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Criminal Appeal No. 8 of 1974, decided on 11th June 1976.

‑‑ S 304(() read with S. 300, Exception 4 ‑ Murder ‑‑‑ Sudden fight‑Fight taking place over turn of water on spur of moment and both sides using lathis and hatchets. resulting in death of one on complainant's side and extensive injuries to accused persons-- Nothing to show that fight was premeditated or pre-planned or which party instigated fighting‑‑Conviction and sentence under S. 304, Part I, P. P. C. maintained in circumstances.

A I R 1957 S C 469 and Syed All v. State P 1:, D 1962 S C 502 ref.

G. M. Shah for Appellants.

Nooruddin Sarki for the State.

Date of hearing : 25th May 1976.

The appellants have been convicted by the District & Sessions Judge Thatta and they have been sentenced as under: ‑

(1) Appellant Muhammad Hassan has been sentenced to R. I. for 5 years and a fine of Rs. 200 or further R. I. for 3 months for offence under section 304, (1) and to R. I. for 1 year for offence under section 324, P. P. C.,

(ii) Appellants Hajan and Mitho have been sentenced to suffer R. I. for 6 months each for offence under section 323, P. P. C.

They have accordingly filed this appeal.

2. Abdul Razzak and Habibullah Khoso had been granted 64 acres of land each under the Tractor Scheme. These pieces of land, adjoining each other were being irrigated by a common water course. Complainant Haji Hashim Khoso looked after the land of Abdul Razzak. Habibullah Khoso had engaged appellants (i) Mitho, (ii) Hajan, (iii) and acquitted accused Jumo, Khair Muhammad, Nabi Bux and Ali Khan as harts on the said land. Under a private arrangement these two Khatedars and one Haji Abdullah had to take water from the common water course for 24 hours each commencing from sunset. On 23‑6‑1972 complainant Haji Hashim had taken his turn of water and diverted the water from the water‑course towards the lands of Abdul Razzak. At about 7 p.m. while Haji Hashim was at his otak, Mitho and Jumo came to the water‑course and insisted that they should have the water for the next 24 hours. Haji Hashim declined to allow them the turn of water. A fight ensued in the course of which Mitho and Jumo gave fist blows and kicks to complainant Haji Hashing. On his cries Morio, Jumo, Hassan, Muhammad and Mullah Ishaque came to his rescue. The houses of other hails were situated close by and these haris of Habibullah Khoso also came running to help Mitho and Jummo. They were Khair Muhammad Hajan, Nabi Bux, Muhammad Hassan and Ali Khan. Muhammad Hassan and Hajan had hatchet others had lahtis. Muhammad Hassan dealt hatchet blows and Mitho gave lathi blows to Morio deceased and he died on the spot as a result of these injuries. Jumo Muhammad Hassan Abdullah Mulla Ishaque also sustained injuries. From the party of the appellants Mitho Muhammad Hussain and Hajan sustained incised and lacerated wounds of the skull, though they were all scalp deep. The report of Haji Hashim was lodged at 12‑30 mid‑night on the night between 23rd and 24th June, 1972. The counter report was lodged on 24‑6‑1972 at 1‑45 a.m. by Khair Muhammad Baluch, Kamdar of Haji Habibullah Khoso. The counter version of the appellants was to the effect that it was their turn of water when Chandio, Morio, Jumo, Hassan, Muhammad, Haji Hashim, Mulla Ishaque, Abdullah and Hussain Mulla armed with hatchets and lathis came and quarrelled with Mitho, in the course of which Mitho, Muhammad Hassan and Hajan received injuries. The persons of the opposite party also sustained injuries at their hands.

3. The learned Sessions Judge convicted and sentenced only Mitho, Hajan and Muhammad Hassan as above and acquitted the remaining four accused.

4. It has hardly been disputed that the incident of fight took place between the two parties in the course of which blows with hatchet and lathis were exchanged on both sides. Morio sustained 3 incised wounds one of which was on the left parietal region and the others 3' above the right eye‑brow cutting the frontal bone. There was a depressed fracture of the frontal bone causing injuries to the brain matter, which resulted in death of Morio. P. Ws. Hassan, Jummo, Muhammad Ishaque and Abdullah sustained simple incised injuries and lacerated wounds caused by blunt weapon. Appellant Mitho sustained 2 incised wounds on his head, while appellant Muhammad Hassan had two incised and one lacerated wounds on head. Appellant Hajan had one incised wound on head.

5. There is the occular evidence of these injured witnesses, Jummo, Hassan, Muhammad Ishaque and Abdullah besides the evidence of complainant Haji Hashing. Acquitted accused Jummo produced before the police the weapons used at this incident, namely, one laths, one spade and two hatchets which were blood‑stained and one other lathi which wage not blood‑stained.

6. The version of the prosecution appearing from the evidence is the same as described above in the prosecution story. It is not quite clear from evidence whether it was the turn of water of the complainant side or the accused side but one thing is clear that the fight occurred over the turn of water from the common water course. It has also been definitely established that both sides used lathis and hatchets and besides deceased Morio who was killed the prosecution witnesses as well as the present three appellants sustained hatchet and lathi injuries in the course of that fight. There is nothing to show that the fight was premeditated or pro‑planned nor is there any definite evidence to suggest as to which party instigated the fight. It was, therefore, a sudden fight, which sprung up on both sides resulting in injuries to members of both the parties. Nor does any question of right of private defence arise in a case of this nature.

7. The learned advocate appearing on behalf of the appellants has argued that the appellants' party had taken their turn of water when the complainants' party arrived there from their houses armed with lathis and hatchets to divert the water by force; that the appellants' party had, therefore, the right of private defence. However, as already stated, there are no indications from evidence that this version of the appellants might be a true version. On the Ether hand the evidence shows that fight had sprung up between the two parties suddenly due to dispute over the turn of water and both the parties had used arms and caused injuries to cacti other. Since the present appellants had also sustained injuries there could be no dispute that they were present in that fight. According to the occular evidence Mitho had caused injuries to deceased Morio while Hajan and Muhammad had caused simple laths injuries to the witnesses. Mitho had accordingly been rightly convicted for offence under section 304, (1) P. P. C., and the remaining appellants for offence under section 323, P. P. C. Where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor 'it will not be correct to assume private defence for both sides. Such a case will be a case of sudden fight and it has to be dealt with under section 300, Exception (4) as held in A I R 1957 S C 4 69. It has also been held m a similar case by our own Supreme Court (P L D 1962 S C 502) that where death occurred in the course of a fight between two bodies of men who were deliberately fighting together, both sides being armed and no unfair advantage appeared to have been taken by the accuses in the course of the fight it was held that Exception (4), section 300 was applicable to the case.

8. For the reasons discussed above, the convictions and sentences passed against the appellants are maintained and their appeals are dismissed.

Appeal dismissed.

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