P L D 1970 Supreme Court 212 (PLP)

WAHIDUDDIN AHMAD, J.‑This appeal by special leave is from the judgment of a Division Bench of the West Pakistan High Court, Peshawar Bench, in Criminal Appeal No. 42 of 1967 (Murder Reference No. 19 of 1967), whereby the appeal filed by the appellants was dismissed and the death sentence given to Sardarai appellant was confirmed. Appellants Sardarai and his father, Jurabaz were tried for offences under section 302/34, P. P. C. for causing the murder of deceased Abdur Rahman and under section 307/34, P. P. C. for causing injuries to P. W. Khan Sher at Wand Anjar within the; limits of Kalu Khan village at a distance of 2 miles from Police Station Kalu Khan. The prosecution case is that Abdur Rahman deceased was the landlord of 6 kanals of land at Wand Anjar and the two appellants were his tenants‑at‑will. It is alleged that in the, month of Besakh, the deceased approached the appellants to vacate the land in their possession. They agreed to the proposal and surrendered the possession of the land in dispute to the deceased. On the 19th June 1966, the deceased went to plough his field. When he was busy in ploughing the field, Khan Sher P. W. 5 brought tea for him which was sent by his step‑mother and asked him to take his tea. At that time the two appellants. armed with Topaks came on the spot and when the deceased was ploughing the land from north towards the south, appellant Sardarai fired a shot which hit the deceased causing his death. Thereupon, Khan Sher P. W. 5 reprimanded the appellants. At this, Jurabaz appellant fired at him and he received injuries on his right buttock. He fell down and also received injuries, on his head from the pebbles which were lying on the field. The incident is alleged to have been witnessed by P. Ws. Zaman, Shah and Ali Sher. P. W. Khan Sher immediately rushed to the Police Station Kalu Khan and lodged the First Information. Report, Exh. PA, at 1‑45 p. m. The appellants were arrested on the 24th June 1966. The appellants were committed for trial before the Additional Sessions Judge, Mardan, who convicted them under sections 302/34 and 307/34, P. P. C. The learned Court, by judgment dated the 24th January 1967, sentenced appellant. Sardarai to death. It gave transportation for life to appellant. Jurabaz on account of his old age. The appellants were further sentenced under section 307/34, P. P. C. to seven years rigorous imprisonment. This judgment was challenged in the High Court of West Pakistan in the above‑mentioned appeal and Murder Reference. As already stated the conviction of the appellants, was upheld. The death sentence of Sardarai vas confirmed and. the appeal filed by the appellants was dismissed by judgment dated the 6th December 1967. The right of private defence of property pleaded before the High Court was not accepted. The appellants have challenged their conviction and sentence in this appeal before us. Leave was granted in this case to the appellants on the 26th March 1968, to consider the nature of the offence committed by the appellants in the light of their plea of private defence of property. Mr. S. Masoom Shah, learned counsel for the appellants has not seriously challenged the finding of the High Court that the appellants were responsible for the murder of deceased Abdur Rahman. The conviction of the appellants is based on the testimony of P. W. Khan Sher, P. W. Zaman Shah and P. W. Ali Sher. The evidence of these witnesses clearly show that the appellants, armed with Topaks, came on the land in dispute. At that time the deceased was ploughing it. Appellant Sardarai fired a shot which hit the deceased on the back of his abdomen and proved as fatal due to which he fell down. When P. W. 5 Khan Sher, who had brought tea for the deceased and was present on the spot, reprimanded the appellants on their act, Jurabaz appellant aimed his Topak at him and when he tried to run away fired a shot at him which hit him on the buttock. It is in evidence that the eye‑witnesses are not related to the deceased. They have no enmity against the appellants. Their evidence is also supported by the medical evidence. The learned counsel for the appellants has strenuously contended that the appellants had a right of private defence of property and as they have exceeded this right they should have been convicted under section 304, Part I, P. P. C. In this connection he contended that the case of the prosecution that the appellants had surrendered the possession of the land in dispute to deceased Abdur Rahman is false. According to him, the appellants had not surrendered their possession as tenants and deceased Abdur Rahman had trespassed on the land in dispute. The contention of the learned counsel is not without force. It is not disputed that the appellants were tenants‑at‑will of the land in dispute for the last three years before the occurrence in question took place. The prosecution case is that there is a local custom in the area where the offence was committed that a landlord usually asks the tenants‑at‑will in the month of Besakh in order to leave the possession of the land. In the present case also