1. JAVID IQBAL, J.-(1) Khizar Hayat son of Sultan Mahmood, aged 32, (2) Muhammad Yar son of Wali M muhammad, aged 32, (3) Muhammad A.I son of Bahawal Bakhsh, aged 60, (4) Dost Muhammad alias Dosa son of Bahawal Bakhsh, aged 42 (since deceased), (5) Wali Muhammad alias Walla son of Murad, aged 70, (6) Muhammad Khan alias Manda son of Wali Muhammad, aged 30, (7) Umar Daraz son of Muhammad A.I, aged 26, (8) Zaffar Iqbal son of Muhammad Inayat, aged 24, and (9)
2. Muhammad Yusouf son of Sahiba, aged 32, have been convicted and sentenced as follows vide judgment dated 16-1-1979 of the Additional Sessions Judge, Sargodha. All of them were convicted under section 302/149, P. P. C. For the murders of Umar Hayat, aged 55, Khan Muhammad, aged 65, and Ziaullah, aged 35, in the following order: For the murder of Umar Hayat Muhammad A.I convict No. 3 was sentenced to death plus fine of Rs. 5,000 or in default to undergo two years rigorous imprisonment and each of the rest of them was sentenced to imprisonment for life plus fine or Rs.
3. 1,000 or in default to undergo one year rigorous imprisonment. If the fine is realized from them, it should be paid as compensation to the heirs of Umar Hayat deceased. For the murder of Khan Muhammad, Khizar Hayat convict No. 1 was sentenced to death plus fine of Rs. 5,000 or in default to undergo two years rigorous imprisonment and each of the rest of them was sentenced to imprisonment for life plus fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment.
4. If the fine is realized from them it should be paid as compensation to the heirs of Khan Muhammad deceased. For the murder of Ziaullah deceased, Muhammad Yar convict No. 2 was sentenced to death ,plus fine of Rs. 5,000 or in default to undergo two years rigorous imprisonment and each of the rest of them was sentenced to imprisonment for life plus fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. If the fine is realized from them, it should be paid as compensation to the heirs of Ziaullah deceased. All the convicts have also been convicted under section 307/149, P. P. C. For murderous assaults on Mukhtar Ahmad P. W. 8, Muhammad A.I P. W. 10 and Mst. Sughran Bibi P. W. 12 and each of them was sentenced to three year's rigorous imprisonment on each count plus fine of Rs 1,000 or in default to undergo six months rigorous imprisonment. All the convicts were likewise convicted under section 148, P. P. C. And each of them was sentenced to two years rigorous imprison--ment. Only Dost Muhammad, convict No. 4 (since deceased) bad been convicted under section 379, P. P. C. For taking away the gun belonging to one Sultan and was sentenced to one year rigorous imprisonment. The sentences of imprisonment were ordered to run concurrently.
5. The relationship inter se of the accused-party is as follows: The convicts belong to the families of two separate ancestors, namely, Murad and Bahawal Bakhsh. Murad had two sons, namely, Wali Muhammad convict No. 5 and Noora. He had one daughter Mst. Mehran. Noora is married to Mst.
6. Rehmat Bibi and she is aunt (Khala) of R.I Zamanullah .P. W. 7 complainant, in the instant case. Mst.
7. Mehran is married to Muhammad A.I convict No. 3 son of Bahawal Bakhsh of the other family.
8. Muhammad Yar convict No. 2 and Muhammad Khan convict No. 6 are brothers and sons of Wali %4uhammad convict No. 5. Wali Muhammad convict No. 5 had also a daughter, who is married to Khizar Hayat convict No. 1. Muhammad Yar convict No. 2 is married to Mst. Khurshid, who is daughter of Sahiba son of Bahawal Bakhsh of the other family. Bahawal Bakhsh had four sons, namely, Sahiba, Muhammad Inayat, Muhammad A.I convict No. 3 and Dost Muhammad convict No. 4 (since deceased). Muhammad Yusouf convict No. 9 is son of Sahiba. Zaffar Iqbal convict No: 8 is son of Muhammad Inayat and brother of Afaq. Umar Daraz convict No. 7 is son of Muhammad A.I convict No. 3 from Mst. Mehran daughter of Murad of the other family. Thus, the members of the accused party, who descend from two ancestors, namely, Murad and Bahawal Bakhsh are inter- related through female marriages.
9. The complainant-party is likewise inter-related and are also related to the accused-party. They also descend from two separate ancestors, namely, R.I Allah Dad and Nawab. R.I Allah Dad had four sons, namely, Dost Muhammad, who is father of Mukhtar Ahmad P. W. 8 (injured), Muhammad Khan, who is father of R.I Zamanullah P. W. 7 (complainant), Umar Hayat deceased, who is father of Amjad, and Khan Muhammad deceased, who is father of Zia Ullah deceased. He also had one daughter, namely, Mst. Sakina, who is mother of Sarang P. W.
11. R.I Zamanullah P. W. 7 is married to Mst. Riaz Bibi, who is niece of Muhammad A.I P. W. 10 (injured). This Muhammad A.I P. W. 10 (injured) is son of Nawab and he has also two sisters, namely, Mst. Sughran P. W. 12 (injured) and Mst. Jannat Bibi. Ghulam A.I P. W. 9 (injured) is nephew of Muhammad A.I P. W.
10. It has already been pointed out that Mst. Rehmat Bibi wife of Noora, who is brother of Wali Muhammad convict No. 5, is aunt (Khala) of R.I Zamanullah P. W. 7.
10. The nine convicts, in the instant ca3e, have filed two separate Criminal Appeals. Criminal Appeal No. 185 of 1979 has been filed by Khizar Hayat convict No. 1, Muhammad Yar convict No. 2, Muhammad Khan convict No. 6 and Wali Muhammad convict No. 5. Criminal Appeal No. 232 of 1979 has been filed by Muhammad A.I convict No. 3, Dost Muhammad convict No. 4 (since deceased), Muhammad Yusouf convict No. 9, Umar Daraz convict No. 7 and Zaffar Iqbal convict No. 8. There is also Criminal Revision No. 280 of 1979 for the enhancement of sentence awarded to- all the convicts other than Khizar Hayat, Muhammad Yar and Muhammad A.I convicts Nos. 1, 2 and 3, who have been sentenced to death. Similarly, there is a Petition for Special Leave. To Appeal No. 15 of 1979 against the acquittal of the accused persons (members of the complainant-party in the instant case) in the cross-case. Criminal Revision No. 280 of 1979 and P. S. L. A. No. 15 of 1979 have not been admitted so far. All these connected matters are being taken up and disposed of together with Reference for the confirmation of death sentence awarded to Khizar Hayat, Muhammad Yar and Muhammad A.I convicts Nos. 1, 2 and 3, by this judgment except P. S. L. A. No. 15 of 1979 which will be taken up separately and is excluded.
2. The occurrence took place at 10-30 a.m.. On 16-9-1977 in front of the houses of the parties within the Abadi of Chak No. 50 North at a distance of three miles from Police Station, Sargodha Cantt.
11. District Sargodha. F. I. R. Exh. P. X. Was lodged by R.I Zamanullah P. W. 7 at 11-30 a.m. On the same day and it was recorded at the police station by Lal Hassain Shah S. I. P. W. 14.
3. The motive for crime, as stated in the F. I. R., was that Ghulam A.I P. W. 9 was present in front of the dera of Wali Muhammad appellant No. 5 in the morning of the day of occurrence when he was attacked by Afaq and his brother Zaffar Iqbal, appellant No. 8, and both of them gave severe beating to Ghulam A.I P. W. 9 with whip and iron-fists. As a result he sustained 17 injuries on his person. In order to protect himself Ghulam A.I P. W. 9 is stated to have caused one simple incised injury with his knife on the right arm of Zaffar Iqbal, appellant No. 8. When Ghulam A.I P: W. 9 returned to his house and explained as to how he had sustained the injuries to his relatives, who had come to his house in order to inquire about his condition, it is stated that the accused-party came there in order to avenge the one simple incised injury caused on the arm of Zaffar Iqbal, appellant No. 8, by Ghulam A.I P. W. 9 and they attacked the complainant side. It was in this background that the present occurrence took place in front of the houses of the parties.
