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Criminal Appeal No. 141 of 1962, decided on 22nd November 1962.

, S. 394 read with Ss. 397, 390 & 391‑Accused attacking complainant and removing money from his pocket under bona fide belief that that money belonged to one of them‑Held, Guilty under S. 394 read with S. 397.

Queen Empress v. Sri Churn Chungo I L R 22 Cal. 1017 and Ghulam Muhammad v. Emperor A I R 1933 Lah. 481 rel.

Mohammad Aman for Appellants.

Ghazanfar Ali Shah, A. A. G. for Respondent.

--‑This is an appeal by Gulistan, Sultan sons of Sohbat, and Umar son of Sultan, residents of village Chitta Batta, Tehsil Mansehra, against their conviction under section 394 read with section 397, P. P. C. and sentence of seven years' rigorous imprisonment and a fine of Rs. 200, or in default to undergo six months' further R. I. each awarded to them, by Mr. Nazir Mohammad Khan, Magistrate 1st Class, Mansehra, with enhanced powers under section 30 Cr. P. C., by his order dated 28th July 1962.

2. Sultan, Gulistan appellants and Ghulam Sarwar complain ant (P. W. 6), who are real brothers inter se are the sons of Mst. Hussan Jan (P. W. 1). Umar appellant is the son of Sultan appellant. Mst. Khewal Jan (D. W. 1) is the wife of Sultan appellant. It is alleged that Gulistan, Ghulam Sarwar, their mother Mst. Hussain Jan and Mst. Khewal Jan, wife of Sultan appellant, were the mortgagees of a piece of land comprised in Khasra Nos. 1185 and 1079, situate in the area of village Chitta Batta belonging to Mulla Faqir. By redemption mutation No. 1541 attested on 14th July 1962 by Sarfaraz Khan, Tehsildar, Mansehra at Sandaasar, the end was redeemed from the above mentioned mortgagees on payment of the mortgage money amounting to Rs. 980/‑ to them by Mulla Faqir mortgagor, certified copy of the mutation Exh. P. B. is on the file. The mortgagees received their respective shares of the mortgage money and the complainant Ghulam Sarwar was paid Rs. 286/‑ which he put in the front pocket of his shirt. After the attestation of the above‑mentioned mutation, Ghulam Sarwar complainant, Mst. Hussain‑Jan (P. W. 1), Gulistan and Sultan appellants, Mst. Khewal Jan and Umar appellant son of Sultan left for their village. On reaching a graveyard on their way, Gulistan and Sultan appellants asked Ghulam Sarwar complainant to hand over Rs. 286/‑ to Sultan appellant to which he was entitled on the basis of a com promise deed dated 26th April 1951, certified copy of which Exh. D. A. is on the file, and which he had received at the time of the attestation of the redemption mutation. Ghulam Sarwar com plainant declined to part with the money which led to an alterca tion between Sultan appellant and the complainant. Gulistan dealt a stick‑blow to the complainant, hitting him on his head. He fell on the ground. He was dealt more stick‑blows by Umar and Sultan appellants. Umar appellant then removed Rs. 286/- from the front pocket of his shirt. The alarm raised by the complainant attracted P. Ws. Sarfaraz, Amir and Wali Dad to the spot and the appellants decamped.

3. The complainant was taken in a wounded condition to Police Station Man sehra, where his report Exh. P. A. was recorded by Mahmud Khan, A. S. I. (P. W. 7). He prepared his injury sheet Exh. B. F. and sent him to the hospital for medical examination. He inspected the spot and prepared the site plan Exh. P. C. From the spot he recovered and took into possession a broken piece of a club Exh. P. 3. He also took into possession the bloodstained torn shirt Exh. P. 4, belonging to the complainant.

4. At Civil Hospital Mansehra, the complainant was examined by Dr. Husain Ali Khan (P. W. 2) on 14th July 1962 at 11‑30 p.m., who found the following injuries on his person:‑

(1) A lacerated wound, 2 x ", scalp deep, 3" above the right ear.

(2) A lacerated wound, 1'x", scalp deep, just behind the left ear on the mestoidal region.

(3) A lacerated wound, 1" x ", skin deep, on the middle of left shin.

(4) Two lacerated wounds, 1 " x ", skin deep, and 1" x " skin deep, on the middle of right shin.

(5) Five bruise marks at the back of left side chest at scapular and sub‑scapular regions and the underlying rib was fractured.

(6) A bruise mark on the lower part of left leg just above the ankle.

The injuries were caused by blunt means.

5. The appellants when examined pleaded not guilty. Umar appellant stated that while returning to the house after the attesta tion of the redemption mutation, Gulistan told Ghulam Sarwar complainant that he should not have taken the share out of the mortgage money, as the land belonged to Sultan appellant. This led to an altercation and during the course of which Ghulam Sarwar complainant hit Gulistan P. W. with the stick, but the blow was warded off by the latter with his own club which was broken. Gulistan then dealt blows with the broken piece of the club to the complainant in his defence.

