SHAMEEM HUSSAIN KADRI, J.---Ghulam Rasul son of Qaim, Ghulam Rasul, Haider and Khan Muhammad sons of A.I Muhammad were tried by the learned Additional Sessions Judge, Gujrat, for the murder of one Sardara and for causing injuries to Malka (P. W. 9) and Ata Muhammad (P. W. 11).
All of them were convicted under sections 302/34 and 3U7/34, P. P. C. And sentenced to transportation for life on each count. They were also convicted under section 148, P. P. C. And sentenced to three years' R. I. By order dated 24-10-1966 of the Additional Sessions Judge, Gujrat. All the sentences were ordered to runt concurrently.
20 The parties in this case are collaterals and joint land Holders in the estate of Dharekhan Khurd, situate within the precincts of Phalia Police Station, District Gujrat. In the fight which took place on the morning of 31-5-1964 the appellants along with one Ghulam A.I brother of Ghulam Rasul appellant No. 1 participated. Ghulam A.I received injuries during the fight and died in the hospital later. On the side of the complainant Sardara who succumbed to his injuries in the hospital and Malka (P. W. 9) and Ata Muhammad (P. W. 11) were injured. The fight took place on the dispute of water between the parties. It was alleged that on the night preceding the incident Ghulam A.I along with his brother Ghulam Rasul went to Malka (P. W. 9) and Ata Muhammad (P. W. 11) and requested them for permission to use the water in the morning in Qxchange of their evening turn as they required it in preference to them, but they refused saying that they would take water according to their turn. Both Ghulam Rasul and his deceased brother took it i11. There was exchange of abuses between the parties. It is alleged that both Ghulam A.I and Ghulam Rasul threatened Malka and Ata Muhammad P. Ws. By saying that they would see them in the morning. On the next morning water was flowing in the loosan crop of the complainant-party. Both Malka and Sardara deceased were weeding the sugarcane crop. After sunrise it was found that the flow of water had dwindled. Ata Muhammad proceeded up-channel. Soon thereafter Malka heard the alarm raised by Ata Muhammad. He along with Sardara deceased proceeded towards the side wherefrom the alarm was raised. Sacdara deceased had a sofa while Malka P. W. Is said to be empty handed. When they reached the spot they found the appellants including Ghulam A.I deceased armed with sotas and inflicting blows with them to Ata Muhammad who after receiving the injuries fell down. Ghulam A.I on seeing Sardara and Malka coming to the scene of occurrence exhorted his companions to beat them as well. Ghulam A.I opened the attack with his sofa which was warded off by Sardara deceased, on his sofa. Thereafter Sardara deceased gave a sofa blow to Ghulam A.I deceased on his head and two more sofa blows on his arm. All the appellants then gave sofa blows to Sardara deceased who after receiving the injuries fell on the ground. Malka tried to intervene and received a sofa blow at the hands of Ghulam Rasul appellant No. 2 on his head. Haider A.I also 'gave a sofa blow on the head of Malka (P. W. 9). Alarm was raised which attracted Sardara (P. W. 12), fdur Muhammad and Allah Ditta, who separated the parties. The appellants then ran away towards the village. Malka, Ata Muhammad and Sardara were taken to the hospital. Akhtar A.I Sub-Inspector (P.
W. 17) recorded the statement of Malka in the hospital on 31-5-1964. The appellants also took Ghulam A.I deceased to the hospital.
3. Dr. R. S. Mahmood, Medical Officer, Civil Hospital, Phalia(P. W. 1) examined Sardara on 31-5-1964 at 12-I5 afternoon and found the following injuries on his person :-
(1) A contused wound --" x --" x skin deep with a contusion 2" x 1" oblique wound. It was above middle of right eye-brew. There was swelling 4" x 4" around it,
(2) A contusion 1" x 1" with swelling 3" x 3". It was 3" behind outer end of left eye-brew.
(3) An oblique contusion 3" x 1" across front of left thigh lower --".
(4) A vertical contused wound 1' x 1/2" x bone deep in front of left leg.
Injuries Nos. 1 and 2 were kept under observation. Injury No. 3 was simple while Injury No. 4 was grievous. All the injuries were caused with blunt weapon and were of 4 hours duration.
