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Appeal No. 227 of 1952, decided on 18th November 1951, from the order of P. R. B. May Sessions Judge, Lahore dated the 22nd March 1952, convicting the appellants.
S. 105‑Act done by accident‑ Burden of proof‑Penal Code (XLV of 1860), S. 80.
According to section 80, P. P. C., nothing is an offence which is clone by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. The burden of proving all the conditions mentioned above is on the accused who wishes to bring his case within the purview of section 80, P. P. C. Section 105, Evidence Act, says that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or provision contained in any other part of the same Code, or fn any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Not constituted by simply lying cattle on laid or fixing pegs in land or using land for stacking fodder.
Kh. Feroz‑ud‑Din Ahmad for Appellants.
S. A. Mahmood, Assistant to the Advocate‑general for Respondent.
Taj Din, aged 35 years. Siraj Din, aged 25 years, Jalal Din, aged 181 years, sons of Faqir Muhammad, and their sister's husband, Barkat Ali, son of Nabi Bakhsh, aged 18 years, Arains of village Dogalch, District Lahore, were tried on charges under sections 302 and 307 read with section 34, P. P. C. Jalal Din was convicted under section 302, P. P. C. and, owning to his youth, sentenced to transportation for life. The common intention to kill was held not to have been proved. Barkat Ali was, therefore, convicted under section 324, P. P. C., and sentenced to one year's rigorous imprisonment. Taj Din and Siraj Din were acquitted. The con victs have appealed.
Ghulam Muhammad, son of Umar Din, has filed two peti tions for revision. In one he prays that the sentence of Jalal Din should be enhanced to death and adds that Barkat Ali should also have been convicted under section 302, P. P. C., and sentenced to death. Moreover, they should have both been convicted under section 307/34, P. P. C., and suitably punished. In the other he says that the acquittal of Taj Din and Siraj Din is wrong and they should be retried. The revision petitions were ordered to be considered with the appeal, without any notice having been issued to the respondents. After hearing the learned counsel for the petitioner, we did not consider it necessary to give notice to the respondents and the petitions for revision Nos. 353 arid 461 of 1952 will be disposed of with Criminal Appeal No. 227 of 1952 by this order.
The prosecution case is that Ghulam Muhammad, Ghulam Rasool, Muhammad Ali and Barkat, sons of Umar Din, lived is village Dogaich and used to keep their carts on a piece of Shamilat land in front of their house. The accused also lived in a house in the same locality and tied their cattle on the Shandlat land. Six or seven days before the occurrence, Tai Din accused fixed some wooden pegs on the ground where Ghulam Muhammad and his brothers used to keep their carts and planted a bohar tree there. Ghulam Muhammad protested and had a quarrel with Taj Din. Khair Din (P. W. 14) and Ismail, who was given up by the prosecution as unnecessary, told the accused that the land was the common property of all the villagers and they should not try to usurp it. For some days after that the carts belonging to the complainants were used for carrying manure and not brought to the Shamilat lank On the day of occurrence, i.e. 16th July 1951 at about 8‑15 p. m. Bashir Ahmad (P. W. 8) and Muhammad Yaqub (P. W. 9), sons of Ghulam Muhammad, took one of their carts in order to park it on the land in question. Taj Din accused abused the boys and slapped them for doing so. They went home and com plained about it. Barkat Ali, an uncle of Muhammad Bashir; aged about 17 years, and Muhammad Yaqub, aged about 8 years, went out to ask why the bays were beaten and abused. Ghulam Muhammad and Ghulam Rasool followed him, Barkat Ali pro tested to Taj Din about the manner in which be had behaved towards Muhammad Bashir and Muhammad Yaqub and the two men started quarrelling with each other. Khair Din