' Muhammad Ali alias Farangi, Ali Muhammad, Muhammad All sons of Ghazi, Muhammad Hussain son of Fazal Din, Izharul Haq and Riazul Haq sons of Ali Muhammad, Muhammad Nawaz son of Kabir Khan, Karim Bakhsh alias Hakim-ud-Din, Mushtaq Ahmad son of Barkat Ali and Ali Muhammad son of Haji Rulia, all Arain by caste except Muhammad Nawaz who is Baloch by caste and residents of Chak No, 576/T.D.A., Tehsil Kot Adu District Muzaffargarh were tried by learned Additional Sessions Judge, Muzaffargarh, who by his order dated 4-1-1981 acquitted Karim Bakhsh, Mushtaq Ahmad and Ali Muhammad son of Rulia but convicted and sentenced the remaining seven accused persons as under: (i)Under section 302/149, P.P.C. To imprisonment for life and a fine of Rs, 5,000 each. In default of payment of fine to suffer R.I. for three years each.
(ii)Under Section 307/149. Ten years R.I. each and a fine of Rs, 3,000 each. In default of payment of fine to suffer R.I. for one year each.
(iii) Under section to Six months R.I. each.
148, P.P.C. The sentences of imprisonment were ordered to run concurrently.
2. It was further directed that half of the amount of fine if realized be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Through his appeal both the conviction and the sentences have been challenged by the aforesaid seven convicts Criminal Appeal No, 33/81. Muhammad Anwar complainant has filed a revision (Criminal Revision No, 143/81) praying that the sentence awarded to the appellants may be enhanced to death and retrial of the acquitted accused be ordered. I propose to dispose of both the appeal and the revision by this judgment.
3. The incident took place at about 10/11 a.m. on 6-5-1979 in the area of Chak No, 576/T ,D.A., Tehsil Kot Adu District Muzaffargarh, wherein Bashir Ahmad was murdered and Muhammad Hussain P.W.9 and Muhammad Hassan P.W.11 were assaulted murderously by the appellants, being armed with deadly weapons like gun, hatchet, Kassi and Dangs in prosecution of the common object of the unlawful assembly of which they were the membeRs,
4. Muhammad Anwar P.W.13 reported the incident to police. His statement Exh. P.K. was recorded by Waris Ali A.S.I., P.W.15 at about 4-15 p.m. on 6-5-1979 at police post Chowk Munda at a distance of six miles from the place of occurrence. On the basis of this statement, formal F.I.R. Exh. P.B. was drawn up at 5 p.m. by Saifullah Khan Moharrir Head Constable (P.W.2) at Police Station Dora Din Pariah which is at a distance of 13 miles from the spot.
5. According to the F.I.R. Bashir Ahmad deceased and his brothers namely, Muhammad Hussain and Muhammad Hassan injured P.Ws. cultivated the land of Khawaj Din P.W.12 as his tenants. Said Khawaj Din on one side and Muhammad Ali alias Farangi, Muhammad Ali son of Ghazi appellants and Ali Muhammad Lambardar (acquitted accused) on the other side, litigated for about five years regarding the use of a water-course. Khawaj Din got sanctioned a new outlet and dug out a water-course in his own lands for irrigation purposes. The appellants also insisted to use their channel for irrigating their lands.
