P L D 1964 Supreme Court 177 (PLP)

S. 447‑Intention to intimidate, insult or annoy‑‑Not established where there was justification for entering upon land (e.g., when tenant had given his lessor to under stand that he would restore possession when land was free from crops) though not "fully legal justification" (by majority; Kaikaus, J. contra on facts). Mahmud Ali Senior Advocate Supreme Court (Rafiq Ahmad Sheikh Advocate Supreme Court with him) instructed by Siddiq & Company Attorneys for Appellant (in Cr. A. No. 60 of 1963). Rustam S. Sidhwa Advocate Supreme Court instructed by Ijaz Ali Attorney for the State (in Cr. A. No. 60 of 1963). Habib Ismail Bajwa Advocate Supreme Court on behalf of S. M. Anwar Advocate Supreme Court on record instructed by Z. A. Qureshi Attorney for Appellant (in Cr. A. No. 61 of 1963). Rustam S. Sidhwa Advocate Supreme Court instructed by Ijaz Ali Attornty for the State (in Cr. A. No. 61 of 1963). Dates of hearing : 20th and 23rd December 1963. CORNELIUS, C. J.‑This judgment deals with two Criminal Appeals, viz., No. 60 of 1963, by one Shihab Din and No. 61 of 1963, by one Mithu. These two persons along with four others, namely, Ghulam Hussain, his brother Ghulam Hassan, who is the father of Mithu, Muhammad Bakhsh who is brother to Ghulam Hussain arid Ghulam Hassan, and one Nabi Bakhsh a relation of these persons were tried for the offences of rioting punishable under section 148, P. P. C., and of criminal trespass, of attempted murder, and of the murder of one Gul Muhammad, all committed in furtherance of the common object of an unlawful assembly. The other four persons were acquitted by the High Court on the single ground that only two of the five eye‑witnesses could be regarded as reliable, and they being interested, the conviction

can be maintained only if independent corroboration of their testimony is available". Such corroboration was found as against Shihab Din and Mithu in the presence of injuries on their persons which were found to have been received in the course of the clash between the parties. Shihab Din, it should be noted is not related to the otter five persons. He shared, however, in the interest in land which led to the clash, in that his father Rahmatullah in collaboration with Ghulam Hussain accused had been negotiating for the lease of the plot of land in which the clash took place a few days before the clash. Leave to appeal was given to Shihab Din to consider whether section 302, P. P. C. was applicable" to his case. Shihab Din's plea was that he happened to be passing by the spot where a fight was going on between his co‑accused Mithu and two persons Kariman and Yar Muhammad on one side and on the other side, the deceased Gul Muhammad and his brothers Khamisa and Allah Ditta (who are the principal eye‑witnesses upon whom the High Court relied). Shihab Din intervened and received injuries in the process. He said he had been falsely implicated on account of the aforementioned interest. The purpose underlying the grant of leave to Shihab Din to appeal was undoubtedly to consider whether the act attributed to him, namely, the giving of two blows with a knife to Gul Muhammad as a result of which he died, was proved to be an unprovoked act, i.e., whether there were any circumstances proved which could operate to reduce the offence to culpable homicide not amounting to murder within the scope of section 300, P. P. C. That is an important and difficult question which arises frequently in cases of homicide. It can only very rarely happen that it can be resolved without a careful appreciation of the whole evidence and all the circumstances of the case. To Mithu, leave was granted on the ground that the prosecution case itself was that he had not caused any injury to any person. "He had been convicted on the ground of "common intention", and a question arose whether such a common intention had been brought home to him. Here also, it seems to me that there can be no doubt that the grant of leave necessarily involved examination of the evidence and circumstance to ascertain what actually occurred. Mithu's plea at the trial was that he himself was engaged in spreading over the field some manure which had been placed on it by himself earlier and Shihab Din too "came there". Then Gul Muhammad armed with a chhurra and Khamisa and Allah Ditta armed with lathis arrived and wantonly assaulted him giving blows with their lathis and he used his kassi in self‑defence "from the wrong side" and gave them blows. Gul Muhammad assaulted Shihab Din. After the fight he saw Gul Muhammad lying murdered there. The plot of land on which the incident occurred, and which is only about 1 kanals in area is included in certain evacuee land allotted to one Tanweek Muhammad (P. W. 9). On the day of the occurrence, namely, 26th May 1961, it was still subject to a three‑year lease in favour of Ghulam Hassan accused and one Rahim Bakhsh, which was to expire on the 6th June 1961. The land was bare, except that there were heaps of manure laid upon it in preparation for fresh ploughing. Ghulam Hassan accused and Rahiman had sublet the land to the deceased Gul Muhammad and his brothers who lived in a house only a short distance away, from where the plot could be directly seen. The land is well. irrigated, and it seems