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Criminal Appeal No 806 of 1953, decided on 25th May, 1954, from the order of Fazl‑i‑Ilahi, Additional Sessions Judge, Jhang, dated the 30th September, 1953.
(a) Penal Code (XLIJ of 1860), S. 430‑
Accused forcibly diverting water from another's field to his own field‑Offence under S. 430 P. P. C.
Emperor v. Lukman and others A I R 1927 Sind 39, Vadavalli‑NarasimhaRao and others v. Avvanna Rao A.I R 1939 Mad. 794, Raghunath Thakur and others v. Emperor A I R 1932 Pat. 224 ref.
(b) Penal Code (XLV of 1860), S.
104‑Right of private defence of property extending to causing any harm other than death‑Murderous assault on person exercising such right-Further right of private defence of person extending to the causing of death available under S. 100 P. P. C.
Mahmud Ali and Rafiq Ahmad, for Appellants.
Zaheer Abbas, for the Advocate‑General, for .Respondent.
ABDUL AZIZ KHAN, J.‑
Malka and his sons Rajba and Mahram were tried by the learned Additional Sessions Judge, Jhang, who, while acquitting Malka, convicted Mahram and Rajba under section 304' Part I of the Pakistan Penal Code and sentenced‑each one of them to transportation for life: Mahram and Rajba‑ have appealed to this Court against their convictions and ‑sentences.
Briefly stated the prosecution case is that Mst. Panna, daughter of Malka (who has been acquitted) was married to one Shamir of Kot Mopal, who died about. six years ago leaving behind his widow (Mst. Panna) and two sons Faiz Muhammad and Ghulain Muhammad alias Ghulam Abbas (P. W.6). Malka shifted his residence to Kot Mopal in order to look after the property of his deceased son‑in‑law Shamir. He and his sons, Mahram and Rajba (appellants) began' to cultivate Shamir's land as tenants under Faiz Muhammad and Ghulain Abbas (P. W. 6) but Ghulain Abbas was dissatisfied with this arrangement. He, therefore, left his house and began to live with his uncle Pehlwan, father of Murad deceased. It is alleged that Pehlwan and his family did not allow Malka's family to cultivate the land for two years prior to the occur rence. Some months prior to the occurrence Ghulam Abbas (P. W. 6) leased his share of the land to his cousin Murad deceased and had the mutation sanctioned. On the 22nd of May, 1953, Hag Nawaz (P. W. 5) and Ghulam Abbas (P. W. 6) learnt that the appellants and their father were irrigating field No. 412 at Chah Kherorewala from the watercourse which exclusively belonged to Pehlwan's family. On this Hag Nawaz (P. W. 5) and Ghulain Abbas (P. W. 6) went to the aforesaid watercourse along with Machhia (P. W. 7) and Kamir (P. W. 8). On reaching there they asked Mahram not to irrigate the land from the watercourse which exclusively belonged to Pehlwan's family. Mahram appellant did not pay any attention to them. On this Hag Nawaz (P. W. 5) made a cut in the watercourse in order to stop the flow of water into field No. 412, on which Mahram appellant gave him another blow on the left arm. He then gave him another blow on the head on which he (Hag Nawaz) fell down on the ground. Mahram appellant attempted to give further blows to him at which Kamira and Machhia P. Ws. beat Mahram in order to rescue Hag Nawaz, P. W. In the meantime, Malka and Rajba came to the spot. After their arrival, Mahram gave two lathi blows to Ghulain Abbas (P. W. 6). According to the prosecution, on hearing the noise, Murad deceased came toward the spot armed with a gun, but before he reached the spot, Raja and Mahram appellants advanced towards him followed by their father Malka. The latter incited his sons to murder Murad deceased on which the deceased stepped back and fired in the air in order to frighten the appellants. This, however, had no effect on them. On this, the deceased ran from that place in order to save his life. He had hardly covered a distance of about 20 karams when he was overtaken and surrounded by the appellants and their father. Thereupon Murad deceased fired at Rajba appellant hitting him on the lower part of his body. Marham appellant then pounced upon him and struck him on the head with his lathi. Murad fell down on the receipt of the blow and his gun also dropped. Mahram then gave him further blows after he had fallen down on the ground. Rajba appellant then went up to him and gave him a kassi blow on the head. Murad died at the spot instan taneously. The appellants and their father then carried away his dead body and the gun to their house. Hag Nawaz (P. W. 5) then went to Garh Maharaja and lodged the first information report (Ex. P. A.) at 8‑30 p. m. After recording the report S. I. Muhammad Afzal Khan (P. W. 17) went to the spot accompanied by Dr. Fazal Karim (P. W. 4).
