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Criminal Appeal No. 152 of 1983, decided on 2nd June, 1985.

‑‑‑Ss. 302,304, Part II & 100‑‑Ocular evidence indicating that turn of water was of accused and not of deceased and that when accused reached at place of occurrence deceased was diverting water to his own land and on objection of accused, deceased refused to hand over water to accused which resulted in quarrel between the two‑‑Accused though was armed with Kassi gave only one blow from wrong side of Kassi‑‑Prosecution evidence that accused dragged deceased after he had fallen down not supported by medical evidence‑‑Deceased had no right to divert water out of turn of accused to his own land‑‑Deceased was also having a Kassi in his hand and apprehending danger to his life and in order to protect flow of water to his own land accused gave one blow on head of deceased‑‑Deceased dying within 10 to 15 minutes after receiving injury‑‑No evidence existing to show that deceased made any overture or gesture that he will cause any injury to, accused‑ Occurrence took place all of a sudden without premeditation‑‑Accused did not repeat blow‑‑Act of accused, held, was covered by pleas of self‑defence but he was not justified in causing death of deceased‑ Accused found to be guilty of S. 304, Part II, P.P.C.‑‑Conviction of accused altered from S. 302, P.P.C. to S. 304, Part II, P.P.C. in circumstances.‑‑[Private defence, right of].

Muhammad Ali etc. v. The State N L R 1984 Criminal 628 rel.

‑‑‑Ss. 302 & 304, Part II‑‑Medical evidence‑‑Accused allegedly dragged deceased after he had fallen down‑‑Only two abrasions found on body of deceased, one on nose and other on back of shoulder‑‑Held, if deceased had been dragged by accused, there must have been more injuries on back of deceased‑‑Allegation of dragging of deceased belied by medical evidence in circumstances.

Malik Fazal Karim for Appellant.

Ch. Nazir Ahmad A.‑G. for the State.

Date of hearing: 2nd June, 1985.

This is an appeal by Rashid Ahmad (38) against his conviction under section 302, P.P.C. by learned Additional Sessions Judge 11, Sahiwal, who vide judgment, dated 27‑6‑1983, sentenced him to imprisonment for life and a fine of Rs.3,000 or in default one year's R.I. It was ordered that half of the fine, if recovered, be paid to the heirs of the deceased.

2. The occurrence in this case took place at 11‑00 p.m. (mid‑night) on 24‑4‑1982, at the Nakka of a water channel in the fields of Chak No. 37/E. B., about four miles from Police Station Kabula, District Sahiwal. The F.I.R. Exh. P.D. was recorded at 6‑30 a.m. on the following morning, i.e. on 25‑4‑1985 by S.I. Ghulam Muhammad P.W. 9 on the statement of Muhammad Sadiq P.W. 6.

It was stated by Muhammad Sadiq in the F.I.R. that he had cultivated wheat and Barseem in his field in Chak No. 37/E.B. His turn of water fell on 24‑4‑1982, at 10‑45 p.m. It was to end at 12‑35 mid‑night i.e. after about two hours. Ali Sher, his son went to guard the wheat crop and also to set right the watercourse from his house at about 8‑00 p.m. As about Isha prayer time, he followed his son with meals for him. He found Ali Sher deceased, Allah Ditta Chaukidar and Nek Muhammad Watto sitting at the Khalian of Nek Muhammad P.W. They were smoking Hooqa. Ali Sher, however, did not take meals for lack of appetite. The complainant was still present at the Khalian when his son Ali Sher went to commence his turn of water. At about 11‑00 p.m., Rashid accused appellant came there and told Ali Sher deceased that it was his turn of water and as to why he had diverted the water in his land. Ali Sher replied that as he (Rashid accused) has come late, so he diverted the water to his own land and that he (Rashid accused) could take the turn of water after him. This resulted in exchange of hot words where after Rashid accused gave a Kassi blow on the head of Ali Sher deceased who fell down. It was further stated in the F.I.R. that Rashid accused caught Ali Sher deceased from his leg and dragged him to the nearby cotton field. The occurrence was witnessed by Muhammad Sadiq complainant, Allah Ditta Chaukidar and Nek Muhammad P.Ws. They caught hold of the accused at the spot alongwith the blood‑stained Kasai. Ali Sher died at the spot. Leaving the dead body of Ali Sher at the place of occurrence, Muhammad Sadiq lodged the F.I.R. Exh. P.D. at the Police Station.

3. The police after registration of the case undertook investigation and sent the dead body of Ali Sher (37) for post‑mortem examination which was conducted on 25‑4‑1982, at 5‑30 p.m. by Dr. Safdar Ali Gam P.W. 1. On external examination, the Medical Officer found three injuries by blunt weapon on the dead body of Ali Sher. Injury No. 1 was a lacerated wound 4 c.m. x 1 c.m. bone deep on the back of head. There was fracture of right occipital bone transverse in direction. There was haematoma of scalp. There was laceration of membranes and brain which was full with bleeding. The other two injuries were abrasions on the bridge of nose aid back of left shoulder. On internal examination, the right side of heart was found to contain blood and stomach was full of semi‑digested meal. The death was due to shock and haemorrhage as a result of injury No. 1 to the brain which was sufficient in the ordinary course of nature to cause death. The probable time that elapsed between injuries and death was 10 to 15 minutes and post‑mortem was conducted after about 18 hours.

