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Criminal Appeal No. 997 of 1958, decided on 18th May, 1960.
Enmity with accused of very indirect nature and relating to events which happened several years ago‑Does not affect evidence.
Where the enmities between the accused and the prosecution witnesses are of a very indirect nature and they relate to events which happened several years ago the Court will not be justified in rejecting the evidence of the witnesses.
High Court when would interfere with order of acquittal‑Criminal Procedure Code (V of 1898), S. 417.
A verdict of acquittal should not be lightly disturbed by the High Court, yet if the acquittal of the accused is manifestly wrong and it is not just a question of taking a view different from the one taken by the trial Judge, the High Court can rightly interfere.
Sheo Swarup and others v. King Emperor A I R 1934 P C 227 (2) and Ahmad v. Crown P L D 1951 F C 107 considered.
Right of‑Question whether right was properly exercised‑Duty of Court explained‑Penal Code (XLV of 1860), Ss. 100 & 103.
In all cases where the Court comes to the conclusion that the accused person acted in the exercise of the right of private defence of person or property, it is the duty of the Court to examine the further essential question whether the right was not exceeded in the particular circumstances of the case. If this is not done, there is a likelihood of a manifest failure of justice.
Iftikhar‑ul‑Haq for Appellant.
Sardar Muhammad Iqbal and Sardar Shah Bokhari for Respondent.
Date of hearing : 18th May 1960.
The two respondents, Sadiq alias Irshad and Allah Rakha, were tried by Mr. D. Fazal‑ud‑Din, Sessions Judge of Sargodha, on charges under sections 302 and 326 of the Pakistan Penal Code read with section 34 of the same Code, and acquitted. The State has appealed against this acquittal.
2. The case put forward against the respondents at the trial was this:‑--
The respondent Sadiq and his father Abdullah were in occupation, as tenants of one Muhammad Shafi, of square No. 47 situated in Chak No. 99‑N.B. in the Sargodha district. Ghulam Rasul (P. W. 11) and his father Sardar Khan (deceased) were cultivating the adjoining squares Nos. 53, 60 and 61. The turn of water of the deceased was immediately after that of respondent Sadiq and his father. Sadiq's turn commenced at 7‑25 p.m. on Friday and ended at 2‑25 a.m. on Saturday, which was also the commencing time of the turn of Ghulam Rasul and his father Sardar Khan. On Saturday, the 13th of July 1957, Ghulam Rasul went to the naka in square No. 47 for bringing water to his fields, but found that there was none in the channel. Thereupon he walked upstream and on reaching square No. 17 he saw that the respondent Sadiq and his father Abdullah were irrigating that square which they had obtained from the Government for temporary cultivation. Ghulam Rasul objected to this diversion of his water, but Sadiq and his father abused him. Ghulam Rasul then returned to his dera and informed his father Sardar Khan (deceased) of the misconduct of Sadiq and his father. Then at about 9 a.m. they went to inform the Lambardar of the village, Roshan Din (P. W. 3), but found him absent. They went again on Sunday, the 14th of July and met him in the presence of Abdul Wahid (P. W. 4) who was also sitting there. The Lambardar summoned Sadiq and his father and a settlement was brought about, according to which the accused Sadiq and his father promised to compensate the deceased by giving him three hours of water out of their turn for square No. 17 which was to fall due on Monday at 10‑24 a.m. Both the parties went away satisfied with the arrangement, and the matter rested there until Monday morning.
