' KHALILUR REIMAN, J. -Appellant Farooq aged 27 years and his brother Tahir, sons of Bahar Ali, cultivators of Chak No, 299/EB, Police Station Ahmadyar, District Sahiwal, were put on their trial before the learned Sessions Judge, Sahiwal, on an indictment under section 302/34, P. P. C. For committing the murder of Abdus Sattar, their co-villager. The learned trial Judge by his judgment dated 14th April 1973, acquitted accused Tahir and convicted Farooq appellant under section 304-I, P. P. C. And sentenced him to ten years' R. I. And a fine of Rs, 2,000. In default of payment of fine he was to suffer further simple imprisonment for six months. The fine, if realised, was ordered to be paid to the heirs of the deceased. Criminal Appeal No, 376 of 1973 has been filed by Farooq appellant, against his conviction and sentences whereas the State has preferred Criminal Appeal No, 663 of 1973, against the acquittal of both the accused of the charge under section 302/34, P. P.
C. Appeal against Tahir accused was dismissed by order of this Court dated 7-11-1973 and was admitted against Farooq appellant. By this judgment, we propose to dispose of both these matters.
2. Prosecution case in brief is that on 16th January 1970, at about 4-30 p.m. The deceased had gone to his fields for utilising his turn of water which was to follow after the turn of Jamal Din P. W.
8. He had hardly diverted the water to his fields from his Nakka when appellant Farooq and Tahir co-accused reached there. They claimed that it was their turn and that the deceased should not divert the water to his fields. There was a discussion over the matter. On hearing the alarm Said Muhammad complainant (P. W. 11) and Ghulam Muhammad (P. W. 12), deceased's brother also came there. Farooq appellant and his co-accused Tahir diverted the water one and quarter Killa upstream in Square No,
12. The deceased and the two P. Ws. Objected to it. The deceased went running still further upstream and diverted water towards Square No,
26. Farooq appellant and his co-accused Tahir ' came towards their house. The two P. Ws. Went to condole the death of one Abdul whose house was near the watercourse. Lal Khan (not produced) and Ramzan P. W. 13 were also there. Farooq appellant armed with a revolver and Tahir co-accused armed with a dang passed running by them. They raised lalkara saying that the deceased would be taught a lesson for diverting their water. The three P. Ws. And Lal Khan tried to apprehend the assailants when Farooq appellant fired first shot at the deceased which missed the target. He fired a second shot hitting at the abdomen of the deceased. The witnesses reached the spot. The assailants ran towards the south. Said Muhammad complainant followed the assailants. When they were running back, Muhammad Khan P. W. 14, gave one or two soli blows to Farooq appellant and the blows staggered him. Tabir accused raised a lalkara and Muhammad Khan stepped aside out of fear. The assailants, ultimately, succeeded in escaping away. The injured person was taken to Civil Hospital, Arifwala by his relations while the complainant proceeded to the Police Station Ahmadyar for lodging a report.
Accordingly, F. I. R. Exh. P. A. Was recorded at 6.-30 p.m. By Sultan Ahmad S. H. O. P. W.
15.
3. Magistrate First Class Arifwala recorded the dying declaration Exh. P. R. Of the deceased at about 10-30 p.m., the same day. In the dying declaration he gave a slightly different version of the occurrence. According to him he went to his fields at about 4-30 p.m. To get his turn of water.
Farooq appellant and Tahir (acquitted accused) were present there. As the deceased proceeded to divert the water, he was prevented by Farooq appellant and his co-accused. This led to a heated discussion. The appellant took out a pistol from the fold of his loin-cloth (4,..$) and fired at the deceased. First fire did not hit him while the second shot hit him at. The abdomen. The deceased fell down. Ghulam Muhammad and Said Muhammad P. Ws. Reached the spot and saw the occurrence.
4. After registering the case under section 307/34, P. P. C. Sultan Ahmad S. I. Went to the hospital. He recorded the statement Exh. PV of Abdus Sattar deceased. He also recorded the statement of Ghulam Muhammad P. W. At the instance of the Medical Officer he arranged to have the dying declaration of the deceased recorded by a Magistrate. He then went to the spot. He took into possession Kassi P. 1 from the spot vide memo. Exh. P.C. On 19-1-1970 he arrested both the accused.
