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Petitioner: KHAN MUHAMMAD VS Respondent: THE STATE
P L D 1960 (W
P L D 1960 (W. P.) Lahore 218
Before Abdul Aziz Khan and Muhammad Shafi, JJ
KHAN MUHAMMAD and others‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 104 of 1959, decided on 22nd October 1959.
(a) Criminal Procedure Code (V of 1898)-----S. 342‑Excul patory statement of accused‑No portion found to be false Statement should be taken as a whole : [Muzaffar Khan v. The State P L D 1956 Lah. 1045 ref.]
(b) Penal Code (XLV of 1860)-----S. 105 read with Ss. 100, 103 Right of private defence of property‑Against theft‑Extent " Till offender has effected his retreat with the property" "Retreat"‑Meaning‑Length of distance traversed by offender immaterial‑Offender effects his "retreat" when he reaches his place of safely or is completely out of reach of pursuers.
The prosecution case was that a month before the occurrence A, and M (appellant) exchanged bullocks. Twenty days after the exchange, A asked M to cancel the exchange and restore the animals to which M did not agree. Three or four days later, A with his party went to the house of M and forcibly brought away the bullocks which A had given in exchange. According to the prosecution, M appellant with his party formed an unlawful assembly and went to the dera of one of A's party and there assaulted A and others, in order to avenge the high handed act of A in forcibly taking away the bullocks which he had given to M in exchange, which resulted in death of two persons of A's party.
The defence version was that A's party forcibly removed the bullocks on the day of the occurrence in the absence of M, who, on being informed of the removal by his son, went, along with men of his party, in pursuit of A's party, overtaking the latter before they had reached their dera. M and his party stopped A's party whereupon, the two deceased persons assaulted M and his party with spears. The latter retaliated and then there was a free fight.
On facts the defence version was preferred to the story put forward by the prosecution. The question, however, was, whether A and his party had effected their retreat and M and his party had no right of private defence of property given by section 105, P. P. C. read with section 103, P. P. C.
Held, that the forcible removal of bullocks by A's party amounted to theft.
Further, that A and his party had not yet effected their retreat and the right of private defence of property on the part of M and his party still subsisted.
M and his party having been assaulted by men of A's party with spears, the former had the right of private defence, under section 100, P. P. C. which right they had not exceeded.
The length of distance traversed by the offenders after the theft was immaterial. So long as the thieves had not reached their destination, the right of the owner of the stolen property to pursue and to take steps to recover the property subsisted.
Jarha Chamar v. Surit Ram 3 N L J 177; Punjabrao Sadasheo Deshmukh and others v. Emperor A I R 1945 Nag. 269; Prag and others v. Emperor A I R 1942 Oudh 256 ; Niamat and others v. The Crown A I R 1925 Lah. 117 and Mir Dad and others v. The Crown 1 L R 7 Lah. 21 ref.
It was difficult, in fact dangerous, to lay down the precise meaning of the phrase "effected his retreat with the property". Its meaning will vary with the different cases. The phrase should be understood and interpreted as the material conditions and the particular situation in time and place in each case permit. Ordinarily, if the offender has reached the place of his safety along with the stolen property and is completely out of the reach of his pursuers, then he will be taken to have `effected his retreat with the property'.
M. Saleem and Maqbul Ahmad for Appellants.
R. A. Jeremy for A. G. for Respondent.
Pate of hearing : 22nd October 1959,
JUDGMENT
ABDUL AZIZ KHAN, J.‑-----Khan Muhammad son of Hayat, Ali son of Muhammad, Muhammad son of Ahmad, Muhammad son of Naman, and fourteen others, were jointly tried by Mr. Hameed Ullah, Additional Sessions Judge, Sargodha, under sections 148, 302/149 and 307/149 of the Pakistan Penal Code. The allegations against them were that, on the 3rd of October 1957, at sunrise, they had formed an unlawful assembly in the area of Chah Muhammad‑Khanwala, and in the prosecution of the common object of that assembly had murdered Hayat son of Naman, and Hayat son of Raja, and had caused injuries to Khan Muhammad (P. W. 5), Muhammad Nawaz (P. W. 6), Ata Muhammad (P. W. 7), Ahmad son of Hayat (P. W. 8), and Ahmad son of Amir (P. W. 9). The learned Additional Sessions Judge acquitted the others but convicted Khan Muhammad, Ali, Muhammad son of Ahmad and Muhammad son of Naman, and sentenced them as under :‑
1. Khan Muhammad
To death each under section 302/34, and to three years' R. I. each under section 326/34, P. P. C. The sentence of imprisonment is to take effect if the death sentence is not confirmed by this Court.
