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Criminal Appeal No. 88 of 1985, decided on 3rd December, 1986.

---Ss. 302, 300, Exception 4 & 304--Offence of murder, alteration of- Sudden fight--In all probability accused and deceased meeting by chance and as a result of verbal confrontation occurrence taking place--Accused inflicting solitary injury on head of deceased with iron pipe and although deceased having fallen on ground and at mercy of accused yet deceased causing no further injury--Conviction of accused under S. 302, P.P.C. altered to that under S. 304, Part I, P.P.C. in circumstances.

Kh. Sarfraz Ahmad for Appellant.

S. D. Qureshi for the State.

Date of hearing: 3rd December, 1986.

Muhammad Arshad alias Bagga, aged 33 years and his three other real brothers were tried for having murdered Ghulam Rasul at 11 a.m. on 26-12-1983, in the field, in the area of village Bubaiwali Mahais, at a distance of 14 miles from Police Station Qila Sobha Singh, District Sialkot, by Additional Sessions Judge, Sialkot. The learned trial Judge vide judgment, dated 8-1-1985 convicted Muhammad Arshad alias Bagga, under section 302, P.P.C. and sentenced him to undergo imprisonment for life, plus a fine of Rs.5,000 in default whereof to undergo R.I. for one year. Half of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased. The other accused were acquitted by the same judgment.

The convict has filed appeal.

2. F. I . R . (Exh. P. D.) was registered at Police Station Qila Sobha Singh, on the same day at 5 p. m. , on the statement of Ghulam Farid (P.W.6), real brother of the deceased.

According to the F. I. R., the complainant alongwith his two other brothers owned 30 Kanals of land on the eastern side of the village. The adjacent area of 41 Kanals belonged to Nur Muhammad. Nur Muhammad and his sons had been irrigating their paddy crop (last) after digging a Khal through the land of the complainant and his brothers. The complainants did not object. After the paddy, crop was cut, they demolished the Khal dug by Nur Muhammad and sowed wheat in the field. Nur Muhammad and his sons felt annoyed over the demolition of Khal.

On 25-12-1983, Nur Muhammad and his sons, Arshad alias Bagga appellant, Muhammad Malik, Abdur Rehman and Shaukat Ali, forcibly dug Khal in their land. The complainant asked Nur Muhammad and his sons as to why they had dug the Khal and also told them that they will not allow discharge of water through the Khal at any cost. Nur Muhammad and his sons replied that when the Khal will be demolished, they will see to that. The complainant informed his brother Ghulam Rasul, on his return from Lahore, the same evening.

On the day of occurrence, i.e. 26-12-1983, the complainant, his brother Ghulam Rasul deceased and younger brother Shaukat started for their land with Kassis in their hands. Arshad alias Bagga armed with iron pipe, Shaukat Ali armed with a Bughda, Muhammad Malik armed with Sarya and Abdur Rehman armed with a Drant, came out from hiding behind Bund. Ghulam Rasul was going ahead of his other brothers. Shaukat Ali, Abdur Rehman and Muhammad Malik launched an attack on him, but he saved himself with the help of Rassi. However, the blow hurled by Arshad with the pipe struck Ghulam Rasul on the head. He fell down and lost conscious. Thereafter, Arshad and others tried to attack the complainant and his brother Shaukat, but they saved themselves by running away.

The occurrence was witnessed by complainant, his brother Shaukat Ali, Tariq and Akbar.

3. Ghulam Rasul was removed to Tehsil Headquarters Hospital, Narowal, where he was medically examined by Dr. Muhammad Akmal Shaheen (P.W.1). He noted following injury on his person:---

A lacerated wound 4 c.m. x 1 c.m. x bone deep on the left side of head. Just above the hair margin with perfused bleeding from the wound ancillary moses and swelling of left eye with fixation of left eye ball as well as swelling of right eye with fixation of right eye-ball.

Ghulam Rasul was in shock and was unconscious. He died at 3-20 a.m on 28-12-1983 in the Mayo Hospital, Lahore. He was brought to Mayo Hospital on 26-12-1983.

4. Autopsy on the dead body of Ghulam Rasul was performed by Dr. Tariq Feroze (P.W.12). He noted a wound 4 c.m. (long) which was stitched with 4 silk stitches in the left interior parietal region. On dissection bone under this injury was absent over an area of 5 c.m. x 6 c. m. with irregular margins in the left interior parietal region, and left upper frontal region

According to his opinion, the deceased had died as a result of damage to the brain caused by the injury.

5. Muhammad Inayat, A.S.I. (P.W.13), who had recorded the F.I.R. (Exh.P.D.), inspected the spot on the same day and took into possession blood-stained earth vide memo. Exh.P.E. He had also prepared site plan (Exh.P.Q.) without scale.

