Kapur, J.
1. This is an appeal by two convicted persons Guddar Singh and Bainka Singh sons of Charan Singh, Rai Sikhs, residents of Jalloke against their conviction under Section 302, Penal Code and a sentence of death on Guddar Singh, and transportation for life passed on Bainka Singh. Guddar Singh was also prosecuted and convicted under Section 307 read with Section 149 and under Section 148, Penal Code. Under these two offences he was given a sentence of five and two years' rigorous imprisonment respectively but both sentences were to run concurrently. Bainka Singh was similarly convicted for these two offences and was similarly sentenced. Surjan Singh, Harnam Singh, Bhana Singh and Arjan Singh who were tried along with Guddar Singh and Bainka Singh were acquitted by the learned Sessions Judge.
2. Villages Jalloke and Mito Jagir have under the Radcliffe Award come into the territory of Pakistan but by an agreement between the Financial Commissioners of the Punjab (India) and Punjab (Pakistan) these two villages were administered by India. For administration purposes these two villages have been made parts of Ferozepore Tehsil and it appears that the lands of these villages were allotted to Indian Nationals who either owned land in these villages or had come from Pakistan. The original proprietors of the land were Mohammedans who had migrated into Pakistan on the partition of the country & the tenants-at-will who were all Rai Sikhs continued to cultivate the lands.
3. These Rai Sikhs had refused to allow 'girdawari' of the villages to be done and had also refused to Pay land revenue. In the first week of April 1951 therefore Tahsildar Harbans Singh and the Revenue Assistant S. Harjot Singh went to village Jalloke and they asked Bainka Singh and Guddar Singh who are now convicts and others to pay the land revenue and allow the 'girdawari' to be prepared and if they had any objections they should file them in writing to which the residents of this village including Bainka Singh and Guddar Singh agreed.
On 8 or 9-4-1951, these persons appeared in the Court of the Revenue Assistant and there when Tahsildar Harbans Singh was present they said that they would put in their objections the following day after consulting their legal adviser and a socialist worker by the name of Hoshiar Singh Arshi. On the following day these persons appeared along with their legal adviser Mr. Hari Nath Varma and agreed to pay land revenue and also agreed that they would not obstruct the preparation of 'girdawari' papers. An order was issued to Kundan Singh and Ram Chand Patwaris of Mito Jagir and Jalloke to go to these villages and start 'girdawari' and send a report to the tahsil. This is Ex. C. B. (p. 23) and is also proved by the statement of Tahsildar Harbans Singh P. W. 4 at pages 32 and 33. On 11-4-1951, Ram Chand Patwari in charge of Jalloke made a report which is Ex. C. C. that the zamindars had obstructed his carrying out 'girdawari' work and the matter was referred to the Deputy Commissioner who ordered that the realisation of the land revenue and the preparation of the 'girdawari' papers with the help of the police. It appears that the Deputy Commissioner had also ordered as is shown by Ex. C. D. (p. 24) the Superintendent of Police in realising land revenue, preparation of 'girdawari' and to help the allottees to get their 'batai'.
4. On 14-4-3951, Tahsildar Harbans Singh with Mehta Satgur Maij and R. K. Maini both Naib Tahsildars and Patwaris Ram Chand and Kundan Singh and Gopal Singh a lessee of Mito Jagir went to village Jalloke. They were also accompanied by Sub-Inspector Ajit Singh along with ten constables of the armed police and from village Mamdot Sub-Inspector Kehar Singh, Assistant Sub-Inspector Nand Lal and two Foot Constables joined them. Baghicha Singh, Bainka Singh and some others also joined from that village. Both the Naib Tahsildars and the Patwaris are prosecution witnesses; so are Sub-Inspector Ajit Singh, constable Kishore Chand and Baghicha Singh and Bainka Singh.
5. The party arrived in village Jalloke at about 10 a.m. and they sat down under a 'tahli' tree near the village. The Tahsildar summoned Guddar Singh, Bainka Singh and other persons of the village and told them 'that it was proper for them to pay the land revenue and let the 'girdawari' be completed' (vide Harbans Singh Tahsildar as P. W. 4, p. 33, 1.29), but the villagers refused to accept his advice. Thereupon the Tahsildar told them to produce the rifles which the Indian Government had given to these villagers under the Border Defence Scheme.
