P L D 1959 (W (PLP)

(3) A contused wound, 1 " x 1/6" x ", centre head obliquely on frontal bone. (4) Contused swelling, 1 " x ", back left little finger. (5) An abrasion, 1/5" x 1/8", back left ring finger middle phalyngeal joint. (6) An abrasion, 1/3" x 1/6", back left index finger basel phalynx. (7) A contusion, 2 " x ", outer side left upper arm upper third obliquely. (8) A contusion, 1" x 1/5", front left shoulder. (9) A contusion, " x ", outer side right upper arm upper third. (10) A contusion, 1 " x ", inner side right forearm middle third. (11) A linear scratch, 3 " x 1/16", right shoulder centre vertically. (12) A contusion, " x ", back left shoulder. . (13) An abrasion, 2" x ", back lef side lower part. (14) An abrasion, 1 " x ", back left side, 1" below injury No. 13. (15) Contusion, 2" x ", back right shoulder.

10. On the same day at 12‑30 p.m. he examined Dil Muhammad P. W. and found the following injuries on his person:-- (1) A contused wound, 2" x 1/6" x 1/3", left side head, 4j" above left ear obliquely. (2) An abrasion, " x 1/6", back left‑hand palm. (3) Contused swelling, 2 " x 2", back left‑hand palm behind index and ring fingers with suspected fracture metacarpa bone, kept under observation.

11. On receipt of the ruqqa Exh. P. J/1, Head Constable Muhammad Khan (P. W. 16) reached the Civil Hospital at 11‑15 a.m. He inquired vide Exh. ,P. J/3 whether Hakam Ali was in a fit condition to make a statement. The doctor reported, vide Exh. P. J/2, that be could not. The Head Constable recorded the statement Exh. P. R. of Bashir P. W. at 12‑10 p.m. It was sent to Police Station Sambrial for formal registration of the case. The case was registered there at 4‑30 p.m. vide Exh. P. R/1. Bashir P. W. produced before him the medico legal certificates of Hakim Ali deceased, Miran Bakhsh, Dil Muhammad P.' Ws. and his own.

12. Hakim Ali died in the hospital at 10-40 a.m. on 18th August 1957. The doctor sent the ruqqa Exh : P. Z. to the Police Station A‑Division of City, Sialkot, about his death. Head Constable Muhammad Khan reached the, hospital and prepared the injury statement Exh. P. W/1 and inquest report Exh. P. W. of the deceased. He sent the body to the mortuary for post‑mortem examination under the escort of Foot Constables Mumtaz Ali and Muhammad Yaqoob.

13. Post‑mortem examination on the body of the deceased was performed by Doctor A. A. Chaudhri (P. W. 1) at 4 p.m. on 18th August 1957. He found the following injuries on his body :‑ (1) An incised wound, 5" x 1"x 3", directed from before backward on the right side of the head.3' above the right ear. The skull was cut and also the membranes of the brain. The brain was visible. (2) ,A contusion, " x ", on the outer side of the middle of the right arm. (3) Four abrasions, each 1 1/3" x ", on the left side of the lower part of the back. The right side of the skull was cut. The cut measured 5" x ". The membranes of the brain were cut and the brain was also cut. The cut in the brain measured 4" x 1'' x 2 ". A piece of the cut bone was driven deep into the right side of the brain. The wind pipe had froth in it and the lungs were blown out and full of froth. The spleen was enlarged. The death, in the opinion of the doctor, was due to severe injury to brain and to compression of brain by a fractured fragment of bone entering into it. Injury No. 1 was the cause of death and was inflicted by some heavy sharp edged weapon. Injuries Nos. 2 and 3 were caused by some blunt weapon. The time that passed between the injuries and the death was about 40 hours and between the death and the post‑mortem examination was about six hours. Exhibit P. H. is the post‑mortem examination report.