that in anticipation of the termination of the contract, efforts had been made by different persons to secure the lease to follow. About ten days before the occurrence Gul Muhammad deceased along with one Karam Shah met Tanweek Muhammad's brother Nek Muhammad (P. W. 8) and asked that the land should be leased to them. They offered a certain amount as lease money but did not agree to sign a registered lease deed. Nek Muhammad said he would consult his brother. The latter declined to grant a leas, unless 3 registered lease decd was executed. Then some seven or eight days later Ghulam Hassan who was the present lessee together with Rahmatullah father of the appellant Shihab Din approached Tanweek Muhammad and Nek Muhammad, and made offers. Matters went so far that lease deeds were actually prepared, one by Ghulam Hassan for Nek Muhammad's land and another by Rehmatullah for Tanweek Muhammad's land. On the 23rd May 1961, three days before the occurrence, they all went to the office of the Sub‑Registrar at Deraghazi but there the intending lessees went back on their promise to half a year's rent in advance and asked the landlord to accept one hundred or two hundred rupees instead, but to state before Sub‑Registrar that they had received a half year's rent. This the landlords refused to do and they did not sign the lease deed either. But the impression is not gained from the testimony of the landlords that the negotiations had fallen through. Possession was with Ghulam Hassan, and it seems to me that he was using this as a lever to oblige the landlords to accept his offer and that of Rahmatullah. His first effort to gain advantage failed on the 23rd May 1961, but there was still time before the current lease expired, and he probably expected the landlords to bear in mind that being in possession, he could give a good deal of trouble before he was ejected. As will be seen presently, he and his brothers had already spoken to the sub‑lessees about vacating the land. Their sub‑tenancy would automatically expire with the contract lease of their lessors. It seems also that the season was appropriate for preparing the ground for cultivation for the ensuing crop, and these operations were being conducted on the land on the 26th May 1961, when the incident took place. They may well have been intended as notice to the landlords of the intention of Ghulam Hassan that Tanweek Muhammad's land should be taken over by Rahmatullah, this associate, and that would explain the presence that morning of Ghulam Hassan and his relations, as alleged by the prosecution, in the company of Shihabuddin appellant, who is Rehmatullah's son, when he com menced to plough the land. The complainant's case is that the six accused persons were found by them to be engaged in these operations early on the morning of the 26th May 1961, at or about 6 a.m. Mithu admittedly was engaged in spreading manure over the field, and there was a plough with bullocks, which were being pulled along by Shihabuddin by their nose‑strings, while Ghulam Hassan was behind the plough. Shihabuddin was said to be carrying an open chhurra in his hand. Nabi Bakhsh and Muhammad Bakhsh were there carrying lathis and also Ghulam Hussain who was empty handed. Seeing this Khamisa (P. W. 2) and Allah Ditta (P. W. 3) together with their deceased brother Gul Muhammad hurried to the spot from their house close by. Khamisa and Allah Ditta were admitted to be carrying "sticks" but Gul Muhammad was said to be empty handed. Gul Muhammad got in front of the bullocks and went so far as to pull out one of the killis, to release the bullocks on one side. At this Ghulam Hassan left the plough and going up he caught hold of Gul Muhammad, and thereupon Shihab Din inflicted two knife blows in Gul Muhammad's belly as a result of which he fell down and died on the spot. Then Khamisa and Allah Ditta went to the rescue of Gul Muhammad and gave blows to Shihab Din with their sticks, but they in their turn were assaulted by Nabi Bakhsh and Muhammad Bakhsh. In the meantime Ghulam Hassan accused snatched the kassi from the hands of Mithu and gave blows with it to Khamisa on his head and back. People arrived, and the accused persons went away leaving their bullocks and plough in the field. A report was made at the thana two miles away at 7 a.m. In this report, the admission was made by Khamisa which was repeated in the evidence, that on the 24th May 1961, two days before the occurrence, Ghulam Hassan and Ghulam Hussain accused with Rahmatullah and his son Shihab Din came to them and said that they had taken a lease of the land of Nek Muhammad and Tanweek Muhammad and wanted that possession of the land which Gul Muhammad and his brothers had should be given over. Gul Muhammad and Khamisa said that there were still crops of rice and vegetables and jawar standing on the land, but when the land was free they would restore possession. Thereupon the others got up, and Shihab Din said that possession of the land would be taken by force. It is of some little importance to note tile admission by Khamisa that he and his brother did not object to handing over the land which they held as sub‑lessees under Ghulam Hassan accused and Rahim Bakhsh but only asked for time to remove their standing crops. It is important because some days earlier