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Criminal Appeal No. 210 of 1963, decided on 12th February 1965.

S. 441‑Trespasser in "settled" possession of land‑Entitled to defend his possession by force even against rightful owner unless evicted in due course of law Stray or intermittent acts of trespass, however, cannot give trespasser right to possession against true owner.

Mohammad Khan v. The Crown P L D 1949 Lah. 421 and Emperor v. Bandhu Singh A I R 1928 Pat. 124 eel.

Ss. 141, 147, 302 & 447 read with Ss. 96 & 97‑Complainant party (trespasser) coming upon scene of occurrence armed with guns to prevent rightful owner from removing crop‑Ensuing fight between parties resulting in one death on side of complainant party and injuries on both sides Complainant party, held, formed an unlawful assembly and by taking initiative were aggressors‑Accused party, held, in circum stances of case, had not exceeded right of self‑defence.

Ss. 147, 302 & 447 Evidence of eye‑witnesses not consistent with regard to injuries on persons of accused‑Names of accused not mentioned' in F. I. R. but in complaint filed three months after incident‑Prosecution evidence, held, wholly unsatisfactory‑Accused acquitted of charges Co‑accused convicts, though not appealing, also acquitted in exercise of suo moto powers of revision under S. 439, Criminal Procedure Code (V of 1898).

Cross‑case‑‑Disposal of two cross‑cases by one judgment not illegal‑Care muss, however, be taken that each case is disposed of separately on material on its record without reference to material on record of other case‑‑(Obiter).

Mohd. Ibrahim Abbasi for Appellants.

Murtaza Hussain for A. A.‑G. for the State.

Dates of hearing: 10th, 11^th and 12th February 1965.

This appeal is by Raza Mohd. (60), Allahwarayo (35), Karim Bakhsh (25), Rahim Bux (38) and Saindino (25). The first four have each been sentenced to seven years' rigorous imprisonment under section 307, P. P. C., one year's rigorous imprisonment under section 447, P. P. C., and one year's rigorous imprisonment under section 147, P. P. C. Saindino was sentenced to six months' rigorous imprisonment under section 447, P. P. C. and six months' rigorous imprisonment under section 147, P. P. C. All the sentences were ordered to run concurrently. Haji Mian Dad, Dil Murad, Piral and Mir Hazar were also tried and convicted, but they have not appealed. Haji Mian Dad and Dil Murad were sentenced to a fine of Rs. 100 each under section 323 P. P. C. Rs. 50 each under section 447, P. P. C. and Rs. 50 each under section 147, P. P. C. in default they were ordered to undergo two months' rigorous imprisonment. Piral and Mir Hazar were sentenced each to one year's rigorous imprisonment under section 324, P. P. C., six months rigorous imporisonment under section 447, P. P. C. and six months' rigorous imporisonment under section 147, P. P. C. Bachu and Muhammad Hassan who ' were tried along with them were acquitted, Guroo Ali Sher and Laloo have not been arrested and have consequently not stood a trial with the others.

