P L D 1965 Dacca 193 (PLP)

SATTAR, J.‑The thirteen appellants were placed on their trial before Mr. M. Eusuf, Additional Sessions Judge, Mymensingh to answer a common charge under section 148 of the Pakistan Penal Code. There was a further charge against appellants Maynarbap alias Abdul Gafur and Nepal alias Abdur Rahim under section 302 of the Pakistan Penal Code. Appellants Seraj, Hasen Ali and Hossain Ali were further charged under section 324 of the Pakistan Penal Code. The trial was held with the aid of four assessors who unanimously found Maynarbap, Nepal, Seraj, Hasen Ali, Hossain Ali, Shahar Ali, Khoda Newaz, Budu alias Sattar, Araj Ali and Hiran guilty under section 148 of the Pakistan Penal Code and Hashan Ali, Ismail and Khorshed alias Kohshirbap under section 147 of the Pakistan Penal Code. Appellants Maynarbap and Nepal were found guilty by three of the Assessors under section 302 of the Pakistan Penal Code and not guilty by one Assessor. So far as the charge under section 324 of the Pakistan Penal Code is con cerned the accused persons who were charged for the said offence were found not guilty. The learned Judge found both Maynarbap and Nepal guilty of the charge under sections 302 and 148 of the Pakistan Penal Code. He sentenced each of them to transportation fox life under the former charge and to a sentence of six months' rigorous imprisonment under the latter section. The sentences were directed to run concurrently. Appellants Seraj, Hasen Ali, Hossain Ali, Shahar Ali, Khoda Newaz, Budu, Araj Ali and Hiran were convicted under section 148 of the Pakistan Penal Code and each of them was sentenced to six months' rigorous imprisonment. Appellants Hasan Ali, Ismail and Khorshed were convicted under section 147 of the Pakistan Penal Code and each of them was sentenced to three months' rigorous imprisonment: The prosecution case shortly stated is that on the 32nd Sravan, 1368 B.S., corresponding to 17th August 1961, P. W. 1 Keno Meah and his brother Mokar Bap alias Abdur Rahman went to plough their land and found that there was excessive rain water accumulated in it due to the draining out of water into it from a plot of land belonging to the father of appellant Maynarbap. The deceased Mokar Bap then began to make an opening in the northern ail of his land to drain out the water accumulated in his land. But as the said water wag to fall ultimately on the land of the father of appellant No. 1, through another land, which had already been prepared for transplantation, appellant No. 1 started abusing Mokar Bap. Mokar Bap, however, did not pay any heed to it. Then appellant No. 1 went home and returned with the remaining appellants being variously armed and attacked Mokar Bap. It is said that Maynar Bap dealt a Halanga blow on Mokar Bap followed by another blow given by appellant Nepal alias Abdur Rahim. When he fell down, the other persons also assaulted him. Mokar Bap was carried home where he died. The defence case on the other hand is that in order to drain out rain water from their land into the land of the accused, P. W. 1 his brother Mokar Bap and some of the witnesses cut the north‑eastern ail of their land and in spite of protest and opposition of the accused persons did not stop doing so. On the other hand they chased and ‑ assaulted Maynar Bap on a neighbouring land and when some of the accused persons came to save him, a free fight took place between the parties in which Mokar Bap was injured. The defence case further is that the injuries on Mokar Bap were inflicted in a melee and nobody could say who inflicted which injury. According to the prosecution case P. W. 1 Kenn Meah and his brother Mokar Bap alias Abdur Rahman went to plough their land to the west of their house at a distance of 100 to 150 cubits. At that time accused Maynar Bap was ploughing their plot lying to the adjacent West of the said plot. The prosecution case further is that prior to that, Maynar Bap had cut the southern ail on the western side of the com plainant's land and allowed accumulated rain water to get into the said land. As P. W. 1 Kenu Meah and the deceased found difficulty in ploughing their land, they made an opening on the north‑eastern ail: of their land so as to allow the accumulated water to pass to the neighbouring land and through it to the land of Abul Hossain Haji, the father of accused Maynarbap. The only witness who has deposed as to the occurrence from the beginning to the end is P. W. 1 Kenu Meah. His evidence in short is that on the morning of the 32nd Sravan, 1368 B.S. he and his brother Mokar Bap went out to plough their land at a distance of 100 to 120 cubits from his house. At that time Maynarbap was ploughing their land lying to the adjacent west of their land. The southern ail of their land on the western side was cut and water from the land of Abul Hossain Haji accumulated in their land. This caused inconvenience to the ploughing of their land and then Mokar Bap cut the north‑eastern ail of their