SHAFIUR RAHMAN, J.---Leave to appeal was granted to the three convicts under sections 302/34 and 307/34, P.P.C. To examine whether section 34, P.P.C. Was at all applicable to their conviction and sentence and whether they could be convicted under section 307/34, P.P.C. For one of the injured who chose not to appear at the trial and was given up by the prosecution as having been won over.
2. The prosecution case in brief against the appellants was that Ghulam Muhammad one of the appellant convict suspected that Muhammad Zaman deceased had illicit relations with his sister Mst.Sakina and invoking the pretext of a dispute over irrigation water on the 30th September, 1974 while he himself was armed with a gun and the co-accused Sher Khan with Barchha and Muhammad Khan with Sota, attacked the deceased and his companions Aslam Khan (PW-6) and Bahadur Khan not produced. The report about the occurrence was recorded at 10-00 a.m. The same day. The investigation was conducted by Muhammad Afzal Khan, S.I. The appellants were arrested on 3-10-1974. Muhammad Khan accused produced the Lathi (P.5), Sher Khan produced Barchha (P.6) and Ghulam Muhammad produced the gun (P.7). Muhammad Zaman deceased died of fire--arm wounds. Bahadur Khan (not produced) had received one incised stab wound on the neck while Aslam had received a lacerated wound on the head. All the appellants denied their involvement in the occurrence or recoveries from them. They pleaded that they had been implicated in the case on account of enmity.
3. The trial Court believed the prosecution case, particularly the presence of Atta Muhammad (PW- 5) and Muhammad Aslam (PW-6) and found all the appellants guilty under sections 302/34, P.P.C.
And 307/34, P.P.C. All of them were on conviction under section 302/34, P.P.C. Sentenced to life imprisonment and to pay a fine of Rs.1,000 each. They were also convicted and sentenced to 3 years' R.I. Each and to pay a fine of Rs.500 each under section 307/34, P.P.C.
4. On appeal the High Court did not believe the motive advanced by the prosecution and instead the following finding was recorded:- "In fact the occurrence had taken place on account of a dispute over irrigation of land and the story of Muhammad Zaman deceased's illicit relations with Mst.Sakina daughter of Sher Khan appellant has been introduced unnecessarily perhaps with the object of meeting the plea of exercise of the right of private defence of property by the accused."
Non-production of Bahadur was considered immaterial, even for the conviction recorded for his injury. Right of private-defence claimed before the High Court by the appellants was denied to them. The appeal was dismissed.
5. The conclusion of the High Court that the motive of illicit relations with Mst.Sakina was falsely introduced finds support from the two facts. In the first place, Sher Muhammad (PW-1) the father of the deceased claims to have verged from Muhammad Zaman and found it untrue. Though he did not say so, Atta Muhammad (PW-5) stated that accused Sher Khan was assured that his information was not correct. The second fact to be noted is that the parties were closely related.
Atta Muhammad (PW-5) admitted that Sher Khan accused who was the father of Ghulam Muhammad accused was paternal-cousin of his father and that of the deceased. He was also the brother of his (Atta Muhammad's) mother. Muhammad Khan, the third accused was the real paternal-cousin of Atta Muhammad. In this context and for these reasons, the motive set up namely, the illicit relations was justifiably adjudged to be not true.
6. There is no other motive advanced for the occurrence except for what happened on the day of occurrence. It had rained that morning. The irrigation in the locality was by diverting the running storm water. Muhammad Zaman deceased alongwith his brother Muhammad Aslam and Bahadur had gone to divert the water. It was objected to by the appellants. An altercation had taken place.
The altercation had lasted for some time because Atta Muhammad had in the meanwhile reached the spot from his Dera covering a distance of four killas, and he was in time to see the first shot fired by Ghulam Muhammad. This would show that there was no pre-meditation, there was no preparation and there was no planning. The very fact that they were armed--Ghulam Muhammad, with a gun, Sher Khan with a Spear and Muhammad Khan with a Sota, could not be sufficient to attribute a common intention to them when the appearance of the complainant party at the scene was by chance and also the altercation over the diversion of the water which could not be anticipated, nor was it planned. Therefore, in the absence of common intention, every accused will be responsible individually for his own act. Ghulam Muhammad had fired the fatal shot and that had proved fatal. His conviction under section 302, P.P.C. And sentence of life imprisonment is, therefore, fully justified. Muhammad Khan had used only Sota. Therefore, he could not be convicted for any other offence except under section 323, P.P.C. Sher Khan was charged of causing an injury with spear on the neck of Bahadur (not produced) which proved simple. In spite of the non- appearance of Bahadur Khan and of his having been won over, the conviction of Sher Khan was recorded only for the reason that in view of the close relationship that he had with the appellants, it was unlikely that he would appear as a witness. The relationship with the other witnesses who appeared was equally close. Therefore, such a relationship was not sufficient for justifying the non- appearance or non---production of Bahadur. The fact that he was not produced would lead us to draw an adverse conclusion. If a person does not make the statement in respect of his own injury then it is difficult to sustain the conviction with regard to that injury on C the statement of others. In the circumstances, in view of this conduct of Bahadur it is not possible to record the conviction of Sher Khan.
7. The fact that the occurrence had taken place in the joint land which was in exclusive possession of Muhammad Khan accused, prompted the accused to plead in argument self-defence of property. This aspect of the defence has been adequately dealt with in the judgments and diversion of rain-water from the storm channel was considered, and rightly so, to be not sufficient threat such as could have justified the opening of an attack jointly or individually by the accused.
8. In view of the foregoing discussion, the appeal is accepted against conviction and sentence of all the appellants under section 307/34, P.P.C. Hence, the conviction and sentence awarded under section 307/34, P.P.C. To all the three appellants is set aside. The conviction and sentence awarded to Sher Khan and Muhammad Khan under section 302/34 P P C is also set aside and they are acquitted of that charge. However, conviction of Muhammad Khan is substituted I to one under section 323, P.P.C. And the sentence of imprisonment shall be the sentence already undergone, the fine will be of Rs.500 which on recovery shall be paid as compensation to Muhammad Aslam or in default six months simple imprisonment. Ghulam Muhammad's conviction under section 302, P.P.C.
And the sentence of life imprisonment, fine and compensation is maintained.