1995 P Cr (PLP)

RASHID AZIZ KHAN, J.

Altaf Hussain along with Abbas, sons of Muhammad Hussain, Rashid, Taja sons of Ranjha, and Niaz son of Amir were reported against with Police Station Sharaqpur, District Sheikhupura for the murder of Muhammad Ashraf. Additional Sessions Judge, Sheikhupura, vide his judgment dated 8-4-1991 gave benefit of doubt and acquitted Abbas, Rashid. Taja and Niaz alias Kalu, of the charge. Altaf Hussain was, however, found guilty for an offence under section 302, P.P.C. and sentenced to death with a fine of Rs.20,000, or in default of payment of fine, undergo two years' R.I. He was further directed to pay compensation of Rs.25,000 to the legal heirs of the deceased, or suffer R.I. for six months. He was further convicted under section 324, P.P.C. to one year's R.I. with a fine of Rs.1,000, or in default one month R.I. It was further directed that the fine, if recovered, shall be paid to Labha, P.W., as compensation. The convict has appealed. Judgment is also before us for confirmation of death sentence. Both the matters will be disposed of by this judgment.

2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.F. was to the effect that first informant Mushtaq Ahmad was an agriculturist. On 21-7-1986 all the land-owners of the village came for desilting the watercourse. Altaf, Sheda and Taja neither themselves nor anybody else on their behalf came for the said purpose, though their land used to be irrigated from the same watercourse. During desilting Altaf came to the spot, upon which Muhammad Ashraf and others asked him why they had not sent anybody for desilting. He told them that if anybody worked on their behalf shall be entitled to his turn of water, which was the same day. Thereafter, the first informant with Muhammad Ashraf and Labha did the work of desilting the watercourse on behalf of Altaf. It was the moonlit night and the turn of water of Altaf was at 9-00 p.m. First informant with Muhammad Ashraf and Labha went towards their fields in order to take Altaf's turn of water. They were still a Killa away from the watercourse when they saw Altaf, Abbas sons of Hussain, Sheda, Taja sons of Ranjha, and Kalu, residents of Saghian Khurd (Burj Atari), armed with guns, talking to each other. Altaf on seeing them coming towards the watercourse, raised a Lalkara that if they diverted water, he would kill them. Ashraf replied that they had dug the watercourse on his behalf, therefore, they would use his turn of water. Altaf and Abbas raised Lalkara that if they came near, they would be taught a lesson. Abbas fired an ineffective shot. Muhammad Ashraf, who was ahead of the first informant and Labha, on hearing the fire-shot, docked. Whereupon Altaf stepped forward and fired his gun hitting Muhammad Ashraf on his head, who fell down. First informant and Labha in order to save their fives started running towards the village. From behind, the accused persons fired indiscriminately with their guns. Resultantly, a pellet hit on the back of Labha. Muhammad Ashraf died at the spot. Occurrence took place on 21,7-1986 at 9-00 p.m. in the area of Village Moranwala, 7 miles from Police Station Sharaqpur. Complaint Exh.P.F. was lodged the same day by Mushtaq Ahmad, P.W.7 at 10-55 p.m. near the village of occurrence, which was recorded by Muhammad Yaqoob, A.S.I., P.W.12. Formal F.I.R. Exh.P.F./1 was drawn the same day at Police Station Sharaqpur at 11-20 p.m., by Arshad Ali, A.S.I., P.W.13. Muhammad Yaqoob, A.S.I., P.W.12 recorded complaint Exh.P.F. at the bus-stand and sent the same for registration of formal F.I.R., and himself went to the spot. He repared inquest report Exh.P.C. and injury statement Fxh.P.D. and secured blood-stained earth from the spot vide memo Exh.P.G.. He sent the dead body for autopsy. Kassi P.5 was secured, which was lying near the dead body, vide memo Exh.P.H.. He got prepared site-plan Exhs.P.E. and P.E./1 from the Draftsman and gave his notes in red ink there-under. Last-?worn blood-stained clothes of the deceased were taken into possession vide memo Exh.P.A. Muhammad Iqbal, S.I., P.W.11 had also partly investigated the case. On 30-9-1986 he arrested Rashid, Taja and Niaz Ali alias Kali when their bails were cancelled. He had also during interrogation recovered gun P.6 from Rashid and secured it vide memo Exh.P.J. P.W.14 Agha Mujahid Abbas, Inspector/S.H.O. had partly investigated the case. Abbas accused while in custody during investigation got recovered shot gun P.7 from his house, which was secured vide memo Exh.P.K. Since Altaf, accused could not be arrested, therefore, he obtained his warrants of arrest and thereafter submitted application Exh.P.R. to the Magistrate for issuance of proclamation, which was accordingly issued. P.W.2 Dr. Manzoor Hussain Kazmi, S.M.O., D.H.Q. Hospital, Sheikhupura, on 22-7-1986 conducted the post-mortem examination on the dead body of Muhammad Ashraf, and found the following injuries:-- (1) A fire-arm wound of entrance 1 c.m. x 1 c.m. on the front and upper third of left upper arm. Pellet (large) travelled through the thickness of left upper arm and made an exit wound (2) 1.5 c.m. x l.5 c.m. on the inner of aspect and upper third of left upper arm. Pellet travelled ahead towards right side and entered the chest cavity making a re?-entry fire-arm wound (3) 1 c.m. x 1 c.m. through the intercaster space between 4th and 5th ribs. Pellet travelled through the left lung and then through right lung and made an exit wound through the intercaster space between 3rd and 4th ribs and went out of the chest cavity, travelled along the inner aspect of right upper arm and became lodged in the muscle 3 c.m. below the right shoulder from where pellet (large) was removed by post-mortem incision along the root of the pellet to expose the shoulder joint as well, to trace the pellet. The pellet was sealed in the bottle and handed over to the police. In his opinion, death had occurred due to severe shock and haemorrhage. The injury was sufficient to cause death in the ordinary course of nature, which vas a fire-arm injury.

