P L D 1949 Lahore 421 (PLP)

MUHAMMAD MUNIR, A. C. J.‑Muhammad Khan, Murad Khan, Falak Sher, Hakam, Abbas and Karmun were tried by the Additional Sessions Judge, Lyallpur, on the charges of rioting, murder and attemp ted murder. The learned judge convicted them on all the charges and sentenced Muhammad Khan to death and the others to transportation for life under section 302, Indian Penal Code. They were also convicted under section 307 and section 148 and sentenced under the former to three and under the latter to one year's rigorous imprisonment each. The convicts appeal and we have also to consider the reference for confirmation of the death sentence passed on Muhammad Khan. Muhammad Khan and Allah Ditta P. W. had a long continued dispute over a small piece of land situate at Kot Shakir in Police Station Athara Hazari, in the district of Jhang. In 1934 Allah Ditta purchased one‑fourth share in fields Nos. 1828, 1831 and 1833 from Shakir Khan, brother of the wife of Muhammad Khan. The remaining three‑forth share was owned by Muhammad Khan and his brothers. Allah Ditta continued cultivating his share of the land right up to 1942 when this land, which had hitherto been arid, received water from the Trimoo Weir and became very valuable. Muhammad Khan first asked Allah Ditta to recovery this land to his family, but on Allah Ditta's refusal began to coerce him in diverse ways to part with it. As joint enjoy ment of the land became impossible, Allah Ditta took partition proceed ings against the other co-sharers including Muhammad Khan before the revenue authorities and obtained a partition decree. According to this decree Allah Ditta got the entire field No. 1833 while the whole of field No. 1828 fell to the share of Muhammad Khan. Field No. 1831 was split up into two portions. No. 1831‑1 falling to the share of Allah Ditta and No. 1831‑2 going to Muhammad Khan, Allah Ditta duly obtained possession of his share by taking execution proceedings before the Tahsildar in October 1944. Notwithstanding this partition, however, Muhammad Khan continued to place obstacles in the way of Allah Ditta who never enjoyed this land in peace, and possessions of it remained disputed, the land being cultivated sometimes by Allah Ditta and sometimes by Muhammad Khan. According to the prosecution case, Allah Ditta had sown rawan and jawar in fields No. 1831‑1 and 1833 on 22nd May 1947. On the following day he with his sons, Muhammad Sadiq and Hag Nawaz Khan was constructing a water‑course for field No. 1827 which is contiguous to the two fields just mentioned when all of a sudden nine persons including all the appellants came armed with spears and chavis and attached Allah Ditta and his sons. Hag Nawaz attempted to run but was overtaken by Karmun appellant and speared in the addomen. Kamir, Muhammad Hayat P. W., Nawab P. W., and Muhammad P. W., sons of Bakhtawar, who were grazing their cattle nearby ran to the assistance of Allah Ditta but Muhammad Khan appellant speared Kamir as soon as he arrived. Sher, Muhammad Khan sons of Lal Khan, Ahmed Khan, Ammu, Salehon and Muhammad P. Ws. were also attracted to the spot and they attempted to rescue the victims but Falak Sher appellant gave two spear thrusts to Sher. Both Sher and Kamir were killed on the spot and Hag Nawaz died the same day in the afternoon. Ahmad (P. W. 14), Muhammad (P. W. 16), sons of Bakhtawar, Muhammad (P. W. 13), son of Lal Khan and Muhammad Hayat (P. W. 15), also received injuries in the transac tion. It is said that Allah Ditta's party threw some brick‑bats on the assailants and injured some of them. The defence is that Muhammad Khan appellant had throughout been in possession of field Nos. 1831‑1 and 1833 and that on the day in question Murad Khan, Falak Sher and Abbas were ploughing these fields while Hakam appellant were cutting reeds and Karmuir grazing his sheep nearby when Sher, Kamir, Hag Nawaz, deceased, and Ahmad (P. W. 14), Muhammad (P. .W. 16), son of Bakhtawar, Muhammad (P. W. 13) son of Lal Khan and Muhammad Hayat (P. W. 15), came armed and attacked Murad Khan and others. Hag Nawaz with a chhavi blow to Muiad Khan and Hakim appellant struck Hag Nawaz with a choha in self‑defence. When Karmun appellant who had a kulhari arrived, he and Falak Sher and Abbas appellants attempted to repel the assailants and thus caused them some injuries. The defence examined several witnesses in support of this version but the learned judge considered for the reasons that he gave in his judgment that their evidence was false. As regards the prosecution evidence, the learned Judge found himself unable to accept it in entirety because every one of the prosecution witnesses was related with Allah Ditta or one or other of the deceased or injured persons. After considering, the evidence of both sides he recorded the following finding :‑ "To my mind what appears to have taken place is this : Allah Ditta in a moment of