2. Ali
The sentence of imprisonment is to take effect if the death sentence is not confirmed by this Court.
3. Muhammad son of Ahmad
To transportation for life each under
4. Muhammad son of Naman
section 302/34, P. P. C. and to, three
The condemned persons 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 sentences.
2. Briefly stated the prosecution case is that a month before the occurrence under consideration, Ata Muhammad (P. W. 7) and Muhammad son of Naman appellant exchanged bullocks. Twenty days after the exchange, Ata Muhammad P. W. asked Muhammad son of Naman appellant to cancel the exchange and restore the animals to which the appellant did not agree. Three or four days later, Khan Muhammad (P. W. 5), Muhammad Nawaz (P. W. 6), Ata Muhammad (P. W. 7) and others went to the house of Muhammad son of Naman Appellant and forcibly brought away the bullocks which Ata Muhammad P. W. had given in exchange. According to the prosecution, the four appellants and fourteen others (who have been acquitted) formed an unlawful assembly and went to the dera of Khan Muhammad P. W., a cousin of Ata Muhammad P. W., and killed Hayat son of Naman (father of Ata Muhammad P. W.) and Hayat son of Raja, and caused injuries to Khan Muhammad, Muhammad Nawaz, Ata Muhammad, Ahmad son of Raja, and Ahmad son of Amir P. Ws. in order to avenge the high‑handed act of Ata Muhammad P. W. in forcibly taking away the bullocks which he had given to Muhammad son of Naman appellant in exchange.
3. The prosecution case is that, on the 3rd of October 1957, at sunrise, the two deceased persons and Ahmad, Khan Muhammad, Muhammad Nawaz, Ata Muhammad, Ahmad son of Hayat and Ahmad son of Amir P. Ws. were smoking huqqa at Chah Muhammadwala, which is owned by Khan Muhammad P. W., when the appellants and those who have been acquitted came armed with spears, hatchets and dangs and attacked them. Hayat son of Naman and Hayat son of Raja, the two deceased who had spears, acted in self‑defence and caused injuries to their assailants. In the course of the incident, the two Hayats died instantaneously at the spot as a result of the injuries sustained by them, and Khan Muhammad, Muhammad Nawaz, Ata Muhammad, Ahmad son of Hayat and Ahmad son of Amir P. Ws. received injuries at the hands of their assailants. One the side of the appellants, Ali, Khan Muhammad and Muhammad son of Ahmad appellants received injuries at the hands of the complainants' party who, according to the prosecu tion, acted in self‑defence.
4. Ahmad son of Naman (P. W. 4) went to Police Station Nurpur Thal, which is at a distance of 24 miles from the scene of occurrence, and lodged the first information report Exh. P. A. on the 3rd of October 1957, at 3‑30 p.m.
5. Sub‑Inspector Hameed Asghar (since died) went to the spot, prepared the inquest reports and despatched the dead bodies of the two Hayats to the mortuary for post‑mortem examinations. He prepared the injury statements of the injured P. Ws. and collected bloodstained earth from two places and sealed it into a parcel vide memo. Exh. P. B. According to the prosecution, the appellants and their companions produced the weapons of offence before the Sub‑Inspector who took them into possession.
6. Doctor Akhtar Alim Hashmi (P. W. 3), who conducted the post‑mortem examination on the 4th of October 1957, at 1‑30 p.m., observed three contusions, one scratch, one incised wound and a lacerated wound on the dead body of Hayat son of Naman deceased. On dissection, the doctor observed a depressed fracture, 1 " x " , on the right frontal bone of the head. Membranes and brain were depressed and congested. The doctor also observed that the ribs on the right side had been fractured and had punctured the liver. He further observed that three of the injuries were individually fatal.
7. The same doctor, on the same day, performed the post mortem examination on the dead body of Hayat son of Raja and observed two incised wounds, three stab wounds, seven abrasions, two lacerated wounds, a contusion and a scratch. On dissection, the doctor found that the membranes and the brain had been cut and depressed. He also found that the liver had been punctured and the abdominal cavity was full of blood. Death, in the opinion of the doctor, was due to shock and haemorrhage resulting from the injuries to the brain and the liver.
