Muhammad Fayyaz son of Noor Muhammad and Rab Nawaz son of Mian Muhammad have assailed the judgment of the Additional Sessions Judge, Khushab dated 31-7-1998, whereby appellants were convicted under section 302(b), P.P.C. For the murder of one Muhammad Azeem and sentenced to life imprisonment by way of Ta'zir and also directed to pay Rs,5,000 each as compensation under section 544-A, Cr.P.C. To the heirs of the deceased. In default of payment of compensation both the appellants were ordered to undergo 4 months' C.I. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. The occurrence which resulted in the death of Muhammad Azeem took place on 29-6-1997 at 4- 00 p.m. In the fields of Mauza Choa Sharif lying at a distance of 13 k.m. From the Police Station Guiana". Complaint was made by Saleh Muhammad P.W.9 uncle of the deceased at the Police Station and was recorded by Allah Yar, S.I. On 29-6-1997 P.M.
3. Allegation contained in the first information report authored by Saleh Muhammad is that he is an agriculturist by profession. On the fateful day at 4-00 P.M. He alongwith Muhammad Haseeni, Muhammad Hayat and Muhammad Azeem, his nephew were constructing a Bund in their land when all of a sudden, Rab Nawaz armed with a gun .12 bore, Nazar Muhammad armed with a .7 m.m. Rifle sons of Mian Muhammad and Muhammad Fayyaz son of Noor Muhammad armed with A2 bore gun emerged and raised a Lalkara that they would teach a lesson to them for raising the Bund. First shot was fired by Fayyaz which hit Muhammad Azeem on his right hand followed by fire from Rab Nawaz which hit Azeem on his abdomen. Again the fire of Muhammad Fayyaz hit Azeem on his abdomen towards his right side upon which Azeem fell to the ground. Fourth shot fired by Nazar Muhammad missed Azeem and out of fear they did not go to rescue Azeem from the assailants, since they were empty-handed. Culprits thereafter ran away enabling them to remove the injured for treatment to Civil Hospital, Jauharabad as his condition was precarious. Doctor tried to save his life but remained unsuccessful finally at 9.30 P.M. He breathed his last.
4. Motive for the occurrence is that the accused stopped them from raising Bund which they were entitled to do so in order to store water to irrigate their lands and they in furtherance of their common intention committed a murderous assault upon Azeem which later on, resulted in his death.
5. Allah Yar Inspector after recording the F.I.R. Proceeded to Civil Hospital Joharabad, prepared the injury statement and Inquest Report Exh.P.H. And handed over the dead body to a constable for its transmission to the mortuary at Civil Hospital, Joharabad. After post-mortem examination, on 30th of June, 1997 he proceeded to the spot, collected the blood-stained earth vide memo. Exh.P.K. And secured the crime-empty P-7 from the place where Rab Nawaz fired and another empty P-8 from the place where Fayyaz fired. He took the empties in his possession vide memo. Exh.P.L. And Exh.P.M.
Respectively. He recorded the statement of Muhammad Hayat and supplementary statement of the complainant. On 7-7-1993, he arrested the appellants and on 13-7-1997 Rab Nawaz got recovered gun P-7 along with its licence from his residential house which was taken in possession vide memo. Exh.P.C. On the same day Fayyaz got recovered gun P-6 from his house lying in a Paiti which was taken in possession vide memo. Exh.P.D. After completion of the investigation challan was submitted in the Court.
6. Doctor Mahmood Ahmad Zubairi, Medical Officer, District Headquarter Hospital, Joharabad medically examined M. Azam on 29-6-1996 in an injured condition at 5-30 P.M. And found injuries on the chest, abdomen, right upper forearm of the injured. All the injuries were caused with fire- arm within the duration of two hours. On 30-6-1997 at 7-00 a.m. Same doctor conducted the post- mortem examination on the dead body of M.Azeem and almost found the same injuries which he had noted before his death. In the opinion of the doctor injuries were ante-mortem caused by fire- arm. Injuries 1,2 and 3 were fatal individually and collectively to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was 5 to 8 hours and between death and post-mortem examination was about 9 hours.
7. During the trial appellants were indicted, they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 11 witnesses. Ocular testimony account was furnished by Saleh Muhammad, complainant as P.W.9 and Mohammad Hayat as P.W.10.
8. Prosecutor tendered in evidence report of the Forensic Science Laboratory Exh.P.Q. Where both the empties were found wedded with the weapons recovered from the appellants.
9. Muhammad Fayyaz and Rab Nawaz appellants when examined under section 342, Cr.P.C. Denied their participation in the occurrence and stated that the licensed guns were taken in possession from their house and that due to enmity case was foisted upon them.
10. Learned counsel appearing for the appellants in the first instance submitted that none had seen the occurrence. Saleh Muhammad P.W.9 was resident of Canal Pull of village Jabbi at a distance of 7/8 miles from the place of occurrence where he cultivated his land. Similarly, Hayat had a shop in.
