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Criminal Appeal No. 259 of 1957, decided on 13th October 1959.

S. 320‑Injury to nerve by itself not grievous hurt.

Ss. 100, 103‑Right of private defence of person or property‑Five persons some of them armed with sticks, going to evict by force accused, a tenant in a shop under two of them, from his shop, in an "excited and angry mood'.'‑Held, accused had "reasonable apprehension of death or grievous hurt"‑Aggressors attacking with sticks and delivering blow on head of one of accused's party, and picking up a chair from verandah of shop and placing it elsewhere‑Complete right of private defence available to accused to extent of causing death.

If five persons go to a shop some of whom are armed with sticks and ask the occupier of the shop (tenant under two of them) to vacate it and their conduct displays that they are in a very excited and angry mood, so that one of them, the deceased, first delivered a blow with a stick, on the head of one of the party of the accused, and another picked up a chair from where it was lying in the verandah and placed it at another place, held, that the accused had a reasonable apprehension of death or grievous hurt at the hands of the five aggressors, and the accused, when he caused the injuries resulting in the death of one of the assaulters had the complete right of self‑defence both of body and property irrespective of the fact whether he caused the injuries before or after he was himself injured.

According to the explanation attached to section 442, P. P. C. the introduction of any part of the criminal trespasser's body is amply sufficient to constitute criminal house trespass. If the criminal house trespass is made under such circumstances as may reasonably lead to the apprehension that death or grievous hurt will be the consequence, then the person in whose shop the criminal trespass is made is fully justified under section 103 or the Penal Code to cause the death of that trespasser.

S. 97‑Right of private defence of property‑Available to person in de facto possession even against lawful owner.

S. 97‑Right of private defence‑Available against attempt to commit offence against person or property.

Fazal-i‑Haq and C. R. Aslam for Appellant.

K. B. Mushtaq Husain for A. G. for Respondent.

Sh, Muhammad Shafi for Complainant,

Soofi Abdul Latif, aged 30 years, Muhammad Safdar, aged 20/22 years, and Muhammad Khan, aged about 19/20 ,years, sons of Allahditta, of Kala Gujran, were tried by the Court of Session on charges under section 302‑34 of the Pakistan Penal Code for having committed the murder of Fazal Dad, and under sections 326/34 and 324‑34 of the Pakistan Penal Code for having caused grievous injuries to Wali Dad (P. W. 9) and simple injuries with sharp‑edged weapon to Fateh Dad (P. W. 8), Rahmat (P. W. 10) and Ghulam Rasul (P. W. 11), at about late evening time on the 5th of September 1956, in village Thathi Gujran, situated at a distance of about five miles from Sadr Jhelum Police Station. The learned Sessions Judge, giving the benefit of full right of private defence to Muhammad Khan and Muhammad Safdar, acquitted them of both the charges. He gave a limited right of private defence to the third accused, Soofi Abdul Latif, and convicting him under section 304 (2) of the Pakistan Penat Code, sentenced him to seven years' rigorous imprisonment. As‑ against this judgment, Abdul Latif has come up on appeal while the State has filed an appeal that the conviction may be altered from section 304 (2) to section 302 of the Pakistan Penal Code. Wali Dad has filed a revision petition questioning the acquittal of all the three accused under section 302 of the Pakistan Penal Code. This revision petition was not admitted to full hearing and was ordered to come up along with the two aforementioned appeals. In view of the decision at which we have arrived, it is not necessary to admit this revision to full hearing. The learned counsel who filed the revision was present in the morning but when the case was called, he was absent. Wali Dad, however, appeared in person and we gave him full opportunity to be heard.

2. The brief facts of the case are that Wali Dad (P. W. 9) and Rahmat (P.. W. 10), who are brothers inter se, have got about fourteen shops in That hi Gujran, situated quite adjacent to each other. One of these shops which is bigger than the rest is in possession of Abdul Latif appellant who runs a hotel in it. According to the prosecution evidence other than the statement of Muhammad Shafi (P. W. 15), one other shop was rented out to Muhammad Shafi (P. W. 15) at the recom mendation and on the responsibility of Abdul Latif at Rs. 10 per mensem on the 28th of May 1956. Muhammad Shafi, on the other hand, said that he had rented the shop from Muhammad Khan, the acquitted accused, but later on came to know that the shop in fact belonged to Rahmat (P. W. 10). He, therefore, left the shop and handed over its possession on the 26th of August 1956 and paid the whole rent of Rs. 30, Rs. 10 to Rahmat and Rs. 20 to Muhammad Khan. The discrepancy is not of any material importance because the fact remains that Muhammad Shafi was the tenant of the shop and he paid the rent to the accused party and not to the real landlord. Out of Rs. 20 mentioned above, it is alleged that a sum of Rs. 10 alone was paid to the landlords leaving behind a balance of Rs. 10 which Abdul Latif was not prepared to pay on the ground that it had never been paid to him by Muhammad Shafi (P. W. 15).

