P L D 1957 (W (PLP)

RAHMAN, C. J.‑

Muhammad Iqbal alias Bala has been sentenced to death for the murder of Muhammad Afzal, a Rent Inspector of the Lahore Corporation, by the learned Additional Sessions Judge, Lahore. The condemned man has appealed and his sentence is also before us for con firmation under section 374 of the Code of Criminal Procedure. The prosecution case arose in the following circum stances. In connection with the campaign for "Cleaner Lahore", the city was divided into seven sectors, each sector being assigned to a Magistrate who was supposed to supervise and help the Corporation staff in removing encroachments on public streets. Some members of the police force were also detailed for duty with the Magistrate. The Mozang area was assigned to Sheikh Abdul Jabbar (P. W. 5), Magis trate Second Class, and the deceased was a member of the staff attached to the Magistrate from the Corporation side. A number of persons, including Buta Khan (P. W. 17) and Husain Ali (P. W. 19), Sheikh Zafar Ali Rent Inspector (P. W. 6), Abiana Inspector Ilam Din, a Sanitary Inspector and a Naib Darogha of the Corporation were included in the party. The Chief Executive Officer of the Corporation gave a written authority in the shape of Exh. P. M. to Muhammad Afzal Rent Inspector to act on his behalf, inter alia, to remove, without giving notice, any stall, chair, bench, box, ladder, bale, tray or other thing from any public street, under section 289 of the City of Lahore Corporation Act. A similar delegation was made in favour of Sheikh Zafar Ali (P. W. 6). On the 28th of February 1956, this party first proceeded to Maula Bakhsh Road in Mozang and got certain ovens that were found to be encroachments on the public street, demolished. While one of the ovens was in the process of demolition, Buta Khan P. W. just by accident happened to tread over the foot of the accused, Bala, who was present. The appellant abused Buta Khan saying that the Corporation staff was vexing people and the consequences of their action may be very bad. Buta Khan pleaded that he was executing orders given by Inspector Muhammad Afzal who was standing near by and suggested that Bala might approach him. On this the deceased Inspector intervened and told Bala that he was acting under orders of superior officers and Bala should not quarrel with the lower staff. Bala again uttered the threat that callousness towards the public might entail dire consequences. The party then moved on to Lytton Road. A motor truck of the Corporation driven by Nawab Din also accom panied the party. A chhappar supported by some poles or rafters fixed into the wall, was found in front of the shop of one, Siraj Din. It was decided to demolish that chhappar as an encroachment. Muhammad Afzal Inspector was directed to carry out this order through the staff accompany ing him. The Magistrate and some others, including Sheikh Zafar Ali, proceeded ahead after giving these instructions. The Magistrate was ten or fifteen paces in advance of Sheikh Zafar Ali while doing so. The chhappar was found to be a tough proposition to tackle and Muhammad Afzal directed that the motor truck be driven backwards towards the chhappar so as to dislodge it. Kalu, Alamgir, and Husain Ali peons were on the truck. Buta Khan stood by the door of the vehicle and Inspector Muhammad Afzal was by his side when peons in the truck commenced taking down the material of the chhappar. Muhammad Afzal had his back towards the Lytton Road and was facing the chhappar. Bala accused suddenly appeared from behind Muhammad Afzal, whipped out a dagger and gave three blows with it, in the buttocks of Muhammad Afzal The latter tottered towards the truck and fell down crying that he was killed. He was supported by the Corporation staff into the truck which was driven towards the Magistrate. Bala accused commenced dancing with the dagger in his hand, picked up sodawater bottles from a shop near by and hurled them at the crowd in order to scare them away. One of the constables, who was accompanying Muhammad Afzal, was also the target of one of the bottles, but he saved himself by stepping aside. No one tried to apprehend the assailant who then went away towards the r7anazgah and the grave yard of Miani Sahib. Information of the incident was conveyed first to Sheikh Zafar All P. W. who was going in the rear of the Magistrate. He saw the deceased in the truck and directed that he should be taken to the Ganga Ram Hospital at once. Sheikh Zafar Ali informed the Magistrate of what had happened, and when he was returning towards the spot, he met the truck carrying the deceased. He himself took his car which was parked close by and went to the hospital where Muhammad Afzal was admitted as a patient. On learning of the incident, the Magistrate proceeded at once to the Police Station Mozang, which was not far, and gave a