8, Doctor Mian Muhammad (P. W. 1) examined the following appellants on the 3rd of October 1957, at 3 p.m., and observed the injuries under noted their names‑:‑
(1) Ali:
Two incised punctured wounds and an abraded contusion.
One of the injuries, which had been caused with a sharp‑pointed weapon, was grievous in nature.
(2) Khan Muhammad
Three incised punctured wounds, one scratch and a con tusion. According to the doctor, one of the injuries, which had been caused with a sharp‑pointed weapon, was grievous.
(3) Muhammad son of Ahmad
One scratch mark and two contused wounds; all simple and caused by a blunt weapon.
9. Doctor Zahir Husain Shah (P. W. 3), examined the following prosecution witnesses on the 4th of October 1957, at 3‑30 p.m., and observed the injuries noted under their names :‑
(1) Khan Muhammad (P. W. 5)
Twelve contusion marks, two contused wounds, and a scabbed abrasion. All the injuries which were simple in nature had been caused with a blunt weapon.
(2) Muhammad Nawaz (P. W. 6)
Four scabbed abrasions; all simple and caused with a blunt weapon.
(3) Ata Muhammad (P. W. 7)
Eleven contusion marks, five scabbed abrasions, one con tused wound and two punctured wounds. One of the injuries, which had been caused with a blunt weapon, was grievous in nature.
(4) Ahmad son of Hayat (P. W. 8)
Seven contusion marks, one contused wound, one punctured wound, and a scabbed abrasion; all simple in nature.
(5) Ahmad son of Amir (P. W. 9):
Five scabbed abrasions, one contused wound, five punctured wounds, and six contusion marks. Two of the injuries, which had been caused with a sharp‑pointed weapon, were grievous in nature.
10. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad son of Naman appellant stated at the trial :‑
"On the morning of the day of occurrence, the five injured P. Ws. and the two deceased came to my dera in my absence and forcibly took away the bullocks which Ata Muhammad P. W. had given to me in exchange. My son Ahmad informed me about this and taking along the co‑accused Khan Muhammad, Ali and Muhammad son of Ahmad and a few co‑villagers, .I pursued A4 Muhammad and his companions. My son also informed me that this party was armed with spears and dangs. We also armed ourselves with a hatchet, spears and dangs. We overtook Ata Muhammad and his companions before they could reach the dera of Khan Muhammad and we stopped them. At this the two deceased who were armed with spears, assaulted the co‑accused Khan Muhammad and Ali with these weapons. We retaliated and there was a free fight."
While explaining his injuries, Ali appellant stated at the trial:--
"I also pursued Ata and his party P. Ws. at the instance of Muhammad son of Naman accused. On our taking over I was attacked by Hayat son of Raja deceased with his spear and I hit him back in self‑defence."
Khan Muhammad and Muhammad son of Ahmad appellants made similar statements.
11. It will be seen from the above statement of facts that there are two divergent versions in this case. The sole question for determination is which of the two versions is true.
12. The prosecution witnesses and the deceased persons are closely related to each other. Ata Muhammad (P. W. 7) and Ahmad (P. W. 8) are the sons, and Ahmad (P. W. 4) is a brother of, Hayat son of Naman deceased. Khan Muhammad (P. W. 5) and Muhammad Nawaz (P. W. 6) are the nephews of the deceased person. Hayat son of Raja deceased was married to the niece of Hayat son of Naman deceased. Ahmad son of Amir (P. W. 9) is a cousin of Hayat son of Raja deceased and is married to the sister of Khan Muhammad (P. W. 5). Thus, as already stated, all the prosecution witnesses are related inter se and are thus interested witnesses. No disinterested person was examined by the prosecution in support of its case.
