On the private complaint of Bashir Ahmad, complainant P.W. 9, Muhammad Mahmood Akhtar, Abdul Razzaq, Allah Ditta, Abdul Sattar, Muhammad Hussain, Hamid and Yara were tried by an Additional Sessions Judge of Faisalabad under section 302/307/148/149, P.P.C. For the murder of Gul Muhammad, deceased, attempt on the life of Bashir Ahmad P.W. And for rioting. The learned trial Judge, by his judgment, dated 23-11-1982, acquitted abdul Sattar, Muhammad Hussain and Yara, but convicted Muhammad Mahmood Akhtar, Abdul Razzaq, Allah Ditta and Hamid under sections 302/34 and 307/34, P.P.C. He sentenced the four convicts under section 302/34, P.P.C. To life imprisonment each with a fine of Rs.4,000 each or in default thereof to undergo further rigorous imprisonment for two years each and under section 307/34, P.P.C. To three years' rigorous imprisonment each with a fine of Rs.1, 000 each or in default thereof to undergo further rigorous imprisonment for one year each. The fines under sections 302/34 and 307/34, P.P.C, if realised, were ordered to be paid to the legal heirs of Gul Muhammad, deceased, and Bashir Ahmad P.W.
Respectively, as compensation under section 544-A, Cr.P.C. The appeal (Cr. A. 609 of 1982) preferred by Muhammad Mahmood Akhtar and others, convicts, against their conviction and sentences and the petitioner for special leave to appeal (4 of 1983) filed by Bashir Ahmad, complainant, seeking leave to appeal against the judgment of the trial Judge acquitting three of the accused, are both before me for disposal.
2. The prosecution case in brief is that the complainant party owned land in Square No. 53 and Square No. 65 of Chak No. 516/G.B. On 16-11-1979 at 10.00 a.m. Bashir Ahmad, complainant P.W.9, alongwith his father Gul Muhammad, deceased, was watering Killa No.6 of Square No.53 from their tube-well. Abdul Sattar, Muhammad Hussain, Mahmood Akhtar, Abdul Razzaq, Allah Ditta, Yara and Hamid, accused, came there. Muhammad Hussain accused, was armed with a .12 bore gun. The rest of the accused were armed with Lathis. Muhammad Hussain, accused, raised Lalkara that the complainant and his father should be done to death, whereupon Muhammad Akhtar, accused, gave a Lathi blow on the head of Gul Muhammad, deceased. Thereafter, Hamid, accused, gave a Lathi blow which hit him on his left temple. Abdul Sattar, accused, also inflicted a Lathi blow which hit Gul Muhammad, deceased on the thumb of his left hand, whereupon, Gul Muhammad fell down.
Thereafter, Abdul Sattar and Yara, accused, also gave him injuries, which struck him on his right elbow, right hand, left shoulder and left hand. The complainant tried to rescue his father from the accused persons, whereupon Abdul Razzaq, accused, inflicted a Lathi blow on his left upper arm.
Muhammad Mahmood Akhtar, accused, also inflicted a Lathi blow on the back of his left hand.
Allah Ditta, accused, also inflicted Lathi blow on his left wrist. Thereafter, Hamid, accused, gave Lathi blow which hit the thumb of his right hand. Yara, accused, also belaboured the complainant with his Lathi by inflicting blows on his abdomen. The complainant and his father Gul Muhammad, deceased raised alarm, which attracted Nazir Ahmad P.W.10 and Muhammad Ali P.W.11 to the spot, who witnessed the occurrence and rescued them from the accused. The accused persons made good their escape alongwith their respective weapons of offence in the direction of their homes.
The complainant and his father were carried to Primary Health Centre, Mamun Kanjan, where they were medically examined. Gul Muhammad, deceased, succumbed to his injuries at 11.30 p.m. On the same night.
The motive for the occurrence was that the complainant had purchased half square of land from Square No. 53 and half square of land from Square No. 65 from Allah Yar and Ghulam Qadir of Chak No. 514-G.B. Alongwith the half share of the tubewell installed in Square No. 54 and they used to irrigate their land from the water of this tubewell. The accused persons stopped them from irrigating their land from the said tubewell. In this respect, the complainant had also sought injunction from the civil Court Samundri.
3. On the same day at 3.30 p.m. Dr. Abdul Qayyum P.W.2 medically examined Gul Muhammad, deceased, and found four contused wounds, two swellings and a bruise or. Various parts of his body. Two of the contused wounds were on the top of head and near the left ear. An injury on the finger of the left hand was found to be grievous. The injuries on the hand and ear were kept under observation.
