R. S: SIDHWA, J.-Rehmat Ali, Muhammad Sharif, Muhammad Jamil and Muhammad Sarwar were sent up for trial under section 302/34, P P. C. (on two counts), for committing the murders of Maqsud and Abdul Rahim deceased, under section 3j7/34, P. P. C. For attempting on the life of Muhammad Ihsanul Haq P. W. 10, and under section 323/34, P. P. C. (two counts) for causing simple hurts to Abdul Majid and Muhammad Amjad P. Ws., before .Khan M. Afzal Sarwar Khan, Additional Sessions Judge, Peshawar, Camp Sahiwal. By judgment dated the 13th May, 1969, the said learned Additional Sessions Judge, gave benefit of doubt to Rehmat Ali accused and acquitted the others of all the charges, excepting Muhammad Sarwar, who was convicted under section 307, P. P. C. For attempting on the life of Muhammad Ihsanul Haq P. W. 10 and sentenced to undergo R. I. For five years and to pay a fine of Rs. 500, in default of payment of which, to undergo further R.
1. For one year. The appeal (Cr. A. 802/69) of Muhammad Sarwar, against his conviction and sentences, that of the State (Cr. A. 800/69) against the acquittal of all the accused under section 302/34, P. P. C.
And for enhancement of the sentence of Muhammad Sarwar, and the private revision petition (Cr.
Revision 1236/69) filed by Abdul Majid, are now before us for disposal. This judgment shall dispose of both the appeals and the revision petition.
2. Brief facts of the case, as disclosed at the trial, are that the occurrence arose a9 the result of a sudden dispute, as otherwise there is no previous enmity between the parties. The immediate cause of the occurrence was that on 28-8-1967, due to a heavy downpour, rain water flowing from the side of the house of complainant party towards the houses of the 'accused, was affecting the houses of the latter. The accused party had constructed a bund from the main drain to the ihata of Niaz Khan to stop the flow of rain water in order to save their houses from damage and to make a passage for going from their houses to the main street. It is alleged that the water had collected near the house of the complainant party, with the result that at about degarwela, Maqsud deceased, accompanied by Abdul Majid P. W. 115, Amjad P. W. 12 and Muhammad Yasin P. W. 13, went to the spot for demolishing the bund in order to release the pressure of the rain water. Amjad P. W., who had a Kassi with him, started dismentaling the bund, when Rehmat Ali accused, who was present at his house, came towards the complainant party and requested them not to do so. The parties exchanged abuses, whereafter Rehmat Ali accused went towards his house and beckoned the other three accused to come out. He also went to his house and soon after came out with the other three accused. Muhammad Sarwr accused had with him a D. B. Shot-gun and a bag containing cartridges whereas the other three accused had lathis. On coming to the spot, Rehmat accused gave a lathi blow to Amjad P. W. 12 on the back, who fell down. Muhammad Sharif accused gave a lathl blow to Yasin P. W. 13 and Muhammad Jamil accused started giving further blows to AmjadP. W. Abdul Majid P. W. In the meantime snatched the lathi from Muhammad Shaif accused and with it gave blows to Muhammad Jamil and Muhammad Sharif accused. On this, Rehmat accused told Muhammad Sarwar accused to fire at the complainant party, whereupon Muhammad Sarwar stepped back a little, loaded his gun and fired two shots in quick succession which hit Maqsud and Abdur Rahim deceased. Muhammad Sarwar accused re-loaded his gun and fired a third shot towards the complainant party which hit Ihsanul Haq P. W. 10). After this, the accused party left the shot. Abdur Rahim deceased died at the spot. Abdul Majid P. W. 11 ran to the Police Station, Harapa, where he lodged the F.
1. R. (Exh. P. A.), which was recorded by Ch. Rashid Murtaza, S. I. (P. W. 17). Maqsud deceased and Ihsanul Haq P. W. Were removed to the Civil Hospital, Harapa, where the dying declaration Exh. P. D. Of Maqsud deceased was recorded. Maqsud deceased and Ihsanul Haq P. W. Were removed in injured condition to the D. H. Q. Hospital, Sahiwal, for better treatment, but Maqsud died in the way. After recording the F. I. R. The Investigating Officer proceeded to the spot and found Sarwar accused near the Union Council, whom he arrested.
Sarwar accused had on his person gun P. 7 and bag containing eight live cartridges (P. 8/1-8), which the Investigating Officer took into possession vide memo. Exh. P. L , which recovery was witnessed by the said, Investigating Officer (P. W. 17) and Abdul Qayyum (P. W. 15). On reaching the spot, the Investigating Officer collected blood-stained earth from the places where Maqsud and Abdur Rahim deceased had fallen, vide memos Exh. P. E. And Exh. P. F. Respectively. The Kassi (P. 3) used by Amjad P. W., was taken into possession vide memo. Exh. P. G. And three empty shells P. 4/1- 3, vide memo. Exh. P. H. After preparing the necessary documents, the Investigating Officer sent the dead bodies of both the deceased for post-mortem examination.
