Haji son of Behram (58 years) Faiz Muhammad son of Peeral (28 years) and Abdul Karim son of Haji (33 years) all Machi by caste resident of Mauza Bhong were tried and convicted by Additional Sessions Judge, D. G. Khan, vide his order, dated 24th November, 1979 alongwith Ghulam Muhammad and Abdul Majid (since acquitted) for the murder of Ghulam Sarwar and murderous assault on Ghulam Akbar P. W. On 25th May, 1978 at 9-00 a. m. In the vicinity of Mauza Bhong District Rajanpur (then D. G. Khan). The learned trial Court while acquitting Ghulam Muhammad and Abdul Majid convicted Haji and Faiz Muhammad under section 302/34, P. P. C. And sentenced them to imprisonment for life each and a fine of Rs, 1,000 each in default whereof to undergo one year's R. I. And Abdul Karim under section 323, P. P. C. And sentenced to six months' rigorous imprisonment. The convicts have jointly filed the instant appeal.
2. The incident took place on 29th May, 1978 at 9-00 a. m. In the area of village Bhong 14 miles away from Police Station Rajanpur which was report by Ghulam Akbar complainant (P. W. 7) through F. I.
R Exh. P. A. Recorded at the Police Station by Muhammad Siddique A. S.-I. (P. W. 10) the same day. In this occurrence Ghulam Akbar suffered. Two simple injuries while the deceased suffered 4 injuries in all, two of them being grievous head injuries which proved fatal.
3. Briefly the prosecution case was that Ghulam Akbar complainant had taken on lease 8 acres of land belonging to one Rasul Bakhsh for cultivation out of which 11- acre was under sugarcane crops sown by him. On the fateful day at about 9 a. m. Ghulam Akbar complainant went on round of his sugarcane field and saw that Haji, Faiz Muhammad and Abdul Karim accompanied by Abdul Majid (acquitted accused) armed with sotas and Ghulam Muhammad (acquitted accused) armed with kassi were diverting the canal water from his sugarcane field towards their own field downward. He asked them not to divert the water and let his sugarcane field be irrigated first but Haji did not listen to his request. Meanwhile Ghulam Sarwar deceased arrived who also repeated the same request but it was turned down. At this both the parties exchanged abuses. The quarrel culminated into an attack by the accused party. Haji and Faiz Muhammad gave one sota blow each on the head of Ghulam Sarwar who fell down. Thereafter Abdul Karim gave a sota blow on his right shoulder. Ghulam Akbar stepped forward to rescue Ghulam Sarwar who too was given a stick blow by Abdul Majid (acquitted accused). Hearing the commotion, Ghulam Jafar (P. W. 8) and Ghulam Hussain (not produced) reached the spot. Seeing the witnesses approaching the accused party decamped with their weapons. Ghulam Sarwar succumbed to his injuries soon after the occurrence. Ghulam Akbar leaving his dead body under the custody of Ghulam Hussain and others left for Police Station, Rajanpur and lodged F. I. R. Exh. P. A. There.
4. The motive as stated in the F. I. R. Was that few days prior to the occurrence, an altercation had taken place between the parties over the turn of water when the accused party threatened the complainant party to avenge the insult and on that account the attack was made in which Qhulam Sarwar was murdered,
5. Having registered the case, A. S.-I. Muhammad Siddique (P. W. 10) reached the spot and took up the investigation. Prepared injury statement (Exh. P. J.) and inquest report (Exh. P. J./1) of Ghulam Sarwar deceased and sent the dead body for post-mortem examination under the police escort.
He collected blood-stained earth, vide memo. Exh. P. B. Haji and Abdul Karim accused were arrested on 31st May, 1978. They produced sota P. 4 (blood-stained) and P. 5 which were seized respectively under memo. Exhs. P. D. And P. E. Faiz Muhammad was arrested on 9th June, 1978 who produced sota P. 7 which was not stained with blood and was secured under memo. Exh. P. G.
Hussain Bakhsh (P. W. 6) had attested the recovery memo. Of sota P. 4 recovered from Haji accused but the other witness namely, Hazur Bakhsh did not appear. During the investigation Faiz Muhammad, Abdul Majid and Abdul Karim were found innocent and placed in column No, 2.
