' Haq Nawaz son of Khuda Bakhsh (35) was tried under sections 302 and 307/34, P.P.C. By the learned Sessions Judge, Vehari, on the allegation that he along with Gul Mohammad, Lal and Allah Wasaya (accused-deceased) caused murder of Nawab son of Allah Ditta and launched murderous assault on Shah Mohammad, Mohammad Yar and Allah Yar P. Ws. The learned trial Judge vide his judgment dated 24th March, 1977 convicted him under section 302/34, P.P.C. And sentenced him to imprisonment for life and a fine of Rs, 1,000 or in default to suffer R. I. For one year.
He was also convicted under section 307/34 P.P.C. And sentenced to undergo R. I. For seven years and a fine of Rs, 1,000 or in default to suffer R. I. For one year. The sentences were directed to run concurrently.
2. Haq Nawaz assailed the order of his conviction and sentence by Cr. Appeal No, 358 of 1977 and Mohammad Ramzan complainant also filed Cr. Revision No, 277 of 1977, seeking enhancement of his sentence. The revision petition was ordered to be heard along with this appeal. This judgment shall dispose of both these matters.
3. The prosecution case, as disclosed by Mohammad Raman, the informant, nformant, in his statement (Exh. P A) lodged at 11-45 a.m. On 21st May, 1972 at Police Station. Mitru, District Vehari, is as under :- ' The complainant, about one and a half years prior to the occurrence, had given on lease his land situated at Chah Tahliwala, Mauza Mitru, to the accused. He, however, ejected them on 30-11-1971 and deposited the amount of compensation for the standing crops in the Bank at Mailsi. The wheat crop was harvested and was lying in a heap at the thrashing floor. Allah Yar, Shah Mohammad and Mohammad Yar P. Ws and the deceased Nawab were present there when at 9.00 a.m. Haq Nawaz appellant along with Gul Mohammad and Imam Bakhsh, armed with hatchets and Khuda Bakhsh, Lal and Mohammad Nawaz, armed with dangs, reached there. They started assaulting the P. Ws.
Gul Mohammad gave hatchet blows on the head of Nawab who fell down and died instantaneously. Allah Yar, Mohammad Yar and Shah Mohammad were also given injuries by the accused.
4. The complainant did not disclose that the accused Haq Nawaz, Allah Wasaya, Gui Mohammad and Lal also received injuries in the course of the occurrence, but the fact remains that Gui Mohammad and Lai died on the spot after sustaining injuries while Allah Wasaya succumbed to his injuries in the hospital. Haq Nawaz accused also received injuries and he was also admitted in the hospital.
5. On the same day at 5.00 p.m. The statement of Haq Nawaz injured was recorded by Noor Hussain, A.S.I., who had come to the spot in connection with the investigation of the case registered at the instance of Mohammad Ramzan. On the basis of the statement of Haq Nawaz the cross case was registered at Police Station Mitru at 6'15 p.m. Consequently, Allah Yar, Mohammad Yar, Shah Mohammad and Atta Mohammad were prosecuted on the charge falling under section 302/34, P.P.C. And were convicted and sentenced. They also filed separate Cr. Appeal No, 357 of 1977 in this Court.
6. Noor Hussain, A. S. I. Secured blood-stained earth from the .Spot vide memo Exh. P. T. And took into possession weights, scales and wheat lying at the thrashing flour vide memo Exh. P. V. He irepared injury statement of Nawab deceased (Exh. P. Y.) and inquest report (Exh. P. Z.) and despatched the dead body to the mortuary at Mailsi for post-mortem under the escort of F. C.
Ghulam Rasul. He also despatched the dead bodies of Lal and Gul Mohammad (deceased in the cross case) to the mortuary for autopsy.
7. On 22nd May, 1972 the autopsy on the dead body of Nawab was conducted by Dr. Mushtaq Ahmad and he found an incised wound 4" x 1." cutting through the bone on the back of the right side of head. The brain matter had come out through this wound. According to the doctor the death occurred due to shock and hemorrhage caused by the injury to the brain. He declared that the injury was ante-mortem and caused by a sharp-edged weapon. He opined that it was sufficient to cause death in the ordinary course of nature.
8. He also examined, the same day, Mohammad Yar P.W.And found an incised wound of 2" x r bone deep on the right side of head. On the same day he examined Allah Yar P.W. And found three simple injuries on his person, caused by blunt weapon, out of which one was a lacerated wound on the right side of the head and the other two injuries were swelling and abrasion on the left index finger and back of right hand respectively. The doctor also examined Shah Mohammad P.W. And found three lacerated wounds on his person and an incised wound 2' x 1' bone deep on the back of left forearm. This injury was declared grievous while the rest simple.
9. The doctor also conducted post-inortem on the dead bodies of Allah Wasaya, Gul Mohammad and Lal (deceased in the cross case) and also medically examined Haq Nawaz accused. Haq Nawaz had on his person in all six injuries, including three lacerated wounds, one on the top of his head and the other on the left side of the head and the third on the back of the left elbow, a contusion on the right shoulder, a contusion on the back of chest and a contusion on the left index finger. All these injuries were found to be simple.
10. Noor Hussain, A. S. 1., Investigating Officer, died and the case was partly investigated by Riaz-ud-Din Inspector (P W.
12). He recovered from the possession of Haq Nawaz, hatchet (Exh. P. 10) which was taken into possession vide memo Exh. P. Q.