it is alleged that deceased Abdur Rahman asked the appellants in the month of Besakh to leave the possession of the land in dispute. The prosecution case is that they had agreed and surrendered the possession whereas the appellants case is that they had declined to do so. The learned Courts below have accepted the case of the prosecution. In my opinion, the plea of the appellants that they have not. surrendered the possession of the land in dispute appears to be true. The statement of P. W. Khan Sher that the appellants' party had agreed and surrendered the possession is belied by his statement in the Court of the Committing Magistrate where he admitted that "sometime prior to the occurrence the deceased had asked to quit his tenancy to which the accused were not prepared". Similarly, the statement of P. W. 6 Zaman Shah also in this respect cannot be believed in view of his statement before the police that "a few days before the occurrence in the course of talk between the deceased and the accused, the deceased asked them to surrender the possession to which the accused party did not agree". In the presence of such evidence it cannot be said that the appellants had surrendered the possession of the land in dispute to the deceased. In these circumstances, it appears that the deceased, on the fateful day, entered on the land in dispute on his own without the consent of the appellants. The learned counsel for the appellants has referred us to the provisions of North‑West Frontier Province Tenancy Act, 1950 (Act XXV of 1950). Section 25 of this enactment clearly lays down that a tenant cannot be ejected otherwise than in execution of a decree for ejectment. This enactment also provides the grounds on which a tenant can be evicted and the manner in which he may relinquish his tenancy. Admittedly in the present case deceased Abdur Rahman did not obtain possession of the property in dispute in execution of any decree for ejectment or with the consent of his tenants. Therefore, the deceased when he entered on the land in dispute to plough it did so as a trespasser with a view to wrongfully dispossess the appellants. The question is whether in such circumstances the appellants had any right of private defence of property and whether by shooting the deceased on the land in dispute they had exercised that right or exceeded their right of private defence. Mr. Muhammad Abdullah Bajwa, learned counsel for the State, has also supported the appellants in this behalf. He has also contended that the appellants had a right of private defence of property in dispute, and as by killing the deceased they had exceeded in that right they should have been convicted under section 304, Part I, P. P. C. In the written note submitted by the learned counsel he has referred to a number of decisions of the various High Courts in this sub‑continent. In this connection reference may be made to the cases of Jainath v. Emperor (A I R 1927 Patna 181), Indar Singh and another v. Emperor (A I R 1938 Lah. 60), Mobarak Ali and others v. The State (P L D 1961 Lah. 415), Pachkauri and others v. The Queen Empress (I L R 24 Cal. 686), Khushi and others v. The State (P L D 1960 Lah. 44), Arif v. The State (P L D 1959 Lah. 606), Abdul Latif v. The State (I L R 14 Bom.,441) and Queen‑Empress v. Narsang Patha Bhai and others (P L D 1960 Lah. 62). The principles that emerge from these decisions are as under :‑ (i) The possession of a party in possession of a property should not be disturbed unless he is evicted by due process of law. (ii) The right of private defence can be exercised against an aggressor even if he be the rightful owner of the property. Owner of the property is not entitled to take law into his own hands merely because he has got a right to have possession restored by a civil Court. If he does so he will become liable for criminal trespass. (iii) If a trespasser is in settled possession of the land which means that he has been in possession of the property for a pretty long time without resistance he is entitled to defend his possession even against the rightful owner and he can be evicted only in due course of law. (iv) The landlord has no right to evict a tenant by force. Where possession is taken over by force from a tenant, he has a right to defend the act of trespass by using force under section 97 (secondly of the Penal Code) and when he is attacked he has right under this section of the Penal Code to defend his person. The question of the right of self‑defence of property of land was also considered in the case of Muhammad Khan v. The Crown (A I R 1949 Lah. 128). In this case Munir, A. C. J., as he then was observed as under :‑ "His position after the partition was that of a pure trespasser, and though nobody 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." He further observed :‑ "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 casual act of possession would not have the effect of interrupting the possession of the rightful owner. We agree with the observation of Mullick, A. C. J. in Emperor v. Bandhu Singh 106 I C 691 : (A I R 1928 Pat. 124) 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 