13. At the trial, the prosecution witnesses stated that they have their houses at a short distance from Chah Muhammad Khanwala, the scene of occurrence. It appears that they were led to make these statements in order to establish that they had assembled at the Chah at the material time not by design but innocently. They were, however, confronted with their previous statements which showed that their houses are at con siderable distances from the said Chah. Ahmad (P. W. 4) stated that the two deceased Hayats were, at the time of the alleged attack on them, armed with spears. It is increditable that the five injured prosecution witnesses and the two deceased persons who were armed with spears had assembled at the Chah innocently. The learned Additional Sessions Judge did not rely on the evidence of the P. Ws. who, in his opinion, were interested persons, and had improved upon the prosecution case at the trial, as would appear from the following passage occurring in his judgment:
"There is no independent witness in corroboration of the above evidence and the conduct of P. Ws. has not been favourable to them. It is significant to note that according to the facts appearing in the cross‑examination of P. W. 4, the complainant party has implicated each and every male adult from the different families to which the accused belong. The parts now assigned to the different accused were not so assigned either in the first information report or in the statements made by the P. Ws. before the police. The first information report Exh. P. A. is completely silent in this respect and what the P. Ws. stated before the police and with which they were con fronted in the witness‑box is as below :‑
Khan Muhammad:
Ali accused attacked Hayat son of Raja with a spear.
Muhammad Nawaz :
Ali attacked Hayat son of Raja and Amir son of Ahmad attacked Hayat son of Naman with their respective spears.
Ahmad son of Hayat :
Ali and Nadir attacked Hayat son of Raja.
It is evident from the above that the assignment of parts now made by the P. Ws. is an improvement of the case and their testimony alone cannot, therefore, form the basis of decision."
The above finding of fact was not challenged before us, and I see no reason to differ from the learned Additional Sessions Judge.
14. As regards the defence version, the learned Additional Sessions Judge held that Ata Muhammad P. W. forcibly removed the bullocks from the house of Muhammad son of Naman appellant on the eventful day and not twenty days before the occurrence, as alleged by the prosecution. The following passage, which is being reproduced from his judgment, would throw light on this point: ‑
"With regard to the bullock affair, the parties agreed that there was an exchange of such animals between the accused Muhammad son of Naman and the P. W. Ata Muhammad and that the accused did not allow the animals to be taken away when he was asked by Ata Muhammad P. W. to cancel the transaction. The parties further agreed that the bullocks were forcibly brought back from the house of the accused Muhammad son of Naman in his absence. It is the defence version that when the accused was informed by his son that the bullocks had been forcibly taken away by Ata Muhammad and others, who were armed with deadly weapons, he and the co‑accused Khan Muhammad, Ali and Muhammad son of Ahmad and a few co‑villagers, pursued the other party after having armed themselves with a hatchet, spears and dangs and stopped that party before it could reach Khan Muhammad's dera with the result that a free fight ensued between the two parties when the two deceased assaulted the accused Khan Muhammad and Ali. The accused contended that they suc ceeded in stopping the persons taking away the animals before they could reach the dera of Khan Muhammad P. W. and that the fight took place at a place other than stated by the prose cution, but there is no evidence in support of this contention, and moreover the collection of bloodstained earth from near the dera of Khan Muhammad speaks of the place where the occurrence took place. The defence contention that Ata Muhammad P. W. and his party removed the animals on the day of occurrence and not on any previous day is however not without force, because the prosecution evidence in this respect is not satisfactory and moreover the matter was such that it should have attracted immediate retaliation by the accused Muhammad son of Naman. According to Khan Muhammad (P. W. 5) and Muhammad Nawaz (P. W. 6), the bullocks were removed from the house of the accused Muhammad son of Naman about a month before the occurrence, but Ata Muhammad (P. W. 7) ‑ differed and stated that it was done within a few days of the occurrence."
This finding also was not challenged before us, and on considering the evidence and the material on the record, I see no reason to differ from the learned Additional Sessions Judge.
15. In spite of the above conclusions; the learned Additional Sessions Judge proceeded to convict the appellant's who had admitted their participation in the occurrence under consideration. The learned Additional Sessions Judge has taken an erroneous view of the law. When there is nothing on the record to show that any portion of the exculpatory statement of an accused person is false, it has to be taken as a whole. See Muzaffar Khan v. The State (P L D 1956 Lah. 1045). If the statements of the appellants are accepted as a whole, they had apparently gone in pursuit of the bullocks which had been forcibly removed by Ata Muhammad and others from the dera of Muhammad son of Naman appellant. The statement of Muhammad son of Naman appellant shows that Ata Muhammad P. W. and others removed the bullocks in Muhammad's possession shortly before the occurrence. On being informed of this loss, he and the other appellants went in pursuit of the bullocks. The removal by Ata Muhammad P. W. and his companions of the bullocks from Muhammad appellant's A possession clearly amounted to theft.
