P L D 1955 Lahore 575 (PLP)

SHABIR AHMAD, J.--‑An incident, which occurred in Khasra No. 3163 of village Ikhlas in the District of Campbell pur at about 10 a. m. on the 12th of August, 1953, resulted in Subedar Nawab Khan receiving a very large number of injuries of which he died at the spot. A report about the incident was made the same day within two and a half hours thereof by Ahmad Khan, a son of the victim, at Police Station Pindi Gheb, which is at a distance of about four miles from the scene of the occurrence. It was said in the report that the victim had been assaulted by Mehr Khan, his brother Habib Khan and Sultan Muhammad a brother‑in‑law (sister's husband) of these two and that Ahmad Khan, son of Khan Bahadur, a resident of village Ikhlas, had abetted the offence. The police challaned all the four persons mentioned in the report for the murder of Subedar Nawab Khan, but Mr. Riaz‑ul‑Haq, Magis trate 1st Class, Pindi Gheb, who held the inquiry under Chapter XVIII of the Code of Criminal Procedure, finding that there was no case against Ahmad Khan son of Khan Bahadur, passed an order of discharge in his favour under section 209 of the Code of Criminal Procedure and committed the other three to stand their trial before the Court of Session at Camp bellpur. The case was tried by Ch. Fazl‑i‑Haq, the then Sessions Judge, Campbellpur, who, by his order dated the 16th of December, 1953, sentenced Mehr Khan, Habib Khan and Sultan Muhammad to transportation for life under section 302 read with section 34 of the P. P. C. The three convicted persons have presented a joint appeal question ing their conviction and Ahmad Khan, the son of the victim, has presented two petitions for revision. One, of these petitions (Criminal Revision No. 175 of 1954) is against the order of Mr. Riaz‑ul‑Haq, Magistrate 1st Class, Pindi Gheb, discharging Ahmad Khan son of Khan Bahadur and the other (Criminal Revision No. 209 of 1954)' is against Mehr Khan, Habib Khan and Sultan Muhammad with a view to having their sentences enhanced to death. In these petitions for revision no notice was issued, it being merely, ordered by the Bench dealing with them at the preliminary hearing that they were to be considered along with the appeal of the convicted persons. This order will dispose of the appeal and the two petitions for revision. According to the prosecution, the motive for the fatal assault or. Subedar Nawab Khan was a dispute over the land in Khasra No. 316" which was claimed by Sultan Muhammad appellant and another Sultan Muhammad who appeared as P. W. 11 at the trial. The dispute was that while Sultan Muhammad appellant said that the land belonged to him, the other Sultan Muhammad claimed that it was his. It appears that in order to support nix own claim to the land Sultan Muhammad (P. W. 11) exchanged it with some land belonging to Subedar Nawab Khan, but Sultan. Muhammad appellant did not accept this as a transaction binding on him. On the morning of the occurrence Subedar Nawab Khan accompanied by his two sons Ahmad Khan and Muhammad Iqbal went to the land iii Khasra No. 3163 and pulled out some bushes and cut a beri tree. When the bushes were being uprooted, the three appellants reached the land iii dispute and attacked the victim who was beaten to death at the spot. At the trial, the prosecution case was supported by Ahmad Khan (P. W. 2), Muhammad Iqbal (P. W. 3), Sher Khan (P. W. 4), Nawab Khan (P. W.5) and Nawab (P. W. 6), the first two of whom gave the eye‑witness account of the occur rence, while the other three deposed that they had seen the appellants with arms in their hands going to and returning from the land where Subedar Nawab Khan was killed. The statement of Sher Khan (P. W. 4), who is a cousin of the deceased, was not relied upon by the learned trial judge on the ground that his name did not figure in the first information report as an eye‑witness but the statements of the other four witnesses were accepted as correct. Ahmad Khan (P. W. 2), a 19 years old young man, stated that at about 10 a. m. on the 12th of August, 1953, he, his father and his brother were clearing the bushes from the land where the occurrence took place but on feeling thirsty he went to a near‑by habitation to drink water. He was return ing to the land to continue his work when he saw the three appellants coming from the house of Sultan Muhammad appel lant which is near‑by. Before he could reach where his father was the three appellants had reached there and Sultan Muhammad appellant opened the attack on Subedar Nawab Khan by giving him a blow on his neck which was followed by a blow given by Habib appellant on the right cheek of the victim. The victim fell down at which Mehr Khan appel lant caught his neck and pressed it, while the other two appellants showered blows on him. This beating continued till the victim lost consciousness and releasing his neck Mehr Khan started giving the unconscious prostrate Subedar blows with a spear. The witness added that his attempts and those of his brother to rescue their father were met with threats by the appellants that if they dared come near they will be dealt with in the same manner as their