Anwarul Haq, C. J.--The appellant Barkat has been convicted under section 302, P. P. C. by Mr. Muhammad Khurshid, Additional Sessions Judge at Sahiwal, and sentenced to undergo transportation for life for the murder of his co-villager Taj Din at 4 p.m. on the 21st of November 1966 in the area of Killa No. 7 of square No. 44 in Chak No. 5/1 R. A. in the jurisdiction of Police Sation Renala Khurd. The matter was not immediately reported to the police as some sort of a compromise had been effected between the injured man Taj Din and the .appellant. However, when Taj Din's condition worsened, he was taken first to the Civil Dispensary at Renala Khurd and then removed to the Civil Hospital at Okara where he died at midnight on the 23rd of November 1966. First information report was lodged with the police at 7-45 p.m. that day by Taj Din's son Muhammad Ashraf (P. W. 8). The F. I. R, was recorded by Sub-Inspector Malik Muhammad Nawaz (P.
W. 12), who proceeded to the hospital and recorded the dying statemant of Taj Din at 9 or 10 p.m.
2. It is alleged that at the time the incident took place Muhammad Ashraf was digging earth from Killa No. 7 of square No. 44 belonging to one Babu Ali Bakhsh. The earth was required by Muhammad Ashraf and his father Taj Din for plastering their house. The appellant Barkat, who has his residential Dhari at a distance of 15 or 20 karams from Killa No. 7, shouted to Muhammad Ashraf to stop digging as the killa in question had been taken on lease by the appellant and his father.
Muhammad Ashraf refused to stop, saying that every one in the village was taking earth from this field and he saw no reason why he should not do the same. It is stated that on hearing this refusal from Muhammad Ashraf, the appellant took a spear from his house and refused to assault Muhammad Ashraf. However, by that time Muhammad Ashraf's father Taj Din had also reached the field. Apparently he tried to intervene between the appellant and Muhammad Ashraf and in doing so received a spear blow from the appellant.
3. The incident was witnessed, besides Muhammad Ashraf, by Ghulam Muhammad (P. W. 9) and Abdul Hafeez (P. W. 10). The appellant managed to escape from the spot, taking the spear with him.
The injured Taj Din was taken to his house and treated privately until the 23rd of November 1966, as already stated.
4. On admission at the Civil Dispensary, Renala Khurd, Taj Din was examined by Dr. Shahid Husain Bokhari (P. W. 2) who noticed a stab wound 3/4" x 2116" abdominal cavity deep in the left iliac fossa 4Y below and lateral to the umblicus. On post-mortem examination this injury was confirmed by Dr. Haji Muhammad (P. W. 1), who opined that death was due to shock and peritonitis caused by injury to the intestines. He stated that the injury was sufficient in the ordinary course of nature to cause death.
5. The appellant absconded and could not be arrested until the 8th of December 196,6. When in police custody he produced the weapon of offence from inside his house in the presenc: of Muhammad Ismail (P. W. il) and one Nur Ahmad who appeared before the committing Magistrate but did not appear at the trial. On chemical examination the spear was found to be stained with human blood.
0. The appellant pleaded not guilty at the trial and gave an alternative version of the incident. He stated that when he asked Muhammad Ashraf to refrain from digging the earth from his field, the latter threatened him that he would attack him with the kassi with which he was digging the earth.
Thereupon the appellant picked up the spear so that if he was attacked by Muhammad Ashraf he would be in a position to defend himself. Having thus armed himself with the spear he proceeded to the spot and again asked Muhammad Ashraf to desist from digging earth whereupon Muhammad Ashraf abused the appellant and raised his kassi to strike him. The appellant tried to ward off the kassi attack by using his spear, but in the meanwhile Muhammad Ashraf s aged father had stepped between the appellant and Muhammad Ashraf with the result that he accidentally received the spear injury. The appellant did not produce any evidence in defence.
7. The learned Additional Sessions Judge has believed the ocular evidence, and has recorded a finding that there was no evidence to show that the appellant or his father were in possession of Killa No. 7 as tenants of the owner Babu Ali Bakhsh. He has expressed the view that in these circumstances no right of private defence of the property, nor of the body accrued to the appellant; and that in any case Taj Din deceased was not the person who had committed the act of criminal trespass on Killa No. 7. On this view of the matter the learned trial Judge has held the appellant guilty of murder.