3. It is admitted that at about digarwela on the day of occurrence Rahmat (P. W. 10) had demanded Rs. 10 from the appellant over which there was a fight between the two, but on account of the intervention of the people present there, it was not allowed to take a serious turn. Rahmat (P. W. 10), however, left the place in extreme anger because, he considered himself to have been very gravely insulted by the appellant and his brothers who were mere carpenters and had no right to behave in the manner in which they did, he being a zamindar and their landlord. Rahmat went to his house and complained to Wali Dad against the conduct of Abdul Latif and his brothers. Both these persons started towards the shop of Abdul, Latif. They were followed by their third brother Fateh Dad (P. W. 8) presumably for their house. Their fourth brother, fazal Dad, also arrived there on hearing of the earlier dispute but it is not clear whether he came from the house or from somewhere else. As they reached the shop of the appellant, Wali Dad asked him to vacate it immediately and simultaneously he picked up a chair which was lying in the verandah and placed it outside the shop. Abdul Latif appellant immediately whipped out a knife and gave a blow with it on the back of Wali, Dad Fazal Dad advanced towards Abdul Latif in order to rescue his brother but was also stabbed in the abdomen by Abdul Latif appellant. Rahmat (P. W. 10) also went towards them and was injured by Abdul Latif and Safdar who was also armed with a knife. Abdul Latif then advanced towards Fateh Dad (P. W. 8) in order to attack him. The latter, however, warded off the blow with a stick which he had in his hands and was injured with the knife of Safdar on the middle finger of his right hated. Muhammad Khan hit Fateh Dad on the head with a stick. Fazal Dad fell down and the accused left in the direction of Kala Gujran. On the way near the Grand Trunk Road they saw Ghulam Rasul (P. W.11), the son‑in‑law of the aforementioned Wali Dad, coming on a tonga from city side. The three culprits, i.e., the appellant and his two acquitted brothers, caught hold of him and injured him with their respective weapons. Thereafter they ran away. Fazal Dad was taken to the hospital while Fateh Dad (P. W. 8) went to the police station Jhelum Sadr and lodged the report there at 10‑30 p.m. the same night.

4. Dr. M. A. Iqbal Ansari (P. W. 1) examined Fazal Dad and found upon him one incised wound, 4 " x 1'', deep to the chest and abdominal cavity, with loops of small intestines pro truding out of the wound, on the right side of the front of the chest in the lower part in a slanting direction, starting from the lower part of the sternum, cutting the ninth and tenth ribs' attachments, as well as two contused wounds, bone deep, one on the centre of the head and the other on the lower left side of the forehead. Both the contused wounds were simple in nature. He was operated upon for injury No. 1. He, however, could not survive the injury and succumbed to it on the 7th of September 1956 at 3‑15 a.m. Before he died, his dying declaration was recorded by Hafiz Muhammad Ishaq (P. W. 2) who was then Revenue Assistant and Magistrate 1st Class, Jhelum. The deceased in this statement stated what has been reproduced above up to the point of injuries on his own person. Thereafter he said that he lost consciousness.

5. As regards the other injured persons, Ghulam Rasul was found to have on his person two stab wounds and four incised wounds, all simple in nature Rahmat Khan .(P. W. 10) had seven incised injuries, one stab wound, one scratch and one abrasion on different parts of his body, but they were all simple in nature ; Wali Dad had three stab wounds and one incised injury. According to the doctor, injuries Nos. 1, 2 and 3 were simple but No. 4 was grievous. The reason, however, which he gave for saying that it was grievous, is certainly not the one covered by section 320 of the Pakistan Penal Code. He stated that this injury was grievous because it had injured the nerve of the right leg. Now, under section 320 of the Pakistan Penal Code, a hurt is grievous only when there is emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either car, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguation of the head or face, fracture or dislocation of a bone or tooth and any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Injury to the nerve is not covered by any one of these eight conditions which are necessary in order to designate a hurt as grievous. All the injuries, therefore, of Wali A Dad too shall have to be taken as simple.

