P L D 1954 Lahore 45 (PLP)

B. Z. KAIKAUS, J.‑Muhammad Ishaque and Fateh Muhammad appellants were tried along with four other persons of offences under sections 302, 148 and 307 P. P. C. The remaining four were acquitted while Muhammad Ishaq was sentenced to death under section 302, P. P. C. and to rigorous imprisonment for seven years under section 307, P. P. C. Fateh Muhammad was convicted of an offence under section 302 read with section 34, P. P. C. and sentence to transportation for life. He was further sentenced to rigorous imprisonment for seven years under section 307, P. P. C. Both the appellants were acquitted of the charge under section 148, P. P. C. They have filed Criminal Appeal No. 190 of 1953 and the sentence of death is also before us for confirmation in Murder Reference No. 54 of 1953. The incident which is the subject matter of this case took place on the 1st May 1951, in the border village of Chathian wala, District Lahore. Its ultimate cause was the diversion of canal water. The accused (by which expression we shall be referring to all the six persons who were challaned) are all Muhajirs, living in one ihata, to whom land has been allotted in Chathianwala. Of the prosecution witnesses, some or locals and the others Muhajirs but they are with some excep tions, inter‑related. On the day of occurrence at about peshiwela, Nawab Lambardar deceased and Abdur Rahman alias Manha were resting under a tree in the field of Nawab when Feroze P. W. came and complained to them that the accused had diverted the canal water by making a takki in the canal minor as a result of which their fields were affected. Nawab said that they should collect a panchayat, and approach the accused. A number of persons about 12 in number, including Jhanda Lambardar, were collected and they all pro ceeded towards the fields where the accused were stated to be. Nawab was on horseback and remaining were on foot. When the party were at a distance of about 60/70 karams from the accused, Nawab Lambardar called out to the accused to stop the takki. According to the prosecution case, the appellant replied to this demand by saying. "Ther jao tohanu banna ke ghalne aan". At this, Nawab deceased directed Abdur Rahman P. W. to close the takki himself. While Abdur Rahman was going to close the takki, the two appellants got up and came nearer to Nawab and Abdur Rahman by about 20/30 karams. Muhammad Ishaq appellant was armed with a rifle while Fateh Muhammad was armed with a gun. Both took aims and fired at Nawab and Abdur Rahman P. W. The bullet from the rifle of Muhammad Ishaq hit Nawab deceased while he was alighting from his horse. He fell down and died almost instantaneously. Abdur Rahman was hit by the gun of Fateh Muhammad. He too fell down but the injury has not proved fatal. The appellants tried to run away. From the opposite side were Allah Dad and Majhi P. Ws. who had already heard the shots. The complainant's party shouted out to Allah Dad and Majhi not to allow the appellants to run away. When Allah Dad and Majhi went towards the appellants to prevent their escape the appellants fired two more shots one of which hit Allah Dad and the other Majhi. They fell down and the accused made good their escape. Jhanda Lambardar made a report at the Police Station at 6 P. M. the same day, stating the facts as they have been narrated above. Chaudhri Ghulam Muhammad A. S. I. pro ceeded to the spot and shortly afterwards, Muhammad Ishaq was produced before him by constables of the border police along with a rifle. The A. S. I. inspected the takki which was the cause of the incident and found that water was still flowing from it and was irrigating the field of Fateh Muhammad appellant. The patwari of the ilaga also found water still flowing from the takki when he came to the spot the next day for the purpose of preparing a plan of the spot. The plan shows that the mogha from which the complai nants party irrigate their fields is towards the west of the takki. Water flows in the minor from east to west and the takki would cause a diminution, of supply to the complainants party. Post‑mortem examination of Nawab deceased showed that he had died of injury by a bullet. Medical examination of Abdur Rahman and Allah Dad revealed gunshot wounds while Majhi had received a bullet wound. The prosecution story was supported in Court by Jhanda, Abdur Rahman, Allah Dad and Majhi P. Ws. Feroze Din who had complained to Nawab deceased of the takki, and Maula Bakhsh and Ilam Din, who were members of the panchayat party, were tendered for cross‑examination. The prosecution also relied upon the recovery of the rifle from Muhammad Ishaq. The learned Sessions judge was not satisfied with the genuineness of that recovery and it is not relied upon before us. The prosecution also produced Barkat Ali, son of Nawab deceased, as eyewitness of the attack upon Allah Dad and Majhi. His statement before the police was found by the learned Sessions Judge to be inconsistent with his statement in Court and the conclusion which the learned Sessions judge reached was that he was not present at the spot at all. We are in agreement with the learned Sessions judge and would exclude from consideration the evidence of Barkat Ali. The defence of the accused was almost a bare denial of guilt. They made no suggestion as to how Nawab had met his death and Abdur Rahman, Majhi and Allah Dad had received injuries. In reply to the question as to why they had been involved, the appellants simply stated that the complai nants belonged to a party which wanted to oust them from the lands allotted to them. The learned Sessions judge accepted the prosecution story. He gave the accused, other than the appellants, the benefit of doubt. All that was attributed to them by the prosecution was that they called out to the appellants to fire at Nawab and Abdur Rahman and the learned judge was not satisfied with respect to this allegation. Before proceeding we may state that Jhanda Lambardar, Abdur Rahman, Allah Dad, Barkat Ali and Feroze P. Ws. are Ansari by caste and they belong to the same brotherhood. Nawab Din deceased was also Ansari. Nawab Din was the uncle of Jhanda. The sister of Abdur Rahman is married to Allah Dad. Allah Dad and Feroze are real brothers. Abdur Rahman is distant relative of Jhanda through his mother. Majhi, Ilam Din and Maula Bakhsh P. Ws. are Soqqas by caste. Feroze, Allah Dad, Abdur Rahman, Jhanda and Ilam Din who are all Muhajirs