2. The incident happened on the 10th October 1961 in survey No. 270 in deh Qureshi at 8‑30 a.m. According to the complainants they were harvesting paddy crop from this field which was in their possession, when the appellants, the convicted accused and others came and attacked them. Raza Muhammad appellant, however, claims that he and his brother, Muhammad Pannah, have been in possession of the Khasra number as haris for the last 15‑20 years and he alongwith Karim Bakhsh, Mir Hazar, Piral and Dil Murad were harvesting paddy from Khasra No. 270 when they were attacked by the complainants. Raza Muhammad in support of his claim has produced a sale agreement (Exh. 78), dated 30th March 1961, relating‑ to transfer of a part of Khasra No. 270 and other Khasra numbers in his ,favour by the West Pakistan Government, Exh. 80 which is form L. C. XII showing Raza Muhammad as provisional permanent owner of a part of Khasra No. 270 and Exh. 81 showing Muhammad Pannah, his brother, as provisional permanent owner of the remaining portion of Khasra number 270, Exh. 82 showing four annas share of Abdul Karim and Bahawal etc. in Khasra No. 270, and ordering that in Khasra No. 270 their right is extinguished and the land should be allotted to the tenants. Exh. 83 is appellate order in the appeal by Ali Muhammad, Abdul Karim deceased and others against the extinguishment of their four annas share in the survey N6s. 245, 226 and 270. Their appeal was rejected. Their claim that they were in cultivating possession of the land was rejected on the ground that though originally the Tapedar had incorporated all the appellants as sitting tenants of the disputed survey number, but the Sub‑Assistant Land Commissioner had on spot enquiry found that this was not correct and had struck off their names on finding Raza Muhammad and Mohammad Pannah as sitting tenants, and had entered their names as in possession. While the claim of Ali Muhammad complainant is that his appeal to the Commissioner succeeded, Raza Muhammad appellant has stated that his appeal was rejected. Since a copy of his order has not been produced by Ali Muhammad, it has to be, presumed that the appellate order by the Deputy Land Commissioner, Jacobabad has not been set aside. Raza Muhammad has also produced documents Exhs. 84 and 85 showing payment in the sub‑treasury on 27th March 1961 of instalments by Raza Muhammad and Muhammad Pannah towards the price of the Khasra No. 270 and others. Qamar‑ud‑Din Tapedar (P. W. 18) has deposed that Sardar Noor Muhammad had twelve annas share in survey No. 270 and Arab son of Bahawal Nonari had four annas share, that Arab distributed his shares on 18th August 1960 in favour of Bahawal P. W, Qatal, Abdul Karim deceased, his son, Ali Muhammad and Sahib, who surrended their four annas share in survey No. 270 in favour of the West Pakistan Government on 10th July 1961, and got in exchange the whole of survey No. 268 and a part of survey No. 267. He also deposed that survey No. 270 had been sold by the Government to Raza Muhammad appellant and Muhammad Pannah, as they were haris and were in its possession, as tenants. In the Field Book for the year 1961‑62, the hari of survey No. 270 is shown as Sahib son of Nasar Nonari (A copy of the entry is Exh. 45), but for the year 1960‑61, the hari is Raza Muhammad appellant. (Its copy is Exh 46) Qamar‑ud‑Din P. W. 18 found it but at point B' in Khasra No. 270. According to him it was said to be of Abdul Karim deceased. Ali Muhammad (P. W. 10) also admitted that the whole of survey No. 270 was given to Raza Mohammad and Mohammad Pannah, and their appeal to the Deputy Commissioner had failed. Dhani Bakhsh (P. W. 17) who is a mashir and lives close to the place of occurrence also stated that Raza Mohammad and Mohammad Pannah were in cultivating possession of the survey number since 20‑25 years and a but existing in it was constructed by them. He also stated that the paddy crop in this survey number was raised by Muhammad Pannah and Raza Muhammad.

3. A certified copy of discharge order, Exh. 16, dated 20th November 1962, has been brought on the record. It shows that Raza Muhammad appellant filed a complaint against Ali Muhammad, Sahib, Bahawal, Mir Abdul Nabi, Mazar and Ibrahim on 7th September 1961, under sections 447, 323 and 147, P. P. C., alleging that he had cultivated paddy in survey No. 270 but that the accused had some days before given him kicks and fist blows and driven him away when he had gone to harvest the crop. The ground for discharge of the accused in that case was that Karam Ali Tapedar had stated that the Khasra number in dispute was cultivated by Sahib Nonari and not by Raza Mohammad and that it showed that he was not in actual possession of the land at the time of the alleged incident. The accused in the case had claimed that they were in possession of the land in dispute.

4. The prosecution case is that Abdul Karim had cultivated paddy in Khasra No. 270 and had his but in it. This has been deposed to by Majnoo (P. W. 3) who, claimed that he had cultivated it jointly with Abdul Karim deceased, and he is a cousin of the deceased, Eahawal (P. W. 4) brother of the deceased, Ibrahim (P. W. 5), hari and cousin of Abdul Karim deceased, Muhib (P. W. 6) whose Masat was Abdul Karim deceased, Mahboob (P. W. 7) whose father is Masat of Abdul Karim deceased and Ali Muhammad (P. W. 10) cousin of Abdul Karim deceased. As opposed to this evidence, Raza Muhammad appellant has claimed possession of survey No. 270 and his statement is supported by the statement of Dhani Bakhsh, mashir (P. W. 17). The appellate order of the Deputy Land Commissioner (Exh. 83) also shows that on 31st October 1960, the Sub‑Assistant Land Commissioner on spot enquiry found Raza Muhammad and Muhammad Pannah in cultivating possession of Survey No. 270 and others and corrected the entry in the rough copy of the list of sitting haris prepared by the Tapedar and struck off the names of Ali Muhammad, Sahib, Abdul Karim and Bahawal etc. from it.