Ghulam Akbar complainant filed a private complaint Exh. P. W. 7/A, wherein the learned Sessions Judge summoned Ghulam Muhammad, Abdul Majid and Abdul Karim accused besides the challaned accused and the complaint case, was tried and the impugned judgment was delivered in this case.
6. Dr. Husnain Pitafi (P. W. 9) conducted the autopsy on the dead body of Ghulam Sarwar and found following injuries :-
(1) A lacerated wound li" x 1/2" x fracturing the underlying skull bone on back of middle of head, transverse 4" posterior to middle portion of left ear.
(2) A lacerated wound vertical 1" x 1/4" x fracttiring the underlying skull bone on back of head 1" above injury No, 1.
(3) Tip of nose was bruised.
(4) A bruise 1/2" x 1/2" on top of right shoulder.
In the opinion of the doctor all the injuries were ante-mortem caused by blunt weapons. According to him injuries Nos. 1 and 2 were fatal and the rest were simple. In cross-examination he admitted that injuries Nos. 1 and 2 could be caused from wrong side of the kassi, if the victim was in bending position. He also conceded that injury No, 3 could be caused by fall while injury No, 4 could be caused during convulsion on a hard surface.
7. On the same day and time the same doctor examined Ghulam Akbar P. W. And found two simple injuries one on the back of his head and the other on back of middle of right chest caused with a blunt weapon within 8 hours duration, vide medico-legal report Exh. P. H.
8. At the trial as many as 10 witnesses were examined. The prosecution relied on the eye-witness account furnished by Ghulam Akbar (P. W. 7) and Ghulam Jafar (P. W. 8) ; the incriminating recovery of sota P. 4 deposed to by Hussain Bakhsh P. W. And medical evidence provided by the Dr. Husnain Pitafi (P. W. 9). Since the incident had arisen from a dispute over the turn of water, therefore, the learned trial Court examined Amir Muhammad Ziladar as C. W. I who had very clearly stated that at the relevant time it was turn of water of the accused party.
9. The accused when examined under section 342, Cr. P. C. Controverted the allegation and declined to examine any witness in their defence.
Faiz Muhammad pleaded alibi while Haji and Abdul Karim admitted their participation in the occurrence saying that they caused injuries to Ghulam Sarwar deceased and Ghulam Akbar P. W.
In exercise of their right of private defence of property and also of person.
10. The learned trial Court on consideration of the material on record came to the conclusion that at the relevant time, it was the turn of water of Haji appellant and the deceased diverted the water at the instance of Ghulam Akbar P. W. He disbelieved the prosecution story that Ghulam Muhammad and Abdul Majid participated in the occurrence, and, therefore, acquitted them. He also disbelieved that Abdul Karim accused gave any stick blow on the shoulder of the deceased when the later was lying on the ground, rather he held that the incident took place all of a sudden without premeditation and preconcert, on the part of Haji and Faiz Muhammad and they did not act in cruel manner, yet he proceeded to convict Haji and Faiz Muhammad under section 302/34, P.
P. C. For Sarwar's death and to Abdul Karim under section 323, P. P. C. For injury to Muhammad Mbar P. W.
11. I have heard the learned counsel for the appellants as well as for the State and also perused the record.
12. I am tempted to express at the outset that the learned trial Court having held the incident took place suddenly without premeditation and that the appellants did not act in cruel manner, was not justified to record conviction under section 302/34, P. P. C. In view of this finding the case squarely fell under explanation "fourthly" to section 299, P. P. C. Punishable under section 304, P. P. C.
13. I have noted that the learned trial Court not only disbelieved the major part of prosecution story but also discarded the testimony of the eye-witnesses, of course for good reasons, therefore, the only evidence available to be acted upon is the appellants' own plea raised at the trial It is well- known that the statement of an accused is to be accepted or rejected as a whole. Applying this principle in its letter and spirit, there remains no evidence whatsoever against Faiz Muhammad appellant who denied his participation or presence at the relevant time. Consequently, therefore, his conviction and sentence is set aside and he is acquitted. He be set at liberty forthwith if not wanted in any other case.
