P L D 1959 (W (PLP)

SAJJAD AHMHD, J.

‑Mehdi Khan, aged 30 years, a Rajput of Mauza Shafi, in the Montgomery District, appeals against his conviction under section 302, P. P. C. and a sentence of death which is also before us for confirmation. His cousin, Fazal Muhammad, who was a co‑accused with him in the same trial, has been acquitted.

2. The charge against the appellant was that he had killed his cousin, Ali Muhammad on the 17th of February 1958, by giving him a spear blow. The deceased and the appellant lived in the 'same ihata but in different houses. It was alleged that there was some bad blood between them because each of them was keen that their common relation Nazar should marry a girl of his respective choice. The appellant wanted him to marry his sister‑in‑law, Mst. Kaniz, while the deceased wanted and actually succeeded in arranging his marriage with his sister's daughter, Mst. Maqsoodan. No other point of enmity was suggested, and we feel that the difference between them on the choice of the bride for Nazar could not furnish a motive for this crime and has been rightly discarded by the learned trial Judge. It is in evidence that the appellant Mehdi Khan in spite of his initial opposition to Nazar's marriage with Mst. Maqsoodan had joined the marriage ceremony and had even paid his neondra, and there is no indication whatsoever that he bore any grudge in his mind over this matter.

3. The prosecution case, as set up at the trial, was, that on the day of occurrence the deceased had left his house to take his turn of water for irrigating his field in Khasra No.

81. Soon after, the appellant arrived armed with a spear and accom panied by Fazal Muhammad and was seen by the witnesses Dildar Khan and Muhammad Hussain going in the direction of the deceased which aroused their suspicion that something untoward was going to happen. The deceased had actually reached his lands and was clearing the khala for the flow of water to his field when he was over‑taken by the appellant and Fazal Muhammad. The latter started grappling with him and then raised a lalkara, asking Mehdi Khan to spear the deceased. On this‑Mehdi Khan appellant gave a spear blow, hitting the deceased on the neck and causing his death.

4. The first information report was lodged by Dildar Khan P. W. at 2 a.m. on the following morning (18th February 1959) at the Police Station Malka Hans, situated at a distance of about four miles from the scene of occurrence. The first information report gave substantially the events of the occurrence, as stated above. It was mentioned therein that the occurrence had been witnessed by P. Ws. Sikandar Khan, Sadar Din alias Kaku Sial, and Muhammad Hussain, the last of whom was alleged to have sustained an injury on his hand while attempting to seize the spear from the appellant when he was about to give a second blow to the deceased. Kaku Sial, who has appeared as P. W. 18 at the trial, was a tenant of the appellant, Mehdi Khan, in cultivating possession of his lands.

5. Jalal Din (P. W. 16), Assistant Sub‑Inspector, reached the scene of occurrence at 5, a.m. and after preparing the injury statement of the deceased sent him for post‑mortem examination, which disclosed the injury sustained by the deceased as follows :‑ A penetrating incised wound, 1" x ", penetrating the pleural cavity on the left side of the neck with a cut in the first nib of the left side of the thorax over the middle part. The wound was 1" from the middle line of the deck and 1" above the left clavicle. Death was due to shock and haemorrhage, as a result of this injury, which was caused by a sharp‑edged weapon and was sufficient in the ordinary course of nature to cause death.

6. P. W. Muhammad Hussain was also medically examined at 6 p.m. on the 18th of February 1958, and was found to have the following injuries :‑ (1) A cut, " x ", skin deep, over the palmer side of the right hand, " below the base of the first finger. (2) A cut, " x 1/8", skin deep, over the palmer side of right hand, 1" below the base of the little finger. Both the injuries were simple, caused by a sharp‑edged weapon and of a day's duration,

7. The appellant Medhi Khan was also sent for medical examination and Lady Doctor K. Fatima (P. W. 8) who examined him on the 20th of February 1958, at 5 p.m., found the following injuries on his person :‑ (1) An incised wound on the first phalynx of left ring finger, " x 1/6", skin deep. (2) An incised wound, " x 1/6", skin deep, on the inner aspect of left palm, 1" above the third phalynx of little finger. (3) Red contusion on the lower third of the left forearm, posteriorly, 3" above the wrist joint, 1" x ". (4) An incised wound on the left index finger on its third phalynx, " x 1 /6", skin deep. All the injuries were simple, of three days' duration, Nos. 1, 2 and 4 being caused by a sharp‑edged weapon and No. 3 by a blunt weapon.

