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Criminal Appeal No. 554 of 1960, decided on 14th March

1961.

Right of ‑ private defence of property‑Land‑Tenant in Government land‑Tenancy terminated by order of Colony Assistant‑Land being under growing crops, tenant allowed to continue in possession for coming Kharif and Rabi, on condition of paying up rent for two crops "within 15 days"‑Rent not paid‑Land allotted to new tenant in ignorance of Colony Assistant's order regarding extended occupation of land‑New tenant given only symbolical possession‑ Both asserting right to use land‑New tenant cutting standing crop and ploughing up part of land‑Dispute leading after 4 days to fight, resulting in death of one of old tenant's party‑Actual possession, held, vested in old tenant who was not a trespasser, but only "holding over"‑New tenant had no right of private defence of property‑New tenant trespass (4 days) not enough to constitute "settled" or "juridical" possession‑Making pre parations against anticipated attack‑No offence, provided there is no time to have recourse to public authorities‑[Khushi v.The State P L D 1960 Lah. 44 ; Haji Gulam Muhammad Azam v. Crown I L R 43 Bom. 531 ; Browne v. Dawson 113 E R 950 ; Dr. Gour's Commentary on Criminal Law of India para. 844 ; Muhammad Ali v. Crown A I R 1949 Lah. 128 ; Chandulla Sheikh v. Emperor 22 I C 993 ; Emperor v. Bandhu Singh A I R 1928 Pat. 124 ; Bindeswari Prasad Singh v. Emperor 46 h C 413 ; Laxmanrao Narainrao Anjikar v. Emperor A I R 1934 Nag. 172 ; in re : Mohideen Pichai Rowther and others A I R 1940 Mad. 43 ; Horam and others v. Rex A I R 1949 All. 564 ; Fouzdar Rai and others v. Emperor 44 I C 33 and Pachkauri and another v. Queen‑Empress I L R 24 Cal., 686 ref.]

M. Sleem and M. Bashir for Appellants.

Ata Ullah Sajjad for Respondent.

Date of hearing: 16th February 1961.

‑Mubarak Ali and his brother Muhammad Sharif, Shaukat Ali and his brother Hashmat Ali, Muhammad Tufail and his brother Zahur Din, and Abdul Aziz were tried by Chaudhri Aziz‑Ahmad Waraich, Additional Sessions Judge, Lyallpur, under sections 148, 302/149, 325/149 and 323/149 of the Pakistan Penal Code.. The allegations against them were that they had formed an unlawful assembly in the area of Chak'No. 111/J. B. on the 14th of September 1959, and in the prosecution of the common object of that assembly they had murdered Badar Din and had caused injuries to Abdul Haq, Shah Muhammad, Arshad and Hakam Ali P. Ws. By his order dated the 17th of June 1960, the learned Additional Sessions Judge acquitted Muhammad Sharif but convicted and sentenced the others as under :

In the case of Mubarik Ali, the sentences of imprisonment have to take effect if the sentence of death is not confirmed by this Court and will run concurrently with any other sentence sub stituted by this Court for the sentence of death, while in the case of others the sentences under different sections will run concurrently. The condemned person and the convicts have appealed, to this Court against their' convictions and sentences. The case is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for confirmation of the death sentence.

2. Abdul Haq, (P. W. 11) originally belonged to District Jullundur. On the partition of the country, he settled in Chak No 113/J. B. along with his brothers Shah Muhammad (P. W. 16) and Wali Muhammad (P. W. 17), and Earn Din As there was no evacuee land available for allotment in Chak No. 113/J. B., Abdul" Haq P. W. was allotted Killas Nos. 1 to 4, 8, 9, and 12 of square No. 52 in Chak No. 11I/J. B. in the year 1949. This was Crown land (to be hereinafter referred to as the land in dispute). It was allotted on the condition that it could be resumed when Abdul Haq P. W. was allotted evacuee land equivalent to his entitlement of 277 units. Abdul Haq P. W. was allotted evacuee land in 1953.

3. On the 4th of December 1956, one Wazir Ali submitted an application to the Colonization Officer to the effect that as Abdul Haq P. W. had been allotted evacuee land in Chak No. 111/J. B., the land in dispute be resumed and be brought on the list of lands available on lease on a tender. On the 22nd of October 1957, the Colony Assistant, Lyallpur, exercising the powers of a Collector, passed the order Exh. P. K/A (printed at page 26 of the paper book) in the presence of the parties, including Abdul Haq P. W. By this order, the' Colony Assistant directed that the land in dispute be resumed and should be brought on the list of "tender leases". This order, however, was not implemented and Abdul Haq P. W. continued to be in possession of the land in dispute.

4. On the 18th of April 1959, one Nawab Din submitted a tender form in respect of the land in dispute. He stated in the application that the temporary allotment of the land in dispute in favour of Abdul Haq P. W. had been cancelled in 1957 and that his tender for the laud in dispute be considered and accepted,

On this application, Malik Amir Bakhsh (P. W. 15), Colony Assistant, passed an order that the land should be brought on the list of "tender leases" and that tenders for it be invited. In pursuance of this order, new tenders were invited for the land in dispute.

