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Criminal Revision No. 858 of 1963, decided on 16th October 1968.

Ss. 104 & 441‑Private defence, right of‑Extent‑Criminal trespass‑eight of private defence of property extends to causing at least grievous hurt in case of criminal trespass.

S. M. Hasan for Petitioners.

M. A. Bajiva for A.‑G. for the State.

The petitioners in this case were tried for offences under sections 447, 323 and 326 read with section 34 of the Pakistan Penal Code. They were sentenced to one and a half years' rigorous imprisonment each by the trial Court, without specifying the particular sentence awarded on each count. The learned Sessions Judge dismissed their appeal but corrected the error of the trial Court and sentenced each one of the petitioners to one month's R. I. under section 447/34, three months' R. I. under section 323/34 and one and a half years' R. I. under section 326/34 of the Pakistan Penal Code.

2. The bone of contention in this case is Killa No. 18 of Square No. 17 in Chak No. 354 J. B. in the jurisdiction of Gojra Police Station, District Lyallpur. Killa No. 18 Square No. 17 along with some other Killas numbers had been transferred to Babu son of Rehman, the complainant in this case as a result of consolidation of holdings. These Killa belonged to Babu son of Allah Din accused before they were transferred to the com plainant. On 18th of March 1962, symbolic possession was delivered to Babu son of Rehman (P. W. 1). According to him he was authorised by the Patwari to take possession of the land after the accused had removed their crops. It is the case of the prosecution that Babu (P. W. l) took possession of this land after the crops had been removed, and on 12th of May 1962, was ploughing the land in dispute at about 8 a.m. At that time his son Tufail (P. W. 4), Sardar Muhammad (P. W. 5) his wife's brother, Mst. Mukhtaran (P. W. 6) his wife, Ghulam Ahmad (P. W. 7) and Jalal Din (P. W. 8) were present. The four accused came variously armed. Babu and Mehr bad lathis Qaim was armed with a gandhali and Manzur had a toka. They asked Babu (P. W. 1) not to plough the land but he refused to stop his ploughing. Thereupon, Qaim and Manzur gave injuries to Babu (P. W. 1). Babu and Mehr petitioners gave injuries to Tufail (P. W. 4). Sardar Muhammad (P. W. 5) received an injury at the hands of Babu and Mst. Mukhtaran received an injury at the hands of Mehr. 7 here were eight injuries on the person of Babu son of Rehman (P. W. 1) out of which seven were found to be simple. Injury No. 1 which was on the right calf had been caused with a sharp‑edged weapon was kept under observation. In the final opinion of the doctor it was originally a simple injury but since the witnesses developed gangrene and a part of his leg was amputated he opined that the injury was grievous. Injuries of all other persons, namely, Tufail, Sardar Muhammad, and Mst. Mukhtaran were declared to be simple.

3. At the trial, the prosecution produced the above‑named eye‑witnesses. Naair Ahmad, Consolidation Patwari (P. W. 9) and Zahoor Ahmad, Consolidation Qanungo (P. W. 11) were produced to show that symbolic possession of Killa No. 18 had been given to P. W. 1 on 18th of March 1962. Ahmad Din (P. W. 2) is the Chaukidar of the village and is also witness of the delivery of the symbolic possession. According to these witnesses the accused refused to be present at the spot when symbolic possession was delivered to Babu son of Rehman. It appears that after the consolidation proceedings, the petitioners had appealed to the Additional Deputy Commissioner and this appeal was dismissed in October 1961. Thereafter, they filed an application before the Revenue Assistant who observed that consolidation had been effected against the instructions of the Commissioner and that necessary rectification should be made.

4. The plea of the accused was that they were continuously in possession of the Khasra number in dispute when on the morning of occurrence Babu son of Rehman along with others came to the field in dispute and wanted to plough it. At that time Babu petitioner was present and he received injuries at the hands of the P. Ws. in his attempt to resist the trespass. In my view, the Courts below have not been able to appreciate the real legal point which arose out of this version. It is not shown that Babu (P. W. 1) had taken actual physical possession of the land through any official agency. His own statement is that he took possession of the land only once and that was through the Patwari and that the Patwari had told him that when the accused had removed their crops he could walk in, and plough the land. Actually, before the police the case of the prosecution was that it was on the basis of the symbolic possession that Babu P. W. wanted to take possession of the land on the morning of the occurrence when he was resisted by the petitioners. This stand, however, was changed at the trial and it was asserted by Babu P. W. that on some day after the petitioners had removed their crops, he had taken physical possession of Killa No. 18. This assertion is belied by the statement of Jalal Din (P. W. 8) who stated in Court that he did not know as to who was in actual possession of the land on the day of the occurrence. He further stated that the petitioners were resisting the entry of Babu P. W. in the land and there was fight. Sardar Muhammad (P. W. 5) and Ghulam Ahmad (P. W. 7) had also made similar statements before the police. In the F. I. R. itself, the case of Babu P. W. was that the petitioners were in possession and were refusing to part with the possession of the land on the ground that they had obtained a stay order. Whether they obtained a stay order or not is not very material to the determination of this case. The fact, however, stands that initially the case for the prosecution was that the petitioners were in possession of the land in dispute whereas Babu complainant thought that he had a right to make an entry in this land on the basis of the symbolic possession delivered to him. The learned Sessions Judge referred to the entry of the Khasra Girdawari Exh. P. C/1 and observed that this corroborated the case of the prosecution that Babu P. W. had got the actual possession of the land in dispute. A reference to this Khasra Girdawari shows that Babu son of Rehman was shown in possession of Killa No. 18 on 16th of March 1962. The case of the prosecution is that symbolic possession was delivered to the complainant on 18th of March 1962. It is really surprising that this entry with regard to the possession of the land in dispute was made two days before the symbolic possession was delivered to Babu son of Rehman. The learned Additional Sessions Judge probably did not carefully read this document before holding that it corroborated the prosecution story.

5. In view of what has been stated above, the petitioner had a right of defence of their property. If it was sought to eject them, the complainant could have resort to the process of law. The learned counsel for the State does not seriously con trovert this proposition of law. He, however, says that by inflicting the injuries on the calf, which ultimately resulted in the A amputation of the leg was declared grievous the petitioners had exceeded the right of private defence. This argument can be rejected for two reasons One that the law gives a right of private defence of property to the extent of causing at least grievous hurt in case of criminal trespass and two that the injury according to the doctor was initially a simple one and the leg had been amputated because of the development of gangrene.

6. As a result of the above discussion, I accept this revision petition and set aside the order of conviction of the petitioners as well as the sentences passed on them. They are on bail. Their bail bonds shall stand discharged.

Petition accepted.

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