On the death of Ghulam Rasul in Kayo Hospital, Lahore, he had gone there and prepared inquest report (Exh.P.R.) and sent the dead body for post-mortem examination.

Mushtaq Ahmad, S.I. (P.W.11), had arrested the appellant as well as acquitted accused on 9-1-1984. The appellant had led to the recovery of iron pipe from a room of his house on 12-1-1984, which was taken into possession vide memo. Exh.P.G.

6. At the trial apart from the witnesses noted above, nine other P.Ws. were also examined.

The ocular account was deposed to, by Ghulam Farid (P.W.6), Muhammad Tariq (P.W.7) and Muhammad Akbar (P.W.10).

Ghulam Farid while appearing as P.W.6, after narrating the facts given by him in the F.I.R., also stated that on the morning of the day of occurrence Nur Muhammad, father of the accused, was over-heard by Riyasat and Mukhtar P.Ws. telling his sons that he was going to the Courts as Narowal for obtaining a stay order and if in the meantime, Ghulam Rasul and his brothers tried to demolish the watercourse, they should not be spared. (It may be noted here that Nur Muhammad was challaned for conspiracy but he died before the trial). Ghulam Farid in cross-examination denied that Khal existed since five years. He conceded that land in his village was being irrigated by turbines but denied the suggestion that Irrigation Department had constructed a Khal through his land before the occurrence. He stated that Khal now had been constructed on the border line of his land, for which four Marlas of land had been obtained from him. The suggestions that Ghulam Rasul alone had gone to demolish the watercourse and Arshad appellant alone who happened to be there, had given injury to the deceased in order to defend himself when he was attacked by Ghulam Rasul, were denied by him.

Muhammad Tariq (P.W.7) corroborated the statement made by the complainant in so far as it pertained to the actual occurrence. During cross-examination, he denied that his father was first cousin of the deceased, but he conceded that they were collaterals. He dented the suggestion that appellant Arshad was alone and had caused injury to the deceased in self-defence when Ghulam Rasul had tried to attack him while demolishing the Khal. He denied the suggestion that he had not witnessed the occurrence.

Muhammad Akbar (P.W.10) also corroborated the statement of the complainant to so far as it pertained to the actual occurrence. He also stated of having attested the recovery memo. of blood-stained earth and of having witnessed the recovery of iron pipe at the instance of the appellant and of having attested the recovery memo. EXh.P.G, of the pipe.

He admitted in cross-examination that grandfather of the deceased was real brother of his father. He also conceded that the mother of the deceased had contracted second marriage with his brother Muhammad Ali. He also admitted that Tariq P.W. was his real nephew. He denied the suggestion that he had not witnessed the occurrence.

The evidence of recovery of iron pipe apart from Muhammad Akbar (P.W.10) and S.I. (P.W.11) was also deposed to, by Riyasat Ali (P.W.8).

7. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case. He denied that the complainant party had demolished the Khal after cutting of the paddy crop. He made a detailed statement in answer to the question, 'why this case against you', which is being reproduced as under:----

It is a false case. The real facts are that during the consolidation operation the Khal was constructed and passed through the lands of owners of the village, in order to supply water to the fields and the Government turbine supplied this water. It is absolutely wrong to say that we reconstructed any Khal in the land of the complainant. This Khal comes from village Singharay where the Government turbine has been installed, and this Khal passes through lands of various owners. This was an arrangement made by the proprietors of the village during the consolidation proceedings: After the incident, the Canal Department has made certain, changes in the course of the Khal. The present Khal (Disputed) has been shifted from one field of the complainant to another field of the complainant at their request. On the day of occurrence Ghulam Rasul was going to demolish the Khal in order to stop supply of water to our fields. When he started to demolish it, I asked him not to do it. Instead of giving up his designs he pounced upon me with his Kassi. I defended myself by inflicting a single blow with the pipe which I was carrying. I acted in my self-defence and defence of my property as well, because I had a right to get the supply of water through this Khal. This Khal also runs through my land to supply water to the other owners. I was alone at that time. I never intended to cause the death of Ghulam Rasul. I acted within the law."

He examined in defence Muhammad Ali as D.W.1. He also produced documents D.2 and D .3. Both documents are photostat copies of some applications. They are not certified copies. They have not been duly proved and as such they are not worth anything.

Muhammad Ali (D.W.1) stated about the construction of Khal by the appellant and his father through the land of the deceased and his brothers. According to this witness, the Khal was existing since 5/6 years prior to the occurrence.

8. The fact that the deceased had suffered injury at the hands of appellant has not been denied by him. The only point which needs consideration and examination in this case is, whether the deceased was attacked and caused injury by the appellant as stated by the prosecution or he was given injury in self-defence and in defence of property, as stated by the appellant.