father had been. The statement of Ahmad Khan (P. W. 2) is corroborated in all material details by that of Muhammad Iqbal (P. W. 3), a boy about 16 years of age. Further corroboration is furnished by the statement of Nawab Khan (P. W. 5) who said that some time after sunrise on the day of the occurrence he had been the three appellants going together towards the field where Subedar Nawab Khan was attacked and returning at about 11 a. m. and that at about 11‑30 a m. the same day he learnt that Subedar Nawab Khan had been done to death. Nawab Khan (P. W. 6) also deposed that he had seen the three appellants when he was working in his maize field in the morning and saw them returning about two hours later and that soon after he learnt that Subedar Nawab Khan had been killed. The appellants, when questioned to explain the evidence against them, denied their participation in the occurrence which resulted in the death of Subedar Nawab Khan and said that they had been implicated falsely because of the enmity of the prosecution witnesses with them. No evidence was produced in defence. The learned counsel for the appellants urged that as the two eye‑witnesses produced by the prosecution were the sons of the victim, their statements should not be accepted, but with this contention I cannot agree. The mere fact that a witness is related to the victim of a crime is no ground for discarding his statement unless there be some good reason for doing so, because a person who is related to the victim of a crime is as competent a witness under the law as any other person. When considering the evidence of relatives it must not be forgotten that ordinarily it would be their desire to see' that the real culprit was brought to book. To support his argument that the statements of Ahmad Khan (P. W. 2) and Muhammad Iqbal (P. W. 3) should not be accepted the learned counsel for the appellants pointed to the fact that neither of them bore any injury on him, but it is obvious that the reason why these two witnesses were not attacked by the assailants was that they kept away lest they meet the same fate as their father had. I can think of no valid ground for not accepting the depositions of Ahmad Khan (P. W. 2) and Muhammad Iqbal (P. W, 3) which are corroborated in all material details by those of Nawab Khan (P, W. 5) and Nawab Khan (P. W. 6). It is true that Nawab Khan (P. W. 5) said that all the three appellants were carrying dangs while the other witnesses said that Mehr Khan carried a barchha, but the slight discrepancy appears to have been due to the fact that at the time when he saw the appellants Nawab Khar. (P. W. 5) failed to notice the blade of the spear. I have not taken into consideration the statement of Sher Khan (P. W. 4) which, as mentioned already, had been kept out of consideration by the learned trial judge, but even without the statement of that witness the evidence on the record "is, in my opinion, sufficient to establish beyond all reasonable doubt that the assailants of Subedar Nawab Khan were no other than the three appellants. The statements of the witnesses that Mehr Khan appellant carried a spear and the other two carried dangs receive ample corroboration from the statement of Dr. Muhammad Khalid Chaudhry (P. W. 1) who, when performing the pos‑mortem examination on the dead body, found the following injuries thereon :‑ (1) An oblique lathi mark 8" x 1" over the left side of chest. (2) A bruise covering an area of 5" x 3 " continuous with the upper end of injury No. 1. (3) A horizontal bruise covering an area of 7 " x 2" over the front of the chest at the level of nipple. (4) A bruise covering an area 4" x 2" to the left side of neck. (5) An oblique lathi mark 5" x 1" over the front of left thigh upper third. (6) An oblique lathi mark 5" X 1" over the front and outer side of left thigh middle third. (7) An oblique lathi mark 4" x ", just above injury No. 6. (8) A vertical bruise 7" x 2" over the front and inner side of left leg lower two third. (9) An oblique lathi mark 4" x 1 " over the outer side of left leg middle third. (10) A bruise covering an area of 4" x 2" over the back of left thigh middle third. (11) A horizontal lathi mark 2" x 1" over the back of left calf middle third. (12) A horizontal lathi mark 4" x 1", about 1f" above injury No. 11. (13) A nearly horizontal incised penetrating wound " x " bone deep over the outer side of right leg lower third. The bone underneath had been fractured into pieces. (14) An obliquely placed bruise covering an area of 7" x 3" over the front and outer side of right thigh middle third. (15) A horizontal lathi mark 4" x 1" over the front of right thigh lower half. (16) A big bruise (horizontal) covering an area of 18" x 6" over the back of chest upper half. (17) A nearly vertical bruise 8" x 2 " crossing the lower part of thoracic spine. (18) A nearly vertical lathi mark 5" x 1", about 2" to the left of injury No. 17. (19) A nearly vertical lathi mark 8" x 1 ", about 1" to the left of injury No. 18. (20) An oblique bruise 5" x 2" just to the right of upper part of lumber spine. (21) An extensive bruise over the right buttock. (22) Multiple bruises over the left