P L D 1971 Peshawar 7 (PLP)

(1) An inlet firearm wound, " in diameter, on the right dorsum palm. (2) An exit firearm wound, " in diameter, on the right base index finger. (3) A firearm wound, 4" x 2", on the right iliac fossa. On internal examination, the blood vessels, corresponding to the wounds, abdominal walls, right iliac fossa, large intestines at five places and small intestines were found cut. Stomach was found empty. Death was due to shock and haemorrhage and the time between injuries and death was within 20 minutes and that between death and post-mortem examination was about 131 hours. The bullet could not be recovered from the dead body. There is no exit wound of wound No.

3. The Doctor, however, is of the opinion that the bullet had possibly slipped back because the wound was a gapping wound. Injury No. 2 on the person of the deceased is an exit wound of injury No.

1. The Doctor is of the opinion that all the three wounds on the person of the deceased could be caused with one bullet. He opined that it is possible that injury No. 3 on the deceased was not the result of the direct hit of rifle, but was caused with the bullet causing the other two injuries.

9. The same Doctor examined Gulabat Khan appellant (aged 35) years on 1-8-1967 at 11-15 p.m. and found the following injuries on his person:- (1) An abrasion, " of diameter, on the back of neck. (2) An abrasion, 2" x " x ", on the upper back of mid -vertebral line. The injuries were caused with a firearm within a duration of 12 hours. The Doctor is of the opinion that the injuries on the person of Gulabat Khan could be caused by a blunt weapon, but as the shirt which the patient was wearing had cuts, he thought the injuries were caused by a firearm although they were superficial. Both the injuries on the person of the appellant were caused to him from the back. The Doctor opined that these two injuries could be the result of two different shots, if fired with a rifle. They could also be caused by two pellets of the same shot fired from a shot-gun.

10. At the trial, Gulabat Khan appellant denied the charge pf murder of Sher Zairian deceased. He admitted to have made the report (copy Exh. P. A/1.) In explanation of injuries on his person, the appellant stated, "I was injured by Jahan Khan P. W. and Sanaullah who fired at me with rifles". Explaining the charge against him, the appellant stated:- "On the day of occurrence I was irrigating my land with the rain water from the morning. My father was also with me. Later at about noon time the water, however, stopped and my father asked me to go up stream and find out the reason for the stoppage. Accordingly I went upstream and found that the water had been blocked by means of a `Gandi' in our channel by Jahan Khan, Sanaullah, Dildar, Reshmin and Nasrullah. As soon as they saw me, Jahan Khan and Sanaullah who were' armed with .303 rifle each, fired ac me as a result of which I was hit on the back because by that time I was turning round. They fired a number of shots at me. After the receipt of the injuries I fell down to the ground. Sher Zaman (deceased) was also present there, armed with 303 rifle, and when I fell down I saw him proceeding towards me with his rifle. I, therefore, crawled to take position behind a `morcha' and later asked Sher Zaman not to come towards him but he ignored my request and continued proceeding towards me with dangerous intentions. Feeling that I might be killed if he got near me, I fired at him merely to save myself from further damage. They had all diverted our water forcibly without any right. We have got a separate channel and it was that channel that the deceased and the P. Ws. had blocked without any right." The appellant produced no evidence in defence.

11. The prosecution relies on the ocular evidence of P. Ws. Jahan Khan, Reshmin and Nasrullah. The three witnesses are relations inter se. They claim irrigation water from the main channel through `Wand Bashai'. Their presence at the site of occurrence appears to be natural. The appellant in his statement also admits the presence of P. Ws., Jahan Khan, Reshmin and Nasrullah at the place of diversion of the water. The prosecution case is that the deceased and the three witnesses had diverted the water to their fields at the `Gandi' and that they were putting stones and branches of trees in the band, when Gulabat Khan appellant, and his brother Saleh Khan (absconder) appeared there, took morcha and objected to the diversion of the water. Sher Zaman deceased while claiming the water was proceeding towards Gulabat Khan and his brother in response to the objection when the two assailants fired a shot each at Sher Zaman with their respective rifles wounding the deceased fatally.