5. The conclusion to be drawn from the above evidence is that Raza Muhammad and Muhammad Pannah were in cultivating possession of the land, but a few days before the 7th September 1961, Raza Mohammad was turned out from survey No. 270 by Ali Muhammad, Sahib, Bahawal, Mir Abdul Nabi, Mazar and Ibrahim, when he went to harvest the crop of paddy, which he had sown. Thus they had tried to take forcible possession of the land, though title and actual cultivating possession had vested in Raza Muhammad and Muhammad Pannah.

6. While the prosecution case is that they were harvesting the wheat crop on the morning of 10th October 1961, when at 8.30 a.m., Raza Mohammad and his companions came to the spot armed with guns and hatchets, Suhrab (P. W. 8) had admitted in his cross‑examination that Raza Mohammad and his companions were already harvesting the paddy when the complainants went to survey No. 270. This is also the statement of Raza Mohammad, namely, that he and his companions, Karim Bakhsh, Mir Raza, Piral and Dil Murad were harvesting paddy crop when they were attacked by Abdul Karim, and Abul Khair deceased and their companions. It will, therefore have to be concluded that Raza Muhammad and his companions were harvesting the crop when the complainants came on the scene and there was a fight between them.

7. About this incident, report of the occurrence was made by Abdur Rahman (P. W. 1) who was informed by Saleh Mohammad of the details of the occurrence. Abdur Rahman also came to the spot and got the details from Dhani Bakhsh, but the latter has not been produced as a witness. In the F. I. R. the persons mentioned as culprits are Raza Muhammad, Allahwarayo, Saindino, Rahim Bakhsh appellant, Laloo, Ali Sher, Bachoo, Ghoroo and Bachoo, i.e., nine persons in all were named as the culprits. Bachoo has in fact been mentioned twice in the F. I. R. This report was made on the same day at 12‑30 p.m. at P. S. Tangawali, which is seven miles from the spot. As the police did not arrest Raza.Mohammad and his companions, Ali Mohammad filed a complaint in Court on the 1st December 1961, against fourteen persons adding therein Karim Bakhsh appellant, Haji Mian Dad, Dil Murad, Piral and Mir Hazar, who have not appealed. The police then took up investigation and arrested the persons named in the complaint which led to the trial of eleven persons excluding Ali Sher, Laloo and Ghoroo, who were not arrested.

8. The prosecution has produced Muhammad Saleh (P. W. 2), Majnoo (P. W. 3), Bahawal. (P. W. 4), Ibrahim (P. W. 5), Muhib (P. W. 6), Mahboob (P. W. 7), Suhrab (P. W. 8), Makhno (P. W. 9) and Nawab alias Nabu as eye‑witnesses of the occurrence. Muhammad Saleh is not related to Abdul Karim and Abul Khair deceased and the other eye‑witnesses, but he admitted that he lodged a complaint under section 107 against Hafiz Mohammad Kamal son of Mohammad Bachal (Bachoo) accused. Majnoo P. W. was a hari of Abdul Karim who was also his cousin. Bahawal (P. W. 4) as brother of Abdul Karim deceased. Ibrahim (P. W. 5) admits that Abdul Karim deceased and Bahawal P. W. are his Masats. Muhib (P. W. 6) who is Masat of Abdul Karim deceased was also his Masat. Mahboob (P. W. 7) admitted that Abdul Karim deceased was Masat of his father. Haleem, one of the injured, is his Masat. He only named Ali Sher, Laloo, Rahim Bakhsh, Karim Bakhsh, Allahwarayo, Mian Dad and Raza Mohammad as having come to the spot and told them to go away as this was their harvest. He admitted that he knew the ‑ names of only five of the culprits. The Court noted about this witness that he appeared to be a fool. He also admitted in cross examination that the accused were already harvesting the crop in the survey number in dispute, when they had gone there. Makhnoo (P. W. 9) is also a Noonari like the complainants. He was passing along the road, when he received pellets and was injured, but does not name the person, who fired at him. He does not even describe any details of the incident. He only mentioned that there was a fight going on, and he had identified the assailants as Razu, Mian Dad, Piral, Mir Hazar, Karim Bakhsh Rahim Bakhsh and Dil Murad, out of whom three or four had guns, but he could not say who had guns. He, however, added that one of the two gun‑men was Rahim Bakhsh.

9. According to the F. I. R. and the evidence of the witnesses in Court Raza Mohammad and Rahim Bux appellant and Ali Sher and Laloo had guns, but there is no mention as to who fired at whom. The eye‑witnesses do riot explain the injuries on the person of the injured accused. They stated that they had only Seythes. Before the police they stated that they took hatchets from their assailants. There is no explanation as to how Mian Dad, Piral and Mir Hazar accused received gun shot injuries.

