P L D 1960 (W (PLP)

ABDUL AZIZ KHAN, J.‑

Nawab, Nishan Ali, Ramzan alias Jana and Mangta were tried by the learned Sessions Judge, Sialkot, under sections 148, 302/149 and 323/149 of the Pakistan Penal Code. The allegations against them were that they, along with Ghulam Muhammad absconder, had formed an unlawful assembly in the area of village Adamke, on the 28th of July 1958, at 10 a.m. and in furtherance of the common object of that assembly, had murdered Ghulam Muhammad and had caused injuries to Sain (P. W. 11). The learned Sessions Judge acquitted Nishan Ali, Ramzan and Mangta, but convicted Nawab under section 304, Part I of the Pakistan Penal Code and sentenced him to transportation for life. The convict has appealed to this Court against his conviction and sentence.

2. The admitted facts out of which this appeal arises are that on the eventful day, i.e the 28th of July 1958, Sain (P. W. 11) and Ali Muhammad (P. W. 13) took out their herd of goats for grazing. Two of the goats strayed into the cotton field of Ghulam Muhammad absconder. Nawab appellant, nephew, and Jana, a cousin of Ghulam Muhammad absconder, who were ploughing at a distance of one field away from the cotton field, saw the goats damaging the crop. They left their ploughs, came to the field and rounded up the goats: Sain P. W. went to the field in order to seize their goats, whereupon Nawab and Jana gave him fist blows. Bashir Ahmad (P. W. 9) intervened and separated the parties. Sain P. W. went to the village abadi and informed his uncles, Ghulam Muhammad deceased and Abdul Karim (P. W. 12), of what had happened. On hearing the com plaint, Ghulam Muhammad deceased and Abdul Karim P. W. came oat of their houses, which are adjacent to that of Ghulam Muhammad absconder. In the meantime, the women folk of the complainant's party and tile womenfolk of the appellant's party also came out of their houses and began to exchange filthy language. Sakhi Ullah Khan (P. W. 10), who has his baithak close to the houses of the parties, came out of his baithak on hearing the noise and tried to pacify the parties. Thereupon, Ghulam Muhammad deceased, Sain, Abdul Karim and Ali Muhammad P Ws. went towards the fields in order to bring their goats.‑ Allah Dad Khan (P. W. 16), who according to the learned Sessions Judge is a disinterested witness, was sitting in a field which is to the west of the field where the occurrence took place. Ghulam Muhammad deceased, Sain, Abdul Karim and Ali Muhammad P. Ws. came there armed. Shortly after the appellant's party too reached there. The parties exchanged abuse with each other. Allah Dad Khan P. W. made the members of the complainant's party sit with him, whereupon the appellant's party went towards their field. The complainant's party also wanted to go after the appellant's party but Allah Dad Khan P. W. dissuaded them from doing so as it might result in a clash. The complainant's party did not listen to him and went after the appellant's party. The parties met in the field of one Nasruallah. Nawab appellant was armed with a spear and the rest of the members of his party had sotas. It is alleged that Jana, Mangta and Nishan Ali, who have been acquitted, opened the attack and gave sofa blows to Ghulam Muhammad deceased. Nawab appellant then gave two spear blows to the deceased, who fell down and died. Sain P. W. was attacked by Ghulam Muhammad absconder with a drant. According to the prosecution, Sain P. W. averted the blows with his soti.

3. Sain P. W. went to Police Station Daska to lodge a report. On his way he met Sub‑Inspector Muhammad Nasib (P. W. 17) near village Muridwala. Sain P. W. made the statement Exh. P. J. which the Sub‑Inspector recorded correctly.

4. The Sub‑Inspector sent the statement to the police station for the formal registration of a case and himself left for the spot. He prepared the inquest report and despatched the dead body to the mortuary for post‑mortem examination. On observing injuries on the person of Sain P. W., the Sub‑Inspector prepared his injury statement and sent him for medical examination. The Sub‑Inspector collected bloodstained earth from the spot and sealed it into a parcel vide memo Exh. P. C.

