' This Criminal Appeal No, 82 of 1983 and connected Criminal Revision No, 243 of 1983 filed by Moondan against acquittal of Arif, Ahmad alias Ahman and Sikandar co-accused, arise from the judgment of learned Sessions Judge, Jhang, whereby he on 17-1-1985 convicted Mamman appellant under section 302, P.P.C. For causing the death of Qalandar deceased and under section 307, P.P.C. For murderous assault on Habib Ullah P.W. 10 and sentenced him as under:
(1) Under section 302, P.P.C.To imprisonment for life and a fine of Rs,3,000 in default thereof R.I. For one year.
(2) Under section 307, P.P.C.To 5 years' R.I. And a fine of Rs,1,000, in default thereof six months' R.I.
' The sentences were to run concurrently. It was directed that the fine when recovered, Rs,2,000 be paid to the legal heirs of the deceased. I propose to dispose of the appeal and the revision through single judgment.
2. The occurrence took place on 1-7-1981 at Jhikki Peshiwela in the area of Thathi Bala Raja within the area of Police Station Barhana. The distance between place of occurrence and the police station is 101 miles. The F.I.R. Exh. P.J. Was lodged by Mst. Moondan, sister of Qalandar deceased on the following day of occurrence at 11-00 a.m. And was recorded by Muhammad Hussain A.S.I. P.W.
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3. The motive as alleged by the prosecution was, that the deceased had purchased water from the Tube-well of Syed Zeman Ali Shah. On 1-7-1981 at about Pehr Wela, he was irrigating his fields, when Ahmad, acquitted co-accused diverted the water of the deceased to his (Ahman) fields. On this Qalandar deceased and Habib Ullah P.W. Not only slapped Ahman co-accused but also rediverted the water to their fields. At trial stage, Mst. Moondan complainant introduced an additional motive to the effect that about 4 years back paternal-uncle of Mamman appellant was murdered and Muhammad Yar, father of the present deceased was challened and convicted under section 304-1, P.P.C. And sentenced to 3 years' R.I.
' As far the main occurrence, it has been stated that at the eventful time, Qalandar had gone for round of the watercourse. When he reached near Tube-well Pippalwala, the appellant and the acquitted co-accused duly armed with Sotas, all of a sudden appeared there. They raised Lalkara and opened attack on Qalandar. Arif gave Sota blow on his head. Mamman appellant inflicted Sota blow on his right arm. Ahman gave Sota blow on the back of his chest. Sikandar gave Sota blow on his head. Mst. Moondan and Habib Ullah P.Ws. Intervened. Mamman appellant inflicted Sota blow on the head of Habib Ullah P.W. Ahman gave him Sota blow on his forearm. Arif inflicted Sota blow on the right cheek of Habib Ullah. The occurrence was also seen by Yara and Ahmad Ali (both not produced). The appellant then made good their escape. Qalandar in his injured condition was removed to Thatti Bala Raja and from there to Civil Hospital Lalian. He succumbed to the injuries on 2-7-1981 at about 9-30 a.m. The complainant obtained medico-legal report and thereafter lodged the F.I.R.
' On 2-7-1981 at 7-00 a.m, Dr. Abdullah Shah Hashmi examined Qalandar while he was alive. He found 4 injuries on his person. The doctor also found 3 simple injuries on the persons of Habib Ullah P.W. Caused by blunt weapon. On the death of Qalandar deceased, the same doctor conducted post-mortem examination on the dead body on 2-7-1981 at 6-00 a.m. The following injuries were found on the dead body.
"(1) A lacerated wound 21/2 x 1/8" x deep to bone on the centre of the top of, the scalp.
(2) A contusion 2" x 2" on the left side of the forehead.
(3) A contusion 2" x 3" on the right forearm.
(4) Multiple contusion on the back of the chest.
' In his opinion death was due to shock and intercranial haemorrhage as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. All the injuries were anti-mortem inflicted by blunt weapon. The duration between injuries and death was 18 to 20 hours and between death and post-mortem was 8 to 9 hours.
' On the same day, the doctor examined Mst. Moondan P.W.
9. He found; "A contusion 2" x 2" on the right side of the face with blackening of the right eye."
' The injury was simple in nature and was caused by blunt weapon.
6. The appellant was arrested on 4-7-1981 by Muhammad Ibrahim, S.H.O., P.W.
11. On the same day, he produced Sota Exh. P.4 (not blood-stained) before the S.H.O. Which was taken into possession vide memo. Exh. P.R. Attested by Allah Bakhsh P.W. 8 and Muhammad Ramzan (not produced). The recovery was effected by Muhammad Ibrahim S.H.O. P.W.
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7. To prove its case prosecution examined 11 witnesses. Dr. Abdullah Shah Hashmi had examined Qalandar while he was alive and also conducted post-mortem examination on his dead body. He has proved the medico-legal report pertaining to Qalandar, Habib Ullah and Mst. Moondan. He has also proved post-mortem report. Mst. Moondan P.W. 9 and Habib Ullah P.W. 10 have given ocular account of the occurrence. They claim to have seen the appellant and his co-accused armed with Sotas launching attack and causing injuries to the deceased. Habib Ullah and Mst. Moondan resulting in the death of Qalandar and injuries to others. Allah Bakhsh P.W. 9 and Muhammad Ibrahim S.H.O. P.W. 11 have supported the recoveries of Sotas from the appellant and the acquitted co-accused. The rest of the evidence is almost of formal nature.
