secured by them. He also found Haji Sainbux lying Injured in his village. He there and then re corded the report of complainant Ismail Exh. 7 and sent it for registration fee the Sinjhoro Police Station. He also prepared a mashirnama of the injuries on Sainbux as per Exh. 10 and sent him to Sinjhoro Hospital for treatment. He arrested the three appellants who, as mentioned above, had already been secured by the complainant's party and took into his possession the two hatchets and lathi which had previously been secured from the appellants by the complainant‑party. He then examined the prosecution witnesses and by 7‑5‑1961 be had submitted an interim challan against the present three appellants. The remaining investigation into this case and the securing of the three acquitted co‑accused was done by A. S. I. P. Muhammad Rauf P. W. 7 after which a Pakka Challan was sent to Court containing the names of all the six accused.

3. In their statements, the appellants Dhani Bux and Nabi Bux who are brothers have denied their presence at the scene saying that on that particular day and at that time they were three miles away in their own village. They state that they have been implicated on account of enmity. The appellant Allah Bachayo alone admits his presence at the fight but states that it occurred at his own house and was occasioned by the forcible taking away of his own sheep by injured Sainbux. In the course of this fight Allah Bachayo and his relation Jurio had received injuries. He repeats that none of the other co‑accused were present there at that time.

4. Now, the case for the prosecution against the three appellants rests upon the evidence of the injured Sainbux P. W. 1 his nephew Alibux P. W. 2, his cousin Ismail P. W. 3 and Fakir Muhammad P. W.

4. The evidence of the injured Sainbux is that he had advanced a Taccavi loan of Rs. 1,500 to Allah Bachayo and Allah Wadhayo and he had also entrusted his forty heads of sheep to them for purposes of grazing. On coming to learn that these two haris of his were leaving his lands and running away along with the sheep he decided on the day of the incident at about 2 p. m. to retrieve his sheep and so he went to the huts of the appellants and drove his sheep back to his own house. That same evening at about 6. p.m. as he and his own nephew Alibux P. W. 2 were sitting in their house the present three appellants accompanied by the three acquitted co‑accused descended upon him, quarreled with him over having taken away the sheep and attacked him with the hatchets and lathis in their hands. As a result of this attack, he sustained injuries upon his head which partially paralyzed his right side He is fully corroborated by his nephew Ali Bux a young boy of twelve who having lost his father lives with his uncle Sainbux. This young lad repeats how the appellants and the three acquitted co‑accused who were all known to him previously came to the house of his uncle Sainbux that evening armed with hatchets and lathis and attacked him. He and his uncle raised cries which brought to the scene Ismail P. W. 3, Muhammad Ali and Loung. In the meanwhile, from the neighbouring watch tower of Wadero Manthar his haris who were there keeping watch had fired some shots on hearing which the appellants and the three acquitted co‑accused took to their heels. They were pursued by Muhammad All, Ismail and Loung when the three appellants were caught and three co‑accused successfully escaped: The evidence of com plainant Ismail P. W. 3 and Fakir Muhammad P. W. 4 who arrived on the scene soon after is to the same effect. Ismail who is a first cousin of the injured Sainbux came up on bearing his cries and he was joined by Fakir Muhammad a hari of Wadero Manthar. This Fakir Muhammed that evening was keeping guard on the watch tower of his Wadero when he hearing cries from the house of Sainbux, fired three shots in the air and then came down from the watch tower. Both Ismail and Fakir Muhammad saw the three appellants with the three acquitted co‑accused armed with hatchets and iathis making good their escape. In fact, complainant Ismail who had reached there a little before Fakir Muhammad says that he actually saw four of the accused attacking Sainbux while two were standing at the gate. These two witnesses accompanied by Loung gave chase to the retreating accused and they succeeded in capturing the present three appellants and in tying them up and bringing them back to the scene. They recovered two hatchets and a lathi from them and produced these weapons before Head Constable Ghulam Akbar of Sinjhoro Police Station who happened to arrive in the village that same evening soon after this incident.