3. On the same day, Rehmat Ali accused was also arrested by the Investigating Officer. .He had with him dang. (P. 5) which was taken into possession vide memo. Exh. P. J., which recovery was witnessed by the said Investigating Officer and Abdul Qayyum (P. W. 15).
4. On the same day in the evening Dr. Ghulam Rasui Chaudhry (P. W. 1) examined the three injured P. Ws. And Muhammad Sharif accused. On the person of Muhammad Yasin P. W., be found the following injuries :
(1) An abrasion 1/4's 1/6" on the-bridge of nose.
(2) A penetrating wound, 1/3" x 1/4" x 1-1/2' on the outer side of the lower one third of left upper arm with multiple irregular contusion marks on the inner side in the arear of 2-1 /2" x 2'.
(3) A contusion mark 4' x 1-1/2' on the outer side of the left lower thigh.
All the injuries were declared simple.
On the person of Muhammad Ihsanul Haq P. W. The following injury was found.
A fire-arm entrance wound on the front band upper part of right chest measuring 1/3" x 1/3'. The one pellet was located on the back of the right scapula under the skin. Surgical emphysema was present. The injury was grievous and caused by fire arm.
On the person of Muhammad Amjad P. W., he found the following injuries :-.
(1) A defused swelling on the right parietal eminence 1-1/2' x 1'.
(2) A contusion mark 4-1 /2" x 1' on the right buttock: - - The injuries were simple and caused by blunt weapon.
On the person of Muhammad Sharif accused, he found the following injuries
(1) A contused wound, 1" x 1/3" x skin deep on the right frontal region of scalp with swelling around it.
(2) The eyelid of right eye was swollen and black.
The injuries were declared simple.
5. Just after it mid-night the said Investigating Officer arrested Muhammad Jamil accused, who had with him a Bang (P. 6) which was taken into possession vide Exh. P. K., which recovery was witnessed by the said Investigating Officer and Abdul Qayum P. W. 15.
6. On 29-8-1967, Dr. Ghulam Rasul (P. W. 1) performed the postmortem examination on the dead body of Maqsud deceased and found the following injures on the body:
(1) A fire-arm entrance wound, 1/3' x 1/2" on the front of left shoulder.
(2) A fire-arm entrance wound, 1/3'1 X/3" on the front xiphisternum along with the middle line.
(3) A fire-arm entrance wound, 1/3" x 1/2" on the front of let chest 3" below injury No. 2 to-left side.
(4) A fire-arm entrance wound, 1/3' x 1/3' on the lateral side of the left lower chest. .
(5) A fire-arm entrance wound, 1/3" x 1/3 'on the umbilicus.
(6) Three fire-arm entrance wounds, on the front of right shoulder and upper part of right chest.
(7) A fire-arm entrance wound 1/3" x 1/3' on the front and lower part of right chest.
(8) An abrasion 1/3'x1/4' on the outer side of left buttock.
(9) An abrasion 11"x 1/2" on the back of right shoulder.
(10) A fire-arm wound of exit on the back of right chest in the middle part 1 f from the midline..
On internal examination, the doctor found pleura, both lungs, peritoneum, stomach, large intestines and spleen injured. One pellet was recovered from the right pleural cavity. The injuries were sufficient to cause death in the ordinary course of nature. Death was the result of shock and haemorrhage due to the injuries to the lungs and spleen. Time between injuries and death was within two hours and between death and post-mortem was 19 hours.
He also performed the post-mortem examination on the dead body of Abdur Rahim alias Bahia deceased on the same day at 2-30 p. m. And found the following injuries on the body :-
(1) A fire-arm wound of entrance on the right side of nose. On probing track opened into the pharynx.
(2) A fire-arm wound of entrance on the front and outer side upper part of the left chest.
(3) A fire-arm wound of entrance 1" x 1" just below the left axilla.
(4) A fire-arm wound of entrance 1/3" x 1/3' on the front and middle of left upper arm.
(5) A fire-arm wound of exit 1/3"x 1/3" on the back and in middle of left upper arm.
Two pellets were recovered from the left pleural cavity. Pleura and left lung were injured. Death was caused due to shock and haemorrhage as a result of injuries to the left lung. The injuries were sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem was 22 hours.
Dr. Ali Arshed examined Muhammad Jamil accused the same day, and found the following injuries on his person :
(1) A contused wound, 2' x 1' on the left side of the head on the frontal region.
(2) Small contusion 1/4" on the dorsal surface of the left thumb.
(3) Multiple small abrasions-on the back.
