MUHAMMAD AFZAL ZULLAH, J.-Din Muhammad alias Dinoo aged 29 years, Dooni son of Rasula aged 24 years, Rasula aged 45 years, and Murad Khan aged 54 years, were tried for an offence, under section 302/34 of the Pakistan Penal Code for the murder of Jan Muhammad alias Gian Singh aged 30 years, by the learned Additional Sessions Judge, Sheikhupura, who vide his judgment dated 6-9-1966, acquitted all of them by extending to them the right of private defence.
The State has filed this appeal against acquittal under section 417 of the Criminal Procedure Code.
2. The Prosecution case as disclosed in the statement of Amir, P. W. 8, who is brother of the deceased, is an eye-witness and is also the first informant, is as follows: - Dooni, respondent, is the son of Rasula, while Murad Khan, respondent, is his brother-in-law. Din Muhammad and Dooni, respondents, are not related to each other but cultivated some land jointly under Neena father of Chandar P. W.
On the day of occurrence, which took place on, the night between 26/27-10-1964, Jan Muhammad deceased and his nephew, Umar Din alias Amer Singh P. W. Went out, at about 9 P.M. To irrigate their land from canal water.
At about 12 in the night, when Amir Khan was present' in his house, he heard an alarm raised by Umar Din P. W, on the one hand, and Dino and Dooni, respondents, on the other. He, along with Chhajju and Chandar P. Ws, rushed to the spot, and saw that Rasula and Murad , respondents, had caught hold of the deceased. Dino and Dooni, respondents, struck sota blows on the head of the deceased, who fell down. Rasula then gave a sota blow on his chest, and Murad struck him with a sota on his shin. All the witnesses raised an alarm where--upon the respondents ran away. While running away, Dino respondent struck two sota blows on Umar Din P. W. Jan Muhammad had become unconscious.
It was a moonlit night. He was brought to the but by Amir P. W. Where some first-aid was administered to him but he did not regain consciousness. He was then carried to Hala Dispensary at a distance of about 3 miles where the party reached at about 8/9 a.m. In the morning. Jan Muhammad expired in the hospital after some time.
The Doctor gave a memorandum to Amir P. W.Which was taken by him to Police Station Sarai Mughal, which is at a distance of 13 miles from the spot.
Amir P. W. Then lodged the F. I. R. Exh. P. C. At 12 noon in the Police Station. It was recorded by Sub- Inspector Bahadur Shah P. W.
Before leaving the spot, Amir P. W. Had asked Umar Din P. W. The cause for the attack and he was told that when he and the deceased were irrigating their field at about 11-45 p.m. Dino and Dooni, respondents, came and diverted the flow of water towards their maize crop. He and Jan Muhammad objected saying that their turn of water was to last till 12-45 after midnight and that the turn of the respondents had not started by then. On the other hand, Dooni and Dino, respondents, asserted that their turn of water had started and that the deceased could go and see the time in the watch in the house of Dooni, respondent, who was acting as the time-keeper. On this Jan Muhammad went to the house of Dooni and brought his watch with him from his house.
Umar Din further told Amir P. W. That when. Jan Muhammad returned, Rasula and Murad , respondents, who had dangs in their hands, also came with him. At that time, according to Umar Din, it was 12 mid night by the watch of Dooni. Having noticed the time on the watch according to which the turn of the respondents bad not yet started, Umar Din told Jan Muhammad deceased to divert the flow of water to his field. At this, when Jan Muhammad waded the watercourse in order to divert the water to his field he was caught by Murad and Rasula, respondents, and was then injured by all four of them.
3. Doctor Musharaf Husain who examined Jan Muhammad before his death at 8-45 a.m. On 27-10- 1964 found the following injuries on his person: - "(1) One incised looking wound with irregular margins, measuring 1-- x -- x 1 --", situated on the head extending from right parietal region towards occipital region 3-- above the right
(2) One bruise, measuring --" x --, situated on the left parietal region on the head 2--" above from the forehead.
(3) One abrasion, measuring 1" x --", situated on the left leg (upper part laterally) 3" below from the left patalae.
(4) One bruise, 1" x --", situated on the chest (right side) 4" laterally from the right nipple."
The patient was unconscious and he could not speak. He expired at 8-50 a.m.
4. On the same injuries on his person the following two injuries on his person: - "(1) An abrasion, measuring 1" x--, situated on the front of the right forearm (lower part) near wrist joint.
(2) One bruise, measuring --" x --" situated on the back of the left shoulder-joint."
These two injuries were simple and were caused by blunt weapon. The duration was within 12 hours.
5. Doctor Fida Muhammad Piracha, performed the autopsy on 28-10-1964, at 12 noon, and found the following injuries on the dead body: -
(1) A contused wound on the right side of head in the right parietal area, 3" above the right ear, 1--" x bone deep (1 /8 antero-posterior in direction).
(2) A contusion mark in the left parietal 2" x --" antero posterior.