buttock. (23) An oblique lathi mark 6" x 1" over the right side of chin and lower jaw. The lower jaw bone was fractured a little to the right of middle line. (24) A superficial incised wound It" x r a x, skin deep over the outer side of right ear. (25) A vertical lathi mark 2" x 1" over the right side of neck and behind the right ear. (26) An incised vertical penetrating wound " x " x bone deep over the back of right elbow joint. (27) An oblequely placed lathi mark 7 " x 2" over the left side of the chest, meeting injury No. 1 at right angle. Of these injuries three, namely, injuries Nos. 13, 24 and 26 were caused with a sharp penetrating weapon and the others with a blunt weapon. The number of injuries on the victim were so large that I can see not the slighest risk in ‑accepting the prosecution evidence that the assailants were three in number, two of whom carried dangs and the third a spear. The question to consider now is if the appellants com mitted any offence and if so what. Learned counsel for the appellants urged that even if the appellants be held to have caused injuries which resulted in the death of the deceased they were not guilty of any offence because they acted it the exercise of the right of private defence of their property and that, at any rate, their offence would not be one of murder because at worst it was a case of exceeding the right of private defence which had accrued to them. It is established by the deposition of the Patwari who appeared as P. W. 10 at the trial that the entries in the Khasra Girdawari showed that Sultan Muhammad appellant and his brother Amir Khan had been in possession of Khasra No. 3163 from Kharif 1951 to April, 1953. The claim of the appellants was that Sultan Muhammad was in possession of the land on the day of the occurrence and, as there is no evidence to rebut that claim, I am inclined to accept it and will therefore proceed on the assumption that when Subedar Nawab Khan was done to death he had no claim to the possession of the land, entering on which he cut a beri tree and uprooted some shrubs. The act of the deceased in going to the land about which there was a dispute would amount to criminal trespass and his act in cutting the beri tree standing on that land would be an offence of mischief. The deceased being a trespasser the appellants had a right of private defence of property against him, and if it could be held that what was cone by the appellants was done in the exercise of that right they would be guilty of no offence. The P. P, C. allows the use of force in the exercise of right of private defence within defined limits and it is clear that if those limits are transgressed the transgression cannot be said to be the exercise of the right of private defence. However, when trying to determine if the force alleged to have been used in exercise of'the right of private defence did or did not transgress the limits prescribed by law the Court has to keep in view the fact that when a person is using force to avert harm he cannot be expected to be meticulous about the limits which the law imposes on a person given the right to use force against a wrong‑doer. If, however, it is held that the force used was excessive the case may be one of exceeding the right of private defence or even one in which no question of the accused having merely exceeded the right of private defence arises. If, for example, the right of private defence is made a pretext to cause to a person commission offence by whom gives the right of private defence more harm than could be caused in the exercise of that right the person who causes the excessive harm cannot say that he had exceeded the right of private defence and, therefore, should not be treated as if he was responsible for his act to the fullest extent. To take a concrete case, if a person whose flowers are plucked by the boys in the neighbourhood were one day to shoot those boys I for one would not be prepared to accept the contention that it was not a case of murder but one of culpable homicide not amounting to murder because the owner of the flowers had a right of private defence which he had exceeded. In the example I have taken the exercise of right of private defence would be nothing but a pretence to kill the boys and it could never have been the intention of the law that cases of this type be treated as ones of exceeding the right of private defence contemplated by it. In the same manner if a person uses force when the right of private defence has come to an end he cannot claim to be treated as if he had acted in the exercise of right of private defence or had merely exceeded that right. Before I proceed to consider if the contention of the learned counsel for the appellants with regard to the appel lants not being guilty at all or merely of an offence less serious than of murder is correct I will make a brief reference to the relevant provisions of the P. P. C. Section 97 of the P. P. C. gives every person a right to defend his own body and the body of any other person against any offence affecting the human body as well as to defend his own property, whether movable or immovable, or property