FEROZE DIN Versus AHMAD DIN

Since both the above‑captioned appeals by eave arise out of the same judgment of the High Court, passed on 14‑7‑1980, 1 propose to dispose both of them by this single order. In the former appeal (Criminal Appeal No. 3/M. R. of 1981) the appellant, in the first instance, challenges the acquittal order of the respondents made by the High Court from the offence of murder. Secondly he seeks respondent of sentence recorded against Ahmed Din, Muhammad Din and Abdullah, respondents. In the latter appeal (Criminal Appeal No. 4/M. R. of 1981), moved by Ahmed Din, Muhammad Din and Abdullah, they challenge their conviction recorded by the High Court.

2. In the latter appeal (Criminal Appeal No. 4/M. R. of 1981) the appellants, namely, Ahmed Din, Muhammad Din, and Abdullah, for the murder of one Kar Ali and causing grievous and simple injuries on the person of one Abdul Aziz (complainant), were convicted by the District Criminal Court, Mirpur, on 26‑1‑1980 and sentenced as under:‑‑

(i) Ahmed Din appellant was convicted under section 24 read with section 3 of the Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as the Act) and sentenced to life imprisonment. In addition be was also convicted for causing grievous injuries on the person of Abdul Aziz, P. W. and sentenced to pay Rs. 10,000 as Hakoomat‑e‑Adal under section 15 of the Act ;

(ii) Muhammad Din appellant was convicted under section 24 read with section 3 of the Act and sentenced to ten years' imprisonment for causing injuries on the person of Abdul Aziz witness. He was also convicted under section 15 of the Act and sentenced to pay Rs. 10,000 as 'Hakoomat‑e‑Adal' for causing hurt on the person of Abdul Aziz ;

(iii) Abdullah appellant was convicted and sentenced under section 24 read with section 3 of the Act for two years for causing simple injuries to the deceased and Abdul Aziz. Additionally he was also convicted under section 15 of the Act and sentenced to pay Rs. 5,000 as Hakoomat‑e‑Adal .

3. The appellants went in appeal before the High Court to assail the said conviction and sentence passed against them. The State also moved a revision petition for enhancement of the sentence awarded to Ahmed Din.

4. A Division Bench of the High Court, vide its judgment dated 14‑7‑1980, while accepting the appeal of Ahmad Din appellant acquitted him of the charge of murder but finding him guilty of causing injuries on the persons of Kar Ali deceased and Abdul Aziz complainant recorded a sentence of ten years' rigorous imprisonment against him. However, the High Court, omitted to state the provision of law under which the conviction was recorded. He was, however, acquitted from the charge of 'Hakoomat‑e‑Adal'. The other two appellants, namely, Muhammad Din and‑ Abdullah, were also acquitted of the charge of 'Hakoomat‑e‑Adal', but the sentence of ten years and two years passed against them respectively remained intact: The revision ,petition, filed by the State, was disallowed. These two appeals, as stated earlier, are directed to challenge the said finding of the High Court.