3. On Monday the 15th of July 1957, the deceased Sardar Khan and his son Ghulam Rasul went to their lands for getting the water from the accused Sadiq and his father, in accordance with the settlement arrived at the previous day. They found the two respondents Sadiq and Allah Rakha, who are cousins inter se, standing at the naka of square No. 47. Sadiq was armed with a hatchet while Allah Rakha with a stick. Ghulam Rasul demanded water from Sadiq, but the latter abused him and complained that he had been disgraced by Ghulam Rasul and his father in the eyes of his brotherhood and that he would not let them go alive. After uttering this threat, Sadiq gave a kulharf blow on the head of Ghulam Rasul. The deceased Sardar Khan ran to the rescue of his son and caught hold of the handle of the kulhari. At that moment the respondent Allah Rakha gave two dang blows on the head of the deceased who fell down. Allah Rakha, however, kept on belabouring the deceased with the stick. Two persons, Sharif and Sardar by name, turned up at the spot and tried to rescue the victims by attempting to snatch the kulhari from the hand of Sadiq. Thereafter the two respondents ran away to the village abadi.
The two injured persons were removed from the spot to a place near the village school and kept there until about 3 p.m. when they were taken to the hospital at Sargodha, where they arrived at about 9 p.m. The first information report was recorded at 11‑40 p.m. at the hospital by the Sub‑Inspector Muhammad Aslam (P. W. 12).
5. Sardar Khan Expired at the hospital the next morning and the post‑mortem examination revealed the following injuries :‑
(1) A contused wound, 3 '' x ", bone deep on the left side of the head in a vertical direction, 3 " above the left ear.
(2) A contused wound, 1 " x ", bone deep on the front of head in the centre " behind the forehead.
(3) A haemotomas, 3" x 2", on the right temlpe. A blood clot " thick was found under the scalp on the left side of the skull.
The left parietal bone was broken into pieces. The whole of the fronto‑parietal suture was open. The 5th and 6th ribs on the left side were broken in the middle. Death was found to be due to the fracture of skull causing injury to the brain.
6. Ghulam Rasul was found to have the following injuries on his person :‑
(1) An incised wound, 3" x ", in the centre of the head bone deep, 4 " above the right ear.
(2) A contused wound, '' x 1/3", bone deep on the back of the left forearm, 6" below the elbow.
(3) A bruise, 4" x 1", on the top of the left shoulder.
(4) A bruise, 5" x 1", on the back of the left shoulder.
Only injury No. 1 teas grievous and caused by sharp‑edged weapon, while the other injuries were simple and caused by a blunt weapon.
7. The two respondents were arrested on the 16th of July 1957, by Khan Sajjad Ali Khan, Assistant Superintendent of Police (P. W. 13). The police officer found that there were some injuries on the person of Sadiq and accordingly he prepared the injury statement (Ex. P. H.) and also sent him for medical examination. It appears to us that due to an oversight, the result of the medical examination of Sadiq has not been placed on the record, but a reference to the injury statement (Ex. P.H) shows that Sadiq had the following injuries:‑--
(1) A scratch on the left elbow.
(2) A scratch on the right elbow.
(3) A small scratch on the right wrist.
8. Both the respondents pleaded not guilty at the trial and denied the allegations brought against ‑them. The respondent Sadiq admitted that his father was cultivating square No. 47, but he himself was cultivating square No. 50. He accepted the position that the turn of water of the deceased used to commence after the turn for square No. 47, and stated that on the Saturday in question the channel was blocked during the night by "Pohlis" brought down by dust storm and the turn of three or four other persons was also lost to them because water could not flow into the channel. He asserted that the case was due to the long standing enmity with Roshan Din Lambardar and Abdul Wahid P. W. He denied the presence of any injuries on his person. The respondent Allah Rakha also asserted that the case was due to the enmity of the village Lambardar. No defence evidence was produced.
9. The two witnesses Sardar Khan and Muhammad Sharif were given up at the trial, and, therefore, the case for the prosecu tion rested only on the eye‑witness account of Ghulam Rasul (P. W. 11). As regards the previous incidents leading up to the tragedy, reliance was placed on the testimony of Lambardar Roshan Din (P. W. 3) and Abdul Wahid (P. W. 4). The learned Sessions Judge came to the conclusion that these two last named persons were hostile to the accused and, therefore, could not be depended upon. He also found that Ghulam Rasul's testimony regarding the settlement effected by Roshan Din Lambardar was of a doubtful nature. He further observed that there was undue delay in lodging the first information report. Finally, he thought that the accused persons may have taken some advantage front the blocking of the channel by the "pohli" and that if the complainant and his father wanted to take water by force on a day when admittedly it was not their turn, they should be considered to be aggressors and the accused should be considered to have acted in self‑defence. On these findings the learned trial Judge acquitted the accused.