They replied that they would consult the other villagers & would return. After sometime some seventy or eighty persons of the village including Bainka Singh and Guddar Singh appellants and others who were acquitted by the Sessions Judge came there armed and amongst them the persons who were tried for murder in the Court of Session were armed with rifles and the others had 'lathis', 'chavis' etc. They stopped at a distance of about 15 to 20 'karams' from where the Tahsildar and others were.
6. According to the prosecution, people shouted to Guddar Singh and Bainka Singh and others to kill the revenue and police officials and all the accused and their companions started making noise. Sub-Inspector Kehar Singh tried to pacify them and as he was trying to do this Guddar Singh accused fired his rifle which hit the Sub-Inspector in his chest and he fell down dead. The other people then started firing and according to the Tahsildar, under his orders the police also fired in self defence.
The villagers who had rifles took positions behind a wall which is stated to be about 31/2 to 4 feet high and there was exchange of firing between the two parties. Meanwhile the Tahsildar got down from his jeep and the police took their positions behind some trees. After an exchange of fire for about twenty minutes the villagers retreated into the reeds and according to the statement of the Tahsildar and others they set fire to their village in order to prevent the police pursuing them. The prosecution evidence shows that before the police arrived they had taken out their goods and had placed them outside the 'jhuggis' and when they retreated and continued firing they removed their women and children along with them; at that time there was wind blowing and the whole village caught fire quite soon.
The police went into the village and found two persons injured and we are told that other-two persons were killed. I may here add that according to the evidence of Sub-Inspector Ajit Singh who was incharge of the armed reserve the police fired under the direction of this witness Sub-Inspector Ajit Singh P. W. 2 and not at random and that they had taken their positions before they had started firing.
7. 83 empty cartridge cases which were fired by the police were recovered from the spot and four empty cartridges which are stated to have been fired by the villagers were recovered near the wall and both these were taken possession of. The first information report was made by Tahsildar Harbans Singh. It was dictated to the Patwari and was handed over to Assistant Sub-Inspector Nand Lal who was present with the party. It was then recorded in the police station Mamdot at 1-30 p.m. The occurrence is stated to be of 12 noon.
8. 27 persons were arrested including the six who were sent up for trial to the Court of Session by about 14-5-1951, and an incomplete challan was filed in Court on 25-6-1951. On the 9th June the accused raised the question of the jurisdiction of the Court and the arguments were heard on the 21st June and the case adjourned for orders to the 28th June. It appears that on the 28th June again arguments were heard and on the 2nd July the Committing Magistrate made a reference to the Secretary, Ministry of Home Affairs at New Delhi under Section 6, Extra-Provincial Jurisdiction Act (Act 47 of 1947).
On 26-2-1952, the Ministry of External Affairs issued a notification No. S. R. O. 369 which gave retrospective effect as from the first day ot April, 1951, and applied all laws in force in the districts of Amritsar, Ferozepore and Gurdaspur to all border areas of those districts and in the schedule it is stated: 'Ferozpur border areas :
'All areas not within the district of Ferozepore which lie to the south-east of the left bank of the river Sutlej and to the north-west of the district.'
This notification provided:
'Now, THEREFORE, in exercise of the powers conferred by Section 4, Foreign Jurisdiction Act, 1947 (47 of 1947), and of all other powers enabling it in that behalf, the Central Government is pleased to provide as follows for the administration of justice and the collection of revenue in the said areas;
1. All laws for the time being in force in the Amritsar, Ferozepur and Gurdaspur districts of Punjab shall be and shall, as from the first day of April, 1951, be deemed to have been, in force, respectively in the Amritsar border areas, Ferozepur border areas and Gurdaspur border areas as specified in the Schedule to this Order:
Provided that in the laws so applied any reference to India or a State shall be construed as a reference to, or as including a reference to, the said areas :
Provided further that for the purpose of facilitating the application of the said laws, any Court having jurisdiction in, or in relation to the said areas may construe the provisions thereof with such alterations not affecting the substance as may be necessary or proper in the circumstances.