6. Amar‑i‑Ilahi (P. W. 16), who was the S. H. O. in Police Station Jhelum Sadr, after drawing the report, first went to the hospital where the injured persons were and recorded their statements. He then went to the scene of occurrence but as it was dark, he could not start the investigation at once. He, however, again went to the scene of occurrence on the following day and arrested the appellant as well as the two acquitted accused. As they were injured, they were also sent to the hospital. Muhammad Khan accused was found to have a contused wound, 1" x ", on the left side of the head, an abrasion on the left temple, an abrasion on the top of the left shoulder, and a bruise on the back of the left forearm. Muhammad Safdar accused had an abrasion on the left knee, an abrasion on the top of the right shoulder, an abrasion on the back of the right chest and a swelling and pain on the left elbow. The appellant had an incised wound, " x. ", gaping and slanting, on the skin of the tip of the left hand index finger, an abrasion on the central part of the head, swelling on the left temple, swelling and pain on the right elbow, six linear scratch marks on the back of the left shoulder, an abrasion on the left knee, a bruise on the back of the chest, lower part, and a bruise, 3" x 1", on the front of the left thigh. The injuries on all the three accused were simple in nature.

7. Neither in the first information report nor in the dying declaration is there any explanation given as to how did the appellant and his two brothers receive the injuries. In Court, Fateh Dad (P. W. 8), Wali Dad (P. W. 9), Rahmat (P. W. 10) Fazal Illahi (P. W. 12), Allah Dad (P. W. 13) and Munshi Khan (P. W. 14) appeared as ocular witnesses. Fateh Dad (P. W. 8) admitted in his evidence that he had beaten the accused with a soti in self‑defence. Wali Dad (P. W. 9) also admitted that the deceased had first given a blow with a soti to Muhammad Khan and was thereafter stabbed to death. There is thus no doubt that all or same of the prosecution witnesses and the deceased were armed with some sort of weapon like the sticks. The participation of all the three accused in the fight can also not be denied. According to Abdul Latif appellant the deceased his brothers, Rahmat, Wali Dad, Fateh Dad and Wali Dad's son‑in‑law Ghulam Rasul, went to his shop and started abusing him. They threatened to kill him and then began throwing out the articles from the shop. He entreated them not to do so whereupon Fazal Dad deceased and Wali Dad attacked him and his brothers with sotis. Fazal Dad gave him a soti blow on his head while Ghulam Rasul, Rahmat and Fazal Dad dragged Safdar, the acquitted accused, out of the shop. Fazal Dad felled the appellant on the ground and sat on his chest. Abdul Latif had a Fauji knife with him with which he struck Fazal Dad on his head. The deceased caught hold of him by his arms. At this he apprehended that he would snatch away the knife and he, therefore, stabbed him with his knife on his abdomen. The deceased after receiving this injury fell down. Rahmat, Fateh Dad, Ghulam Rasul and Wali Dad then went towards him and started attacking him. In order to save him from their onslaught, he injured them with his knife.

8. The question in this case is very simple. The appellant has admitted having caused the death of the deceased. The only question which requires to be determined is whether he did so in exercise of the right of private defence or deliberately to murder the deceased. There is a third question which must be posed and it is this that if he had the right of private defence, then whether he exceeded it or not. Even if the prosecution story be taken as it is, the accused would be entitled to the complete right of private defence. It is admitted that the four brothers went to the shop of the appellant together and some of them were armed with sticks. The evidence on the record shows that Ghulam Rasul was also with them and it is totally wrong to say that he was injured while he was on his way to the village somewhere near the Grand Trunk Road. The investigating officer has stated that no place was shown to him as to where Ghulam Rasul was injured and, therefore, he did not take any earth from such place. In the absence of any corroborative evidence that Ghulam Rasul was injured at some other place, we have no other option but to conclude that he came along with his father‑in‑law and his three brothers. All these persons came to the shop of the appellant and without any introduction asked him to vacate the shop immediately This they could not do. If they wanted to have the shop vacated, then the law lays down a certain procedure, for example, a notice to the tenant, and if he persists in not leaving the shop, an application under the Rent Control Act or a suit for ejectment in an ordinary Civil Court. The deceased and his brothers, however, wanted to avoid the Court and get the shop vacated by show of force. Under section 100 of the Pakistan Penal Code the right of private defence of the body extends under the restrictions mentioned in section 9 of that Code to the voluntary causing of death if the offence which occasions the exercise of the right be such an assault as may reasonably cause the apprehension that grievous hurt or death will otherwise be the consequence of such assault. If five persons go to a shop some of whom area armed with sticks and ask the occupier of that shop to vacate it and their conduct displays that they are in a very excited and angry mood, then, in our opinion, the occupier of the shop will have a reasonable apprehension of death or grievous hurt at the hands of those five persons. Abdul Latif, therefore, when he caused the injuries clearly had the complete right of self‑defence irrespective of the fact whether he caused the injuries before nr after he was himself injured.