despair and disappointment wanted to make yet another attempt to cultivate the land. He knew that every time his attempts were foiled by Muhammad Khan in one form or the other. The prosecution under section 447‑147, Indian Penal Code, started at his instance failed. His complaint under section 379, Indian Penal Code, vide Exh. P. C. received a very unsympathetic treatment and even the Revenue Officers did not feel inclined to finally decide the question of possession. Allah Ditta actually went to his field after having selected all or most of the P. Ws. to help him in obtaining or enforcing his possession. Allah Ditta knew that the other side would certainly create obstruction in his way or even try to oust him by force. He also knew that history would repeat itself and any seed sown by him in his land shall again be uprooted and destroyed by the accused. This time he wanted to settle the dispute himself and that is why he collected all his men at the spot in field No. 1831 in order to defend his possession. They were armed mostly with sticks and it is .possible that one of them was carrying a sharp edged weapon as well. The party of Muhammad Khan, accused, on the other hand, could not take this action of Allah Ditta lying down. Muhammad~ Khan and Murad Khan had been acquitted of a murder case about 18 years ago and even otherwise they had always an upper hand over Allah Ditta. Allah Ditta could never dream that the preparation of Muhammad Khan would be out of all proportion to his defence. The party of Muhammad Khan accused, went to the field in question (field No. 1831) and a dispute arose there between the rival claimants to the land. P, fight ensued, and I have no hesitation in saying that the parties were prepared for this fight. The fact that blood was found at one place only in field No. 1831 also leads us to the same conclu sion. If the attack had originated in field No. 1827 and the victims had scattered in panic and were killed at different places, we would have found blood at more than one place. This deter mined fight between the two rival parties resulted in the aforesaid casualties. In view of this finding it cannot be held that the accused were protected by any right of self‑defence. To grant them such a right would be to place premium on their highhanded ness. The party of the accused were certainly the aggressors and this was not the first time that they took .the law into their own hands." There is no apparent inconsistency in these findings. In one place the learned judge refers to Allah Ditta as defending his possession while in another he refers to him as attempting to obtain or enforce possession. There is, however, no doubt what he intended to say. There are two points which require determination in this case (1) whether Muhammad Khan, appellant, was one of the persons who attached Allah Ditta's party, and caused injuries to Kamir? and (2) whether the appellants have given prima facie proof that they acted in exercise of the right of private defence? As regards the first point, it is true that Muhammad Khan had no injuries on his person but in view of the fact that the attack was one -sided and his other companions received only minor scratches or bruises with the exception of a wound which is described by the medical witness as an incised wound, while three men of Allah Ditta's party were killed and four others seriously injured, the absence of injuries on Muhammad Khan does not cast any serious doubt on the evidence of the prosecution witnesses that he was the leader of his party and that it was he who not only incited the others to attack but also used his own spear on Kamir. He had an impelling motive for the attack and we do not consider it reasonably possible that the other appellants them selves organised the attack without being led by Muhammad Khan. The plea of self‑defence, however, requires closer scrutiny, and in this connection the first point to be determined, is whether Muhammad Khan was in possession of fields Nos. 1831‑1 and 1833. We have already stated that these two fields had fallen to Allah Ditta's share on partition and that their possession had been delivered to him in due course of law. After the delivery of possession Muhammad Khan's position regarding these fields numbers was that of a trespasser and unless he succeeds in proving that he was in settled possession of the land he is not entitled to the benefit of self‑defence. According to Lal Khan, Patwari (P. W. 17) possession of these fields was delivered to Allah Ditta on 28th October. 