12. The other motive given in the F. I. R. Is that about 4/5 months prior to the present occurrence an altercation took place between two school boys, namely, Amjad son of Umar Hayat deceased and Afaq; brother of Zaffar Iqbal appellant No. 8. Ghulam A.I P. W. 9 and Amjad gave beating to Afaq.
13. But the matter was patched up through the intervention of elders and it was not reported to the Police.
14. Both these earlier incidents have not been denied by the accused-party, It may be pointed out at this stage that the subsequent incident which took place about an hour or half before the present occurrence was also a sequence of the earlier incident of fight between the boys. There is no other background of enmity between the parties. Consequently, the trial Court has correctly relied on the motive version in para. 44 of the judgment at pages 104 and 105 of the Paper Book.
15. However, for correctly understanding the position between the parties it is necessary to give some details as to how the occurrence followed. The prosecu--petition version is that the appellants Khizar Hayat was armed with gun, Muhammad Yar was armed with gun, Muhammad A.I was armed with hatchet, Dost Muhammad (since deceased) was armed with hatchet, Wali Muhammad was empty-handed, Muhammad Khan was armed with gun, Umar Draz was armed with gun, Zaffar Iqbal was armed with gun and Muhammad Yusuf was armed with lath!. Besides these nine, there was the tenth person on the accused-side called Muhammad I.Nayat, who was armed with lathi, but who was killed in the scuffle at the hands of the complainant-party. Two other members of the accused-party have sustained injuries at the hands of the complainant-side, namely, Umar Daraz appellant No. 7 and Zaffar Iqbal appellant No. 8. According to the prosecution version, all the members of the accused-party including Muhammad Inayat deceased on their side came armed, as described above, in order to avenge the incised injury caused to Zaffar Iqbal appellant No. 8 by Ghulam A.I P. W. And stood outside the house of the complainant-party in the lane. On hearing the noise, members of the complainant-party came out and they were attacked by the members of the accused-party.
16. The defence has not denied the occurrence, but it has given its own version. The case of the accused-party is that Umar Daraz appellant No. 7, Zaffar Iqbal appellant No. 8 and Muhammad Inayat deceased on their side were present in their house when Khan Muhammad deceased, armed with a lath!, Ziaullah deceased, armed with a gun, Umar Hayat deceased, armed with a lath!, Mukhtar Ahmad P. W. 8 (injured) armed with a lath!, Ghulam A.I P. W. 9 (injured in the earlier incident) armed with a hatchet, Muhammad A.I P. W. 10 (injured) armed with a hatchet and Attaullah (not produced as a witness) armed with a lathi came. There in order to take revenge of the injuries caused to Ghulam A.I P. W. At the bands of Zaffar Iqbal .Appellant No. 8 and Afaq' and they stood out--side their house. When they came out, the complainant-party, armed as described above, attacked them causing injuries to Umar Daraz appellant No. 7 and Zaffar Iqbal appellant No. 8 and killing Muhammad Inayat, their companion. In other words, the defence version is that the complainant --party was the aggressor and the accused-side caused injuries to them in the exercise of their right of self-defence. It is claimed on behalf of the defence that the defence version was given to the Investigating Officer but he refused to register a cross-case, whereupon a Writ Petition (No. 2859 of 1979) was filed, which was dismissed on 25-10-1977. Thereafter, from the accused-side a private criminal complaint was instituted on 12-8-1978 as against the aforementioned seven members of the complainant-party under section 302/307/148/149, P. P. C.
17. The challan case and the cross---complaint case were simultaneously heard by the same trial Court which, vide separate judgments, convicted and sentenced the members of the accused- party in the challan case and acquitted seven members of the complainant-party which had been named in the cross-complaint case. Against their acquittal, the petition for special leave to appeal has been filed as we have noted above.
4. The prosecution has produced six eye-witnesses, in the instant case. The whole occurrence was witnessed by R.I Zamanullah P. W. 7, Ghulam A.I P. W. 9 (injured in the previous incident) and Muhammad A.I P. W. 10 (injured). Those, who witnessed the occurrence after the murder of Khan Muhammad deceased, are Mukhtar Ahmad P. W. 8 (injured) and Sarang P. W.
11. This Sarang P. W. Is nephew of Umar Hayat and Khan Muhammad deceased, being son of Mst. Sakina daughter of R.I Allah Dad. After the three murders Mst. Sughran Bibi P. W. 12 has been produced as a witness of her own injuries. Three other eye-witnesses, namely, Malla, Khizar Hayat and Muhammad Amir were cited in the F. I. R. But were given up as unnecessary. Out of these witnesses, R.I Zamanullah P. W. 7 and Sarang P. W. 11 are not injured. Similarly, Ghulam A.I P. W. Is not stated to have received any injuries in the present occurrence and if there are injuries on his person, he had received them in the earlier incident.
5. Umar Daraz appellant No. 7 and Zaffar lqbal appellant No. 8, who had been injured and were in the hospital, were arrested formally therefrom on 16-9-1979 by Lal Hussain Shah,, S. 1. P. W.
14. All the other appellants were arrested by the same Police Officer on 20-9-1977 when they voluntarily appeared before him. No 'crime-empty was picked up from the spot. However, from Khizar Hayat appellant No, 1 guff P. 30, from Muhammad Yar appellant No. 2 gun P. 29, from Muhammad A.I appellant No. 3 blood--stained hatchet P. 31, from Dost Muhammad appellant No. 4 (since deceased) stolen gun of Sultan P. 25 and blood-stained hatchet P. 32, and from Muhammad Khan appellant No. 6 gun P. 28 were recovered and taken into possession vide memos. Exhs. P. MM., P. LL, P. NN, P. Z, P. 00 and P. KK. All these recoveries were effected on 20-9-1977 and these are attested by R.I Ghulam Mehdi Khan P. W. 13, brother of Khan Muhammad and Umar Hayat deceased being fifth son of R.I Allah Dad, and Lai Hussain Shah S. I. P. W.
14. Sultan A.I, Ghulam Muhammad and Manzurul Hassan A. S. I., attesting witnesses, were not produced. From Zaffar lqbal appellant No. 8 gun P. 24 was recovered vide memo Exh. P. Y. Dated 24-9-1977. The attesting witnesses are R.I Zamanullah P.
18. W. 7 and Lal Hussain Shah S. I. P. W.
14. Sultan A.I and Manzoorul Hassan A. S. I., other attesting witnesses, were not produced. Nothing was recovered from Umar Daraz appellant No. 7 and Muhammad Yusuf appellant No. 9. Wali Muhammad appellant No. 5 was empty-handed according to the prosecution. According to the report of the Serologist Exh. P. XX hatchet P. 31 recovered at the instance of Dost Muhammad appellant No. 4 (since deceased) and hatchet P. 31 recovered from Muhammad A.I appellant No. 3 were found to have been stained with human blood. According to the report of the Fire-aims Expert Exh. P. YY the four guns recovered, in the instant case, were in working condition but no opinion could be given as to when they were fired last.
6. The appellants, in their statements before the trial Court, did not deny the occurrence but they gave their own version of the same. Zaffar Iqbal appellant No. 8 admitted the earlier two incidents but denied that he had received any incised simple injury on his arm caused with a knife by Ghulam A.I P. W. His case was that since injuries ha,'. Been caused by him and Afaq to Ghulam A.I P.