There being two versions, they have to be examined in juxtaposition.

9. The learned trial Judge had not believed the presence of Ghulam Farid (P.W.6), real brother of the deceased, at the spot. Having gone through the observations of the trial Judge, I do not find anything to differ with the same. The presence of the other two witnesses at the spot was considered feasible by the trial Judge. Their evidence to the extent that the injury was caused by the appellant to the deceased, does not call for any scrutiny.

The question is, what is on record to support the plea taker by the appellant. Of course, it is prosecution's own case that the appellant, his brothers and father had been using the Khal dug by them through their land at least six months prior to the occurrence. It is also the prosecution's case that the Khal, which was demolished by the complainant, had been redug by the appellant and his other family members, a day before the occurrence. The factual position, therefore, is that the Khal was in existence on 26-12-1983, i.e. the day of occurrence.

What remains to be considered is, whether the occurrence had taken place at the Khal or it has taken place somewhere else In case it is proved that the occurrence had taken place at the Khal, the plea taken by the appellant of having acted in self-defence would find some support even if it was not proved that deceased had actually demolished the Khal. If it is found that the occurrence had not taken place on the Khal or in the land through which the Khal was passing, the statement of the appellant vide which right of self-defence is being pleaded would stand falsified. In this connection, the most material document is site plan and the place wherefrom blood-stained earth was taken into possession. According to the site plan (Exh.P.B.), the occurrence had taken place in Khasra No. 1840 at point Alaf ( ). This is not the field through which the disputed Khal was passing. In fact. this Khasra does not belong to either of the parties. According to the note in red ink on Exh.P.B., the blood-stained earth was taken from point 'A' and that also is in Khasra No.1840. It is obvious that the occurrence had not taken place at the place where the appellant would like the Courts to believe.

Learned counsel for the appellant also has not been able to controvert this position-. In fact, after having been confronted with the situation, he took alternative argument and contended that it is prosecution's own case that the deceased was going with a Kassi in his hand to demolish the Khal and that, it is also prosecution's case that the family members of the deceased had made it known to the appellant and members of his family that they will not allow that Khal to be used by the appellant or his family members and will be certainly demolished. Learned counsel vehemently contended that in his view of the matter, the occurrence during which the deceased suffered injury was the result of sudden fight. It was argued by him that the appellant, knowing, that the deceased was going to demolish the Khal, must have been stopped by him (appellant), as a result of which some hot words might have been exchanged. Learned counsel submitted that in view of these facts, the case of the appellant is covered by Exception 4 of section 300, P. P. C., which runs as under:----

"Exception 4.--Culpable homicide is not murder if it is committed without premeditation 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 latter part of the provision of this section seems to be attracted to the facts of the case, for the reason that the appellant was found to have caused one injury only to the deceased. It is not the case of the prosecution that, after inflicting the solitary injury, the appellant had acted in any unusual or cruel manner, in spite of the fact that the deceased had fallen on the ground and was at the mercy of the appellant. The first part of Exception 4, that the occurrence, if takes place without premeditation in a sudden fight in the heat of passion, would not be culpable homicide amounting to murder, also seems to be attracted to this case, the reason being that if the appellant had a pre-determined mind to murder the deceased, he would not have been armed with an ordinary type of weapon like the pipe, he might have gone to the place armed with some better weapon, and perhaps the place of occurrence would also not have been one where the occurrence took place. Moreover, .as noted above, if he had attacked the deceased with pre-determined mind, he would not have shown any restraint after the deceased had fallen to the ground and was at the mercy of the appellant.

The argument of the learned counsel for the State in this connection that the case is not covered by Exception 4 of section 300, P.P.C. does not seem to be convincing. His contention that the appellant had attacked the deceased after coming out of ambush, does not seem to be correct. The portion of the evidence that the appellant alongwith three others had come out of ambush had not been accepted by the trial Judge. Moreover, it is not on record that for going to the land of the deceased, in which the Khal dug by the appellant existed, one had to go through Khasra No. 1840. It is quite possible that they met there by chance and as a result of verbal confrontation, the occurrence took place.

10. For the reasons enumerated above, the conviction of the appellant under section 302, P.P.C. is not sustainable. The same is set aside. Instead the appellant is convicted under section 304, Part I, P.P.C. In view of the fact that he had caused only one injury, he is sentenced to undergo R.I. for ten years, plus a fine of Rs.2,000, in default whereof to suffer R.I. for one year. He is also directed to pay a sum of Rs.10,000 as compensation to the heirs of the deceased, in default whereof to suffer S.I. for six months. The amount of compensations shall be recovered as arrears of land revenue.

S.G.D. Order accordingly.

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