Gulistan and Sultan appellants stated that on the death of their father, their mother, Mst. Hussan Jan, had excluded Sultan from having a share in the land, and consequently the latter brought civil suit, which was, however, compromised. On the day of occurrence, they were returning from Sandasar to their village after the attestation of the redemption mutation and on the way Gulistan told Ghulam Sarwar complainant that he should not have taken the share out of the mortgage money, as the land belonged to Sultan appellant. An altercation ensued between him and the complainant, during the course of which the complainant gave a blow with the club to Gulistan, but he warded it off with his club Exh. P. 3, which got broken and with the broken part of the culb he dealt blows to Ghulam Sarwar complainant in the defence of his person. Mst. Khewal Jan, wife of Sultan, was examined as D. W. 1.

6. This appeal had originally come before one of us and was referred to a Division Bench as an intricate question of law is involved.

7. The evidence adduced by the prosecution shows that the land comprised in Khasra Nos. 1185 and 1079, belonging to Mulla Faqir, was redeemed by mutation No. 1541 from Gulistan, appellant, Gbulam Sarwar complainant, Mst. Hussain Jan (P.W. 1) and Mst. Khewal Jan (D. W. 1) on 14th July 1962, i.e., the day of the occurrence, on payment of Rs. 980 by the mortgagor to the mortgagees. According to the prosecution version, the complain ant Ghulam Sarwar was paid Rs. 286 as his share of the mortgage money. After the attestation of the above‑mentioned mutation, the mortgagees along with Sultan and Umar appellants were on their way to their house and on reaching a graveyard the complainant was attacked in the manner as described in the beginning of the judgment.

8. The defence version, however, is that the removal of the money from the shirt of Ghulam Sarwar complainant did not amount to theft, but was effected under the bona fide belief that it did not belong to Ghulam Sarwar, but actually belonged to Sultan appellant. In support of this contention, the learned counsel for the appellants relied upon a compromise dated 26th April 1951, which is on file No. 161/1 instituted on 2nd April 1951, certified copy of which is Exh. D. A. On the basis of this compromise, Sultan, one of the appellants, was allotted the mortgage rights in the land known as Gadanwali of which Mulla Faqir was the mortgagor. Theft defined in Section 378 P. P. C. is to the follow ing effect :‑

Whoever, intending to take dishonestly any movable pro perty out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

The definition of the word "dishonestly" in section 24 P. P. C. is to the following effect

"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly"'

9. There is not much force in the arguments addressed by the learned counsel for the appellants. It is true that according to the compromise deed, certified copy of which is Exh. D. A., Sultan appellant was entitled to the money, yet he had no right to take it by force, i.e., by taking the law into his own hands, and thus recovering it by unlawful means, as contemplated by section 23 P. P. C., by forcibly snatching it from the complainant and, therefore, causing him wrongful loss in the meaning of section 24 P. P. C. The principle laid down in a Full Bench case of the Calcutta High Court referred to hereafter applied to the case. It was held by a Full Bench in the case reported in Queen Empress v. Sri Churn Chungo (I L R 1922 Cal. 1017) that a creditor by taking any movable property of his debtor from the debtor's possession without hi consent with the intention of coercing him to pay his debt com mits the offence of theft as defined in section 378 of the Penal '4 Code. In our opinion, the act of the appellants in removing the money from the pocket of the complainant was unlawful and it cannot be said to be covered by proper bona fide claim. In this view of ours, we are fortified by Ghulam Muhammad v. Emperor (A I R 1933 Lab. 481(1)). The facts giving rise to the above‑mentioned authority are that there was a house in the abadi which was in the occupation of Dhanu Ram alias Ghulam Muhammad.

He first mortgaged it in 1922 and then sold it in 1928 to Sewa Ram, who took possession of the house and con tinued to remain in possession. A shisham tree stood in the court yard and this vas also sold. Sewa Ram felled it and cut it into fourteen logs of various sizes which he stacked in the courtyard of the house. Ghulam Muhammad claimed that the proprietors of the village were entitled to all trees grown in the village site. He accordingly along with three others went to the courtyard of the house in question and removed the stacked timber therefrom. Ghulam Muhammad along with the three others was convicted. It was held that the act of the petitioners was unlawful and was not covered by a proper bona fide claim as they had taken the law into their hands and had removed the property in question from the possession of the opponent.

10. The authorities referred to above are applicable to the case and the act of the appellants in removing the money from the pocket of the complainant was unlawful and was not covered by a proper bona fide claim. We accordingly maintain their conviction and sentence and dismiss their appeal.

K. B. A. Appeal dismissed

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