Gul Muhammad had made an abortive effort to take a lease of the land himself, in association with one Karam Shah. His attitude towards his own lessors on this occasion would indicate that he had abandoned that effort. It is important also because it was admitted that the land in question where the fight took place was free of crops at the time, so that there would be no hitch to its being restored to the lessors when required. The case of the accused persons indeed was that the posses sion of this land had been handed over a few days earlier by Gul Muhammad, since it was lying vacant. This allegation was denied by the witnesses for the prosecution and is supported by nothing more than the statements of the accused persons them selves, of whom Mithu said that the manure on the plot had been put there by himself. Wily he should do so, when the intended lessee was Rahmatullah was not clarified, but at the same time, it is difficult to reconcile the admitted willingness of the prosecution witnesses to relinquish possession after removing their crops, with their allegation that they themselves had placed the manure on this particular plot. The trial Judge mentioned the matter of the manure heaps briefly, but reached no conclusion thereon preferring to base his decision on two facts found by him, viz., (1) that possession of the land was legally with the sub lessees, who were not shown to have parted with it and (2) that the presence of the accused persons who bore no injuries was established by the recovery of their plough and bullocks by the investigating police‑officer from this plot. I would incline to the view that the manure had been heaped on the plot by those who intended to cultivate it, and not by the complainants who had indicated their willingness to relinquish the land. Since Rahmatullah was associated with Ghulam Hassan in the effort to secure a further lease of the land, it is not unnatural to find Mithu, who is Ghulam Hussain's son undertaking this part of the work. It is in these circumstances that the question falls to be decided whether Shihab Din and his associates, namely, the other accused persons, had any semblance of right or justification on their side when, on the 26th May 1961, they entered upon this plot with a plough and commenced cultivation without any previous formal delivery of possession in their favour by Gul Muhammad and his brothers. The defence has not been able to show that in respect of this land they had terminated the sub lease before the due date. The allegation that they had obtained possession from Gul Muhammad a few days before the occurrence is supported by nothing more than the statements of a few of the accused persons. A prosecution witness Shahru did indeed say that Gul Muhammad had handed over possession of this plot, but in cross‑examination he explained how he had this impression, and it was clear that there was no sufficient basis for the statement. Therefore it seems that legal possession over this land in question was still with the sub‑lessees on the 26th May 1961, and the actions of the accused persons in taking the plough on the land, and perhaps, even the action of laying manure on the land which they claimed to have formed a little earlier were, in a strict sense, illegal. But all the attendant and preceding circumstances combine to give the impression that the accused persons acted in the belief that there would be no opposition from the sub‑lessees to their bringing this land under the plough. It was vacant and therefore there would be no prejudice to the rights which the sub‑lessees were claiming as their final rights under the sub‑lease, namely, to be allowed to remove their crops. The threat which it is alleged that they held out, to take possession of land under crops by force had no application to this land. Their effort was, in all probability, directed against the landlords, from whom they had yet to secure a further lease. On the 24th May, they had given out to Gul Muhammad and his brothers that they had succeeded in getting this further lease, though the fact was that the matter had been left unsettled the previous day. It may well be that the resistance offered by the sub‑lessees on the 26th May 1961, was due to their getting an inkling that the question of the further lease had not in fact been settled. In a strictly legal sense therefore Gul Muhammad and his brothers were within their rights to oppose the ploughing of the land in their legal possession, without their permission. They were entitled to go upon it in order to prevent what they could regard in law as an invasion of their rights. The un-rebutted evidence of the prosecution shows that Gul Muhammad stopped the bullocks and tried to release one of them from the plough so as to stop the ploughing altogether. It was when this happened that Shihab Din struck the fatal blows. The medical evidence shows two wounds in the abdominal region under which the vital organs were injured and death was immediate. The intention to cause death is clear. This was followed by an immediate attack upon Shihab Din by Khamisa and Allah Ditta, which is proved by the existence of four contused wounds on his head and other minor injuries. Next, Nazi Bahhsh and Muhammad Bakhsh, accused attacked Khamisa and Allah Ditta, with