14. Sub‑Inspector Muhammad Yusuf of Police Station Sambrial (P. W. 17) reached the Civil Hospital, Sialkot, at 5‑45 p.m. The deceased was not capable of making a statement. This was certified by the doctor vide Exh. P. N/1. He recorded the statements of Miran Bakhsh and Dil Muhammad and proceeded to the spot where he reached at 10 p.m. On 18th August 1957 he took into possession bloodstained earth from the maize field of Bashir and sealed it into a parcel vide memo Exh. P. B. He found signs of hoeing and marks of struggle in that field. The maize crop in that field was 9" in height. The plants had been trampled upon. Budha, Arif, Shafi, Bashir, Sadiq and Fazal were arrested by him on 21st of August 1957. On interrogation, Fazal accused produced before him blood stained dang (Exh. P. 3), Bashir accused dang (Exh. P. 4) Sadiq accused bloodstained dang (Exh. P. 5), Shafi accused bloodstained ballam (Exh. P. 6) and Budha accused bloodstained ballam (Exh. P. 7), which were taken into possession and sealed separately into parcels ride memos. Exhs. P. E.? P. F, P. G., P. C. and P. D., respectively. Bana and Hassan Muhammad were arrested on 9th September 1957. The bloodstained earth and the weapons have been found stained with human blood vide report of the Chemical Examiner Exh. P. X. and the report of the Serologist Exh. P. Y.

15. Arif appellant denied the prosecution allegations. Hassan Muhammad accused stated that he and Bana were in the disputed field when the complainant party went there and tried to take forcible possession of the land and they attacked them. Barkat, Allah Din, Lal and Gulab and others were there and caused injuries to the complainants in their defence.

16. Ghulam Nabi (D. W. 1) produced application Exh. D. A. made by Barkat, Budha, Lal and Hassan and an application made by Mst. Jalal Bibi to the consolidation officer. The counsel for the accused tendered receipts Exhs. D. D. and D. E., padigree table Exh. D. F. and applications Exhs. D. G. and D. H.

17. Bana and Hassan Muhammad accused were injured. Hassan Muhammad was examined at 4 p.m. on 17th August 1957 by Dr. G. M. Rizvi (P. W. 2) and had the following injuries :‑ (1) An incised wound, " x " x 1", deep on the back of the left forearm at its upper part. Bare bone was felt with probe in the depth of the wound. There was fair amount of swelling of the forearm and elbow joint. (2) A contusion, 4" x ", on the back of the shoulder with some swelling in the area. (3) A contusion, 3" x ", on the lower part of the back.

18. Bana was examined the same day by Dr. Rizvi and had the following injuries :‑ (1) A contused angular wound, 2 " x " ( "/ x 2 ") x " deep to the scalp with certain amount of swelling around it. (2) A contused swelling with two stick marks, 3" x ", and 2 " x ", on its middle part in an area of 4" x 4" on the top and back of the right shoulder. (3) A contused swelling, " x ", on the right middle finger.