5. On the 24th of June 1959, when Ma lik Amir Bakhsh p. W. was camping at Bungalow Kot Khudayar Muhammad Ishaq (p. W. 9), Patwari of the halga, submitted report Exh. P. TT (printed at page 57 of the paper book) stating that the claim of A Abdul Haq P. W. allottee of the land in dispute, had been satisfied by allotment of evacuee land in Chak No. 11/J. B. On this report, the Colony Assistant recorded Abdul Haq's statement who was present at the bungalow, and passed the following order . (Exh. D. E/A, printed at page 57of the paper, book). :‑‑

6. On the 29th of June 1959, Mubarik Ali appellant submitted tender Exh. P. MM/P. MM/A (printed at page 47 of the paper book) which was accepted on the same day and the land in dispute was leased to him. Mubarik Ali appellant' deposited the lease money on the 9th of July 1959 and submitted application Exh. P. NN/P, QQ (printed at page 48 of the paper book) praying that the possession of the land in dispute be delivered to him. Abdul Ghani, Ahlmad Lagan, endorsed the above application that Mubarik Ali's tender in respect of the land in dispute had been accepted and that he had deposited the lease money. The Colony Assistant passed the ,following order which is printed at page 49 of the paper book :-

The attention of Mr. Amir Bakhsh, Colony Assistant, was not drawn to his order Exh. D. E/A dated the 24th of June 1959, either at the time of his accepting Mubarik Ali appellant's tender or at the time of passing the order for delivery of possession. In order to appreciate the point further, it would be advantageous to reproduce the following passage from the statement of Mr. Amir Bakhsh, Colony Assistant :‑

"When I accepted the tender of Mubarik Ali accused, my order dated 24th June 1959 that the land would remain in the possession of Abdul Haq up to Rabi 1960 was not brought to my notice and, therefore, I accepted the tender of Mubarig Ali. Similarly, when I made an order dated 24th of June 1959, at Bungalow Kot Khudayar that the land in dispute should be brought on the list of tenders in Kharif 1960, my previous order on the application of Nawab that the land in dispute be brought on the list of tenders and the tenders be invited was not brought to my notice. The land in dispute was given on tender to Mubarik Ali on 29th June 1959 and he deposited the amount of tender on 9th July 1959, by which date the fifteen days allowed to Abdul Huq had expired and Abdul Huq had not deposited the lagan as directed by me in my order dated 24th June 1959. When the allotment of the land was cancelled in 1957 by the order of my predecessor, dated 22nd October 1957, Exh. P. K/A, the parties viz. Muhammad Ali and Wazir Ali sons of Genda and Abdul Haq P. W. were present but the above order was not implemented nor it was brought to my notice until Nawab made an application in 1959 for taking the land in dispute on tender. Abdul Haq P. W. made two applications Exhs. P. H. and P. J. that the compensation which had been allotted to him for the standing crop was inadequate. These applications were forwarded by me to the Tehsildar for report and necessary action. Since order dated 24th June 1959, was not brought to notice when I accepted the tender of Mubarik Ali on 29th June 1959, therefore, I had no knowledge that the land in dispute was under cultivation of Abdul Haq and some crops had been sown in it. Had it come to my notice that the land in possession of Abdul Haq P. W. was under cultivation and some crops had been sown in it, I would have made a suitable order in the light of the previous order which was made in 1957 cancelling this allotment and the subsequent order dated 24th June 1959."

7. On the 21st of July 1959, Fateh Muhammad Girdawar (P. W. 6) and Muhammad Ishaq Patwari (P, W. 9) went to the land in dispute to deliver its possession to Mubarik Ali appellant Abdul Haq P. W., who had to be dispossessed, was not in the village and his brothers refused to hand over possession. There upon the Girdawar submitted report Exhs. P. QQ/A. P. QQ/B to the effect that he had been unable to deliver possession. This report is printed at page 50 of the paper book.

8. On the 5th of August 1959, the Girdawar and the Patwari again went to the land in dispute accompanied by A. S. I. Ghulam Muhammad (P. W. 24) to deliver possession of the land in dispute to Mubarik Ali appellant. One kanal and eighteen marlas of the land in dispute was lying fallow while the rest of the land had been cultivated. Actual possession of the fallow land was delivered to Mubarik Ali appellant by galbarani (ploughing) while possession of the land under crop was delivered by nishandahi (symbolic possession). It would be advantageous to reproduce the following passage from Fateh Muhammad Girdawar's statement

"Only eighteen marlas of land out of Killa No. 1 and one kanal of land out of Killa No. 4 was vacant. The possession of vacant land was given by qalbarani. possession of the remaining land, which was under cultivation, was given by nishandahi. As regards the cultivated land, Mubarik Ali accused has been informed that he should either pay compensation for the standing crop and take its possession or he should share the produce with Abdul Haa who would be deemed to be a tenant of Mubarik All. 1 have assessed the value of the standing crop at Rs. 1,023."

Exhibits P. QQ/C, P. QQ/C/A (printed at page 51 of the paper book) is the report of the Girdawar regarding delivery of possession.

