Find a Lawyer

Criminal, Appeal No. 10 of 1958, decided on 3rd April 1958.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 7th December 1956, in Criminal Appeal No. 283 of 1956).

Granted ‑to consider whether High Courts' analysis of criminal liability of accused was correct‑Constitution of Pakistan, Art. 160. A

S. 145‑Omission in First Information Report not put to witness in Court‑Omission not of much significance.

, S, 300, Exception 4, Explanation‑Sudden fight Question of self‑defence only of academic character‑Who gives provocation or commits the first assault‑Immaterial.

Held, that in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner, the question of self‑defence becomes merely academic, and in view of Explana tion to Exception 4 to section 300, P. P. C. it is immaterial which party offers the provocation.

by M on A in right of defence of property against offence of mischief‑M exceeding right of defence of property and causing death of A‑Rescuers of having right of defence of person of A exceeding such right and causing death of M‑Rescuers guilty under S. 304, Part 1, P.P.C.‑Penal Code (XLV of 1860), Ss. 101, 104.

M. Ismail Bhatti, Advocate, Supreme Court, instructed by Naziruddin, Attorney for Appellant:

S. A. Mahmud, Advocate‑General, West Pakistan, (M. Z, Kitchlew, Advocate, Supreme Court, with him) instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 3rd April 1958.

This is an appeal by special leave on behalf of Akhtar Hussain, who was convicted under section 302, P. P. C., for the alleged murder of one, Muhammad Yaqub, and sentenced to transportation for life by the Sessions Judge, Gujranwala. His conviction and sentence were confirmed by the High Court of West Pakistan. Along with Akhtar Hussain, his brother, Abdul Bari, and one Bashir, were also tried but were acquitted by the trial Judge.

In the course of the same incident, Ahmad Bakhsh, father of the appellant, was killed at the hands of Muhammad Yaqub. The plea of self‑defence had been taken by Akhtar Hussain in the trial Court. Sardar Ali P. W. was also injured in the same transaction. The prosecution case was that the relations of the parties were strained owing to a dispute over the possession of certain lands and the right to irrigation water. Sardar Ali, it was alleged, was watering his lands at about 9 a.m. on the 28th July 1955 when the three accused and the deceased, Ahmad Bakhsh, arrived there and took exception to Sardar Ali taking the irrigation water. He protested that it was his turn. This led to an altercation between them and while the three accused began assaulting Sardar Ali with their weapons, the deceased Ahmad Bakhsh picked up a kassi belonging to Sardar Ali from the spot and proceeded to divert the water towards his own fields from the nakka. Muhammad Yaqub, a nephew of Sardar Ali, was near by and he went up to Ahmad Bakhsh and asked him why he had diverted the water. They grappled with each other and then came to blows, Muhammad Yaqub using a stick and Ahmad Bakhsh the kassi which he had in his hand. Ahmad Bakhsh shouted to his sons to come to his help. The accused then stopped the assault on Sardar Ali and went to the rescue of Ahmad Bakhsh. Tile injuries they inflicted on Muhammad Yaqub resulted in his death.

The High Court found that Ahmad Bakhsh by diverting the water had committed the offence of mischief punishable under section 430, P. P. C., and that Muhammad Yaqub was, therefore, acting within his rights, in trying to regain the use of irrigation water and, if resisted, to disable Ahmad Bakhsh. On this view, it was held that Akhtar Hussain, Abdul Bari and Bashir were not justified in attacking Muhammad Yaqub. The learned Judges were further of the opinion that the defence had failed to show that Muhammad Yaqub had used more force than was necessary, there being no proof according to them that any blows were inflicted on Ahmad Bakhsh after the latter had been completely disabled. The finding was recorded that Akhtar Hussain had been actuated by an intention to kill, shared by the two acquitted accused and was guilty of murder.

Special leave to appeal was granted in this case, as it was felt that the question, by whom Ahmad Bakhsh was completely, disabled was not answered in the judgment of the High Court, nor had the point been considered that the disablement also involved Ahmad Bakhsh's death. It became necessary, therefore, to consider whether the analysis of criminal liability made by the learned Judges of the High Court was correct, so far as it went and whether, indeed, it went far enough.