19. The prosecution case rests on the evidence of Bashir (P. W. 10), Miran Bakhsh (P. W. 11), Dil Muhammad (P. W. 12) Jalal Din (P. W. 13), Diwan (P. W. 14) and Allah Ditta (P. W. 15). Bashir, Miran Bakhsh and Dil Muhammad P. Ws. are injured. Their presence at the spot is beyond dispute. Miran Bakhsh is a cousin in the third degree of Diwan (P. W. 14) and is also related to the deceased in the fifth or sixth degree. Jalal Din (P. W. 13) is a collateral of Bashir. The grandfather of Diwan (P. W. 14) and of Bashir (P. W. 10) were brothers. Allah Ditta (P. W. 15) is a nephew of the deceased. He was not mentioned in the first information report. I am inclined to ignore his evidence. The learned counsel for the appellant does not challenge the presence of the eye‑witnesses at the spot. He, however, contends that Bashir never obtained possession of Khasra No, 168 and the appellant and his companions acted in the right of self‑defence of property and person and have con sequently committed, no offence. The first question, therefore, to decide is whether Bashir (P. W. 10) had obtained settled possession of this Khasra number. His account of how he obtained possession is hopelessly discrepant. The trial Court came to the conclusion that the prosecution allegation that Bashir Ahmad P. W. had obtained possession of 5 kanals and 10 marlas of land out of Khasra No. 168 through the intervention of the panchayat was incorrect and that his previous attempts to get possession of the Khasra number had been resisted by the accused party, but somehow or other Bashir had succeeded in sowing makki in the field and on the day of the occurrence the complainants had come for the first time to hoe the crop and knowing that their attempt would be resisted they had come fully armed with blunt and sharp weapons. Bashir stated in the first information report that the Tahsildar had come to the spot, had given him two acres of land in consolidation proceedings and 15 days before the occurrence, he had ploughed the field, but his ploughing had been stopped, and he had arranged for a panchayat in the evening, who had beseeched Budha, Fazal and Arif etc. to allow him to plough the land and had made him to plough the land. At the trial he has stated that he ploughed the Khasra in dispute for the first time in Baisakh last and when he tried to plough it again in Sawan, Budha, Bana, Bashir, Sadiq Fazal, Arif, Shafi and Hassan accused had stopped him from doing so and he called a panchayat who allowed him to plough it and he then ploughed the land and sowed makki therein. He did not state before the police that the consolidation staff had given possession of the land to him at the spot and not even that he had ploughed the land in Baisakh. What he stated was that he had ploughed the land 15 days before the occurrence for sowing maize but was stopped by the accused. In Court he claimed that he had ploughed the land in dispute 10 or 20 times between Baisakh for sowing makki and the accused had not stopped him from doing so. He stated before the committing Magistrate that on the following day of obtaining possession, he was stopped by the accused and he came out of the field and called a panchayat 18 or 20 days after the consolidation staff had delivered possession of the land to him. He did not state before the committing Court that the panchayat was called on that very day. He stated before the committing Magistrate that the panchayat was called at about noon time, but stated in the first information report and at the trial that the panehayat was called in the evening. In the committing Court he also stated that the panchayat had decided that he should go to the Tahsildar, Consolidation Department, which shows that the panchayat had not brought about an agreement between him and the accused that he could plough the land. Therefore, the finding of the trial Court that the accused had never allowed him to plough the land or had agreed to it is fully justified. The position is clear that the accused had been resisting his attempts to take possession of the land.

20. The prosecution case at its best is that makki was sown about 15 or 20 days before the occurrence and thereafter it was the first time on that day that the hoeing was attempted to be done by Bashir P. W. and his companions. The trial Court holds that they had gone there well armed as they expected resistance. There is no doubt that they would expect opposition on the part of the accused, as their act could not have gone unnoticed for the disputed Khasra is only 11 killas from the village Abadi. The contention of the learned counsel for the appellant and the finding of the trial Court are fully justified that Bashir had not obtained possession of the disputed Khasra. Nawab Din Patwari (P. W. 8) says so, but his statement cannot be believed. There is no order by the consolidation officer that possession of the land should be delivered, and the parties have not stated at any time in the consolidation proceedings that they have taken over or handed over possession of their holdings. Mere pointing out by the Patwari of the land allotted to each owner does not amount to delivery or taking of possession under the Punjab Consolidation of Holdings Act, 1936 (Act IV of 1936). Section 10 of the Act provides that upon the final con firmation of the scheme of consolidation, the consolidation officer shall, if necessary, demarcate the boundaries of the holdings and shall proceed to announce a decision finally. Section 11 of the Act deals with delivery of possession and reads as follows :‑ " The land owners and tenants affected by the scheme of consolidation shall be entitled to possession of the holdings and the tenancies allotted to them under the scheme and the consolidation officer shall by order direct that they be put iii possession thereof from such date as he may deem expedient after the final confirmation of the scheme and may, if necessary, exercise power under the Punjab Land Revenue Act 1887, in order to give possession." It is admitted by the prosecution that the scheme of consolida tion had not been confirmed so far. Therefore, the stage of delivery of possession or taking of possession had not yet arisen, and possession could not have been lawfully delivered by Nawab Din Patwari (P. W. 8), as is alleged by him. It may also be pointed out that Bashir was proposed to be given five kanals and ten marlas out of Khasra No. 168 and the remaining area still remained with the accused party. It was, therefore, necessary for the consolidation staff to demarcate the boundaries and to give possession to the respective parties of their portions. Nawab Din Patwari (P. W. 8) did not demarcate the field at all. As the consolidation scheme had not been confirmed, the question of demarcation of the fields or of delivery of possession of. the land to Bashir on 25th May 1957, did not arise. The statements Exhs. P. S/3 and P. S/4 also contain no mention of taking or delivery of possession by any of the parties. Con sequently it must be held that Bashir never got possession of the land in due process of law or with the consent of the accused who were in possession. They would be presumed to continue in possession of the land in dispute belonging to the seven share‑holders, namely, Barkat and Allah Ditta sons of Amir, Hassan son of Allah Ditta, Budha, Bana, Lal and Gulab sons of Mansu. They had grown wheat and it is admitted by Bashir that they remained in possession of land for about six month.