4. On the same day at 4.15 p.m. Dr. Abdul Qayyum P.W. Also examined Bashir Ahmad P.W.9 and found five bruises and swellings on various parts of his body, of which injuries on the left upper arm, back of left hand and left fore-arm were found to be grievous.
5. After receiving the medico-legal reports, Bashir Ahmad complainant P.W.9, proceeded to the police station, but meeting Gul Hamid. Inspector, P.W.13, at Adda Larian, he had his statement Exh.
P.E./1 recorded at 6.00 p.m. On the basis of the said statement formal F.I.R Ekh.P.E. Was recorded at Police Station Mamun Kanjan at 6.30 p.m. By Nazir Ahmad M.H.C. P.W.6. Gul Hamid, Inspector P.W.13 Proceeded to the hospital, where he prepared the necessary papers. He then proceeded to the spot, where ha recovered blood-stained earth, vide memo. Exh.P.F.
6. On 17-11-1979 at 4.00 p.m. Dr. Ghulam Rasul P.W.3 conducted post-mortem examination on the dead body of Gul Muhammad, deceased, and found the same injuries on his person as had been found earlier. Death was due to the injury or, the top of the head which was sufficient to cause death in the ordinary course of nature. The injury to the left thumb was found grievous.
7. On 16-1-1979 Muhammad Mahmood Akhtar. Allah Ditta, Abdul Razzaq, Hamid and Yara, accused, were arrested.
8. On 28-11-1979 Abdul Razzaq and Muhammad Mahmood Akhtar, accused, led to the recovery of Lathis P.1 and P.2, which were taken into possession, vide memo. Exhs. P.I and P.J, respectively, in the presence of Charagh P.W.15, Gul Muhammad, Inspector P.W.13 and Muhammad Iqbal (given up P.W.). Allah Ditta, accused, led to the recovery of Lathi P.3, which was taken into possession, vide memo. Exh.P. K, in the presence of Gul Muhammad Inspector P. W.13, Ghulam Muhammad P.W.14, and Muhammad Ali (given up P.W.). Hamid, accused, led to the recovery of Lathi P.4, which was taken into possession, vide memo. Exh.P.L., in the presence of Ghulam Muhammad P.W.14, Gul Muhammad, Inspector P.W. 13 and Muhammad Ali (given up P.W.).
9. On 26-6-198C Falak Sher and Mahboob, two persons not named in the F.I.R, were also arrested in the case.
10. On 29-6-1980 Mahboob, accused, led to the recovery of a Kassi.
11. On 23-7-1980 Abdul Sattar, Muhammad Hussain and Yara, accused, were got discharged by the police through the formal order of a Magistrate.
12. After completing the investigation, the police submitted a challan against Muhammad Mahmood Akhtar, Abdul Razzaq, Allah Ditta and Hamid, four of the accused named in the F.I.R., and Mahboob and Falak Sher, whose names were not mentioned in the F.I.R.
13. On 28-3-1981 Bashir Ahmed, complainant P.W.9, filed a private complaint against the original seven persons named as accused in the F.I.R. After the necessary inquiry, the Magistrate on 13-6- 1981 also found a prima facie case against Abdul Satter, Muhammad Hussain and Yara, three of the accused who had not been challaned by the police. On 1-9-1981, the learned Additional Sessions Judge summoned the said three accused to also face the trial. On 19-9-1981 the learned trial Judge decided to proceed with the private complaint case and the trial against the seven accused originally named in the F.I.R. Began. Being aggrieved by the said order, Muhammad Mahmood Akhtar, Abdul Razzaq Allah Ditta and Hamid, accused, filed a revision petition (Cr.R.20 of 1982) objecting to their being summoned to face trial, which was dismissed on 16-1-1982.
14. At the trial, the prosecution produced Bashir Ahmad, complainant P.W.9, to prove the motive, the said witness and Nazir Ahmad P.W.10 and Muhammad Ali P.W.11 in proof of the ocular account, Gul Muhammad, Inspector P.W.13, Ghulam Muhammad P.W.14 and Chiragh P.W.15 in support of the recoveries and Dr. Abdul Qayyum P.W.2 and Dr. Ghulam Rasul P.W.3 in corroboration of the medical testimony.