At the instance of Tahir he got recovered soli P. 2 from his house. It was taken into possession vide memo. Exh. P D. He prepared injury statement Exh. PK of Farooq appellant and got him medically examined. On 22-1-1970, Farooq appellant revealed that he could lead to the recovery of the pistol.
One Abdur Rehman was made to join the investigation who got recovered pistol. P. 3 alongwith four live cartridges P. 4/1.4 from the courtyard of his house. These were taken into possession vide memo. Exh. P E. He got site-plans Exhs. P G, P G/1 and P G/2 prepared from Siraj Din Patwari P. W.
3. On the death of deceased, the offence was altered to one under section 302/34, P. P. C.
5. Dr. Muhammad Iqbal Medical Officer, Civil Hospital Arifwala (P. W. 1) examined the deceased when he was alive. He found a circulargunshot lacerated wound x r on the epigastrium I" below the costal margin and k' on the right side of middle line. The margins of the wound were inverted. There were corresponding lacerations over the shirt and banyan. There was no tatooing of the clothes and wounds. Post-mortem examination was conducted by Dr. Ghulam Ahmad Medical 852 PAKISTAN CRIMINAL LAW JOURNAL [VOL. XI] ' Officer, D. H. Q. Hospital, Sahiwal (P. W. 2) on 18-1-1970 and the same injury was found on the person of the deceased.
6. Dr. Muhammad Iqbal P. W. 1, also, examined Farooq appellant on 19-1-1970. He found the following injuries on his person :-
(1) Abrasion with crust formation i" x 1/8' on the right side of the forehead.
(2) Bruise bluish black 1 r X y on the back of right hand near the right little finger.
(3) Abrasion r x 1/8' with crust formation on the back of right hand near the right thumb.
(4) Abrasion with crust formation 3/4' X 1/8" on the back of the lower part of left leg and left heel.
(5) Complaint of pain on the back of the left leg but there was no mark of any injury.
' The injuries were simple caused with blunt weapon and were of the duration of about three days.
7. Tahir (acquitted accused) when examined at the trial denied his participation in the occurrence and pleaded inncocence. Farooq appellant however, before the Committing Magistrate, took up the stand that he was watering his fields when the deceased and his nephew Muhammad Khan P.
W. Tried to forcibly divert the water towards their own fields and attacked him. The deceased hit him with a dang while Muhammad Khan P. W. Fired at him which hit the deceased accidentally. At the trial he shifted from this stand. He stated that he had not disclosed the correct version of the occurrence before the Committing Magistrate as he was ill-advised by some of his fellow prisoners in the jail. He gave a detailed statement giving his own version of the occurrence. He stated :- "On the day of the occurrence, I was watering my fields according to the sanctioned Warabandi. I was a Miraab of this Khala and used to distribute the water among the co-owners. Abdus Sattar forcibly diverted the water to Square No. 26 for which no water has been provided in the Warabandi. When I tried to stop the flow of water, he attacked me with the blunt side of the Kassi and I was injured. I stepped few pa:es back and fired in the air with the pistol which I kept with me for self-defence. On this, the deceased advanced towards me, crossed the Khala and pounced upon me with the Kassi which he held in his hand. In order to save myself and to ensure the supply of water according to my turn and safeguard my property, I fired once with the result that the deceased died in the hospital on the next day. I acted in the exercise of my right of defence of person and property. The deceased was a person of desperate character having been challaned in several cases and convicted. My brother was not with me."
8. Before adverting to the merits of these appeals, we intend to take note of the police investigation which, to say the least, is not above board. Deceased was taken to the Civil Hospital, Arifwala in an injured condition. F. I. R. Was recorded at Ahmadyar Police Station at about 6-30 p.m. Sultan Ahmad S. I. (P. W. 15), has stated that, on the same day, he went to the hospital at Arifwala and reached there at about 9-00 p.m. He claims to have recorded the statement WI. P V of the deceased. The prosecution has sought to rely on this statement as a dying declaration. We have gone through this document. The details of the main occurrence given in this statement are almost of verbatim copy of the F. I. R. Exh. PA. Dr. Muhammad lqbal P. W. Examined the deceased at 8-30 p.m. He had noticed that the pulse was weak and thready. Pupils were dilated and reacting sluggishly to light. Blood pressure was very low and was 88/60 milimetre of mercurry. At 8-45 p.m.
He had written ruqqa Exb. PM to the S. H.