of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit any of these offences. The section mentions that the exercise of the right is subject to restrictions contained in section 99 of the P. P. C. which section lays down, inter alia, that the right of private defence in no case extends to the inflicting of n1ore harm than it is necessary to inflict for the purpose of defence. Sections 103 to ‑105 deal with the right of private defence in cases of offences against property. The first of these sections enacts that a person may voluntarily cause the death of the wrong doer if the offence of the wrong‑doer which is the occasion for the exercise of the right of private defence is robbery, house‑breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property or is 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 or private defence is not exercised. Here again it is said in the body of the section that the exercise of the right of private defence is subject to the restrictions contained in section 99 of which the one relevant for the purpose of the present case, I have already mentioned. Section 104 of the P. P. C. enacts that if the offence against property which gives rise to the exercise of the right of private defence is not any of the kind mentioned in section 103 of the P. P. C. the right of private defence extends to the voluntary causing to the wrong‑doer of any harm other than death subject again to the restrictions con tained in section 99 of the P. P. C. Section 105 of the Code which defines when the right of private defence commences and when it terminates says with regard to the offences of criminal trespass and mischief that the right of private defence of property against criminal trespass or mischief commences when a reasonable apprehension of danger to the property commences and continues as long as the offender continues in the commission of criminal trespass or mischief. Taking the facts of the present case one finds that when the trespass by the deceased was in progress the appellants came to the land carrying weapons one of which, namely the spear, was of a highly dangerous character. It was argued by the learned counsel for the Crown that the carrying of these dangerous weapons would point to the appellants having already decided to cause fatal injuries to the deceased and the attack on the deceased being nothing but a pretext of exercise of the right of private defence, no question of the exercise of that right or exceeding it arose in favour of the appellants. This argument is not without force, but as it is not unlikely that the appellants may well have entertained the belief that the deceased and his com panions may use force the mere fact that they carried arms of a dangerous character should not by itself be taken to be proof of their having come to the land in dispute with a view to kill the deceased. When the appellants came on the land they did not ask the deceased to leave it but set on him at once and two of them caused him one injury each which felled him to the ground. It is to be remembered that at the time when this attack was opened the offence of mischief committed by the cutting of the beri tree had already been completed and all that the deceased was guilty of at that moment was an offence of criminal trespass. It is by no means unlikely that if the deceased had been asked, to leave the land he would have left it, but stretching a point in favour of the appellants, I am prepared to hold that the first two blows with dangs were given in the exercise of the right of private defence of property which the appellants had against the illegal act of the deceased. The prosecution evidence, which there is no reason to doubt, is to the effect that as soon as the deceased fell down on receipt of the first two dang blows Mehr Khan appellant caught him by the neck and the other two showered blows at him with dangs till he lost consciousness. When the deceased lay unconscious Mehr Khan appellant caused him injuries with a spear one of which, namely, injury No. 13 found by the doctor on the dead body of the deceased, resulted in fracture of a bone at many places which would show that tile spear thrust was given with considerable force. The doctor at the time of the post‑mortem examination found that 4th, 5th, 6th, 7th, 8th, and 9th ribs of the deceased were broken and the evidence makes it clear that the blows which caused the fracture of six ribs of the deceased were given to him when he lay prostrate on the ground. To hold that wheal the three appellants who were heavily armed caused fatal injuries to a prostrate man they were either exercising the right of private defence of property or were merely exceeding it would be to shut one's eyes to the provisions of law appli cable to cases of exercise of right of private defence, because if a person intentionally causes more harm than is necessary for the purpose of defence and offends against section 99 of the P. P. C., he cannot be said to be exercising that right. Section 105 of the P. F, C., a gist of the relevant part of which I have already given, enacts that the right of private defence against mischief or criminal trespass continues only till