On the same day at 12-35 this doctor also examined Ata Muhammad and found the following injuries on his person :-
(1) A transverse contused wound --" x --" x skin deep" above outer --" of right eye-brew.
(2) A contused wound 2--" x --" x bone deep. It started 1" above posterior occipital protuberance and went to right, and was oblique.
(3) An oblique contused wound 2" x --" x bone deep. It was --" above and 1" to left of posterior occipital protuberance and went downward and upward.
(4) A contusion 1" x 1" on left mastoid process just behind left pinna. Bleeding from ear was taking place.
(5) Multiple intermingle stick marks 6--" x 4--" on the top and below left shoulder.
(6) An oblique contusion 7" x 1" on the left scapula.
(7) An oblique contusion 11" x 1" starting from medial and upper --" of right scapula went to left with downward tendency and ended 4" below left scapula.
(8) Multiple intermingle stick marks 6--" x 3" on back of chest right at middle.
(9) Four contusions 5" x 1", 2" x 1", 3 1/3" x 1' and 4" x 1" on left buttock.
(10) Two contusion marks 3" x --" and 2" x --" on right buttock.
(11) Two contusions 4" x 1" and 4--" x 1" on pastro lateral aspect of left thigh upper end.
(12) An oblique contusion 4" x 1" on antromedial aspect thigh at its middle.
(13) Two parallel contusions 6" x 1" and 4" x 1" and 1--" separate and outer and lower 2" of left thigh.
(14) A contusion mark 4" x 1" oblique in front of left thigh lower --"
Injuries 1 to 4 were kept under observation. Rest of the injuries were simple which were caused with blunt weapon and were of 4 hours duration.
On the same day at 12-55 afternoon the doctor examined Malka and found the following injuries on his person
(1) A contused wound oblique 1" x--" x skin deep --" outer to left eye.
(2) A contused wound --" x --" x skin deep. It was 5" behind outer end of right eye-brew.
(3) An oblique contused wound 3--" x --" x bone deep. It started from middle line of top of head, 10" behind mid eye--brew point and went to front and right.
(4) An oblique contusion 3--" x 1" on the outer side of left arm lower --".
(5) A contusion 2--" x 1" on the back of left fore arm upper half.
(6) A transverse contusion 5" x 1" on left buttock upper half.
(7) An oblique contusion 5" x 1" on postro lateral end of left upper half.
Injuries No. 2 and 3 were kept under observation. Rest were found simple and were caused by blunt weapon.
The same doctor examined Ghulam A.I at 1-20 p.m. And found the following injuries on his person :-
(1) A contused wound 2" x --" x scalp deep. It was 2" to right of middle line and 4--" behind right eye-brew. Right upper lid was blackened. It was antro-posterior.
(2) A contused wound --" x --" x muscle deep on outer side of left arm 1-- above elbow joint.
(3) A contusion 1" x 1" on the back of metacarpo phalyngeal joint of right index finger.
Injury No. 1 was kept under observation and the rest were simple. These were caused by blunt weapon and were of 4 hours duration. Ghulam A.I died in the hospital at 3-14 p.m. The same day and at 4-30 p.m. Autopsy was performed by this doctor on his dead body. On dissection the doctor found a linear fracture 31" on parietal and frontal bone under injury No. I. The right middle cranial fossa was also fractured antro-posteriorly. There was extra-vasated blood. Three ounces blood was also found on and under the duramater. Membranes and brain were congested and suffused with blood.
Injury No. 1 was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem. Time between injuries and death was 6 hours while between death and post-- mortem one hour and 15 minutes.
4. Sardara also died in the hospital at 4-15 p m. This doctor performed post-mortem on his dead body at 5-20 p.m. On dissection of the dead body under injury No. I he found a depressed fracture 1" x 1" of parietal bone. From its anterior end, a fracture went left and backward up to 4" on right parietal bone and from posterior end of depressed fracture, a fracture went backward and ended in the occipital bone. The front parietal suture bad been opened through and through. There was extra-vasated blood about 4 ounces pressing the duramater.