1944, in execution of a warrant from the Court of the Tahsildar in case Allah Ditta v. Muhammad Khan and others, The first crop sown after October 1944 was Rabi 1945 and according to the Khasra Girdawari this was harvested by Allan Ditfa. The land lay uncultivated in Kharif 1954. Rabi 1946 was again sown by Allah Ditta who also got 'a Girdawari prepared in anticipation by applying to the Tahsildar. Most of this crop was uprooted by Muhammad Khan by force and when the remaining crop ripened, it was harvested by Muhammad Khan. According to entries in the Khasra Girdawari the next crop, Kharif 1946, was sown by Muhammad while in Rabi 1947, the land again lay vacant. Allah Ditta alleges that Kharif 1946 was sown by himself and not by Muhammad Khan and that Muhammad Khan who had influenced with the Patwari got a wrong entry made in the Khasra Giydawari. The question is whether these facts are sufficient to justify the finding that Muhammad Khan was in possession of this land when on 23rd May 1947, the fight took place. That Muhammad Khan had no title to the ‑land and had been evicted therefrom in due course of law, admits of no doubt. His position after the partition‑was that of a pure ‑trespasser, and though no body has a right to dispossess by force a trespasser who is in settled possession of land, and such trespasser is entitled to defend by force his possession even against the rightful owner unless he is evicted in due course of law, he is not entitled to rely on a stray act or even intermittent acts of trespass as giving him a right to possession as against the true owner. That in Rabi 1945, Muhammad Khan acted as‑ a trespasser in uprooting and subsequently reaping a portion of the crops seems to be perfectly clear from the fact that this crop had been sown by Allah Ditta who had taken the precau tion of reporting his cultivation to the revenue authorities and obtained a verification of this allegation on the spot. Muhammad Khan's solitary act of uprooting this crop and subsequently reaping a portion of it did not amount to his taking possession of the land against Allah Ditta. The evidence as to who sowed Kharif 1946 is conflicting, the Khasra Girdawari being in favour of Muhammad Khan, while Allah Ditta alleges that he himself had sown this crop but Muhammad Khan had obtained a wrong entry made in his favour by bribing the Patwari. Keeping in view the past conduct of Muhammad Khan this allegation of Allah Ditta may well be true but even if it be assumed that this crop was sown and reaped by Muhammad Khan, it amounted to no more than an act of trespass by him, in itself wholly insufficient to constitute his possession. Possession which a trespasser is entitled to defend against a rightful owner must be settled possession extending over a sufficiently long‑ period and acquiesced in by the true owner. A causal act of possession would not have the effect of interrupting the possession of the rightful owner. We agree with the observation of Malik A. C. J. in Emperor v. Bandau Singh, (106 Ind. Cas. 691.) that a mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself possession, in the legal sense of the term, against the person whom he ejects, and that the latter may, if he does not acquiesce, re‑enter and re‑instate himself provided he does not use more force than is necessary. Such re‑entry will be viewed only as a resistance to an intrusion upon a possession which had never been lost. In the present case, assuming that the Khasra Girdawari for Kharif 1946 represents the correct position the act of Muhammad Khan in sowing the land was a mere act of trespass which terminated with the reaping of that crop. Thereafter the possession of the land reverted to its true owner Allah Ditta. We accept the evidence that Allah Ditta on 22nd May 1947 sowed rawan and jowar in these fields and that the attack on him and his party on the following day was made with the object of preventing him from exercising his rights of ownership on the land. Between the reaping of Kharif 1946 and the day of the incident there is an interval of about six months and the Kharif trespass having terminated in December 1946, Allah Ditta, who was the rightful owner was entitled to sow the next crop. It is argued that the presumption of the continuance of things applies to Muhammad Khan's possession of the land in Kharif 1946 but we have already pointed out that Muhammad Khan's act of cultivating the land in Kharif 1946 was an act of trespass and did not amount to his possession of the land in the sense in which the word "possession" is used in law. The rule that a state of things once shown to exist will be presumed to continue does not apply to mere acts of trespass as no trespasser can acquire the right to repeat the trespass merely by reason of his having committee a trespass before. Thus the attempt on the part of Muhammad Khan to prevent Allah Ditta from using his land amounted to criminal trespass, and if he collected several persons with a view to resisting cultivation of the land by Allah Ditta, he and the persons so collected constituted an unlawful assembly. It must be remembered that the right of private defence is always against an act that is an offence, and on the evidence in this case, it is impossible to hold that when Allah