16. The question for determination then is whether the pursuit of the thieves, while they were in the act of taking away the stolen bullocks, fell within the ambit of section 105 of the Penal Code. The material portion of this section reads :‑
"The right of private defence of property against theft continues (i) till the offender has effected his retreat with the property or (ii) either the assistance of the public authorities is obtained or (iii) the property has been recovered."
The point is not free from difficulty. Divergent views have been expressed about the exact scope of the words "the offender has effected his retreat with the property". The earliest reported case on the subject is that of Jarha Chamar v. Surit Ram (3 N L J 177). The learned Additional Judicial Commissioner took the extreme view of the law as would appear from the following observations in his judgment:‑
"If A runs away with B's watch, B may chase him until he effects his escape, but the right of self‑defence does not end with the escape, as the Sessions Judge seems to have held. If B sees A in the street the next day, the next month, or the next year, wearing the stolen watch, B may forthwith seize A and recover his watch, using for the purpose as much force as the case allows. If a policeman should be at hand, B's proper course would be to hand A over to him and let him recover the watch. But B is not bound to put off the capture of A until he can find assistance from public authority. Again, suppose that on a day after the theft thereof, B sees his watch lying on a table in a house or garden. If he can get the assistance of a policeman without losing sight of it no doubt he would be bound to do so. But he would be under no legal obligation to risk a further loss or removal of the stolen property for the purpose of having recourse to the public authorities. If the circumstances are such that immediate seizure seems to offer the only reasonable prospect of recovery, B is entitled to enter the house or garden and recover his watch. The capture of the thief would not be an assault in the one case, and the entry into the house or garden would not be a criminal trespass in the other."
The view of the law did not, however, find favour with Pollock, J., in Punjabrao Sadasheo Deshmukh and others v. Emperor (A I R 1945 Nag. 269).
17. Benett, J., considered the scope of section 105 in Prag and others v. Emperor (A I R 1942 Oudh 256). The facts of the case were that in the course of what was held to be illegal attachment of certain heads of cattle, the party effecting the attachment had proceeded 15 to 20 paces with the attached cattle when they were attacked by the owners. It was held that the party effecting the attachment had not effected their retreat with the property within the meaning of section 105.
18. In Niamat and others v. The Crown (A I R 1925 Lah, 117) the facts of the case were that M, with his son R, was asleep in his courtyard. M found the accused taking out his cow. M and R followed the thieves and R struck one of them with a dang. The thieves fell upon R and caused him severe injuries. Two days later, R died in the hospital. The thieves were convicted under sections 457 and 304, Part II of the Penal Code. In regard to the conviction under section 304, Part 11, it was urged that the thieves had already retreated with the stolen property and that under section 105, R was not justified in striking one of them with a dang. It was contended that the thieves had acted in their self‑defence. It was held that R attacked the thieves before they had effected their retreat with the property as his attack actually prevented the completion of such retreat and that the thieves could not, therefore, plead the right of self defence.
19. In Mir Dad and others v. The Crown (I L R 7 Lah. 21), eleven heads of cattle belonging to the accused party were stolen from Chak No. 12 in the Jhang District on the night of the 1st of August 1924. Next morning, the owners pursued the thieves to their village. It was held that the right of private defence of property had been put an end to by the successful retreat of the thieves. LeRossignol, J's. following observation at page 26 of the report is noteworthy:‑--
"Now, in this case on the showing of the appellants the stolen cattle had been removed from the scene of the theft long before the tracking party set out from their Chak, and on their own showing if the complainants were the thieves the stolen cattle had reached the thieves' village; in other words, the thieves had effected their retreat with the stolen property, and even if the accused did see their cattle in the complainant's village they were not justified in using violence to recover those cattle."
Fforde, J's. following observation at page 28 of the report also deserves consideration :‑
"According to that section (section 105) the right of private defence of property against theft, that is to say, the right of the owner of the property to recover the stolen article from the theft by violence only continues until‑
(1) The offender has effected his retreat with the property ; or
(2) either, (a) the assistance of the public authorities is obtained ;
or (b) the property has been recovered.
In other words, if the thief has effected his retreat with the property, or if the assistance of the public authorities has been obtained, or if the property has been recovered, the owner of that property has no right to proceed with violence against the thief. To take the illustration given in the authority referred to. If A runs away…
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