Rajba appellant stated at the trial that he was grazing his cattle near the watercourse when he saw his brother Mahram being beaten by Murad deceased, Iraq Nawaz (P. W. 5), Ghulam Abbas (P. W. 6) and others. He went to them and entreated them to spare his brother. On this Murad deceased fired at him and on the receipt of the injury he fell down and became unconscious. Mahram appellant stated:‑
"Sohanra Sandhela and a Lak came to me with a message from Haq Nawaz that water may be given to Muhammad Nawaz. I replied that I would do so after finishing the killa under irrigation. Haq Nawaz, Ghulam Abbas and Murad came at peshiwela and challenged my right to the water. I replied that I would stop irrigation after watering the killa under irrigation. They abused me and I folded my hands not to fight. Murad exhorted his companions to kill me. Haq Nawaz and Ghulam Abbas beat me with a lathi and a mattock. I fell down. Murad put the muzzle of the gun on my neck near the collar bone on which I apprehended death at his hands. My entreaties had no effect on them. My brother Rajba came there to rescue me. Murad fired at him hitting him on the loins. He fell down. They thought that Rajba may have died and, therefore, released me. I beat Murad when I had been beaten by Haq Nawaz and Ghulam Abbas. The latter also received some blows at my hands when they were beating me":
Haq Nawaz (P. W. 5) is the brother of the deceased and Ghulam Abbas (P. W. 6) is his cousin. . Machbia and Kamir are tenants of Pehlwan, father of the deceased. After consi dering the entire evidence on the record, the learned Additional Sessions judge has held:‑
(1) that field No. 412 which was being irrigated was in the cultivating possession of Malka and his sons, the appellants;
(2) that the prosecution has failed to prove that the water course from which the appellants were irrigating field No. 412 exclusively belonged to Pehlwan's family;
(3) that Haq Nawaz (P. W. 5) made a cut in the water course and forcibly diverted the water from field No. 412 to his own field;
(4) that Murad deceased armed with a gun, Haq Nawaz (P. W. 5), Ghulam Abbas (P. W. 6), Machhia (P. W. 7) and Kamir (P. W. 8) armed with sticks and a kassi went to the, watercourse to divert the water from field No. 412 ;
(5) that the fight started when Haq Nawaz (P. W. 5) made a cut in the watercourse and attempted to divert the water from field No. 412.
In view of the above findings, the learned Additional Sessions judge held that Mahram was justified in attacking Haq Nawaz (P. W. 5) in the exercise of the right of private defence of property when the latter made a cut in the watercourse. He, however, convicted the appellants under section 304 Part I, Pakistan Penal Code, for exceeding the right of self‑defence. The above findings of fact arrived at by the learned Additional Sessions Judge have not been challenged before us on behalf of the Crown I
If it be conceded that the deceased, and the four prosecu tion witnesses came armed with a gun, a kassi and lathis in order to forcibly divert the water from the appellants' field No. 412 to their own field, it necessarily follows that they formed an unlawful assembly within the meaning of fourth clause of section 141 of the Pakistan Penal Code. Unlawful assembly is defined in section 141 of the Pakistan Penal Code‑
"An assembly of five or more persons is designated an unlawful assembly', if the common object of the persons composing that assembly is‑
First . . . . .
Second . . . .
Third . . . .
Fourth.‑By means of criminal force, or show of criminal force to any person, to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right;"
In view of the finding of the learned Sessions judge that Haq Nawaz (P. W. 5) made a cut in the watercourse and forcibly diverted the water from the appellants' field No. 412 to his own A field it is clear that he committed an offence within the meaning of section 430 of the Pakistan Penal Code which provides‑
" Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
In Emperor v. Lukman and others (A I R 1927 Sind 39) it was held‑
" The words diminution of the supply of water for agri cultural purposes' in section 430 cannot be limited to those cases only where the water has been allowed either to go waste or has been diverted for non‑agricultural purposes. The section read as a whole also refers to cases where the water ‑is intended for use b y particular persons for particular purposes and is diverted by an accused person for his own purposes though of a like nature ".
In Vadavalli Narasimha Rao and others v. Avvanna Rao (A I R 1939 Mad. 794) it was held--
"It is no part of the definition of the offence of causing a diminution of water supply for agricultural purposes that the act of the accused should be an act of wanton waste. It is sufficient for the purposes of Section 430 that the supply of water available for a particular person or class of persons should be diminished by the act of the accused."
In Raghunath Thakur and others v. Emperor (A I R 1932 Pat. 224) it was held‑
" A person, cutting a bandh which belongs to the com plainant and holds water required for the irrigation of his field, and letting out some of the water and thus diminishes the supply of water is guilty of .the offence under sec‑
The next question for consideration is whether the appel lants had a right of private defence or not. Since the deceased; party were committing the offence of "mischief" the appellants had the right of private defence under section 104, Pakistan. Penal Code. Mahram (appellant) was, therefore, justified in, giving injuries to Haq Nawaz (P. W. 5) when he made a cud in the watercourse. Kamira and Machhia assaulted Mahram (appellant) when he caused injuries to Haq Nawaz P. W. They had no right of private defence against Mahram as the latter was acting in the exercise of the right of private defence. In the course of the fight that ensued Murad (deceased) fired at Rajba. The prosecution version that he retreated and then fired does not seem to be true. The fact that Rajba was fired at from a close range is not denied even by the prosecution. If Murad fired at Rajba in the course of the fight that had ensued, Mahram and Rajba got a further right under section 100 of the Pakistan Penal Code which extended to the causing of death.
For the reasons stated above we accept the appeal and set aside the convictions and sentences of the appellants who shall be set at liberty forthwith.
Haq Nawaz son of Pehlwan filed a petition through Dr. Tassaddaque Hussain, Advocate, under section 439 of the Code of Criminal Procedure praying for the enhancement of the sentences of the appellants. No one appeared before us at the hearing of the appeal in support of the petition. The petition for enhancement fails automatically and is dismissed.
A. H Appeal accepted.
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