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Criminal Appeal No. 432 of 1961/Criminal Miscellaneous Application No. M‑277 of 1961, decided on 14th September 1964.
Ss. 323, 326 & 97, secondly & Cattle Trespass Act (1 of 1871), S. 10‑Seizure of trespassing cattle‑Resistence and attack by owner Person seizing cattle has right of self‑defence in warding off attack and meeting resistence.
Nawab v. The State P L D 1960 Lah. 149 rel.
A. H. Memon for Appellants.
Murtaza Hussain for Addl. A.‑G. for the State.
Date of hearing: 14th September 1964.
This appeal is by Naru, son of Baikhu, Naru, son of Jesso and Dewo, son of Jesso, who have each been sentenced to three years' rigorous imprisonment under section 326/34, to six months' rigorous imprisonment under section 324/34 and to three months' rigorous imprisonment under section 323/34, P. P. C. They have been so convicted for an incident which happened on the 19th of September 1960, at about 1 p.m. in Deh Jaman, as a result of which Dhani Bakhsh deceased was killed and Mehar (P. W. 1), Khuda Bakhsh (P. W. 2) and Abdul Haq (P. W. 3) were injured.
2. Dhani Bakhsh deceased and Imam Bakhsh (P. W. 4) are brothers of Mehar (P. W.1). The three appellants are Kolhis by caste. They are stated to be connected, inter se, but their relationship has not been brought out in evidence. They lived about 7 or 8 field numbers away from the land of, the complainants and cultivated the land of Umedali Khaskheli.
3. According to the prosecution case, on the day of the occurrence, Mehar (P. W. 1) and Dhani Bakhsh deceased went to their land at about noon to cut grass and found two bullocks, belonging to Naru, son of Baikhu, grazing in their land. They pushed them out of their field and were taking them to the cattle pound in Karam's village, but they had hardly gone to a distance of one athas (8 jaribs), when all the three appellants, armed with hatchets, came and asked them where they were taking their bullocks. On their informing them that they were taking the bullocks to the cattle pound, the appellants abused them and said that they would not let them take the bullocks to the cattle pound. Mehar and Dhani Bakhsh raised a hue and cry which attracted Abdul Haq and Khuda Bakhsh. Naru, son of Baikhu appellant then gave blows to Mehar P. W. from the blunt side of his hatchet, and the other gave injuries to Dhani Bakhsh deceased. Khuda Bakhsh (P. W. 2) and Abdul Haq (P. W. 3) interceded, and they were also given injuries by the appellants. Mehar P.. W. and Dhani Bakhsh deceased fell down, and the appellants drove away the two bullocks. Imam Bakhsh, Hamid Ullah and Ali Bakhsh saw the appellants taking away the bullocks. In the F. I. R. Payaro is also mentioned as one of the persons who saw them taking away the bullocks. Dhini Bakhsh deceased, Mehar, Khuda Bakhsh and Abdul Haq P. Ws. had no weapons in their hands and did not give any blows to the appellants. Mehar and Dhani Bakhsh informed those, who came at the spot, of the incident. Mehar P. W. asked Imam Bakhsh P. W. to go and bring Badal, and when he came, he and Dhani Bakhsh mentioned the details of the incident to him. Badal (P. W. 5) then went to Police' Station, Shahdadpur, which is 10 miles from the spot and made report Exh. 10 at 5‑15 p.m. The injured were then taken to Shahdadpur in a taxi where their statements were recorded by the police. They were then sent to Tando Adam Hospital where they were examined by Dr. Nur‑ul‑Hassan. Dahni Bakhsh deceased died during the night.
4. Abdur Rasul (P. W. 8) recorded the report Exh. 10. He went to the spot, and as it had gone dark, he inspected it on the following morning in the presence of Haji Ibrahim (P. W. 6) and Umar Din. It was situated in Deh Jaman, near the depressions on a path. He collected some blood‑stained earth from there. The place was not cultivated. From the spot he collected blood‑stained hatchet, clothes, lathi, smoking pipe and tobacco pouch by mashirnama Exh. 16. Ire also recorded the statements of Hamidullah, Ali Bakhsh and Imam Bakhsh. He recorded the F. I. R. in the counter case at the instance of Naru, son of Baikhu at 5‑30 p.m. on the 19th of September 1960. It is Exh. 19. The place of occurrence in both the cases is the same, i.e. Khasra No. 44, which was cultivated by Dewo appellant during the previous kharif. While according to Abdul Haq tapedar Survey No. 44 in Deh Jam Jagir is evacuee property, according to Khuda Bakhsh P. W. the appellants cultivated the land of Arif refugee, who had leased to Umedali. In the lower Court he had stated that the pits had been given to Arif against his claim. According to the mashirnama of the spot Exh. 16, the scene of the offence is stated to be in the land of Arif Mohajir, given to him against his claim in Deh Jaman, and the Hari of this survey number is Jesso Kolhi, the father of Naru appellant. The learned Additional Sessions Judge has found that either the cattle had caused imperceptible damage to the cotton cultivation of the accused or they were caught before they could reach the area, though he found it difficult to determine who the aggressors were.