9. Looking at the case from the second point of view, it is admitted by all the prosecution witnesses that Wali Dad when he ordered Abdul Latif to vacate the shop, at the same time picked up a chair from where it was lying in the verandah and kept it at another place. In order to pick up a chair, he must have taken his hand into the shop. According to the expla nation attached to section 442 the introduction of any part of the criminal trespasser's body is amply sufficient to constitute criminal house trespass. If the criminal house trespass is made under such circumstances as may reasonably lead to the appre hension that death of grievous hurt will be the consequence, then the person in whose shop the criminal trespass is made is fully justified under section 103 of the Penal Code to cause the death of that trespasser. It is true that the trespass was committed by Wali Dad, but as he was accompanied by the deceased and his three other brothers as well as his son‑in‑law, the appre hension was there that they all would commit the same offence as Wali Dad did or were attempting to do the same. In both cases the right of private defence will be full and not limited. We are, therefore, of the opinion that from whatever angle the case is looked at, Abdul Latif was quite justified in using the knife. The deceased party were not only the aggressors but they were at the same time violent and their attitude was extremely threatening that if their wishes were not complied with, they would even go to the extent‑ of committing the murder. Abdul Latif, therefore, committed no offence in the eye of law when he inflicted the fatal injury on the body of the deceased. His appeal is, therefore, accepted, his conviction and sentence is set aside and he is acquitted of the charge. He is on bail and is released from the bail bond. The State appeal as well as the revision automatically fail and are hereby dismissed.

I respectfully agree with the judgment proposed by my learned brother, but would like to add a few observations on the legal aspect of the case.

2. It is an established principle of law that a person who is in possession of property must be left in undisturbed possession of it unless evicted by due process of law. Section 97 of the Penal Code reads :‑

"Every person has a right, subject to the restrictions contained in section 99, to defend‑

Secondly.‑The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass".

The words "the property of himself or of any other person" in the context can only mean the property of which one is in de facto possession. The right of private defence can be exercised against an aggressor as a rule whether the aggressor be the D rightful owner of the property or a person merely setting up al fanciful title. Mere right to have possession restored by a Civil Court does not justify an individual to take the law into his own: hands, and if he does so, he becomes liable for criminal trespass.

3. In Emperor v. Gopalrao Venkatesh (10 B L R 285) it was held :‑--

"A joint‑owner of property is entitled to have joint posses sion restored to him in a Civil Court ; but he is not justified to take the law into his own hands to recover the possession, and if he does so, he becomes liable for criminal trespass."

4. In Jasu Ram Marwari and others v. Emperor (A I R 1924 Pat. 143) Jawahir Halwai, though a trespasser, was found to have been in actual and peaceful possession of the disputed land. Jasuram Marwari and others, who were the owners of the land in dispute, were not in actual physical possession of the land. Instead of seeking redress at the hands of the public authorities, Jasuram Marwari collected a body of men and forcibly demolished the fuel store built by Jawahir Halwai on the land in dispute. Jasuram and others were convicted under section 143 of the Penal Code. The convictions were maintained by the Patna High Court and it was held that the fact that a person has a title to a plot of land, does not give him the right to forcibly eject a trespasser in peaceful and settled possession of the same. The landlord's remedy is to eject him by civil process and not by force.

5. In Muhammad Khan v. The Crown (P L D 1949 Lah. 421 : A I R 1949 Lah. 128) Muhammad Munir, C. J. observed :‑--

"No one, including the true owner, has a right to dispossess the trespasser by force, if the trespasser is in settled possession of the land, and in such a case unless he is evicted in due course of law, he is entitled to defend his possession, even against the rightful owner."