10. We shall first consider the evidence regarding the events preceding the occurrence.
11. As already mentioned there is the evidence of Roshan Din (P. W. 3) and Abdul Wahid (P. W. 4) in this behalf. The enmity between Abdul Wahid and the accused persons is of a very indirect nature indeed. It is something like this. A cousin of the wife of Abdul Wahid's brother Abdul Ghani was involved in a murder case in the year 1950, and a brother of Sadiq accused turned an approver with the result that this cousin of the sister- in‑law of the witness was convicted, although later acquitted by the High Court. The second enmity suggested was that in the year 1951 or 1952, one Bashir Ahmad who was the brother of the wife of the witness's brother was murdered and Shafi, who is the landlord of Sadiq accused was a prosecution witness, and the suggestion was that he did not support the prosecution case, although the witness did not accept this suggestion. It seems to us that these facts are not such as would persuade us to hold that Abdul Wahid is giving a false account of the complaint made by Ghulam Rasul and his deceased father to the Lambardar Roshan Din at a time when Abdul Wahid happened to be present. Another criticism against Abdul Wahid was that he runs a shop at Sargodha, which is‑ about eleven miles away and it was improbable that he would be present in the village on a Sunday. Abdul Wahid has explained that although he has a shop at Sargodha, yet very often he visits his village where his wife and children spend most of the time.
12. As regards Roshan Din, it is pointed out that he is a collateral of Abdul Wahid and that there were security proceedings between him and Jalal who is the grandfather of both the accused, and further that Roshan Din was keen to get back his land from the father of Sadiq accused for the reasons that Sadiq's father was paying a very low amount as lease money to Roshan Din. Roshan Din denied this last allegation and as regards the security proceedings he stated that there was a compromise and none of the parties were bound down. Another fact brought out was that Shafi (the landlord of Sadiq), and Jalal (the grandfather of Sadiq), had appeared as witnesses against Roshan in a case connected with a sugar depot which Roshan Din was running at that time. This is said to have happened before the partition of the country. After considering this criticism and persuing the evidence of Roshan Din as well as Abdul Wahid, we are of the view that in the first place the enmities between Sadiq and the two witnesses are of a very indirect nature, and in the second place they relate to events which happened several A years ago. If indeed these two witnesses were inspired by malice to give false evidence, there was nothing to prevent them from claiming to be eye‑witnesses, but they do not do so and confine themselves merely to narrating the facts of a dispute which was brought to them by Ghulam Rasul and his father Sardar Khan deceased. We think, therefore, that we will not be justified in g rejecting the evidence of these two witnesses as regards the dispute over the turn of water.
