P L D 1961 (W (PLP)

(ii) Hashmat Ali appellant Five contusions, all but one which was grievous simple and caused by a blunt weapon. (iii) Shaukat Ali appellant A contused wound, simple and caused with a blunt weapon. (vi) Abdul Aziz appellant A contused wound and a contusion ; both simple and caused with a blunt weapon. (v) Muhammad Tufail appellant A contusion, simple and caused with a blunt weapon. (vi) Zahur Din appellant A contused wound and two contusions ; all simple and caused with a blunt weapon.

15. Doctor Zafar Iqbal Bhutta (P. W. 2) examined the following persons on the 14th of September 1959, and found the injuries noted under their names : . (i) Muhammad Arshad (P. W. 18) Three contusions, three contused wounds, an abrasion and a scratch ; all simple and caused with a blunt weapon., (ii) Abdul Haq (P. W. 11) One contused wound, an abrasion, a contusion and three swellings on different parts of the body ; all except the contusion (which was grievous) were simple and were caused with a blunt weapon. (iii) Shah Muhammad (P. W. 16) Three abrasions, two contused wounds and a contusion ; all simple and caused with a blunt weapon.

16. The defence version is born out by the first information report Exh. D. G. which was made by Mubarik Ali appellant on the 14th of September 1959, at 9‑15 a.m., wherein he stated inter alia "The land is entered in my name in the revenue papers. One and a quarter months after I had deposited the lease money, the Girdawar Qanungo delivered the possession of the land in dispute to me with the help of the police. Since then I am in its possession. Last night it was my turn to irrigate the land in dispute. At 1‑30 a.m., I went to the land in dispute accompanied by Zahur Din, Muhammad Tufail, Hashmat Ali, Shaukat Ali and Abdul Aziz and took my turn of water from Ali Ahmad Jat. I began to irrigate the sugar‑cane cultivated in Killa No.

2. Soon after we had started irrigating the land, Abdul Haq son of Nizam Din, who had been in unauthorised possession of the land in dispute, arrived there. He tried to interfere with our right of irrigating the field but we prevented him. Thereupon Abdul Haq began to abuse and called Ghafur and Hussain. Nine persons responded to Abdul Haq's shout for help. I learnt later that their names are Shah Muhammad, Wali, Ilam Din sons of Nizam Din, Badar Din son of Sharaf Din, Ghafur, Arshad sons of Badar Din, Hakam Ali son of Lekar, Hussain son of Buta and Buta son of Roora, Jats of Chak No. 113/J. B. Ghafur and Hussain were armed with rifles while the others had lathis. Immediately on his arrival, Ghafur fired a shot whereupon we ran to the Chak. I took shelter in the garden of Ali Muhammad son of Fateh Muhammad. The trespassers surrounded my companions and caused injuries to them. Ghafur and Hussain continued firing. Two of my companions namely Zahur Din and Hashmat Ali fell down. Zahur Din shouted `mar gaya' whereupon the culprits ran away."

17. At the trial, Mubarik Ali appellant stated :‑ "In fact myself, Shukat Ali, Muhammad Tufail, Zahur Ding Hashmat Ali and Abdul Aziz co‑accused had taken the water turn at 1‑30 a.m. on 14th September 1959 and we were watering the land in dispute when at about 2 a.m., Abdul Haq, Wali Muhammad, Shah Muhammad, Abdul Ghafur, Arshad, Muhammad Hussain, Hakam Ali P. Ws., and Badar Din deceased and Ilam Din and one Buta who is not Buta P. W., came to the land in dispute armed with rifles and lathis. When they were at a distance of about 20 karams from us, Abdul Ghafur and Muhammad Hussain P. Ws., who had rifles, fired shots on‑which we six tried to run away but were surrounded by the above‑named ten persons. I took shelter in an orchard nearby as I was empty‑handed but the other five co‑accused, who were with me and had been surrounded by the above‑named ten persons were attacked and were given blows while the co‑accused gave blows to the P. Ws. in self‑defence. The five co‑accused who were with me had only lathis with them and none of us had a rifle." Muhammad Sharif, who is a brother of Mubarik Ali, pleaded alibi, while the others stated that Mubarik Ali had explained the circumstances in which the occurrence took place and that their statement was the same. The factum of a fight is admitted by both the parties. It is also admitted that on the complainants' side Badar Din died and Abdul Haq, Shah Muhammad, Arshad and Hakam Ali P. Ws. received injuries, while on the appellants' side Hashmat Ali, Shaukat Ali, Abdul Aziz, Muhammad Tufail and Zahur Din received injuries in the course of the occurrence under consideration.

