P L D 1959 (W (PLP)

SAJJAD AHMAD JAN, J.

‑Two brothers, Muhammad Sharif, aged 22 years, and Ali Muhammad, aged 26 years, residents of Chak No. 17/A. H. Police Station Kabirwala, have been convicted by the Additional Sessions Judge, Multan, under section 302 read with section, 34, P. P. C. for having, on the 23rd of December, 1957, in furtherance of their common intention caused the death of their co‑villager, Abdur Rashid. The former has been sentenced to death and the latter to trans portation for life. Both have appealed, and Muhammad Sharif's sentence of death is also before us for confirmation under sec tion, 374; Criminal Procedure Code.

2. The events leading up to this occurrence may shortly be stated. The deceased and the accused were neighbours, their respective ihatas being only 20 karams apart from each other. On the night between the 2nd and 3rd of June 1957 a bullock of the deceased which was tethered in his ihata was stolen. During the following night a police party engaged in " Naka Bandi " found the appellant Muhammad Sharif going with the animal on the Grand Trunk Road away from the village in suspicious circumstances. He was apprehended and the bullock was seized. Muhammad Sharif was subsequently prosecuted under section 411, P. P. C., but was acquitted on the 31st of October 1957 by the S. D. M., Khanewal, who also restored the bullock to Muhammad Sharif. It has been stated by some of the P. Ws. during the trial that the Court's decision regarding the return of the bull to Muhammad Sharif appellant was challenged in appeal by a son of the deceased and that an injunction had been obtained restraining Muhammad Sharif appellant from disposing of the animal till the decision of the appeal, but as no record of those proceedings has been produced and the suggestion was introduced for the first time during the trial as a futile attempt to justify the removal of the bull from the custody of the appellant Muhammad Sharif, we have no hesitation in rejecting it.

3. The Court's order as to the bull had very much annoyed the deceased and .it appears from evidence that immediately after the pronouncement of the judgment, he left his village for Montgomery, where he was then employed as a teacher, and he did not return to his home village until the morning of the 23rd of December 1957, when his school was closed for the Christmas holidays. He reached his village at 9 a.m. and was murdered the same day between I1 and 11‑30 a.m. His brother, P. W. Abdul Hamid, who lived in a saparate bhaini about a mile away, had come over to meet him. They were both sitting in the ihata when P. W. Maqbool Alam, son of the deceased, brought the stolen bull from the ihata of the appellants and tethered it in their own manger, saying that he had done so because the appellants were trying to dispose it of, in defiance of the Court's temporary injunction. It seems to us, however, that Maqbool Alam had either removed the bullock to make a present of it to his father on his return home and thus to appease him or, which is equally likely, the bullock was brought over under the direct and active inspiration of the deceased himself. We have no satisfactory evidence on the record to show the circumstances in which the bull was removed except the bare word of Maqbool Alam P. W. but we have no doubt that the animal was brought stealthily to the manger of the deceased, having been removed from that of the accused unobserved by the latter.

4. It is alleged by the prosecution that a short while after the removal of the bull (Thori Dar Ba'd to use the words of the F. I. R.), both the appellants came to the ihata of the deceased, Muhammad Sharif armed with a spear and Ali Muhammad with a sword, and started giving blows to the deceased, who fall down and expired instantaneously. This " thori der " was stated during the trial to mean forty‑five minutes which is possibly an exaggeration. The time that elapsed between the two incidents the removal of the bullock by P. W. Maqbool Alam from the ihata of the accused and the attack on the deceased by the accused has an important bearing on the issue of the right of self‑defence pleaded for the appellant Muhammad Sharif, which will be examined while dealing with that point.

5. The occurrence was reported at Police Station Kabirwala at 5 p.m. the same day, by P. W. Abdul Hamid, and the F. I. R. gives the background as also the broad outline of the occurrence, mentioning P. Ws. Muhammad Amin and Shah Muhammad as the eye‑witnesses. The police arrived at the spot at 7 p.m. and sent the dead body of the deceased to the mortuary for post‑mortem examination which disclosed the following injuries on his person :‑ (1) An incised wound, 1 " x 1/3" x 2 ", on the chest in the lower part at 7th rib junction with sternum. (2) An incised wound, 1" x 1/6" x 1/8", on the left ear. (3) A punctured wound, " x " x 1", on the left lumbar region. (4) A punctured wound, " x 1/6" x 1", on the back in the middle. (5) An abrasion 3 " x ", on the right arm in the upper region. (6) An incised wound, " x 1/6" x l/6", on the right index finger of the hand. The sternum was cut in the lower region under injury No.