The trial Judge and the High Court have concurrently held that the land in dispute had passed to the possession of Sardar Ali P. W. some days before the occurrence, that he was entitled to a six‑hour turn of water on that day, from 6 a.m. to 12 noon and that the accused persons were high‑handed in interfering with his right. The finding rests on credible evidence on the record and Mr. Ismail Bhatti, who appeared for the appellant, did not seriously contest the position that Ahmad Bakhsh had committed an offence under section 430, P. P. C., by trying to divert the water to his own fields, when Sardar Ali had already appropriated it. He attempted to argue, however, that hearing the shouts of distress from Ahmad Bakhsh deceased, the accused persons merely exercised their right of private defence of person on behalf of Ahmad Bakhsh. It was suggested that they were not aware that Ahmad Bakhsh had been guilty of an offence in the circumstances of this case. All that they were cognizant of, was the fact that he was being subjected to a murderous attack by Muhammad Yaqub. It was, therefore, urged that by reason of a mistake of fact, if not that of law, the accused in good faith believed them selves to be justified in doing what they did. It was moreover contended that Muhammad Yaqub, in any case, exceeded his right of private defence of property in causing mortal injuries to the deceased Ahmad Bakhsh and thus a right of private defence of person accrued to the accused. In the alternative, it was represented that the accused were not actuated by a common intention and, as the High Court had found that it was not possible to say who had inflicted the fatal injury or injuries on the deceased, the appellant was entitled to the benefit of the doubt arising from that circumstance.

Mr. S. A. Mahmud, who appeared for the State, on the con trary, attempted to make out that the accused persons and the deceased Ahmad Bakhsh had come to the spot with the common intention of diverting the water to their own lands, at all costs. In the light of this assumption he contended that if three of the accused attacked Sardar Ali to break down his resistance and the fourth, namely, Ahmad Bakhsh, proceeded to divert the water to his own fields, and if as a consequence, on Muhammad Yaqub resorting to his right of private defence of property, the latter was attacked, all his assailants could be held guilty of murder, if they caused the death of Muhammad Yaqub. It was pointed out that under section 104 of the P. P. C., Muhammad Yaqub could have caused any injury short of death to Ahmed Bakhsh, in defence of property rights of his uncle, Sardar Ali, and if Ahmad Bakhsh retaliated, a further right of private defence of person would also be available to Muhammad Yaqub.

In the first information report that was lodged in this case by Ghulam Muhammad (P. W. 12), an eyewitness, there is no mention of the attempt of Ahmad Bakhsh deceased to divert to water to his own fields, before he was attacked by Muhammad Yaqub. Mr. Bhatti, therefore, at one stage suggested that the story for the prosecution was developed at the trial so as to make it appear that Ahmad Bakhsh was guilty of an offence under section 430, P. P. C., prior to the assault on him. This omission, however, was not put to Ghulam Muhammad when he was in the witness‑box, as required by section 145 of the Evidence Act, if the intention was to contradict his evidence in Court on this point. In the circumstances, as Ghulam Muhammad was not given an B opportunity to explain the omission, not much significance can be attached to it. Learned counsel for the appellant, therefore, con ceded that Ahmad Bakhsh had in fact attempted to divert the water to his own fields and thus invited the attack on him by Muhammad Yaqub.

The position adopted by the learned Advocate‑General how ever does not appear to be borne out by the evidence on the record. Akhtar Hussain is said to have been armed with a hatchet and the other two accused and the deceased with sticks. None of them carried a spade and it is inconceivable that they should have started from their houses with the set purpose of diverting the water to their own fields without an implement that could have been utilized for that purpose. It is admitted that Ahmad Bakhsh picked up the spade of Sardar Ali from the site of occurrence in order to divert the water. This would clearly rule out a pre conceived common intention on the part of the accused and Ahmad Bakhsh in this behalf. It appears to us that the attempt at diversion of water was the individual act of Ahmad Bakhsh and a common intention need not have been shared by him with the other accused persons in this respect. The incident apparently had a spontaneous aspect, seen in the light of the sudden quarrel that appears to have arisen between the parties.