18. It will be seen from the above statement of facts that the occurrence is admitted by both the parties. Each party claims to have been in possession of the land in dispute at the material time and each party claims to have exercised its right C of defence of property. In the circumstances, the question "who was in de facto possession of the crops standing in the land in dispute at the material time?" is of vital importance. The finding of the learned Additional Sessions Judge regarding possession is as follows :‑ "I have carefully examined the evidence on the record relating to the possession of the standing crop at the time of the present occurrence, and I have no hesitation in coming to a conclusion that it‑ stands proved beyond doubt that Abdul Haq was in actual physical possession of the standing crops at the time of the present occurrence." ' The learned counsel for the appellants challenged this finding. He argued that Mubarik Ali was put in possession of the entire land in dispute and the crops grown on it by the Girdawar on the 5th of August 1959. According to the learned counsel symbolic possession amounts to delivery of actual possession. Mr. Sleem, learned counsel for the appellants, argued that .: re were the following two methods. of putting Mubarik Ali appellant into possession of the portion of the land in dispute wherein crops were standing. Mubarik Ali appellant could be 2st,,en possession by indicating the fields which were being handed over to In m or by cutting the crop standing thereon According to Mr. Sleem, the Girdawar indicated the fields which were being handed over to Mubarik Aliappellant and this amounted to putting Mubarik Ali in actual possession of the land in dispute and the crops standing thereon. The following passage, which is being reproduced from the statement of Fateh Muhammad Girdawar P. W., would show that the possession of the standing crop was not transferred to Mubarik Ali appellant :‑ "As regards the land which was under crop, it was directed and Mubarik Ali accused was informed, that he should ",either pay compensation for the standing crop to Abdul Haq and take its possession on payment of compensation money or he should share the produce with Abdul Haq who would be deemed as a tenant while Mubarik Ali would be deemed as a landlord. I assessed compensation for the standing crop on the same day at Rs. 1,023." A. S. I. Ghulam Muhammad (P. W. 24), who had accompanied the Girdawar at the time of the delivery of possession, stated :‑ "No estimate of the value of the standing crop was prepared at the time in my ‑ presence. The Girdawar did not direct Mubarik Ali in my presence that he had to pay Rs. 1,023 for getting the possession of the standing crop." Relying on this statement, Mr. Sleem argued that the Girdwar's position that Mubarik Ali appellant had been asked to pay, Rs. 1,023 to Abdul Haq P. W. before taking possession of the crop is an exaggeration. According to him no such direction was given to Mubarik Ali appellant. The argument ignores the fact that Mubarik Ali appellant had himself made an application on the 27th of July 1959 protesting against the order directing him to pay compensation to Abdul Haq P. W. for the standing crops. Even if it be assumed that the Girdawar did not prepare an estimate of the value of the standing crops at the time of the delivery of possession, it cannot be denied that Mubarik Ali appellant knew that he could get possession of the crops only on paying Rs. 1,023 to Abdul. Haq P. W. In fact both parties applied to the higher authorities protesting against the assessed value of the standing crop. There is no evidence showing that Mubarik Ali appellant was put in actual possession of the cultivated area of the land in dispute. The Girdawar stated, and we have no reason to disbelieve him, that Mubarik Ali appellant had been informed that he could take possession of the cultivated area only on payment of Rs. 1,023, the estimated value of the standing crop. There is nothing on the record to show that Mubarik Ali appellant paid or offered to pay the money at any time before the occurrence.

19. In order to appreciate the point further, it would be advantageous to reproduce the following passage from the state ment of Malik Amir Bakhsh (P. W. 15), Colony Assistant‑.‑ "In case the position of Abdul Haq was that of an unauthorised occupant, the standing crop could be confiscated to the state but the standing crop could not be transferred to third person unless those were purchased by that third person through sale by auction." While answering a Court question, Malik Amir Bakhsh P. W. stated: "No order was made in the present case confiscating the standing crops to the State which were in existence at the time of the delivery of possession of the land in dispute to Mubarik Ali accused. No proceedings were taken up to levy any penalty to Abdul Haq P. W. for his being in unauthorised occupation of the land in dispute prior to the delivery of possession but on 31st August 1959 it was suggested by my office that penalty should be levied on Abdul Haq who had been an unauthorised occupant and I had agreed with the above suggestion." The above statement of the Colony Assistant shows clearly that Mubarik Ali appellant had no right over the standing crops grown and raised by Abdul Haq P. W.