and Muhammad Yaqub (P. Ws. 14 and 15) were present at the time Ghulam Muhammad tried to calm down the quarrel, but Taj Din shouted to his brothers to come out. Accordingly, Jalal Din came cut with a gun and Barkat Ali with a tukwa. Siraj Din brought the bandoleer containing, some cartridges. Jalal Din shot Barkat Ali (deceased) in the chest and felled him to the ground. Ghulam Rasool (P. W. 10) threw himself over Barkat Ali to protect him and Siraj Din then took the gun; which is single barrelled, from Jalal Din and fired another shot, the pellets of which hi: Mst. Mehran Bibi (P. W. 11), who was on the roof of her house. Mst. Inayat Bibi (P. W. 12), who was standing in her deohri, and Mst. Hussain Bibi (P. W. 13), wife of Muhammad Shall, whose house is just opposite to the scene of the crime. Muhammad Munir, a five‑year old son of Muhammad Shall was also hit. Barkat Ali appellant, who was armed with a takwa, attacked Ghulam Rasool (P. W. 1) and also struck the deceased. Mst. Mehran Bibi (P. W. 11), her husband, Jalal Din (P. W. 7), Mst. Inayat Bibi (P. W. 12), Khair Din (P. W. 14) and Muhammad Yaqub (P. W. 15) have given the eye witness account of the occurrence. Mst. Hussain Bibi was tendered for cross‑examination which was declined. Except Mst. Mehran Bibi, all the witnesses deposed that the shot which killed Barkat Ali deceased was fired by Jalal Din appellant and the other shot which hit the witnesses was fired by Siraj Din. Me. Mehran Bibi said that she was on the roof of her deohri with her husband Jalal Din when she was hit by a pellet and so far as she could remember she heard the report of only one shot and saw a gun in the hand of Jalal Din. Jalal Din (P. W. 7) said that he saw Siraj Din accused taking the gun from Jalal Din appellant and firing from it. The assessors expressed the view that both the shots were fired by Jalal Din and Taj Din had taken no part is the murder. The learned session judge accepted that view aced acquitted Siraj Din and Taj Din as stated above.
The medical evidence shows that Barkat Ali deceased had the following injuries:‑
(1) A gunshot wound 2"x 1 " in front of the left side of chest 1" below the left clavicle with inverted edges and blackened margins (entrance).
(2) An inverted edged gunshot wound 1" diameter on back left side lower part of chest (entrance).
(3) Incised wound 2" x 1" muscle deep on outer side of left buttock.
Left second lib was fractured and second inter-space pene trated under injury No. 1. 9th and 10th left ribs fractured into bits under injury No. 2. Left pleura was penetrated and badly injured under injuries Nos. 1 and 2 and was full of blood. Left lung was badly lacerated under injuries Nos. 1 and 2, both lobes.
Death, in the opinion of the doctor, was due to shock and haemorrhage following gunshot wounds of the left lung. In cross -examination the doctor said that there was no exit wound and both the gunshot wounds were wounds of entry. We do not consider this opinion of the doctor to be correct.
The direct evidence is that the deceased was hit in the front of the chest by only one shot and he fell on his back. He was not shot after that and, in our opinion, the gunshot wound on his back was not of entry but of exit.
The injuries on the prosecution witnesses were as follows Ghulam Rasool (P. W. 10).
(1) An incised wound 1" x " and 1 " deep just behind and inner area of the lower angle of the right scapula directed obliquely.
(2) An incised wound " x " and " deep behind the left side of the chest " from the mid line at the level of injury No. 1 obliquely.
(3) An incised wound " x " and " deep behind the chest on the right side low area " from the mid line obliquely.
(4) A lacerated wound " x " and skin deep at the mid upper lumbar area directed obliquely.
(5) A scratch 2" just below the root of neck mid line verti cally.
(6) A scratch mark 8" x " x 6" below the lower angle of the right scapula obliquely.
(7) A scratch mark 2' on the right lumbar area upper part obliquely.
(8) An abrasion mark 6" x 3" on the left scapula area at the lower part.