2. The Central Govt. and the Govt. of Punjab and all officers and authorities subordinate to either Government for the time being exercising executive authority within the said districts of Punjab shall, respectively, exercise the like authority within the said areas.
3. All Courts having for the time being jurisdiction in, or in relation to, the said districts of Punjab shall, respectively, have the like jurisdiction in, or in relation to, the said areas.'
9. On 21-3-1952. the Committing Magistrate ordered the proceedings to go on in his Court. This notification was again challenged by the defence and the arguments were hoard on 23-4-1952. The accused filed an application for bail in the High Court on 8-9-1951, but this was dismissed by me 'in Limine' on 11-9-1951. It appears that another application for bail was made in about the month of January which was admitted and the intimation of that was sent to the trial Court on 8-3-1952, and the records were subsequently sent for. But this application for bail was also dismissed this time by Bhandari, J., on 9-4-1952. The records were returned under a letter of this Court dated 14-4-1952.
10. The case was fixed before the Committing Magistrate on 13-5-1952, when Surjan Singh accused fell ill and was absent and the case was adjourned to the 26th of May. Then Harnam Singh accused got mumps and the case had to be adjourned to 9-6-1952, and as the Magistrate was absent on leave the case was fixed for the 18th June. No witnesses were available on the next date of hearing and the case was adjourned to the 3rd July.
As the police did not produce all the witnesses various adjournments had to be given. There wore 45 witnesses for the prosecution and it was not till 9-94952, that a complete challan was put in. This is a lamentable state of affairs and delay has been caused in the trial of a very important case due to inattention on the part of the various authorities concerned and this is an argument which has successfully been used by the convict-appellant for not giving the death sentence.
11. The accused were committed for trial on 30-9-1952, and were not tried till 2-3-1953, and of the six persons who were committed to the Court of Session four were acquitted and Guddar Singh and Bainka Singh were convicted for various offences one being under Section 302 read with Section 149, Indian Penal Code, and Guddar Singh was sentenced to death and Bainka Singh to transportation for life.
12. In this Court the appeal was filed on 2-4-1952. I am informed the papers were sent to Government printers in May but the printed paper books were not delivered to the office till 5-8-1953, and so the case was delayed in this Court because of this.
13. The question of jurisdiction has again been raised by counsel for the appellants. Mr. Sodhi submitted that the offence, if any, was committed in April 1951. At that time the Indian Union had no jurisdiction to enforce its laws and therefore if servants of the Indian Union went to enforce the payment of land revenue they were doing something which was illegal and the villagers of Jalloke had a right to oppose a forcible exaction of land revenue from them. This argument is put forward as a defence, the submission being that if on the date when this murder is alleged to have been committed the Government bad no right to get any revenue from them and attempt was made to forcibly realise it even if death wag caused by the villagers in preventing this illegal realisation the offence is not one of murder.
The appellants were British Indian subjects and after the partition they became subjects of the Indian Dominion and according to Section 188, Criminal P. C. when a British subject domiciled in India commits any offence at any place without and beyond the limits of the Provinces the Courts in India have jurisdiction to try such offence as if it had been committed within the Provinces of India. Therefore even before any notification was issued under Act 47 of 1947 the 'Courts in India had jurisdiction to try the present case.
14. It is true that Jalloke had fallen into Pakistan territory but the inhabitants of Jalloke had accepted Indian nationality and tho protection of the Indian Union. They had been given rifles under the Border Defence Scheme and it cannot be said that they would not be amenable to the jurisdiction of Indian Courts for offences in the territory of Jalloke. I may also say that at no stage was it ever submitted that the accused persons were not citizens of India.
15. Under Section 3, Extra-Provincial Jurisdiction Act, 1947, it is provided that the Central Government is lawfully authorised to exercise extra-provincial jurisdiction in such manner as it thinks fit. Under Section 4 the Central Government has the power to make orders and Section 5 validates any acts done in pursuance of such extra-provincial jurisdiction but apart from this the territory in which the village Jalloke is situate had remained by agreement between India and Pakistan within the administrative jurisdiction of India and one of the principles of international law is that a State in possession must maintain a certain order in the territory of which it is in possession; see Oppenheim's International Law, Vol I, P. 514.