15. All the accused denied the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. They admitted that Bashir Ahmad, complainant P.W.9, had purchased half square of land from Square No. 53 and half square of land from Square No.65, but they denied that he had purchased any half share of the tubewell installed in Killas Nos.8/2 of Square No. 54, and therefore, had any right to the water from the said tube-well.
Muhammad Mahmood Akhtar, accused, in his statement under section 342, Cr.P.C. Gave the following version of the occurrence:- "I am innocent. The tubewell in Square No. 54 is exclusively owned by me. There is a Khal running between Killa No.5 and 6 of square No.53 and is to be utilized for watering my fields. Bashir Ahmad P.W.9 filed up that Khal and litigation began, which was decided against Bashir Ahmad P.W.9 by the Civil Judge on 30-7-1978 and 11-3-1979 and by Mian Rahim Bakhsh Fayyaz, Magistrate, Samundri on 28-6-1979. On the day of occurrence my servant Mahboob was watering my land which was cut by Bashir Ahmad P.W.9 and Noor Muhammad. Mahboob stepped into the Khal and readjusted the flow of water. Gul Muhammad, deceased, gave him two Sota blows and he in return beat him with the blunt side of his Kassi. Abdul Razzaq and Allah Ditta, accused and Falak Sher ,were with him and they also gave stick blows to Gul Muhammad, deceased, and Bashir Ahmed P.W.9 in the exercise of their right of self-defence. This version was accepted by the Ilaqa Police and a report under section 173 was made on 26-7-1980. Bashir Ahmed P.W.9 made an application to the I.-G. Police. Khan Taj Muhammad Khan, Additional S.P., reinvestigated the case and verified our version. Earlier, C.I.A.
Inspector had also found Bashir Ahmed's version to be incorrect. On 29-6-1980 a Kassi was recovered from Mahboob and he was challaned alongwith Abdul Razzaq and Allah Ditta, accused, and Falak Sher. I also produce a copy of the order passed by Aden Rahim Bakhsh Fayyaz, Magistrate 1 Class, Samundri, on receipt of proceedings under section 145, Cr.P.C. Dated 28-6- 1979, which is Exh.D.J. In order to be an owner of the tubewell, Bashir Ahmad P.W.9 had forged an agreement deed by deleting the figure "3" of Square No. 53 into "4" and he was proceeded under sections 468/471, P.P.C. I also produce Fard Jamabandi Exh.D.K. Relating to Square No. 54."
Abdul Razzaq and Allah Ditta, accused, accepted the above version. All the others denied their involvement and imputed their false inclusion to enmity.
16. The learned trial Judge held that the motive did not stand proved. Without placing in juxtaposition the case of the prosecution and that of the defence, he accepted the ocular account qua Muhammad Mahmood Akhtar, Abdul Razzaq, Allah Ditta and Hamid, accused, but rejected the same qua the three others. He also relied upon the recoveries and the medical testimony.
Accordingly, the trial Judge convicted four persons and acquitted three, as stated in para. I above.
17. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. Since the story of motive is very much linked up with the ocular account, both can be taken up together. The case of the complainant party is that since 1975, Bashir Ahmed complainant P.W.9 was owner of half of the land of Square No. 53 and half of the land of Square No. 65 and had half share in tubewell installed in Killa No.8/2 of Square No. 54, from which tubewell he had been using the water which the accused had been attempting to stop, despite the fact that he had a stay order in his favour from the civil Court and that on the date and tame of the occurrence, the complainant was watering Kills No.6 Square No. 53 from the water of that tubewell, when, all of a sudden, the appellants and the acquitted accused, duly armed, turn up and launched a murderous assault on them, killing Gul Muhammad, deceased and severely injuring Bashir Ahmed, complainant P.W.9. The case of the defence is that the complainant was the owner of half the land of Square No.53 and half the land of Square No. 65, but he was never the owner of half the share in tubewell installed in Killa No.8/2 of Square No. 54 or even had any right to the use of the water from the tubewell, which tubewell and water exclusively was owned by and belonged to Muhammad Mahmood Akhtar, appellant, and that at one stage the complainant party tried to demolish the water channel taking the water from Muhammad Mahmood Akhtar appellant's tubewell to his land, by first fraudulently securing an interim injunction from the Court and then covering the water channel with earth, to show that it did not exist there, which action of the complainant party was discovered and the temporary injunction was vacated and the suit dismissed by the Civil Judge on 3-6-1978 and 11-3-1979 and that a later attempt by the complainant party to secure the right to the use of the water by cooking up a false case under section 145, Cr.P.C was also discovered and finally dismissed by a Magistrate on 28-6-1979.