21. The conclusion of the trial Court that Bashir had some how or other happened to sow. the maize crop seems to be correct because none of the accused claimed that he had sown the maize crop in the field. The question, therefore, is whether an isolated act of throwing seeds in a field amounted to settled possession and Bashir could be deemed to be, a person in rightful possession, when the title in the land and its possession vested in the accused persons. The position of Muhammad Bashir in sowing maize prior to his obtaining possession of land under section 11 of the Consolidation of Holdings Act would be that of a trespasser and it is obvious on the evidence that his attempts to take possession were resisted by the accused all along and he never obtained settled possession. The accused would be deemed to be in possession and they would be entitled to eject a trespasser attempting to obtain possession. Bashir P. W. had yet acquired no title to the land, had no right to its possession, and a casual act of sowing maize was a mere act of trespass and could give him no right, unless he had obtained settled possession, in which the accused had acquiesced. The learned counsel for the appellant relies on Muhammad Khan v. The Crown (P L D 1949 Lah. 421). It has been laid down that a person's solitary act of uprooting some crop and subsequently reaping a portion of it does not amount to taking of possession of the land against the rightful owner ; that even if it be assumed that the crop was sown and reaped by the complainant it amounted to no more than an act of trespass by him, in itself wholly insufficient to constitute his possession, that a possession which a trespasser is entitled to defend against a rightful owner must be settled possession extending over a sufficiently long period and acquiesced in by the true owner, and a casual act of possession would not have the effect of inter rupting the possession of the rightful owner. The observations of Mullick, A. C. J. in Emperor v. Bandhu Singh (106 Ind. Cas. 691) were approved. These observations are:‑ "That a mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself possession, in the legal sense of the term, against the person whom he ejects, and that the latter may, if he does not acquiesce, re‑enter and re‑instate himself provided he does not use more force than is necessary. Such re‑entry will be viewed only as a resistance to an intrusion upon a possession which had never been lest". On the facts of the present case, Bashir and Dil Muhammad P. Ws. had not obtained settled possession of the land. They may have managed to sow the maize but their attempts to go upon the land were resisted and it was for the first time that they went to hoe the crop. The rightful owners of the land had the right to eject the trespassers with the use of minimum amount of force in exercise of the right of defence of property As soon as the attempt of the rightful owner to eject they trespasser was resisted by force, and violence was used, the rightful owner acquired the right of defence of person also. In the present case it has been found that Bashir Ahmad and his companions had gone fully armed. When the accused did not permit them to do the hoeing of the crop, they had no right to remain on the land or to resist by force the entry of the rightful owner. Hassan and Bana accused are injured, and Hassan has received a grievous injury, so that it is established that grievous hurt was actually caused. This gave rise to a right of self -defence of person even to the extent of causing death. If Hakim died as a result of a blow given by Arif appellant on his head, the right of self‑defence was not exceeded. The position may have been different if the rightful owners had caused death without any violence being used on the part of the trespassers. The accused raised a plea of right of self‑defence .and on the evidence it is established that they had the right and acted within it. Arif is thus entitled to the right of self‑defence. He has, therefore, committed no offence, and is acquitted. A.H. Appeal accepted.