MIAN BURHANUDDIN KHAN, J.--By this petition leave is sought to appeal against the judgment and order of the Lahore High Court, Bahawalpur Bench, dated 5-4-1983 passed in Criminal Appeal 103/78.
2. Rahmat .A.I petitioner was put on trial in the Court of Session under section 302, P. -P. C. For the murder of Muhammad Azhar deceased on 8-6-1977 at about 5-55 p.m. In the limits of village Fatebpur Arian within the jurisdiction of Police Station Rahim Yar Khan. The learned Sessions Judge, Rahim Yar Khan, vide his judgment dated 22-10-1978 found the accused guilty under section 304, Part I, P.P.C. And sentenced him to 10 years' R. I., fine of Rs. 5,000 in default, to further R. I. For one year, and was also ordered to pay Rs. 5,000 as compensation under section 544-A, Cr. P. C. Or in default to under R.
1. For three months.
3. The prosecution version of the case is that on the day of occurrence the deceased's turn of irrigation water to his land was .To conclude at about 6 p.m. While the accused/petitioner's turn was to commence after that. The accused came to the irrigational outlet and diverted the water to his field at which Muhammad Azhar deceased protected saying that his turn had yet to expire and, therefore, he (the accused) should not have diverted the water. This resulted in an altercation during which the accused/petitioner dealt blow to the deceased with a kassi on his head, he fell to the ground and the accused allegedly gave him more blows with the blunt side of the kassi. The witnesses present on the spot tried to intervene but the accused threatened them as well. The deceased become unconscious. Ata Muhammad P. W. Lodged the report in the police station. The deceased later on succumbed to his injuries.
4. Dr. Mukhtar Nasim, P. W. 1 performed the post-mortem examination and found seven injuries on the body of the deceased including a lacerated wound 2" x 1 /2" X scalp deep on the left side of the head at the occipital area and a lacerated wound 1-1/2" X 1/2" X scalp deep on the right side of the head the parietal area. Three injuries on the head resulted in the death of the deceased.
5. The prosecution produced eye-witnesses in support of its case namely Ata Muhammad, P. W. 9, Muhammad Ashraf P. W. 10 and Abdul Ghant, P. W. 11.
6. Learned counsel for the petitioner has contended that the incident culminating in the death of Muhammad Azhar deceased was sudden and in view of the fact that the deceased, after the start of the turn of water the petitioner, forcibly tried stop the flow of water to the field of the accused petitioner, the petitioner obviously had the right of defence of person and property ; that in the circumstances of the present case the accused/peti--tioner was entitled to acquittal as he had not exceeded his right of private defence ; that it was hot essential in a case like this that the accused/petitioner should have sustained injuries first and only then the' right of self-defence could have accrued to the accused/petitioner.
7. We have gone through the evidence and judgments of the trial Court as well as of the High Court and would agree with the finding of both the Courts below holding that the accused/petitioner had e4tteded his right of self-defence it gleams from the evidence that the petitioner had not acted within, the limits' of the right ' of self-defence of person anti property as laid down in section 99, P. P.
C. There was no reasonable apprehension of death on the accused/petitioner or grievous hurt to him, nor was- there any need to use kassi and deal numerous blows with it to the deceased as a result of which, injuries on the head of the deceased proved fatal. The contention of the learned counsel that 'the deceased had committed an offence of under section 430, P. P. C. Also does not hold water. The accused/petitioner, in that case, could not have made a recourse to the public authorities for an such offence which the deceased bad allegedly committed. This appeal without any merit and the same is, consequently, dismissed.