(3) An abrasion mark upper third of left leg, 1" x -- and 3" below the knee, There was fracture of right temporal bone at the site of junction with frontal bone 1--" long, fissure type, V-shaped, 2" x 2' fracture of right temporal descending to middle fossae of the skull. There was fracture of petrous portion of temporary bone extending to posterior cranial fossae of the skull and there was discharge of uncoagulated blood from the fracture. There was extra-dural haemorrhage in the right and left parietal and temporal regions and a big clot 4" x 3" was present causing depression to right cerebral hemisphere. Subdural haemorrhage was present.
There was 10 ounces of digested food in the stomach. Spleen was enlarged but the Doctor stated that it was not ruptured. The death was due to injury No. 1 which was-'sufficient in the ordinary course of nature to cause death. Time between injury and death was a few hours and between death and post-mortem about 24 to 48 hours.
The Doctor was questioned by the Public Prosecutor at the vial. He did not exclude the possibility that all the injuries on the deceased were caused with a dang.
6. During the investigation, the police recovered lathis, Exhs.P.7 to P. 10, from Murad , Rasula, Dino and Dooni, respondents respectively. Shirt Exh. P. 11, was recovered from Dino, respondent. Only dang Exh.P.9, and shirt, Exh. P. 11, recovered from Dino, respondent, were found to have been stained with human blood.
7. At the trial, the prosecution case was supported by the ocular account given by Amir, Umar Din, Chhajju and Chandar P. Ws., while the recoveries were supported by Muhammad Tufail Lambardar and Sub-Inspector Bahadur Shah, P. Ws. Reliance was also placed on the Warabandi Report, Exh. P.
Q./1, which has been proved by Tufail Elahi, P. W. 6, Assessment Clerk, office of the Executive Engineer (Canal) L. B. D. Canal Division, Halloki.
8. When examined under section 342 of the Criminal Procedure Code, Dooni and Murad denied their presence at the spot and attributed their implication to enmity. Dino and Rasula, however, while admitting their presence, raised a plea of right of private defence of person and property. In this behalf, the statement made by Dino, which was adopted by Rasula, is as follows: - "I and Rasula went to water our field. We found Umar Din alone present there. We diverted the flow of water towards our field as it was the time of our turn of water. Umar Din went running to the village. He brought his uncle Gian Singh alias Jan Muhammad. Jan Muhammad came abusing us in loud tone. Other persons of our village also came on the alarm. Jan Muhammad and Umar Din attacked me and Rasula with kahi. We raised our dangs to protect ourselves from the kahi blows.
By that time persons of the village collected, and, in the melee, Jan Muhammad and Umar Din were injured at the hands of some one, but I cannot say at whose hands. Complainants set up a false case against us."
No evidence was produced in defence.
8. The learned trial Judge held that Umar, P. W. Was involved in and saw the occurrence, but doubted that the other three eye-witnesses were present during the occurrence. He further held that "It is not established that it was the turn of water of Umar Din and Jan Muhammad deceased at the time of the occurrence, but they somehow or the other thought that it was still the time of their turn of water, and so the trouble." He also held that the deceased tried to divert the water at a time when the accused were already irrigating their field. He did not believe the recoveries, and, finally held, that "it appears that Umer Din and the deceased Jan Muhammad thought that the accused had no right to divert the flow of water to their field at 12-04 a.m., and when Dino and Rasula, accused, diverted the water to their field at the time of their turn of water, Umar Din and Jan Muhammad took it ill, and wanted to divert the water to their field by placing a naka in the water channel . . .
Naturally, when Jan Muhammad was trying to stop the flow of water to the field of the accused, this must have given rise to a quarrel in which Dino and Rasula or may be his son Dooni attacked and caused injuries to Jan Mohammad and Umar Din." On the basis of this finding of fact, he held that the conduct of Umar Din and Jan Muhammad deceased amounted to robbery of water. That being so, "The accused were within their right to cause the death in view of the provisions of section 103 of the Pakistan Penal Code, and as such they did not commit any offence and are entitled to acquittal".
10. We have gone through the entire evidence and have heard the learned counsel at some length.
The contention of the learned Assistant Advocate-General that the turn of water of the complainant party was to continue up to 12-45 a.m. Does not appear to be well-founded, firstly because the warabandi, (Exh. P. Q.) does not support it; secondly, if the time of 36 minutes allotted to Attley, brother of Umar Din, was to be added to the time of Umar Din and others, there is no reason why the time allotted to Shabrati (3 hours and 14 minutes) should not have been added to it. If this time is added, then the turn of the complainants' family would have continued up to about 4 a.m., but this is not the Prosecution case; thirdly, the time allotted to Attley and Shabrati is not continuous with the time allotted to the other members of the complainants' family. We, therefore, agree with the learned trial Judge that the turn of complainants' party was to expire at 12-04 a.m.
