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Criminal Appeal No. 44 and Confirmation Case No. 30 of 1967, decided on 19th November 1968.

S. 302 read with Ss. 100 & 103‑ Private defence, right of‑Deceased armed with spades intending illegally to divert accused's crater by using force‑Accused coming to enforce his right and likely to suffer grievous hurt if not death in ensuing inevitable fight, killing deceased ire exercise of right of private defence‑Such killing by accused, held, did not amount to any offence‑Conviction and sentence set aside.

A. K. Brohi for Appellant.

Mohd. Haleem, Asstt. A.‑G. for the State.

Date of hearing : 13th November 1968.

The appellant has been convicted under section 302, P. P. C. by the First Additional Sessions Judge, Hyderabad for the murder of Muhammad Ali and Atta Muhammad and sentenced to death. He had filed an appeal against his conviction and sentence and the learned Additional Sessions Judge has made a reference to this Court, therefore, we shall dispose of the appeal and the reference by this judgment.

2. According to prosecution, the material facts of this case are that Muhammad Ali deceased was the father of Atta Muhammad deceased and they lived in village Pandhi Khan, Deli Kaka. The appellant was related to them, and both the appel lant and Muhammad Ali deceased had water rights in watercourse No. 41 and No. 5. On the night of 20th January 1966, the appellant had diverted the water of Muhammad Ali deceased into his own land, therefore P. Ws. Miro and Dhani Bux, haris of Muhammad Ali, deceased reported this to Muhammad Ali deceased. The appellant had turn of his water the next day at 6‑30 a.m. Therefore the next morning, Muhammad Ali and his son Atta Muhammad went with Miro, Dhani Bux and Sodho to the watercourse and diverted the water that was running into the appellant's land into Muhammad Ali's land. On finding that his water had been diverted, the appellant came to the watercourse and saw Muhammad Ali and his son with their haris. There was an exchange of hot words and abuses between the appellant and Muhammad Ali and Atta Muhammad. The appellant who was armed with a gun, fired at Muhammad Ali and killed him. Then Atta Muhammad and P. Ws. Miro, Dhani Bux and Sodho tried to catch the appellant, therefore the appel lant turned round and fired at Atta Muhammad and killed him and then escaped. P. W. Golo, whose house was near the place of occurrence, heard the gun reports and came to the vardat with Tooh. ‑He saw Muhammad Ali and Atta Muhammad lying dead and also saw the appellant running away. This was at about 7‑30 a.m. He enquired what had happened and P. Ws. Miro, Dhani Bux and Sodho told him that there had been a quarrel about water rights and the appellant had killed both Muhammad Ali and Atta Muhammad. Therefore, P. W. Golo went to Saeedabad Police Station, which is about 8 miles from the place of occurrence, and lodged an F. I. R. which was recorded by P. W. Muhammad Usman, S. H. O. of Police Station.

3. Meanwhile the appellant appeared at the same Police Station with gun. He was arrested and gun was recovered from him vide mashirnama (Exh. 14). Thereafter, Muhammad Usman, S. H. O. went to the place of occurrence and recovered two empties. He also recovered some blood‑stained earth, prepared inquest reports and forwarded the dead bodies for post‑mortem examination which was carried out by Dr. Rafi Ahmed. After completing the usual investigations the appellant was challaned for the said murders.

4. In his defence, the appellant denied all the allegations against him. He denied that he had appeared and been arrested at the Police Station and stated that he had been arrested from his village. He stated that there was enmity between P. W. Golo (the informant) and his uncle Umed Ali due to some matrimonial connections, therefore he had been falsely implicated for these murders.

5. We have observed that the post‑mortems of both the deceased were carried out by Dr. Rafi Ahmed. Dr. Rafi stated in his evidence that Muhammad Ali deceased had as many as 9 gunshot injuries in his lungs and that Atta Muhammad had 7 gun‑shot injuries in his lungs. Dr. Rafi Ahmed also stated that all the injuries were ante‑mortem and that death of both the deceased had been caused by the said gun‑shot injuries which were sufficient in ordinary course of nature to cause death. In his cross‑examination, Dr. Rafi Ahmed stated that the assailant must have been fired at the deceased from a distance of about 20 to 30 feet and that as the pellets, at the time of firing, had spread out . . . . ., it was possible that both the deceased could have been killed by a single shot. He further stated that the stomach of both the deceased were empty. This evidence establishes that both Muhammad Ali and his son Atta Muhammad were murdered by the assailant with a gun and the only question for our determination is whether the appellant is guilty of those murders.

