RUSTAM S. SIDHWA, J. ---Mamma, Mamoora, Talib, Manak, Muhammad Ismail, Nawaz and Aslam were sent up for trial under sec--tions 302/307/149 and 148, P.P.C. For the murder of Said Ahmad deceased and attempt on the life of Dosa and Sharif P. Ws. Before Mr. M. Saleem Akhtar, Additional Sessions Judge, Jhang. The said learned Additional Sessions Judge, Jhang, by his judgment dated 18th December, 1975. Acquitted Manak, but, convicted and sentenced the other accused as follows:-
(a) Mamoora, Nawaz and Aslam under sections 302/148, P.P.C. To transportation for life and a fine of Rs. 1,000 each, in default of payment of which to suffer further one year's rigorous imprison-- ment;
(b) Mamma under section 326, P. P. C. To four years' rigorous imprisonment and a fine of Rs. 1,000 in default of payment of which to suffer farther one year's rigorous imprisonment;
(c) Amin under section 324, P. P. C. To three years' rigorous imprisonment and a fine of Rs. 1,000, in default of payment of which to undergo further nine months' rigorous imprisonment ;
(d) Talib under section 324, P. P. C. To two years' rigorous imprison--ment and a fine of Rs. 500 in default of payment of which to undergo further six months' rigorous imprisonment;
(e) Muhammad Ismail under section 323, P.P.C. To one year's rigorous imprisonment and a fine of Rs. 500 in default of payment of which to undergo further three months' rigorous imprisonment ;
(f) Mamoora under section 323, P. P. C. On two counts to one year's rigorous imprisonment and a fine of Rs. 1,000, in default of payment of which to suffer further three months' rigorous imprisonment on each count ;
(g) Nawaz under section 323, P.P.C. On three counts to one year's rigorous imprisonment and a fine of Rs. 1,000, in default of payment of which, to suffer further three months' rigorous imprisonment on each count ; and
(h) Aslam under section 323, P.P.C. To one year's rigorous imprison--ment and a fine of Rs. 1,000, in default of payment of which, to suffer further three months' rigorous imprisonment.
The convicted accused have preferred an appeal against their conviction. Dost Muhammad has filed a revision (Cr. R. 290-76) for the enhancement of the sentences of Nawaz, Mamoora and Aslam, the conviction of Muhammad Amin accused under section 302, P.P.C. And the enhancement of the sentence of Mamma accused under section 326, P.P.C. Which revision is also before us for hearing. This judgment will, therefore, dis--pose of both the appeal and the revision.
2. The brief facts of the case, as disclosed at the trial? Are that on 19th October, 1972, Syed Fayyaz Hussain, Ziladar, P. W. 5 came to Chak No. 140 and there pronounced that the new warabandi, which had been sanctioned earlier in March, 1972 would be enforced on 23rd October 1972 at 6-00 p. m. The said pronouncement was made in the presence of persons who were residents of the said Chak and who benefited from Moga No. 32550/R. According to this new warabandi, persons whose turn of water, which was previously fixed in the day time, fell at night and vice versa. On 23rd October 1972 at about 6-00 a. m. Dosa P.W. 7 with Said Ahmad deceased reached Moga No. 32550/R to take their turn of water. They found Amin and Ismail, armed with guns. Manak, armed with hatchet, Talib and Mamma, armed with kassis, and Aslam Nawaz and Mamoora, armed with dangs, present there irrigating their land from the said Moga. Dosa P. W. 7 inquired from the accused party as to why they were illegally irrigating their land, as it was their turn of water and the turn of the accused fell thereafter, and that Burkha son of Piyara had his turn before even theirs (complainant's turn). Dosa P. W. 7 and Said Ahmad deceased pressed for their turn of water, but the accused party declined. The complainant party tried to make the accused understand the