16. It the possession of territory which acceded to another State remains in the possession of the ceding State, the laws which were originally in force would still be in force and can be enforced by the State in possession. At page 396 of Hyde's International Law, Volume I, it is stated-
'After the conclusion of a treaty or cession and pending the actual transfer of possession to the grantee the grantor is doubtless permitted to exercise authority necessary to maintain order and safeguard economic conditions within the territory concerned.'
And at page 399 it is stated that the revenue laws of the ceded territory are not affected by the change of territory. Thus, whether the principle of agreement between the two States applies or the territory remained in the possession of India although by Radcliffe Award it had fallen into the Dominion of Pakistan, according to the statement of law in Hyde the authority to maintain order and safeguard economic conditions was vested in India. In whichever way we may look at it, whether the territory had become Pakistan territory and by consent of the parties it remained in possession of India or after the cession of the territory to Pakistan it remained in possession of India the right of India as a State to maintain order and safeguard economic conditions remained in that State unimpaired.
17. And even if the territory has been absorbed by India the position in International Law is:
'There is also a genuine succession with regard to the fiscal property and fiscal funds of the extinct State. They both accrue to the absorbing State 'ipso facto' by the absorption of the extinct State.'
Oppenheim's International Law, Vol. I, p. 154.
18. In my view, therefore, there was no substance in the question of jurisdiction and the learned Magistrate unnecessarily delayed it and it is unfortunate that even the provisions of Section 188 Criminal P. C. were not brought to his notice. If they had been, there would not have been that amount of delay in regard to the commitment proceedings.
19. It is admitted that the territory of Jal-loke which is on the left bank of the Sutlej, i. e., on the Indian side, did fall according to Radcliffe Award to Pakistan. The evidence of S. Harjot Singh P. W. 29 and Tahsildar Har-bans Singh P. W. 4 and Exs. C. R. and C. C. at page 23 of the printed paper book show that the inhabitants of Jalloke with Bainka Singh and Guddar Singh as their spokesmen had agreed to pay to the Punjab Government land revenue due to them and the statement of Nanak Singh P. W. 13 shows that they had accepted rifles from the Indian Government under the Border Defence Scheme.
It is also proved by the evidence of the Revenue Assistant S. Harjot Singh and Tahsildar Harbans Singh that on 9-4-1951, Bainka Singh and other villagers came with a gentleman called Hoshiar Singh Arshi, a socialist worker, of the place and asked for a day's time to give their answer as to whether they would submit to the paying of land revenue or not. On the 10th Bainka Singh accused and other villagers again appeared in the Court of the Revenue Assistant with their. Advocate Mr. Hari Nath Verma and they agreed to pay land revenue and allow the 'girdawari' papers to be completed and this they had done after they had consulted their friend Hoshiar Singh Arshi and their legal adviser Mr. Hari Nath Verma. It was after this that the 'parwana' Ex. C. B. at page 23 was issued by the Tahsildar and that supports the case of the prosecution on this matter.
20. There is no dispute between the State and the appellants in regard to most of these facts excepting that it was denied that the appellants refused to pay any land revenue though they were not bound to pay it but there is sufficient evidence on the record and in my opinion it has been proved that the inhabitants of Jolloke refused to pay the land revenue.
21-23. The story of how Sub-Inspector Kehar Singh was killed is deposed to by several witnesses. (His Lordship reviewed the evidence of some of the witnesses and proceeded:)
24. Besides these witnesses who may be called official witnesses there were others who have supported the story of the prosecution & although their testimony was not allowed to go unchallenged in the trial Court nothing was brought out in the cross-examination which might show that their testimony should be rejected. The learned Sessions Judge has pointed put the defects in the evidence of these various witnesses and does not seem to have attached much importance to their testimony. I am not in agreement with the learned Judge and I cannot see any reason why their testimony should be rejected but even if their testimony were rejected there is sufficient material on the record to show that Guddar Singh fired the shot which killed the deceased Kehar Singh and that Bainka Singh's presence has been satisfactorily established.