1. The pleura was cut and the auricle of the heart was punctured, as a result of the same injury. Injuries Nos. 1, 2, 3, 4 and 6 were caused by a sharp‑edged weapon and No. 5 could be caused by a blunt weapon as also by a fall. During the investigation a spear (Exh. P. 1) was produced by Muhammad Sharif appellant from under a heap of rubbish inside his house and Ali Muhammad appellant produced the sword Exh. P. 2 from inside the ceiling of his residential kotha. The spear Exh. P 1 was found to be stained with human blood but no blood was found on the sword Exh. P. 2.

6. Ali Muhammad appellant denied his participation in the crime, alleging that the charge against hint was due to enmity. Muhammad Sharif raised a similar plea before the committing Court, but at' the trial, in response to a question: " Do you want to add anything to your previous statement", he claimed the right of self‑defence for his person and property by making the following statements‑-- " On the day of occurrence Abdur Rashid deceased tres passed into my ihata armed with a gun and began to forcibly untether my bullock now present outside the Court, upon which I protested. The deceased got infuriated and fired his gun at me. But his first fire missed and he put a second cartridge in the chamber of his gun, upon which I brought my barchhi from inside my house and with it I gave him 2 or 3 blows, whereby he was injured and ran out from my house. Two or three months before the occurrence I had purchased a buffalo for Rs. 300 from Shah Muhammad P. W. but I could not pay the price of it on the spot. Shah Muhammad P. W. quarrelled with me once or twice on that account. It was on account of that grudge that he had given false evidence against me today ". The prosecution story, including the most material part of it, viz. that the two appellants had entered the ihata of the deceased some time after the bull had been brought and tethered there, is fully supported by Muhammad Amin and Shah Muhammad P. Ws., who appear to be disinterested witnesses. The sole criticism levelled against their evidence by Mr. Mahmud Ali Kasuri, the learned counsel for the appellants, was that since they toe the line of the prosecution in blind servility, alleging that Ali Muhammad appellant had, in their presence, given a sword blow on the right arm of the deceased, which fact is belied by the medical evidence, they lose their credence as witnesses of truth. It is true that the medical evidence does not bear cut this part of their story as the injury found on the arm of the deceased, said to have been given by a sword by Ali Muhammad, was found to be a mere abrasion, not at all the result of a sword thrust, but we are not prepared to hold on this circumstance alone that the evidence of these wit nesses has to be thrown out. It may be that they are guilty of exaggeration and have stated certain things falsely, either deliberately or on a mistaken recollection, but this will only invite a greater caution on out part to examine their evidence as a whole and will not warrant the rejection of their testimony outright. As laid down repeatedly by authorities of the highest eminence, the safest rule in the appraisement of evidence in this country is the rule of " careful analysis " by sifting the grain from the chaff, accepting what is true and rejecting what A is untrue, on an overall appreciation of the entire evidence in the case.

7. According to the evidence of both these witnesses, which we hold to be substantially correct, the bullock was seen by them in the ihata of the deceased and the appellants untied it from there and took it away after the attack on the deceased had been made. Further, the fact that the blood was found during the investigation in the ihata of the deceased and not anywhere else lends support to the prosecution version that the deceased was attacked, when he was in his own house after some time, although it is difficult to say precisely how much had elapsed, between the removal of the bullock and the attack on the deceased.

8. The bullock was removed in the absence of the appellants from their ihata because if they had been there, removal would not have been possible by the boy, P. W. Maqbool Alam, single‑handed, nor even by the deceased and his other partisans without a clash of arms and shedding of blood right in the ihata of the appellants where the bullock was tethered. Nor do we consider that the appellants came to know of the removal of the bullock, as contended by the learned counsel for the appellants, just when it was being taken or very soon thereafter, as they would never have submitted to the taking of the bullock peacefully without offering the utmost resistance and resort to violence, and that would have meant a fight in the ihata of the appellants themselves, of which there is no manifes tation whatsoever.