9. On the 11th and 27th of August 1959, Abdul Haq p. W. submitted applications Exhs. P. H. and P. J. (printed at pages 22 and 23 of the paper book) to the Colony Assistant alleging that the compensation assessed for the standing crop was inadequate and should be enhanced. Mubarik Ali appellant also protested against the order of compensation. According to him he was not liable to pay compensation for the standing crop as would appear from the following report on Mubarik Ali appellant's petition (printed at page 49 of the paper book) :‑

"Petitioner states that he has obtained possession. The Girdawar has proposed that Abdul Haq be paid Rs. 1,023 as compensation for the standing crop. Abdul Haq was an unauthorised person in possession and, therefore, is not entitled to compensation. Mubarik Ali petitioner has attached a copy of the note dated 22‑10‑57 along with his application which shows that the allotment of fourteen acres of land has been confirmed in Abdul Haq's name and for this reason the allotment of the land in dispute in his name had been cancelled. The order was, however, not carried in the register of temporary allotments. The land in dispute was brought on the register of tender leases and thus Abdul Haq was in unauthorised possession. In respect of the previous harvests, the Ahlmad be asked to report.

(Sd.) Abdul Ghani Ahlmad.

29‑8‑1959.

Report of Ahlmad Lagan' is a detailed one. Acting against Abdul Haq for unauthorised cultivation of the land in dispute is suggested. The question of compensation to the lessee would have arisen if Abdul Haq were an allottee. The Girdawar is guilty of partiality. At the time of the deli very of possession he should have prepared a file regarding the unauthorised cultivation and then forwarded it to the Sadr Office for necessary action.

(Sd.) Muhammad Iqbal.

I agree. To come up on 15th September.

(Sd.) Colony Assistant."

On 15th September 1959, one Muhammad Iqbal appended the following note on behalf of the Colony Assistant (page 50 of the paper book) :‑

"This file has been put up today, the presiding officer has gone to Lahore on official business. The file regarding com pensation has been received and has been attached to the file. The report called for under orders of the 30th of August 1959 has not been received. A reminder should be issued. To come up on the 24th of September 1959."

10. The occurrence which is the subject‑matter of the appeal took place in the circumstances which are apparent from the following passage which is being reproduced from the state ment of Abdul Haq P. W. :‑

"On the day previous to the present occurrence, I came to know that Mubarik Ali accused had cut the chari fodder and uprooted the gowara crop by ploughing about four days back. On coming to know of it, I approached Haji Badar Din deceased and told him that Mubarik Ali accused bad cut the chari and had ploughed a gowara field and he should accompany me to ask the accused Mubarik Ali either to pay me the compensation for the standing crop or not to intermeddle with the crops. Consequently, on the evening of the day previous to the day of the occurrence, myself, Haji Badar Din deceased, Hakam Ali, Arshed and Mu4ammad Hussain P. Ws. went to Chak No. 111 and met Muhammad Akbar P. Ws. brother of Nabi Bakhsh Lambardar who was not present at his house. Haji Badar Din asked Muhammad Akbar P. W. that Mubarik Ali accused should be called and the dispute should be settled. On which four or five other persons were called in a Panchayat and Muhammad Akbar P. W. went to call Mubarik Ali accused. But Mubarik Ali refused to come and Muhammad Akbar P: W. told that Mubarik Ali accused had refused to come. Our water turn for the tender land was falling on the following morning and so I returned to my village. When the Panchayat was about to disperse it was suggested to Haji Badar Din by some members of the Panchayat that as there was likelihood of a fight between the parties on the water turn, therefore, Badar Din should stay there and brought about the settlement between the parties. It was pointed out that the accused who had refused to come to the Panchayat would go to take water turn on the following morning and would be available at naka and that Badar Din should meet the parties at the naka for bringing about the compromise. In view of the above suggestion, Badar Din, Hakam Ali.‑ Muhammad Arshad and Muhammad Hussain stayed at Chak No. 111, while I proceeded to my village.

We had to take the water turn at morning‑prayer time and on the following day Shah Muhammad and Wali Muhammad P. Ws. who are my brothers; and myself proceeded to the naka for taking the water turn. On reaching there we took the water turn from Muhammad Shafi P. W. and diverted the water to Killas Nos. 2 and 3 which were sugar‑cane fields. In the meantime, Haji Badar Din deceased, Muhammad Arshad, Muhammad Hussain, Ali Akbar, Muhammad Buta and Hakam Ali P. Ws. were seen approaching towards our naka. Badar Din deceased and the other P. Ws. were told by me that the accused had not come to the naka so far. At that very moment, Mubarik Ali. Shaukat Ali, Muhammad Tufail Zahur Din, Muhammad Sharif, Hashmat and Abdul Aziz accused were seen coming from their own dera. Mubarik Ali and Shaukat Ali accused had rifles, Muhammad Tufail had a barchhi, Muhammad Sbarif accused had a takwa, Zahur Din, Hashmat Ali and Abdul Aziz accused had lathis with them. On coming near us, the accused started abusing me and asked me to leave this land at once. I told them that we would not leave the land unless we were paid the compensation. At that time, Ghulam Rasul P. W. also arrived at. the spot. Mubarik Ali accused exhorted his companions to attack us, on which Zahur Din, Hashmat Ali and Abdul Aziz accused attacked me and my brother Shah Muhammad P. W. and gave us blows with lathis. Myself and my brother Shah Muhammad fell on receiving the blows. We had also lathis with us and we used the lathis in order to save ourselves. The members of the Panchayat asked the accused not to fight but the accused did not hear them. Muhammad Arshad and Hakam Ali P. Ws. came near us to our rescue but Muhammad Tufail, Muhammad Sharif, Zahur Din, Hashmat Ali and Abdul Aziz accused attacked them and gave them blows. MuhammadA Arshad and Hakam Ali P. Ws. also fell on which Badar Din deceased picked up the lath which had fallen from my hand and gave a blow on the head of Zahur Din accused. Zahur Din accused raised an alarm at which Mubarik Ali accused asked Shaukat Ali accused not to wait any further and Mubarik Ali and Shaukat Ali accused fired shots at Badar Din deceased who was hit and who fell down. The accused then went away to‑ their own dera. Badar Din died at the spot. Abdul Aziz, Hashmat Ali, Zahur Din and Muhammad Tufail accused received injuries in that fight. I was taken to the hospital where I was medically examined.