danger to that property continues, whi::h would mean that as soon as the danger which gives rise to the exercise of the right of private defence comes to an end, the right ceases. The offence of mischief which the deceased had com mitted by cutting the berg tree having been completed no right of private defence with regard to it existed at the time when the appellants came on the land in dispute as there was no reasonable apprehension that the deceased would cut any other tree when the appellants were on the land. The only offence, therefore, with regard to which the appellants could exercise a right of private defence was one of criminal trespass for which the infliction of the two blows which were dealt to the deceased before he fell down should have been more than sufficient. It follows, therefore, that the injuries which the deceased received at the hands of the appellants after being knocked down by the first two dang blows cannot be considered to have been given in the exercise of the right of private defence. It is true that the deceased had not left the land but as the appellants themselves had by knocking him down made him incapable of leaving it, they cannot claim that because the deceased, though prostrate on the ground, was still on the land he was guilty of criminal trespass against which act of his their right of private defence of property continued till he remained on the land. I now proceed to consider if the injuries inflicted to the deceased when he lay prostrate on the ground can be held to be a case of only exceeding the right of private defence. As explained already, the right of private defence which the appellants may have had initially had terminated when two of them knocked down the deceased and it follows therefore that what the appellants did afterwards cannot be said to be a case of merely exceeding the right of private defence. I have already mentioned that in determining whether or not the force claimed to have been used in the exercise of a right of private defence transgressed the limits laid down by law the Court has to bear in mind that a person called upon to use force to avert harm may without intending to use more force than the law allows him to use, exceed the limits prescribed by law, but that does not mean that all cases where excessive force is used are to be treated as these of exceeding the right of private defence. Beating a prostrate man to pulp till he dies, as was done in the present case, would ordinarily amount to an offence of murder, and I can think of no valid ground why it should not be that offence but one only of culpable homicide not amounting to murder simply because in the initial stages of the attack the appellants may have had a right of private defence of property. I pass on to consider if the conviction of all the appel lants for an offence of murder was justified. It was con tended by the learned counsel for the appellants that as there was no proof of a pre‑concerted plan the application of section 34 of the P. p. C., was not called for. It appears to me that even if evidence, direct or circumstantial, about the appellants having formed a pre‑concerted, plan were not' available, section 34 of the P. P. C., may apply as they could E be held to have at the spot formed a common intention to do the deceased to death. But even if section 34 was not) applicable the conviction of the appellants for the offence of murder would be justified on grounds which I will presently mention. Sultan Muhammad and Habib Khan appellants are proved to have caused the deceased injuries that were fatal and it is obvious that by holding the deceased down Mehr Khan appellant intentionally aided his two companions to cause the deceased fatal injuries which act of his would attract section 107 of the P. P. C., wherein abetment of a thing is defined. It was argued that Mehr Khan may not have known that the dang blows given by his two companions would kill the deceased but the blows were so numerous that no person of ordinary intelligence could entertain any reasonable doubt that the victim would breathe his last under the blows that were showered on him. Moreover, the fact that Mehr Khan appellant himself dealt the deceased who was unconscious at the time a grievous injury with a spear would show that he was prepared to go any length because if his intention while aiding his companions were not to aid the commission of murder, he would not have caused a grievous injury with a sharp edged weapon to the deceased. Each appellant was aiding the other two in killing the deceased and even if section 34 P. P. C. was not applicable, section 107 P. Fs'. C. clearly was. In view of what I have said above, I would hold that all the three appellants were rightly convicted. of murder and as they have been given the minimum sentence prescribed by law for an offence of murder, I would dismiss their appeal in its entirety. There is no good ground for enhancing the sentence and I would, therefore, dismiss the petition for enhancement of sentence. The petition against the order discharging Ahmad is also without force and is dismissed. A13DUL AZIZ KHAN, J.‑I agree. A. H. Appeal dismissed.