20. We have already referred to the order of the Colony Assistant dated the 24th of June 1959 by which Abdul Haq P. W. was allowed to continue in possession of the land in dispute for Kharif 1959 and Rabi 1960: This order had not been cancelled, set aside or modified after a due notice to Abdul Haq P. W. In fact this order was in force on the material date. Abdul Haq P. W. was in possession of the land in dispute on the basis of the aforesaid order. He had entered upon the land in dispute as a tenant in 1949 and had continued to be in its possession up to the relevant date. Even if it be assumed that the allotment of the land in dispute in favour of Abdul Haq P. W. had been cancelled before the date of the present occurrence, he was not a trespasser in the eye of law. He way; ;i tenant holding over and as such Mubarik Ali appellant, the new lessee, would have no right to eject him by force. He could have ejected him by due process of law. If Mubarik Ali, the new lessee, used force to eject Abdul Haq P. W., the latter had a right of defence under section 97 of the Pakistan Penal Code. This opinion is based on the principle that a tenant holding over has a position recognised by law and he has a right to retain possession of the premises he occupies even against the landlord himself until he is dispossessed in due course of law. See Khushi v. The State (P L D 1960 Lah. 44) and Haji Ghulam Muhammad Azam v. Crown (I L R 43 Bom. 531).

21. Abdul Haq P. W. stated that he had learnt on the 13th of September 1959 i.e., a few hours before the occurrence, that the appellant had cut chari crop and had ploughed the field in which gowara crop was standing. Mr. Sleem argued that the above statement shows that Mubarik Ali appellant had peacefully entered upon 'the land in dispute to which he had title as a lessee, and that such acts on the part of Mubarik Ali appellant dispossessed Abdul Haq P. W. and put Mubarik Ali appellant in possession of the land in dispute and the crops standing thereon. He further argued that any subsequent attempt on the part of Abdul Haq P. W. to oust Mubarik Ali appellant was an act of trespass and Mubarik Ali appellant had the right of using necessary force to oust the trespasser and maintain his possession. Even if it be assumed that Mubarik Ali appellant had cut the chari crop from a portion of the land in dispute and bad ploughed a small piece of the land in dispute, in the absence of Abdul Haq P. W. it would not put him in possession of the entire land in dispute which was under cultivation. A casual act of trespass is not what is protected by section 97 of the Pakistan Penal Code. A trespasser cannot by the very act of trespass immediately and without acquiescence acquire what the law recognises as "possession" against the person whom he ejects and the latter may, if he does not acquiesce, re‑enter and re instate himself provided he does not use more force than is necessary. A trespasser cannot turn his offence into an advantage and plead the right of private defence against the person in de facto possession. Thus a casual act of possession by a E trespasser not acquiesced in by the person in possession would not have the effect of dispossessing the person in de facto possession. Relying on Browne v. Dawson (113 E R 950), Mayne in his Criminal Law of India, 4th Edition, has observed at page 738:‑ A mere trespasser cannot obtain what is known in law as possession by an act of entry or by the continuance of that act so long as the act is disputed and resisted." Dr. Gour in paragraph 844 of his commentary has stated: "If A owns a house and leaves it open whilst he goes out for a drive, and B, a thief, walks into it and takes possession during A's absence, B has physical possession but not juridical possession so as to entitle him to legal protection. In fact B riot in such a case in possession at all; for possession in criminal law means at least prior, peaceful and settled possession. If, for instance, on his return, A finding B in the occupation of his house suffers to let him remain in possession, the possession of B would then develop into juridical possession against which A will forfeit the right of private defence." Juridical possession must be distinguished from a mere act or acts of trespass. If a trespasser is allowed to remain in possession and the owner or party in possession makes no effort to remove him, the trespasser obtains juridical possession on account of acquiescence on the part of the owner. A stray or repeated acts of trespass do not confer any right on the trespasser against the person who was in de facto possession at the time of the trespass. Thus, the possession which a trespasser is entitled to defend against a person in de facto possession must be settled possession extending over a sufficiently long period and acquiesced in by the person ousted, See Muhammad Ali v. Crown (A I R 1949 Lah. 128).