Certified copies Exhs. D.G. And D.H. Of the Civil Judge's orders, dated 11-3-1979 and 30-7-1978 and certified copy Exh.D.J. Of the order of the Magistrate, dated 28-6-1979 were tendered in evidence.
The version of the prosecution with regard to the ownership of half the share of the tubewell installed in Square No. 54 stands only proved by Bashir Ahmed, complainant P.W.9 alone, whereas the appellants version stands fully proved by the certified copies Exhs. D.G. D.H. And D.J. Of the orders of the Civil Judge Find the Magistrate respectively. The motive, therefore, set up by the complainant that he was the owner of the water from the tubewell owned in moiety by him must be rejected. The next question that arises is how did the occurrence start. According to the complainant's version, they were watering Kills No-6 of Square No. 53 when the accused party launched a murderous assault on them. The case of the defence is that Mahboob, the servant of Muhammad Mahmood Akhtar, appellant, was watering Kills Nos. 22 and 2S of Square No. 52, when he found that the water had been cut by Bashir Ahmad, complainant P.W.9 and Gul Muhammad, Mahboob stepped into the Khal and readjusted the flow of water. Gul Muhammad, deceased, gave him two Sota blows, whereupon he, in return, inflicted injuries on him with the blunt side of his Kassi.st Abdul Razzaq and Allah Ditta, appellants, and Falak Sher were, also with him and they also gave stick blows to Gul Muhammad deceased and Bashir Ahmad P.W.9, in the exercise of their right of self-defence. Gul Hamid, Inspector p.W.13, admitted in cross-examination that Killas No.6 of Square No.53 did not appear to have been watered, when he inspected the spot, but. He found that the Khal had been cut at Kills No. 8 of Square No. 53 and he also found that Kills Nos. 22 and 23 of .Square No.52 had been freshly watered. It is, therefore, obvious that the complainant party was not watering Kills No.6 of Square No.53 from their own tubewell, but were watering Kills No.8 of Square No.53 by stealing water belonging to Muhammad Mahmood Akhtar, appellant, by cutting Nakka in that Kills from the Khal passing by that Kills. When Gul Hamid, Inspector P.W.13, B first visited the spot, till the next day that his investigation was verified by the Deputy Superintendent of Police, the defence of Muhammad Mahmood Akhtar, Abdul Razzaq and Allah Ditta, appellants, as set up in the trial, was neither taken nor urged. The learned counsel for the complainant submits that the statement of one Rana Anwar Ali Khan was recorded on behalf of the accused by the police in their Zimnis, which does not refer to this defence taken at the trial. No evidence has come at the trial showing that Mahboob was injured. No question was put to the Investigating Officer' to prove the fact that Mahboob --was injured by Gul Muhammad, deceased, in the incident, or that when he visited the spot and took up investigation, he found injuries or, the e person of Mahboob. The total absence of cross-examination in this matter shows that Mahboob was not injured at all by Gul Muhammad deceased, in the occurrence. Learned counsel for the complainant submits that the police Zimnies show that the defence case of three of tile appellants, as asserted at the trial, was not taken up till 23-11-1979, i.e. After they were arrested and after they got the investigation transferred to the C.I.A. I cannot rely on the Zimnies. From the evidence or the record and the surrounding circumstances, it is clear that the complainant party pinched the appellants' water from the Khal through their Kills No.8 of Square No. 53, that the appellants, or one or more D of them, together with their servants or tenants, were then irrigating their Kills Nos. 22 and 23 of.
Square No.52, that when they found the flow of water depleted, they or some of them repaired upstream, to find the complainant party stealing their water and in defence of the property they beat the deceased and his son. None of the appellants, the acquitted accused of Mahboob or Falak Sher suffered any injuries, It is not possible to believe that the deceased and his son were unarmed or that no verbal quarrel ensued. Very likely they had a sickle or Deng with them, as they were irrigating villa No.8 and had also cut a Nakka and very likely they abused or quarrelled with the appellants. But the absence of injuries on the appellants clearly shows that they launched the assault with speed and despatch, which is consistent with the facts which show that they had been intimidated earlier by the complainant party by false litigation and they were not going to permit the complainant party, to get away with it this time, without giving them a good thrashing.