0. Informing him that the injured was in a serious condition and that arrangement should be made for the recording of his statement. Vide ruqqa Exh. PQ/1 at 10-00 p.m. The Magistrate who ultimately recorded the dying declaration Exh. PR, solicited information from the Medical Officer if the deceased was in a fit state to make a statement. The dying declaration was then recorded at 10-35 p.m. In the presence of the doctor. This dying declaration gives a different version of the occurrence as given in the Exh. PV. We are therefore, at pains to find out as to how did the Investigating Officer managed to record the statement Exh. PV which spread over about two pages at 9-00 p.m. This throws serious doubt on the investigation and we have decided to exclude Exb. PV from consideration.
9. Learned counsel appearing on behalf of Farooq appellant pointing to a number of circumstances which we intend to take note of in the sequal, argued that the appellant in causing the death of Abdus Sattar had acted in the execrcise of the right of self-defence of both his person and property and his case was covered by section 100, P. P. C. According to him the view of the learned trial Judge that it was a case of sudden fight is not correct. In forming this view the learned Sessions Judge has not properly appreciated the record and in particular has not kept the principle in view that the accused, unlike the prosecution, has not to establish his plea beyond reasonable doubt and he would be entitled to a benefit of doubt even with regard to his plea if he has been able to show that the same was reasonably plausible.
10. Learned State Counsel, on the other hand, contended that the learned trial Judge has given cogent reasons for rejecting the plea of self-defence raised by the appellant. According to him it was not a case of sudden fight but that of a premeditated murder. The appellant therefore, should have been convicted under section 302, P. P. C. And sentenced to death.
11. We have considered the arguments raised at the bar and have gone through the record of the case carefully. For reasons which will resently follow, we are of the view that Farooq appellant had acted in the exercise of the right of defence of both his person and property. His case was fully covered by section 100, P. P. C. And he was entitled to a benefit accordingly.
12. The first point to be examined in this case is regarding the turn of water of the parties. The prosecution has examined its main witness Jamal as P. W.
8. In this regard. He has stated that he was irrigating his fields and his turn of water bad ended at 4-00 p.m. The deceased was diverting water to his fields after him. He was not sure if the deceased had taken water according to his turn. He had admitted that his land is situated in Square No.
12. He did not own any land but was cultivating the land of one Sattar Watto. Sattar Watto has not been examined. He admitted that warabandi in the village was sanctioned one. He further admitted that different land owners used to get water from him and sometime even Farooq appellant had his turn of water after him. He was not sure of the time when the turn of water of Square No. 12 had commenced. His turn of water was of two hours duration which had commenced at 2.00 p.m. And had ended at 4-00 p.m. He is ignorant is the land of the deceased was located in Square No.
13. In this regard, he made improvements on his statement before the committing Magistrate where he had stated that the deceased did not own any land except in Square No.
13. He was not sure of the square number to which the deceased had diverted water after him.
Before the Commiting Magistrate he had stated that the deceased had taken water from him at 4- 30 p.m. This witness is wholly discrete. His evidence does not inspire confidence. We are not therefore, prepared to accept that the deceased had diverted water at 4-00 p.m. After the turn of Jamal Din P. W.
8. D. W. 1 Abdul Ghafoor, Record Keeper, has produced copy of the sanctioned Warabandi Exh. D.
2. According to him warabandi came into operation on 24th April 1969. With effect from April 1969 warabandi had become operative during night hours. It may be stated that there is a note in Exh. D.
2, according to which every year on First Monday in the month of April warabandi was changed from day to night and vice versa. In the month of January according to Abdul Ghafoor D. W. 1 night warabandi was in operation. Warabandi had been sanctioned square-wise. The turn for square No. 12 is shown at Serial Nos. 7 and 11 on Exh. D.
2. At serial No. 7 it had to commence at 5-30 p.m. On Wednesday and end at 6-30 p.m., the same evening. Again at Serial No. 11, it had to commence at 9-00 p.m. On Thursday and end at 11-30 p.m.
On the same day. Jamal Din P. W. 8 therefore, could not have any turn of water at 4-00 p.m. On Friday. Square No. 11 is at Serial No.
14. The appellant owned land in Square No.
11. The turn of water of Square No. 11, according to Exh. D. 2, had commenced on Friday at 12-45 p.m.
And was to end at 2-00 a.m. Between the night of Friday and Saturday. The occurrence therefore, had admittedly taken place during the turn of water of Square No. 11.