(9) An abrasion mark 2 " x 1" on the inner and upper area of left arm.
(10) An abrasion mark 2" x " on toe left shoulder.
(11) A laceration "x 1/5" above the knuckle of the left ring finger; there was swelling.
Mst. Inayat Bibi (P. W. 12).
(1) An oval black wound 1/5" x 1/8" and " deep, behind and 1" above the left wrist.
(2) Two circular black wounds 1/3" x 1/8" and 1/8" both " deep on the right side of the abdomen in front arid just below the costal margin. There was 1" distance between the two wounds.
(3) A circular black wound 1/8" x 1/3" and " deep just on the left side of the pit of the stomach. There were three holes cor respondent to the above‑mentioned injuries.
Mst. Mehran Bibi (P. W. 11).
A circular contusion mark 1/8" x 1/8" on the right side of the pit of the stomach. There was a hole in the shirt at the correspond ing area.
Mst. Hussain Bibi (P. W. 13).
(1) A circular wound 1/8" x 1/8" and " deep on the front and upper area of the left forearm.
(2) A circular wound 1/8" x 1/8" and " deep in front and lower area of the left arm.
(3) A circular wound 1/8" x 1/8" and " deep behind and outer area of the left mid finger just above the nail. A pellet was removed from the wound.
(4) Three circular wounds 1/8" x 1/8" and " deep, each wound, on the right side of the abdomen m front at different levels.
(5) A circular wound 1/8" x 1/8" and 1/3" deep on the left side of the chest 3 " above the breast. A pellet was removed from the wound.
(6) A circular wound 1/8" x 1/8" and " deep just below the right groin, outer side.
(7) A circular wound 1/8" x 1/8" and " deep, 1" from the outer angle of the right eye.
Munir son of Muhammad Shafi, aged about 5 years, was also found to have been injured. He had:‑
(1) A circular wound 1/8" x 1/8" and " deep on the outer and upper area of the right forearm.
(2) A circular wound 1/8" 1/8 x" and 1/3" deep on the outer area of the right wrist.
(3) A circular wound 1/8" x 1/8" and 1/3" deep above the right eye brow inner side.
On the side of the accused, Barkat Ali appellant had a lace rated wound 1 " x " x 1/8" on the forehead and Siraj Din appellant had a contusion " x 1/8"" on the pinna of right ear and an abrasion " x " on the back of the right elbow joint. The injuries were simple and caused with some blunt weapon.
The case for the prosecution is supported by Ghulam Muhammad (P. W. 6), who made the first information report at midnight on 16th July 1951, at Police Station Manawan, situated at a distance of about five miles from the place of occurrence setting out the facts mentioned above. It is further supported by Ghulam Rasool (P. W. 10), who had no less than eleven injuries, and Mst. Inayat Bibi and Mst. Mehran Bibi, who were also injured. Jalal Din (P. W. 7), husband of Mst. Mehran Bibi, Khair Din (P. W. 14) and Muhammad Yaqub (P. W. 15) have also fully supported the prosecution case. After going through their evidence with the learned counsel for the appellants, we have no doubt that they have given the true version of the case.