6. On the eventful day at about 10/11 a.m. Bashir Ahmad deceased, his father Muhammad Hussain and his uncle Muhammad Hassan were irrigating their crops through the aforesaid new water- course for the first time, when all the appellants namely, Muhammad Ali alias Farangi armed with hatchet, Ali Muhammad son of Ghazi armed with Dang, Muhammad All son of Ghazi armed with Dang and Kassi, Muhammad Hussain son of Ali Muhammad and Muhammad Nawaz Baloch armed with Dangs, accompanied by the three acquitted accused namely, Karim Bakhsh alias Hakim-ud-Din, Mushtaq Ahmad and Ali Muhammad Lambardar armed with Sotas and a gun came there. Muhammad Ali son of Ghazi and Muhammad Hussain made a cut in the water course with spades (Kassi) and diverted the flow on their side. Seeing this, the complainant Muhammad Anwar, his father Muhammad Hassan and his uncle Muhammad Hussain rushed to the spot and told them that they would not allow them to divert the water till they settle the matter with Khawaj Din P.W. In this way they tried to put up resistance. Ali Muhammad Lambardar loaded his gun and raised a Lalkara saying that nobody from the complainant side should be allowed to go alive. At this, the remaining nine accused started giving blows, with their respective weapons, to Bashir Ahmad deceased, Muhammad Hussain and Muhammad Hassan P.Ws. Kulharis and kassis were allegedly used from the wrong side in the attack. Bashir Ahmad deceased fell unconscious due to head injury. Khawaj Din and Fateh Muhammad P.Ws. also reached the spot hearing commotion and witnessed the occurrence. The assailants seeing Bashir Ahmad deceased in precarious condition ran away towards their houses. Bashir Ahmad succumbed to the injuries after about an hour at the spot. Thereafter, many people from the surrounding abadis gathered. Muhammad Hussain and Muhammad Hassan the injured P.Ws. were removed to Hot Addu Hospital for treatment. Leaving Fateh Muhammad and Khawaj Din P.Ws. with the dead body, Muhammad Anwar complainant left for the police station for making a report.
7. Waris Ali A.S.I. (P.W.15) after recording the statement Exh. P.R. of the complainant forwarded the same to Police Station Dera Din Panah through Noor Muhammad Constable for formal registration of the case, and himself left for the spot with the complainant to conduct out the investigation.
8. Reaching there, Waris Ali, A.S.I. inspected the place of occurrence. He secured the blood-stained earth by means of recovery Memo. Exh. P.J. He prepared inquest report Exh. P.U. and injury statement Exh. P.V. of Bashir Ahmad deceased and dispatched the dead body to the mortuary under the escort of Muhammad Nawaz Constable (P.W.1) for post-mortem examination.
9. Dr. Saeed Ullah Khan, Senior Medical Officer, Civil Hospital (P.W.5) medically examined Muhammad Hassan P.W.11 as a private case on 6-5-1979 at 5-30 p.m. and found the following injuries on his person vide his report Exh. P.D:-
(1) One lacerated wound 1-1/4" x 1/4" scalp deep on the right side of top of head near the mid line about 4-1/2" from the head margin and 5-1/2" from the right ear. It was obliquely placed. The blood was coagulated.
(2) One reddish contusion mark 1/2" x 1/4" with swelling on the middle of right knee joint.
(3) One lacerated wound 1/4" x 1/4" with swelling 1/2" x 1/4" on the outer aspect of the lower party of left fore-arm.
(4) One horizontal contusion mark 7" x 3/4" on the middle of right wing bone.
' All these injuries were inflicted with blunt weapon, within a duration of 6 to 12 hours and kept under observation for X-Ray, ultimately found to be simple.
10. On the same day, the same doctor examined Muhammad Hussain P.W.9 and found: the following injuries on his person, vide report Exh. P.E.:-
(1) One oblique lacerated wound 2" x 1/2" x scalp deep on the left side of head about 3" above the left ear and 5" head margin. The blood was coagulated.
(2) One horizontal lacerated wound 1-1/4" x 1/9" x scalp deep just back to injury No,l.
(3) Multiple reddish contusion mark of different sizes in direction on the back of both sides of chest.
(4) One reddish contusion mark 1-1/2" x 1/2" on the upper part of left buttock. It was horizontal placed.
(5) One reddish contusion mark 5" x 3/4" on the front of middle of right thigh.
' All these injuries were found simple in nature, caused with blunt weapon within duration of 6 to 12 houRs,
11. On 7-5-1979 at 9 a.m. Dr. Muhammad Afzal, Medical Officer, Civil Hospital, Khangarh (P.W.6) conducted the autopsy on the dead body of Bashir Ahmed deceased brought by Muhammad Nawaz Constable (P.W.1) and identified by Muhammad Anwar and Fateh Muhammad P.Ws. He noticed following injuries thereon:-
(1) A lacerated wound 2" x 1/4" x scalp deep on the right head 3" above the right ear.