3. Prosecution in support of its case had produced 17 witnesses in all P.W.1 Muhammad Ashraf, Constable, had escorted the dead body to mortuary, and thereafter produced the last-worn clothes of the deceased before the Investigating Officer. P.W.4 Manzoor Ali, Patwari had prepared site-plan Exhs.P.E. and P.E./1 on the directions of the police. Ocular account was furnished by Labha and Mushtaq Ahmad, P.Ws.6 and 7, respectively. P.W.8 Ibrahim had witnessed the recovery of blood-stained earth from the spot and signed the memo. Exh.P.G. He had also witnessed the recovery of guns got recovered by the acquitted accused, and signed the memos. Muhammad Iqbal, S.I., Muhammad Yaqub, A.S.I, and Agha Mujahid Abbas, P.Ws. 11, 12 and 14, respectively had investigated the case. P.W.15 Muhammad Rashid, F.C., was entrusted with proclamation regarding Altaf Hussain in September, 1986. He duly published the same and gave report Exh.P.B./1 and signed the same. P.W.16 Muharrm:jd Fazal, the then S.I., arrested Altaf Hussain on 15-7-1987. During investigation Altaf Hussain got recovered a SBBL shot-gun P.8, which was secured vide memo. Exh.P.U., duly signed by Safdar Ali, P.W.17. At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. The appellant did not appear on oath in his defence. However, he produced three D.Ws. D.W.1 Muhammad Sikandar Hussain stated that he was a stamp? vendor, and on 25-5-1987 Muhammad Labha purchased a stamp paper, on which document mark "A" was written, which was an affidavit. He duly entered the stamp paper in his register. Syed Israr Khalid, Advocate, D.W.2 deposed that he had written the affidavit Mark "A" on the direction of Labha. Zahoor? ud-Din, D.W.3 stated that affidavit mark "A" was written in his presence.

4. It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that even if the entire prosecution story was accepted, yet it was not a case of murder. Submitted that there was a glaring discrepancy between the ocular account and the medical evidence which renders the entire prosecution story highly doubtful. It was lastly argued that even if the entire prosecution story was accepted, yet the appellant had the right of private defence of property, which he did not exceed. The contentions were opposed by learned counsel for the State as well as for the complainant. It was vehemently argued that once the appellant had agreed to forego his turn of water, then he could not back out from the commitment nor could claim right of private defence. It was asserted that neither the right of private defence was put to any of the witnesses in cross-examination nor it was taken by the appellant in his statement made under section 342, Cr.P.C., therefore, the same was not available to him.