19. W., the seven members of the complainant-party, armed as described above, came to his house when Umar Daraz appellant No. 7 and Muhammad Inayat deceased were present there. They stood outside the house and when the appellants Zaffar lqbal and Umar Daraz accompanied by Muhammad Inayat deceased came out, they attacked them as aggressors and caused injuries to them. Umar Daraz appellant No. 7 supported the same version. He stated that on the day of occurrence he was present in the house of Muhammad Inayat deceased along with Zaffar lqbal appellant No. 8, Muhammad Inayat deceased and Afaq when they heard a lalkara outside the house. He, Muhammad Inayat deceased and Zaffar lqbal appellant No. 8 came out and saw Umar Hayat, Ziaullah, Khan Muhammad (three deceased in the instant case), Mukhtar Ahmad P. W. 8, Ghulam A.I P. W. 9, Muhammad A.I P. W. 10 and Attaullah present there armed with guns, hatchets and dangs. They attacked them and first Muhammad Inayat deceased was injured and. He fell down. Then Ziaullah deceased fired at him and the shot hit him and he fell down uncocscious. His right arm was defective and could riot move. He was, therefore, incapable to fire. The other appellants denied having participated in the occurrence. They all had stated that they had been falsely implicated due to enmity and party-faction. Dr. Akhtar Aleem Hashmi D W. 1 was produced to show that Umar Daraz appellant No. 7 had a defective arm. He stated that the right arm of Umar Daraz appellant No. 7 was normal except that it could not be flexed at elbow joint. His left arm was normal. He was of the opinion that Umar Daraz appellant No. 7 could use the right arm but without flexation of the elbow joint and he could commit an offence with left arm or combination of both the arms.
7. In the F. I. R. The occurrence is stated to have taken place in the following manner: On hearing that Ghulam A.I P. W. 9 had sustained injuries at the hands of Afaq and Zaffar Iqbal appellant No. 8, R.I Zamanullah P. W. 7 along with Khan Muhammad deceased, Umar Hayat deceased and Muhammad A.I P. W. 10 was present in the hou3e of Ghulam A.I P. W. 9 in order to inquire about his health. In the meantime they heard noise in the street outside and they came out along with Ghulam A.I P. W. They saw the appellants including Muhammad Inayat deceased, armed as described above, standing in the street. On seeing them, Muhammad Inayat deceased and Muhammad A.I appellant No. 3 raised a lalkara to the effect that they had come to teach a lesson to them for causing knife injury to Zaffar Iqbal appellant No. 8. On this Khan Muhammad deceased advanced forward pleading that they should not go mad on the quarrel between the boys and that the matter could be mutually settled. But thereupon Wali Muhammad appellant No. 5 raised a lalkara to the others that they should not be spared. On this Khizar Hayat appellant No. 1 fired a shot through his gun which hit on the chest of Khan Muhammad deceased who fell down on the ground and died on the spot. R.I Zamanullah P. W. Raised alarm whereupon Ziaullah deceased, armed with gun, Sarang P. W . It, armed with lathi, and Mukhtar Ahmad P. W. 8, armel with lathi, came to the spot in order to rescue them. On thbir arrival Umar Daraz appellant No. 7 fired through his gun and the shot hit Mukhtar Ahmad P. W. On his left arm. The second shot was fired by Muhammad Yar appellant No. 2 which hit Mukhtar Ahmad P. W. On his chest. In the meantime Ziaullah deceased fired a shot through his gun in the exercise of his right of self'-defence and the shot hit Umar Daraz appellant No. 7 on his face and head. Thereupon, Zaffar Iqbal appellant No. 8 fired through his gun and the shot hit Ziaullah on. His left flank and left wrist. The second gunshot was fired by Muhammad Yar appellant No. 2 which hit Ziaullah deceased on his chest. As a result Ziaullah deceased fell down on the ground. Thereafter, the gun carried by Ziaullah deceased (belonging to Sultan who had produced its licence) was taken away by Dost Muhammad appellant No. 4 (since deceased) and Muhammad Yusuf appellant No. 9. Then Khizar Hayat appellant No. 1 fired through his gun and the shot hit Mukhtar Ahmad P. W. On his chest who also fell down on the ground. Umar Hayat deceased was caught by Muhammad Inayat, since deceased, and he instigated Muhammad A.I appellant No. 3 to hit him whereupon Muhammad A.I appellant No. 3 gave a hatchet blow which fell on the bead of Umar Hayat deceased and he too fell on the ground. Then Muhammad Khan appellant No. 6 proceeded to the western wall of the house of Ghulam A.I P. W.
20. From where it was broken and fired into the courtyard of Ghulam A.I P. W. And as a result his shot hit Mst. Sughran Bibi P. W. 12 on her left buttock. Muhammad A.I P. W. Gave a dang blow to Zaffar Iqbal appellant No. 8 which fell on his left hand. Muhammad A.I P. W. Again gave two dang blows which fell on the head of Muhammad Inayat deceased. Thereupon, Muhammad Yusuf appellant No. 9 got hold of Muhammad A.I P. W. And instigated Dost Muhammad appellant No. 4 (since deceased) to hit him. On this Dost Muhammad appellant No. 4 (since deceased) gave a hatchet blow to Muhammad A.I P. W. Which fell on his left heel and he fell down on the ground. While he was in the fallen condition, Muhammad Yusuf appellant No. 9 gave him a lathi blow which fell on his back. On hearing alarm, Malla, Khizar Hayat as well as Muhammad Amir (none of them produced) were also attracted to the scene of crime and witnessed the same. After commission of crime the appellants ran away. The injured were taken to the Civil Hospital, Sargodha. Leaving behind Sarang P. W. To guard the dead body of Khan Muhammad deceased, R.I Zamanullah P. W. Proceeded to lodge the report.
8. Dr. Captain Umar Hayat Butcha P. W. 1 medically examined Umar Hayat . Deceased while he was still alive on 1b-9-1977 . At 12-00 noon and found on his person an incised wound 2J' x J' on the left side of skull. The injury was dangerous and had been caused by sharp-edged weapon. Umar Hayat deceased died at 3-30 p.m. On the same day and the same doctor conducted post- mortem examination on his dead body at 5-30 p.m. On the same day and noted the same injury on his person. In his opinion, death occurred by haemorrhage and shock caused by this injury which was sufficient to cause death in the ordinary course of nature. It may be pointed out at this stage that this injury to Umar Hayat deceased is attributed to Muhammad A.I appellant No. 3.
21. On the same date at I1-45 a.m. He medically examined Ziaullah deceased while he was still alive and found on his person lacerated wound on the epigastrium, the edges of which were inverted, lacerated wound on left thigh upper part, lacerated wound on left thigh outer part and lacerated wound on front side of fore-arm. The first injury was dangerous to life whereas the other three were kept under observation. Ziaullah deceased died at 12-00 noon on the same day and the same doctor performed post--mortem examination on his dead body at 5-00 p.m. On the same day and he noted the same injuries on his person. The injuries had been caused by fire-arm. In his opinion, death occurred due to haemorrhage internal and external as well as shock caused by these injuries collectively. All the injuries were collectively sufficient to cause death in the ordinary course of nature. It may be pointed out at this stage that these injuries in the form of two gunshots have been attributed to Zaffar Iqbal appellant No. 8 and Muhammad Yar appellant No. 2.
22. On the same date at 4-30 p.m. He conducted post-mortem examination on the dead body of Khan Muhammad deceased and found onhis person five lacerated wounds by gunshots on upper right sternum left side of chest and four lacerated wounds of exit on left back side of chest. In his opinion the injuries had been caused by gunshot and death was caused due to haemorrhage and shock caused by this injury which was sufficient to cause death in the ordinary course of nature. It may be pointed out at this stage that this injury is attributed in the form of a gunshot to Khizar Hayat appellant No. 1.