5. Brief facts of the case, as narrated in the judgment of the High Court, are "that, according to the prosecution case, an F. I. R. was lodged with Police Chowki, Iftikharabad, on 27‑4‑1977 at 10‑30 p. m. alleging that the complainant Abdul Aziz was an Ex‑Army personnel and he was given land by military authorities at Manawar. Subedar Kar Ali deceased was also allotted land by the military authorities. On 26‑4‑1977, Abdul Aziz was cultivating his land by a tractor. The said tractor was being operated by Muhammad Siddique driver. Meanwhile, Muhammad Hussain and Muhammad Din came there and told the complainant that the land in which the tractor was being run, belonged to them prior to 1947 and, therefore, they asked the complainant not to till the land. The tractor developed some defect and that was taken to Jalalpur for repairs. On 27‑4‑1977 the tractor was brought back after repairs, and Subedar Kar Ali deceased asked the complainant Abdul Aziz to lend him the tractor so that he may till his land which he had given to accused persons as his tenants because the accused persons were not giving him the share of produce of the land. So the tractor was lent to the deceased and it was being used in the land, when at about 6.30 p.m., the complainant, Muhammad Sharif and Baboo, P. Ws. were called by Kar Ali deceased so as to push the tractor because the tractor was entangled in the land and engine had ceased to function. Consequently, the tractor was pushed and re‑started. The complainant and others were going back when Muhammad Din, Ahmed Din and Abdullah accused came on the spot armed with sticks. Muhammad Din accused asked to take away the tractor from the land because the land belonged to them. On this, the driver of the tractor took the tractor away. Abdullah abused Kar Ali deceased and Ahmed Din gave an injury with his stick at the head of Kar Ali deceased, Muhammad Din accused also gave a stick injury to Kar Ali, at his head while Abdullah appellant gave a stick injury to Kar Ali deceased at his waist. On receiving these injuries, Kar Ali fell down on the ground and all the accused gave him beating with the sticks. After giving beating to Kar Ali, all the three accused started beating the complainant and as a result the complainant fell on the ground. Feroze Ali and Kala, P. Ws. were also attracted to the spot and the accused ran away when they saw Kala and Feroze Ali. Kar Ali deceased expired on the spot."

6. Mr. Muhammad Abdul Khaliq Ansari, the learned counsel for the appellants, during the course of his arguments, abandoned all the points on which leave was granted and made submissions in challenging the validity of the finding of the High Court on two‑fold grounds. In the first instance his case is that the complainant party being the aggressor, the appellants were well within their right to inflict injuries on the persons of Kar Ali (deceased) and Abdul Aziz, complainant, in self‑defence of their property. In alternate it was submitted that even if the finding of the High Court on point No. 1, to the effect that the appellants are liable for causing injuries on the persons of Kar Ali and Abdul Aziz, remains unexceptionable the appellants have already suffered imprisonment of three years and three months and adding their period of judicial lock‑up which comes to two years and nine months, which under section 382‑A of the Criminal Procedure Code is to be counted towards their sentence, the total sentence thus undergone by the appellants comes to six years and this period of sentence in the circumstances of the case would meet the ends of justice.

7. Raja Muhammad Akram Khan, the learned Advocate‑General appearing on behalf of the State, owns the objections listed by Mr. Abdul Khaliq Ansari. As against this Kh. Ali Muhammad, the learned counsel appearing on behalf of the complainant, controverted the arguments advanced by Mr. Abdul Khaliq Ansari and owned by the learned Advocate‑General and submitted that it is not a case of self‑defence of property and that the injuries inflicted by Ahmed Din, appellant, on the head of Kar Ali deceased proved fatal resulting in his death but the High Court in ignoring this fact has misdirected itself to acquit him of the offence of murder. The learned counsel, however, did not contest the finding of the High Court so far the appellants' acquittal from their sentence of `Hakoomat‑e‑Adal' is concerned and in fact shared the view of the High Court that a person cannot be convicted under section 15 as well as under section 24 (I) read with section 3 of the Act.

8. Before examining the merits of the arguments advanced it needs to be stated here that in the absence of the revenue record of the locality of the occurrence (Manawar) especially in the absence of distances of different places in the site plan (Exh. P. F.) prepared by the Patwari, to do substantial justice, inspection of the spot was made by me on 20th of April, 1983, in presence of the learned counsel for the parties. The Patwari, who prepared the site plan, it was stated, is dead and naturally he could not be called upon to explain laches in the site plan. During the spot inspection, Kala, a close relative of the deceased, one of the eye‑witnesses of the occurrence, was only available. The other eye‑witnesses, namely, Muhammad Sharif, Baboo and Abdul Aziz were not present at the spot.

9. After the spot inspection, to do complete justice, I also felt advised to record the statement of Kala. So his statement was recorded on 16th of May, 1983, in the Court Room at Mirpur.