land so that water could pass to the land of Hasu and then to the land of Abul Hossain Haji. At this Maynarbap started abusing them, but they did not listen and Maynarbap went home and returned with the other accused carrying weapons. He has named all the thirteen appellants who came and attacked him and his brother Mokar Bap. According to him Maynarbap thrust a Halanga on the left side of the chest of Mokar Bap and then Nepal threw a Halanga on the right side of the abdomen of Mokar Bap. He has also stated that other accused persons assaulted Mokar Bap. It is the case of both the sides that the occurrence took place when the deceased cut the north‑eastern ail of their land in order to drain out the accumulated water from the said land which fell on the land of Hasu and then to the land of Abul Hossain Haji, the father of appellant Maynar bap. The prosecution further asserted that Maynarbap had earlier passed water from his father's land through the south eastern corner of the land of the complainant party. This part of the prosecution story has been challenged by the defence. On the other hand the defence case as deposed to by D. Ws. 1 and 2 is that Mokar Bap tried to drain out water from his land into the land of Maynarbap and then the quarrel ensued. The learned Judge has found rightly that the witnesses examined on both the sides are not disinterested. He has, therefore, relied on some circumstances established in the case and found that the accused party were aggressors. We have given our anxious consideration to the entire evidence and we find no reason to reject the evidence of P. W. 1 that before he and Mokar Bap cut the north‑eastern ail of their land to drain out water, Maynarbap had passed out water from his land to their land. This part of the evidence of P. W. I receives corroboration from the first information report lodged by him within 3 hours of the time of occurrence. Learned Advocate for the appellants has argued that as the investigating officer ,has not stated anything about any opening on the south‑western ail of the land of the complainant the story should not be accepted. This fact alone is not sufficient to reject the positive evidence of P. W.

1. The defence has examined two witnesses. These witnesses have not asserted that water was not drained out from the land of Maynarbap to the land of the complainant. We, therefore, accept the prosecution story that Maynarbap previously to the attempt by Mokar Bap to drain out water from his land had discharged water from his plot. The learned Judge has found that Mokar Bap was first assaulted by appellants Maynarbap and Nepal on his own land and when he ran to the receiver's land up to the east, he was further assaulted by accused persons. This finding is based on the evidence of P. W. 1 who has stated in answer to a question put to the witness by the Court that after receiving two blows from Maynarbap and Nepal, Mokar Bap ran up to the receiver's land. The witness followed him and all other assaults took place there. The evidence of the defence witnesses, however, is that Maynarbap was quarrelling with Mokar Bap, Kenu Meah, Lebu, Rope and others over draining out water from the land of Maynarbap. As Maynarbap was trying to fill up the gap, Mokar Bap beat him and so he went towards the receiver's land. These witnesses have stated that all the assaults then took place in the receiver's land which is to the east of the land of the complainant. P. W. 4 Abdur Rashid has stated that at about 1 prahar on the 32nd Sravan, 1368 B.S. on hearing the cries of Mokar Bap and P. W. 1 Kenu Meah, he ran with Lebu up to the western plot of the receiver's land and they were opposed by Hiran, Nepal, Khoda Newaz, Budu Mia, Shahar Ali, Araj Ali, Hashan, Hasen Ali, Hosin Ali and Ismail. He has then described the various assaults that took place excepting the injuries caused by Maynarbap and Nepal. P. W. 2 Dr. M. F. Karim in cross‑examination has stated that on the 17th August 1961 he examined one Rahmat and found as many as six injuries on his person all of which were incised and punctured wounds. He also examined one Abdul Gafur who is none but appellant No. 1 son of Abul Hossain Haji and found two injuries caused by blunt weapons. He also found some injuries on the persons of Hossain Ali and one Israil. These persons are said to belong to the accused party. The evidence discussed above clearly shows that after some altercation which took place near the north‑eastern corner of P. W. 1's land when water was being drained out from the said land, both sides who had their houses nearby fully armed themselves and stood on the receiver's land where a free fight took place. In such circumstances neither the defence plea of right of private defence of property nor the prosecution story that Mokar Bap was injured by these two appellants when he and P. W. 1 were alone in the field without any arm can be accepted. The participation of the thirteen appellants has been deposed to by P. W.