5. Doctor M. S. Bajwa (P. W. 1), who conducted the post mortem examination, on the 29th of July 1958, at 7.30 a.m., observed two stab wounds and five contusions on Ghulam Muhammad's dead body. Death, in the opinion of the doctor, was due to shock and haemorrhage resulting from injury to the heart and the right lung. The doctor was further of the opinion that the stab wound had been caused with a sharp‑pointed weapon while the rest of the injuries had been caused with a blunt weapon. The doctor was also of the opinion that injury No. 1 was sufficient in the ordinary course of nature to cause death.

6. On the same day, the same doctor examined Sain P. W. and observed six contusions on his body. He was of the opinion that all the injuries, which were simple in nature, had been caused with a blunt weapon.

7. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He made the following statement at the trial :‑ " A number of goats belonging to Sain and Ali Muhammad entered the field of Ghulam Muhammad absconder my uncle, and did a considerable damage to his cotton crop. Ramzan alias Jana gave beating to Sain P. W. Sain and Ali Muhammad ran away. We started with the goats for taking them to the cattle pound. I am cultivating the field along with Ghulam Muhammad jointly." While answering question No. 15, the appellant stated:‑-- " On the day of occurrence, Abdul Karim P W. armed with tangi Exh. P. 1, Ali Muhammad P. W. armed with tangi Exh. P. 2, Sain and Ghulam Muhammad deceased armed with sotis and one Tufaili armed with another tangi came to the side of our well when we were proceeding to a cattle pound with the goats already seized by us. They tried to forcibly take away the goats and attacked us. At that time Ghulam Muhammad absconder and Ramzan accused were in charge of the goats. Nishan Ali and Mangta were not present there. Ghulam Muhammad deceased advanced on Ghulam Muhammad absconder and the latter in order to save himself thrust his datar which had a sharp‑pointed end into the chest of the deceased. I did not injure the deceased with spear."

8. In support of its case the prosecution examined Sain (P. W. 11), Abdul Karim (P. W. 12) Ali Muhammad (P. W. 13), Muhammad Nawaz Khan (P. W. 14), Amir Khan (P. W. 15) and Allah Dad Khan (P. W. 16), the alleged eyewitnesses of the occurrence.

9. The learned Sessions Judge relied on the evidence of Allah Dad Khan P. W., the only disinterested witness of the occurrence. In fact he observed: "The fate of this case depends upon the statement of Allah Dad which I have accepted as correct." As regards the object of the visit of the deceased party to the well at the material time, the learned Sessions Judge's finding will be apparent from the following extract from his judgment:‑- "I am prepared to concede that the complainant party was proceeding in the direction of Kandowala well in order to retaliate the beating given to Sain earlier and to recover their goats wherever they were."

