The six appellants in this case were tried under sections 148, 302 and 307 read with section 149, P. P.
C. by Sh. Bashir Ahmad, Additional Sessions Judge, Muzaffar Garh for causing the death of Muhammad Nawaz and making murderous assault on Wahid Bakhsh (P. W. 10), Ghulam Sarwar (P.
W. 11) and Kalu (P. W. 12). Wahid Bakhsh P. W. is the father of the deceased. Kalu P. W. is married to the sister of Wahid Bakhsh and Sarwar is his sister's son. Barkhurdar appellant is the father of Khuda Bakhsh, Hashim Ali and Allah Ditta appellants. Nazar Hussain appellant is the son of Bahawal appellant who in turn is also related to Barkhurdar appellant.
2. The dispute arose about the turn of water between the parties on 30th April 1967 at about 7-45 in the evening. The turn of the accused party preceded that of the complainant party and Wahid Bakhsh (P. W. 10) had to take the turn of water from Bar khurdar appellant half a pehar after sunset on the night between Sunday and Monday. The turn of Wahid Bakhsh was to continue till midnight.
Muhammad Nawaz deceased, the son of Wahid Bakhsh P. W. and Ghulam Sarwar P. W. had gone to divert the water to their land. At that time Nazar Hussain appellant asked Muhammad Nawaz deceased that he may be permitted to continue to irrigate his land in case some water could be spared for that purpose. Thereafter, Nazar Hussain appellant went to the house of Barkhurdar appellant and told him that the turn of water had been forcibly taken from him by the complainant party and that he had been assaulted. Barkhurdar appellant then raised a lalkara and simultaneously, the other live appellants came to the water channel along with Barkhurdar appellant. Wahid Bakhsh and Kalu P. W. entreated Barkhurdar appellant to desist from diverting the water to his field but the six appellants said that they would not let them have the water.
Barkhurdar appellant then raised a lalkara and asked Allah Ditta appellant as to what he was waiting for. On this Allah Ditta and Hashim Ali appellants gave two blows each to Wahid Bahksh P.
W. He fell down and was trying to get up when Khuda Bakhsh and Bahawal appellants gave dong blows to Kalu P. W. On an alram having been raised, Muhammad Nawaz deceased rushed to the place of occurrence, Barkhurdar and Nazar Hussain appellants gave one blow each with their dangs to Muhammad Nawaz on his head. A third blow was also given by Barkhurdar to Muhammad Nawaz deceased. Ghulam Sarwar P. W. was beaten by Allah Ditta and Hashim Ali accused. Bashir (P. W. 13) also turned up at the place of occurrence on hearing the alaram and Shahdu and Ghulam Hassan also came afterwards. They were not produced at the trial. The accused then left the spot and Muhammad Nawaz was brought to his house on a cot in a state of unconsciousness. He expired shortly afterwards.
3. Wahid Bakhsh P. W. informed the Lambardar about the occurrence and then proceeded to Khangarh Police Station along with the Chaukidar to lodge the report Exh. P. A. at 7 a.m. on the next morning which was recorded by Zahoor Ahmad, Head Constable (P. W. 4).
4. S. I. Muhammad Rafiq Bajwa (P. W. 14) S. H. O. Police Station Khangarh took the investigation in his hand on the evening of 1st of May 1967. He arrested the accused on 2nd of May 1967. The weapons allegedly used by all the accused were produced by them before the Investigating Officer. Khuda Bakhsh and Allah Ditta appellants were found injured and were sent for medical examination.
5. The eye-witness account in this case is provided by Wahid Bakhsh (P. W. 10), Ghulam Sarwar (P.
W. 11) and Kalu (P. W. 12). Muhammad Bashir (P. W. 13) was an overseer in the WAPDA and saw the accused going back after the occurrence. It was admitted by Wahid Bakhsh at the trial that at the relevant time the aforesaid Bashir lived in his house and took meals with him but paid for that.
6. The case of the appellants was that the water was in their possession and Khuda Bakhsh and Allah Ditta appellants were irrigating their lands when Wahid Bakhsh and Kalu P. W. wanted to divert the water forcibly to their own land. There was a fight and Wahid Bakhsh and Kalu P. W. ran away. Thereafter, they came with sticks in their hands and assaulted them and they in self- defence gave injuries to them.
7. The learned trial Court held that the eye-witnesses except Bashir were interested. Since they had injuries, their statements were worth consideration. He was impressed most with the evidence of Muhammad Bashir (P. W. 13) whom he considered to be an unattached witness and observed that all the six appellants had participated in the commission of the offence.
