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Criminal Appeal No. 560 of 1968, decided on 28th March 1969.

Ss. 304 & 447‑Accused, vendee, entering upon disputed piece of land when it was vacant entitled to defend his possession even by use of force‑Deceased stopping accused from ploughing land and in ensuing fight getting large number of injuries resulting in his death‑Deceased in circumstances of case, not justified to attempt forcible ejectment of accused Conviction and sentence of accused set aside.

Lows v. Telford 1 App. Cas. 414; Lashkhari Khan v. Emperor 16 Cr. L J 536 and Ahed Fakir v. Emperor A I R 1935 Cal. 1235 ref.

M. B. Zaman for Appellants.

Kh. Muhammad Afzal for A.‑G. for the State.

Baqir and Manzoor appellants, who are father and son inter .se, were convicted by the learned Additional Sessions Judge, Multan, vide the impugned judgment, dated the 18th of June 1968, for offences under sections 304/34, 447/34 and 325/34, P. P. C. with a respective award of seven years, 6 months and one year's R. I., directed to run concurrently. They have challenged their convictions and sentences in appeal before the High Court.

2. The relevant facts of the case are that on the 29th of April 1967, at about 4‑30 a.m., a fight took place over the posses sion of a disputed piece of land between the appellants and their three co‑accused Farid, Lakhu and Bakhu, who were acquitted on the one hand and Waryam deceased and his son Ghulam P. W. 17 on the other at a distance of about 5/6 killas from the village abadi of Chak No. 67/15‑L, Police Station Mian Channu, District Multan. Besides the deceased and his son Ghulam, the two appellants as also Mst. Nur Bibi and Mst. Jannat Bibi, daughters of Baqir appellant allegedly sustained injuries during the fight. According to the prosecution, the occurrence was witnessed by Muhammad Iqbal complainant P. W. 6, Ghulam Muhammad, son of the deceased, who was also injured and appeared as P. W. 17, Pir Bakhsh P. W. 18 and Abdul Shakoor P. W. 19.

A report was lodged by Muhammad Iqbal with Ejaz Hussain A. S. I. P. W. 20 at Police Post Chhab at a distance of three miles at 8 a.m., the same day, on the basis of which the case was. formally registered under sections 307/447/148, P. P. C. at Mian Channun Police Station. Having recorded the statements of Muhammad Iqbal, Ejaz Hussain A. S. I. hastened to the spot and on his arrival found that Waryam had already expired and accordingly the alleged offence under section 307, P. P. C. was converted into one under section 302, P. P. C. He prepared his injury statement and inquest report, sent the dead body to the mortuary at Khanewal for post‑mortem examination, and also sent Ghulam, the injured P. W., to the Civil Hospital, Khanewal for medical examination. After completing the investigation the police sent up the two appellants along with Farid, son‑in‑law, and Lakhu and Bakhu, sister's son of Baqir, who as stated earlier, were acquitted at the trial.