13. However, there is the evidence of Ghulam Rasul also in this connection. In the first place, there is a clear recital in the first information report (Ex. P. C.) that accused Sadiq and his father Abdullah diverted the water which was due to Ghulam Rasul and his deceased father Sardar Khan, that a complaint was brought before the Lambardar, and finally that a settlement was effected according to which the accused Sadiq and his father were to allow the use of their water on Monday. It is correct hat Ghulam Rasul is the son of the deceased Sardar Khan, but it is significant that the accused persons do not allege any Amity between themselves and the deceased or his son Ghulam Rasul. From the very start the reason for the occurrence is clearly stated by Ghulam Rasul, and his evidence at the trial is substantially the same. The learned Sessions Judge has criticized Ghulam Rasul's evidence by saying that he did not mention in the first information report that he took the, parchi' from the time keeper on the night of his turn before going to the naka' nor did he mention that he went upstream along the khal. The learned Judge has also pointed out some discrepancies between Ghulam Rasul's statement and that of Abdul Wahid P. W. as to whether the complainant's water had been diverted in square No. 17 or square No. 47. It seems to us that these omissions or dis crepancies are of a very minor nature and the basic fact remains that from the very beginning Ghulam Rasul's story is that Sadiq and his father Abdullah had diverted the water which was due to Ghulam Rasul and his father and that the matter was brought before the village Lambardar and the Panchayat. It is interesting to observe that while accepting the defence suggestion that the channel may have been blocked by the pohlis', the learned trial Judge concedes that the accused persons may have taken advantage of the water so blocked. There is no doubt that the suggestion was put to the prosecution witnesses that the accused persons did plead that the channel had been blocked, but we consider that there is no satisfactory evidence which can form the basis of a conclusion that the channel was indeed blocked as suggested. The irrigation Patwari Amanat Ali Shah (P. W. 5), who gave details of the timings of various turns of water, was not at all questioned about the blocking of the channel on that night. Further, the fact that the incident took place at the naka of square No. 47, which is in the cultivation of respondent Sadiq and his father, clearly shows that the deceased and his son Ghulam Rasul went there on Monday morning in pursuance of some sort of settlement with the accused Sadiq and his father, otherwise the location of the occurrence remains unexplained. We are, therefore, of the view that even if there was only the evidence of Ghulam Rasul, we could safely hold that a dispute did arise between the parties over the diversion of water on Saturday, and that some sort of settlement was effected in pursuance of which the deceased and his son Ghulam Rasul came to square No. 47 on Monday morning, when the present incident happened.
14. Turning to the actual occurrence itself, the first question is whether the evidence of Ghulam Rasul can be relied upon. We have already observed that Ghulam Rasul, although son of the deceased, has no motive to falsely implicate either of the respondents. He was injured in the incident which costs his father's life, and his presence at the spot cannot, therefore, be doubted. The presence of injuries on the person of Sadiq respondent also points to his presence at the spot. Allah Rakha is his first cousin and his presence along with Sadiq is, therefore, not unnatural or improbable. We have already stated that the incident took place at the naka of square No. 47 which is admittedly in the cultivation of the accused Sadiq and his father. We re, therefore, in no doubt, whatsoever, that the injuries sustained by Ghulam Rasul and his father Sardar Khan deceased were caused by the two respondents before us, and the only question for determination is about the nature of the offence committed by them.
15. It is clear that whatever the settlement between the parties on the preceding day, the accused Sadiq and his father were obviously not prepared to act on it, and this is perhaps the explanation as to why Sadiq and his cousin Allah Rakha armed themselves in anticipation of the arrival of Ghulam Rasul and his father. When Ghulam Rasul and his father demanded water from Sadiq, and the latter refused, it is clear that Ghulam Rasul and the deceased did not have any legal right or title to take water by force. The suggestion was put to Ghulam Rasul that on Sadiq's refusal, he cut the water with the kahi which he was carrying and thereafter a scuffle ensued between him and Sadiq. The suggestion was not accepted by Ghulam Rasul, but we consider that the possibility cannot be ruled out. It may be that Ghulam Rasul and his father insisted on taking the water which had been promised to them, and that Sadiq and his cousin Allah Rakha resisted. If this were the case, then a right would accrue to Sadiq and Allah Rakha to defend their property, namely, their water against theft or mischief. It has to be determined as to what was the extent of that right and whether it could extend to the voluntary causing of death.