(4) An abrasion mark 4" x 1" on the left thigh lateral aspect. The injuries were simple and caused by blunt weapon.
The doctor also examined Abdul Majid P. W. On the same day and found the following injury on his person
(1) A contusion on the left side of the back 1" x 2/3" away from the midline.
The injury was simple and caused by a blunt weapon. 'The dying declaration Exh. P. D. Was written by him at the instance of Maqsud which was signed by him.
7. On the same day Muhammad Sharif accused was also arrested by Ch. Rashid Murtaza S. I. From the hospital. After completing the investigation all the accused were sent for trial.
8. At the trial, all the accused denied the charges against them. Rehmat Ali denied his presence at the spot. The other three deposed that the complainant party comprising of Maqsud deceased, Amjad and Yasin ,P. Ws. Came armed with dangs, kassi and spear to the spot and forcibly started dismantling the banna, that all the three went there and protested against this unlawful act but the complainant party attacked them, that Muhammad Sharif and Jamil accused were beaten by the complainant party and they fell down on the ground and that Sarwar, in the right of private defence of his father and uncle, fired at the complainant party.
9. At the trial, the learned Additional Sessions Judge held that the land on which the bund was constructed belonged to Rehmat Ali accused, that the houses of the accused were at a lower level as compared to those of the complainant party, that the prosecution had not shown that the houses of the complainant party were damaged by the construction of the bund, that the accused party had not approach to the main street due to the accumulated rain water unless they constructed a banns or bund for passing over it, that the complainant party were the aggressors and went to dismantle the bund, that the complainant party was armed with dangs, kassi and spear, that the accused party had the right of repelling them, which they did, and that Sarwar accused did not fire at the complainant party till blows were given to Jamil and Sharif accused and they fell down. In these circumstances, after reviewing the whole evidence, the learned Additional Sessions Judge acquitted all the accused except Muhammad Sarwar whom he convicted under section 307, P. P. C. In respect of Sarwar accused, the learned Additional Sessions Judge held that he was justified in initially firing at the complainant party in order to save his father and uncle, but he was,not justified in firing the last shot which hit Ihsanul Haq P. W. Because by that time the complainant party had stopped the attack.
10. We have heard lengthy arguments of the learned counsel for the accused appellant, the State and the private petitioner and have perused the record. The learned counsel for the petitioner and the State contended that the bund was on the land of one Wazir Muhammad, that the houses of the complainant party were affected by the construction of the bund by the accused party on that land, that the complainant party went to dismantle the same in order to relieve their property from apprehended danger and that .When they were doing so, the accused party duly armed (in which weaponry they also carried a gun) attacked the complainant party and caused the deaths of Maqsud and Abdur Rahim. It was urged that they were all therefore guilty of murder.
11. Manzur Husain P. W. 16, a Patwari from another halqa, namely, Dadra, was produced by the prosecution to show that the land on which the bund was built by the accused belonged to one Niaz Muhammad. But since the Patwari of the relevant halqa had supported the version of the accused that the land over which the banna or bund had been constructed belonged to Rehmat Ali acquitted accused, which report was on the police file, and since this report did not suit the police, they imported Manzur Husain P. W. 16 (patwari) from another halqa, the Court held that the banns was constructed over the land of Rehmat Ali acquitted accused and his co-sharers. Manzur Husain P. W. 16 was not clear in his evidence as to who owned the land where the bund was constructed. In examination-in-chief he stated it was Wali Muhammad, but according, to his answer to question No. 3 in Exh. P. N. 1, he submitted that leaving one karam's distance to the west of the north western point of Niaz Muhammad's ihata, the land on the west comprised Khasra No. 175/10/14 owned by Muhammad Rafi son of Shamasuddin. If one sees the site plan Exh. P. M. 1, the land where the bund is constructed is a little more than a karam to the west of the north-western point of Niaz Muhammad ihata. In view of the discrepancy arising in Manzur Husain' Patwari's evidence and the report of the actual patwari of the halqa on the police file, which the prosecution had suppressed, the learned Additional Sessions Judge was correct in coming to the conclusion that he did, that the bund was built by the accused party on their own land and not-on that of some other.