10. The finding of the High Court, it needs to be observed, it appears, has been recorded influenced by the fact that the incident took place when the deceased had already left the field in occupation of the appellants. In the estimation of the learned Judges when the deceased had left the field in possession of the appellants and retreated to another field not in their possession, the appellants had no cause to chase and inflict injuries on the persons of Kar Ali (deceased) and Abdul Aziz, complainant, in the other field. It would be better to quote the learned Judges on the point :‑

There is no doubt that this stands proved on the record that field where the Tractor was being used, was in possession of the appellants. But we have to see whether the appellants acted in self‑defence of their property so as to protect their possession or they acted out of malice and attacked the complainant and Kar Ali deceased to punish them. Abdul Aziz, Muhammad Sharif and Baboo state that appellants attacked Kar Ali deceased and complainant when the tractor has already been taken out of the land and Kar Ali and complainant had gone to other field which was in the possession of Ghulam Farid, as tenant of Kar Ali. According to the statement of these witnesses attack was launched when complainant and Kar Ali deceased had already withdrawn from the disputed field. The perusal of the site‑plan shows that the complainant and Kar Ali had already gone to point No. 5 in the disputed field to point No. 2 situated in another field, when they were attacked and the blood‑stained earth was taken from point No. 1 shows in the site‑plan which is also the field belonging to Kar Ali deceased and was cultivated by Ghulam Farid. It is not the case of the defence that other field where the complainant party was injured was in the possession of the appellants or there was any dispute between the complainant and accused with regard to other field. It has not been established in any way that when the appellants asked Kar Ali deceased to take away the tractor, he offered any resistance or refused to vacate the premises which were in possession of the appellants. The law does not permit to attack a person and to kill him under pretension of right of self‑defence when such person does not offer any resistance. Under section 104 of A. P. C. the right of private defence is circumscribed by the limits mentioned in section 99 of A. P. C. The offence of trespass is a minor offence and in case where the trespasser is unarmed and there is no resistance offered by the trespasser that does not give any justification to the occupier to inflict injuries on the vital part of the body resulting in death. In the instant case, the evidence shows that appellants arrived at the scene of occurrence and they attacked Kar All deceased and the complainant when these two hail already gone out of the field which was in possession of the appellants. Kar Ali deceased was inflicted two injuries on his head one by Ahmed Din and other by Muhammad Din accused while the third one was given by Abdullah appellant at the waist. It is in the evidence that Kar Ali deceased fell after receiving injuries. There are as many as 18 injuries on the person of Kar Ali deceased and 11 on the person of complainant Abdul Aziz.

11. It would thus appear that the whole edifice of the finding of the High Court has been built on the assumption that mere trespass would not be sufficient to attract the well‑known doctrine of self‑defence of property; especially when the trespassers (complainant party in this case) had already made their retreat to another field which was not in possession of the appellants.

12. The proposition propounded by the High Court may not be disputed but 1 feel that the proposition is built up on wrong premises of the facts not born out from the prosecution evidence. The issue will be properly attended at its proper place.

13. In the first instance let us see what is a trespass? Section 441, Penal Code, dealing with trespass, says :‑‑

"Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.

Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence, is said to commit 'criminal trespass'."

It is settled law that the word `Intent', used under this section, is not to be taken as identical with wish or desire. The intention and not wish o desire would constitute the entry criminal. Merely a bona fide entry, therefore, would not constitute an offence. But if the entry is in order to the commission of an offence or when it is to intimidate, insult or annoy, it i trespass and punishable. Thus, the essence of the offence is intent in committing the trespass.

14. Criminal trespass, thus, depends on the intention of the offender and not upon the nature of the act. It is one thing to entertain a certain e intention and another to have the knowledge that one's act may possibly lead to a certain result.

