P L D 1954 Lahore 170 (PLP)

MUHAMMAD JAN, J.‑Muhammad Sharif, aged about 21 years, Muhammad Sadiq, aged about 30 years, sons of Siraj, Siraj son of Fatta, aged about 50 years, Mahanda son of Makhna, aged about 25 years, Ismail son of Bundu, aged about 35 years, and Chiragh son of Karam Bakhsh, aged about 40 years, of Chak No.18/l.A‑L District Montgomery, were tried on charges under sections 148 and 302/149 P.P.C. Muhammad Sharif and Muhammad Sadiq were convicted under section 304 Part II P.P.C. and sentenced to five years' rigorous imprisonment each. The others were acquitted. Muhammad Sharif and Muhammad Sadiq have appealed. The prosecution case is that the appellants, their father Siraj, and the other three accused named above, were tenants of Muhammad Zafar‑ul‑Islam (P.W.3). He wanted to eject them from the land in their possession comprising about four squares in Chak No.18/1.‑A‑L and for that purpose he had instituted various proceedings against them but without success. He then issued instructions to his servant Ashiq son of Shada to prevent the accused from taking their turn of water to irrigate the land in their possession. On the night between 14th and 15th May 1952, the accused were entitled to take water for the irrigation of their land at 1‑30 a.m. and they went to do so. Ashiq son of Shada and four others belonging to the party of Muhammad Zafar ul‑Islam attacked the accused and caused no less then 28 injuries to them with blunt weapons. Two of the injuries on Mahanda accused were grievous. The accused also hit back but the only persons known to have been injured on the prosecution side are the deceased Ashiq son of Shada and Shafi (P.W.5). Some shoes and sticks were found by the police lying at the spot and the learned Sessions judge formed the opinion that they had been left behind by the men belonging to the prosecution side as they were not claimed by any of the accused. There is no evidence that those men were beaten and it would appear that they bad run away. The learned Sessions judge has held that there were five men on the prosecution side and five on the side of the accused; that Muhammad Zafar‑ul‑Islam had ordered his men not to allow the accused to take water for irrigating their land and these men were determined to carry out that order; that the accused had a right to take water at the time of the occurrence and that Muhammad Zafar‑ul‑Islam had made several efforts, legal or illegal, to eject the accused from his land. In accordance with these findings the learned Judge held that the accused had the right of private defence, that they did not constitute an unlawful assembly and none of them had the intention to kill Ashiq son of Shada or to cause him such bodily injuries as were likely to cause his death. According to the prosecution evidence Ashiq was struck by Siraj and his two sons, Muhammad Sharif and Muhammad Sadiq. As regards Siraj it was held that he had taken no part in the fight and the only other persons who were said to have struck Ashiq were Muhammad Sharif and Muhammad Sadiq. Muhammad Sharif was said to have been armed with a hatchet and Muhammad Sadiq with a spear. The only injury on the person of Ashiq which appears to have been caused with a spear is a penetrating cut on the lower part of the back, " x " x 1". He bad altogether 13 injuries, some of which were simple abrasions or contusions. He had six incised injuries, one on the wrist, one on the arm and four on the head. Three of the incised injuries on the head were described by the doctor as individually fatal and sufficient in the ordinary course of nature to cause death. Since Siraj, who was also said to have been armed with a hatchet, has been held to have taken no part in the fight, these fatal injuries must be ascribed to Muhammad Sharif. As the accused are not found to have had the common intention of killing the deceased or causing him such bodily injuries as were likely to cause his death, Muhammad Sadiq cannot be held constructively liable for causing the death of Ashiq. The learned counsel for the Crown admits that his conviction under section 304 is untenable. I accordingly alter the conviction of Muhammad Sadiq from section 304 Part II to section 324 P. P. C. and reduce his sentence to the term of imprisonment already undergone. So far as Muhammad Sharif is concerned, I consider that the finding of the learned trial Court that he exceed ed the right of private defence, is correct. Section 100 P. P. C. gives the right of killing if there be reasonable apprehension of death or grievous hurt but the right is subject to the restrictions contained in section 99 P. P. C. which lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In my opinion, it was not necessary for Muhammad Sharif appellant to inflict three fatal injuries on the head of the deceased for the purpose of defence. Even if it be assumed that Muhammad Sharif's father Siraj has been wrongly acquitted and that, being armed with a hatchet, he might also have struck the deceased on the head, then too I would be inclined to hold that Muhammad Sharif appellant had exceeded the right of private defence in joining his father and causing four injuries with hatchets on the head of the deceased, three of which were individually fatal. Siraj himself had no injuries at all and Muhammad Sharif appellant had four minor abrasions, one on the eyebrow and three on the hands. He had one contusion mark; 3" x ", on the left shoulder. All the injures were simple and caused with a blunt weapon. The determined attack with a hatchet or hatchets on the head of the deceased appears to have been actuated by a desire to punish the deceased and not for the purpose of defence. The sentence of five years' rigorous imprison ment, in these circumstances, is not excessive and I dismiss the appeal of Muhammad Sharif. He is on bail and should surrender to his bail bond to serve the unexpired portion of his sentence. A.H. Order accordingly.