25. Besides this Guddar Singh produced a country made rifle which is proved by the testimony of P. W. 18, P. W. 19, P. W. 20 and P. W. 31 and nothing has been shown why their statements should not be accepted on this point. It is true that no separate memo was prepared showing that Guddar Singh made a statement offering to produce the rifle, but the evidence of witnesses shows that he did make this statement. Sub-Inspector Hazara Singh P. W. 31 stated that while Guddar Singh was in his custody he stated that he had kept the rifle and cartridges in the 'jhrai' between villages Butter & Jang & that they were wrapped up in a 'Khaddar' cloth and he then led the police party to the place of recovery. P. W. 18 Natha Singh, P. W. 19 Head Constable Ram Rattan and P. W. 20 Sawan Singh have all supported this story.
I hold, therefore, that the rifle P. W. 16 was recovered at the instance of Guddar Singh. According to the evidence of Dr. D. N. Goyal P. W. 34 cartridge case Ex. P. 13 was fired from the country-made rifle Ex. P. 16 and this is the rifle which was recovered at the instance of Guddar Singh. This is a strong corroboration of the complicity of Guddar Singh in this offence.
26. The accused in their statements denied that they had taken part in the offence. Bainka Singh even stated that nobody had come to them for the recovery of land revenue and that was the statement of Gaddar Singh also. They denied everything else including their presence in the village on the date of the occurrence.
27. Counsel for the appellants laid great deal of stress on the identity of the persons who had committed the offence and attacked the identification on the ground that no memo of identification parade has been produced by the prosecution. One was produced and there Bainka Singh stated that he was known to all persons of the locality and Guddar Singh stated that he was known to many persons of the locality. In the first place the evidence of the official witnesses shows that they knew Guddar Singh & Bainka Singh & that both of them were seen at the head of the mob who were out to commit murders and also that the mere fact that there is no memorandum produced would not show in this particular case that the two accused were not identified at the time of the commission of the offence.
28. It was then submitted that it was the police party who were the aggressors and the accused acted in self defence. In support counsel referred to the fact that the village was burnt and two persons were killed and three were injured but that does not show that the officials adopted a high-handed attitude at the time when they went to collect land revenue.
On the other hand, the story of the prosecution as deposed to by all the witnesses is that Kehar Singh was trying to pacify the villagers when he was shot dead and even the cross-examination which was directed against some of the witnesses was to the effect that the police fired because Kehar Singh had been shot dead. Now the statement that the villagers themselves set fire to the 'jhuggis' after they had taken out their household effects was not challenged in cross-examination. That the villagers had taken out the household effects is proved by the evidence of various witnesses and I shall mention only four -- 'P. W. 10 Ehalla Singh at p. 40, 1.53, P. W. 12 Ajit Singh at P. 42, 1.48. P. W. 3 Baghicha Singh at P. 38, 1.46 and P. W. 33 Mehta Satgur Mauj at p. 55, 1.27. Nothing that has been shown on this record substantiates the submission of counsel for the appellants. On the other hand I am of the opinion that the prosecution have made out their case and it is proved to our satisfaction that both Guddar Singh and Bainka Singh took part in this offence and are, therefore, liable under Section 302 read with Section 149, Indian Penal Code.
The only question that remains is as to the sentence. Guddar Singh has been sentenced to death but because of the fact that he has been in custody from May 1951 I would substitute in place of the sentence of death a sentence of transportation. Except as fo this the appeal of both Guddar Singh and Bainka Singh is dismissed in regard to Section 302, Indian Penal Code.
29. The appellants have also been convicted under Section 307 read with Section 149 and under Section 148, Indian Penal Code. On the facts which have been proved they are both guilty under these sections and the sentences given under these two sections are fully justified and I would, therefore, maintain the conviction and sentences under these two sections, i.e., Section 307 read with S. 149 and under Section 148, but would make the sentences concurrent with the sentence under Section 302, Indian Penal Code. In the result the appeal of Bainka Singh fails and that of Guddar Singh succeeds to this extent that the sentence of death is reduced to one of transportation.
30. I direct that a copy of this judgment be sent to the Government for such action as they think necessary to take.
Falshaw, J.
31. I agree.