14. Now the question which falls for determination is, whether the statement made by Haji and Abdul Karim appellants if accepted wholly would warrant the extending of right of private defence of property and person to them ? If not, then what offence they have committed ? The statement of Haji appellant (adopted by Abdul Karim as well is reproduced in verbatim for facility of reference :- "At the time of occurrence it was our turn of water but Ghulam Sarwar and Ghulam Akbar diverted it to sugarcane field of Ghulam Akbar. 1 and Abbul Karim with kassi went to mend the breach. At that time Ghulam Sarwar and Ghulam Akbar were in sugarcane field at a distance 26 Karams. We mended the breach and water started flowing towards our field. Ghulam Sarwar armed with kassi and Akbar empty handed came there. Akbar insisted that he would irrigate his fields first but I did not agree whereupon Akbar P. W. Asked Ghulam Sarwar to forcibly divert the water to sugarcane field. He bent down to do so, whereupon I in self-defence of my property gave him one blow with the blunt side of the kasli upon which he turned his face and wanted to attack me with his kassi when I gave second blow with its blunt side apprehending danger to my life. His kassi fell down.
Ghulam Akbar bent down to take that kassi in order to attack us, upon which Abdul Karim gave him blow in defence of his person and property. At that time remaining accused were not present. Jafar P. W. Was also not there. Ghulam Mujtaba Khan Zamindar out of his own grudge falsely involved the remaining accused and the complainant party concocted this false story."
In this statement the appellants have alleged that Ghulam Sarwar deceased during their turn was diverting water to the field of Ghulam Akbar P. W. And committed offences of mischief/theft, therefore, they had a right to defence their property (right of water) and in exercise thereof they could legally cause the death of the wrong doer (Ghulam Sarwar) as provided under clause (4) of section 103, P. P. C. Which reads as under :- Section 103.-The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right be an offence of any of the description hereinafter enumerated namely.
Firstly------------------------------------------ Secondly - ---------------------------------- Thirdly----------------------------------------- Fourthly- 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."
15. A plain reading of the above-quoted provision shows that in all cases of theft or mischief the causing of death of the wrong doer is not justified. It is only when commission of theft or mischief per se causes a reasonable apprehension that death or grievous hurt will be the result if such right of private defence is not exercised. According to the appellants, own statement Ghulam Sarwar (deceased) was diverting water with a kassi and was still in a bending position when he (Haji appellant) gave blow on his head with the kassi. According to the medical evidence both the head injuries admittedly caused by Haji appellant according to the doctor were grievous as they resulted in extensive fracture of the skull. On the suggestion of the defence, the doctor had stated that both the injuries were possibly suffered by the victim when he was in bending position. It was, therefore, not at all possible for Ghulam Sarwar to have turned his face to attack the appellants after having received first blow on his head in bending position. Again the appellant does not say that Ghulam Sarwar "attacked" him rather he stated that he (Ghulam Sarwar) "wanted to attack" him. In the circumstances I am of the view that Haji appellant was entitled to cause any harm to Ghulam Sarwar short of death as provided under section 104, P. P. C. The quantum of force employed and the repeating of blow on the head with a heavy weapon like kassi by the appellant was out of all proportion the situation actually demanded. In this view, I stand fortified by observation made in Asal Din v. Mir Bahadur and another's case "If the turn of the-respondent to take water was being interrupted before time, he had every right to stop this transgression and use the necessary amount of force to repel it."
For these reasons I hold that Haji appellant had clearly exceeded the right by causing death of Ghtilam Sarwar (deceased) and is thus guilty of committing offence under section 334, Part I, P. P.
C. His conviction under section 302, P. P. C. Is altered to one under section 304, Part I, P. P. C. He is 58 years old, therefore, I sentence him to 5 years' R. I. Plus fine of Rs, 1,000 in default thereof, he shall further undergo one year's R. I. Which to my mind shall adequately meet requirement of this case.
The fine if realise shall be paid to the legal heirs of the deceased. He shall also get the benefit of section 382-B, Cr. P. C. The period he had spent in jail as under trial shall be counted towards his substantive sentence of imprisonment. He shall at once surrender before the District Magistrate Rajanpur who shall commit him to jail for serving his unexpired term of his sentence.
16. As far Abdul Karim appellant, his conviction under section 323, P. P. C. Is maintained. He remained in jail for 11 months as under trial, therefore, his sentence of six months R. I. Is reduced to the period he had already undergone. He is on bail. He is discharged of his bail bonds.1