light of the above discussion it also appears to me that a landlord is not entitled to dispossess his tenant by force. He must obtain possession of his property in due course of law. If a landlord evicts his tenant without recourse to law, the tenant is entitled to resist his possession by force against him If a tenant is dispossessed by his landlord and be does not acquiesce with that act, he is entitled to re‑enter and re‑instate himself but he should not use more force than is necessary. Considering the case of the appellants from this angle, it is quite clear that deceased Abdur Rahman had trespassed on the property in dispute, that the appellants had not acquiesced in such entry and they were entitled to re‑enter and re‑instate themselves provided they had not used more force than was necessary. Unfortunately, in the present case, the appellants tin, instead of re‑entering and re‑instating themselves, attacked the deceased Abdur Rahman and deliberately shot him dead, This, in my opinion, is not permissible in law. The ]a does not permit a person under the pretext of private defence of property to kill a man outright. Under section 99 of the Penal Code, the right of private defence does not extend to the causing of more harm than it is necessary to cause for the purpose of defence. Under section 104 of the Pakistan Penal Code the right of private defence is circumscribed by the limits mentioned in section 99 of the Code. The offence of criminal trespass is a minor offence. In a case where the trespasser is unarmed and there is no threat of grievous injuries to the person who is resisting the trespass he is not entitled to use such force as may result in the killing of a person. If he does so he cannot claim that he was doing so in the right of his private defence and has exceeded in his right. This exact was also considered by a Division Bench of the West Pakistan High Court in the case of Muhammad Ishaq v. The State (P L D 1960 Lah. 880), to which one of us (Sajjad Ahmad, J.) was a party. In that case also a person shot at the trespasser and killed him. It was also pleaded in that case that this was done in exercise of the right of private defence of the property. This contention was repelled by Shabir Ahmad, J. on the following observation :‑ "If, therefore, a person intentionally does an act which he knows will result in much more serious harm than the harm which the law allows him to cause in the exercise of the right of private defence, it could not be said that he was acting in the exercise of the right of private defence but happened to exceed that right. This may be explained by an illustration. A boy, aged about 13, is seen plucking fruit from a man's garden. That the plucking of the fruit should amount to theft can hardly be doubted and the law gives the owner of the fruit a right of private defence. But if in order to prevent the boy from plucking fruit the owner were to shoot at the boy, it cannot be reasonably claimed for him that he was acting in the exercise of a right of private defence of property and had merely happened to exceed it, What he did was far beyond what the law permitted him to do and as from the beginning his intention was to do what the law did not allow him to do, he could not be said to have acted in the exercise of the right of private defence and to have happened to merely exceed it. I agree with these observations. In the present case, the evidence shows that the appellants arrived at the scene of occurrence with the determination to kill deceased Abdur Rahman. They did not protest or raise any objection on the D trespassing of the property by the deceased. Sardarai appellant, on seeing the deceased shot at him and killed him on the land in dispute. It is therefore, them to do quite clear that they acted far beyond law permitted beginning their intention was to do what the law did not permit them to do, they cannot be permitted to claim that they have acted in the exercise of right of private defence and had exceeded in it. On that view of the matter the appellants were rightly held to be guilty under section 302/34, P. P. C. and no exception can be taken of their conviction under this provision of law. So far as the sentence of the appellants is concerned it will be seen that Jurabaz appellant has already been given a sentence of transportation for life. The contention of the learned counsel for the appellants that the deceased by trespassing on the land in dispute has given provocation to the appellants and as he was himself to be blamed for what had happened, appellant Sardarai is also entitled to a lesser punishment is not without substance. There is no doubt that deceased is also to be blamed for taking the law into his own hand. I would, therefore, reduce the sentence of appellant Sardarai to transporta tion for life. The conviction of the appellants under section 307/34, P. P. C. calls for no interference. The appeal is, therefore, dismissed subject to the above modification. HAMOODUR RAHMAN, C. J.‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree. SAJJAD AFIMAD, J.‑I agree. S.Q. Appeal partly accepted.