5. Dr. Nur‑ul‑Hassan P. W. examined Mehar P. W. and found a lacerated wound 1 " x " on the scalp which was simple, caused by blunt weapon, within about 9 to 10 hours. He also examined Khuda Bakhsh P. W. who had an incised wound on the left forearm and a red contusion on the left mastoid region. Abdul Haq P. W. had a lacerated, a contused wound and a swelling on his person. The injuries were simple, caused within about 9 to 10 hours by a blunt weapon.
6. Dr. Nur‑ul‑Hassan also examined Dhani Bakhsh deceased, who had the following injuries on his person:‑
(1) An incised wound, 8 '' x 21'' x bone deep; .on the left arm, laterally.
(2) An incised wound 2 '' x " x ", on the top of the left shoulder‑joint.
(3) An incised wound 5 " x 1 ", on the occipital region, left side cutting the bone underneath.
The injures were about 9 to 10 hours old and were caused by some sharp‑cutting weapon like the sharp edge of the hatchet. His general condition was weak. His pulse was feeble. His dying declaration Exh. 14/D was recorded in his presence. He died in the hospital, on the 20th of September 1960, at 3 a.m. of which information was given to Tando Adam Police. On internal examination the doctor found fracture of the occipital bone on the left side, 5" in length, with meninges and the brain matter cut on the left side. There was clotted blood under the scalp. Death, in his opinion was due to shock and intra‑cranial haemorrhage caused by fracture of the skull bone and injury to the brain substance as a result of injury No. 3, which was sufficient in the ordinary course of nature to cause death.
7. The doctor also examined Naru, son of Baikhu and found on his person one lacerated wound, two incised wounds and an abrasion. The injuries were all simple and caused with in about 12 hours. Injuries Nos. 2 and 3 were caused by some sharp cutting weapon like the sharp edge of the hatchet while the rest were caused by blunt weapon.
8. He also examined Dewo, son of Jesso, who had two contused wounds on the parietal region, which were simple in nature and caused by some blunt weapon within about 12 hours.
9. The doctor also examined Naru, son of Jesso, who had a lacerated wound and a contused wound on the occipital region, left side, a contused wound and a lacerated wound on the frontal region of the head, an incised wound on the bridge of nose and an abrasion on the chest. These injuries were all simple and caused within about 12 hours. Injury No. 5 appeared to have been caused by some sharp cutting weapon like the sharp edge of the hatchet, whereas the rest were caused by some blunt weapon like lathi or back side of a hatchet.
10. The analysis of the injuries of the parties shows that while the three appellants had twelve injuries on their person, the deceased and the three P. Ws. had nine injuries.
11. Dhani Bakhsh deceased, in his dying declaration Exh. 32, stated as follows:‑
"Today at about noon time Kolhis dragged our cattle for impounding. I and my brother Mehar went to rescue our cattle. Kolhis were three in all. Their names are (1) Naru, son of unknown, and a third, who is called deaf, and whose name I do not know. They had all hatchets. They gave me and my brother hatchet blows. We raised cries, upon which Khuda Bakhsh and Akk came. To them also the Kolhis gave blows. All the four of us fell down at the scene of offence and the Kolhis went away leaving the cattle."
12. Naru son of Baikhu admitted that he dictated the report Exh. 19 at the police station. His version before the committing Magistrate was that the bullocks of the complainants had trespassed in their land and when they were taking them to the cattle pound, Mehar and Dhani Bakhsh took them away. He complained to Kamdar Bagh, on which Mehar and Dhani Bakhsh got annoyed. He thereafter came along with others and gave injuries to him and his co‑accused. His version at the trial was that Dhani Bakhsh, Mehar, Khuda Bakhsh, Abdul Haq and Mitho and others gave them blows as they were taking the cattle to the cattle pound because they had trespassed into their cultivation and caused damage to it. Naru, son of Jesso made the same statement before the committing Magistrate and at the trial, i.e. that two bullocks of Mehar and Dhani Bakhsh trespassed into their cultivation and that when they were taking them to the cattle pound, they rescued them and took them away. In defence, Ghulam Nabi, Resident Magistrate, Tando Adam, proved that he recorded the dying declaration of Dhani Bakhsh on the 19th of September 1960, at 11‑10 p.m. to his dictation correctly, read it out to him and took his thumb‑impression on it. It is Exh. 32. It is the same as Exh. 14/D.