6. In support of their case, prosecution have relied on the evidence of three eye‑witnesses, P. Ws. Miro, Dhani Bux and Sodho and this evidence is sought to be corroborated by that of Golo (the informant). Golo's house was at a distance of 1100 feet from the place of occurrence. He said that on hearing the gun reports, lie and Tooh rushed to the place of occurrence and saw Muhammad Ali and his son lying dead and the appellant running away with a gun. He enquired from Miro, Dhani Bux and Sodho, the haris of Muhammad Ali, about the occurrence, who told him that there had been a dispute about water rights between the appellant and Muhammad Ali deceased and that the appellant had cut off Muhammad Ali's water supply the previous night. The appellant was entitled to water from 6-30 a.m. to 8‑30 p.m. the other day, therefore they had gone with deceased at 7‑00 a.m. and diverted the water flow into Muhammad Ali's fields which was flowing to the appellant's land. Therefore the appellant came armed with a gun and there was an exchange of hot words and abuses between the appellant and Muhammad Ali and his son Atta Muhammad and then the appellant fired at Muhammad Ali and was going away but the others tried to catch him. Then he turned and fired at Atta Muhammad also and killed him. On hearing this, P. W. Golo went to lodge a report at Saeedabad Police Station. He further stated that when lie reached the Police Station, the accused was already there (but according to the evidence of Muhammad Usman, S. H. O., the statement that the appellant was also there, is not correct). The evidence of P. W. Golo is supported by the evidence of the haris P. Ws. Miro, Dhani Bux and Sodho. However, learned counsel for the appellant argued that the evidence of these witnesses contains material discrepancies, that P. W. Golo had enmity with the appellant and the other eye‑witnesses were haris of the deceased, therefore, the ocular evidence could not be believed. Learned counsel also argued that the ocular evidence was com pletely contradicted by the evidence of Dr. Rafi Ahmed. The occurrence took place at 7‑30 a.m. during the month of Ramzan. Therefore, learned counsel argued that as the deceased would take meal before commencing their fast, if the occurrence had really taken place at 7‑30 a.m. as alleged, their stomachs would have contained semi‑digested food, yet according to Dr. Rafi Ahmed, their stomachs were empty, therefore this showed that the murders must have been committed late at night and not in the morning as alleged, thereby completely falsifying the prosecution case. Learned counsel also argued that there was no evidence to show that the appellant had surrendered himself at the Police Station. It is not necessary for us to consider these arguments, because the appellant has admitted that he killed Muhammad Ali and Atta Muhammad deceased in self‑defence.

7. As we have observed, the appellant and Muhammad Ali deceased shared water rights from the same watercourse. The case of the prosecution is that because the appellant had illegally diverted on the previous night the water to which Muhammad Ali was entitled, on the morning of the occurrence, Muhammad Ali had gone and diverted into his own fields the water to which the appellant was entitled. No further evidence was produced to show that the appellant had illegally diverted water on the previous night as alleged. But even if it were so, it would not entitle the deceased to take the law into their own hands and divert the appellant's water into their fields. In this illegally diverting the water, there is no doubt that the deceased committed an offence under section 430, of the P. P. C. Not only did they commit all offence, but the offence was committed by Muhammad Ali jointly with his son Atta Muhammad and his three haris Miro, Sodho and Dhani Bux, thereby constituting an unlawful assembly. Further, as admitted by P. Ws. Golo and Sodho the party were armed with spades. This is very significant. If the deceased had merely intended to divert the appellant's water, he would not have taken so many persons with him. The fact that he had four persons with him means that he was determined to divert the appellant's water supply by using force. Learned counsel has therefore contended that, even if the appellant killed Muhammad Ali and Atta Muhammad, this was in the exercise of his right of defence under sections 100 and 103 of the P. P. C. Under section 100, P. P. C., a person has a right to defend him self to the extent even of causing the death of the assailant, if he has a reasonable apprehension that the assailant will cause him death or grievous hurt. Similarly, under section 103, P. P. C. the right of private defence of property extends even to causing the death of the wrong doer, if the wrong doer commits mischief under section 103, P. P. C. in circumstances which creats a reasonable apprehension that death will be caused if the right of private defence is not exercised. The reasonable inference from the conduct of both the deceased is that they intended illegally A to divert the appellant's water by using force, therefore the party was armed with spades. The appellant had come to protect and enforce his rights which he was entitled to do so that a fight was inevitable, therefore, the appellant was likely to suffer grievous hurt, if not death. In these circumstances, we are of the opinion that the appellant killed the two deceased in the exercise of his rights under section 103, P. P. C., and the killing did not amount to any offence. Additionally, all the prosecution witnesses have said in evidence that before the appellant fired at the deceased, hot words and abuses had been exchanged between them and the appellant. Here again, as the party of the deceased was armed and as the appellant was alone, we cannot help thinking that the deceased must have tried to attack the appellant, who killed them in exercise of his right of self‑defence under section 100, P. P. C. It is true that the prosecution witnesses have not stated that the appellant was attacked or threatened, but they could not be expected to make any such statement, as it would amount to admission of their participation in an offence. But the evidence on the record suggests that the appellant must have been put in fear of his life, therefore, we have to give him the benefit of doubt and hold that he killed both the deceased in the exercise of his right of self‑defence and of defending his property under section 100, and section 103, P. P. C.

8. Accordingly, we set aside the conviction of the appellant and the reference of the learned Additional Sessions Judge is rejected. The appeal is allowed and the appellant is to be released forthwith unless he is required on any other charge. Short order acquitting the appellant was passed on 13‑11‑1968. This judgment contains the reasons for it.

Appeal accepted.

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