Ditta in 1947 sowed the land or attempted to exercise on it some right of ownership he was committing an offence. Such being the position, the appellants constituted an unlawful assembly ever. if it may be accepted that they were the first to go to the land in dispute and Allah Ditta and his men arrived subse quently to remove an obstruction to their enjoyment of the land. That would be the legal position even if the defence case is accepted in its entirety with the exception of Muhammad Khan's allegation that he had throughout been in possession of, the land. But after considering the evidence we are of the view that he occurrence did not take place in the manner alleged by Muhammad Khan. The main reason for coming to this conclusion is that the appellants have not been able to explain the injuries that they caused to several men of Allah Ditta's party. Sher deceased had two penetrating wounds in the abdominal cavity each caused by a separate thrust while Kamir deceased and Haq Nawaz deceased each had a penetrating wound, the former on the left side of the chest and the latter on the left side of the abdomen. Ahmad P. W. had five injuries, one of which was grievous and another dangerous, four of the injuries having been caused by sharp‑edged and pointed weapons. Muhammad P. W. had an incised wound on the left parietal bone caused with a sharp‑edged weapon. The other, Muhammad had three incised wounds, each caused with a sharp edged weapon. Muhammad Hayat had three simple injuries which were caused by a pointed weapon. Among the appellants, Karam Khan had one scratch, Falak Sher four scratches, Abbas two abrasions and one scratch, and Hakam Khan a contused wound and a contusion mark, both simple. Murad Khan, how ever, had seven injuries. These were also mostly scratches and superficial wounds which were all simple and of which five were caused by blunt weapons. One scratch on him appears to have been caused by a pointed weapon while the incised wound on his left buttock was caused by a sharp weapon. He was asked by the doctor who examined him to produce the dhoti which he had on his person when he received this injury but he was unable to produce any dhoti or other cloth showing a corresponding cut, the inference suggested by the prosecution being that this incised wound had been fabricated for the purpose of this case to serve as a foundation for the theory of self‑defence. None of the defence witnesses admit that any one of Muhammad Khan's party was armed with a spear though the medical evidence makes it clear beyond question that a large number of spears were used by the assailants of Allah Ditta's party. According to the defence only two sharp weapons were used by Muhammad Khan's party, a choha by Hakam appellant and a kulha7i by Karmun. A choha is a local and somewhat unusual agricultural implement and the learned judge after examining one such instrument produced before him at the trial was definitely of tile omnion that none of the injuries found on the person of Sher and Kamir decided could have been caused by a choha. Nor is there any evidence of any serious injury having been caused to anyone of Allah Ditta's party by a kulhari. On this ground alone, therefore, the defence evidence must be rejected. We have examined the reasons given by the leaned Sessions judge for the view that the fight did not start in field No. 1827 and that it was Allah Ditta's attempt to do something on the disputed land that brought Muhammad Khan's party to the spot to drive away Allah Ditta from the land. For the reasons we have already given no question of self‑defence would arise if either the prosecution case as disclosed by the witnesses of the findings of the learned judge be accepted. The defence allegation cannot possibly be accepted in view of the inability of the defence to explain the injuries that were found on the persons of members of Allah Ditta's party, but even if it be assumed that Allah Ditta's party attempted to cultivate the land by force it would make no difference in law as they were entitled to do so and Muhammad Khan had no right to prevent them merely by reasons of his having wrongfully cultivated the land six months earlier in the preceding Kharif. The attack on Allah Ditta's party having been admitted, it was for the defence to prove with that degree of probability as is required by the Court when an accused person is required to prove a fact, that they were justified to kill three men and badly injure four others This, they have failed to do because the evidence does not establish even a prima facie case that Muhammad Khan was in possession of the land on or before the day of the incident. We, therefore, consider that these convictions are correct and as Muhammad Khan is responsible for three deaths we do not consider the sentence of death passed on him to be unjustified. The appeal is, there fore, dismissed. K. M. A. Appeal dismissed.