11. The appellant Haq Nawaz pleaded not guilty at the trial and explained the occurrence in his statement recorded under section 342, Cr. P. C. In the following words :- "We had cultivated the land owned by Mst. Shamshad Begum, wife of Mohammad Ramzan P.W. As her tenants. The wheat lying on the thrashing floor was harvested by us and we were to get our share of produce. We were going towards the thrashing floor when Nawab deceased accompanied by the injured P. Ws. And others met us at a distance of about one or two killas from the thrashing floor and made murderous assault on me and my brothers Gul Mohammad,Allah Wasaya and as a result of which Gul Mohammad and Lal died at the spot and Allah Wasaya succumbed to the injuries in the hospital and luckily I survived. We also caused injuries to the above-mentioned persons in self-defence and a counter case under section 302/149, P.P.C. Is pending against the complainant party."
' In reply to a question as to why this case was instituted against him, the appellant said :- "The complainant party was the aggressor and in order to save their own skin they have falsely implicated me in this case."
' Copy of Khasra Girdawari (Exh. D/1) pertaining to Rabi and Kharif crop 1971 was produced which showed that the land was cultivated by them.
12. The prosecution relied on ocular evidence of five P. Ws. The medical evidence and the evidence of recovery and motive.
13. The learned trial Judge, relying on the prosecution version, convicted and sentenced the appellant, as aforementioned.
14. Learned counsel for or appellant contended that the evidence on the record has established that it was a case of sudden and free fight. He also submitted that the prosecution has not fairly given the account of occurrence in the manner in which it actually took place. He also submitted that the evidence of recovery of hatchet (Exh. P. 10) was highly doubtful, being made in the Hospital.
According to him, the eye-witnesses were partisan, admittedly being the servants of Mohammad Ramzan complainant. He also submitted that in any case the appellant, in the exercise of right of private defense, inflicted injuries to Shah Mohammad P. W. Because he was member of the complainant party who was the aggressor in the occurrence.
15. Learned counsel for the State, on the other hand, assisted by the learned counsel for the complainant, submitted that no doubt it was a case of sudden and free fight, but the part played by the appellant was distinctive and for that reason was rightly convicted. He, however, objected to the quantum of sentence imposed upon the appellant and asserted that it did not commensurate with the gravity of the offence committed by him. He also submitted that when the accused party had already been ejected from the land in dispute on 30th November, 1970, they had no concern with the wheat crop. He maintained that they had assaulted the complainant party without lawful excuse.
16. Haq Nawaz appellant admitted his participation in the occurrence, but .Explained that it was in the exercise of the right of his private defence. But here I may observe that it is not only for the accused to suggest some hypothesis or possibility in order to controvert successfully the prosecution version, but is rather essential for him to bring on the record sufficient material so as to cast reasonable doubt over the prosecution case.
17. The plea of the exercise of the right of private defence was examined in Safdar Ali v. State (1) wherein it was observed by the then Chief Justice "In a criminal case it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is reasonable possibility that the defense brought forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case."
' Similarly, in Syed All Bepari v. Nibaran Mollah (2) at p. 507 it was observed by their Lordships of the Supreme Court : ii in a case of this type the parties do not generally come out with the true story. It is a normal incident of an 'adversary proceeding' to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances."
18 Keeping these principles in view, I find that the dispute over the heap of wheat lying at the thrashing floor arose because the complainant party asserted that the accused had no right to the wheat as they were ejected on 30th November, 1971 and cash compensation for the crops was deposited in the Bank. On the contrary, the accused maintained that the crop was sown and harvested by them and they were .Entitled to share the wheat. It is evident from the evidence that the parties participated in the occurrence with preparation and expectation of armed conflict. They must have anticipated resistance from the opposite side, but nevertheless they pitched themselves against others to enforce their right or supposed right in the disputed wheat. It appears that the complainant party started weighing and lifting the wheat when the accused party went to prevent them. The complainant party attacked the accused in Killa No, 7 of Square No, 42 and the quarrel ensued which extended upto Killa No, 10
(1) PLD 1953 FC 93 (2) P D 1962 SC 502 ' of Square No, 41, where the wheat was lying in a heap. It is thus manifest that it was a case of free fight, in which each participants deliberately took part knowing-fully well the risk of the encounter.
Hence, in the circumstances of the present case, there was no question of the availability of the, right of private defence and each person would be liable for his indi-, vidual act.
19. The learned trial Judge, although held in para. 18 of the judgment that it was a case of free fight, overlooked the principle that in that event culpability of each participant in the fight has to be assessed on his own individual act.
20. Now, to examine the culpability of the accused with reference to the role played by him in the occurrence, it is clear that Haq Nawaz appellant himself admitted his participation in the occurrence and even otherwise his presence and involvement cannot be doubted because of the injuries sustained by him. It is not the case of the prosecution that he inflicted any injury to Nawab deceased. The injured P. Ws. Stated that he gave a grievous incised wound with hatchet on the left forearm of Shah Mohammad P. W. And the latter also stated that he was given injury on his forearm by the appellant. The recovery of hatchet also corroborates the infliction of this injury by the appellant. In these circumstances, Haq Nawaz appellant would be liable only to the causing of a grievous hurt to Shah Mohammad P. W. I, therefore, convict the appellant (Haq Nawaz) under section 326, P.P.C. Instead of under section 307/34, P.P.C. And sentence him to that already suffered by him. Consequently, his conviction under section 302/34, P. P. C. Is set aside. The connected revision petition fails and is dismissed.