11. The above statement is fully corroborated by Muhammad Akbar (P. W. 10), Shah Muhammad (P. W. 16), Wali Muhammad (P. W. 17), Arshad (P. W. 18), Hakam Ali (P. W. 19), Muhammad Hussain (P. W. 20), Muhammad Buta (P. W. 21) and Ghulam Rasul (P. W. 22). Besides Abdul Haq complainant. Shah Muhammad, Arshad and Hakam Ali P. Ws. received injuries in the occurrence under consideration. Their presence at the spot at the material time cannot, therefore, be denied.

12. Muhammad Akbar P. W. lodged the first information report Exh. P. G. at 7‑15 a.m. and gave all the details of. the occurrence therein. Shah Muhammad and Wali Muhammad P. Ws. are brothers of Abdul Haq P. W. Muhammad Akbar, Arshad, Hakam Ali, Muhammad Hussain and Muhammad Buta P. Ws. are the persons who were trying to bring about a reconciliation between the parties. There is nothing on the record to show that they bad a motive to give false evidence. As already stated, Shah Muhammad, Arshad and Hakam Ali P. Ws. received injuries in the course of the occurrence under consideration and, therefore, their presence at the spot at the material time cannot be denied.

13. Doctor Fazal Ahmad (P. W. 3); who conducted the post‑mortem examination on the 15th of September 1959, at 10‑30 a.m., found the following injuries on Badar Din's dead body .‑

(1) An oblique contused wound, 1 " x 1 " x scalp deep on the right side of the head, 5" directly above the right ‑ear.

(2) An antero‑post contused wound, 1 " x " x scalp deep, on the left side of the head, 2 " above the left ear.

(3) An oval‑shaped bullet wound, 1 x 1", opening in the left upper abdomen, 5 " straight below and left mamma, Just below the costal margin, 4" to the left mid line.

The doctor extracted a bullet from the dead body and forwarded it to the police in a sealed parcel. Death, in the opinion of the doctor, was due to shock and haemorrhage resulting from injury No. 3 which had been caused with a bullet fired from a firearm.

14. Doctor Azhar Ali Khan (P. W. 1) examined the following persons on the 14th of September 1959, and found the injuries noted under their names :‑

Two contused wounds, a contusion and two wounds ; the first two kinds of injury grievous and the wounds were simple.

Five contusions, all but one which was grievous simple and caused by a blunt weapon.

A contused wound, simple and caused with a blunt weapon.

A contused wound and a contusion ; both simple and caused with a blunt weapon.

A contusion, simple and caused with a blunt weapon.

A contused wound and two contusions ; all simple and caused with a blunt weapon.

15. Doctor Zafar Iqbal Bhutta (P. W. 2) examined the following persons on the 14th of September 1959, and found the injuries noted under their names : .

Three contusions, three contused wounds, an abrasion and

a scratch ; all simple and caused with a blunt weapon.,

One contused wound, an abrasion, a contusion and three swellings on different parts of the body ; all except the contusion (which was grievous) were simple and were caused with a blunt weapon.

Three abrasions, two contused wounds and a contusion ; all simple and caused with a blunt weapon.

16. The defence version is born out by the first information report Exh. D. G. which was made by Mubarik Ali appellant on the 14th of September 1959, at 9‑15 a.m., wherein he stated inter alia