(2) A small lacerated wound 3/4" x 1/4" x scalp deep on the left head 5" above left ear.
(3) There was ecchymosis of both eye lids of the left eye with swelling.
(4) A perpendicular contusion mark 4" x 1" on the left side of face and forehead close to left eye and left eye brow.
(5) A contusion mark 1" x 1/2" on the back of left hand radial side.
' The internal examination revealed dark clotted blood between the anterior 2/3rd of scalp and skull. Both temporal bones, posterior parts of both parietal bones, orbital part of frontal bone of left side along with upper part of left maxilla were broken. The middle cranial fossa was also fractured on both the side. Stomach contained about four ounces of semi-liquid diet. The intestines were distended and contained fetal matter. Urinary bladder was empty. All the other organs of body were found healthy. Injuries Nos. 1, 2 and 4 were grievous and fatal while injury Nos.3 and 5 were simple, caused with blunt weapons and were ante-mortem. Death had occurred due to shock, hemorrhage caused by fracture of skull bones and concussion of the brain due to injuries Nos. 1,2 and 4. They were found sufficient individually and collectively to cause death in the ordinary course of nature.
12. Muhammad Nawaz (P.W.1) produced last worn clothes Chaddar P-1, Shirt P-2 of the deceased and Khes P-3, all blood stained before the Investigating Officer which were seized through Memo.
Exh. P.A.
13. All the seven appellants were produced before the Investigating Officer on 12-5-1979 by one doctor Taj and were arrested. At the time of surrender, Muhammad Ali alias Farangi produced hatchet P-4, Riazul Haq produced Sota P-5, Izharul Haq produced Sota P-6, Muhammad Ali son of Ghazi produced Kassi P-7, Ali Muhammad son of Ghazi produced Bang P-8, Muhammad Hussain produced Kassi P-9 and Muhammad Nawaz Baloch produced Sota P-10 which were secured by means of separate recovery Memos. Exh. P.L., Exh. P.M., Exh. P.N., Exh. P.O. Exh. P.Q, Exh. P.R. and Exh. P.S. respectively. These memos. were attested by Malik Muhammad Azim (not examined) and Sultan Ahmad (P.W.4) besides the Investigating Officer. These weapons were not smeared with blood.
14. The case was investigated by Waris Ali A.S.I. (P.W.15) and Ghulam Siddique (P.W.16). After completion of the investigation, challan was sent to the Court for trial.
15. At the trial the prosecution version was sought to be proved through ocular account furnished by Muhammad Hussain (P.W.9), Fateh Muhammad (P.W.10), Muhammad Hassan (P.W.11), Khawaj Din (P.W.12) and Muhammad Anwar (P.W.13), recovery of weapon from the appellants deposed to by Sultan Ahmad (P.W.14) and the Investigating Officer; and the evidence of motive furnished by complainant Muhammad Anwar (P.W.13) besides the medical evidence brought on record through Dr. Saeed Ullah Khan and Dr. Muhammad Alzal.
16. The appellants when examined under section 342, Cr.P.C. denied the allegations and stated that they were not present at the spot at the time of occurrence. All Muhammad son of Ghazi and his brother Muhammad All stated that they jointly owned about 40 Acres of land in Chak No, 576/TDA.
On 6-5-1979, their turn of water beginning at 8 a.m. was to last till 12 mid-nights. They instructed their nephew Abdul Hameed and their tenant Noor Muhammad to attend to their turn and irrigate the lands because they were going to Leiah. On their return they met Abdul Hamid, in Jinnah Hospital where he was lying admitted. He informed them that he along with Noor Muhammad afore-mentioned were watering their lands from the new outlet. At about 10 a.m. they went on a round of their fields and found that Bashir Ahmad deceased, Muhammad Hussain and Muhammad Hassan P.Ws. had diverted the flow in their lands and were themselves present there with sticks in their hands. They were attacked by the deceased and his party men. They also retaliated and in exercise of their right of private defence had injured them. However, they declined to produce any defence evidence.