lathis, and in proof thereof Khamisa could show three contused wounds on the head and some minor injuries, while Allah Ditta had four blow‑marks to show. Some of Khamisa's injuries were said to have been caused by Ghulam Hassan, with Mithu's kassi, but against this there are to be placed two matters viz., (1) that Mithu says he used his kassi himself and (2) that Mithu bears injuries, which the prosecution evidence does not explain, and Ghulam Hassan bears none. Ghulam Hussain took no part in the clash, on the allegations of either side. Thus, with the exception of Mithu's injuries, the others are satisfactorily explained by the prosecution evidence. The question was raised in arguments that the story of Shihab Din carrying an open knife as he pulled the bullocks along is unworthy of credit, for (a) the accused party had no reason to expect resistance from the sub‑lessees, and (b) the knife itself, with a blade no more than four inches long was of quite common type, which would frighten no one. It was more easy to believe that it was pulled out of the dub as soon as the need was felt. If, indeed, there had been a large knife openly carried, Gul Muhammad would probably not have gone beyond the range of protection of his brother's lathis as he was proved to have done. These are questions which have not been considered at all in the judgment of the High Court. The nature of the incident, and the criminal liability of each person involved cannot be correctly ascertained, in a case of this kind without a close examination of the details of the incident, in so far as they can be held proved. The learned Judges have found the two injured witnesses to require corroboration, because they are brothers to the injured person. It has been observed by this Court in a number of cases that the mere fact of relationship does not necessarily render a witness's account of the occurrence subject to doubt. Provided his presence is proved beyond doubt (as here by the presence of injuries on the bodies of Khamisa and Allah Ditta) and the number of persons accused is not out of proportion to the nature of their enterprise and the results they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed, as against a mere plea of false implication on the part of the accused persons. Again, to confine con victions to those of the accused persons who bear injuries is a rule which is too frequently applied, to the detriment of justice. Even in a free and equal fight, the more capable fighters, who do the greatest damage, frequently escape without a mark on their persons, and to make this the sole or final test of their guilt is clearly not consistent with true dispensation of justice. In this case, for instance, there are a number of lathi blow‑marks on Khamisa and Allah Ditta, which were not attributed to Shihab Din, who had no lathi, or to Mithu, a few were attributed to Ghulam Hassan, but Mithu's own statement made this doubtful; the number of blow‑marks, and the fact that Khamisa and Allah Ditta themselves had lathis makes it easily credible that they were attacked by two men, and therefore there was good ground for believing that Nabi Bakhsh and Muhammad Bakhsh were rightly charged with causing these injuries. Merely because they themselves were un‑injured, they have escaped conviction. In Shihab Din's case, his plea of appearing on the spot by chance, and becoming involved in a fight between others is clearly un‑acceptable, as he is a person most strongly interested in gaining possession of the plot in question. There are good reasons why the story of his carrying an open knife is not to be believed. In all probability, he pulled it out of his dab on the spur of the moment, and his use of it was thus an individual act, suddenly taken, which could not be described as the joint act of all the other accused persons. His conviction under section 302, P. P. C. would therefore appear to be correct, but it still remain for consideration whether the sentence of death is appropriate. The act was not unprovoked, for Gul Muhammad had interfered with his ploughing. Gul Muhammad was legally in the right, to stop the ploughing, but by his earlier conduct, he had given rise to the impression that as to vacant land, he would not object to possession being taken at any time. Therefore, the entry by Shihab Din on the land was not, in a sense, unjustified, and in the circumstances, the reacting with fatal blows to Gul Muhammad's interference would not merit, in my view, the extreme penalty of death. On the view that his act was individual and sudden, and believing that his further part in the affair was as the victim of a concerted attack by Khamisa and Allah Ditta, his conviction under section 307, P. P. C., is clearly unjustified and must be set aside. The case for criminal trespass is also bound to fail on the view that there was justification, though not fully legal justification, for the entry into the field, for then the intention to intimidate, insult or annoy or to commit an offence is absent. I would accordingly set aside the convictions of Shihab Din under sections 447 and 307, P. P. C., but would maintain his conviction under section 302, P. P. C., and reduce the sentence to transporta tion for life. As for the appeal of Mithu, on the view indicated above, he cannot be held guilty of criminal trespass, or of any jointness in respect of Shihab Din's fatal attack on Gul Muhammad. Nor can he be convicted under section 307, P. P. C., for the prosecution witnesses do not say he raised his hand against anyone, and the proved circumstances of the delivery of blows to Khamisa and Allah Ditta completely exclude the possibility of his being jointly responsible by intention, for that attack. Mitho's case shows in strong relief the inherent danger of applying the rule of injuries for picking out accused persons to convict without close exami nation of all the relevant facts. I would allow his appeal and acquit him on all counts. FAZLE‑AKBAR, J.