5. In addition to the evidence of these four prosecution witnesses discussed above there is also on record the evidence of Haji Mahmood P. W. 5 the Omnibus (sic) examined in this case, Mounted Head Constable Ghulam Akbar P. W. 6, A. S. P. Muhammad Rauf P. W. 7 and Dr. Anwarul Haq P. W.

8. The evidence of these remaining four prosecution witnesses only served to strengthen the case against these appellants as deposed to by the first four prosecution witnesses. P. W. 5 Haji Mahmood is a mashir of the rardat as well as of the securing of the three appellants who were produced before Mounted Head Constable Ghulam Akbar P. W. 6 by complainant Ismail along with their weapons. Mounted Head Constable Ghulam Akbar, as already indicated in para. 2 above was returning from investigating a theft case a Khadro when as he was passing by the village of injured Sainbux his attention was attracted by the report of gunfire which brought him to the scene. The three appellants who had by then already been secured along with their weapons were produced before him by com plainant Ismail and he there and then recorded the F. I. R. of the complainant as per Exh.

7. A. S. I. P. Muhammad Rauf P. W. 7 verified the investigation as done by M. H. C. Ghulam Akbar, secured the remaining three co‑accused and challaned them all in Court. Dr. Anwarul Haq examined the injured Sainbux and found eight injuries on his person three being incised wounds caused by a sharp‑cutting weapon such as a hatchet and the rest caused by some hard blunt substance such as a laths. He has stated that these injuries were simple In nature and that they were not dangerous to life because they were only scalp deep. He added that there was no sus pected fracture of the skull and that none of the injuries on the head could have caused internal haemorrhage. In addition to these eight prosecution witnesses there is also the evidence of S. H. O. Ahmed Ali P. W. 9 then S. H. O., Sinjhoro Police Station which is more or less of a formal character.

6. Miss Sheila Dharamdas appearing on behalf of the appellants has contended that appellants Nos. 2 and 3 Dhani Bux and Nabi Bux were not at the scene at all that evening and further that appellant No. 1 Allah Bachayo who alone was there had committed no offence because he was exercising his right of private defence of his property within the meaning of section 105, P. P. C. She has pointed out that the sheep were the property of Allah Bachayo and that this has been admitted by the mashir Haji Mahmood P. W.

5. Her contention is that the sheep of appellant No.1 Allah Baehayo having wrongly been taken away by injured Sainbux, Allah Bachayo had a right to cause any injury short of death to the thief until he had recovered his stolen property. For these submis sions she has relied upon two cases reported in Jarha Chamar v. Surit Ram (7 Cr. L J 49) and Mir Ahmad Khan v. Sarkar (P L D 1963 Azad J & K 90). Mr. Zahoorul Haq appearing on behalf of the State has refuted these conten tions of Miss Sheila and has relied upon two cases reported in Mir Dad and others v. The Crown (I L R 7 Lah. 21) and A I R 1945 Nag. 269.

7. Now, dealing with these contentions of the learned Advocate appearing on behalf of the appellants it is quite obvious that so far as appellants 2 and 3 are concerned namely Dhani Bux and Nabi Bux they were that evening chased and caught at the scene and, therefore, they cannot now be heard to say that they were three miles away in their own village at the time of the incident. It seems to me that the fact that they were chased and secured by the complainant‑party immediately after the incident with weapons in their hands shows that they had participated in this offence. With regard to appellant Allah Bachayo I observe that the trial Judge has mentioned in his judgment that the learned Public Prosecutor conceded that the sheep actually belonged to Allah Bachayo and the other haris. But, even if it be taken for granted that these sheep belonged to appellant Allah Bachayo, it has been established by the pro secution witnesses that these sheep were removed by Sainbux to his house between 2 and 4 p. m. on the afternoon of that day. Thus, even if Sainbux is to be termed as a thief, the fact remains that he had by 6 p. m. of that day securely and safely effected his retreat with the stolen property so that, therefore, under the first part of sub‑para. (2) of section 105, P. P. C. the right of private defence existing in appellant Allah Bachayo and others had by then terminated and come to an end. Miss Sheila Dharamdas vehemently argued that her case fell under the third or last alternative appearing in the second para. of section 105 namely that the right of private defence of property against the thief continued (till) the property had been recovered. She argued that, admittedly, Sainbux having taken away the sheep to his house, the right in her client to retrieve his stolen property continued until he had successfully done so. But, even before going to the Case Law on this subject I am clear in my own mind that this construction which the learned defence Advocate wishes to place upon sub‑para. 2 of section 105 is wholly untenable. It seems to me that if her interpretation is to be accepted, then the right of private defence would under all circumstances continue to enure in the owner of the stolen property until the property had been recovered from him. If this were so, then, there would be no point in having as the first alternative in this sub‑para. 2 to section 105 the provision that :‑ " the right to private defence of property against theft continues till the offender has effected his retreat with the property."