5. We have heard the learned counsel at length and gone through the file. As far as the recovery of gun at the instance of Altaf, appellant, is concerned, it is not of much significance because no crime-empty was recovered from the spot, therefore, it cannot be ascertained if it was the same gun which was used in the commission of murder. The evidence against the appellant consists of ocular account, evidence of abscondence and medical evidence. As far as ocular account is concerned, it has been furnished by Labha and Mushtaq Ahmad, P.Ws.6 and 7, respectively. Both of them have given detailed account of the occurrence corroborating the version given by them before the police. They were put to the test of lengthy cross-examination, wherein they had to admit that desilting of the watercourse was started without making a formal announcement on the loudspeaker of the village mosque. They further stated that the turn of water of Altaf was from 5 p.m. to 9 p.m., but on the fateful day his turn started at 9 p.m. on account of closing of the watercourse for four hours for purposes of desilting. Therefore, they went at 9 p.m. for purposes of diverting the water to their fields. Labha, P.W., in answer to a question in cross-examination admitted that at the time of occurrence the accused party was irrigating their paddy crop, and Altaf asked them not to divert the water as it was his turn. He further stated that he told them to desist from their designs as it was bad on their part. The witness further admitted that the deceased insisted for getting the water by saying that he had dug the watercourse. The witness further admitted that if a share-holder does not dig watercourse, cost of labour to the extent of his share in the watercourse could be charged from him. The witness further stated that he alongwith other witnesses did not think it proper to ask the Lambardar to recover the cost of labour from the appellant. Mushtaq Ahmad, P.W., stated that they had not given any application to the Department for desilting of the watercourse. He further admitted that Altaf accused told them that he would not let them use his turn of water, yet they replied that they would get the water at any cost. He further admitted that they did not ask him to give the cost of labour for digging the watercourse nor they thought it proper to report to the respect-ables. He admitted that after the first shot, he with Labha, P.W., started running and they did not turn back to look what happened. He further admitted that all the accused were in a position to hit them with fire-arm but they did not choose to do so. A careful perusal of the statements of both the eye-witnesses, as discussed above, amply clarifies that they were present at the spot and had witnessed the occurrence. From the analysis of their statements it is also clear that both the eye-witnesses alongwith the deceased had gone to the watercourse for purposes of diverting the turn of water of the appellant to their fields. It is also established that at that time the appellant had already started irrigating his fields and he forbade them from diverting the same. The deceased as well as the witnesses insisted, therefore, the appellant fired one shot, which proved fatal. It is in evidence that the deceased was armed with Kassi and in spite of warning of the appellant he kept on advancing. In such circumstances, the appellant had reasonable apprehension that his turn of water would be diverted if he did not use force. We are inclined to accept the contention of the learned counsel .for the appellant that in such circumstances the right of private defence of property would be available to the appellant. In view of the submission in of the learned counsel for the appellant that the appellant had acted in the right of his private defence, the other argument that medical evidence is in conflict with the ocular account looses its significance because causing of the injury is admitted by the appellant and. presence of the witnesses is also not challenged. Even otherwise, we have examined that it was difficult for the witnesses to give exact seat of the injury because their consistent stand was that after the first shot they started running and subsequently the deceased was fired at and done to death. The upshot of the discussion is that we hold that the appellant had acted in the right of his private defence, but exceeded the same. His intention was to defend his property, i.e. the tern of water. The deceased was armed with a Kassi, whereas he was armed with a gun, and, in such circumstances, we feel he has exceeded the right because the deceased had not started diverting the water. He had only threatened. Therefore, we feel the case of the appellant A falls under section 304, Part II, P.P.C. We, therefore, partly allow the appeal, set aside the conviction and sentence under section 302, P.P.C. and convert the same under section 304, Part II, P.P.C. and reduce the sentence to 10 years' R.I. The sentence of fine as well as direction of payment' of compensation or imprisonment in default of payment of both, shall however, be maintained. The sentence under section 324, P.P.C. is also maintained. The appellant shall be given benefit of section 382-B, Cr.P.C. Both the sentences shall run concurrently. Death sentence is not confirmed. N.H.O./A-708/L ???????????????????????????????????????????????????????????????????????????????? Order accordingly.