position, but the accused picked up a row, started abusing Said Ahmad deceased and launched an attack. On the complainant's alarm, Sharif P. W. 10 and Rehmat P. W. 8 came up followed soon after by Hayat P. W. 11, Noora and Allah Ditta, from their adjacent fields. At about the same time, Amin accused fired at Said Ahmad deceased with his gun, hitting him on his right foot, on which Said Ahmad deceased fell down. When Dosa P. W. 7, Sharif P.W. 10, and Rehmat P.W. 8 tried to intervene, Talib accused gave a kassi blow to Said Ahmad deceased on his left cheek ; and Aslarn, Mamoora and Nawaz accused started giving dang blows to the deceased. The dang blows by Nawaz accused hit Said Ahmad deceased on his right head and right ear, and that by Aslam and Mamoora accused hit the deceased on the left side of his head. During the melee Mamma, Muhammad Ismail and Nawaz accused gave blows to Dosa. P. W. 7 with their kassi, butt of the gun and lathi respectively. Sharif P. W. 10 and Rehmat P. W. 8 received a number of successive dang blows at the hands of Aslam, Mamoora and Nawaz, whereupon Rehmat fell on the ground. With great difficulty, Hayat P. W. 11 and Noora rescued the injured from the accused party. The accused thereafter ran away. Said Ahmad deceased, who was seriously injured, was carried on a cot to the village. His condition having deteriorated, he was removed to Civil Hospital, Chiniot. Where he and the other injured P. Ws. Were medically examined. Dr. Muhammad Iqbal P. W. 9 sent ruqqa Exh. PU to Police Station Chiniot, reporting the unconscious condition of Said Ahmad deceased at the hospital. Fida Hussain Shah, A.S.I. P. W. 13 immediately reached the hospital. Since Said Ahmad deceased was not in a fit condition to make a statement. The statement Exh. PA of Dosa P. W. 7 was recorded by him at 9-30 a. m. Which was sent to the Police Station, on the basis of which formal F. I.
R. Exh. PA/I was recorded at Police Station Chiniot by Ghulam Muhammad, Moharrir Head Cons.
Table P. W. 2 at 9-45 a.m. Whilst in the hospital, the Investigating Officer received report of the death of Said Ahmad deceased, whereupon, after preparing the necessary papers, he sent the dead body for post-mortem examination.
3. Dr. Muhammad Iqbal P. W. 9 on 23rd October, 1972 at 8 a. m. Medically examined Dosa P. W. 7 and found the following injuries on his person:---
(1) A contused wound --" x --" x scalp deep on middle of head 5" above root of nose, Longitudinal in direction.
(2) A contused wound 1' x --' bone deep on left head 2--" above left eyebrow.
(3) Multiple abrasions on all over back of chest of various sizes and shapes.
(4) A contused wound --" x 1/3" x skin deep on top of left shoulder---joint.
(5) A contusion 3" x 1" on back of left forearm middle part oblique in direction.
(6) An incised wound 3" x 1/8" x muscle deep on left thigh front upper and of wound starting 2" above left knee joint and extending down cutting the patellar bone, corresponding but was present on dhoti.
(7) An incised wound --" x 1/10" x muscle deco on back of left index finger first digit. X-ray was advised for injuries Nos. 1 and 2.
The doctor opined that injury No. 6 was grievous and injuries Nos. 3, 4, 5 and 7 were simple. Injuries Nos. 6 and 7 were caused by sharp weapon and rest by blunt weapons. Exh. PR is the correct carbon copy of his medico-legal report, which is in his hand and signed by him. Exh. PR/-2 X-rays of the head of Dosa P. W. 7 with reference to injuries Nos. 1 and 2 which are simple.
4. On the same day, at 8-20 a. m., Dr. Muhammad Iqbal P. W. 9 medically examined Rehmat and found the following injuries on his person:-
(1) A contused wound 2" x 1/3" x scalp deep on the back of head 4" from left ear.
(2) A contused wound V-shaped each limb 2" x --" x scalp deep on back of head back part 3" from right ear.