23. On the same date at 12-30 p.m. He medically examined Muhammad A.I P. W. 10 and found on his person contusion mark on the left scapular region (back) and an incised wound on the left lower leg just above the ankle joint. The first injury was simple and the second was grievous. The first injury was caused by blunt-weapon and the second with sharp-edged weapon. It may be pointed out at this stage that the first injury was attributed to Muhammad Yusuf appellant No. 9 and second injury was attributed to Dost Muhammad appellant No. 4,, since deceased.
24. On the same date at 12-45 p.m. He medically examined Mukhtar Ahmad P. W. 8 and found on his person lacerated wound on the left upper chest, multiple lacerated gunshot wounds on the left upper arm and a lacerated wound on left side of chest. The first injury was dangerous whereas the second and third were kept under observation. The injuries had been caused with gunshots. The second and third injuries subsequently were declared simple. These injuries have been attributed in the form of three gunshots to Khizar Hayat appellant No. 1, Umar Paraz appellant No. 7 and Muhammad Yar appellant No. 2.
25. On the same date at 3-30 p.m. He medically examined Mst. Sughran Bibi P. W. 12 and found on her person lacerated wound on right buttock, The injury was caused by gunshot and it was kept under observation. This injury in the form of gunshot is attributed to Muhammad Khan appellant No. 6. Subsequently, this injury was declared as simple.
26. On the same date at 4-00 p.m. He medically examined Ghulam A.I P. W. 9 and noted on his person an abrasion on right cheek, another abrasion on right cheek, an abrasion on right side of chin, contusion mark on right upper arm, contusion mark on left upper arm contusion mark on middle right upper arm, contusion mark on right upper arm lower part, multiple contusion marks with swelling on right upper arm, contusion mark with swelling on back side of right fore-arm, contusion mark on left scapular region, contusion mark on left middle chest, contusion mark on left lower chest, contusion mark on left lower chest crossing the above injury, contusion mark on left side of chest, contusion mark on chest and contusion mark on right lower chest. All these injuries were caused with blunt weapon and were simple in nature. These injuries were inflicted within 5/6 hours.
27. It may be pointed out at this stage that these injuries had been attributed in the earlier incident to Zaffar Iqbal appellant No. 8 and his brother Afaq. He is not stated to have received any injury in the present occurrence.
28. The same Medical Officer also examined the two injured appellants, in the instant case, and Muhammad Inayat deceased of the accused-side while he was still alive. On 16-9-1977 at 1-00 p.m.
29. He medically examined Muhammad Inayat deceased while he was still alive and found on his person a lacerated wound on the right side top of skull and a lacerated wound again on the skull.
30. The condition of the injured was serious and he was unconscious. The injuries were kept under observation. These had been caused by a blunt weapon within a duration of 2/3 hours.
31. On the same date at 1-30 p.m. He medically examined Umar Daraz appellant No. 7 and found on his person lacerated wound 5J" x 1' bone deep extending from left cheek upto left ear. The underlying bone is cut. Eyesight is lost. Brain matter was coming out of the wound. Another lacerated wound bone deep on left side of forehead. The condition of the patient was serious. The first injury was grievous and the second was kept under observation. The injuries had been caused by gunshot and inflicted within 3/5 hours.
32. On the same date at 1-15 p.m. He medically examined Zaffar Iqbal appellant No. 8 and found on his person an incised wound 2J' x 1J' on the right upper arm and lacerated wound 2J' x J' on the back of left hand. Both the injuries were kept under observation. The first injury had been caused with sharp-edged weapon and the second with blunt weapon within 3 to 5 hours.
33. Dr. Inamul Haque Paracha P. W. 2 conducted post-mortem examination on the dead body of Muhammad Inayat deceased on 18-9-1977 at 8-30 a.m. And found on his person an incised wound on the middle of head, towards the right side bone was stitched and an incised wound on the right side of head. In his opinion, the cause of death was the fracture and haematoma formed and shock as well as internal haemorrhage. This was due to the two injuries which were sufficient to cause death in the ordinary course of nature. The time between injuries and death was about 36 hours and between death and post-mortem about 15 hours. On the inquiry of the Police he opined that the wounds were possibly inflicted with blunt weapon or with something the effect of which was not very much of sharp-edged weapon. In appearance these were incised wounds but could be inflicted with blunt-weapon as after three days one could not state definitely as the underlying bone was fractured. Therefore, the weapon of offence could either be blunt or like a blunt-weapon.
34. In the cross-examination he stated that even a sharp-edged weapon could cause a fracture but not like the present fracture as in the case of Muhammad Inayat deceased.
9. We have heard learned counsel for both the parties and carefully perused the record. Broadly speaking the case of the defence is that the complainant-party was the aggressor and that the accused-side had acted in the exercise of their right of self-defence. Alternately the case is that if the plea of self-defence is not available to the appellants, then it was a case of sudden .Fight. In respect of the first argument it is stated by learned counsel for the defence that there was no previous 0background of enmity between the parties except' that about 4/5 months prior to the present occurrence altercation took place between the school boys i.e. Amjad son of Umar Hayat deceased and Afaq, brother of Zaffar lqbal appellant No. 8 and in that incident Ghulam A.I P. W. 9 and Amjad gave beating to Afaq. But the matter was settled through the intervention of elders.
35. However, earlier on the day of occurrence Ghulam A.I P. W. 9 was attacked by Afaq and his brother Zaffar Iqbal appellant No. 8 and in this incident both of them gave beating to. Ghulam A.I P. W. As a result of which he sustained numerous injuries on his person. The case of the defence is that at this incident, as alleged by the prosecution, Ghulam A.I P. W. Did not cause any incised injury with his knife on the right arm of Zaffar Iqbal appellant No. 8. The defence case, in substance is that after having received injuries, Ghulam A.I P. W. Returned to his house and thereafter in order to take revenge messages were sent to his relatives who came armed with deadly weapons and collected at the house of Ghulam A.I P. W. Thereafter they came out in the street and while standing outside the house of the accused-party raised lalkaras. When some of the members of the accused-party came out, they were attacked by the members of the complainant-party. Thus, the complainant- party was the aggressor and the accused-party only acted in the exercise of their right of private defence. In support of this argument the reasoning of learned counsel is that if at the earlier incident Ghulam A.I P. W. Had caused an incised injury with his knife on the arm of Zaffar Iqbal appellant No. 8, then that knife had not been produced. Likewise, no blood-stained earth was picked up respecting the earlier incident. Furthermore, it was stated in the F. I. R. That the incised injury was caused on the left arm of Zaffar Iqbal appellant No. 8, whereas according to the medical evidence there was no such injury on his left arm. (This argument of learned counsel is supported by the medical evidence which states that there was an incised wound 21" x IV on the right upper arm of Zaffar Iqbal appellant No. 8). It was then argued that according to the medical evidence Ghulam A.I P. W. Had received many injuries on both his arms at the hands of Afaq and Zaffar Iqbal appellant No. 8. Consequently, while he was being beaten, he possibly could not have sufficient time to take out his knife, then open it and then---use it for causing injury to Zaffar Iqbal appellant No. 8. In other words, according to learned counsel the manner in which Ghulam A.I P. W. Is stated to have caused this injury could not appeal to reason as at that very time be was under attack by both Afaq and Zaffar Iqbal appellant No. 8. It was then submitted that Ghulam A.I P. W. Ordinarily would have not high-lighted the part played by him in the earlier incident but it was so described with no other purpose except to make out a motive of. The accused-party for having attacked the complainant-side in the main occurrence. According to learned counsel, the relatives of Ghulam A.I P. W. Did not collect at his house in order to inquire after his health. But the record reveals that information was sent to them about the earlier incident so that they could collect together in the house of Ghulam A.I P. W. In order to take revenge from the accused-side. It was then submitted that the plea of self-defence was taken by the accused-party at the very early stage because when Lal Husain Shah S. I. P. W. Was, asked in the cross-examination at page 63 of the Paper Book as to whether when he went to the hospital to arrest Zaffar Iqbal appellant No. 8, he set up a plea of self-defence by stating that Ziaullah deceased was the first who opened fire and his reply was that he did not remember. Learned counsel submitted that in para. 73 at page 118 of the Paper Book the trial Court had wrongly rejected the plea of self-defence of the appellants. It was then argued that if the appellants had the motive to attack and they were aggressors, then according to the prosecution if Ghulam A.I P. W. Had been present on the spot at the time of the main occurrence, how could the accused-party spare him by not attacking him at all. Thus, according to learned counsel Ghularn A.I P. W., who had received injuries in the earlier incident was not present at all at the time of the main occurrence. It was next argued that no independent witness was produced in the instant case and only interested witnesses i.e. Relatives, of Ghulam A.I P. W. Had been produced.