15. What do we mean by `intention'? No hard and fast rule can bed formulated to know the intention. The intention must always be gathered from the circumstances of the case and the matter which is primarily to be considered is the consequences which flow from an act because a man is usually presumed to intend the consequences of his own act.

16. The word `intimidate' in section 441, Penal Code, must be under stood in its ordinary sense, to overawe, to put in fear by show of force or threat of violence and it may include use of force unaccompanied by threat. This section, it should be remembered, is designed to protect possession and the question in whom title to the land or property vests is alien to the D offence under this section. Even an owner of property, therefore, cannot be allowed to take possession of the property by force from a person who, even as a tenant, is in peaceful possession of it and if he does so he commits an offence under section 441, Penal Code.

17. Let me here make a reference once to some of the reported cases on the issue. In Maung San Myin and another v. King Emperor (A I R 1923 Rang. 245) it has been observed:---

"As against this, the accused alleged that complainant had been a mere tenant of the 2nd accused for the last 3 years. Even if this had been true, this would not give the accused a right to re‑enter unless they could show that the tenancy had been determined in accordance with law."

In Khursetji Nanabhoy v. Emperor (A I R 1927 Sind 159) it has been held

Assuming for the moment that the accused was a tenant on sufferance who had come in the quarter by right and had continued to remain by wrong this would not without proof of the requisite intent make his wrongful stay punishable as criminal‑trespass. Mere know ledge on his part that he was likely to cause annoyance would not by itself be sufficient, unless the evidence of such knowledge coupled with the other facts was such as to lead the Court to infer therefrom the requisite intent.

In T. H. Bird and others v. Emperor (A I R 1934 Pat. 158) it has been observed :‑

"We may exclude the so‑called rule that a person is to be presumed to intend the natural consequences of his action, and we may require for intention some definite act of violation; but we must not confuse intention and motive, or say that a person, because he has an ulterior motive does not intend to do what he actually does for the attainment of that ulterior end.

The learned Sessions Judge has found that the petitioners came to oust the complainant forcibly and by intimidation. That is to say, they entered upon the land with intent to intimidate the complainant, and thereby to compel him to give up possession. This is one of the intents

In Baldeo Prasad and others v. Emperor (A I R 1934 Oudh 281) it has been observed :‑‑

"An accused may have a good title to the house in dispute, but he has no legal right to take forcible possession of the house when the complainant is in peaceful possession of the same."

18. Let me now examine the merits of the case, viz. the eye‑witnesses. In the first instance I take up Kala, P. W.

4. Kala, in his evidence before this Court, which even remained unchallenged in cross‑examination, tells us that except two injuries the remaining injuries on the person of Kar Ali, deceased, were inflicted in the field which was in possession of the appellants as tenants of Kar Ali on. It is significant that Kala provides a complete departure from the statement of Haji Abdul Aziz, complainant, an eye‑witness (P. W. 1), Abdul Aziz, during the course of his evidence, stated that the whole incident took place in the field which was in possession of Ghulam Fareed on behalf of Kar Ali. Apart from it, it is also to be taken due note of that the Courts below have omitted to notice that other two eye‑witnesses, namely, Muhammad Sharif (P. W. 2) and Baboo (P. W. 3) also in their evidence do not own the version of Haji Abdul Aziz, P. W. 1, rather their evidence lacks to show that the incident took place in a field in occupation of Ghulam Fareed on behalf of Kar Ali deceased. Even the F. I. R. tells a different story and does not take the deceased and Abdul Aziz to the field in possession of Ghulam Freed. It would thus appear that the evidence of all the eye‑witnesses, except Haji Abdul Aziz, leads to the inference that the incident took place in the field which was in possession of the appellants.