"The land is entered in my name in the revenue papers. One and a quarter months after I had deposited the lease money, the Girdawar Qanungo delivered the possession of the land in dispute to me with the help of the police. Since then I am in its possession. Last night it was my turn to irrigate the land in dispute. At 1‑30 a.m., I went to the land in dispute accompanied by Zahur Din, Muhammad Tufail, Hashmat Ali, Shaukat Ali and Abdul Aziz and took my turn of water from Ali Ahmad Jat. I began to irrigate the sugar‑cane cultivated in Killa No. 2. Soon after we had started irrigating the land, Abdul Haq son of Nizam Din, who had been in unauthorised possession of the land in dispute, arrived there. He tried to interfere with our right of irrigating the field but we prevented him. Thereupon Abdul Haq began to abuse and called Ghafur and Hussain. Nine persons responded to Abdul Haq's shout for help. I learnt later that their names are Shah Muhammad, Wali, Ilam Din sons of Nizam Din, Badar Din son of Sharaf Din, Ghafur, Arshad sons of Badar Din, Hakam Ali son of Lekar, Hussain son of Buta and Buta son of Roora, Jats of Chak No. 113/J. B. Ghafur and Hussain were armed with rifles while the others had lathis. Immediately on his arrival, Ghafur fired a shot whereupon we ran to the Chak. I took shelter in the garden of Ali Muhammad son of Fateh Muhammad. The trespassers surrounded my companions and caused injuries to them. Ghafur and Hussain continued firing. Two of my companions namely Zahur Din and Hashmat Ali fell down. Zahur Din shouted mar gaya' whereupon the culprits ran away."

17. At the trial, Mubarik Ali appellant stated :‑

"In fact myself, Shukat Ali, Muhammad Tufail, Zahur Ding Hashmat Ali and Abdul Aziz co‑accused had taken the water turn at 1‑30 a.m. on 14th September 1959 and we were watering the land in dispute when at about 2 a.m., Abdul Haq, Wali Muhammad, Shah Muhammad, Abdul Ghafur, Arshad, Muhammad Hussain, Hakam Ali P. Ws., and Badar Din deceased and Ilam Din and one Buta who is not Buta P. W., came to the land in dispute armed with rifles and lathis. When they were at a distance of about 20 karams from us, Abdul Ghafur and Muhammad Hussain P. Ws., who had rifles, fired shots on‑which we six tried to run away but were surrounded by the above‑named ten persons. I took shelter in an orchard nearby as I was empty‑handed but the other five co‑accused, who were with me and had been surrounded by the above‑named ten persons were attacked and were given blows while the co‑accused gave blows to the P. Ws. in self‑defence. The five co‑accused who were with me had only lathis with them and none of us had a rifle."

Muhammad Sharif, who is a brother of Mubarik Ali, pleaded alibi, while the others stated that Mubarik Ali had explained the circumstances in which the occurrence took place and that their statement was the same. The factum of a fight is admitted by both the parties. It is also admitted that on the complainants' side Badar Din died and Abdul Haq, Shah Muhammad, Arshad and Hakam Ali P. Ws. received injuries, while on the appellants' side Hashmat Ali, Shaukat Ali, Abdul Aziz, Muhammad Tufail and Zahur Din received injuries in the course of the occurrence under consideration.

18. It will be seen from the above statement of facts that the occurrence is admitted by both the parties. Each party claims to have been in possession of the land in dispute at the material time and each party claims to have exercised its right C of defence of property. In the circumstances, the question "who was in de facto possession of the crops standing in the land in dispute at the material time " is of vital importance. The finding of the learned Additional Sessions Judge regarding possession is as follows :‑

"I have carefully examined the evidence on the record relating to the possession of the standing crop at the time of the present occurrence, and I have no hesitation in coming to a conclusion that it‑ stands proved beyond doubt that Abdul Haq was in actual physical possession of the standing crops at the time of the present occurrence." '

The learned counsel for the appellants challenged this finding. He argued that Mubarik Ali was put in possession of the entire land in dispute and the crops grown on it by the Girdawar on the 5th of August 1959. According to the learned counsel symbolic possession amounts to delivery of actual possession. Mr. Sleem, learned counsel for the appellants, argued that .: re were the following two methods. of putting Mubarik Ali appellant into possession of the portion of the land in dispute wherein crops were standing. Mubarik Ali appellant could be 2st,,en possession by indicating the fields which were being handed over to In m or by cutting the crop standing thereon According to Mr. Sleem, the Girdawar indicated the fields which were being handed over to Mubarik Aliappellant and this amounted to putting Mubarik Ali in actual possession of the land in dispute and the crops standing thereon. The following passage, which is being reproduced from the statement of Fateh Muhammad Girdawar P. W., would show that the possession of the standing crop was not transferred to Mubarik Ali appellant :‑

"As regards the land which was under crop, it was directed and Mubarik Ali accused was informed, that he should ",either pay compensation for the standing crop to Abdul Haq and take its possession on payment of compensation money or he should share the produce with Abdul Haq who would be deemed as a tenant while Mubarik Ali would be deemed as a landlord. I assessed compensation for the standing crop on the same day at Rs. 1,023."

A. S. I. Ghulam Muhammad (P. W. 24), who had accompanied the Girdawar at the time of the delivery of possession, stated :‑

"No estimate of the value of the standing crop was prepared at the time in my ‑ presence. The Girdawar did not direct Mubarik Ali in my presence that he had to pay Rs. 1,023 for getting the possession of the standing crop."