10. On the side of the complainants Abdul Karim and Abul Khair were killed. Doctor Mohammad Alam performed postmortem examination on the dead‑body of Abdul Karim on. 11th October 1961, at 3‑10 p.m. and found five incised wounds and two linear scratches on his person. Injury No. 1 had cut the left occipital bone and the brain in that area, where there was haemorrhage. This injury was sufficient in the ordinary course of nature to cause death. Death was due to compression of the brain matter as a result of haemorrhage in the left occipital region.

11. Doctor Ghulam Nabi held autopsy on the body of Abul Khair on 11th October 1961, at 8 a.m. and found one incised wound, one abrasion and 91 gun shot wounds on different parts of the body. The gun shot wounds were of the size of jawar seed and muscle deep. The incised injury on the neck cutting the soft tissues and spinal column was the fatal injury and was sufficient in the ordinary course of nature to cause death. Death was due to shock and haemorrhage as a result of the injuries.

12. Doctor Muhammad Alam found one incised wound and one contusion on Mahboob (P. W. 7) simple in nature, and on Sohrab one lacerated wound and two incised wounds, one of which was grievous, on Muhib (P. W. 6) one incised wound and four contusions, all simple, on Nawab alias Naboo (P. W. 11) one incised wound, simple in nature, on Bahawal, (P. W. 4) two incised wounds, two lacerated wounds, three linear scratches and one contusion, all simple, on Ibrahim (P. W. 5) eleven lacerated wounds all from fire arm, all simple, on Makhnoo (P. W. 9) six oval lacerated wounds from gun shots all simple, and on Mazar alias Majnoo one incised wound and one contusion, all simple.

13. Also on the side of the prosecution, Pathan had one incised wound, one lacerated wound, one linear scratch and two contusions, which were simple; Issu had one incised wound (grievous) and one linear scratch, (simple), Haleem had four incised wounds (with fracture of left radius) and three linear scratches, all except one simple; and Dhani Bux had two incised wounds, one lacerated, and two contusions, simple, except .one incised wound, while cutting the left parietal bone was grievous. (He was admitted in the hospital and discharged on 30th November 1961). Nawab had one incised wound, cutting outer part of left parietal bone, Saindino son of Idan had three lacerated wounds and one linear scratch, all simple.

14. Doctor Ghulam Nabi examined Rahim Bakhsh appellant, Miandad, Piral, Mir Hazar and Dil Murad accused on 11th October 1961. Rahim Bakhsh had two incised wounds, Piral and Mian Dad had 21 gun shot wounds each, and Mir Hazar had multiple gun shot wounds on right and left legs. Dil Murad had an incised wound. These injuries were simple.

15. As stated already, Raza Mohammad claimed that survey No. 270 was being cultivated by him and his brother, Mohammad Pannah, since 15‑20 years and they opened it. It had been given to them because of their tenancy‑ rights in it and in support of his claim he produced sale agreements Exhs. 78 and 79, copies of form L. C. XII Exhs. 80 and 81, and order of the Deputy Land Commissioner Khandkot, Exh. 82, dated 28‑6‑61 and the appellate order Exh. 83, dated 22‑5‑62. He also produced Exhs. 84 and 85 showing payment by him and his brother of instalments towards the price of the survey number and stated that the appeal of Abdul Karim and others had been dismissed by the Commissioner, Khairpur. His version is that he, Dilmurad Karim Bakhsh, Piral and Mir Hazar were harvesting survey No. 270, when all the P. Ws came and attacked them. Raza Muhammad claims that he had constructed a but in the land, which was in their possession. Karim Bakhsh appellant stated that Raza Muhammad was his uncle and that his statement was the same as his. He was a complainant in the cross case. Saindino denies that he was present at the spot. He stated that as Raza Muhammad was the husband of his sister, he has been implicated in the case. Allawarayo appellant also denies that he was present at the spot and stated that he had been implicated because he had relationship with Raza Mohammad. Rahim Bakhsh appellant stated that he was falsely implicated since Raza Muhammad was his maternal uncle. The statements of the other accused who have been convicted and have not appealed need not be reproduced.

