1. MUHAMMAD HALEEM, C.J.--This appeal arises from the judgment of the High Court dated 2-5-1984 by which criminal appeal No.105 of 1981, was dismissed.
2. Leave to appeal was granted to consider whether the Courts below were in error to hold that the appellants had exceeded the right of self-defence in causing the murders of Ata Muhammad and Allah Yar.
3. Khadim Hussain, Din Muhammad. Ghulam Yasin, Ghulam Mustafa, Muhammad Shauqin and Shamsuddin were indicted for the murders of Ata Muhammad and Allah Yar. The incident occurred at 4-00 p.m. On 8th of June, 1980, in the field belonging to Abdul Majid in Mauza Duranwala within the jurisdiction of Police Station Lodhran.
4. Abdul Majid P W.1 the son of Ata Muhammad one of the two deceased and who was himself injured, gave a statement at 8-30 p.m. Which was later transcribed in the 154 Cr. P.C. Book and read as F.I.R.
5. Stating therein that at about 2-00 p.m. a servant of Ghulam Yasin came to his sugarcane field and started digging a watercourse to irrigate the land of his master. His father Ata Muhammad who was there prevented him from doing so and told him to convey to Ghulam Yasin to come himself if he wanted to irrigate the land. The servant thereupon left the field. However, at 4-00 p.m. While he and his relatives were in the house which was 48 Karams away from the field, he heard the lalkara of Ghulam Yasin upon which he and his father Ata Muhammad came out and saw Ghulam Yasin, Shamsuddin and Din Muhammad armed with hatchqts; Ghulam Mustafa, Khadim Hussain and Muhammad Shauqin armed with sotis waiting for them.
6. Ghulam Yasin said that he had come and that he would irrigate the land. Ata Muhammad with his folded hands pleaded that he was not in a position to fight and that he should desist from doing so. Soon after Din Muhammad gave a hatchet blow on the head of Ata Muhammad which fell him down. Shamsuddin caused a hatchet blow to Abdul Majid, and at this juncture Allah Yar, his cousin, Manzcor Ahmad son of Allah Yar, Abdul Sami, his son, Ibrahim, Muhammad Yousaf, Abdul Majid, Lal Khan and Mst. Rehamt Mai, mother of Abdul Majid came to the spot to intervene but as they were bent upon to fight Ghulam Mustafa and Khadim Hussain gave two lathi blows one each on the head of Allah Yar while Ghulam Yasin gave a kulhari blow on his upper right arm. Who fell down and expired. Din Muhammad gave kulhari blows on the head of Abdul Aziz. Mst. Rehmat Mai in order to save Ata Muhammad from receiving further blows fell on him that she was also not spared as Ghulam Yasin gave a kulhari blow on her head while Khadim Hussain and Muhammad Shauqin gave lathi blow to her. Abdul Sami and Ibrahim who were at that time shouting for help were also belaboured and they too received injuries. The deceased were then taken to the hospital on cots, but Ata Muhammad died on the way while Allah Yar expired a little while later in the hospital Appellant Ghulam Yasin and deceased Ata Muhammad are cousins inter se and before the present incident, it is an admitted fact that they had no enmity with each other. It is also not disputed that the blood-stained earth was secured from the land of Ghulam Yasin. The other significant feature is that it was Ghulam Yasin's turn of water till 10-30 p.m. And that no digging of the watercourse was noticed and that the water had been diverted from inside the Khal at the Naka, the usual place from where the water was diverted into the field. This water-course runs from Killa No.4 of square No.38, and irrigates squares Nos. 39, 49, 41, 42, 43 and 52. The incident, according to the F.I.R. Was said to have occurred in the front of the house of Ata Muhammad, but this is factually incorrect as no blood was secured from there. On the other hand, it was secured from the field in possession of appellant Ghulam Yasin. Further what transpires is that Ghulam Yasin had purchased 5 Bighas of land in Killa Nos.4, 15, 19 and 20 of square No.38 from Mst. Anwar Mai, a widow whose husband had earlier promised to sell the land to the complainant party but the widow refused to sell it to them. However, this land was cultivated by the complainant party, but one year before the incident they relinquished possession of 3 Bighas in favour of Ghulam Yasin while 2 Bighas still remained with the complainant party in Killas Nos. 13 and 14. Apparently it seems that the complainant party wanted to establish their possession over the field which was the subject-matter of sale in order to create a right of pre-emption in their favour. It was for this reason that they had entered into the field of Ghulam Yasin which was in his possession.