Relying on this statement, Mr. Sleem argued that the Girdwar's position that Mubarik Ali appellant had been asked to pay, Rs. 1,023 to Abdul Haq P. W. before taking possession of the crop is an exaggeration. According to him no such direction was given to Mubarik Ali appellant. The argument ignores the fact that Mubarik Ali appellant had himself made an application on the 27th of July 1959 protesting against the order directing him to pay compensation to Abdul Haq P. W. for the standing crops. Even if it be assumed that the Girdawar did not prepare an estimate of the value of the standing crops at the time of the delivery of possession, it cannot be denied that Mubarik Ali appellant knew that he could get possession of the crops only on paying Rs. 1,023 to Abdul. Haq P. W. In fact both parties applied to the higher authorities protesting against the assessed value of the standing crop. There is no evidence showing that Mubarik Ali appellant was put in actual possession of the cultivated area of the land in dispute. The Girdawar stated, and we have no reason to disbelieve him, that Mubarik Ali appellant had been informed that he could take possession of the cultivated area only on payment of Rs. 1,023, the estimated value of the standing crop. There is nothing on the record to show that Mubarik Ali appellant paid or offered to pay the money at any time before the occurrence.

19. In order to appreciate the point further, it would be advantageous to reproduce the following passage from the state ment of Malik Amir Bakhsh (P. W. 15), Colony Assistant‑.‑

"In case the position of Abdul Haq was that of an unauthorised occupant, the standing crop could be confiscated to the state but the standing crop could not be transferred to third person unless those were purchased by that third person through sale by auction."

While answering a Court question, Malik Amir Bakhsh P. W. stated:

"No order was made in the present case confiscating the standing crops to the State which were in existence at the time of the delivery of possession of the land in dispute to Mubarik Ali accused. No proceedings were taken up to levy any penalty to Abdul Haq P. W. for his being in unauthorised occupation of the land in dispute prior to the delivery of possession but on 31st August 1959 it was suggested by my office that penalty should be levied on Abdul Haq who had been an unauthorised occupant and I had agreed with the above suggestion."

The above statement of the Colony Assistant shows clearly that Mubarik Ali appellant had no right over the standing crops grown and raised by Abdul Haq P. W.

20. We have already referred to the order of the Colony Assistant dated the 24th of June 1959 by which Abdul Haq P. W. was allowed to continue in possession of the land in dispute for Kharif 1959 and Rabi 1960: This order had not been cancelled, set aside or modified after a due notice to Abdul Haq P. W. In fact this order was in force on the material date.

Abdul Haq P. W. was in possession of the land in dispute on the basis of the aforesaid order. He had entered upon the land in dispute as a tenant in 1949 and had continued to be in its possession up to the relevant date. Even if it be assumed that the allotment of the land in dispute in favour of Abdul Haq P. W. had been cancelled before the date of the present occurrence, he was not a trespasser in the eye of law. He way; ;i tenant holding over and as such Mubarik Ali appellant, the new lessee, would have no right to eject him by force. He could have ejected him by due process of law. If Mubarik Ali, the new lessee, used force to eject Abdul Haq P. W., the latter had a right of defence under section 97 of the Pakistan Penal Code. This opinion is based on the principle that a tenant holding over has a position recognised by law and he has a right to retain possession of the premises he occupies even against the landlord himself until he is dispossessed in due course of law. See Khushi v. The State (P L D 1960 Lah. 44) and Haji Ghulam Muhammad Azam v. Crown (I L R 43 Bom. 531).

21. Abdul Haq P. W. stated that he had learnt on the 13th of September 1959 i.e., a few hours before the occurrence, that the appellant had cut chari crop and had ploughed the field in which gowara crop was standing. Mr. Sleem argued that the above statement shows that Mubarik Ali appellant had peacefully entered upon 'the land in dispute to which he had title as a lessee, and that such acts on the part of Mubarik Ali appellant dispossessed Abdul Haq P. W. and put Mubarik Ali appellant in possession of the land in dispute and the crops standing thereon. He further argued that any subsequent attempt on the part of Abdul Haq P. W. to oust Mubarik Ali appellant was an act of trespass and Mubarik Ali appellant had the right of using necessary force to oust the trespasser and maintain his possession. Even if it be assumed that Mubarik Ali appellant had cut the chari crop from a portion of the land in dispute and bad ploughed a small piece of the land in dispute, in the absence of Abdul Haq P. W. it would not put him in possession of the entire land in dispute which was under cultivation. A casual act of trespass is not what is protected by section 97 of the Pakistan Penal Code. A trespasser cannot by the very act of trespass immediately and without acquiescence acquire what the law recognises as "possession" against the person whom he ejects and the latter may, if he does not acquiesce, re‑enter and re instate himself provided he does not use more force than is necessary. A trespasser cannot turn his offence into an advantage and plead the right of private defence against the person in de facto possession. Thus a casual act of possession by a E trespasser not acquiesced in by the person in possession would not have the effect of dispossessing the person in de facto possession. Relying on Browne v. Dawson (113 E R 950), Mayne in his Criminal Law of India, 4th Edition, has observed at page 738:‑

A mere trespasser cannot obtain what is known in law as possession by an act of entry or by the continuance of that act so long as the act is disputed and resisted."

Dr. Gour in paragraph 844 of his commentary has stated:

"If A owns a house and leaves it open whilst he goes out for a drive, and B, a thief, walks into it and takes possession during A's absence, B has physical possession but not juridical possession so as to entitle him to legal protection. In fact B riot in such a case in possession at all; for possession in criminal law means at least prior, peaceful and settled possession. If, for instance, on his return, A finding B in the occupation of his house suffers to let him remain in possession, the possession of B would then develop into juridical possession against which A will forfeit the right of private defence."