‑I agree. B. Z. KAIKAUS, J.--‑I am in agreement with my Lord the Chief Justice with respect to Mithu, but so far as Shahab Din is concerned I am, with great respect, unable to find any ground for interference. It appears to me that Shihab Din acted in a high‑handed manner. He had nothing to do with the land. His father was not one of the old lessees and so far as the new lease is concerned he has accepted like every other accused that the transaction had fallen through. By what right then did he go to the field in dispute to take possession of it? He had neither any right in the land at the time when he went there nor did any reason exist for a bona fide assumption on his part that he was entitled to the possession of the land. Yet he was armed with a chhurri knowing that he was to meet with opposition. People don't take churri along with them when they go to plough the land. Evidently he went there determined to deal with a chhurri with anyone who obstructed him in ploughing the land or in taking possession of it. The land was in the possession of the deceased and the P. Ws. The mere fact that when asked to deliver possession of land the deceased or his associates had said that they would deliver possession after reaping the harvest would not be any excuse for taking forcible possession and the case would be worse for a person who has no right whatsoever with respect to the land on the date when he tries to take possession. At the same time let me point out that the deceased and the P. Ws. had been in possession of the whole of the land under the lease for the last twenty‑five or thirty years being tenants from year to year. They were not liable to ejectment under the Punjab Protection and Restoration of Tenancy Rights Act (XIII of 1950) except on special grounds which are rarely available to a landlord. The deceased and the P. Ws. knew that under the law they could not be ejected and the accused party also knew that they could not be ejected. These are matters which are well‑known to the agriculturists for every day they have to deal with the ejectment of tenants. When the deceased or the P. Ws. therefore, said that they would hand over possession after reaping the harvest they may very well have just put off Ghulam Hassan accused. The whole of the land would never be vacant for there would be crop in one part of it or another. So really there was a contest between those who wanted to become lessees and the tenants and the would‑be lessees wanted to turn out the tenants by force knowing that legally they could not be ejected. That the accused knew the deceased was not going to deliver possession is clear from the fact that they went armed and Shihab Din was armed with a chhurri. Not only this but Shihab Din was carrying the chhurri in his hand while he was ploughing the land. The theory that Shihab Din may have produced it from his dab is negatived by the statement of Shihab Din himself. He has accepted that at the time of the‑ incident he was wearing only a bunian and a kachha. As to why he was wearing bunian and kachha he has given an explanation which has not been accepted by any Court. The High Court has reached a conclusion that he was carrying the chhurri openly and with this finding there is no ground for Interference. That he was holding the chhurri is admitted and that he was wearing only a bunian and a kachha is admitted. The fact that the deceased was not deterred from obstructing Shihab Din is not under the circumstances a sufficient ground for rejecting the prosecution case that the chhurri was being held openly. The deceased and his associates were being insulted and subjected to an act of high‑handedness and in such circum stances a danger of attack is so many times disregarded. The deceased and the P. Ws. may even have regarded it cowardly if they ran away. Shihab Din appellant was a trespasser. He went there to intimidate, to insult, and to do something far greater than annoyance. His act was a deliberate attempt at forcible dis possession of those who did not want to deliver possession and were in law entitled to continue in possession even if there was a new lease and there was no new lease. There were not the slightest bona fides in his action. I would not, therefore, interfere either with his conviction or his sentence. In accordance with the view of the majority, we set aside the convictions of Shihab Din appellant under sections 447 and 307, P. P. C., but maintain his conviction under section 302, P. P. C. and reduce the sentence to transportation for life. We allow the appeal of Mithu, and acquit him on all counts. A. H. Order accordingly.