8. I am sorry to observe that the learned Additional Sessions Judge did not address himself to the crucial point which arose out of this case. The question was as to which party was in possession of the water when the occurrence took place. We find from the statement of Faiz Ahmad Patwar Canal (P. W. 7) that there is a regular warabandi of Mauza Sheikhupura and its copy Exh. P. L. was placed on the record. In this document serial No. 21 pertains to Jatialwala well. According to the estimate of this witness the turn of water of Jatialwala well started one hour and forty-five minutes before the sunset on Mondy and came to an end at 12-45 in the night. The total area according to this witness attached to this well is forty acres. He was not able to say anything about the arrangement inter se regarding irrigation of land by the proprietors. We get more light from the statement of Wahid Bakhsh P. W. on this point. He admitted that his turn was to continue till midnight and according to the warabandi he was the last person to utilise water at Jatialwala well.
Another person Allah Wasaya who belongs to a different caste also owns land at Jatialwala well but it is not clear from the record whether he had any share in the turn of water fixed for the proprietors of Jatialwala well.
9. The position of the prosecution witnesses, including Wahid Bakhsh P. W. before the police was that their turn of water started one and a half pehars after sunset. At the trial they changed their position and claimed that their turn started half a pehar after sunset. Wahid Bakhsh admitted that the turn of water of the accused party was two pehars and his own turn was one and a half pehars. Wahid Bakhsh estimated one pehar as four hours and this would mean that according to him the turn of water at Jatialwala well was to continue for ten and a half hours. This does not fit in with the estimate of the time given by the patwari who said that the turn of water at this well started one hour and forty-five minutes earlier than sunset and finished at 12-45 at night. The sun on that day set at 6-58 which would mean that the turn of water of the accused party started at 5-13. Wahid Bakhsh admitted that the accused had the right to irrigate their land half a pehar more than the complainant party. Even counting in terms of hours, the turn of water of the accused finished approximately at 9-30. According to Muhammad Bashir (P. W. 13) who admittedly was residing in the house of Wahid Bakhsh complainant Muhammad Nawaz deceased came to ask time from him at 7-45 p. m. The occurrence took place within 15/20 minutes after 7-45. This fact clearly indicates that the complainant party took possession of the water much earlier than their own turn and the appellants were within their right to resist this and divest the complainant party of the possession of the water.
10. The story of the prosecution is that Nazar Hussain appellant had asked Muhammad Nawaz deceased that he should be permitted to continue to irrigate his land in case some water could be spared, for that purpose. There was no occasion for Nazar Hussain to make such a request if his turn had finished. This half truth however shows that Nazar Hussain had still l| water in his possession when he was deprived of the same. If he had just asked for loan of water, there was no occasion for him to go and complain to Barkhurdar. It is also significant that while in the F. I. R.
Wahid Bakhsh stated that their turn of water started one and a half pehars after sunset this period was reduced to half a pehar at the trial to show that the complainant party were justified in divesting accused party of the water much earlier.
11. It is also not unlikely that net was spread wide in this case and innocent persons were also involved. Two of the appellants were, however injured and they were justified in exercise of the right of defence of their person and property to inflict injuries to the extent of causing the death of Muhammad Nawaz and cause injuries to other P. Ws.
12. As a result of the above discussion, the appeal is allowed and the appellants are acquitted. They shall be released forthwith unless they are lawfully required to be detained in some other case. .
Criminal Appeal No. 1971.
Penal Code (XLV of I860), S. 302/307/3041148/I49-- Murder---Benefit of doubt--Origin of fight remaining undisclosed and fact that deceased himself might have opened attack, probable-- Possibility of false implication of accused and false recoveries, not ruled out--Offences, held, not brought home to accused persons-- Accused given benefit of doubt and acquitted, in circumstances. [p. 57]A K. B. Cli. Riasat Ali Khan for Appellants.
Ran a Maqbool Ahmad for A.-G. for the State.
Date of hearing : 31st March 1971.
Siraj and Bashir who are brothers inter se, Hata and Sarja who are again brothers inter se, but not related to the set of first two accused, and Gulla, a Patrair of Hata aforementioned, were tried by Mr. Mahmood Khan, Additional Sessions Judge, Sargodha for offences under sections 148, 302 and 307 read with section 149, P. P. C. for forming an unlawful assembly with the common object of causing the death of Wali Muhammad and making murderous assault on Karam Ali (P. W. 7). Each of them was convicted under sections 148 and 304, Part II and 323 read with section 149, P. P. C. They were sentenced to one year's R. I. each on the first count, ten years' R. I. each on the second count and six months' R. I. each on the third. All the sentences were ordered to run concurrently.
2. The convicts have appealed. Sarja and Bashir appellants were released on bail by order of Jamil Asghar, J. on 15th of January 1968.
3. The case for the prosecution is that about four days before the occurrence there was a quarrel between Siraj appellant and Mutalli a relative of deceased about the leakage of water from the water channel from which at the relevant time Siraj appellant was irrigating his land. The water had leaked to the land of Mutalli and Siraj appellant suspected that it had been purposely stolen by Mutalli. There was an altercation between Mutalli and Siraj appellant when Wali Muhammad deceased and Karam Ali (P. W. 7) happened to reach the spot and tried to intervene. There was an exchange of abuse and Siraj was given a shoe beating. This according to the prosecution forms the motive for the commission of the offence.