12. The version of the appellant is that when he found that his irrigation water had stopped, he went upstream and found that Jehan Khan, Sananllah, Dildar, Reshmin and Nasrullah bad blocked the water by means of a `Gandi' in the channel of the appellant, and that as soon as Jahan Khan and Sanaullah, who were armed with rifles, saw the appellant, they fired at the appellant with the result that the appellant while turning round was hit in the back. The appellant also averred that after the receipt of the injuries, he fell down to the ground. Sher Kaman armed with a rifle was proceeding towards the appellant. The appellant, therefore, took position behind a morcha and asked Sher Zaman not to proceed towards him. Sher Zaman continued proceeding towards the appellant with dangerous intention. The appellant feeling that he would be killed, if Sher Zaman got near him, he (appellant) fired at the deceased merely to save himself from further damage.

13. In view of the appellant's admission of firing fatally at Sher Zaman deceased, we have to see what offence has been committed by the appellant. The learned counsel for the appellant claimed self-defence of property (irrigation water) as well as self-defence of person for the appellant. The deceased and the three ocular witnesses claimed the flood water from the main channel 'Shuza' through `Wand Bishai'. The appellant claimed the same flood water through 'Wand Zangur'. It is in the prosecution evidence that the flood water had already flowed for two days towards the fields of the appellant. From the evidence on the record it cannot be conclusively proved that the appellant had the exclusive right of irrigation from the flood water then flowing. However, it appears that both the parties had equal rights of irrigation from the common flood water. The place where the band was put in the 'Wand' of appellant is 120 paces from the place where the appellant and his brother Saleh Khan took positions in a 'morcha'. In such circumstances, in my view, the appellant is not entitled to claim self-defence of property. The learned counsel for the appellant relied on the rule of law laid in (1) Mehram and another v. The Crown P L D 1955 Lah. 170 and (2) Fazal v. The State 1969 P Cr. L J

740. These two authorities, in my view, are distinguishable and do not assist the case of the appellant. In both the cases there was forcible diversion of water, claimed by the appellant. I agree with the finding of the learned trial Judge that the appellant is not entitled to a right of self-defence of property.

14. The learned trial Judge has also not allowed the right of self-defence of person to the appellant on the grounds, that the statement of the appellant is not true, the injuries on the person of the appellant have been caused by a blunt weapon and not by fire shots, and the plea is belated because the appellant did not take it in the beginning in his report (Exh. P. A/ I) he did not plead it in the enquiry Court, and that he took this plea for the first time at the trial. The Doctor in this case has opined that the two abrasions on the person of the appellant were caused with a firearm, because the shirt which the appellant was wearing had (corresponding) cuts in it. The Doctor has also opined that the injuries on the person of Gulabat Khan (appellant) could also be caused by a blunt weapon. The learned counsel in support of the opinion of the Doctor that the injuries on the appellant were caused by a firearm cited the opinion of Dr. S. Siddiq Hussain in the Book, "Synopsis of Medical Juris prudence and Toxicology" 2nd Edition 1967, where at page 64 under the heading "Shotgun", Dr. S. Siddiq Hussain has observed, "Grazing or glancing shots, usually cause furrowing or abrasion, corresponding to the size of the shot". 1n the present case, the two injuries on the back of the appellant are " breadth each. In view of the expert evidence of Dr. S. Siddiq Hussain, the possibility that the two abrasions on the back of the appellant have been caused with firearm shots cannot be ruled out. It is well-settled that a plea of self-defence is not to be discarded on the ground that it is not proved or it is false or belated. The truth or falsity of the statement of the appellant is not a correct criterion for coming to a right conclusion in a case. If the plea of self-defence gets reasonable support from the prosecution evidence it shall not be refused to the appellant. Reliance is placed on Sadiq v. The State (P L D 1967 S C 356) and Samoo v. The State (P L D 1962 Kar. 495) However, the plea of self-defence of person, in my view, is also not available to the appellant. The evidence and circumstances in the present case do not go to show that the appellant possibly and reasonably acted in self-defence. The deceased while armed with an axe or rifle allegedly proceeded from the band towards the appellant who had taken position in a morcha. The appellant was armed with a rifle. The distance between the morcha and the band is about 120 paces. The appellant alleges that he felt the apprehension to his life from the movement of the deceased towards him. The right of self-defence of person is a right of protection and not a right of reprisal. The appellant in the circumstances of the case could avert the danger of apprehension to his life, if any, "When the act intended to be done would itself amount to a cross excess of what could be done in the exercise of the right of private defence, argument on the basis of plea of private defence is not available to the accused". Ref. Muhammad Ishaq v. The State (3 P L D 1960 Lah. 880).

15. In conclusion, the conviction and sentence of the appellant appear well-merited. The appeal is, therefore, dismissed. S.G.D. Appeal dismissed.