13. The eye‑witnesses of the occurrence are Mehar, (P. W.1), Khuda Bakhsh (P.W. 2) and Abdul Haq (P. W. 3). The substance of the evidence of Mehar (P. W.) has been stated already in the narration of the prosecution case. Khuda Bakhsh (P. W. 2) states that he and Abdul Haq were going to their land to cut grass when they saw three appellants armed with hatchets. Naru, son of Baikhu appellant then gave blows to Mehar P. W. from the blunt side of his hatchet and the other two gave injuries to Dhani Bakhsh deceased. They both fell down. Khuda Bakhsh (P. W. 2) and Abdul Haq (P. W. 3) interceded, and they were also given blows by the appellants. Imam Bakhsh, Ali Bakhsh and Hamid Ullah also came to the spot on hearing the hue and cry. At that time the appellants had gone away to their village with their bullocks. None of the P. Ws. gave any injuries to the appellants. Abdul Haq (P. W. 3) made a similar statement. He also admitted that the land . of the appellants is a few paces from the spot and surrounds the pit, and that the appellants had cultivated cotton pods thereon. They both denied that the appellants had received injuries in this fight. They are both accused in the cross case.
14. While according to the evidence of the eye‑witnesses two bullocks belonging to Naru, son of Baikhu appellant had trespassed into their land, they pushed them out and were taking them to the cattle pound when the incident took place, Dhani Bakhsh deceased, in his dying declaration Exh. 32, stated that on the day of the occurrence, at noon time, the Kolhis dragged their cattle for impounding; that he and his brother Mehar went to rescue their cattle and that the Kolhis, who were three in number and armed with hatchets, gave them injuries with hatchets. The story of the eye‑witnesses that the cattle of appellants actually trespassed into their field is thus belied by the dying declaration made by the deceased. The version of the appellants at the trial was that the cattle .of the deceased and the eye‑witnesses trespassed into their land and that they were taking them to the cattle pound when they were attacked and the cattle taken away. It is true that the version of Naru son of Baikhu and Naru son of Jesso was somewhat different in the Court of the committing Magistrate from the one given at the trial, but Dewo's story narrated before the committing Magistrate is consistent with their version at the trial. The learned Additional Sessions Judge has also held that either the cattle of the complainant had caused imperceptible damage to the cotton cultivation of the appellants or they were caught before they could actually reach the cultivated area. It has been admitted by Abdul Haq P. W. that the appellants had cultivated cotton pods in their land, which is at a short distance from the place of the occurrence. Even though no perceptible damage was actually found, it must be held that the cattle of the deceased and the complainant had trespassed into the cotton field of the appellants and while they were being‑ taken for impounding the deceased and Mehar came up and rescued the cattle. This explains why the incident happened on a path. Also the place of the occurrence is in the land which is in the cultivation of the appellants, as has been admitted by the prosecution witnesses. Not only is the place of occurrence in the land under the cultivation of the appellants, but the injuries received by the appellants are greater in number than the injuries received by the deceased and the three injured witnesses.
15. The question that falls for determination in this case is whether the appellants had the right of self‑defence of person in addition to the right of taking away the trespassing cattle. The finding being that either the cattle had caused interceptible damage to the crop or were caught before they could cause such damage leads to the logical inference that the right to seize the cattle under section 10 of the Cattle Trespass Act arose in favour of the appellants. Having seized the cattle they were taking them to the cattle pound. 1f in doing so they were resisted and attacked, they had the right of self‑defence. In the circumstances, the initiative to attack is likely to have been taken by the deceased and his companions and not by the appellants. I, must, therefore, hold that the appellants were attacked by the deceased and his com panions with a view to retrieve their cattle to prevent them from being impounded. The appellants, therefore, acted in the right of self‑defence. As they had injuries on the head region, they were protected even in the causing of death of Dhani Bakhsh deceased. Learned counsel for the appellants relied on Nawab v. The State (P L D 1960 Lah. 149) which supports his contention that if the owners of the cattle come armed with formidable weapons to recover their cattle unlawfully from the person seizing them under the Cattle Trespass Act, 1871 the person seizing the cattle will have ,a right to defend his person as well.
16. For the reasons given above, I hold that the appellants acted within the right of self‑defence, and giving‑them the benefit of that right, acquit then.
K.B.A. Appeal accepted.
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