4. Four days later i.e., on 17th of September 1965, Wali Mohammad deceased and his brother Karam Ali (P. W. 7) were returning after ploughing the field of one Baqri. When they passed from near the well of the accused persons, they were attacked by them. Siraj, Bashir and Hata appellants were armed with kulharis while Siraj and Gulla were equipped with dongs, Siraj and Hata gave hatchet blows to the deceased and Gulla inflicted injuries on him with his lathi. Hata's blow given with hatchet fell on the head of the deceased. This according to the doctor was the fatal injury. The other two appellants namely Sarja and Bashir gave blows _ to Karam Ali. Bashir was armed with a hatchet but according to the prosecution he used its wrong side in inflicting injuries. The claim of Karam Ali P. W. was that he had snatched the lathi from Sarja appellant and gave blows to Siraj appellant in self-defence. The injured person was taken to Bhera Hospital where he made statement Exh. P. F. to A. S. I. Saleh Mohammad (P. W. 10) at 8-45 p. m. on 17-9-65. The distance between the place of occurrence and Bhera is six miles.
5. The Investigating Officer came to the spot on 18-9-65. He arrested the accused on the same day.
A blood-stained hatchet was recovered at the instance of Siraj appellant on the same day and blood-stained lathi was recovered at the instance of Bashir. According to the narration of facts in the F. I. R. and the evidence led at the trial Bashir was armed with a hatchet. These articles reached the Chemical Examiner on 8th of October 1965, and were thereafter sent to the Serologist who found them to have been stained with human blood.
6. The deceased died after eighteen days of the occurrence on 5th of October 1965 in Bhera Hospital. According to the evidence of the doctor he was conscious till 28th of September 1965 but lost consiousness thereafter and died in the same state of coma.
The medical evidence shows that the deceased had an extensive wound on the head which caused the fracture of the frontal skull bone. This was the only grievous injury found on his body, and according to the prosecution is attributed to Hata appellant. Karam Ali P. W. had two simple injuries which had been caused by blunt weapon one of which was on the back of his head and the other on the chest. Siraj appellant had six blunt weapon injuries one of which was on the head and others were on different parts of his body. All these injuries according to the doctor, were simple.
7. The eye-witness account in this case comes from the mouth of Karam Ali (P. W. 7), Lala (P. W. 8) and Maqsood (P. W. 9). The statement Exh. P. F. was also used by the prosecution as dying declaration after the death of Wali Muhammad.
8. The learned trial Judge found that it appeared from the trend of the evidence that Siraj and Bashir appellants had inflicted injuries on the deceased and his brother Karam Ali P. W. in self- defence on account of the fact that an attack had been made on them by the deceased and his brother. The learned trial Judge held that Lala (P. W. 8) was a chance witness. Maqsood (P. W. 9) in his statement before the police had not claimed to be an eye witness. He had just stated that Siraj and Bashir appellants were armed with hatchets. He stated that the other three accused were standing by at the spot and did not mention that they had any weapon with them.
9. It is submitted by Ch. Riasat Ali Khan the learned counsel for the appellants that the origin of the fight remained in obscurity. Mutalli who is admittedly a Mamunzad of the deceased did not appear to support the first incident. Baqri was produced as D. W. 1 and he repudiated the prosecution story which was to the effect that the deceased and his brother Karam Ali (P. W. 7) were returning after ploughing his land. The contention of the learned counsel on this score is substantiated by the record.
10. The learned Additional Sessions Judge himself held that motive for the attack had been proved against Siraj and Bashir appellants. As to the rest he said that since the three other accused were residing at the same well therefore there was a unity of purpose between them. The prosecution had mentioned five assailants in this case. The learned Additional Sessions Judge has observed that each one of them has been attributed one blow. We have found above that according to the position taken by Maqsood (P. W. 9) three of the appellants were not armed. Therefore there is a definite indication on the record that false inculpation has been resorted to in this case. The injuries on the persons of the deceased and Karam Ali P. W. could well be inflicted by one or two persons.
Siraj appellant had six injuries on his person and the explanation given for their causation by Karam Ali (P. W. 7) is not convincing. He himself was in an injured condition and it is not possible that he could have been able to snatch a dang from Sarja when he was surrounded by four other persons armed with lethal weapons and could have succeeded in inflicting injuries on Siraj without receiving more damage to his body. It is therefore not improb able that the deceased himself was armed with a dang and may have opened the attack. [14] brought home to appellants. I, therefore, direct that Siraj Din, Hata and Gulla appellants who are serving their sentences shall be 1 set free unless they are required to be lawfully detained in some other matter. Sarja and Bashir appellants are on bail. Their bail ] bond stand discharged. .