12. But assuming, though not admitting, for a matter of argument, that the land on which the banna/bund was constructed by the accused party did not belong to them and belonged to one Niaz Muhammad, as was suggested at the trial, or to one Wali Muhammad, as was urged before us in appeal, the question whether the accused party, in view of the heavy downpour, had the right of maintaining the banna/bund temporarily for protecting their houses and/or for passing over it to reach the street till the necessity continued, and repelling an attack launched by the complainant party to dismantle or demolish the same, requires legal consideration. It is not disputed that the complainant's houses were not damaged. The prosecution witnesses have admitted that the houses of the accused party were at a lower level. The Palwari clearly stated that if the water accumulated on the vacant land adjacent to the accused's houses, there remained no right of way fear them unless they built a banna/bund for passing over it. According to Abdul Majid P. W. I1 it had rained the day before. According to Ihsanul Haq P. W. 13 water of nearly half the city was passing through the land in which the banna/bund was constructed and the house of Rehmat Ali accused was half foot lower in level to his house. The immediate necessit for the accused party, therefore, to prevent their houses from imminent and pressing danger of being washed away or getting submerged by erecting a banns, which could also be used by them to pass over it so as to reach the .Street, could not be denied to them. Till such time that this imminent damage to their homes continued, the accused party had the right under section 81 of the Pakistan Penal Code in taking all such actions, which in normal circum-1 stances would otherwise have been illegal, to prevent their houses being washed away or getting submerged due to accumulated rain water and for purpose of providing access to refuge, not only by building a temporary banna/bund in order to keep the excess water out and to provide a right of way to the street, but also in protecting and maintaining the same and preventing any third person from demolishing or destroying it. As the complainant party admittedly tried to demolish the banna/bund in question, the accused party had the right of inflicting harm to them in order to prevent them from doing so. This right extended to causing such harm as was reasonable in the circumstances. All the accused, except Sarwar appellant, whose cause requires special scrutiny; did not cause more harm than was necessary and their action, therefore, protected under section 81, P. P. C. And they are not liable for the offences imputed to them. The case of Sarwar appellant, however, requires special examination.
13. Now only one more question remains to be answered. Whether the action of Sarwar appellant in using the gun, as he did, is protected by section 81 or 100, P. P. C. And he be excused of the risk he took. This ties up with the question how occurrence took place, which party was the aggressor and whether the accused party had the right of private defence of person and/or property. The prosecution have themselves not denied that Maqsud deceased with Abdul Majid P. W. 11, Amjad P.
W. 12 (armed with kassi) and Muhammad Yasin P. W. 13, when at the spot, proceeded to dismantle the bund. Manzur Husain patwari in his cross-examination has clearly stated that the western side of the village was at a higher level than the eastern side and that if the rain water accumulated go the vacant land there was no way left for the accused paryt for passing over it to the street, except by building a banna over it. The prosecution witnesses alleged that only Arnjad P. W. Was armed with a kasse and that otherwise all the other three prosecution witnesses were empty handed. They impute a gun to Muhammad Sarwar appellant and lathis to the remaining three. However, the injuries on Muhammad Sharif and Jamil acquitted accused, who had contused wounds, on their persons, show that dangs were used by the complainant party. The prosecution witnesses have not referred to any spear being carried by any of the accused. Yet Muhammad Yasin P. W. 13 had on his person a penetrating wound on the left upper arm, which shows that one of their own partymen had very likely a spear, at whose hands, in the melee, Yasin P. W. 13 received that injury.
Muhammad Sharif and Jamil acquitted accused both received an injury each on their head.
Muhammad Sharif remained in the hospital as an indoor patient for many days. In these circumstances, the learned Additional Sessions Judge came to the conclusion that the complainant party was the aggressor and that the accused party was within their legal right to drive them away, which finding, being duly supported by the evidence on the record, is not incorrect. The accused party defended the attack initially on equal terms and, as is admitted by al the three eye-witnesses in their cross-examination, Sarwar appellant did no fire till Muhammad Sharif and Jamil acquitted accused had been given lath' blows on their heads. In these circumstances, the action of Muhammad Sarwar appellant in firing at the complainant party in the exercise of the right of private defence of his father and uncle, was totally justified. There is nothing in the evidence of the three eye-witnesses to show that after Sarwar appellant fired the first two shots the complainant party receded o some sufficient time elapsed justifying Sarwar appellant to withhold further firing. The fact, therefore, that he fired again and hit Ihsanul Haq P. W. Cannot in any way be divested from the main incident, for the occurrence had not totally ended. Sarwar appellant could not have measured the right of private defence in golden scales and there is nothing in the evidence to justify the conclusion which the learned Additional Sessions Judge arrived at, namely, that after Sarwar appellant had fired the first two shots, the complainant party had stopped the attack. In these circumstances, whilst agreeing with the finding of the learned Additional Sessions Judge by which he acquitted all the accused of all the charges, except Sarwar appellant in respect of the charge under section 307, P. P. C., we disagree with the finding of the said Additional Sessions Judge as regards Sarwar's conviction for this offence.
13. For the foregoing reasons, we hereby dismiss the appeal filed by the State and the private revision filed by Abdul Majid petitioner. The appeal of Muhammad Sarwar appellant is accepted.
His conviction and sentence under section 307, P. P. C. Is hereby set aside and he is acquitted of this charge. He shall be released forthwith, if not required in any other case. The fine, if realised, will be refunded to the appellant.