16. Under section 103 of the Pakistan Penal Code, the right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong‑doer in the case of robbery, house breaking by night, mischief by fire committed on any building etc. and finally, theft, mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. The right is, however, expressly subordinated to the restrictions mentioned in section 99, and the relevant restriction for our present purpose is to the effect that the right of private defence, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence. Now in the present case the offence, if any, attempted to be committed by Ghulam Rasul and his father was theft or mischief in respect of the water or the water‑course belonging to the accused. Ghulam Rasul was undoubtedly armed with a kaki' which is capable of being used as a weapon of offence, but there was no suggestion at all on the record that Ghulam Rasul attempted to use this kahi' in a manner which may have reasonably caused an apprehension to either of the respondents that death or grievous hurt will be the consequence. As already stated, the only suggestion in cross‑examination was that Ghulam Rasul attempted to divert water with his kaki' whereupon Sadiq grappled with him. It is thus clear that Ghulam Rasul did not threaten the use of his kahi' under circumstances which would cause the necessary apprehension mentioned in section 103 of the Penal Code. In any case it is also established that in actual fact the respondent Sadiq only received three scratches on his body while Allah Rakha did not have any injury at all. It is thus clear to us that Ghulam Rasul's act in attempting to commit theft or mischief in respect of the water or the water course did not create such circumstances as may have reasonably caused an apprehension of death or grievous hurt to the accused persons. We have, therefore, arrived at the conclusion that even if we hold that a right of private defence of property did accrue to the two respondents, the right did not extend to the causing of death. The right is not only circumscribed by considerations outlined in section 103, P. P. C. but is also subject to the restric tion already mentioned with reference to section 99 of the Pakistan Penal Code. The two respondents, therefore, clearly exceeded the right given to them by law when they caused the death of Sardar Khan deceased. On the record as it stands the utmost that can be said for the respondents is that they may have gone to the extent of causing injuries to Ghulam Rasul P. W. who was carrying a kahi' and who tried to divert the water. No part was played in diverting the water by Sardar Khan deceased who was admittedly an old man of 65 years.
17. Sardar Muhammad Iqbal, the learned counsel for the two respondents laid stress on the fact that the two respondents should be regarded as acting in the exercise of the right of private defence of the body, inasmuch as they had an apprehension of physical harm from Ghulam Rasul who was carrying a kahi'. It will be seen that this aspect of the matter is really a part of the que3tion we have already considered in relation to the right of private defence of property. The origin of the incident is connected with property and there is no allegation, much less evidence, that Ghulam Rasul or his father bad any intention of causing bodily harm to the respondents, apart from their desire to take the water which had been promised to them. We consider, therefore, that the separate question regarding the right of the private defence of body does not arise in this case. However, even if it did, the observations already made would apply, and we would hold that at the utmost the right could extend to causing hurt to Ghulam Rasul, but would not extend to the causing of the death of Sardar Khan.
18. For all these reasons, we would, therefore maintain the acquittal of the respondents on the charge under section 326 of the Pakistan Penal Code, but would convict them under Part II of section 304 of the Pakistan Penal Code for causing the death of Sardar Khan. We further hold that they are both liable under section 34 of the Pakistan Penal Code as they were acting in furtherance of their common intention. In recording this con viction, we have taken due note of the contention put forward by Mr. Muhammad Iqbal that a verdict of acquittal should not be lightly disturbed by the High Court. The learned counsel referred us to Sheo Swarup and others v. King Emperor (A I R 1934 P C 227 (1)) and Ahmad v. Crown (P L D 1951 F C 107). In our view, in the present case the acquittal of the two respondents is manifestly wrong and it is not just a question of our taking a view different from the one taken by the learned trial Judge. The learned Sessions Judge did not at all consider the question whether the right of private defence had been exceeded or not. In all cases where the Court comes to the conclusion that the accused person acted in the exercise of the right of private defence of person or property, it is clearly the duty of the Court to examine the further essential question whether the right was not exceeded in the particular circumstances of the case. If this is not done, there is a likelihood of a manifest failure of justice. This is exactly what has happened in this case.
19. As regards sentence we consider that of the two respondents Allah Rakha played a more active part in inflicting several blows on the old man. We would, therefore, sentence Allah Rakha to rigorous imprisonment for seven years and Sadiq to five years' rigorous imprisonment.
K.B.A. Appeal accepted.
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