written report (Exh. P. K.) on which the case was registered. In this report the Magistrate recited that he was near Takia Machhian when he was informed that Inspector Muhammad Afzal of the Corporation had been stabbed with a dagger by a man named Muhammad Iqbal alias Bala who had run away from the spot and that the injured man had been sent in the Corporation truck to the Ganga Ram Hospital. He added that the condition of the injured man was said to be dangerous and that the occurrence had taken place at about 5‑30 p.m. The report was given at the police station at 5‑45 p.m. Muhammad Afzal was attended to by Dr. Miss Nasima, Casualty Medical Officer of the Hospital, (P. W. 2), at 5‑45 p.m. She enquired from him how he was wounded and he told her that he had been attacked from behind and knew nothing more. The man, though generally in good condition, was restless and was crying and complaining of pain in the opigastrium. The lady doctor noticed one injury on the gluteal region, another at the end of the natal claft, and a third on the dorsum of the left thigh. There was moderate bleeding from the first and the second wounds, but the third injury was superficial and there was no bleeding from it. The injuries were fresh. She stitched the wounds and the patient was then admitted to the Male Surgical Ward of the hospital for proper treatment. While in the Ward, Dr. Amina Bootwala (P. W. 3) was in charge of the patient, and on the 29th of February 1956, at 2 p.m, she wrote the chit, Exh. P. F. requesting that the dying declara tion of the patient may be recorded A Magistrate came with the police at about 2‑.20 p.m. She certified that the patient was in a fit condition to make a statement and the Magistrate then recorded the dying declaration of Muhammad Afzal, Doctor Amina Bootwala deposed that when the patient was brought to her from the Casualty Ward on the 28th of February 1956 at 7‑10 p.m., he was unconscious. He died on the 3rd of March 1956 at midnight in spite of all possible medical aid. She testified that Muhammad Afzal had revived before she sent the chit Exh. P. F. Doctor Mushtaq Ahmad Khan performed the autopsy on the deceased's body after his death. He noticed two incised stab wounds, one on the lower part of the right buttock, going into the muscles in forward and inward directions up to a depth of six inches, and the other on the middle line and lower part of the sacrum, going into the pelvic cavity and opening the peritoneal cavity. There was another stitched incised wound in the back of the upper part of the left thigh. Rectum vessels were found cut on the right side in the pelvic floor. Clotted blood was present in the abdomen. Faecal matter was found in the peritoneum and the pelvic cavity. The omentum had matted. The small intestines were punctured. Death, in the doctor's opinion, was due to shock and haemorrhage and peritonitis following injuries to the right rectum vessels and the opening of the peritoneal cavity and injuries to the small intestines. The injuries were sufficient in the ordinary course of nature to cause death and had been inflicted with a sharp‑pointed and cutting weapon. Direct testimony about the stabbing incident was given at the trial by Buta Khan (P. W. 17), Allah Din (P. W. 18) and Husain Ali (P. W. 19). Alamgir and Kalu, two other Corporation employees, who were originally cited as P. Ws., were given up by the learned Public Prosecutor at the trial on the ground that they had been won over by the accused. Out of the eye‑witnesses actually examined, Buta Khan and Husain Ali are peons in the Corporation, while Allah Din is a resident of the locality in which the incident occurred. All three claimed to have known Muhammad Iqbal alias Bala accused prior to the occurrence. Buta Khan stated that he had been seeing this accused previously, moving about in the lane in which he lived. He could point out the lane though he could not name it. He had no talk on any previous occasion with Bala accused, but he had observed him sitting on Lytton Road several times with Siraj Din shop‑keeper and at other places on that Road. Husain Ali also claimed to have seen Bala accused once or twice before, during his visits to the area of Mozang. Allah Din being a resident of the locality itself, his statement that he knew the accused before, was not challenged. These three witnesses gave full support to the prosecution story, and the discrepancies pointed out in their depositions are not so material as would suffice to shake their credit. Buta Khan stated at the trial that at the place where Siraj Din's chhappar was being demolished. Bala accused came up quietly behind the deceased and stabbed him without saying anything. To the police, however, he had said that Bala had declared before the stabbing that the Corporation staff: were teasing the people unnecessarily. He explained that words