19. The examination of the evidence of eye‑witnesses, it appears, on the whole has not been made in accordance with the settled principles of appreciation of evidence in criminal matters. The scrutiny of the evidence of eyewitnesses, as would be seen presently, would show that the complainant party and especially Kar Ali was the aggressor and they all wanted to take forcible possession of the land in occupation of the appellants by destroying the wheat crop sown by them. Reference here may be made to the statements of three witnesses of the occurrence, namely, Haji Abdul Aziz, P.W.1, Muhammad Sharif, P.W.3. Abdul Aziz, complainant, P.W.1 in cross-examination states:-

Muhammad Sharif, P.W.2 in his cross-examination tells us :-

Similarly Baboo Khan, PW3 states:--

The statement of these eyewitnesses stand corroborated by statement of Kala, recorded by me on 16 th May, 1983. He says:-

20. In view of the above the cumulative effect of the evidence of all the eye-witnesses is and there is no escape but to hold that the complainant party was the aggressor and they took law into their own hands to get possession of the land which since three years was undoubtedly in occupation of the appellants through illegal means. The complainant party, I am convinced, even went to the extent of destroying the wheat crop sown by the appellants by employing the tractor. This aspect of the case escaped the notice of the lower courts.

21. On the premises of the above‑stated grounds I am of the view that Kar Ali and Abdul Aziz, at least, had the intention to intimidate, insult or annoy the appellants when they made the entry on the land. I feel safe to hold so while reviewing the prosecution evidence on the whole. No doubt they did not use the force, but when they were forcibly cultivating the field in possession of the appellants and destroying the wheat crop sown by them the intention to annoy the appellants is apparent and the right of private defence of property to the extent of causing, at least, grievous hurt is available to them. This view prevailed in Baboo and others v. The State (1969 P Cr. L J 533). It has been observed in that case :‑

"In view of what has been stated above, the petitioners had a right of defence their property. 1f it was sought to eject them, the complainant could have resort to the process of law. The learned counsel for the State does not seriously controvert this proposition of law. He, however, says that by inflicting‑the injuries on the calf, which ultimately resulted in the amputation of the leg was declared grievous the petitioners had exceeded the right of private defence. This argument can be rejected for two reasons. One that the law gives a right of private defence of property to the extent of causing at least grievous hurt in case of criminal trespass and two that the injury according to the doctor was initially a simple one and the leg had been amputated because of the development of gangrene."

22. I am, therefore, of the considered view that the appellants were within their rights to cause any injury short of death to Kar Ali and Abdul Aziz complainant in the field which was in their possession.

23. Assuming for the sake of arguments that the appellants were tenants of Kar Ali, the question which would still require determination is as to whether Kar Ali, landlord, had any authority to enter forcibly on the land in possession of tae appellants as his tenants. The answer is in negative. As already stated a landlord who forcibly enters on land in the possession of a tenant, even after the expiry of the lease, and tries to dispossess him is guilty of an offence of criminal trespass, even where the lease gives him the right of re‑entry on its termination. On the point, I may here refer to another case. In Dwarka Singh and others v. Ram Kishun Singh (A I R 1917 Pat. 542), it has been observed :‑

"A landlord who forcibly enters on land in the possession of a tenant after the expiry of the lease and dispossesses him is guilty of an offence under section 447, I. P. C., even where the leas: gives him the right of re‑entry on its termination."

24. The upshot of my whole discussion is that the injuries sustained by Ali, deceased, and Abdul Aziz, complainant, were inflicted in the field in possession of the appellants and, therefore, they cannot be said to have earned any criminal liability for them. I, therefore, hold that the appellants have not exceeded the right of private defence in inflicting grievous injuries on the persons of Kar Ali and Abdul Aziz. The sentences recorded against them, therefore, cannot sustain. In the result, the appeal of the appellants, Ahmed Din, Muhammad Din and Abdullah (Criminal Appeal No. 4/M. R. Of 1981) succeeds. They stand acquitted of all the charges. They shall be released forthwith if not wanted in any other case. The appeal by Feroze Din (Criminal Appeal No. 3/M. R. of 1981) naturally fails.

Appeal accepted.