On being questioned by the Court, Jalal Din appellant said that he was clearing his gun inside his house when he heard a noise and came out. He saw his brother, Siraj Din being beaten by Barkat Ali deceased, his brothers Ghulam Muhammad and Ghulam Rasool, and two other persons, namely, Muhammad Ali and Jalal Din sons of Nawab Din. He fired in the air and accidently hit Barkat Ali deceased and a few women who were nearby. He added that the shamilat land had been in their possession since long and the deceased and his relatives wanted to dispossess them by force. Barkat Ali appellant said that he came to the spot on hearing a noise and found Barkat Ali (now deceased), his brother Ghulam Muhammad, Muhammad Ali and Jalal Din beating Siraj Din. He did not name Ghulam Rasool as one of the assailants of Siraj Din. He added that Ghulam Muhammad and his companions were insisting on park ing the cart on the land in question and Siraj Din was not allowing them to do so. Jalal Din appellant came out and fired a shot to frighten the other party, but Barkat Ali deceased and some women were injured. He denied that he had struck Ghulam Rasool P. W. and Barkat Ali deceased with his takwa. According to him, he was beseeching both the parties not to fight, and he was falsely implicated because he was married to the sister of the other accused persons. No evidence was produced in de fence and there is nothing on the record to substantiate the plea of accident raised by Jalal Din appellant. According to section 80 E P. P. C., nothing is an offence which is done by accident orb misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. The burden of proving all the conditions mentioned above is on the accused who wishes to bring his case within the purview of section 80, P. P. C., Section 105, Evidence Act, says that when a person is accuse, of any offence, the burden of proving the existence of circum stances bringing the case within any of the general exception: in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him and the Court shall presume the absence of such circumstances. The learned counsel for the appellants was, therefore, constrained to abandon the position taken up by Jalal Din and urged that the appellant had acted in the exercise of the right of private defence of person and property. He claimed the right of defence of property on the ground that the appellants were in possession of the land and the deceased and his companions had tried to forcibly dispossess them. The evidence on the record falls far short of proving that the appellants had acquired exclusive possession of the shamilat land. They merely alleged that they used this land for stacking fodder, that they had fixed a few wooden pegs on the land and had told Ghulam Muhammad P. W, a week or so before the occurrence, not to use that land. In Framji Cursetji v. Goculdas Madhowji (1) it was held that the construction of a privy and sheds for cows, goats, fowls, etc, and a but for a ghariwallah‑structures of a flimsy and purely tempo rary character‑does not amount to adverse possession. User of this sort was said to be common in this country and did not denote a claim to the ownership of the land. This view was followed by a Division Bench of this Court in Miadar and others v. Shib Ram (98 I C 880). In this case occupation of land by tying of cattle and keeping of dung etc. was held to be wholly insufficient to create an adverse title or to establish acts of ownership. In Devi Ditta Ram v. Waryam (A I R 1929 Lah. 526) another Division Bench of this Court approved the view expressed by the Bombay High Court in Framji Cursetji v. Goculdas Madhowji (I L R 16 Bom. 338). We' have no hesitation in holding that the appellants were not in exclu sive or adverse possession of the land, and had no higher right to use the shamilat land in question than the complainants. The plea of the right of private defence of person is based on the contusion " x 1/3" on the pinna of the right ear of Siraj Din and an abrasion 8" x " on the back of his right elbow joint. If Siraj Din had been beaten by Barkat Ali deceased. Ghulam Muhammad, Ghulam Rasool, Muhammad Ali and Jalal Din sons of Nawab Din, as alleged by Jalal Din appellant, the result would have been very different from a slight contusion on the ear and an abrasion on the elbow. These injuries could easily have been caused either in the course of agricultural work or in the course of the dispute which culminated in the death of the deceased and injuries to several witnesses for the prosecution.
We, therefore, hold that the appellants had no right of private defence of property or person. The learned counsel has also argued that this case may be treated as one of a sudden fight and Exception 4 to section 300, P. P. C., may be applied. We do not consider it to be a case of sudden fight. It is a case of highhandedness and aggression on the part of the appel lants. In any case, Exception 4 cannot be applied because Jalal Din, appellant, took undue advantage and acted in a cruel and unusual manner in shooting Barkat Ali because he was remon strating with Taj Din for abusing and beating his nephew. Barkat Ali appellant also acted in a cruel and unusual manner in striking with a takwa a fallen man who was apparently un armed. The appeal is dismissed and Barkat Ali appellant, who is on bail, is ordered to surrender to his bail bond and serve the remaining portion of the sentence of imprisonment. The petitions for revision are dismissed.
A. H. Appeal dismissed.
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