to that effect had been uttered by the accused on the Maula Bakhsh Road. Allah Din asserted that before the stabbing, the appellant shouted that the public had been too much harassed and that ovens had been demolished. Husain Ali apparently did not hear these words. He only noticed the appellant giving the third and the last blow to the deceased. In other respects, however, the witnesses are quite consistent with each other in describing the details of the incident. None of them was proved to be in any manner actuated by malice against the appellant and their credibility was not assailed by learned counsel for the defence on this ground. Mr. Manzur Qadir tried to argue that the peons in fact did not know the appellant prior to the incident and that Allah Din was not an actual eyewitness and had been persuaded to become one as he was under police influence. I do not see any sufficient reason for holding that Buta Khan and Husain Ali were not familiar with the face or name of the appellant prior to that day or that Allah Din was put up as a false witness by the police. Allah Din is a chaudhri of the slaughter house in Mozang and in that capacity he has been appearing as a witness for the prosecution in certain cases before. He is apparently a person of some importance and status in the locality. It does not follow, however, that he was a stock witness of the police and at their beck and call for giving false evidence. The statement of Buta Khan had been recorded by the Sub‑Inspector on the very first day in the hospital. The other two eyewitnesses were examined the next day as they were not available in the hospital when the Sub‑Inspector went there. These persons had clearly no motive to perjure themselves in the present case and to involve the appellant falsely on a heinous charge of murder. I consider that the account given by them was substantially correct. There is also the supporting evidence of Sheikh Abdul Jabbar, Magistrate, (P. W. 5), and Shaker Zafar Ali (P. W. 6). They were promptly informed that Muhammad Iqbal alias Bala had stabbed Muhammad Afzal and are port was lodged with the police without any delay by the Magistrate, reciting this fact. With regard to the dying declaration of the deceased, we have the evidence of P. W. 4 Khan Aftab Ahmad Khan, Magistrate 1st Class. who took down the statement, Exh. P. L. to the dictation of the deceased, and of Rashid Akhtar (P. W. 12), brother of the deceased, who was present in the hospital at that time. The Magistrate deposed that the deceased was in his senses at the time and he correctly record ed whatever he stated to him without any omission or addition on his part. It was read over to the deceased after completion, admitted by him to be correct and signed by him. The coat and the shirt of the deceased, which bore cut marks, were handed over to the police under the directions of the Magistrate. Rashid Akhter deposed that at times Muhammad Afzal was unconscious in the hospital, but he revived occasionally. It was in a lucid interval that the dying declaration was recorded. The statement Exh. P. L. is in consonance with the eyewitnesses' testimony. The deceased described the first incident that took place at the oven between Bala accused and Buta Khan P. W., and that the same man came and stabbed him when he was getting the chhappar of Siraj Din demolished. After injuring him, Bala holding a dagger in his hand, danced wildly, declaring that he would finish the employees of the Corporation who might advance towards him. The officials with the truck, fled away owing to fear. He was conveyed to the hospital in an un conscious state and he came to later. The deceased also mentioned in the course of his statement that the owners of the thatched but had asked for time to remove the same and the deceased told them that no time could be given because the officer in charge was with them and the people should approach him for permission. At that time the Magistrate had gone ahead towards the mosque along with the police people. This statement of the deceased is com pletely in accord with the prosecution story as told by the eyewitnesses. It was suggested that the deceased based his recitals of fact on what he may have been told in the hospital by others, and in this connection stress was laid on the very brief statement that the deceased had made to Dr. Miss Nasima. I do not think that the suggestion has any substance in it. When the lady doctor first questioned the deceased, he was evidently in great pain and, in all probability, he did not want to talk. There is no evidence forthcoming that the deceased was coached in the hospital as to what he had to say by any person, before the Magistrate recorded his statement. During the investigation, a dagger was recovered from a well at a short distance from the site of occurrence, at the instance of the appellant, in