6. In Emperor v. Haji Gulam Muhammad Azam (I L R 43 Bom. 531) the accused, a landlord, having prevented a tenant of his who was holding over from entering the demised premises, was convicted of wrongful restraint. On application to the High Court under criminal revisional jurisdiction it was held that the accused was rightly convicted inasmuch as the tenant holding over had a position recognised by the law and had a right to retain possession of the premises he occupied even against the landlord himself until dispossessed in due course of law. A similar view was taken in Maung San Myin and another v. King Emperor (A I R 1923 Rang. 245) where it was held that an owner is not entitled to re‑enter without the tenancy being determined and if he does so he commits an offence under section 447 of the Penal Code.

7. It is clear from the above authorities that a person in peaceful possession of the property cannot be evicted but in due process of law, and if an attempt. is made to disturb his possession by force, he can defend his possession by using necessary force.

8. In the case in hand, the appellant and his brothers were in peaceful possession of the shops in dispute as tenants under Wali Dad (P. W. 9) and Rahmat (P. W. 10). It has been rightly held by my learned brother that Fateh Dad (P. W. 8), his brothers Wali Dad (P. W. 9), Rahmat (P. W. 10) and the deceased, and Ghulam Rasul (P. W. 11), (son‑in‑law of Wali Dad P. W.), went to the shop of the appellant with the object of taking forcible possession of the shops. (Clause 4 of section 141, P. P. C. makes the assembly of five or more persons unlawful if the common object of that assembly is, by means of criminal force or show of force, to take or obtain possession of any property). It is in evidence that Wali Dad P. W. picked up a chair lying in the verandah of the shop and put it outside the shop. These facts clearly indicate that there was an immediate threat and danger to the appellant and his companions, who have been acquitted, that an attempt to evict them by force was being made. The right of private defence of property arises not only when the house is broken into, but when an attempt is made to break into the house.

9. In Dhu Ram v. Emperor (A I R 1929 All. 299) three or four men being armed with lathis, guns or . pharsas came to the village. It was feared that they had come there for the purpose of committing dacoity. Baij Nath and Dhu Ram saw them. The dacoits commenced to run away and while so running Dhu Ram fired one or two shots and killed one of them. It was held that as the dacoits had come to commit dacoity, a villager was fully justified in firing at them. It was further held that the firing by Dhu Ram was in the right of private defence of property against intended robbery and house‑breaking by night was legally justified. The learned Judge also observed:‑--

"If persons were as quick as Dhu Ram with their guns, I believe there will be a fewer dacoities in village."

A Judge once rightly remarked: "One does not wait to fire a shot until a dacoit or robber comes up to shake hands or enquire after one's health".

10. In Ali Mea v. King‑Emperor (A I R 1926 Cal. 1012) it was held that under section 103 (of the Penal Code) the right of private defence of property to the extent of causing death arises not only when the house is broken into but when an attempt is made to break into the house. It is not the intention of the law that the right to defend property is available only when the thief has already effected entry, for property may be protected by attacking the thief inside the house as much as by preventing his entry into it.

11. In Hafiz Ali and others v. King‑Emperor (10 O C 196) it was held that threats can also give right of self‑defence.

12. It would appear from the above authorities that the right of private defence arises not only when the offences enumerated in the section are committed but also when an attempt to commit or a threat to commit any of such offences is made.

13. It is clear from the evidence on the record that Wali Dad P. W. actually entered the verandah of the shop, picked up a chair lying there, and put it outside the shop. My learned brother has rightly held that Wali Dad and his companions, who were armed with sotis at the material time, had called upon the appellant and his companions to vacate the shop immediately. The fact that Wali Dad removed a chair from the verandah shows that Wali Dad and his companions had adopted a threatening attitude indicating that they were bent upon getting the shop vacated by force. Thus the appellant and his companions ,had a clear right to defend their peaceful possession of the shop. There were a number of injuries on the appellant and his companions and a satisfactory explanation of the injuries has not been given by the prosecution. It appears that when the appellant and his companions tried to protect an invasion on their rightful possession, force was used against them. If five persons come armed to dispossess a person by force, the person in possession can have a very reasonable apprehension that while he is trying to maintain his possession he would be met by such force as would result in grievous hurt. In the circumstances, the owner in possession would also be protected by section 100 of the Penal Code. I fully agree with my learned brother that it is a case in which the appellant and his companions had a right not only under section 97 of the Pakistan Penal Code but also under section 100 of that Code. Keeping in view the number and nature of the injuries on the person of the deceased, it cannot be said that the appellant exceeded the right of self‑defence.

A.H. Appeal accepted.

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