8. When examined under section 342, Cr.P.C., the appellant and the co-accused denied all the incriminating circumstances. Mamman appellant owned the responsibility of the death of the Qalandar. He raised the plea of self-defence of person and property. He stated: "I purchased water from the tube-well of Syed Zaman Ali Shah and I was irrigating my field. The deceased diverted my water in his field and on my objection there was an altercation and then Qalandar deceased and Habib Ullah P.W. Attacked me and injured me. I was under the apprehension of serious injuries and in retaliation in my self-defence, I gave some injuries with back side of my Kassi to Qalandar deceased and Habib Ullah P W"
' The appellant further stated that false case wes fabricated against them at the instance of Pir Kamal Shah who was inimical towards them. In defence Syed Zaman Ali Shah D.W. 1 stated that Mamman appellant had purchased water from his tube-well and was watering his fields. When he (witness) heard alarm and on reaching there found Qalandar deceased, Habib Ullah P.W. And Mamman appellant exchanging filthy abuses with each other. Mamman told him that Qalandar and Habib Ullah had illegally diverted the water. The witness intervened and separated the parties.
Shortly thereafter, the parties indulged in abusing each other. Qalandar and Habib Ullah followed Mamman. ,Qalandar gave Sota blow on the head of Mamman appellant who tried to save his head and as such received injury on his right eye. Habib Ullah P.W. Also assaulted on Mamman appellant with Sota. Therefore, in self-defence of his person, Mamman appellant gave him injuries with the wrong side of Kassi which he was carrying at that time. The witness stated that Mst. Moondan P.W.
Was not present there.
8-A The trial Court was of the opinion that Arif, Ahman and Sikandar co-accused were not present at the spot and it was Mamman appellant alone who caused injuires to Qalandar deceased and Habib Ullah P.W. With the wrong side of his Kassi. The trial Court has disbelieved the motive and the recoveries of Sotas from the appellant and the co-accused. The trial Court has disbelieved the presence of Mst. Moondan at the time of occurrence. In para. No, 23, the trial Court has observed about Habib Uallah P.W. That: "No doubt that he was injured and his presence at the spot is also not doubtful but the story given by him is not believable."
' In para. No, 24, the trial Court has stated that: "The defence version seems to be plausible and ought to be accepted."
' So far as the motive part of the case is concerned, the trial Court has stated in para No, 19 of the judgment: "In this behalf, the evidence of D.W. 1 cannot be ignored who stated that on the day of occurrence Mamman accused purchased water from his tube-well and was irrigating his fields."
8-B It is thus very much obvious that the trial Court has not believed the motive as set up by the prosecution, the presence of Mst. Moondan, eye-witness; the recovery of Sota; the presence of the 3 co-accused and the story of the prosecution as stated by Habib Ullah P.W.
3. The trial Court has rather found that Mamman appellant had purchased water from the tube- well of Syed Zaman Ali Shah D.W. 1 and that he was irrigating the water at the time of occurrence.
Despite .These observations, the trial Court has not believed the entire statement of the appellant and has held that since there was no danger of death or grievous injuries to Mamman appellant, therefore, the right of self-defence was not available to him. The trial Court accordingly convicted the appellant under section 302, P.P.C.
9. Learned counsel for the appellant contends that the prosecution story having been disbelieved, the trial Court should have believed the statement of the appellant in its entirety. Conversely, the learned counsel for the State supported the judgment of the trial Court. The learned counsel for the complainant/petitioner in the connected revision has maintained that the prosecution had successfully brought home the guilt to the three acquitted accused and that they have been acquitted by the trial Court without legal and factual justification.
10. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the trial Court has almost disbelieved the prosecution case and its evidence for good reasons and as such, the statement of the appellant alone remains in the field. He has claimed the right of self-defence of property as well as of person. Since at the time of occurrence, the appellant was irrigating his fields with the water purchased by him from Zaman Ali Shah D.W. And the deceased and Habib Ullah P.W. Had diverted the same, therefore, the right of self-defence of property had accrued to the appellant authorising him to cause harm short of death. Since under the law, the right of self-defence of person does not extend to the causing of death, therefore, Mamman while causing the death of Qalandar had exceeded the right of self-defence of property.
This brings me to the plea of self-defence of person claimed by the appellant in his statement under section 342, Cr.P.C. I find that this part of his statement that the deceased was armed with a Sota and he opened attack causing injury on his (appellant) head stands falsified by the circumstances of the case, inasmuch as, the medico-legal report Exh. D.1 relatable to the injuries of the appellant shows that he did not suffer any injury at the time of occurrence and the injuries were received by him sometime after the occurrence and prior to his appearance before the police. The occurrence took place on 1-7-1981. The appellant appeared before the police on 4-7-1981. He was medically examined on 5-7-1981. The doctor opined that the injuries were caused within 2/3 days of the examination. In these circumstances, reasonable possibility that the injury was created in order to concoct defence version cannot be excluded. Since that part of the statement of the accused wherein he claims right of self-defence of person stands falsified by the circumstances appearing in evidence, the same has, therefore, to be rejected.
11. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant under section 302, P.P.C., the same is, therefore, set aside. Instead, he is convicted under section 304-1, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs, 20,000, in default thereof 6 months' R.I. The fine when recovered be paid to the legal heirs of the deceased. As far the conviction of the appellant under section 307, P.P.C. For murderous assault on Habib Ullah P.W., I find that in exercise of the right of self-defence of property, he was well within his right to cause any injury simple/grievous/dangerous to life, to him, and as such, has not committed any offence by launching murderous assault on Habib Ullah P.W. The appellant shall be extended the benefit available to him under section 382-B, Cr.P.C. In regard to the period of his detention as an undertrial prisoner. The connected Revision is also dismissed.
Appeal partly accepted