Baddar Din appellant was tried alongwith 8 others for the murder of Fatal Muhammad and for causing injuries to Noor Muhammad (P. W. 5). The appellant was convicted under section 302, P. P.
C. And sentenced to transportation for life while the others were acquitted by the learned Sessions Judge, Multan, vide order dated 2nd January 1971. The appellant has filed this appeal through Jail.
2. I have heard learned counsel for the State and perused the record. The occurrence is alleged to have taken place on the night between 13/14th October 1969, at about 10 p.m. In Chak No. 315/W. B., situate at a distance of 6 miles from Police Station, Dunyapur, District Multan. First Information Report was lodged by Noor Muhammad at 6 a.m. On 14th October 1969. The appellant is alleged to have been armed with spear while his companions had hatchets and Bangs.
3. The dispute arose over the diversion of water which Badar Din wanted for irrigation of his field.
Noor Muhammad P. W. Claimed that there were still 19 minutes left. On this the parties started grappling with each other. Fazal Muhammad and Noor Muhammad were also having spades and dangs. Badar Din appellant is alleged to have given spade blow to Fazal Muhammad who fell down and thereafter Hassan Muhammad, Allah Ditta and Suleman some of his co-accused caused injuries with hatchets. Kandal, Sardar and Asghar A.I rest of the accused gave sota blows to Noor Muhammad P. W. The role ascribed to Muhammad Aslam and Jamal Din only was that they diverted the water into the field of Badar Din appellant. Besides the injured witness Noor Muhammad (P. W. 5), Niaz Muhammad (P. W. 7), Wali Muhammad (P. W. 9) and Faqir Muhammad (P. W. 13) saw the occurrence. Noor Muhammad and Wali Muhammad are cousins of the deceased while Niaz Muhammad and Faqir Muhammad are cousins inter se. Faqir Muhammad died and his statement was transferred to the sessions file, under section 33 of the Evidence Act, at the trial.
4. Blood-stained spear (P. 1) was recovered from Badar Din appellant on 16th October 1969, vide memo Exh. P. C. By Muhammad Hayat Sub---Inspector (P. W. 11). The recovery was attested by Muhammad Boota and Faqir Muhammad. The report of the Serologist reveals that the scrappings from the spear had the origin of human blood.
5. Dr. Altaf Hussain Gardezi (P. W. 6) performed post-mortem examination on 15th, October 1969, at 12 noon. He found four incised wounds (1) on the right chest (2) on the posterior border of right axilla (3) & (4) on the back of left chest. According to him injuries 1 and 2 collectively and injury No. 3 individually were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor injury No. 1 could be caused by spear (P, 1). Injuries 2, 3 and 4 could be caused by hatchets (P. 2) and (P. 3). In cross-examination he, however, admitted that before the C. M. He stated that all the injuries on the person of the deceased were stab wounds which could be caused by a spear.
On 14th October 1969, Dr. Nazeer Ahmad, Medical Officer, Dunyapur examined Noor Muhammad and found (1) swelling, (2) abrasion, (3) scratches and (4) bruise on his person. All the injuries were simple and were caused with blunt weapon.
6. After going through the evidence of eye-witnesses I am of the opinion that the witnesses have tried to exaggerate the story in order to implicate several persons. The learned Sessions Judge was perfectly right in acquitting them. The witnesses admitted that there was grappling before the fight and the deceased Fazal Muhammad and his companion Noor Muhammad (P. W.) had spades as well as dangs with them. The absence of any sharp-edged injury on the person of Noor Muhammad clearly proves that only Badar Din used his weapon on the deceased.
7. Badar Din in his statement before the learned Sessions Judge stated that he went to the watercourse after consulting the time-keeper and called out the name of Fazal Muhammad deceased but when no reply came he diverted the water to his own fields. When he was proceeding to his square Fazal Muhammad deceased and Noor Muhammad P. W. Attacked him with their sticks. He in self-defence moved his own stick and when he got a chance he ran away.
8. It was a dark night. The testimony of eye-witnesses reveals that there was exchange of abuses and grappling between the accused, the com--plainant and the deceased. The appellant claims to have received injuries but he has not been examined by any doctor. In his statement although he has denied that he caused injuries to the deceased in self-defence, but the trend of cross- examination of the witnesses goes to show that the appellant having diverted the water to his field tried to defend his right to use the water and the interference of the deceased and his companions with his right of water led to the fight in which Fazal Muhammad lost his life. Even if the accused was within his right to protect his right of water and to defend himself against the complainant, but certainly he has exceeded his right. Had he been examined by the doctor and the injuries had been found perhaps the case would have been different but owing to the absence of any injury on his person in my view, he has exceeded his right of private defence. His conviction is, therefore, altered from section 302 to section 304, Part I, P. P. C. His sentence of transportation is reduced to 10 years'
R. I. To which extent the appeal succeeds.