The brain and membranes were congested and suffused with blood under injury No. 4. Tibia bone had comminuted fracture.
Death in the opinion of the doctor was due to shock and compression of brain. Injury No. 1 was sufficient to cause death in the ordinary course of nature. All injuries were ante-mortem. The time between injuries and death was about 6 hours and between death and post-mortem was one hour and 5 minutes. The doctor in his cross-examination admitted that Ghulam A.I deceased would have become unconscious after the receipt of head injuries soon after their infliction.
5. On 16-6-1964, Dr. Zulfiqar Haider (P. W. 2), who was incharge of X-Ray Department at Gujrat District Headquarters Hospital took X-Ray picture of the head of Ata Muhammad P. W. On left lateral X-ray, he found fractures of the parietal and occipital bones on both sides of the back of the skull. He also found the same fracture by X-Ray of the skull antero--posterior view.
6. Akhtar A.I Sub-Inspector (P. W. 17) recovered sotas (Exh. P. 8) from Ghulam Rasul son of Qaim vide memo. (Exh. P. C.), Exh. P. 9 from Ghulam Rasul son of A.I vide memo. Exh. P. D. Both the sotas were found blood-stained and were sealed into parcels. Sota (Exh. P. R. 10) was recovered from Haider vide Exh. P. E. The recovery memos. Were attested by Muhammad Ashraf (P. W. 15) and Allah Ditta (P. W. 14).
7. Abdul Ghafoor Patwari (P. W. 8) prepared the site plans Exh. P. O. And Exh. P. O.
1. According to him Khasra No. 1130 belongs to the father of Ghulam Rasul appellant No. 1. This field was found wet by him at the time of inspection. He stated that it was pointed out to him that Sardara, Malka and Ata Muhammad sons of Maula Dad were weeding the sugarcane crop towards the west of Rajbah while the occurrence is stated to have taken place on the eastern side. These two places are separated by 90 karams. The Rajbah is about 10 or 12 karams wide. On the day of inspection this witness found the depth of the flowing water as 2 or 2J feet. He did not find any bridge in front of or near the place where weeding was being done in the sugarcane field. However, on the north, at a distance of 2 or 2.1 furlongs from point No. 7 there is a bridge, that connects the place of weeding of the sugarcane crop. At point No. 9 the said Patwari mentioned that Sardara deceased and other sons of Maula Dad had watered Khasra No. 1702/1438. This area situated at point No. 9 belongs to Ghulam Rasul son of Ballaki and is at a distance of 247 Karams from the place of occurrence. The land where the occurrence took place belongs to Sardara and others sons of Maula Dad. They belong to village Dharekhan Kalan. The abadi of village Dharekhan Khurd is at a distance of 3/4 of a mile from the place of occurrence.
8. Ghulam Muhammad Patwari (P. W. 16) inspected the spot under orders of the Court and demarcated the water course on the site plans Exh. P. O. And Exh. P. O /1. According to him Mauza- wise warabandi was duly sanctioned and the turn of water of village Dharekhan Khurd started at 8-56 a.m. On Saturday and ended at 10-15 a.m. On Sunday. Thereafter turn of wells Telianwala and Kirkuwala started. Copy of the sanctioned warabandi (Exh. P. W. 16/A) was placed on the record.
The watercourse irrigating village Dharekhan Kalan and Dharekhan Khurd bifurcates. The branch irrigating Dharekhan Khurd flows on the west while the branch which supplies water to Dharekhan Kalan flows towards the south. When the turn of Dharekhan Khurd begins at 8-56 a.m. On Saturday the other bifurcation of the outlet stops functioning, and when this is over, then the turn re-starts for village Dharekhan Kalan. The Patwari was directed by the Committing Magistrate to produce Khasra Girdawari at the trial, but he could not bring the same since it had been consigned to the Record Room.