The accused was produced before the police at the spot. At that time, Rashid accused produced the blood‑stained Kassi P. 3 which was taken in possession, vide memo. Exh. P.E. by S.I. Ghulam Muhammad P.W. 9 in the presence of Nek Muhammad P.W. 7 and Allah Ditta P.W. 8. This Kassi was found stained with human blood, vide report of Chemical Examiner Exh. P.J. and that of Serologist Exh. P.K. The accused was challenged after completion of investigation.

4. The prosecution during the trial examined nine witnesses in all. Muhammad Sadiq P.W. 6, Nek Muhammad P.W. 7 and Allah Ditta P.W. 8 were examined as eye‑witnesses. The latter two witnesses also witnessed the recovery of Kassi P. 3. The medical evidence was furnished by Dr. Safdar Ali Gam P.W. 1. The case was investigated by S.I. Ghulam Muhammad P.W. 9. The evidence of the rest of the witnesses was of formal nature.

The accused when examined under section 342, Cr.P.C. denied the charge and pleaded innocence. He tendered in evidence the copy of Warabandi Exh. D.C, No other evidence was led in defence.

The learned trial Judge placed reliance on the evidence of motive, recovery of Kassi P. 3 and the eye‑witnesses and convicted the appellants as stated above.

5. I have gone through the record of this case and have also heard the learned counsel for the appellant as well as the learned counsel appearing on behalf of the State at some length.

The learned counsel for the appellant did not challenge the presence of the eye‑witnesses at the spot at the time of occurrence. He only contended that Rashid accused caused one blunt weapon injury in exercise of the right of his private defence. He, therefore, argued that the accused was entitled to clean acquittal in this case. The learned counsel for the State controverted the above contentions.

6. Muhammad Sadiq P.W. 6 is father of Ali Sher deceased, Nek Muhammad P.W. 7 and Allah Ditta P.W. 8 are not related to the complainant, nor they have any enmity with the accused. Muhammad Sadiq P.W. 6 admitted in cross‑examination that his land comprised of fields Nos. 16 and 17 in Square No. 49 whereas father and uncle of Rashid accused were allottee of Fields Nos. 24 and 25 in the same square. He further admitted that the fields of the father of the accused were contiguous towards South of his two fields. He further admitted that both the parties had been allotted land as Mueens of the village and that both the parties watered their land from Nakka of Killa No. 25 of Square No. 49. It is further admitted by him in cross‑examination that the family of the accused migrated to Chak No. 37/E.B. after Independence and that they have strained relations with the accused due to distribution of Sapey (work by Mueens for land‑owners). He admitted that they were not on speaking terms with the accused at the time of occurrence. It is stated in the F.I.R. as well as by Muhammad Sadiq P.W. 6 in his Examination‑in‑Chief that when at about 10‑45 p.m., Ali Sher was diverting the water to his field, Rashid accused came there saying that he had to take the turn of water but Ali Sher deceased said to him that he had diverted the water to his land and after his turn he (Rashid accused) could take water to his land. This resulted in quarrel between the parties. This evidence clearly indicates firstly, that the turn of water was that of Rashid Ahmad accused and not of Ali Sher deceased. Secondly, that Rashid accused reached the place of occurrence at the time when Ail Sher was diverting water to A his own land that Rashid Ahmad accused objected to the act of Ali Sher deceased but he refused to hand over water to the accused which resulted in quarrel between the two where after Rasnid Ahmad though armed with Kassi, a sharp‑edged weapon gave only one blow from the wrong side of the Kassi. The evidence that he dragged Ali Sher after he had fallen down is not supported by the medical evidence. The medical evidence noted only two abrasions; one on the nose and the other on the back of left shoulder. If the deceased had been dragged B by the accused, there must have been more abrasions on the back. In view of this, I am of the view that All Sher deceased had no right to divert water out of his turn to his own land. Rashid Ahmad accused was not late to arrive at the Nakka. The deceased refused to hand over the water to the accused. At that time, Alt Sher deceased was also having a Kassi in his hand anti as such apprehending danger to his life and in order to protect the floor of water to his own land, Rashid accused gave one blow to the deceased on head as a result of which Ali Sher died within 10 to 15 minutes. There is no evidence that Ali. Sher deceased made any overture or gesture to give apprehension to Rashid Ahmad accused that he will cause any injury to the accused with the Kassi in his 'hand: The occurrence took place all of a sudden without premeditation. The accused did not repeat the blow. In view of this, I am of the opinion that the act of Rashid Ahmad accused was covered by the plea of self‑defence but in the circumstances he was not justified in causing his death. I, therefore, find him guilty of an offence under section 304 (II), P.P.C. Reliance is placed on Muhammad Ali etc. v. The State N L R 1984 Criminal 628. He is accordingly sentenced to suffer five years" R.I. and a fine of Rs.3,000 or in default three months' R.I. The conviction and sentence of Rashid Ahmad under section 302, P.P.C. is consequently set aside. The entire amount if recovered will be paid to Muhammad Sadiq complainant father of Ali Sher deceased. The appellant will be given benefit of section 382‑B, Cr.P.C. at the time of computation of sentence in prison.

7. With the above modification, the appeal of Rashid Ahmad appellant is dismissed.

H.A.K. Appeal partly accepted.

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