9. With this fact clearly established, let us at once examine the plea of the right of private defence of property raised for the appellant Muhammad Sharif by his learned counsel. The case for the other appellant, Ali Muhammad, is on a separate footing as it has been argued on his behalf, in the first instance, that he was not present in the occurrence, and secondly, that even if he was there, he did not share a common intention with his brother to kill the deceased. For this reason we will examine the case of each one of the appellants separately.

10. Mr. Mahmud Ali Qasuri, the learned counsel for the defence, very wisely did not pursue the line of self defence of property and person as preposterously propounded by Muhammad Sharif appellant in his statement at the trial, including the use of gun‑fire by the deceased on him in an effort to remove the bullock‑the first shot going amiss and the second still in the process of being reloaded when the appellant Muhammad Sharif went to his house, brought his spear, and stabbed the deceased. The contention of Mr. Qasuri is that the appellant Muhammad Sharif had a right of private defence of property which continued so long as the deceased was retreating with the stolen bullock and that even if the deceased had succeeded in entering his house with the animal, with Muhammad Sharif hot on his heels, the right of defence of property was still continuing, though the appellant Muhammad Sharif had exceeded it by causing the death of the thief and that his case falls under Exception (2) to section 300, P. P. C. To strengthen his contention, he has pressed into service ethical considerations by stating, for instance, that it would be very strange that a person should see a thief stealing his purse, putting it into his pocket, walking away with it and then entering his house with the, owner of the purse pursuing him right up to his door‑step and yet the right of the owner to recover his purse should cease the moment the thief enters his house and shuts the door against the owner. We consider that it is not for us to discuss ethical principles, nor for that matter to weigh the appropriateness of the relevant provisions bearing on the subject. We have to give effect to the law as it is and interpret the intention of the legislature from the language of the statute.

11. The right of private defence of property against theft is regulated by section 105, P. P. C., which is in the following words:‑ "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." It is obvious from the plain wording of the section that the right of private defence of property against theft only continues till such time as the thief has effected his retreat or either (1) the assistance of the authorities is obtained or (2) the property is recovered. In other words, the right ceases when any of these three events occurs, namely (1) the thief has effected his retreat or (2) the assistance of the authorities is obtained or (3) if the property is recovered. These events are mentioned alternatively with the word "or" separating each one from the other. They are thus independent of one another and the happening of any one of them terminates the right.

12. In the context of this case the main question to be considered is when a retreat can be said to be effected by the thief and when was it effected in this case ?

13. The word "retreat" is not defined in the Code and the dictionaries which we have consulted for its meaning give the following near equivalents of the word: "To withdraw ; to recede ; to retire to a place of safety:" "Effected" is a verb of a fairly strong connotation conveying the sense of an act having been accomplished or completed. "Until retreat has been effected" would, therefore, mean, "Until withdrawal or retirement has been completed," but this, begs the question of when the withdrawal or retirement or recession is complete on the part of the thief. The Indian Law Commissioners expressed their perplexity in their first report on the Penal Code on the meaning of this provision in the following words :‑ "We are not sure of the meaning intended by the expression `till the offender has effected his retreat with the property. We know not certainly when he is to be considered as having effected his retreat ; probably it is when he has once got clear off', having escaped immediate pursuit, or pursuit not having been made. We presume that the protection of parties pursuing rubbers, etc. for the recovery of property which they have succeeded in carrying off, or for bringing them to justice, was thought not to be within the scope of the pro visions touching the right of private defence." But in spite of the perplexity of the Law Commissioners and their animadversion of this clause, it has remained on the statute book intact for nearly a century now as a satisfactory and adequate expression of the intention of the legislature which clearly was to confine the right of private defence of property against theft within well‑defined limits so that nobody should become a justiciar of his own cause or take the law into his own hands beyond the point which is absolutely necessary for self protection, consistent with the paramount requirements of law and order. We have not been referred at the bar to any authority which defines in clear terms the phrase in question. The leading case on the subject from the Lahore High Court cited at the bar, namely, Mirdad v. Emperor (I L R 7 Lah. 21) analyses the various parts of the section in relation to the right of private defence of property against theft without giving a clear definition as to what the relevant phrase means. But the following passage from that judgment is a helpful contribution to the subject under discussion :‑ "As soon as the offender has effected his retreat with the property, no right of private defence of that property against theft subsists, but, until the offender has so completed his retreat, the right of private defence of that property continues until the property has been recovered, i.e., during the retreat of the offender, or until the assistance of the public authorities is obtained. Right of defence cannot be revived so as to allow stolen property, wherever seen again in the possession of anybody, may be taken by owner from that person by the use of all the violence not extending to the causing of death which may be found necessary." if we may seek to define this phrase "effected his retreat with the property" in general terms, we venture to say that while it will be a question of fact in each case as to when a thief effects his retreat with the property, by and large a retreat is effected when the thief makes good his escape, by rc aching his destina tion or when he enters a quarter of safety when further pursuit would only lead to indiscriminate confusion, violence, and compli cations which. it seems to be the clear intention of the relevant provisions to avoid. 1n this view we consider that the principle of "hot pursuit" as recognized by Maritime International Law invoked by Mr. Qasuri by way of analogy is not of great 'F assistance. The effect of the relevant statutory provision has to be determined on its .own interpretation in relation to the particular circumstances of the case that call for its application.