13. In the dying declaration Exh. PR the deceased had stated that he went to his fields to irrigate his land at 4-30 p.m. When appellant Farooq and his brother Tahir were already there. He attempted to divert water when he was prevented by them which followed a heated discussion during which the appellant took out a pistol and fired at him. This lends support to the stand taken up by the appellant that the deceased wanted to divert water to Square No. 26 for which there was no sanctioned warabandi during the turn of water of the appellant. We are, therefore, not prepared to concur with the view of the learned trial Judge that the deceased had taken water from Jamal Din P. W. 8 and that it was not the turn of water of the appellant.
14. Now we advert to the actual occurrence. In cases where the occurrence is not disputed and two versions are put forth, the duty of the Court is to review the entire evidence and circumstances at the close, before arriving at-a conclusion regarding the truth or falsity of the defence plea. All the factors favouring belielf in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation to two questions, viz. (1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case ? (2) If the answer to question (1) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast a reasonable doubt upon the prosecution case? We propose to discuss the case with this criteria in mind. According to the F. I. R. The deceased had taken his turn of water from Jamal Din P. W. And the appellant and his brother had reached the spot after him. There was some dispute over the matter when the deceased went upstream and diverted water to Square No.
26. The appellant and his brother ran towards their house and came back. The deceased, in the dying declaration, has given a different sequence. According to the dying declaration the appellant and his brother were already there when the deceased came to take his turn of water.
During the quarrel the appellant fired at the deceased. He has not stated that the appellant, in the first instance, had gone to his house and then came back and fired at the deceased. The fact of the appellant going to his house before firing at the deceased stems to have been artificially introduced with a view to bring an element of premeditation. We are not going to accept this part of the prosecution version. Similary, it cannot be accepted that the was injured by Mohammad Khan P. W. 14 when the assailants were escaping away. The only possibility therefore, that remains is that the appellant received injuries at the hands of the deceased. The deceased and the appellant were placed face to face. The appellant fired one ineffective shot in the air. This was in all probability to frighten him. The deceased did not stop at that and crossed the watercourse. It was then that the appel lant fired the effective shot. This is supported from the other evidence also. P. W.
12 Ghulam Muhammad has stated before the police that after the first shot the deceased had crossed the water course in order to pounce upon the accused. He made improvements at the trial on his earlier statement before the police. We are therefore, of the view that the plea of defence is quit plausible and the appellant had acted in the exercise of the right of th defence of his person.
The other question to be seen is if, in the circumstances, it could be said that the appellant apprehended death or grievou hurt at the hands of the deceased so as to justify the commission of murder by him. This is more or less a question of fact. Many circumstances are t. Be kept in view while appreciating this aspect of the case. It is in evidence that the deceased was sentenced to three years' R. I. In the abduction case of one Mst. Noor Bhari, a cobbler. Earlier the appellant had lodged a repo in a murder case against Bahar Ali, father of the appellant and he was prosecuted in this case. Father of the appellant had injured Qasim All son o Ghulam Muhammad P. W. And was convicted in that case. In this background it was likely that a reasonable apprehension of death or grievou hurt at the hands of the deceased was conveyed in the mind of the appellant before he had resorted to an ineffective shot. The conclusion gains strength from the circumstance that the deceased was not frightened even on the first ineffective shot by the appellant and he, rather, crossed the watercours to pounce upon the appellant. The learned trial Court seems to have conjectured in holding that the injuries on the person of the appellant might be self-suffered or caused by a friendly hand. After he had rejected the prosecution stand that the appellant was injured by Muhammad Khan P. W., there was no difficulty in accepting the appellant's plea. The deceased afte having received the shot at the epigastrium, was not able to react back. It is therefore, quite likely that the appellant had received injuries before he ha fired second time at the deceased. This shows that the appellant had no only apprehension of death or grievous hurt at the hands of the deceased but, in fact, he has sustained injuries in the scuffle.
15. For all that has been stated above, we are of the view that the appellant had acted in the exercise of the right of his private defence and his case does fall under section 100, P. P. C. We therefore, accept the appeal filed by Farooq appellant, set aside his conviction and sentences and acquit him. He shall be released forthwith if not required in any other case.
16. In view of the fact that we have accepted the appeal of Farooq appellant and acquitted him, the State appeal against his acquittal, stands dismissed.