Juridical possession must be distinguished from a mere act or acts of trespass. If a trespasser is allowed to remain in possession and the owner or party in possession makes no effort to remove him, the trespasser obtains juridical possession on account of acquiescence on the part of the owner. A stray or repeated acts of trespass do not confer any right on the trespasser against the person who was in de facto possession at the time of the trespass. Thus, the possession which a trespasser is entitled to defend against a person in de facto possession must be settled possession extending over a sufficiently long period and acquiesced in by the person ousted, See Muhammad Ali v. Crown (A I R 1949 Lah. 128).

22. The duration and nature of the act of possession which would enable a trespasser to obtain juridical possession depends on the particular facts of each case. The following cases which were not cited at the bar are being referred to by us as these may be helpful in appreciating the point involved in the case:‑

(i) In Chandulla Sheikh v. Emperor (22 I C 993) the complainant's party took possession of some lands of the accused, who had been in peaceful possession of them till such dispossession. The complainant's remained in possession for about fourteen hours and began to erect huts on the land in question stealthily in the darkness of the night. At day‑break, the accused, on coming to know what was happening, came to the place fully armed in order to drive. off the trespassers. The result was a fight between the parties in which members of both the parties were wounded and both were sentenced by the trial Court. On appeal, it was held that the accused were in actual physical possession of the property in question as they took the earliest opportunity to exercise the right of private defence and as the injuries inflicted by them were within the limits allowed by the right of private defence, they were not guilty of rioting.

(ii) In Emperor v. Bandhu Singh (A I R 1928 Pat. 124) it was held:‑

"A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence give himself possession against the person whom he ejects. The owner may, if he does not acquiesce, re‑enter upon the land without delay and re‑instate himself provided he does not use more force than is necessary. His entry will be viewed as a resistance to an intrusion upon a possession which he had never lost."

(iii) In the case of Bindeswari Prasad Singh v. Emperor (46 I C 413), Mulick J, said:

"It is contended by the learned Government Pleader on behalf of the Crown that the petitioner was not in possession, because on the previous day be had been dispossessed by the lessee who had fished to it without molestation. 1f the lessee did fish in the ditch on the previous day that would not constitute dispossession in the eye of law. At the most his act would be a disturbance of possession and there is a distinction ' between dispossession and disturbance of possession, The petitioner being in possession on the day of occurrence, he had a right to oppose the complainant's party by reasonable force."

(iv) The continuance in possession of a trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land to make a claim to it. There is a fresh cause of action each time the owner is resisted. See Emperor v. Bundhu Singh.

23. In view of the authorities given above, Mubarik Ali appellant had not acquired juridical possession by a stray act, namely, the cutting of the charri crop three days prior to the present occurrence. There is nothing on the record to show that Abdul Haq P. W. had acquiesced in Mubarik Ali's this act of trespass. The evidence on the record ratter shows that Abdul Haq P. W. did not acquiesce in Mubarik Ali's intrusion. He at once convened a panchayat to prevail upon Mubarik Ali appellant not to interfere with his (Abdul Haq's) possession of the standing crops. In spite of Abdul Haq's efforts to avoid breach of peace Mubarik Ali appellant trespassed for the second time on the eventful night and attempted to obtain possession of tire crops by irrigating a sugar‑cane field. Mubarik Ali appellant had been given symbolic possession only of the fields wherein crop was standing and not actual possession of the standing crops.

24. In Laxmanrao Narainrao Anjikar v. Emperor (A I R 1934 Nag. 172), the facts were: by a registered deed dated the 2nd of January 1931 Bali Ram leased out two fields to Laxmanrao for seven years and transferred possession to the lessee who showed crop in the fields. By a prohibitory order dated the 28th of November 1930, the judgment‑debtor, Bali Ram, was restrained from alienating his property, On the 31st of January 1931, Bali Ram's abovesaid fields were attached by Mst. Bhagirathibai in execution of her decree against the former. The fields were subsequently auctioned on the 10^th of May 1932 and Mst. Bhagirathibai, the decree‑holder, purchased them for Rs. 200. On the 5th of August 1932, Mst. Bhagirathibai was granted symbolic possession of the fields wherein Laxmanrao's crops were standing. On the 4^th of September 1932 a fight took place between Laxmanrao's men and Mst. Bhagirathibai's servants as a result of which Laxmanrao and his companions were tried for an offence under section 147 of the Penal Code, Laxmanrao's defence was that on the 5th of August 1932 what was obtained by Mst. Bhagira thibai, the decree‑holder purchaser, was only symbolic possession of the fields and that he (Laxmanrao) continued to remain in possession of the crops up to the date of the incident in question when Mst. Bhagirathibai's men, in attempting to take forcible possession of the land, were resisted by his men. It was held that the auction‑purchaser was given only symbolic possession of the fields and. not actual possession of the standing crops and when her servants tried to take forcible actual possession, they were rightly resisted by Laxmanraos party whose crops were standing in the fields and therefore, his men did not commit any offence. Their convictions under section 147 of the Penal Code were set aside.