8. The prosecution case was supported at the trial by P. W. Dildar Khan, brother of the deceased, who had made the first information report, Muhammad Hussain (P. W. 12), who, as stated above, was himself injured in the scuffle, and P. W. Sikandar Khan, a witness mentioned in the first information report, although he owned the fact at the trial that he was a friend of he deceased. The learned counsel for the appellant urged during the hearing that the ocular evidence in the case consists of relation and partisan witnesses and, as such, should not be believed implicitly. The case, however, does not present any difficulty in determining the authorship of the injury, as the appellant himself admits that he did give it, claiming for himself a right of self‑defence of property and person. Therefore, we will have to consider the question in all its aspects as to the circumstances in which the injury was given by the appellant to the deceased, to find, if the case is covered by the provisions relating to the right of self‑defence and in this connection we are alive to the fact that the ocular evidence, with a bias for the prosecution and having been rejected against the co. accused, cannot be accepted without reservation and without circumstantial evidence materially supporting it. But before coming to any determination on that point, let us consider the case as the appellant made for himself in answer to the charge. Replying to the last question‑Anything else, asked from him by the Inquiry Magistrate, he stated as follows :‑ "It was my turn of water and Ali Muhammad deceased actually cut the water prematurely before his turn. I stopped him on which he started abusing me. On this Dildar P. W., armed with a barchhi and Muhammad Hussain P. W. armed with a dang, appeared at the spot and also started abusing me. I returned the abuses, whereupon, Dildar P. W. attacked me with a spear and I managed to snatch the barchha from his hand and received injuries in this attempt. Muhammad Hussain then pushed aside the barchha which was in my hand at that time and gave me blow with a stick on my left arm. Ali Muhammad deceased attacked me with his kassi and in order to defend myself I used the barchha.. I threw the barchha at the spot and left the spot." In his statement at the trial he made some variations from the previous statement but substantially the case for "self‑defence" was laid on the same foundations. In regard to the dispute over water the statement made was as follows :‑ "My tenant Kaka had deprived me of the use of water at 4‑30 p.m. on the day of occurrence. He had given the water to Ali Muhammad deceased, who was not entitled to it. I happened to be there and I protested against the conduct of Ali Muhammad deceased and Kaka P. W." Sadar Din alias Kaku (P. W. 18) denied having given away the water and there is no indication from the evidence that he had really done so. But even if water was given by Kaku with out the permission of the appellant, since Kaku himself was admittedly in cultivating possession of the lands in actual enjoyment of the irrigation rights, it is doubtful if the appellant, as the ultimate owner of the fields and the irrigation rights, could make a legitimate grievance of this fact. But the question of the right of self‑defence set up for the accused can be disposed of on a shorter ground. He could have had the right of defending his claim to the flow of water if he wherein enjoyment of the same, provided the opposite party had in any manner violated that right by attempting to divert the flow of water to their own fields. But there is nothing at all to suggest that the deceased, or any of his companions, had made any such attempt. The deceased was before the occurrence, only clearing up his khala in anticipation of receiving water and had done nothing by then to divert the actual flow of water. Needless to say that there can be no right of self‑defence against an anticipated action. It is only a reasonable apprehension of damage or mischief to the property or harm to person that gives rise to the right of "self‑defence", subject always to the limitations of that right contained in section 99 of the Penal Code: And there can be no reasonable apprehension without a positive overt act by the opposite side. If the actual act of damage or mischief or harm has not been set in motion, no occasion arises for any defensive action. If were allowed to take the law into their own hands for warding of imaginary threats to their persons or property, the result can well be imagined. In the circumstances of this case, it is impossible to concede the existence of a situation that could have legitimately given rise to the exercise by the appellant of the right of self-defence of person or property, as claimed for him.

9. It is next contended by his learned counsel that the offence of the appellant is covered by Exception (4) to section 300, P. P. C. He has tried to argue that there being no substantial motive proved on the record, the occurrence was without any previous malice. One spear injury given to the deceased, according to him, was the result of a scuffle between the parties which develop between them suddenly on the spot. We are not prepared to accept the argument of the learned counsel that Exception (4) is attracted to the facts of this case even conceding that the occurrence is marked by absence of malice and premeditation. One important factor which must exist for the application of Exception (4) to section 300, P. P. C. is that the accused persons should not act in a cruel or unusual manner and not take any undue advantage over his adversary. The occasion must not only be sudden and unpremeditated, but the party assaulted must be on an equal footing in point of defence, particularly so when the attack is made with a deadly or a dangerous weapon.

10. Analysing the facts of this occurrence, we consider that the appelianz had come to the spot on information that the deceased, in league with his tenant Kaku, was calendestinely taking away his water without a legitimate turn. He came over to remonstrate taking the spear with him to meet any eventuality in defence of the supposed infringement of his right but not with a view to do a deliberate killing. When he went to the spot, a quarrel appears to have started between him and the deceased followed by a scuffle and in the heat of the moment he gave one spear blow to the deceased which unfortunately proved fatal. But the use of the spear against the deceased who was unarmed even in the heat of the moment would deprive the appellant of the benefit of Exception (4), as it cannot be rightly urged for him that he did not take undue advantage and did not act in a cruel or unusual manner. We hold that his offence falls under section 302, P. P. C. and he has been rightly convicted. However, in view of the absence of any pre‑existing malice and because of the suddenness of the occurrence and the fact that only one blow was given in a tense situation created at the time, we feel that the extreme penalty of law to be exacted from him is perhaps more than the demands of justice require. We, therefore, refrain from exacting that penalty and alter his sentence to transportation for life and with this alteration in the matter of sentence, we dismiss his appeal. M. A./A. H. Sentence altered: Appeal dismissed.