18. The defence taken by the appellants cannot be believed. It was not taken up at the very first- opportunity before Gul Hamid, Inspector P.W.l3; when he first took up the investigation. It was not taken up before the Deputy Superintendent of Police, who verified the first investigation. Mahboob was not injured in the occurrence by Gul Muhammad, deceased, as alleged. No questions were put to the Investigating Officer to elicit the fact that Mahboob was injured in the occurrence or he was seen with injuries on his person when he first investigated the base. In the absence of any injuries on the person of any of the appellants or the acquitted accused, the whole defence story falls to the ground. The defence story of the appellants must be rejected.
19. Two matters that now remain are first, what is the offence committed by the assailants and second, as to which of the accused I participated in the occurrence. There has been past litigation between) Bashir Ahmed, complainant P.W.9, on one hand, and Muhammad Mahmoood Akhtar, appellant, on the other, with regard to the water passing in the Khal from the tubewell installed by the said appellant in Kills No.8/2 of Square No. 54, but this would not have given any of the appellants or the acquitted accused 'motive to murder the complainant or his father. The occurrence occurred over theft of water by the complainant party, which having been discovered, the accused party gave a good thrashing to the complainant party in exercise of their right of private defence of property. In, these circumstances, it cannot be said that any member of the accused party had any premeditated design to murder the complainant or his father. Gul Muhammad deceased, received seven blunt weapon injuries on various parts of his body, including one on the head and one on the left ear, of which that on the head proved fatal. Bashir Ahmed P.W.9 received five blunt weapon injuries on various parts of his body, of which three on his- arms and hands were grievous. The injuries on Gul Muhammad, deceased and Bah sir Ahmad P.W.9 also do not show that the main aim of the accused party was to cause death. At best, therefore, the offence committed appears to be that under section 326/34, P.P.C, except that of the K person who gave the fatal injury on the head, who would be liable under section 304-I, P.P.C. For exceeding his right of private defence. The eye-witnesses cannot be totally believed with regard to the number of persons who took part in the occurrence. Three of, the accused were acquitted by the trial Judge. In these circumstances, it is necessary to look for corroboration with regard to each accused. All the appellants appear to have led to the recovery of Lathis, but they not being blood- stained, do not decisively fix participation of these appellants. However, Muhammad Mahmood Akhtar, appellant, in his statement recorded under section 342, Cr.P.C. Has admitted the participation a Abdul Razzaq and Allah Ditta, appellants in the crime in instance, I would, therefore, hold that there is corroboration against Abdul Razzaq and Allah Ditta, appellants, and their participation in the occurrence stands proved. According to the ocular testimony, Muhammad Mahmood Akhtar, appellant, alone gave the fatal injury to Gul Muhammad, deceased. In these circumstances, Abdul Razzaq and Allah Ditta, appellants, are liable under section 326/34, P.P.C.
There being no corroboration against Muhammad Mahmood Akhtar and Hamid, appellants, they are entitled to the benefit of doubt.
20. The upshot of the above discussion is that the case stands proved against Abdul Razzaq and Allah Ditta, appellants, in respect of offence under section 326/34, P.P.C. (on two counts i.e. For injuries to Gul Muhammad, deceased and Bashir Ahmad P.W.). Both these: appellants are sentenced under the said section to seven years rigorous, imprisonment each on each count with a fine of Rupees four thousand (Rs.4,000) each on each count or in default thereof to undergo further rigorous imprisonment for six months each on each count; the sentences on both counts to run concurrently. The fines recovered under section 326/34, P.P.C. With regard to the injuries inflicted to Gul Muhammad, deceased, shall be paid to the legal heirs of the deceased as compensation and that recovered under the same section with regard to injuries inflicted on Bashir Ahmad P.W.7, shall be paid to him as compensation. Benefit of section 382-B, Cr.P.C. Is granted to the appellants.
21. For the foregoing reasons, the appeal of Muhammad Mahmood Akhtar and Hamid appellants, is accepted and their conviction and sentences are set aside. They shall be set at liberty forthwith, if not required in any other case. The fines, if any recovered from them, shall be refunded to them.
The appeal of Abdul Razzaq and Allah Ditta, appellants, is partly accepted, in terms of alteration of their conviction and reduction in their sentences, as stated above. The said appellants are on ball.
They shall be taken into custody, to serve out the remaining portion of their sentences.
22. There being no merit in the petition for special leave to appeal (P.S.L.A No. 4 of 1983) filed by Bashir Ahmad Complainant the same is dismissed in limine.