17. The learned trial Judge held that the prosecution case was not free from doubt, against Karim Bakhsh, Ali Muhammad Labrador and Mushtaq Ahmad and consequently acquitted them but convicted the remaining seven appellants. He also opined that there were indications on the record that some innocent persons have been roped in, therefore, he undertook to "sift the grain from the chaff" and in that exercise he found the appellants guilty on the strength of various pieces of evidence like eye-witness account, recovery of weapons and the medical evidence.
18. I have heard the learned counsel for the appellants, for the State and also for the complainant.
They also took me through the evidence and the relevant record.
19. I think, for the decision of this case, it is essential to examine the motive part of the story first of all.
20. According to the F.I.R. Muhammad All son of Ghazi, Muhammad All alias Faring and Ali Muhammad Lambardar have been litigating with Khawaj Din P.W. for the last five years regarding a dispute over a water-course. At last Khawaj Din got sanctioned a new outlet and dug out a new water-course in his own lands. On the fateful day, his tenants (the deceased namely, Bashir and the injured witnesses namely Muhammad Hassan and Muhammad Hussain) were allegedly irrigating their land through this new channel when the appellants, accompanied by the acquitted accused, came there and forcibly diverted the flow of water to their fields and when they objected to it the appellants attacked them.
21. At the trial Muhammad Hussain (P.W.9) the injured witness, who is the brother of the deceased, stated that the land of Muhammad All son of Ghazi appellant was attached for irrigation to the ne*vly sanctioned outlet. About a day before the occurrence he along with his brothers, Muhammad Hassan P.W.11, Bashir Ahmad deceased and some other share-holders, having right of irrigation from that outlet, were digging a water-course (obviously for receiving supply of water from the new outlet). Khawaj Din (P.W.12) called out Muhammad All son of Ghazi and asked him to join in the digging work of the water-course but he refused and said that he would use the prepared water-course to irrigate his lands. Upon this Khawaj Din asked his tenants to stop digging the water-course there and instead he got another water-course dug through his own lands.
Water supply in that water-course, was released from the new outlet on the day of occurrence.
They were irrigating their "Lussan crop" at 10/11 a.m. when the accused party came there and forcibly diverted the flow into the old water-course. The deceased and the P.Ws. rushed to the outlet and implored them to desist from doing so and wait for the arrival of Khawaj Din, but the appellants did not care to listen to them and opened attack on them. It may be mentioned that according to report Exh. P.H. given by P.W. Ghulam Muhammad the area attached to new outlet was being irrigated since 17-4-1979.
22. The aforementioned two versions appear to be at variance with each other and present a somewhat confused picture. It is interesting to note that at the relevant time it was their turn of water, when the accused party came and diverted the flow. They, however, denied the suggestion that it was the turn of the accused party and they interfered with it by diverting the flow to their lands and that when Abdul Hamid a nephew and Noor Muhammad a tenant of the appellants objected they had attacked them who in the exercise of their right of private defense injured them.
23. No documentary evidence is available on the record to show that Muhammad Ali alias Farangi and Muhammad Ali son of Ghazi appellants ever had a dispute with Khawaj Din P.W. over a water- course or for that matter they were locked into any such litigation. Admittedly a new outlet was sanctioned and that was in operation, supplying water in the days of occurrence. It has been conceded by the prosecution witnesses that the land of Muhammad Ali son of Ghazi and his brother was attached for irrigation purposes to the new outlet meaning thereby that they had a right to irrigate their land through this outlet, but strangely enough, Khawaj Din P.W. in his statement attempted to show that Muhammad All son of Ghazi and his brother were not irrigating their land through it. He explained the position as follows: "The water-course sanctioned was dug out on the approve course up to a distance of 1i Acres while the remaining water-course was constructed in our land. No sanction of the canal authorities+ was necessary for constructing the water-course in our lands. The consent of other share-holders was neither necessary nor obtained. I have neither demanded any share of the expenses of water- course from the share-holders nor am giving water to them on charges. The share-holders who have dug the water course are getting water. All Muhammad Lambardar, Ali Muhammad son of Ghazi, Muhammad All son of Ghazi and Hakim-ud-Din are share-holders but they are not getting water."