The contention of the learned counsel for the respondents that Umar Din had no connection with the turu of Amir, P. W. Which continued up to 12-04 a.m. Is not acceptable, because Arnir P. W. Who is the uncle of Umar Din, has stated otherwise. Moreover, Umar Din, being the tenant of Amir, P. W.
Was entitled to irrigate his field in any manner he liked. It is also not possible to agree with the learned counsel for the respondents that Jan Muhammad deceased had no business to be at the spot. Jan Muhammad, admittedly, was the uncle of Umar Din, and even, according to the defence, on a dispute having arisen, he was brought at the spot. Moreover, there is nothing improbable in Jan Muhammad having helped his nephew Umar Din irrigating the land during the night and that too for several hours.
11. The question of exercise of right of private defence in this case, as rightly pointed out by the learned trial Judge depends upon the decision as to whose turn of water was at the time of occurrence. I may add that the question of bona fide of one or the other party cannot be ignored. It is admitted by one of the Prosecution witnesses that had the deceased known that the complainant party's turn of water was up to 12-04 he would not have objected to the taking of water by the accused. It is mentioned in the statement of Umar Din, P. W. That it was at about 12 midnight that they initially noticed that Dino and Dooni accused had diverted the water to their field. After this, the deceased went to bring the watch, and when he came back, it was then 12 midnight according to the watch. It must have taken a few minutes for the parties to argue on the question of the turn of water. Obviously when the deceased waded through the watercourse for diverting the water, their turn of water had, by that time, expired. In addition to the circumstances mentioned by the learned trial Judge, the above facts further show that when the deceased proceeded the naka with a kassi in his hand, and, for that purpose, actually got into the water course his act amounted to an attempt to stop the water and divert the same. He had no right to do so. The water, at that time, was already flowing in the field of the accused, thus, the accused had the right of private defence of property (flow of water) against offences of at least theft and mischief. They had, undoubtedly, the right to cause injuries to the deceased to prevent him from accomplishing the act. In so doing, the accused Dino and Dooni, respondents, are said to have given one soil blow each on the head of the deceased. Each one of them had (separately) the right to cause injury to the deceased in exercise of right of private defence of property. Only one of the injuries was grievous and proved fatal, the others simple. The assailant, who caused simple injuries, undoubtedly, did not exceed the right of private defence, it is not known who out of the two, namely Dino and Dooni, caused the fatal injury. Therefore, it cannot be said who out of the two exceeded the right of private defence by causing the death. As it is not known who is responsible for exceeding the right of private defence, therefore both are entitled to benefit of doubt. I, therefore, hold that while exercising their right of private defence of property none of them had exceeded that right. The acquittal, therefore, is fully justified on this ground. This appeal merits to be dismissed.
12. Some arguments were addressed on the question whether the conduct of the deceased amounted to robbery. One way of looking at his conduct is that he was armed with a kassi, and the owner of water being present, the latter could be put in fear of instant hurt, therefore, the deceased had attempted to commit an offence of robbery. The other aspect is that mere carrying an instrument of diverting the water viz. Kassi and proceeding towards the naka for diverting the water, normally, would not create fear of instant hurt unless the deceased would have shown some further conduct in that direction, therefore it did not amount to attempt to robbery but was only an attempt to commit mischief or theft. In view of the above findings by me on the question of the right of private defence involved in this case, it is not necessary to decide the question relating to the attempt qua robbery.
13. Another contention was also raised that while attempting to commit mischief, and or theft, the deceased carried a kassi, therefore the accused could apprehend, if not death, at least grievous hurt to their person, therefore they had the right to kill the deceased. The answer by the learned Assistant Advocate----General is that remote anticipation is not permissible. Moreover, it is not every apprehension which gives rise to that right but only a reasonable apprehension, and, in that connection, the proximity qua act, distance and time, is necessary. In this behalf he cited Mehdi Khan v. The State (PLD 1959 Lah. 1009). The facts of that case are slightly distinguishable. The leaned counsel, however, relied on the following observation made in that case by Division Bench of this Court: - "Needless to say that there can be no right of self-defence against an anticipated action. It is only a reasonable apprehension of damage or mischief to the property or harm to person that gives rise to the right of "self-defence" subject always to the limitations of that right contained in section 99 of the Penal Code. And there can be no reasonable apprehen--sion without a positive overt act by the opposite side. If the actual act of damage or mischief or harm has not been set in motion, no occasion arises for any defensive action. If people were allowed to take the law into their own hands for warding off imaginary threats to, their persons or property, the result can well be imagined."
The proposition of law propounded by their Lordships quoted above clarifies the position to a very large extent, but, again, in view of the fact that I have decided the question of exercise of right of private defence on another issue, it is not necessary to discuss this argument in any detail. On the view that I have formed on the question of exercise of right of private defence of property and excess thereof, this appeal fails and the same is accordingly dismissed, MUHAMMAD MUNIR FARUKEE, J.-I agree.