the presence of Muhammad Ali (P. W. 14) and Miraj Din (P. W.15). The investigating officer, Hafiz Ahmad Inspector (P. W. 20), supervised the recovery. The diver was Muhammad Husain (D. W. 1), who was given up by the prosecution as a hostile witness and was then examined in defence. The first two witnesses appear to me to be quite disinterested in the case and they both deposed that at the police station where they were called, the appellant had told the Inspector in their presence that he would point out the well where he had thrown the dagger. He then led the police party to that well, and the diver brought out the dagger. . Miraj Din acknowledged in the course of his cross‑examination that Bala at one time had a trivial quarrel with him over the question of the sale of a goat by his brother to Bala. The appellant cancelled the transaction and wanted his money back, which was returned to him. This would be hardly any justification for holding that Miraj Din was giving false evidence in this case. The only variation introduced by D. W. 1 Muhammad Husain into the situation was that in his presence, the accused had no talk with the police and that the Police Inspector, whom he described as the thanedar, took the diver to the well and told him that the chhuri had been dropped there. He further alleged that he brought out a leather bucket containing a dagger from the well, but the other witnesses denied that the bucket was there. Muhammad Husain is an original resident of Mozang area, and it seems to me that he has deliberately differed from the P. W' s., to help the accused. It is significant that in his cross‑examination at one stage this witness admitted that he could not rule out the possibility of the accused having talked with the police at the police station which the witness did not enter. He also at one stage stated that Bala accused was ahead of the party that proceeded towards the well, but added in the same breath that the Inspector was leading the party. I am satisfied that the evidence given by the Inspector and the two prosecution witnesses represented the truth in this case. The dagger having been in the water for some time, was not found to be stained with blood, but to the extent that a dagger was recovered ' at the instance of the accused from a well, the circumstance does lend some support to the prosecution allegations against the appellant. The accused was arrested in this case on 4th March 1956, and could not be found by the police earlier. When examined in the committing Magistrate's Court, Muhammad Iqbal denied the truth of the prosecution case against him and reserved his fuller statement for the trial. Before the learned trial judge he added that he did not abscond after the occurrence. On the day of the occurrence itself, according to him, he was taken into custody by the police along with one, Shido. The police detained them for four days. He was beaten by the C. I. A. Staff and told to make a statement before a Magistrate. When he was taken before the Magistrate, however, he made the statement Exh. D. F. in which he refused to inculpate himself. He suggested in that statement that he was playing chaupat at the takia of Nasir Din, when there was a commotion and shouts were heard. People were seen running about, including some policemen. Some people, who had sodawater bottles in their hands, were throwing them at the police and the officials of the Committee. The appellant went up to the spot and learnt that Bala Pathan had murdered an employee of the Committee. The suggestion in defence, therefore, was that another person, named Bala, was the murderer. This suggestion was sought to be strengthened by the evidence of Ismail (D. W. 2) who stated that there were at least sixteen other Muhammad Iqbals in Mozang area, all known as Balas. In my opinion, this defence evidence does not help the appellant to any material extent. The identity of the culprit is, in my opinion, amply established on the record by the prosecution evidence. There was no rhyme or reason why the P. Ws. should have fixed on the appellant instead of the real culprit, I am, therefore, convinced that it was Bala appellant who attacked the unfortunate Rent Inspector with a dagger and gave him fatal injuries. Mr. Manzur Qadir, who appeared on behalf of the appellant, tried to maintain that in attacking the deceased, the appellant was exercising the right of private defence of property belonging to Siraj Din. This defence was not specifically adopted by the accused at the trial but of course that does not preclude learned counsel from making out a case on that basis, from the proved circumstances. Learned counsel also attempted to suggest somewhat feebly that the appellant himself may have had an interest in the chappar that was demolished. In this connection he drew our attention to the statement of the deceased to