In the High Court enough weight does not appear to have been given to the clear evidence on the record that the attack on Sardar Ali was preceded by an altercation and exchange of hot words between the parties. It was the prosecution case that the parties had been at loggerheads over the possession of land and the difference had to be resolved by reference to a panchayat shortly before the occurrence. In pursuance of the decision of the panchayat it was said, the possession of the land had passed to Sardar Ali. With this background, if the evidence for the pro secution is scrutinised, it would appear that a fight developed between the parties as the result of a sudden quarrel. While the three accused were engaged in attacking Sardar Ali, Ahmad Bakhsh was assaulted by Muhammad Yaqub after he had attempted to C interfere with the irrigation rights of Sardar Ali. The two parts of the incident must have occurred almost simultaneously. If this line of approach is adopted, the question of self‑defence would become merely academic. In such cases, it would be immaterial which party offers the provocation or commits the first assault in view of the Explanation to Exception 4 of section 300, P. P. C. The murder of Muhammad Yaqub must in that case be taken to have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and it could not be said, having regard to the injuries inflicted on either side that the offenders had taken undue advantage or acted in a cruel or unusual manner. The offence established against the assailants of Muhammad Yaqub would, therefore, fall within the first part of section 304, P. P. C.

The learned Judges of the High Court however, analysed the evidence with a view to find out if either party was protected by the right of private defence of property or person.

If that aspect of the case is regarded, it is clear that Ahmad Bakhsh had put himself on the wrong side of the law and that Muhammad Yaqub would have been justified in using the necessary amount of force for protecting his uncle's right of pro perty. However the medical evidence shows that ten injuries were inflicted on Ahmad Bakhsh, an old man of 56 or 58, by Muhammad Yaqub, a young man aged about 22. One of these ten injuries fractured the old man's skull and led to his death. Muhammad Yaqub himself sustained only four injuries, most of which are said to have been inflicted by the three accused persons. It is highly unlikely that Ahmad Bakhsh could have caused one of the three individually fatal injuries of Muhammad Yaqub before he was himself done to death‑as that would have reduced the effectiveness of Muhammad Yaqub in the combat. The picture that emerges, therefore, is that Muhammad Yaqub clearly exceeded his right of private defence in giving repeated blows to Ahmad Bakhsh, whereas his object could have been served by pushing him aside or at the most by giving one or two blows to the deceased in order to prevent him from committing mischief. On this view, it must be held that, when the accused persons (including two sons of the victim) responded to the call of Ahmad Bakhsh, who shouted that he was being killed by Muhammad Yaqub, they had justification on their side. It is not to be imagined that they should have at that moment waited to determine whether Muhammad Yaqub had exceeded his right of private defence of property or not. Indeed, these accused persons, as the recital of facts shows, may not have been cognizant of what had happened, at some distance from them, to justify the attack on Ahmad Bakhsh. In the circum stances, the right of private defence of person must be conceded in favour of the accused.

The next question that calls for consideration is whether the accused themselves exceeded this right. In this context, the evidence given by the doctor who performed the autopsy on the deceased Muhammad Yaqub, assumes considerable importance. The deceased had three contused wounds and an abrasion on the head. His left upper eyelid was also ecchymosed. Three of the head injuries were such as could have individually sufficed to cause Muhammad Yaqub's death, according to the testimony of the doctor. The skull of Muhammad Yaqub was smashed to pieces with the blows that he had received. The three persons, therefore, who attacked Muhammad Yaqub, in the circumstances of the case, must be held to have exceeded the exigencies of the occasion i causing very serious injuries on a vital part like the head of to deceased. As observed above, for the three individually fatal injuries of Muhammad Yaqub the appellant and‑ his two co‑accused were, in all probability responsible. On this view, consequently, an offence under section 304, Part I, P. P. C., was brought home to the accused, who must have acted in pursuance of a common homicidal intention in causing the death of Muhammad Yaqub. On either view of the case therefore, the final result would be the same.

In view of the above discussion, we allow this appeal to the extent of altering the conviction of the appellant to one under section 304, Part I, P. P. C., and reducing his sentence to ten years' rigorous imprisonment.

A. H. Conviction altered/Sentence reduced

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.