Kot Mitha Tiwana, lying at a distance of 15/16 k.Ms. From the place of occurrence and was not supposed to be present when the occurrence took place. It was contended that the murder being blind and the witnesses having been set-up, conviction recorded was illegal. Next submission was that firing was made in the exercise of right of self-defence of the property since admittedly a Bund was being constructed by the deceased to stop irrigation water to irrigate the lands of the appellants, therefore, offence fell under section 302(c), P.P.C. And a lenient view in the matter of sentence be taken. Conversely, learned counsel for the complainant opposed the submissions of the learned counsel for the appellants and submitted that it was a broad daylight murder witnessed by the witnesses present at the spot and the deceased had a right to construct the Bund for irrigating his lands from water gathered as a result of rain. It was stated that already a lenient view has been taken by the trial Judge, whose conviction and sentence he supported. Learned counsel for the State toed the line of the counsel for the complainant.
11. I have given serious thoughts to the arguments raised by the respective counsel and have also gone through the record with their assistance.
12. It was admitted by Muhammad Iqbal Patwari who appeared as P.W.8 that the lands in village Choha were irrigated by the water from the surrounding mountains which were situated towards the north of the lands where the occurrence took place. Towards the south of Point No,1 where the deceased was tired, there was a Bund already existing for the mountains water to irrigate the fields on the northern side of that Bund. He expressed his inability to answer the question whether at Point No,1 where the deceased was killed, an illegal Bund was in process of being constructed, designed not to allow the mountains water to flow to the fields towards its south. However, it was admitted that the land of the accused is situated towards the south of Point No,1 in-between the main Bund and Point No,
1. It may be added that Point No,1 is the place where the deceased was done to death.
Complainant etc. Themselves admitted that they were constructing a Bund to retain the rainy water. This being the position they were without any shadow of doubt stopping the flow of water to go towards the southern side where the lands of the appellants were situated. In other words the lands of the appellants were being deprived of being irrigated by the flow of water gathered due to rains from the mountains not forgetting that it was monsoon season when the occurrence took place on 29-6-1997.
13. Saleh Muhammad P.W.9/complainant has admitted that the accused objected to construction of a Bund for water and since they had raised a Bund for collecting water to irrigate their lands, therefore, the accused attacked them. He further admitted that the area was hilly and according to Shart-Wajib-ul-Arz bunds for the collection of water existed in their area. He further admitted that towards the south of the Bund being constructed by them, there was another Bund and they were constructing a new Bund on which there was no tree standing. In-between the old Bund and the new bundarea is owned by the accused. This admission has made the matter crystal clear that by constructing a new Bund, the area owned by the accused persons was to be deprived of the irrigation water. Appellants, it is stated by this witness, appeared before the police on the second day of the occurrence.
14. Allah Yar Inspector, the Investigating Officer who appeared as P.W.11 admitted that in the site plan old Bund and towards north side another Bund which was under construction of the complainant party was shown. He also admitted that he had not probed the rights of the parties regarding the construction of a new Bund.
15. Section 97 of the Pakistan Penal Code gives every person a right to defend his property, whether movable or immovable a himself or any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespasser which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 103, P.P.C. Defines the right of private defence of property which extends to causing of death; firstly, in cases of robbery, secondly, house- breaking by night, thirdly, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property and fourthly, theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of, private defence is not exercised. Section 104, P.P.C. Limits the harm to be caused to the assailant in the exercise of right of self-defence of property to any injury or harm but certainly not death, if the danger to the property is not the one as envisaged by section 103, P.P.C.
16. The accused, therefore, had a right of self-defence when mischief was committed by raising a Bund preventing the rainy water to enter their fields to be irrigated, however, since their case did not fall within the ambit of section 103, P.P.C. Which gives them the right to defend the property to the extent of causing death, their right of self-defence fell within the four corners of section 104, P.P.C. Section 104, P.P.C. Does not envisage right of self-defence to the extent of causing death but definitely takes into consideration causing of any harm other than death. The appellants while wielding their weapons and causing death of Azeem definitely exceeded their right of self-defence, therefore, conviction under section 302(b), P.P.C. Is bad in law and as such is altered to section 302(c), P.P.C. The right of self-defence was exceeded by the appellants when they fired thrice upon the deceased to cause his death. However, there was already a legitimate Bund constructed by the villagers and constructing of another Bund amounted to total deprivation of irrigation water to the fields of the appellants, which clearly amounted to the offence of mischief, as such keeping all the circumstances in juxtaposition I am of the view that sentence of imprisonment is on the harsh side, I, therefore, reduce the sentence of imprisonment to 10 years' R.I. Sentence of fine is converted to compensation, payable to heirs of deceased with same penalty in default of payment. With these modifications, appeal is dismissed. Benefit of section 382-B, Cr.P.C. Is extended to the appellants.