3. The alleged background of the occurrence was that the disputed piece of land bearing Khasra Nos. 21, 22 and 23/1 of Square No. 35 of Chak No. 67/15‑L originally belonged to Waryam deceased. In the year 1958 the latter sold 1/8th share of his entire holdings in square No. 35 measuring 20 kanals to one Akbar C. W. l for a consideration of Rs. 2,500. According to the prosecution this sale in favour of Akbar was without consideration and was ostensibly made with a view to enable him to qualify for the grant of State Land under the Horse Breeding Scheme in the village with the result that Waryam continued to be in possession of the same. Although at the relevant time Waryam was found by the trial Court to be in possession of the disputed piece of land, yet the sale in favour of Akbar was found to be genuine and with consideration which obviously does not seem to have been challenged at any stage with the result that in 1963 Akbar got his share separated in the course of consolidation operations when the disputed Killas Nos. 21, 22 and 23/1 fell to his lot. The prosecution further alleged that subsequently on the 2nd of February 1961 Waryam leased out Killas Nos. 21 to 25 Square No. 35 including the disputed piece of land to Salabat P. W. 15 by means of lease deed Exh. P. S., for a period of 10 years. The lease, however, was alleged to have prematurely terminated in April 1967 on payment of a sum of Rs. 750 by Waryam to Salabat as the proportionate amount of lease‑money of the un-expired period. This part of the prosecution version was also disbelieved by the learned trial Judge and the lease deed was held to be a forgery pure and simple. In 1966 Akbar C. W. 1 sold his 22 acres in favour of Manzoor appellant for a sum of Rs. 4,500. According to the prosecution on the termina tion of the lease in favour of Salabat, Manzoor appellant and his father Baqir took possession of the land on the 29th of April 1967 and started to plough the same in the early morning at about 4‑30 a.m. when Waryam deceased and his son Ghulam P. W. went to the spot and stopped them from ploughing, Waryam deceased standing in front of the bullocks, which were driven by Manzoor. Baqir opened the attack with a hatchet on Waryam and simultaneously raised an alarm which attracted Farid, Lakhu and Bakhu, the three co‑acquitted accused of whom Farid and Lakhu were allegedly armed with hatchets while Bakhu wielded a dang. A fight ensued during which both sides sustained injuries as stated earlier. Waryam sustained 15 blunt weapon injuries, 2 and 4 of which respectively resulted in the fracture of the left temporal bone and the right forearm. The occurrence was witnessed by Muhammad Iqbal P. W. 16, Pir Bakhsh P. W. 18, Abdul Shakoor P. W. 19, of whom the presence of last two mentioned was found by the learned trial Judge rather doubtful.

4. Vide post‑mortem report Exh. P. Y., death in the opinion of Dr. Muhammad Iqbal Qureshi, Medical Officer, Civil Hospital, Khanewal, who conducted the post‑mortem examination, was caused by coma, intracranial haemorrhage and fracture of the skull bone due to injury No. 2 which was considered sufficient in the ordinary course of nature to cause death. Ghulam son of Waryam P. W. 17 received 15 injuries with a blunt weapon of which injury No. 5 resulting in the fracture of the left leg was grievous, the rest being simple. Baqir and Manzoor appellants were found to sustain 7 injuries each with a blunt weapon of which injury No. 1 of Baqir on the back of the left forearm was found to be grievous, the rest being simple in both cases. The two daughters of Baqir Mst. Nur Bibi and Mst. Janat Bibi, who did not enter the witness‑box in defence, sustained 8 and 6 blunt weapon injuries respectively of which injury No. 5 of Mst. Nur Bibi was found to be grievous resulting in the fracture of the radkus bone, the rest being simple in both cases. The details of the injuries of the two ladies was given by Lady Doctor Mrs. Feroza Sultana who was the solitary witness examined in defence.

5. At the trial the two appellants admitted their presence in the disputed piece of land, at the relevant time, which they were ploughing and suggested that they had been attacked by Waryam deceased and Ghulam who had injured their women folk and that they had fought in self‑defence. The three acquitted co‑accused denied their presence or having any knowledge of the occurrence. They stated that they had been falsely implicated on account of their relationship with the appellant.

6. As stated earlier, the learned trial Judge did not accept the part of the prosecution version that the sale in favour of Akbar was only ostensible and without consideration. Likewise also held that the lease of the disputed land in favour of Salabat was a forgery. Nevertheless on the basis of application Exh. P. T. allegedly submitted by Manzoor appellant seeking official inter vention for the restoration of possession of the disputed land to him, supported by the testimony of Ghulam Qadir P. W. 10 who had admittedly drafted the same, the trial Court came to the conclusion that the deceased was in actual possession of the disputed land at the relevant time and was justified in attempting forcible eviction of the appellants from the disputed land as he had no time to approach the police or for that matter to have recourse to other legal remedies. It was in this view of the matter that the appellants were found to have trespassed into the land and were accordingly convicted. As stated earlier the case against the three co‑accused was found to be doubtful and they were accordingly acquitted.