36. The Investigating Officer at page 63 of the Paper Book had admitted that he did not summon as eye-witnesses the occupants of the nearby houses or neighbours of the Mohallah where the main occurrence had taken place. He neither summoned these people nor they of their own appeared before him. 1t was submitted that the interested ocular testimony which has been produced was also inconsistent. For instance, it is stated at page 48 line 39 by Muhammad A.I P. W. 10 that it was incorrect that after hearing the version of Ghulam A.I P. W. He went to the houses of all his relatives including Khan Muhammad deceased. But when he was confronted with Exh. D. C. That he had informed about the earlier incident to Khan Muhammad deceased in his house, he denied the same. Likewise at page 47, line 18 he stated that on approaching the house of Khan Muhammad deceased he came to know that Khan Muhammad deceased had gone to the house of R.I Zamanullah P. W. So he went there and found that Umar Hayat deceased and Khan Muhammad deceased were present with R.I Zamanullah P. W. In his house. He narrated to them the version which had been conveyed to him by Ghulam A.I P. W. And they accompanied him to the house of Ghulam A.I P. W. In Exh. D. C. At pages 180/181 he had stated that he went to the house of Khan Muhammad deceased and informed him about the earlier incident at his house. Thereafter, on his information R.I Zamanullah P. W., Khan Muhammad deceased and Umar Hayat deceased came to his house in order to inquire about the health of Ghulam A.I P. W. Again,. At page 32, line 3 it was stated by R.I Zamanullah P. W. That he was standing at point No. 7 during the time of occurrence.
37. Point No. 7 was in the South-- Eastern corner of the house of Muhammad A.I P. W. And this house was about 14/15 feet in height. There was a veranda attached to the house opening in the courtyard and it may be of the same height as point No. 10 where Mst. Sughran Bibi P. W. Allegedly received injury was not visible from point No. 7. He did not see Mst. Sughran Bibi P. W. Receiving injuries with his own eyes. Point No. 9 was also not visible from point No. 7 where he was standing.
38. He did not see the person who fired at Mst. Sughran Bibi P. W. From point No. 9. According to learned counsel R.I Zamanullah P. W. Had not seen as to how Mst. Sughran Bibi P. W. Had received the pellet injury. It was pointed out by learned counsel that this witness further volunteered that Mst. Sughran Bibi P. W. Had told him the seat of her injury before lodging the F. I. R. And that Mst.
39. Sughran Bibi P. W. Had not come to him at point No. 7 during the occurrence. He had further stated that he had witnessed that Muhammad Khan appellant No. 6 had stepped aside from the others and proceeded to the Western wall of the house of Muhammad A.I P. W. However, the argument of learned counsel is that Mst. Sughran Bibi P. W. Might have been present on the spot and had received a stray-pellet injury in the course of the occurrence without ascertaining as to whose shot had hit her. According to learned counsel, the interested ocular testimony was also inconsistent about the taking away of the gun carried by Ziaullah deceased. In the F. I. R. It was stated that the gun carried by Ziaullah deceased had been taken away by two members of the accused-party, namely, Dost Muhammad appellant No. 4 (since deceased) and Muhammad Yusouf appellant No.
9. But subsequently before the trial Court it was stated by the interested witnesses that it was only post Muhammad appellant No. 4, since deceased, who had taken away the gun. It was then argued that since all the eye-witnesses of the occurrence were interested, partisan and inimical irrespective of the fact that the injured among them were definitely present at the time of the occurrence, their testimony required corrobora--petition qua the part played by each of the members of the accused-party. But no corroboration is available in the instant case. The recovery evidence is of no corroborative value. Hatchets P. 32 recovered at the instance of Dost Muhammad appellant No. 4 (since deceased) and P. 31 recovered from Muhammad A.I appellant No. 3 which were stated to have been stained with human blood were also of no corroborative value, because the only public attesting witness of these recoveries produced was R.I Ghulam Mehdi Khan P. W. 13, who was brother of Khan Muhammad deceased and Umar -Hayat deceased, the other witness being Lal Hussain Shah S. I. P. W. Who was not a reliable Investigating Officer as he was under the influence of the complainant-party and had even refused to register the counter-case.
40. Alternately, it was argued by learned counsel for the appellants that if this Court was not to accept the plea of self-defence, then it was a sudden fight between the parties and each of the appellants could only be held liable for his own act. If it - as to be considered as a sudden fight, then Wali Muhammad appellant No. 5, who was empty-handed was only attributed a lalkara. Khizar Hayat appellant No. 1 is stated to have fired at Khan Muhammad deceased and the shot proved fatal. He is also stated to have fired at Mukhtar Ahmad P. W. And caused injury to him. Umar Daraz appellant No. 7 gave a simple fire-arm injury to Mukhtar Ahmad P. W. 8 on non-vital part. Muhammad Yar appellant No. 2 gave one simple .Firm-arm injury in the chest of Mukhtar Ahmad P. W. 8 and is stated to have caused a fire-arm injury to Ziaullah deceased which was fatal. Zaffar Iqbal appellant No. 8 fired at Ziaullah deceased hitting him on the left flank and wrist. Muhammad A.I appellant No. 3 gave a hatchet blow on the head of Umar Hayat deceased which proved fatal.
41. Muhammad Khan appellant No. 6 caused simple fire-arm injury on the left buttock of Mst. Sughran Bibi , P. W.
12. Muhammad Yusuf appellant No. 9 gave dang blow on the back of Muhammad A.I P.
42. W. 10 and it was a simple injury. Dost Muhammad appellant No. 4 (since deceased) gave a hatchet blow on the left heel of Muhammad A.I P. W. 10 and it was a grievous injury.
43. According to learned counsel for the appellants on the accused-side Muhammad Inayat deceased was killed at the hands of the complainant-- party. He received two injuries on the head.
44. Similarly, Umar Daraz appellant No. 7 had a fire-arm injury 5.5 *1 bone deep extending from left cheek upto left ear and the underlying bone was cut. He lost the sight of his left eye and the brain matter was coming out of the wound. Another lacerated wound bone deep caused by fire-arm was on left side of his forehead. His condition was serious and it was lucky that he did not die.
45. Likewise, Zaffar Iqbal appellant No. 8 had one injury caused with a sharp-edged weapon on the arm and another caused with blunt --weapon on the back of left hand. Thus, according to learned counsel if it was a sudden fight in which three persons were killed on one side as opposed to one killed on the other and injuries were sustained on both the sides, then the case of the appellants should be covered under sec--petition 300, Exception IV, P. P. C. Learned counsel relied on Maqsood Hussain v. State (1976 P Cr. L JIn that case each party attributed attack to the other and suppressed its own part in the fight. Both the parties had encountered each other, attacked their opponent with their respective weapons resulting in the death of two on complainant-side and injuries to accused-persons. It was held that the case was covered by Exception IV to section 300, P. P. C.