the effect that the chappar belonged to some badmashes, like Siraj, Bala, etc. The deceased may have had this impression, but it does not prove that Bala was one of the owners of the chappar, In fact he did not take this position at the trial, and there is no other evidence on the file to establish that Bala had a proprietary interest in the chappar. All that the P. Ws. stated is that he was occasionally seen sitting with Siraj Din. However, it is not necessary that he should have been the owner of the chappar in order that the right of private defence of property might have accrued to him. Section 97, P. P. C. gives every person a right, subject to the restrictions contained in section 99, to defend the property, whether movable or immovable, of himself or of any other person against any act which is an offence falling, inter alia, under the definition of mischief, or attempt to commit that offence. It is contended on behalf of the appellant that the action of the Rent Inspector in ordering the demolition of the chappar amounted to "mischief" within the meaning of section 425, P. P. C., and, therefore, section 97 P. P. C. was attracted to the case. The substantative part of section 425 runs as follows :‑ "Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'mischief' ". It is argued that the Rent Inspector having been authorised by the Chief Executive Officer of the Corpo ration to remove obstructions from the public streets under section 289 of the City of Lahore Corporation Act, 1941, which authorises only removal of articles that could be deposited or placed on any street, he had no legal authority to order demolition of the chappar which was a figure to a wall and which properly fell within the purview of section 286 of the Act. For removal of such a nuisance, if it overhangs a public street, it is necessary that under subsection (2) of section 286, the Chief Executive Officer should have given a written notice to the owner or occupier of the premises for its removal. Further action, if the notice was not complied with, would have been possible according to the argument, under 'sections 343, 404 or 408 of the Act. On the basis of these sections it is urged that the act of the deceased Inspector was wholly illegal in ordering demolition of the chhappar, and consequently section 99 P. P. C. could not have been invoked by him if somebody resorted to the exercise of the right of private defence of property against the offence of mischief. In support of this proposition, learned counsel cited Jagoraj Mahto v. Emperor (A I R 1940 Pat. 696); Queen‑Empress v. Tulsiram (I L R 13 Bom. 168); Queen‑Empress v. Jogendra Nath Mukerjee (I L R 24 Cal. 320) ; Achhru Ram v. Emperor (A I R 1926 Lah. 326), Sukar Sao v. Emperor (A I R 1941 Pat. 560.) and Hag Dad v. The Crown (A I R 1926 Lah. 19). The principle that emerges from a consideration of these authorities is that if the act of a public servant is wholly illegal, section 99 P. P. C. does not apply, although the public servant may be acting in good faith or under orders of superior officers, under colour of his office. That section only applies where there is juris diction to do an act, but that jurisdiction has been, in some respects, wrongfully exercised, when, for example, the authority, though present, is, in some respects, defective. Section 99 P. P. C. would have negative the plea of private defence raised against an act which does not reasonably cause apprehension of death or of grievous hurt, if done or attempted to be none, by a public servant acting in goods faith under colour of his office, though that act may not be strictly justifiable by law. The point of law as expounded by the learned counsel for the appellant does not appear to me to be open to exception. The question, however, is whether it is apt in the circumstances of the present case. It is clear from the language of section 97, P. P. C. that a condition precedent for the accrual of a right of private defence is the commission of an offence, and in the context of the present case that offence, it is suggested, was mischief. Having regard to the circumstances of the present case, however, I am not disposed to accept the contention that the deceased was guilty of mischief within section 425, P. P. C. He was a public servant acting under the orders of a Magistrate who had been deputed to supervise removal of encroachments. He had been armed with a written authority by the Chief Executive Officer of the Corporation, which extended to removal of obstructions on the public streets, such as are mentioned in section 286 of the Corporation Act, and he may have bona fide thought, though wrongly, that the removal of the offending chhappar fell within the scope of his authority. In the circumstances, he could not have been credited with the intention of causing wrongful loss or even attributed the knowledge