(3) A contused wound 1--" x 1/8'' x scalp deep on right head outer part 2" above right eyebrow.
(4) A contused wound 1" x 1/6--- x scalp deep on middle of left head 3----- above left ear.
(5) A contused wound --" x 1/8" x scalp deep on top of head.
(6) A contused wound --" x 1/8--- x skin deep on outer part of left eye--brow.
(7) A swelling 3" x 2" on and around nose with abrasion at middle of its bridge --" x --", bleeding from nose was present.
(8) An abrasion ----- x 1/10" on left part of upper lip oblique.
(9) Multiple abrasion on left side and back of neck.
(10) A contusion with abrasion on back of left shoulder-joint.
X-ray was advised for injuries Nos. 1 to 5 and 7. Patient who kept under observation and was semi- conscious. The doctor opined that injuries Nos. 6, 8, 9 and 10 were simple. All the injuries were caused by blunt weapon and were within six hours duration. Exh. P. Q. Is the correct carbon copy of his medico-legal report which is in his hand and signed by him. Exhs. P.Q./1-2 are X-rays for injuries Nos. 1 to 5 and 7 showing no bonylesion so these injuries were simple.
5. On the same day, at 9-00 a. m., Dr. Muhammad Iqbal P. W. 9 medically examined Sharif P. W. 10 and found the following injuries on his person:-
(1) A contused wound --" x --" scalp deep on left head back 4" above and behind left ear.
(2) A contusion 5" x 1" on back of left chest middle part near mid--line.
The doctor opined that the injuries were caused by blunt weapon and were simple in nature, and duration of injuries was within six hours. P. M. Is correct carbon copy of his medico-legal report, which is in his hand and signed by him.
6. On 23rd October, 1972 at 10 p. m. Dr. Muhammad Iqbal P. W. 9 conducted the post-mortem examination on the dead body of Said Ahmad (whom he had earlier examined at 8-30 a.m. On the same day when Said Ahmad was brought in a deeply unconscious and precarious condition) and on autopsy found the dead body:-
(1) Five contused wounds on left side of bead and top
(a) 1--" x --" x bone deep.
(b) 2--' x --" x bone deep.
(c) 3" x 1/4" x bone deep.
(d) 3--" x 1/4" x bone deep.
(e) 2--' x 1/4' x bone deep.
There was massive swelling over this area. The lower wound was 2--' x above the left ear, the upper one near the middle line.
(2) A contused wound 1' x --" x bone deep on right forehead 2' above the right eyebrow with swelling 2' x 1".
(3) A contused wound 1' x 1/4" through and through on upper part of right ear with swelling 4' x 3" on adjoining part of head.
(4) An incised wound 1/4"x 1/10 x skin deep en left side of face near month angle.
(5) Whole, right ankle-joint an area of above of leg and below of foot was swollen 10" x 6" with multiple lacerated wounds of various sizes, shapes and depth.
Due to gunshot on inner side of foot and leg, 11 pellets were removed from the injury.
Blood was present in scalp layers, between scalp and skull. Skull showed multiple fractures of parietal (side bones) of left side and line of fracture extended to right side behind the right ear, base of skull of middle cranial focca were fractured on both sides. Blood was present between skull and injuries and meanings (brain layers). A big clot of blood was present over right side between brain lavers, under injury No. 3. Blood was present in brain matter on both sides. The doctor opined that injury No. 5 was by gunshot and injury No. 4 was caused by sharp weapon while the rest were caused by blunt weapon. The death in his opinion was due to shock, pressure on brain and bleeding. Injury No. 1 as described and injury No. 3 was sufficient to cause death individually, in the ordinary course of nature. All the injuries were ante-mortem and time between injuries and death was between 6 and 10 hours and between death and post-mortem was 2 hours and 40 minutes.