46. Learned counsel submitted that in the peculiar circumstances of this case if the plea of self- defence of the appellants was accepted, then he relies on Muhammad v. Ghaus (1972 SCMR 264) . In that case a fight took place between two parties and there were two opposite versions of each side claiming other to be the aggressor. It was held that the mere fact that the complainant-party suffered greater number of injuries would not relieve of the initial act of aggression and that since the possibility of defence version being true was there, the High Court, in the circumstances was right in acquitting the accused. Reliance was also placed on Lal Khan and another v. State 1976 P Cr. L J 1437). In that case motive for attack lay with the complainant-party and the possibility that the complainant-party was the aggressor while the accused-party acted in exercise of their right of self-defence was not excluded. It was held that the accused were entitled to the benefit of doubt and they were acquitted.
47. We now proceed to attend to the arguments of learned counsel for the complainant and the State.
48. In substance their case is that neither the right of self-defence was available to the appellants, in the instant case, nor it was a sudden fight nor a free. Fight. But it was a clear case in which the accused party made preparation, came armed with deadly weapons to take revenge, stood outside the house of the complainant-party and then attacked them as aggressors. Consequently, the prosecution case was consistent and should be accepted as such. It was submitted that admittedly 4/5 months before the present occurrence there was a quarrel between two school boys of the opposite sides. In that quarrel Amjad son of Umar Hayat deceased and Afaq, brother of Zaffar Iqbal appellant No. 8, were involved. But Ghulam A.I P. W. And Amjad gave beating to Afaq.
49. Thereafter, the elders of Ghulam A.I P. W. And Amjad had proceeded to the house of Muhammad Inayat deceased, father of Afaq and Zaffar Iqbal appellant No. 8 and begged pardon from him and thus the matter was patched up. However, the boys i.e. Afaq and Zaffar Iqbal appellant No. 8 were still burning under the desire to avenge the insult caused to Afaq. Eventully, they availed of this opportunity on 16-9-1977 which was Eid day and while Ghulam A.I P. W. After the Eid prayers was returning to his house and had passed from in front of the dera of Wali Muhammad appellant No. 5, he was attacked by Afaq and Zaffar Iqbal appellant No. 8 and both of them gave severe beating to Ghulam A.I P. W. In this earlier incident Ghularn A.I P. W. Sustained numerous injuries on his person but in the course of the fight he managed to cause one simple incised injury with his knife on the right arm of Zaffar Iqbal appellant No. 8. This incident took place at some distance from their houses. After the incident Ghulam A.I P. W. Returned to his house whereas Zaffar Iqbal appellant No. 8 and his brother Afaq went to their own house. The houses of both the parties were in the same Mohalla and infront of each other. The injuries received by Ghulam A.I P. W. Had been caused with a whip and iron-fists. There was not bleeding, whereas the injury caused to Zaffar Iqbal appellant No. 8 on the arm with a knife was incised injury and it was bleeding. The reasoning of learned counsel is that the main incident followed as soon as Zaffar Iqbal appellant No. 8 went to his house and Muhammad Inayat deceased saw that his arm was bleeding and his clothes were covered with blood. Thus, according to learned counsel this must have infuriated Muhammad Inayat deceased, because without realizing that his sons had caused a severe beating to Ghulam A.I P. W. And only thinking that the injury of Zaffar Iqbal appellant No. 8 was bleeding and was serious, the accused- party was made to gather together. They carried deadly weapons and in order to avenge the insult came to attack the complainant-party as aggressors. It was submitted by learned counsel that according to record. Pellet marks were found on the walls of the house of the complainant-- party.
50. Had the complainant-party been the aggressor, then pellet marks should have been on the walls of the house of the accused-party. It was argued that the complainant-party was taken unawares.
51. They had come to the house of Ghulam A.I P. W. In order to inquire after his health. There were elderly people among them like Umar Hayat deceased (aged 55 years) and Khan Muhammad deceased (aged 60 years), who could not have gathered in the house of Ghulam A.I P. W. For taking the revenge. Thus, they had gone there only to inquire about the health of Ghulam A.I P. W. After having received the information that he had been attacked. They heard lalkara outside in the lane and came out. Khan Muhammad deceased tried to pacify the accused-party that they should not go mad on the quarrel of boys and that the matter could be amicably settled. But his appeal was rejected and the accused-party attacked the complainant-- side by opening fire as well as by using other deadly weapons which they had carried. It was submitted by learned counsel that the perusal of the ocular testimony, in the instant case, indicated that it was consistent and was supported by the medical evidence as well as the motive evidence. The ocular testimony was not interested, inimical or hostile, because there was no other background of enmity between the parties which were inter--related. It was argued that the right of self-defence was definitely not available to the appellants. They did not approach the Police in order to get recorded the F. I. R. Or their version of the occurrence. The counter version was given by the accused-side for the first time only in Writ Petition No. 2859 of 1977 which was filed in this Court on 5-10-1977 with the prayer that the Police be directed to register a case. This writ petition was dismissed by the High Court on 25- 10-1977. It was argued that the occurrence had taken place on 16-9-1977. The writ petition was dismissed on 25-10-1977. If the accused-side had a counter version, they could have been prompt in filing the private complaint soon after the dismissal of their writ petition, But the private complaint was filed almost after the lapse of one year i.e. on 12-8-1978 when Afaq as complainant had instituted the private complaint and gave a counter version in the same which was different from the counter-version contained in the writ petition as well as their defence in the challan case.
52. However, the complaint case was tried simultaneously with the challan case and in the complaint- - case Umar Daraz appellant No: 7, Zaffar Iqbal appellant No. 8 and Afaq appeared as P. Ws. In support of the counter-version. The private com--plaint was tried by the trial Court which, after examining the counter version, gave the finding in that case that the accused named therein had the right of self-defence available to them, because the com--plainant-party in the said case.
53. Was the aggressor. Thus, it was argued that the defence version or the counter-version had been inconsistent throughout. First, no counter-version was available until the writ petition was field.
54. Thereafter, a period of almost one year elapsed and another version was given in the private- complaint and that even that version was not consistent with the version which had been given in the instant case i.e. The challan case. It was argued by learned counsel that if the complainant party had been the aggressor, then according to the statement of R.I Ghulam Mehdi Khan P. W. 13 at page 56 of the Paper Book the com--plaint-party had eight licensed guns in their names. If they had been the agressor, there was no reason why they should not have used these eight guns in the commission of crime. In order to show that the defence version had been inconsistent, learned counsel took us through Exh. P. W. 14/1 at page 176 of the Paper Book which is certified copy of writ petition No. 2859 of 1977. In para. 2 of the said writ petition the defence version given is different 'from the version given in the private complaint which is Exh. P. W. 8/1 at page 169 of the Paper Book.
55. It was for this reason that the trial Court in para. 53 of its judgment dated 16-1-1979 in the cross- case had dismissed the complaint. It was next submitted that according to the defence version put up in the present case, Afaq stood behind the door and kept on firing the gun thereby killing the three deceased on the complainant-side. Had Afaq been present at the time of the occurrence, he should have been named as an accused by the complainant-party. There was obviously no reason fo exclude him or to drop him if he had murdered three members of the complainant-party. .It was, therefore, submitted that the plea of self-defence has been advanced as an after-- thought. Learned counsel took us through the photographs as well as the site-plan in support of his argument that the house of the complainant bad marks of pellets and therefore the appellants were the aggressor. 11 was then submitted that the occurrence was not a sudden fight. Relying on Muhammad Khan v. Dost Muhammad PLD 1975 SC 607it was submitted that fog bringing a case under Exception IV to section 300, P. P. C. Three element; must concurrently exist, namely, that it was a case of------
(i) sudden quarrel; followed by,'
(ii) sudden fight; without premeditation; and
(iii) no party has taken undue advantage over its adversary.