9. The ocular evidence in this case consists of Malka (P. W. 9), Ata Muhammad (P. W. 11) brothers of the deceased, Sardara (P. W. 12), Nur Muhammad (P. W. 13) and Allah Ditta (P. W. 14) out of whom Malka and Ata Muhammad were injured. Malka (P. W. 9) stated at the trial that the turn of water of his village commenced after a pehr and a half in one morning on Saturday and ended at pehrwela in the morning on Sunday. The turn of water of Haider A.I and Khan Muhammad appellants started after 9 p.m. On Saturday. After them the turn of water of Ghulam A.I deceased, companion of the appellants, started which continued till 4-30 a.m. And thereafter turn of water of the complainant party started till the end of warabandi of their village, i.e. Up to pehr in the morning on Sunday. He, however, stated that he and the appellants had mutually fixed the turn of water among themselves and these turns were not according to any order of the Canal Officers. He is belied by the statement of the canal Patwari who deposed that the warabandi was duly fixed by the Canal Department which commenced at 8-56 a.m. Instead of 7-30 a.m. This witness was subjected to lengthy cross-examination by Hakim Chiragh A.I, Advocate Gujrat, in order to show that he was closely related to Ghulam Rasul ex-M. N. A. Of village Jokalian and Nawab Chairman of village Salaima and that on account of their influence Sub---Inspector Akhtar A.I (P. W. 17) did not register a case at the instance of the appellants for the murder of Ghulam A.I against the complainant- party although he expired earlier in the hospital whereas Sardara died later in the day. Qaim father of Ghulam A.I was present in the hospital whose statement was recorded by the Sub-Inspector. In his statement before the Sub---Inspector, Malka stated that the occurrence took place at the morning prayer time but at the trial he having come to know of the sanctioned warabandi turn shifted the time of occurrence to 7 or 8 a.m. According to him Ghulam A.I deceased aimed a blow at Sardara deceased which the latter received on his dang. This fact was not disclosed by him in his police statement. Sardara deceased according to him then gave sota blow on the head of Ghulam A.I deceased who after receiving the injury could not cause any injury to anyone of the complainant-party. The doctor has opined that soon after receiving the head injury Ghulam A.I must have become unconscious. He also admitted that the land of Sardara (P. W. 12) was situated adjacent to his land and that he used to exchange the turn of water with him, but at the trial he repudiated this fact. In his evidence this witness admitted that the field of Ghulam A.I had not been sown and it was lying fallow at the time of occurrence. So it cannot be said that the field in which loosan crop was standing was that of Ghulam A.I deceased. Ata Muhammad (P. W. 11), the other injured witness has stated:- "Ghulam A.I deceased gave sofa blow to Sardara deceased who warded off the blow on his stick and thus saved himself, and then Sardara deceased gave sofa blow to Ghulam A.I deceased which struck Ghulam A.I deceased on the head. Sardara deceased gave two more sofa blows to Ghulam A.I deceased which struck him on the arm. After that the four accused and Ghulam A.I deceased all belaboured Sardara deceased with their respective dangs."
We have already discussed the similar statement of Malka which contradicts the medical evidence. Ghulam A.I after having received the injuries could not cause any injury to the complainant party. This witness also shifted the time of occurrence like his brother. It is strange that this witness having been confronted by the appellants and Ghulam A.I, who were armed with sotas and who had diverted the water, did not realise the gravity of the situation. Neither he called Malka or Sardara for their help nor he returned from the spot. We know that Sardara (P. W. 12), though not related to the deceased, is a person whose land is situated adjacent to the land of the complainant-party. Ata Muhammad had admitted before the Committing Magistrate that they used to exchange turns of water with him but this was denied by him at the trial. His evidence also suffers from the same defects like the evidence of the other two eye-witnesses. The evidence of Nur Muhammad (P. W. 13) is not much different. His son is married to the daughter of the deceased Sardara. Allah Ditta (P. W. 14) repeated the same story. He is also the witness of recoveries. His land is situated near the place of occurrence and he was grazing his cattle in the land of Pir Muhammad at a distance of one killa. He admitted that this land was ploughed where he was grazing his cattle.
To us the witness is a liar. He was not grazing the cattle in his own field. Grazing is not possible in a ploughed field. In his statement (Exh. D. E.) before the police he stated that Ghulam A.I deceased and other appellants were irrigat--ing their fields at morning prayer time which he denied at the trial in order to bring the time of occurrence in conformity with the sanctioned warabandi of the village. Even otherwise his presence at the spot is doubtful since cultivators do not take their animals for grazing at the morning prayer time. That is commonly done at about chahwela.