7. The principal ground of attack by the learned counsel for the appellant was directed against the finding of the trial Court in regard to the factum of possession of the disputed land at the relevant time. It was contended that the factum of the transfer of the disputed piece of land in favour of Akbar the first vendee and subsequently its transfer by him in favour of Manzoor appellant had been fully established. Neither the sales nor the separation of this piece of land from the remaining land of Waryam deceased in the course of consolidation operation were ever challenged by him by having recourse to legal action. This coupled with the positive finding as to the forged nature of the lease deed Exh. P. S. in favour of Salabat, which significantly enough was allegedly signed and presented by Manzoor appellant. before the Deputy Commissioner was like application Exh. P. T. drafted by Ghulam Qadir P. W., went a long way to falsify the prosecution version that the deceased was in possession of the disputed land at the relevant time. It was further argued that even otherwise it was the prosecution's own case that the lease in favour of Salabat had prematurely terminated in April 1967, after the harvesting of the wheat crop and as such the land was lying vacant. It was strenuously contended that application Exh. P. T., which formed the principal basis of the finding of the learned trial Judge on the point of possession could not be relied upon for more than one reason. In the first instance, it was never put to Manzoor appellant as to whether he had got it drafted from Ghulam Qadir Lambardar as the latter would have us believe and then having signed it had personally presented it to the Deputy Commissioner. None of the prosecution witnesses, namely, Raja Muhammad Ayub, Naib‑Tehsildar P. W. 7, Malik Abdul Wahid Girdawar P. W. 8, Munshi Abdul Haq Patwari P. W. 11 or Musa Khan Chairman P. W. 9 said a word about the personal presence of Manzur at the relevant time. It was suggested that Ghulam Qadir Lambardar P. W. 10 who was a sworn enemy of the appellants being admittedly the abductor of the wife of Manzoor appellant and having found to be a forgerer by the learned trial Judge in respect of the lease deed Exh. P. S., had fabricated all this evidence in order to create a false admission on the part of Manzoor appellant that he was not in possession of the disputed land at the relevant time. It was argued that in any case even if the latter was not found to be in possession, prior to the time of occurrence, being the owner of the land which was lying vacant, he could lawfully enter upon it in legiti mate exercise of his right of ownership. At any rate it was contended that the possession of the deceased was not established. Lastly it was argued that even otherwise in the circumstances even if the deceased could be deemed to have some semblance of claim to possession he was not justified in attempting forcible ejectment of the appellants and should have had recourse to a legal remedy.