24. When the land of Muhammad All son of Ghazi and his brother All MuNimmad has been attached for irrigation purposes with the new outlet, then it is not understandable that they would not .take the supply of water from there to irrigate their lands. By carefully reading the above quoted statement of Khawaj Din P.W., it appears that he allowed only those shareholders to get the water supply from the new outlet who had contributed in digging the new water-course. Because Muhammad Ali called by Khawaj Din to join the digging work of the water-course had refused to do so, therefore, Khawaj Din might have asked his tenants not to allow Muhammad All son of Ghazi and his brother to irrigate their lands from the new outlet and through the water-course dug in his land. That is why, Bashir deceased and his brothers Muhammad Hussain and Muhammad Hassan (P.W. 9/P.W.11) having found Muhammad All son of Ghazi and Muhammad Hussain appellants diverting water had asked them to first settle the matter with Khawaj Din or wait till his arrival before diverting the water to their lands. Here the question would arise, that at the relevant time, whose turn it was to utilize the canal water ?
25. The controversy can conveniently be resolved by referring to the statement of Ghulam Muhammad (P.W.7) a Canal Patwari. He was examined on the point during investigation also. The Investigating Officer made a written query Exh. P.G. and the witness replied in writing by making a written report Exh. P.H. He owned and proved this report when he appeared in Court. According to this report, ndw outlet No, 300/L was sanctioned, which was installed on 17-4-1979. A water-course was temporarily dug through the lands of Khawaj Din. Lands of Khawaj Din, All Muhammad, Muhammad Ali sons of Ghazi and others were attached to this outlet for irrigation. No permanent Warabandi was sanctioned, but both the complainant and the accused parties had mutually agreed upon arrangement between themselves. According to his knowledge, the turn of accused party was to commence at 8-00 a.m. on 6-5-1969 (the day of occurrence). the prosecution did not disown this report nor did it criticise its maker. No suggestion whatsoever, imputing partiality to the witness, was ever put. No request was made to get him declared hostile. It may be noted that although the prosecution witnesses have claimed that at the time of occurrence, their fields were being watered but none of them has specifically asserted that they were irrigating their lands with the canal water in their own rights or at their turn. From the above narration of facts it stands established that Muhammad All son of Ghazi and his brother had the right to irrigate their lands through the new outlet and at the relevant time it was their turn to use the canal water.
26. In these circumstances, I find that Bashir Ahmed deceased and his brothers Muhammad Hussain and Muhammad Hassan (P.W.9 and P.W.11) were not justified to irrigate the land (owned by Khawaj Din) at the time of occurrence and, therefore, Muhammad All son of Ghazi and Muhammad Hussain appellants had a right to divert the flow of water to their fields.
27. Before proceeding further I would like to say few words about the defence version as narrated by Muhammad Ali and Ali Muhammad sons of Ghazi appellants. According to them they went away to Leiah on the day of occurrence, but before leaving for Leiah they left instruc tions with their nephew Abdul Hamid and their tenant Noor Muhammad to attend to their turn of water commencing at 9 a.m. on 6-5-1979 and irrigate their lands. They further stated that on their return they were informed by their nephew Abdul Hamid that they were irrigating their lands at their own turn but Bashir deceased and his brothers had diverted the flow of water to their lands, and when they objected to it they were attacked and, therefore, they also acted in their self-defence.
28. It is true that Dr.Muhammad Afzal (P.W.6) had examined Abdul Hamid on 6-5-1979 at 5-30 p.m. and found two lacerated wounds and an abrasion on his person caused with blunt weapon in six hours duration. But I have doubts about the genuineness of the defence version, firstly, 'because Abdul Hamid or Noor Muhammad have not entered the dock to support this story, perhaps fearing that the fallacy of their stand might be exposed. Secondly, because, no oral or documentary evidence had been led at the trial by All Muhammad and Muhammad All sons of Ghazi appellants to prove their alibi. There is also no legal evidence on the record to believe that Abdul Hamid had suffered injuries during the occurrence.
29. This now brings me to the question as to who among the appellants had participated in the incident and what offence, if any, was committed by them.