Muhammad Ashraf Lambardar (P. W. 15) is also a relation of the deceased and the daughter of Nur Muhammad is married to his brother. Sardara deceased's daughter is married to Ranga son of Nur Muhammad P. W.
10. Akhtar A.I Sub-Inspector (P. W. 17) investigated the case. He recorded the statement of Qaim father of Ghulam A.I deceased, but did not register any case. He admitted that Qaim A.I appeared before him after his son Ghulam A.I had expired. It is strange that he did not register the cross case and thought that the registration of one case was enough. We know Ghulam A.I had expired earlier than Sardara in the hospital. The conduct of the Investigation officer is not above board. He had obviously fallen prey to the alleged influence of Ghulam Rasul ex-M. N. A. And Nawab Chairman.
Otherwise there was no reason why he should not have registered the cross case. The appellants alone were challaned and the mother of appellant No. 1 was left helpless, his one son having been arrested in this crime and the other son Ghulam A.I killed in the fight. No body bothered to hear the cries of this helpless lady and also the high handedness of this Investigation Officer.
11. The appellants denied the recoveries and participation in the crime. They stated that they have been implicated because they could give evidence against the complainant-party who murdered Ghulam A.I.
12. From the statements of the prosecution witnesses it is quite evident that the appellants were in possession of the water by which they were irrigating their fields and the complainant tried to divert it to their fields before the proper time. We are, therefore, of the view that none of the appellants had formed an unlawful assembly since they had a right for the use of water of which they were in possession according to their turn. Clause 4 of section 141, P. P. C. Would entitle the appellants to continue the use of water of which they were in possession on their turn. The appellants being in possession of water attempted to main--tain that right in good faith and thus they did not constitute an unlawful assembly when they resisted and repelled an aggression made by the complainant-party. Bagh Singh and others v. Emperor (811 C 113), Baij Nath and others v.
Emperor (85 I C 353), Inderjit v. Emperor (83 I C 523), Emperor v. Mehdi Shah wall and others (AIR 1940 Lah. 523) and a decision of the Madras High Court in re : Nadimpalli Bangaruraju and others (AIR 1942 Mad. 58) were cited at the bar. A perusal of these cases will show that in such circumstances the right of defence of property will be available to the appellants. In this view of the matter, we cannot uphold the conviction of the appellants under section 148, P. P. C. A feeble attempt was made on behalf of the State to show that neither the appellants took this plea nor they adopted this theory when they subjected the prosecution witnesses to cross--examination and, therefore, they are not entitled to the plea of defence of the property. Suffice it to say, the view of the.4 superior Courts in granting such right to the accused persons enshrines in many judgments. If from the evidence of the prose--cution such a plea can be spelt out, surely the appellants would be entitled to raise that plea even if it is not specifically so taken at the trial.
Safdar A.I v. The Crown (PLD 1953 FC 93) is an eminent judgment on this point. The latest pronouncement of the Supreme Court of Pakistan reported as A.I Muhammad v. The State (1968 SCMR 1297) also approved this principle. We are clear in our mind that the appellants had the right of defence of property i.e. The use of water of which they were in possession on account of their turn and, therefore, any attempt to disrupt the water supply by the other party would entitle them to maintain the supply and in so doing if the obstructing part, has received injuries the appellants were surely within their right to deal with the intruders. Even otherwise natural justice has been done in this case. If the complainant-party has lost one man the appellants have equally lost one person. We would, therefore, allow this appeal, set aside the convictions and sentences of the appellants and acquit them. They have already been released by a short order passed by this Court and these are the reasons for their acquittal.
13. Before parting with this case we are afraid we cannot refrain from making observation about the conduct of Akhtar A.I Sub-Inspector which has not been above board. Probably he succumbed to the political pressure put upon him by the complainant-party. We earnestly hope that the Investigating Agency in future would abstain from falling prey to any kind of lust, greed or influence from any quarter in the discharge of its duties. A copy of this judgment shall be sent to the Inspector General of Police, West Pakistan, Lahore, for proper action. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.