7. Ghulam Yasin when examined under section, 342, Cr.P.C. Stated that he along with his servant went to Killa No.4 of square No.38 to take his turn of water for his land where he saw both the deceased who obstructed him from doing so, and, in fact, advanced towards his servant to prevent him from diverting the water towards his land. In the meantime, the relatives of Ata Muhammad and Allah Yar also arrived there and proclaimed to him that he had no right to irrigate his land as they had taken over the possession of the whole land purchased by him. Thereupon he was attacked by both the deceased with sharp and blunt weapons. His servant, in order to rescue him, attacked deceased Ata Muhammad with his Kassi. He then called for help which attracted his other servants who were thrashing wheat in the nearby field. There was then a fight in which both the parties received injuries.
8. The trial Court upon sifting the evidence in the context of the proved circumstances and the plea of defence, held as under: "P.W. 1 Abdul Majid has admitted that northern 1/2 of Kills, No. Was including possession of Yaseen accused, that the adjacent land belonging to Yaseen and that the land owned by Yaseen was irrigated from watercourse which took of from Kills No.4. He has also admitted that the accused owned land in squares Nos. 23, 22 and that they used to utilize the water sanctioned for it for their land in square No.S8. He has also admitted that the turn of water of Yaseen accused fell on the day and time of occurrence. The question arises as to why should Yaseen accused start digging a new watercourse when he had proper source of irrigation through an already existing and sanctioned watercourse. All the factors mentioned above negate the contentions of prosecution and the material on the record shows that Yaseen was irrigating his land from legitimate source of irrigation while Ata Muhammad and the P.Ws. Took upon themselves to interfere with that."
9. On appeal, the High Court upheld the view of the trial Court and maintained their convictions and sentences.
10. Before us it is sought to be argued that they had the complete right of private defence both as regards their person and property which was trespassed. It cannot be doubted that Ghulam Yasin had received injuries, (two incised and one with the blunt-weapon out of which one was grievous as it had resulted in a fracture of the' metacarpal bone), before the fight had taken place.
11. Undoubtedly, therefore, he had a right of private defence both against his person and property, but only against Abdul Majid and Ata Muhammad, who had trespassed into the field and had first obstructed and caused to him injuries. In this view of the matter, the right extended to the causing of injuries to anyone of them even to the extent of killing them so long as the apprehension continued. However, as the fight had developed, multiple injuries were caused to the prosecution witnesses namely, Abdul Majid, Abdul Aziz, Muhammad Yousuf, Rehmat Mai and Manzoor Ahmed with blunt and sharp-edged weapons which inevitably slowed that there was a concerted attack on them with lethal weapons. As compared to this phenomenon, it was Ghulam Yasin who was alone injured in which case the causing of injuries to them, in a manner so stated, was out of proportion. As for Allah Yar, he 'too had come later and did not appear to be armed nor is there any other material apart from the statement of Ghulam Yasin that he had attacked either him or any one of his companions. Accordingly, Din Muhammad and Ghulam Mustafa, who had attacked him and caused his death, could not be said to have used force in the exercise of their right of private defence to the extent of taking away his life. It should not be forgotten that the right of private defence is subject to the limitation that it in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence: This limitation has to be considered on the plane of facts, and, in our view, both these appellants have exceeded the right of private defence having regard to the extent to which the right was exercised.
12. We are informed at the bar that except for Din Muhammad and Ghulam Mustafa all others have served out their sentences and have been set at liberty. Be than as it may, their appeal on merits fails as also the appeal of the other two. Accordingly, it is dismissed.