1. His evidence receives corroboration from the first information report lodged by him. The evidence of the other witnesses, namely, P. W. 3 Jahiruddin, P. W. 4 Abdur Rashid and P. W. 5 Kamaruddin tends considerable support to the evidence of P. W.

1. Regard being had to these facts we have found no reason to disturb the finding of the learned Judge in regard to the convictions and sentences under sections 148 and 147 of the Pakistan Penal Code. The learned Advocate for the appellants has argued that there were disinterested witnesses present who had not been examined in this case. P. W. 1 in this evidence has stated that some of the witnesses whose names appear in the first information report have got enmity with the complainant party on an exami nation of the entire evidence we do not find anything to show that the defence seriously challenged the participation of any of the accused persons in the occurrence. So far as the charge under section 302/34 is concerned the evidence with regard to the same has been furnished by P. W. 1 only. His evidence in this regard receives corro boration from the evidence of P. W. 6 Lal Mamud and P. W. 7 Ibrahim. On a consideration of the evidence of these witnesses we have found no ground to disagree with the learned Judge that the appellant Maynarbap gave a blow with a Halanga on the left side of the chest of Mokar Bap and that Nepal gave a blow with a Halanga on the right side of Mokar Bap the deceased. The evidence of these witnesses finds corroboration from the evidence of P. W. 2 Dr. F. M. Karim who held post‑mortem examination. He found the following injuries :‑ (1) 8 punctured wounds on the left thigh. (2) 5 abrasions on the back. (3) One punctured wound 2/3" x " x 1 " on the left anterior axillary line in the 4th inter costal space. (4) 11 small punctured wounds on the right eliac region. None of them have entered within the abdomen. (5) One punctured wound " x 1/6 " x 1/3 " on the right hypo chondrium. (6) One punctured wound 1/3" x 1/4" x " on the right mid‑axillary line in the 8th intercostal space. We, therefore, accept the evidence that the two injuries on the chest and the abdomen were caused by these two appellants with Halanga. In convicting these two appellants under section 302/34 of the Pakistan Penal Code the learned Judge has observed as follows:‑ "Now, after a very careful consideration of the evidence on record and the surrounding circumstances of the present case, I am inclined to think that these two accused persons had no intention to kill (deceased) MokarBap; they wanted to teach him a lesson. But they must be presumed to have the knowledge that each of the two injuries caused by them upon vital parts of the body was sufficient in the ordinary course of nature to cause the death of MokarBap. In these circumstances I am inclined to agree with the two assessors, who have opined that each of these accused is guilty under section 302, P. P. C." We have given our anxious consideration to the above observation of the learned Judge and we must point out that we are unable to agree with the same. The learned Judge has failed to take into account that these assaults by the two appellants took place in a sudden fight without any premeditation. It cannot be said that these two accused persons took undue advantage over the deceased or that they had acted cruelly. The blows were no doubt given with dangerous weapon and on vital parts of the body. In these circumstances we are of the view that the offence committed by the two appellants comes under section 304, Part 1/34 of the Pakistan Penal Code. We have come to this conclusion because though the medical officer at one stage has stated that death of the deceased was due to shock and haemorrhage as a cumulative effect of all the injuries which he found on his person, but at a later stage has opined that injuries Nos. 3 and 6 which were caused by these two appellants were themselves sufficient individually and separately in the ordinary course of nature to cause death. In view of the above evidence while we are of the view that the offence committed by these two appellants comes within the definition of murder under section 300 of A the Pakistan Penal Code, we are unable to agree with the learned Advocate for the State that Exception 4 to that section is not attracted in this case. The result, therefore, is that the appeal succeeds in part. The convictions of Maynarbap and Nepal are altered to one under section 304, Part 1/34 of the Pakistan Penal Code. We sentence each of these two appellants under that section to seven years' rigorous imprisonment. The said sentences will however, run concurrently with the sentence imposed under section 148 of the Pakistan Penal Code. The appellants 3 to 13 who are on bail will now surrender to their bail bond and serve out the remainder of the sentences imposed on them. ABDULLA, J.‑I agree. K.B.A. Appeal partly accepted.