56. If there intervenes sufficient time for passion to subside and for reason to interpose, the exceptionwill not apply. These principles are well-establishes and can easily be gathered from any annotation on the Penal Code. I was argued that in the instant case sufficient time had elapsed between the earlier incident and the main occurrence and, therefore, the ingredients and Exception were not attracted. Learned counsel then cited Muhammad Ibrahim v. State (1979 P Pr. L J 275as well as Mammora v. State (1980 P Cr. L J 463), in order to show the distinction between what constitutes a sudden fight and what constitutes a free fight. He then cited Nazar Hussain v. State (1973 P Cr. L J 924 ), Fateh Muhammad v. State (1977 P Cr. L J 706) and Muhammad Arshad v. State (1979 P Cr. L J 51in order to show as to what consequence3 will follow if the fight between the parties was a free fight. It was argued that it was not a case of sudden fight because the ingredients of Exception IV to section 300, P. P. C. Were not attracted to the present case and it was not a free fight because there was no evidence that the parties had separately prepared or had premeditated and then came into the field armed to attack the opponent in a pitched battle. It was thus argued that on the basis of the record no other inference could be drawn except that the accused-party was the aggressor and they had attacked the complainant-side.
57. Ch. Muhammad Anwar Bhinder, Advocate had also requested for presen--ting his arguments from the complainant-side and we allowed him to address the Court. He first argued that the defence version was not true. Different stories of defence were given in the writ petition and in the private complaint. The defence version was a belated version and no explanation of delay was given. The defence version was unblievable. According to the defence version, seven members of the complainant-party were armed with one gun two hatchets and four dangs and had attacked four members of the accused-party but the result was that three members were killed and three injured from the complain--ant-side when only one was killed and two injured from the accused- side. This result was unnatural. Again, seven members of the complainant-side could only cause five injures but suffered 12 Injuries at the hands of only four persons of the accused-side. Again, four persons of the accused-party suffered only five injuries but caused 12 injuries to seven persons of complainant-party, armed with one gun, two hatchets and four dangs. Ghulam A.I and Muhammad A.I P.Ws were alleged to have inflicted hatchet blows to Muhammad Inayat deceased but according to the medical evidence the two injuries found on the head of Muhammad Inayat deceased had been caused with blunt-weapon. Four persons of complainant-party, namely, Khan Muhammad deceased, Umer Hayat deceased, Attaullah (not a witness) and Mukhtar Ahmad P.W.
58. Were stated to be armed with dangs but only one injury simple in nature caused with blunt- weapon was found on the hand of Zaffar Iqbal appellant No. 8 and that too had not been specifically explained as to who had caused it. According to the defence version Muhammad Inayat deceased and Umar Daraz appellant No. 7 are not stated to have inflicted any injury but Zaffar Iqbal appellant No. 8 claims himself to be an incapacitated man. Then the only inference which could be drawn is that all the injuries were inflicted by Afaq alone, who had been armed with a gun. If this was so, then how could Umar Hayat deceased and Muhammad A.I P. W. Sustain incised injuries stated to have been caused by sharp-edged weapon. It was submitted that how could Afaq alone, who is teenager of 17 years inflict nine gunshot injuries to Khan Muhammad deceased, Ziaullah deceased, Mukhtar Ahmad and Mst. Sughran Bibi P. Ws. Had Afaq been present at the spot, the complainant-party would have also attacked him and how could they have spared him, particularly after the earlier incident in which he was involved along with Zaffar Iqbal appellant No. 8 to have caused injuries to Ghulam A.I P. W. Had he been on the spot and had fired, the complainant-side must have named him as an accused person and there was no cogent reason to either omit him or to substitute him. Again, the firing of Afaq could possibly not injure Mst.
59. Sughran Bibi P. W. From the door of his own house. Similarly, the pellets could not hit Mst. Sughran Bibi P. W. Or the walls of the house of the complainant-party from the door of the house of Afaq.
60. Afaq did not even appear as D. W. In support of the defence version. No explanation has been furnished by the defence as to how Mst. Sughran Bibt P. W. Sustained injuries. How could Zaffar Iqbal appellant No. 8 inflict hatchet blows to Umar Hayat deceased when he had already received injuries on his right arm which was at the same time defective ? It was next submitted that the occurrence was not a free fight as it took place on Eid day. Had it been a free fight between seven persons on one side and four on the other, then three on the complainant-side would have not been killed nor three of their side had sustained injuries ? If free fight was intended, then the complainant-party could have not taken alongwith them Khan Muhammad deceased and Umar Hayat deceased, who were old persons and were heads of the family. Similarly, the complainant- party would have not allowed Mst. Sughran Bibi to accompany them and to be injured in the free fight. Had it been a free fight, then the complainant-party would have not gone there with one gun only when they had licensed arms ? Both Khan Muhammad and Umar Hayat deceased were licence-holders and they would have gone with their firm-arms if it was a planned . Attack. If the fight had been free, then the pellets would have hit also the walls of the house of Muhammad Inayat deceased and not only the house of the complainant-party. Learned counsel then submitted that it could also not be a sudden fight, because had it been a sudden fight, it would have taken place on the spot where the earlier incident took place. Then there would have been no time gap between the first incident and the main occurrence and finally the ingredients of Exception IV to section 300, P. P. C. Were not present in the instant case. It was finally argued that the prosecution version was true and consistent and natural. The F. I. R. Was promptly lodged within one hour of the occurrence. Full narration was given in the F.
1. R. And no improvement or exaggeration was made thereafter. The account of the occurrence given by the eye-witnesses was consistent with the medical evidence and the motive version. Even the accused-side admitted the time and place of occurrence. The presence of Mukhtar Ahmad and Muhammad A.I P. Ws is admitted because both of them were injured. There was no ground to disbelieve the ocular testimony which was supported by the medical evidence. It was lastly argued that the prosecution version was the correct version and that in the light of evidence on record the accused-party should be dealt with in accordance with law and notice should be given for the enhancement of sentence awarded to all the appellants other than Khizar Hayat, Muhammad Yar and Muhammad A.I appellants 1,2 and 3.
61. We have carefully considered the arguments of learned counsel for both the parties and heard them for a number of days. It is evident that the parties are inter related and there is no previous background of enmity between them. 4/5 months prior to the present occurrence a quarrel between school boys took place and as a result Ghulam A.I P. W. And one of the boys Amjad gave beating to the other boy Afaq. The matter was patched up by the elders but the young did not appear to agree with the patching up. On the day of occurrence which was an Fid day while Ghulan4 A.I P. W. Was returning to his house after the Eid prayers he was waylaid by Afaq and his brother Zaffar Iqbal. Appellant No. 8 and they gave a severe beating to Ghulam A.I P. W. In order to avenge the earlier insult to Afaq. In the course of this scuffle Ghulam A.I P. W. Is stated to have caused a simple incised injury with his knife on the right arm of Zaffar Iqbal appellant No. 8. The boys were separated by others and they went to their respective houses which happened to be in the same Mohalla facing each other. The injuries of Ghulam A.I P. W. Were caused by whip and iron-fists and they did not bleed. On the other hand, the injury caused on the arm of Zaffar Iqbal appellant No. 8. Was incised in nature and, therefore, must have bled. After the patching up of still earlier incident the injuries to Ghulam A.I P. W. On one side and Zaffaq Iqbal appellant No. 8 on the other side must have infuriated their family members. The case of the prosecution is that the members of the complainant-party had not gathered in the house of Ghulam A.I P. Ws. For preparing an attack on the other side. They came there only in order to inquire after his health, for, he had received injuries on an Eid day. Similarly, it is understandable that when Zaffar Iqbal appellant No. 8 went to his house, his father and other relatives saw him bleeding and his clothes covered with blood on Eid day and it is reasonably probable that they must have been infuriated.