10. The learned Sessions Judge's finding shows that the complainants' party had gone to the Kandowala well in order to seize the goats which had been rounded up by Nishan Ali and Ramzan in consequence of the damage they had done to their cotton crop. Section 10 of the Cattle Trespass Act reads:‑-- "The cultivator or occupier of any land, or any person who has advanced cash for the cultivation of the crop or produce on any land, or the vendee or mortgagee of such crop or produce or any part thereof, may seize or cause to be seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce thereon, and send them or cause them to be sent within twenty four hours, to the pound established for the village in which the land is situated. All officers of police shall, when required, aid in preventing (a) resistance to such seizures, and (b) rescues from persons making such seizures." Section 24 of the same Act provides :‑‑ "Whoever forcibly opposes the seizure of cattle liable to be seized under this Act, and whoever rescues the same after seizure, either from a pound, or from any person . taking or about to take them to a pound, such person being near at hand and acting under the powers conferred by this Act, shall, on conviction before a Magistrate, be punished with imprisonment for a period not exceeding six months, or with fine not exceeding five hundred rupees, or with both." In view of the provisions of the Cattle‑Trespass Act, given above, it has to be conceded that the members of the complainants' party were attempting to do an act which is punishable under section 24 of the Cattle‑Trespass Act. Section 24 of the Act forbids resistance or opposition to the seizure of cattle liable to be seized under the Act. The members of the complainant's party were not entitled to oppose the seizure of the goats by the members of the appellant's party. The object of the complainant's party in attempting to seize the goats was to prevent them from being impounded. The fact that the members of the appellant's party were not the owners of the goats does not affect the issue. Section 378 of the Pakistan Penal Code reads:‑-- "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." Illustrations (j) and (k) to this section read:‑-- "(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z's possession with the intention of depriving Z of the property as a security for his debt, he commits theft inasmuch as he takes it dishonestly." "(k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property, inasmuch as he takes it dishonestly.". Illustrations (j) and (k) to section 378 of the Pakistan Penal Code clearly show that removal of cattle from the lawful possession of a person who has captured them under section 10 of the Cattle‑Trespass Act amounts to theft even by the real owner of the property if the removal is with dishonest intention. In the present case, as observed above, the members of the appellant's party were lawfully in possession of the goats. They had a right to impound the goats within 24 hours of the seizure. The members of the complainant's party in trying to rescue the goats were trying to remove them from the lawful possession of the members of the appellant's party with the dishonest motive of causing wrongful gain to themselves, at least with respect to the fee which they would have had to pay in retrieving the goats from the cattle pound. The learned Sessions Judge has not given any finding on this aspect of the case. It will appear from the above discussion that the act of the members of the com plainant's party amounted to theft within the meaning of section 378 of the Pakistan Penal Code. Thus the members of the appellant's party had a right to defend their lawful possession of the goats. Under section 104 of the Pakistan Penal Code they had the right to cause the wrong‑doers any harm other than death. The following passage in the judgment 'of The learned Sessions Judge will be helpful in deciding whether the appellant in fact exceeded the right of self‑defence :‑ "All Muhammad and Abdul Karim were armed with tangis Exhs. P. 1 and P.

2. These weapons have bamboo handles 11' ‑11" and 6 ' long, respectively. They have sharp iron hooks which can be used as weapon of offence. The accused naturally apprehended danger at the hands of their opponents. It was held in P L D 1956 (W. P.) Pesh. 74 that the right of private defence of body commences the moment a person apprehends danger from his assailants and he need not wait to be attacked first. If an assailant comes forward with a dagger in band to attack another, the latter having a reasonable apprehension of danger need not wait till the assailant has actually delivered the blow. If the person attacked forestalls the assailant and delivers a blow on him the latter has no right of private defence. The accused therefore, were quite justified in opening the attack on the complainant party. To this extent they acted in the right of self‑defence of their body." The learned Sessions Judge's observation given above clearly indicates that the members of the appellant's party had a right to defend their persons as well. In other words, their right had become double by process of law, i.e., defence of their property and the defence of their persons. If a thief comes armed with such a formidable weapon, as the learned Sessions Judge has described, undoubtedly the owner of the house would have a reasonable apprehension that while attempting to defend his property he may receive grievous hurt at the hands of the thief. In such circumstances, the right will extend to the causing of death as contemplated by section 103 of the Pakistan Penal Code, which reads :‑ "The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong‑doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely :‑ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * "Fourthly. Theft, mischief or house‑trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." From what has been stated above, it is quite clear that the members of the appellant's party had a clear right to cause the death of those who had come to seize the goats forcibly at any cost and risk.

11. Nawab appellant gave two stab wounds to Ghulam Muhammad deceased. One of these was simple in nature, while the other proved fatal. He accordingly caused only one fatal injury. It cannot, therefore, be said that the appellant exceeded the right of self‑defence.

12. For the reasons given above, I accept this appeal, .set aside the conviction and sentence of the appellant, and acquit him. He shall be released forthwith if not required to be detained in connection with any other case. ORTCHESON, J.

I agree. K. B. A. Appeal accepted.