8. The contentions raised by the learned counsel appear to have considerable force. A perusal of the impugned judgment would clearly show that in coming to the conclusion that at the relevant time Waryam deceased was in possession of the disputed piece of land, the learned trial Judge was mainly influenced by application Exh. P. T. admittedly written by Ghulam Qadir Lambardar P. W. 10 at the instance of Manzoor appellant seeking restoration of possession through official intervention. This document, I am afraid, cannot be relied upon so as to be made the basis of a finding adverse to the appellants for more than one reason. In the first instance neither the contents of the document nor the alleged facts of its having been drafted by Ghulam Qadir and signed by Manzoor appellant were put to him during his examination under section 342, Cr. P. C. so as to afford him an opportunity to explain the incriminating circumstances. It is well‑settled that in such an event no adverse presumption can be drawn against the appellant on this account. This is not all. Even otherwise the antecedents of this witness who from his own showing was challaned for the abduction of the wife of Manzoor appellant and then in a case under section 419, Cr. P. C. and against whom criminal proceedings for confiscation of security were also pending at the time, make him a witness of extremely doubtful credibility. There are clear indications on the record to suggest that his sympathies lay not with the appellant for whom he volunteered to draft an application but with the opposite‑party. He was admittedly the maternal uncle's son of Salabat, the alleged lessee, the lease in whose favour was positively disbelieved by the trial Judge and for good reasons too inasmuch as it was not supported by any documentary evidence in the form of receipt of payment of the lease money, entry in the Roznamcha or entries in the Crop Inspection Register except for three harvests from Rabi 1966 to Rabi 1967, for which entries also, showing change of possession, the Patwari could not offer a satisfactory explanation. The other witnesses relied upon by the trial Judge on the point of possession were Ramzan P. W. 12 and Musa Khan P. W. 9. Of these, Ramzan was admittedly the tenant of Ghulam Qadir Lambardar and claimed to be the time keeper of the outlet. The learned trial Judge further relied on the endorsement made on application Exh. P. T. by Raja Muhammad Ayub Khan, Naib‑Tehsildar P. W. 7, Malik Abdul Wahid, Girdawar P. W. 8 and Munshi Abdul Haq Patwari P. W. 11. It is pertinent to observe that none of these witnesses was in a position to state that the application was presented by Manzoor appellant personally either before the Deputy Commissioner in the first instance or before any one although at any subsequent stage. Musa Khan P. W. 9 though invested with the ostensible insignia of respectability in the form of Lambardari and Chairmanship admitted that he was a co‑accused with Ghulam Qadir Lambardar in a case under section 419. The Certificate Exh. P. T./3 on application Exh. P. T. was written by Ghulam Qadir on his behalf and his (witness's) signatures below it were undated. He could not state whether Exh. P. T. was given by the Qanungo to the Patwari. For all these reasons the statements of this witness does not inspire confidence and the possibility of his having played into the hands of Ghulam Qadir cannot be ruled out. Obviously view of the finding about the credibility of Ghulam Qadir, no reliance could be placed on the testimony of this witness. As stated earlier application Exh. P. T. Purported to have been signed by Manzoor appellant was never put to him. If he were really a literate person as indicated by the signatures allegedly put by him on Exh. P. T., he would certainly have given an explanation as to why did not he draft the application himself and chose a person to do so on his behalf who was his sworn enemy. Likewise it does not stand to reason either that having himself approached the authorities for the restoration of possession Manzoor appellant should choose to take the law into his own hands only a couple of days thereafter without waiting for the final outcome of his application. As a result of the foregoing discussion. I am driven to the irresistible conclusion that the finding of the learned trial Judge that at the relevant time Waryam deceased was in possession of the land in question cannot be maintained.

9. Once the finding that Waryam deceased was at the relevant time in possession of the disputed land is set aside, or at least rendered doubtful; it would be obviously difficult to maintain the appellants' conviction, Manzoor being admittedly the vendee of the disputed piece of land who according to the prosecution's own showing had entered upon it when it was lying vacant after the wheat crop had been harvested. In other words at the relevant time Manzoor had got into possession of his own property and as such was entitled to defend it even by use of force. In the above circumstances it cannot be said that he was attempting by means of force to obtain possession. In Lows v. Telford (1 App. Cas. 414) one Lows was the mortgagee of the house which the mortgagor had leased to one Telford who had taken possession of it. According to English Law the mortgagee was entitled to take possession when he liked without recourse to legal process and the lease by the mortgagor was ineffective as against him. One night Lows broke into the house and took possession of it in the absence of Telford. Immediately afterwards Telford along with some companions entered into the house through a window and took possession of it forcibly. Lows was tried for forcible entry. It was held that he was in lawful possession and having a legal title had effected actual entry into the premises when no one was present to oppose him. In Lashkhari Khan v. Emperor (16 C L J) it was observed by their Lordships as follows :‑

"Appellants having effected a peaceable entry on the land and being in possession of land and crop to which they were by presumption legally entitled had a good right to prevent com plainant's party from doing what they admittedly intended to do, viz. enter forcibly on to the land and reap and take away the crop of the first appellant."

A similar view was expressed in Ahed Fakir v. Emperor (A I R 1925 Cal. 1235), it was observed by their Lordships that where once a party entitled to possession forcibly takes possession, its retaining of possession subsequently by force is not with the common object of taking possession by force and the opposite‑party has no right to eject them forcibly.

10. The upshot of the discussion, therefore, is that the appeal succeeds and the convictions and sentences of the appellants under sections 304/34 and 447/34, P. P. C. are set aside. It is directed that the appellants be released from jail, if not required in any other case.

Appeal accepted.

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