30. Muhammad Hussain P.W.9 (injured P.W.) admitted that he had not seen Fateh Muhammad and Khawaj Din P.Ws. at the time of occurrence which made their presence doubtful at the time of occurrence. However, the presence of Muhammad Hassan P.W.11 and Muhammad Hussain P.W. 9 and Bashir Ahmad deceased cannot be doubted although they exaggerated the incident to a great extent. They had thrown the net very wide to implicate 10 persons for a total of 13 injuries suffered by the complainant party which appear to be incommensurate.
31. It is admitted by the prosecution witnesses that Muhammad All son of Ghazi and Muhammad Hussain appellants had Kassis with them at the time of occurrence and it were they who diverted the water. This shows that only they had gone to the outlet for diverting the flow of water to their lands and that too at their own turn as observed by me earlier. It is also admitted that the Kassis were used from the wrong side during the attack. Three persons of the complainant party including the deceased suffered 13 injuries in all, caused with blunt weapons, out of which three were grievous, which could be caused with blunt side of the Kassi.
32. Considering the material on record and the attending circum stances, I am inclined to hold that Muhammad Ali son of Ghazi and Muhammad Hussain son of Fazal Din appellants armed with Kassis went to the outlet to divert the water of their lands but they were obstructed from doing so by Bashir deceased and his brothers Muhammad Hussain and Muhammad Hassan P.Ws. whom they attacked in order to enforce their right to use the canal water. The remaining appellants namely, Ali Muhammad son of Ghazi, Izharul Haq, Riazul Haq, Muhammad All alias Farangi and Muhammad Nawaz Baloch were neither present nor did they participate in the fight. Therefore, they deserve to be acquitted.
Next question which falls for detemination is that as to what offence An Muhammad son of Ghazi and Muhammad Hussain son of Fazal Din have committed by having caused fatal blows to Bashir Ahmad deceased and simple hurt to Muhammad Hussain and Muhammad Hassan P.Ws.
According to the prosecution, the complainant party was empty handed and they had asked the appellants verbally not to take the supply of water and wait till Khawaj Din arrived. By doing so, I think, they were carrying out the instructions of their landlord, A verbal request made by the appellants to the complainant party, t desist from diverting water, did not cause any threat to their lives or even an apprehension of grievous hurt being caused to them. They were, therefore, not justified to cause death of Bashir deceased. The force used by the appellants against the complainant party was definitely out of all proportion than it was necessary for enforcing their right o irrigation. Since they used Kassis from the wrong side, therefore, intention to kill Bashir deceased cannot be inferred, but they can be safely burdened with the knowledge that by giving blows on his head with wrong side of the Kassi they were likely to cause death of the deceased. The appellants have thus exceeded their right of self-defence by causing death of Bashir Ahmad. 1, therefore, hold Muhammad Hussain and Muhammad All son of Ghazi guilty under section 304-11, P.P.C. read with section 34, P.P.C. However, they did not commit any offence by causing simple hurt to P.Ws.
Muhammad Hassan and Muhammad Hussain as they were well within their right to do so while enforcing their right to use the water.
33. The upshot of the above discussion is that the conviction and sentence of Muhammad Ali alias Farangi, Ali Muhammad son of Ghazi, Izharul Haq and Riazul Haq sons of All Muhammad and Muhammad Nawaz Baloch son of Kabir Khan appellants under section 302/307/148/149, P.P.C. is set aside and they are acquitted. They be released forthwith, if not required in any other case.
34. As for Muhammad All son of Ghazi and Muhammad Hussain son of Fazal Din appellants are concerned, their conviction and sentence under section 307/149/148, P.P.C. is set aside. Their conviction under section 302 read with section 149, P.P.C. is altered to one under section 304, Part-II read with section 34, P.P.C. They are sentenced to seven years' R.I. each and a fine of Rs,1,000 each or in default of payment of fine to undergo six months' R.I. each. They are also given the benefit of section 382-B, P.P.C. and it is directed that the period for which they remained in jail during the pendency of the trial, shall be counted towards their sentence of imprisonment. The revision petition filed by the complainant fails.