16. The appellants produced no witness in defence.

17. I have held above that the right and title in survey No. 270 lay in Raza Mohammad and Mohammad Pannah. The interest of Abdul Karim and others complainants in this land was extinguished under the West Pakistan Land Reform Regulation No. 64 and under paragraph 16 of the Regulation their interest vested in the Government on being resumed by Government. The land was transferred to Raza Mohammad and Mohammad Pannah by sale agreements, Exhs. 78 and 79 under paragraph 19 of the regulation. The date of these agreements is 30th March 1961, which date is prior to the cultivation of the paddy, which was ripe for harvesting, when the incident took place. Qamar Din Tapedar (P. W. 18) has deposed that according to the Field Book for the year 1961‑62 the hari of survey No. 270 is shown as Sahib son of Nasar, Nonari, but the entry in the previous year showed Raza Mohammad as its hari. Dhanibux (P. W. 17) has admitted that the paddy crop was sown and raised by Raza Mohammad and his brother, Mohammad Pannah. Their cultivating possession would normally continue from 1960‑61, and it is difficult to believe that it changed. On 7th September 1961, Raza Mohammad brought a complaint against Ali Mohammad, Sahib and others under sections 447, 323 and 147 complaining that he had been driven away from the land when he had gone to harvest the crop, and this complaint has been used as evidence of ejectment of Raza Muhammad and Mohammad Pannah from the land, because the accused in the case were discharged as they claimed that they were in possession of the land in dispute. This is however, a solitary act of trespass brought on the record. The position of Ali Mohammad and others was at best that of trespassers. The law is well settled, that although nobody has right to dispossess by force a trespasser, who is in settled possession of lend, and such trespasser is entitled to defend by force his possession even against the rightful owner, unless he i evicted in due course of law, he is not entitled to rely on a stray act or even intermittent acts of the trespass, as giving him a right to possession of against the true owner. It was so laid down in Mohammad Khan v. The Crown (P L D 1949 Lah. 421) where it was laid down further that mere act of trespass is 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 casual act of possession should not have the effect of interrupting the possession of the rightful owner. In coming to this conclusion reliance was placed on the observation of Mullick, A. C. J. in Emperor v. Bandhu Singh (A I R 1928 Pat. 123) 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.

18. In the present case, the act of Ali Muhammad and others preventing Raza Muhammad from harvesting the paddy crop amounted at a best to an act of trespass and Raza Muhammad had a right to re‑enter upon the land and remove the paddy crop sown by him. He as its lawful owner was evidently harvesting his paddy crop along with his other companions, when the deceased and complainants came upon the scene armed with guns with the object of preventing him from removing the crop. This they had no right to do and they constituted an unlawful assembly. In these circumstances it is plain that the motive lay with them to attack Raza Mohammad and others, who were in the field and the deceased and complainants must, therefore, have taken the initiative and have to be considered as aggressors Haji Mian Dad P. W. Piral and Mir Hazar have been injured with gun shots. Dil Murad and Rahirn Bakhsh have received incised injuries. The appellants, therefore, had not only the right of defence of property but of person. They could have used hatchets and guns for self defence. They had evidently taken these weapons with them because they feared that Ali Mohammad and others may attack them. I would, therefore, hold that the appellants acted within the right of self‑defence and did not exceed it.

19. The prosecution evidence is wholly unsatisfactory in many respects. The eye‑witnesses‑ are not consistent with regard to who caused injuries to whom. They took up the position before the police that they snatched the weapons from the accused, which cannot be believed. It is obvious that they went armed with guns and hatchets evidently to prevent the harvesting of paddy crop by Raza Mohammad. In the F. I. R. the names of Karim Bux appellant, Haji Mian Dad, Dil Murad, Piral and Mir Hazar were riot mentioned. They were named in the complaint filed on the 1st of December 1961, while the incident had happened on the 10th of October 1961. In the F. I. R., nine persons were only named. It is obvious that persons who had taken part in this crime were omitted from the F. I. R. No reliance could be placed on the testimony of the eye‑witnesses without corroboration of their testimony. However, this corroboration would exist against the injured accused or those who admitted their presence at the spot, but in their case as I have held that the right of self‑defence protects them, and they have not committed any offence.

20. For the reasons given above, I acquit the appellants. Though Mian Dad, Piral, Dil Murad and Mir Hazar have not D appealed, I acquit them also for the reasons given above, exercising sue mote powers of. revision under section 439 Criminal Procedure Code.

21. Before parting with this case, I would like to point out that the learned Additional Sessions Judge, Jacobabad, has disposed of this case and the cross‑case by one judgment, but in doing so, has not confined himself to the evidence in this case. It may not be illegal to dispose of two cross‑cases by one judgment; but care must be taken that each case is disposed of separately one the material on its record, and without reference to the materia on the record of the other case. If I had not acquitted the appellants, I would have sent the case back to the learned Additional Sessions Judge for re‑writing the judgment on its own record. Instructions may issue to the Sessions Judges to observe the above directions

S.Q. Appeal accepted.

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