8. It seems to me that the basis for this first alternative in sub‑para. 2 of section 105 is very likely the provisions of the ancient Roman Law on the Roman Delict of theft, or Furtum. In Roman Law a distinction was made between Furtum Manifestum and Nec‑Manifestum. A manifest thief is defined as one who is secured with the stolen property on his person and before he has reached the place where he intends to keep it. Once he has reached that place then, if that property is secured A from him there thereafter, it is non‑manifest theft for which is the punishment prescribed is much less than for manifest theft. Similarly, under the Penal Code the right of private defence of property against the thief continues till the offender has effected his retreat with the property and once this has happened the right ceases to exist. Although the third alternative in para. 2 provides that the right of private defence of property continues until the property has been recovered, yet this third alternative cannot override and render nugatory the first alternative. I am fortified in this view by a decision of the Appellate Criminal Bench of the then Lahore High Court in the case of Mir Dad and others v. The Crown. It was held in that case that the appellants right of private defence of their property had been put an end to by the successful retreat of the thieves and that their alleged re‑discovery of the cattle in the complainant's possession could not revive that right. It was further pointed out in that case that under section 105 of Penal Code as soon as the offender has effected retreat with the property no right of private defence of that property against theft subsists and the clause " till the property has been recovered" is subject to the clause " till the offender has effected his retreat with the property".

9. The case of Jarha Chamar v. Surit Ram, and relied upon by Miss Sheila is not on all fours for the reason that illustration given therein on which she placed reliance required the thief A who had stolen B's watch and made good his escape on one day to appear again the next day in front of B wearing the same watch. In the instant case the injured Sainbux had returned with the sheep to his house and did not again leave his house along with the sheep so as to revive the right of private defence in the appellants. In like manner, in the second case relied upon by Miss Sheila being the case of Mir Ahmad Khan v. Sarkar, the facts were that the complainant had not effected his retreat with the property when attacked by the accused. In this reported case the complainant stored his share of the wood near the house of one Muhammad Afsar on one day and on the next day when he went with Muhammad Afsar to his house and lifted the Wood to take it home the accused objected saying that the tree from which the wood had been cut belonged to him and he would, therefore, not allow the complainant to take away his wood. Nevertheless, the complainant carried the wood away when the accused fired at him. Thus, it is apparent that the two cases relied upon by the learned defence Advocate are not on all fours with the facts of the present case.

10. At the conclusion of the arguments in this matter I had reached the conclusion that the guilt of the appellants had fully been established and that this appeal must be dismissed. However, there remained the question of sentence. It is in evidence in this case that the sheep belonged to Allah Bachayo so that the conduct of the injured Sainbux in taking them away without Allah Bachayo's knowledge or consent is not at all commendable. It is also in the medical evidence that the injuries sustained by Sainbux were all simple and not dangerous to life. Thirdly, the three appellants before me are now on C bail having been so released by a brother Judge in this High Court. For all these reasons I decide that it would be harsh to send the appellants back to jail to serve out the unexpired portion of their sentence and, therefore, I announced a short order in Court upholding to conviction of the appellants, dismissing their appeal and directing that the sentences imposed upon them in this case be reduced to the period already undergone. This judgment, then, contains the reasons for that short order. K. B. A. ???????????????????????????????????????????????Appeal dismissed. Sentence reduced.