25. In In re:Mohideen Pichai Rowther and others (A I R 1940 Mad. 43) Pandorang Row, J. held:‑

"The preventing of harvesting of one's crop by persons who have no right whatever. to it, is not unlawful and the mere fact that the party which had no right was actually on the land before the rightful owners could prevent the harvesting of the crop cannot make its entry otherwise than unlawfull and will not make the rightful owner other than persons acting in lawful exercise of their right. The taking of possession in 'these circumstances would not confer any legal right, it would not be possession in the eye of law."

26.. After carefully considering the relevant evidence on the record, we hold that Mubarik Ali appellant had not been given possession of the crops standing in the land in dispute, and that Abdul Haq was in possession of the crops grown and raised by him. According to Mubarik Ali appellant's statement given above, he and his companions went to the land in dispute and began t irrigate it at 1‑30 a.m. on the 14th of September 1959. Abdul Haq P. W. and his companions including Badar Din deceased came there at 2 a.m. (within 30 minutes). It appears that Abdul Haq P. W. and his companions wanted to oust Mubarik Ali appellant and his companions who had come fully armed and this led to a fight in which Badar Din was killed and the members of both the parties received injuries. Mubarik Ali appellant and his companions were better armed. At least one of them had a rifle. They, therefore, had an advantage over Abdul Haq P. W. and his party. Mubarik Ali appellant and his companion were trespassers. Abdul Haq P. W. and his companions, therefore, had a right to maintain their possession of thecrops which, as already held, Abdul Haq had not lost. In the circumstances, Abdul Haq P. W. and his companions were justified in using force. In Horam and others v. Rex (A I R 1949 All. 564), a Division Bench held:‑

"Where a trespasser enters upon the land of another, the person in whom the right of possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force, and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. His action would be covered by the principle of self‑defence embodied in sections 96 to 100, Penal Code, If, on the other hand, the trespasser had already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment, it is not open to the latter to avail himself of the doctrine of self‑defence and by inflicting injuries on the trespasser to re‑acquire possession of his land." (P. 567, Col. 2).

Mubarik Ali and his companions were members of an unlawful assembly as they bad trespassed and had used force to take forcible possession and dispossess Abdul Haq P. W. who was in juridical possession of the crops growing in the land in dispute up to the time of the present occurrence. Thus, Mubarik Ali appellant and his companions were the aggressors.

27. The evidence on the record establishes that Badar Din died as the result of a bullet wound and Abdul Haq, Shah Muhammad, Arshad and Hakam Ali P. Ws. received injuries at the hands of the members of the appellants, party in the occurrence under consideration. The presence of the deceased and the injured P. Ws. at the spot at the material time is admitted by the appellants. The appellants have, therefore, been rightly convicted and sentenced. We, therefore, dismiss the appeal and confirm the sentence of death imposed on Mubarik Ali.

I fully agree with my learned brother that this appeal should be dismissed and the convictions and sentences maintained. I would, however like to add the following.

2. Mubarik Ali appellant and his companions reached the fields at about 1‑30 a.m. with intent to take forcible possession by irrigating the crops standing in the land in dispute. In order to carry out their scheme, they began to irrigate the sugar‑cane field. Abdul Haq P. W., the deceased, and the other injured P. Ws. reached the spot half an hour later, i.e., at 2 a.m. The injuries on the appellants show that Abdul Haq and his companions were armed with lathis. Were they justified in making preparations for meeting the act of aggression by he appellants It is no offence to arm oneself in anticipation of an attack. In Fauzdar Rai and others v. Emperor (44 I C 33

), it was held that where a person in possession of property sees an actual invasion of his rights to that property, if that invasion amounts to an offence under the Code, he is entitled to resist it by force and to collect for that purpose such members and such arms as may be absolutely necessary for this purpose, provided only that there is no time to have recourse to the protection of the police autho rities. In the case before us, there is nothing on the record to suggest that Abdul Haq P. W. and his companions provoked an attack. In fact the evidence shows that Abdul Haq P. W. tried his best to avoid a breach of the peace. In my opinion, Abdul Haq P. W. had no time to seek assistance of the autho rities. If be had, after the act of aggression had commenced, the appellants, in all probability, would have been in complete possession of the land before the arrival of the police. In Pachkauri and anther v. Queen‑Empress ((1)1 LR24Cal.686), the facts were that the accused. on receiving information that the complainants' party were about to take forcible possession of a plot of land, which was found by the Court to be in possession of the accused, collected a large number of men, some of whom were armed, and went through the village to the land in question. While they were engaged in ploughing, the complainants came armed and interfered with the ploughing. A fight ensued in the course of which one of the complainants, party was wounded and subsequently died, and two of the accused party were hurt. It was held that the accused were rightfully in possession of the land and found it necessary to protect themselves from aggression on the part of another body of men, they were justified in taking such precautions as they thought were required and using such force or violence as was necessary to prevent an aggression. It was further held that they could not be held to be members of an unlawful assembly. Thus, where a person is otherwise justified in using force to defend his property against an unlawfull aggression,. he does not lose this right if he prepares and then exercises the right.

A. H.

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