have been allotted lands in village Chatianwala. The accused are also Muhajirs and they too have been allotted lands in that village. Learned counsel appearing for the appellants faintly argued, in the first place, that the appellants were not proved to have been the cause of the injuries attributed to them at all. But nothing substantial was urged. The injuries with the firearms are there with a story supported by reliable witnesses with whose depositions little fault can be found. There is no counter theory as to the cause of the injuries and we find no hesitation in repelling the plea. Learned counsel argues next, and that too half heartedly, that there was a right of private defence of property. This plea is not in the statement of the accused but a suggestion has been made during the cross‑examination of Jhanda P. W. that the so‑called Panchayat party had gone to take forcible possession of the lands allotted to the accused. However apart from this suggestion to Jhanda P. W. there is nothing at all on the record to show that there was any dispute between the parties as to possession. The lands which were the subject matter of dispute are not specified, nor is the reason of the dispute stated. The dispute between the parties was only with regard to a cut in the canal, a cut which was seen by the A. S. I. and the patwari. We regard the suggestion of dispute as to land entirely without any foundation. Learned counsel for the appellants asks us to inflict the lesser penalty under section 302, P. P. C. and draws our attention in this connection to two points. He says after the Partition, water which was to irrigate the fields of accused had decreased owing to no fault of theirs. A prosecution witness has admitt ed that since Partition the fields towards the east in the area in dispute were getting less water. Learned counsel says it was to make up this deficiency that a cut had been in the canal though he does not admit that the cut was made by the appel lants. It is admitted by two of the prosecution witnesses that the accused had not cultivated their field for some time in the past. This he says is proof of the fact that they were not getting water. Assuming all the fact to be true, we cannot see how they can form a consideration for not inflicting the higher penalty. The cut was obviously illegal and if the other party wanted to close the takki there could be no excuse for inflicting injuries with rifle and gun. The other matter referred to in this connection is that the trial of this case was seriously delayed. The occurrence took place more than two years ago. On a reference to the record we do find that while there was, on account of the large number of pending sessions trials, good reason for delay in the Sessions Court, a part at least of the delay in the Com mitting Magistrate's Court was not justified. There are about six hearings when the case had to be adjourned because evidence was not ready. There are, besides, some hearings when the case had to be adjourned because the presiding officer of the Court was on leave. However, we will not make the delay, which has been caused in this case, a ground for imposing the lesser sentence, and it is a matter for the Provin cial Government to consider in a petition under section 401, Cr. P. C. With respect to the conviction of the appellants under section 307, P. P. C. in respect of the attack on Allah Dad and Majhi P. Ws., learned counsel took a legal objection. He argued that Allah Dad and Majhi had no right in law to arrest the appellants and, therefore, the appellants had a right of private defence. He contends that under section 59, Criminal Procedure Code a private person can only arrest one who in his view commits a non‑bailable cogniz able offence and that as Allah Dad and Majhi had not seen the appellants firing at Nawab and Abdur Rahman they had no right to arrest them. There are two replies to this argument. The first is that the words 'in his view' used in section 59, Criminal P. C., are, as held in Arumuga‑Goundan v. The Crown (A I R 1924 Mad. 383.) and Sheo Balak Dusadh v. Emperor (2), to be liberally interpreted, in the present case, Allah Dad and Majhi had already themselves heard the shots fired. They saw the accused running away and they heard Jhanda Lambardar and others raising a hue and cry and saying that the appellants had killed a man. Jhanda Lambardar and others asked Allah Dad and Majhi to arrest them. Under the circumstances the offence can very well be said to have been committed in their view for it is by the evidence of their own eyes and ears that they discerned its existence. What they saw and heard left no doubt in their minds that the appellants were running away after firing at people. The second reply to the argument is that in this case Jhanda and others certainly had the right to arrest, for the offence was committed in their view and if they had that right they could also use Allah Dad and Majhi for the purpose of making the arrest. Under subsection (2) of section 46, Cr. P. C., a person entitled to arrest can use all means in his power, to arrest the culprit. This will include the employment of other persons to effect the arrest. Jhanda and others having called upon Allah Dad and Majhi to make the arrest they would be justified in doing so even from this point of view. A case directly in point is the one already cited, i.e., Sheo Balak Dusadh v. Emperor (A I R 1948 All. 103.). It was held in that case:‑ "The persons who have actually seen the thieves at the back of their house are clearly authorised under section 59 of the Code to arrest them and when the thieves start running away from the house, they would, in accordance with the provisions of subsection (2) of section 46, Cr. P. C., be authorised to use all means necessary to effect the arrest and this would include the seeking of help from their neighbours in arresting them. Raising of alarm by them obviously means a call to their neighbours to come to their assistance and no evidence that they actually called their neighbours to come and help them in arresting the thieves is necessary. When therefore a neighbour chases the thieves on seeing them running, the thieves have no right of private defence against any attempt made by him to arrest them." We are in respectful agreement with these observations. As a result this appeal is dismissed. The sentence of death passed on Muhammad Ishaq is confirmed. A. H. Appeal dismissed.