P L D 1963 Azad J & K 90 (PLP)

Briefly stating, the facts of the case are that the complainant Said Hussain alongwith his other companions Sarwar, Mir Afsar, Muhammad Hussain Khan, Latif and others cut a pine tree in a Jungle situate in village Nakar on 14‑1‑1960. Having cut the tree it was divided by them amongst themselves. The com plainant stored his share of the wood near the house of one Muhammad Afsar and went home. Next day the complainant went to take home his share of the wood at about noon time. He was at that time accompanied Mir Afsar but when he and Mir Afsar reached the spot, where the wood had been stored, they found Mir Ahmad, the accused‑petitioner present on the spot. The accused was carrying a 12 Bore Gun and when the complainant lifted the wood to take it home the accused objected saying that as the tree from which the wood had been cut belonged to him, he would not allow it to be taken away. The complainant replied that as the tree had been cut from the Jungle he would take it away. The accused then went ahead of the complainant and when the complainant had carried the wood some distance he was fired at by the accused. The shot injured the complainant on the head and the wood fell down from his shoulder yet the complainant ran after the accused and when he reached near the accused, the accused fired a shot for the second time which hit the complainant on the right side of his belly but all the same the complainant succeeded in wresting the gun from the accused which he broke by striking it against a stone. Sarwar Mir Afsar and Muhammad Hussain Khan reached the spot soon after but the accused ran away. The matter was reported to the police the same day at about 9 p.m. The accused in his statement before the trial Court denied the charge saying that when he asked the complainant and his companions not to lift the wood he was attacked and beaten with the result that the rifle which he was carrying in his hand went of. During the course of arguments before this Court, it was not disputed on behalf of the accused‑petitioner that the complainant had received injuries at the hand of the accused. The learned counsel appearing on behalf of the accused admitted that the facts as stated by the prosecution were correct except that the tree which had been cut by the complainant and his colleagues belonged to the accused for which he had deposited the fee with the Forest Department and the Forest Department had marked it with their mark and permitted the accused to cut the same and remove its timber. The stand taken on behalf of the accused in this Court is that since the complainant had committed theft and refused to listen to the accused and carried the wood inspite of the fact that the accused asked him not to do so, the accused was well within his right to use force short of causing death to dissuade the complainant from carrying away the wood which belonged to the accused. The learned counsel has in this connection referred to sections 104 and 105 of the A. P. C. Before discussing these two sections it may be mentioned that the learned Government Advocate does not dispute the fact that the tree that had been cut by the complainant and his colleagues belonged to the accused which the complainant had no right to cut and remove its timber, section 104 of the A. P. C. lays down that :‑ "If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong‑doer of any harm other than death." In the present case since the complainant was not armed with any deadly weapon there was no reasonable cause of apprehension that death or grievous hurt would be the consequence if the right of private defence of property was exercised. Hence the provisions of section 103 are not attracted in this case. According to section 104 which covers the present case the right of private defence extends subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong‑doer of any harm other than death. Clause (3) of section 99 lays down that:- "There is no right of private defence in cases in which there is time to have recourse to the protection of the Public Authority." It is important to see what is actually meant by this clause. Does it mean that when a person actually see a thief in possession of his goods, he should approach the Public Authority instead of forcing the thief to part with booty. I do not think it means that the words "in which there is time to have recourse to the protection of the Public Authority" clearly mean that in such a case the person who is deprived of his goods should not run to seek protection of the public authorities but use reasonable force to deprive the thief of his booty. In the present case, therefore, it my opinion, the accused had no time to have recourse to the protection of public authorities and if he had done so the most important piece of evidence, that is the wood, the actual stolen property, would have been removed and thus an important piece of evidence destroyed. In the circumstances, therefore, the proper course for the accused was to proceed in a manner in which he proceeded in the present case and his action is covered by section 105, A. P. C. Section 105, A. P. C. is reproduced below for easy reference:‑ "The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house breaking by night continues as long as the house‑trespass which has been begun by such house‑breaking continues." In the present case there was every apprehension of danger to the property which the complainant was in the act of removing from the spot and as the complainant had not effected his retreat wit the property the accused had the right of private defence o property and was, therefore, well within his right to use force short of death to stop the complainant from removing the wood. As is clear from the record, the accused fired two shots. The accused was carrying a shot gun and it is in evidence that he was a good Shihkari `marks‑man'. If he really meant to kill the complainant he could have killed him with one shot by firing at him from close quarter. This he did not do. He only wanted to frighten the complainant to drop the wood which he was carrying. The complainant was carrying the wood on his shoulder and the first shot was aimed at the shoulder and that is why some of the palets pierced through the muffler of the complainant. The second shot was fired by the accused when the complainant rushed at him to deprive him of his gun which he actually did and broke the same by striking it against a stone. As already stated if the accused really meant to kill the com plainant he could have killed him but he preferred not to kill him but to cause to the complainant (wrong‑doer) harm other than death and this being the case the accused has, in my opinion, committed no offence. I, therefore, accept the revision petition set aside the conviction and sentence of the accused‑petitioner under section 307, A. P. C. by order of the Sessions Judge, Rawalakot, dated 30‑4‑1963, and acquit the accused. The accused is already on bail. He is discharged of his bail bond. K. B. A. Petition accepted.