22. The duration and nature of the act of possession which would enable a trespasser to obtain juridical possession depends on the particular facts of each case. The following cases which were not cited at the bar are being referred to by us as these may be helpful in appreciating the point involved in the case:‑ (i) In Chandulla Sheikh v. Emperor (22 I C 993) the complainant's party took possession of some lands of the accused, who had been in peaceful possession of them till such dispossession. The complainant's remained in possession for about fourteen hours and began to erect huts on the land in question stealthily in the darkness of the night. At day‑break, the accused, on coming to know what was happening, came to the place fully armed in order to drive. off the trespassers. The result was a fight between the parties in which members of both the parties were wounded and both were sentenced by the trial Court. On appeal, it was held that the accused were in actual physical possession of the property in question as they took the earliest opportunity to exercise the right of private defence and as the injuries inflicted by them were within the limits allowed by the right of private defence, they were not guilty of rioting. (ii) In Emperor v. Bandhu Singh (A I R 1928 Pat. 124) it was held:‑ "A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence give himself possession against the person whom he ejects. The owner may, if he does not acquiesce, re‑enter upon the land without delay and re‑instate himself provided he does not use more force than is necessary. His entry will be viewed as a resistance to an intrusion upon a possession which he had never lost." (iii) In the case of Bindeswari Prasad Singh v. Emperor (46 I C 413), Mulick J, said: "It is contended by the learned Government Pleader on behalf of the Crown that the petitioner was not in possession, because on the previous day be had been dispossessed by the lessee who had fished to it without molestation. 1f the lessee did fish in the ditch on the previous day that would not constitute dispossession in the eye of law. At the most his act would be a disturbance of possession and there is a distinction ' between dispossession and disturbance of possession, The petitioner being in possession on the day of occurrence, he had a right to oppose the complainant's party by reasonable force." (iv) The continuance in possession of a trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land to make a claim to it. There is a fresh cause of action each time the owner is resisted. See Emperor v. Bundhu Singh.

23. In view of the authorities given above, Mubarik Ali appellant had not acquired juridical possession by a stray act, namely, the cutting of the charri crop three days prior to the present occurrence. There is nothing on the record to show that Abdul Haq P. W. had acquiesced in Mubarik Ali's this act of trespass. The evidence on the record ratter shows that Abdul Haq P. W. did not acquiesce in Mubarik Ali's intrusion. He at once convened a panchayat to prevail upon Mubarik Ali appellant not to interfere with his (Abdul Haq's) possession of the standing crops. In spite of Abdul Haq's efforts to avoid breach of peace Mubarik Ali appellant trespassed for the second time on the eventful night and attempted to obtain possession of tire crops by irrigating a sugar‑cane field. Mubarik Ali appellant had been given symbolic possession only of the fields wherein crop was standing and not actual possession of the standing crops.

24. In Laxmanrao Narainrao Anjikar v. Emperor (A I R 1934 Nag. 172), the facts were: by a registered deed dated the 2nd of January 1931 Bali Ram leased out two fields to Laxmanrao for seven years and transferred possession to the lessee who showed crop in the fields. By a prohibitory order dated the 28th of November 1930, the judgment‑debtor, Bali Ram, was restrained from alienating his property, On the 31st of January 1931, Bali Ram's abovesaid fields were attached by Mst. Bhagirathibai in execution of her decree against the former. The fields were subsequently auctioned on the 10th of May 1932 and Mst. Bhagirathibai, the decree‑holder, purchased them for Rs.

200. On the 5th of August 1932, Mst. Bhagirathibai was granted symbolic possession of the fields wherein Laxmanrao's crops were standing. On the 4th of September 1932 a fight took place between Laxmanrao's men and Mst. Bhagirathibai's servants as a result of which Laxmanrao and his companions were tried for an offence under section 147 of the Penal Code, Laxmanrao's defence was that on the 5th of August 1932 what was obtained by Mst. Bhagira thibai, the decree‑holder purchaser, was only symbolic possession of the fields and that he (Laxmanrao) continued to remain in possession of the crops up to the date of the incident in question when Mst. Bhagirathibai's men, in attempting to take forcible possession of the land, were resisted by his men. It was held that the auction‑purchaser was given only symbolic possession of the fields and. not actual possession of the standing crops and when her servants tried to take forcible actual possession, they were rightly resisted by Laxmanraos party whose crops were standing in the fields and therefore, his men did not commit any offence. Their convictions under section 147 of the Penal Code were set aside.

