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Criminal Appeal No. 21 of 1953, decided can 3rd February 1954,

(On appeal from the judgment arid order, dated the 15th August 1952, of the Chief Court of Sind, in Confirmation Case No. 21 of 1952).

S. 59‑Persons on being pursued running away leaving behind bullock they were stealing Attempt to capture or arrest them not un-authorised‑Time element important factor in such cases, where whole episode a single transaction.

Sheobalak v. Emperor A I R 1948 All. 103 ref.

--Ss. 300, 302 & 326‑Presence of requisite knowledge or intention under S. 300 not clear Conviction under S. 302 altered to one under S. 326.

M. Anwar, Advocate Federal Court for Appellant.

Shameem Hussuin Kadri, Advocate Federal Court instructe3 by S. Zahir Abbas, Attorney for the Crown.

Date of hearing : 3rd February 1954.

‑This appeal with our leave obtained by the convict Darya Khan arises from a judgment of the Chief Court of Sind, whereby his appeal was dismissed and his conviction and sentence of death under section 302 and of three years' rigorous imprisonment under section 382, P. P. C., by the Additional Sessions Judge of Larkana, were confirmed.

Shortly stated, the case for the prosecution was that at about midnight on the 5th September 1951, complainant Uris discovered one of his bullocks missing; he thereupon raised an alarm when three of his neighbours came to him on hearing his cries and there after he along witty them started in search of the bullock by tracking the foot‑prints of the missing animal; subsequently two other persons Yar Muhammad and Lal Khan joined in the pursuit; ultimately at day‑break the party arrived at a village Limo nearly ten miles away from their own village and spotted the missing bullock which was being taken away by the appellant Darya Khan and his cousin Kaim. As soon as they were over taken, Yar Muhammad, caught, hold of Maim, and thereupon Darya Khan gave a hatched blow on the head of Yar Muhammad in consequence of which he died on the next day. Lal Khan also was given a lathi blow on the arm by Kaim. The defence of the appellant was that the bullock was their own property which the complainants' party took away by force to cover their own offence f4lsely implicated the appellant.

The assessors gave a unanimous opinion of guilty and the learned Additional Sessions Judge, partially agreeing with their opinion, convicted Darya Khan and sentenced him to death under section 302 and to rigorous imprisonment for three years under section 332, P. P. C., Kaim was convicted under sections 382 and 325, P. P. C., and sentenced to rigorous imprisonment for three years and two years respectively.

Against their convictions and sentences both Darya Khan and Kaim appealed to the Chief Court of Sind, but it was dismissed and the decision of the trial Court was confirmed. Darya Khan then appealed to this Court and obtained leave to appeal.

Counsel for the appellant Darya Khan contended before this Court, as in the Courts below, that assuming that the prosecution case was proved, inasmuch as the offence of theft was not com mitted in the view of the complainant‑party and in any event as the appellant and his companion, in order to avoid their pursuers, had started running away leaving the bullock, behind, the attempt to capture or arrest them was not authorised by section 59 of the Criminal Procedure Code and they had every right to offer resistance by using force.

We are not inclined to puch such a restricted and narrow construction on the words of section 59 of the Criminal Procedure Code. In a case of this nature, the time element is an important factor for consideration. The stolen bullock was still in the process of removal and there is no such lapse of time between the theft and the effort of the owner to recover the property as can possibly give rise to a defence of bona fide purchase in market overt of the like. Indeed, the whole episode was one single transaction. Reference in this connection may be made to the observations made in the case of Sheobalak v. Emperor (A I R 1948 All. 103) the facts of which resemble much with the facts of the present case. As to the further argument, that the bullock had been left behind while attempting to escape, it is to be noted that it is based upon an assumption contrary to the evidence on the record. However, as it is not quite clear that the requisite intention or knowledge under section 300 was present to the mind of the appellant, we would alter his conviction and sentence of death under section 302 to a conviction and sentence of rigorous imprisonment for seven years under section 326, P. P. C., but in other respects would dismiss his appeal. The sentences under sections 326 and 382 will run concurrently. The appeal is disposed of as above.

Appeal dismissed.

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