TUFAIL AND 2 OTHERS Versus THE STATE

ORDER

Muhammad Latif, Tufail and Mst. Nawab Bibi, petitioners were tried for an offence under section 332, P. P. C. by the Addl. District Magistrate; Sialkot. All of them were found guilty. Muhammad Latif and Tufail were sentenced to one and a half years each while Mst. Nawab Bibi was sentenced to pay a fine of Rs. 200 only and in default to undergo four months' R. I.

2. The petitioners filed an appeal which was partly accepted inasmuch as the, sentence of Muhammad Latif. and Tufail were reduced to six months' R. I. each but the appeal with regard to Mst. Nawab Bibi was dismissed and the fine of Rs. 200 was ordered to be maintained. All three of them have now filed the present petition.

3. The facts of the prosecution case briefly stated are that Inayatullah P. W. filed a suit for recovery of some money against Tufail petitioner. The suit was decreed in his favour and a decree‑ of Rs. 40.25 was passed against Tufail petitioner. In the execution proceedings a warrant of attachment for the decretal amount was issued from the Court of Tehsildar, Shakargarb, and was entrusted to Ghulam Muhammad bailiff for execution on Tufail petitioner. On the 27th of: March 1963, Ghulam Mohd. bailiff, accompanied by Inayatullah P. W. 2, went to the house of Tufail petitioner to execute the decree and attached one she Buffalo and its calf belonging to , the latter, which was the property mentioned in the warrant. He untethered the buffalo and proceeded to take it away along with its calf when the three petitioners turned up and assaulted Ghulam Mohd. bailiff and forcibly recovered the cattle from him. Three simple injuries were caused to Ghulam bailiff. The petitioners were caused prosecuted for an offence under section 332, P. P. C., with the result mentioned above.

4. The learned defence counsel contends that the proper procedure as provided under Order XXI, rule 43, C. P. C. was not followed by the bailiff in making the attachment in question and secondly that milch animals could not be attached in execution of money decree as provided by section 8 of West Pakistan Relief of Indebtedness Ordinance, 1960, as well as clause (c) dig subsection (f) of section 60, C. P. C. as amended by Acts XII of 1940 and VI of 1942.

He argues further that in view of the fact that the warrant of attachment was itself an illegal document, the bailiff was not protected and the petitioners were not liable to be prosecuted under section 332, P. P. C. Learned counsel for the State concedes this position and does not contest.

5. The contention of the learned defence counsel is supported by Thakur Tanti v. The State (A I R 1964 Pat. 493), Narsayya Lachmayya v. The State (A I R 195.3 Nag. 292), D. Madar Sahib v. Emperor (A I R 1930 Mad. 430(1)) and Bhikugir and another v. Emperor (A I R 1932 All: 449).

6. The learned State counsel submits that the petitioner‑ were in any case liable under section 323, P. P. C. for having caused simple injuries to the bailiff. This contention overlooks the fact that the petitioners acted in defence of their property which 8 was being illegally carried away by the bailiff. It has been held m A I R 1961 Pat. 493, already cited above, that the offence in such case cannot be altered from section 332, P. P. C. to an offence under section 323, P. P. C:

7. In view of the above‑mentioned discussion this revision petition is accepted. The fine, if paid by Mst. Nawab Bibi petitioner shall be refunded to her.

Petition accepted.