that he was likely to cause such loss. The mere fact that wrongful loss was actually caused to the owner, would not be sufficient to bring his act within the four corners of section 525 P. P. C. Reference in this connection may be made to Packrive Pillay v. Muthukrishna Aiyer (A I R 1920 Mad. 660 (1)); Sebastian Lobo v. Mingel D'Souza (A I R 1932 Mad. 676); Jambulingam Pillai v. Ponnuswami Pillai (A I R 1939 Mad. 400); In re Dharamalinga Mudali and others (A I R 1915 Mad. 73) ; Sarat Chandra. Sen v. Yakub Talugdar (A I R 1924 Cal. 805) and Natha Singh v. The Emperor (6 P R 1903 (Cr.)). These are authorities for the view that a person is not criminally liable for acts of mischief, when the act complained of was committed under a bona fide exercise of a supposed right and without the requisite intention or knowledge to cause wrongful loss, even though the belief in the right may, be mistaken. The act of the deceased was not, therefore an offence, and no right of private defence would accrue to Siraj. Din or anybody else in the circumstances. The effect of section 98, P. P. C. remains to be considered in this connection. This section provides that when an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind, or the intoxication of the person doing that act, or by reason of any mis conception on the part of that person, every person has the same right of private defence against that act, which he would have if the act were that offence. The only words in this section which could have been relevant to the present case are: "By reason of any misconception on the part of that person": It is conceded by Mr. Manzur Qadir that the misconception in this context should be a misconception of fact such as is visualized in section 79, P. P. C. Clearly the deceased could not be said to have been under any misconception of fact in acting as he did, though he may have misconstrued his legal authority. It is, therefore, agreed by Mr. Manzur Qadir that if the act of the deceased was not an offence of mischief by virtue of the ingredients of that section not having been satisfied, there was no question of section 98 being invoked. Section 98 is apparently an exception to the rule that the act which gives rise to the right of private defence should be an offence. However, in the instant case this section has clearly no application. The legal point raised in this case has the merit of ingenuity, but I am inclined to hold that it did not really arise on the facts of the present case. The prosecution evidence, to my mind, makes it clear that the appellant did not purport to act in the exercise of any right of private defence of property. The stabbing appears to have been a purely vindictive act directed towards punishing a Corporation official against whom the appellant had come to entertain feelings of hatred. If the witnesses' statements are believed, before the attack, the appellant shouted that the public was being vexed and that ovens had been demolished. This would not connect his act with the demolition of the chhappar, but would merely indicate that he was harbouring a resentment against the Corporation staff for their general behaviour and was, therefore, out to punish one of them. Even if these words were not uttered by the accused prior to the attack, the position would not, in my opinion, improve for the accused. His act had no ostensible relation to the demolition of the chhappar. He came surreptitiously from behind the deceased. The actual demolition work was being done by some peons with whom the appellant did not at all interfere. On a consideration of the facts and circum stances of the case, therefore, I have reached the conclusion that the act of .the appellant was a sheer act of goondaism which had no organic connection with the demolition of the chhappar. The question of defence of property, therefore, does not arise. There can be no two opinions about the fact that the attack on the deceased was homicidal in character. The injuries caused with a dangerous weapon were sufficient in the ordinary course to lead to death, and the appellant must be attributed the intention of inflicting them. The offence under section 302, P. P.. C., therefore, has been brought home to the appellant, and he was rightly convicted and sentenced. I see no mitigating circumstance such as would justify leniency in the matter of punishment in this case.‑ I would, therefore, dismiss the appeal and confirm the sentence of death imposed on the appellant. AKHLAQUE HUSAIN, J.‑

I agree, as pointed out by my Lord the Chief justice there is not, upon the facts of this case, the slightest foundation for the plea of defence of property. The accused while making the murderous assault, did not act in defence of property or person. It is a clear case of barbarous high‑handed ness‑unfortunately so common these days. A. H. Appeal dismissed.