8. It will be seen that the incident being admitted, and it not being disputed that the death of Taj Din was caused by a blow inflicted by the appellant, the only question is regarding the circumstances in which death was caused. There is no previous enmity between the parties and the entire incident developed at the spot. If Killa No. 7 was indeed in possession of the appellant and his father as tenants of the owner of the land, then a right of private defence of the property did accrue to the appellant, as the act of digging earth from this field without the consent of the tenant in possession would amount to criminal trespass. It is unfortunate that the prosecution did not take the trouble of ascertaining the correct position either from the revenue record or from the owner of the land, and we have, therefore, to fall back upon the oral statements of the relevant witnesses. In their examination-in- Chief all the three eye-witnesses have stated that at the relevant time the possession of Killa No. 7 was with one Sadiq. However, they are all agreed that the appellant had, right from the beginning, objected to the digging of earth by Muhammad Ashraf on the ground that they had taken this killa on lease. Ghulam Muhammad admitted in cross-examination that about 3 or 4 months after the occurrence, the father of the accused levelled Killa No. 7 and then cultivated it, and that the Killa No. 7 was still in his possession. Abdul Hafeez (P. W. 10) made a more elaborate statement saying that half of Killa No. 7 had standing cotton crop at the time of the occurrence, while the remaining half was vacant, and that earth was being dug from the vacant portion of the killa which had already been ploughed although no crop had been sown in that portion. He added that after the occurrence the land of this killa was levelled by the father of the accused and the crop was also sown by him. The recovery witness Muhammad Ismail (P. W. 11) was also questioned on this point and he stated that about 4 or 5 months after the occurrence the father of the accused had levelled the land of Killa No. 7 and then cultivated it. From these statements, as well as from the objection raised by the appellant immediately before the occurrence, it does appear that the appellant's father had taken Killa No. 7 on lease from the owner Babu AH Bakhsh. It is admitted that at the time of the occurrence the disputed portion of the killa had been ploughed up, and that after the occurrence it was sown by the appellant's father. It is also on record that the killa continues to be in the possession of the appellant's father. This could not be the position unless the appellant's father had indeed taken the held on lease from the owner. Such being the case the learned Additional Sessions Judge was not right in holding that there was no evidence to show that the Killa in dispute was in the possession of the appellant or his father.
9. Once it is held that the field in question was in the possession of the appellant's father as a tenant, the appellant was certainly within his rights in demanding that Muhammad Ashraf should stop digging earth from his held. According to the second clause of section 97 of the Pakistan Penal Code every person has a right to defend his movable or immovable property against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which amounts to an attempt to commit these offences. We have already stated that the act of Muhammad Ashraf in forcibly digging earth from Killa No. 7 did amount to criminal trespass as it obviously caused annoyance to the appellant. Section 99 of the Code provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. However, as held in Mohim Mottdal v. State (1) the protection of the public authorities must, of necessity, refer to protection against the offences mentioned in section 97, Penal Code, with a view to preventing the same; but when such an offence or offences has or have already been committed, there is no question of seeking any protection against an act which is a fait accompli. In the present case the offence of criminal trespass had already been committed by Muhammad Ashraf and there was, therefore, no question of the appellant having recourse to public authorities for the purposes of defending his property. It is thus a case where the right of private defence of property had clearly accrued to the appellant.
10. The next question is whether this right has been exceeded. According to section 103 of the Penal Code the right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death, if the offence the committing of which, or the attempting to commit which, occasions the exercise of the right, be an olfence of robbery, house-breaking by night, mischief by lire committed on any building tent or vessel, or theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. Now, although the appellant has asserted that he was threatened with the kassi by Muhammad Ashraf, yet there is no support on the record for this assertion. On the contrary, the evidence is clear that while objecting to Muhammad Ashraf digging the earth, the appellant had rushed from his Dhari with the spear and attacked Muhammad Ashraf, who avoided the blow and instead Muhammad Ashraf's father Taj Din was hurt. Even the statement made by the appellant himself shows that he voluntarily armed himself with a spear before proceeding to the spot. It is thus clear that although Muhammad Ashraf had refused to refrain from digging the earth, there was no question of his having caused an apprehension of death or grievous hurt to the appellant. The right of private defence did not, therefore, extend to the causing of death in this case.
11. In any case, it is also to be remembered that the offence of criminal trespass had been committed by Muhammad Ashraf and not by bis father Taj Din who had merely come to the spot to intervene between the appellant and Muhammad Ashraf. There was thus no apprehension from Taj Din of the nature mentioned in section 103 of the Penal Code. It has, therefore, to be held that the appellant exceeded the right of private defence which had accrued to him under the law.
12. For the foregoing reasons we hold that although Taj Din's death was caused by the appellant Barkat, yet his oiTence would fall not under section 302, P. P. C. but under Part 1 of section 304 of the same Code. We would alter the conviction accordingly. As regards the sentence we find that Barkat was arrested as long ago as the 23rd of December 1966. He" has thus been in custody for nearly five years. As the offence was without premeditation and there was no previous enmity between the parties, we consider that the sentence already undergone would meet the ends of justice. Accordingly the appeal is accepted to the extent that the conviction of the appellant is altered from the one under section 302, P. P. C. to one under section 304, Part I and the sentence is reduced to that already undergone. He shall be set at liberty forthwith provide he is not required to detain in any other connection.