62. Since the houses of the parties were infront of each other, it is reasonably probable that they gathered outside their houses and had started abusing one another. This appears to be the beginning of the quarrel which must have been followed by a sudden fight among the elders of the two boys. In our considered opinion, it is difficult to determine as to who was the aggressor 'and who was the aggressed, for, both the parties claim that the other was the aggressor. In our considered opinion, it was not a premeditated affair, because once the sudden fight started, both parties having licensed arms might have brought them forth from their respective houses or any lethal weapons like dang and hatchet on which they could lay hands. It is reasonably probable that if the complainant-side could manage to bring out one gun, the accused-side might have managed to bring out two or three guns. It is again difficult to determine as to whether one party had taken undue advantage over its adversary. However, it is unfortunate that on one side three person were killed and three injured whereas on the other side one person was killed and two injured. We agree with the reasoning of learned counsel that it was certainly not a free fight. But in the light of the evidence on record we are convinced in our mind that in a case of this nature it is not possible to determine as to who was the aggressor and who was the aggressed. Consequently, after eliminating all these possibilities, we are left with no other alternative except that it was a sudden fight between the parties and, therefore, the case of the appellants was covered by Exception IV to section 300, P. P. C. Consequently, each of the must be considered liable for his own act. As a result of our this finding it is not a case in which section 149, P. P. C. Could have been made applicable. Similarly, the conviction as well as sentence awarded to all the appellants under section 148, P. P. C. Were improper and are accordingly set aside. Again, if the case of the appellants is covered by Exception IV to section 300, P. P. C. There is no justification for their conviction as well as sentence under section 302, P. P. C. Thus, the conviction and sentence awarded to the appellants under section 302/149, P. P. C. Are accordingly set aside. Since each of the appellants is liable for his own act, they are hereby convicted and sentenced as follows:-
(1) Khizar Hayat appellant No 1 is stated to have caused the death of Khan Muhammad deceased by firing at him with his gun. U - is convicted under section 304, Part I, P. P. C. And sentence to imprisonment for life. The fine awarded to him by the trial Court is maintained. Since the other appellants did not cause any injury to Khan Muhammad deceased, their conviction under section 302/149, P. P. C. And sentence of imprisonment for life each plus fine are set aside. Khizar Hayat appellant No. 1 is also stated to have caused a fire-arm injury to Mukhtar Ahmad P. W. On his chest.
63. He is, therefore, convicted under section 324, P. P. C. And sentenced to imprisonment which he has already undergone as it cannot be ascertained as to who had caused grievous injury on the chest of Mukhtar Ahmad P. W. His conviction and sentence under sec--petition 307/149, P. P. C. (on three counts) and that under section 148, P. P. C. Are all set aside.
(2) Muhammad Yar appellant No. 2 and Zaffar Iqbal appellant No. 8 are stated to have caused the death of Ziaullah deceased by firing at him with their guns. The injuries caused by both of them were collectively sufficient to cause death in the ordinary course of nature. Each of them is, therefore, convicted under section 304, Part I, P. P. C. And sentenced to imprisonment for life. The fine awarded to Muhammad Yar appellant No. 2 by the trial Court is maintained. Zaffar Iqbal appellant No. 8 is also ordered to pay the same amount of fine or in default to undergo two years rigorous imprisonment. Since the other appellants did not cause any injury to Ziaullah deceased, their conviction under section 302/149, P. P. C. And sentence of imprison--ment for life each plus fine are set aside. Muhammad Yar appellant No. 2 is also stated to have injured Mukhtar Ahmad P.
64. W. With his gun on the chest. He is, therefore, convicted under section 324, P. P. C. And sentenced to imprisonment which he has already undergone as it cannot be ascertained as to who had caused grievous injury on the chest of Mukhtar Ahmad P. W. The convictions and sentences of both these appellants under sections 307/149, P. P. C. (on three counts) and that under section 148, P. P. C. Are all set aside.
(3) Muhammad A.I appellant No. 3 is stated to have caused the death of Umar Hayat deceased with his hatchet. H;, is, therefore, convicted under section 304, Part 3, P. P. C. And sentenced to imprisonment for life. The fine awarded to him by the trial Court is maintained. Since the other appellants did not cause any injury to Umar Hayat deceased, their conviction under section 30?/149 P. P. C. And sentence of imprisonment for life each plus fine are set aside. His conviction and sentences under section 307/149, P. P. C. (on three counts) and that under section 148, P. P. C.
65. Are all set aside.
(4) Dost Muhammad appellant No. 4 is already dead. He was stated to have caused grievours injury to Muhammad A.I P. W. 10 with his hatchet: He was also stated to have taken away the gun which was being used by Ziaullah deceased. Since he has died in Jail, there is no need to pass any order respecting his conviction and sentence.
(5) Wali Muhammad appellant No. 5 was empty-handed and is only attributed a lalkara. His convictions and sentences under section 302/149 (on three counts), that under section 307/149, P.
66. P. C. E (on three counts) and that under section 148, P. P. C. Are all set aside He is given the benefit of doubt and acquitted. He shall be released from Jail forthwith if not wanted in any other case.
(6) Muhammad Khan appellant No. 6 is stated to have caused a simple fire-arm injury on the right buttock of Mst. Sughran Bibi P. W. With his gun. He did not cause any injury to the deceased or any other P. W. His convictions as well as sentences under section 302/149, F P. P. C. (on three counts), under section 307/149, P. P. C. (on three counts) and under section 148, P. P. C. Are all set aside and instead he is only convicted under section 324, P. P. C. And sentenced to imprisonment which he has already undergone. He shall be released from Jail forthwith if not wanted in any other case.
(7) Umar Daraz appellant No. 7 is stated to have caused an injury to Mukhtar Ahmad P. W. With his gun. He did not cause any injury to the deceased or any other P. W. His convictions and sentences under sections 302/149, P. P. C. (on three counts), under section 307/149, P. P. C. (on three counts) and under section 148, P. P. C. Are all set aside and he instead is convicted only under section 324, P.
67. P. C. And sentenced to imprisonment which he has already undergone. He too shall be released from Jail forthwith if not wanted in any other case.
(8) Muhammad Yusuf appellant No. 9, is stated to have caused simple injury with his dang to Muhammad A.I P. W.
10. He did not cause any injury to the deceased or to any of the P. Ws. His conviction and sentences under section 302/149, P. P. C. (on three counts), under section 307'/ 149 P.
68. P. C.. (on three counts) and under section 148, P. P. C. Are all set aside and he is only convicted under section 323, P. P. C. And sentenced to imprisonment which he has already under-- gone: He shall also be released from Jail forthwith if not wanted in any other case.
69. To sum up Wali Muhammad appellant No. 5, Muhammad Khan appellant No. 6, Umar Daraz appellant No. 7 and Muhammad Yusouf appellant No. 9 are to be released from Jail forthwith if they are not wanted in any other case.
70. Khizar Hayat appellant No. 1, Muhammad Yar appellant No. 2, Zaffar. Iqbal appellant No. 8 and Muhammad A.I appellant No. 3 have been convicted and sentenced as stated above and their convictions under any other offence and sentences awarded by the trial Court are set aside. The fine, if realized from appellants Khizar Hayat, Muhammad Yap, Zaffar Iqbal and Muhammad A.I, shall be paid as compensation in equal shares to the heirs of Khan Muhammad deceased, Ziaullah deceased and Umar Hayat deceased. The appeals of the appellants are accepted to this extent.
71. The death sentence awarded to Khizar Kayat, Muhammad Yar and Muhammad A.I appellants 1, 2 and 3 is not. confirmed. in limine.
72. Petition for Special Leave to Appeal No. 15 of 1979 is a separate matter and it shall be dealt with separately as we have passed a separate order on its file.