25. In In re:Mohideen Pichai Rowther and others (A I R 1940 Mad. 43) Pandorang Row, J. held:‑ "The preventing of harvesting of one's crop by persons who have no right whatever. to it, is not unlawful and the mere fact that the party which had no right was actually on the land before the rightful owners could prevent the harvesting of the crop cannot make its entry otherwise than unlawfull and will not make the rightful owner other than persons acting in lawful exercise of their right. The taking of possession in 'these circumstances would not confer any legal right, it would not be possession in the eye of law." 26.. After carefully considering the relevant evidence on the record, we hold that Mubarik Ali appellant had not been given possession of the crops standing in the land in dispute, and that Abdul Haq was in possession of the crops grown and raised by him. According to Mubarik Ali appellant's statement given above, he and his companions went to the land in dispute and began t irrigate it at 1‑30 a.m. on the 14th of September 1959. Abdul Haq P. W. and his companions including Badar Din deceased came there at 2 a.m. (within 30 minutes). It appears that Abdul Haq P. W. and his companions wanted to oust Mubarik Ali appellant and his companions who had come fully armed and this led to a fight in which Badar Din was killed and the members of both the parties received injuries. Mubarik Ali appellant and his companions were better armed. At least one of them had a rifle. They, therefore, had an advantage over Abdul Haq P. W. and his party. Mubarik Ali appellant and his companion were trespassers. Abdul Haq P. W. and his companions, therefore, had a right to maintain their possession of thecrops which, as already held, Abdul Haq had not lost. In the circumstances, Abdul Haq P. W. and his companions were justified in using force. In Horam and others v. Rex (A I R 1949 All. 564), a Division Bench held:‑ "Where a trespasser enters upon the land of another, the person in whom the right of possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force, and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. His action would be covered by the principle of self‑defence embodied in sections 96 to 100, Penal Code, If, on the other hand, the trespasser had already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment, it is not open to the latter to avail himself of the doctrine of self‑defence and by inflicting injuries on the trespasser to re‑acquire possession of his land." (P. 567, Col. 2). Mubarik Ali and his companions were members of an unlawful assembly as they bad trespassed and had used force to take forcible possession and dispossess Abdul Haq P. W. who was in juridical possession of the crops growing in the land in dispute up to the time of the present occurrence. Thus, Mubarik Ali appellant and his companions were the aggressors.

27. The evidence on the record establishes that Badar Din died as the result of a bullet wound and Abdul Haq, Shah Muhammad, Arshad and Hakam Ali P. Ws. received injuries at the hands of the members of the appellants, party in the occurrence under consideration. The presence of the deceased and the injured P. Ws. at the spot at the material time is admitted by the appellants. The appellants have, therefore, been rightly convicted and sentenced. We, therefore, dismiss the appeal and confirm the sentence of death imposed on Mubarik Ali. J. H. RIZVI, J.‑I fully agree with my learned brother that this appeal should be dismissed and the convictions and sentences maintained. I would, however like to add the following.

2. Mubarik Ali appellant and his companions reached the fields at about 1‑30 a.m. with intent to take forcible possession by irrigating the crops standing in the land in dispute. In order to carry out their scheme, they began to irrigate the sugar‑cane field. Abdul Haq P. W., the deceased, and the other injured P. Ws. reached the spot half an hour later, i.e., at 2 a.m. The injuries on the appellants show that Abdul Haq and his companions were armed with lathis. Were they justified in making preparations for meeting the act of aggression by he appellants? It is no offence to arm oneself in anticipation of an attack. In Fauzdar Rai and others v. Emperor (44 I C 33), it was held that where a person in possession of property sees an actual invasion of his rights to that property, if that invasion amounts to an offence under the Code, he is entitled to resist it by force and to collect for that purpose such members and such arms as may be absolutely necessary for this purpose, provided only that there is no time to have recourse to the protection of the police autho rities. In the case before us, there is nothing on the record to suggest that Abdul Haq P. W. and his companions provoked an attack. In fact the evidence shows that Abdul Haq P. W. tried his best to avoid a breach of the peace. In my opinion, Abdul Haq P. W. had no time to seek assistance of the autho rities. If be had, after the act of aggression had commenced, the appellants, in all probability, would have been in complete possession of the land before the arrival of the police. In Pachkauri and anther v. Queen‑Empress ((1)1 LR24Cal.686), the facts were that the accused. on receiving information that the complainants' party were about to take forcible possession of a plot of land, which was found by the Court to be in possession of the accused, collected a large number of men, some of whom were armed, and went through the village to the land in question. While they were engaged in ploughing, the complainants came armed and interfered with the ploughing. A fight ensued in the course of which one of the complainants, party was wounded and subsequently died, and two of the accused party were hurt. It was held that the accused were rightfully in possession of the land and found it necessary to protect themselves from aggression on the part of another body of men, they were justified in taking such precautions as they thought were required and using such force or violence as was necessary to prevent an aggression. It was further held that they could not be held to be members of an unlawful assembly. Thus, where a person is otherwise justified in using force to defend his property against an unlawfull aggression,. he does not lose this right if he prepares and then exercises the right. A. H. Appeal dismissed.