14. On the facts of this case, we hold that the bullock had been brought to the house of the deceased and tethered there, and that some interval then elapsed, although it may have been very small, when the appellants, getting news of the loss, entered the ihata of the deceased to effect the recovery of the bullock. And this was after the stolen bullock had been safely stowed away, and the thief, even if it were the deceased as contended by the defence, had effected his retreat. And when a retreat had been effected with the property, no further right subsisted in the appellant Muhammad Sharif to effect its recovery by force by way of right of private defence of property as claimed for him.

15. Going to the house of the deceased with a deadly weapon like a spear and thrusting it into his chest is more consistent with an intention on the part of the appellant Muhammad Sharif to teach a lesson to the deceased for having removed his bullock than of effecting recovery of his stolen property in the exercise of a "supposed right of private defence thereof. We, therefore, hold that Muhammad Sharif appellant is clearly guilty of the murder under section 302, P. P. C. In normal circum stances we would have upheld his sentence of death but there is a mitigating factor which we take into account and which reduces the gravity of his offence on the question of sentence. The party of the deceased was legally in the wrong and had indulged in sheer high‑handedness in removing from the ihata of the accused the bullock which had been entrusted to him by a Court order and of which he had been in peaceful possession ever since. This must have naturally infuriated Muhammad Sharif. While, therefore, we uphold Muhammad Sharif's conviction under section 302, P. P. C., we alter his sentence of death to one of transportation for life.

16. The case of Ali Muhammad appellant stands on a different footing. We accept the version of the P. Ws. Muhammad Amin and Shah Muhammad that he was with his brother but it cannot be said with certainty whether he had joined him at the start or had followed him later. Moreover, certain elements in the prosecution case clearly raise a doubt as regards his complicity with Muhammad Sharif in killing Rashid or in having a common intention with him to do so. The medical evidence showing that there was an abrasion on the right arm of the deceased and not a sword‑ injury as alleged by the eyewitnesses and attributed to Ali Muhammad appellant, and the other superficial incised wound on the ear, also attributed by the witnesses to Ali Muhammad with a sword, put us in doubt as to whether a sword was at all used in this occurrence and the fact that the sword allegedly produced by Ali Muhammad bore no stains of blood further strengthens our doubt regarding his complicity in the crime.

17. Ali Muhammad may have gone to the scene of the occurrence with his brother or followed him there empty‑handed and he may even have had a common intention with him to bring back the bullock, but on the evidence in this case we are not satisfied that Muhammad Sharif appellant in killing the deceased acted in furtherance of the common intention of himself and his brother Ali Muhammad so as to attract the application of section 34, P. P. C. and to make the latter constructively liable for the murder of Rashid. We, therefore, give Ali Muhammad the benefit of doubt and acquit him.

18. In the result, we accept the appeal of Ali Muhammad in toto and acquit him and the appeal of Muhammad Sharif to the extent that his death sentence is altered to transporta tion for life. We answer the reference under section 374, Cr. P. C. accordingly and do not confirm the death sentence passed on Muhammad Sharif. A. H. Order accordingly.