Exh. PL is the correct carbon copy of his post-mortem report which is in his hand and signed by him. Exh. PL/1 is the pictorial representation of injuries, Exh. PL/2 is the X-ray of injury No. 5 on the person of Said Ahmad deceased.
On the same day at 10-45 a.m. Dr. Muhammad Iqbal P. W. 9 medi--cally examined Muhammad Nawaz accused and found the following injuries on his person:----
(1) Multiple pellet shot wounds each 1/10" x 1/10" x 1/4" x skin deep on front side of right thigh on an area 8" x 6" just above right knee;
(2) 2 pellet shot wound 1/10" x 10--- x muscle deep on front of left thigh, 4" and 8' above knee-joint respectively. Corresponding holes were present on dhoti.
(3) A contusion 3' x 1" on front of right forearm, lateral part oblique middle.
(4) A swelling 2--" x 1" on left wrist-joint inner aspect with 3 minor abrasions.
X-ray showed multiple metallic shadows on right and left side thigh. No bonylesion was present. All injuries were simple. Injuries Nos. 1 and 2 were of fire-arms, and injuries Nos. 3 and 4 were by blunt weapon. Duration of injuries was within 6 hours. Exh. D./C. Is the correct copy of the M. L.
Examination.
On the same day at 10-55 a.m. Muhammad Iqbal P. W. 9 medically examined Mamma accused and found the following injuries on his person:
(1) A contused wound 1" x --" x scalp deep on left head 3--" above left ear,
(2) A contusion 3--" x --'' on back of left chest middle.
Injury No. 2 declared simple. X-ray was advised for injury No. 1, which was not got done. All the injuries' were caused by blunt weapon. Dura--tion of injuries was within 6 hours. Exh. D./D. Is the correct copy of the M. O. Report.
On the same day at 11-05 a.m. Dr. Muhammad Iqbal P. W. 9 medi--cally examined Manak accused and found the following injuries on his person.
(1) A swelling 2" x 1" on back of left hand, thumb side distal half.
(2) B contusion 2" x 1" on top of left shoulder-joint.
Injury No: 2 was simple X-ray was advised for injury No. 1 which was not got done. Injuries were caused by blunt weapon and duration was within 6 hours. Exh. D./E. Is the correct copy of the M. O.
Report.
On 27October, 1972 Mamma, Mamoora, Manak. Tabb, Muhammad Arvin acid Muhammad Ismail, accused were arrested by the Investigating Officer.
8. On 30October, 1972. Nawaz and Aslam accused were also arrest--ed by the aforesaid Investigating Officer.
9. On 3November, 1972, Amin accused led to the recovery of his licensed gun P. 1 from his house, which was taken into possession, vide memo. Exh. P. B. Aslam accused led to the recovery of his blood-stained lathi P. 2 from his house, which was taken, into possession, vide memo. Exh. P. C.
Nawaz accused led to the recovery of a lathi P. 3 from his residential kotha, which was taken into possession, vide memo Exh. PD. Talib accused led to the recovery of a blood-stained kassi P. 4 front his sugar-cane field which was taken into possession vide memo. Exh. PE. Manak accused led to the recovery of a hatchet P. 5 from his maize crop which was taken into possession, vide memo.
Exh. P. F. Mamma accused led to the recovery of a blood-stained kassi P. 6 from his sugar-cane crop which-was taken into possession, vide memo. Exh. P. G. All these recoveries were, witnessed by Muhammad Hayat, P. W. 11, and Fida Hussain Shah, A, S. I., P. W. 3.
10. On 4November, 1972, Fayyaz Hussain Shah (Zilladar) P. W. 3 produced documents P. T. 8c. P, T./1 to P. T./4, relating to Warabandi before the Investigating Officer.
11. After completing the necessary investigation and getting the site plans prepared, all the eight accused were sent up for trial,
12. At the trial, all the accused denied the accusation imputed to them. They all submitted the same defence. Adam accused in his exami--nation under section 342, Cr. P. C., which statement the other accused also adopted, stated as follows:-- "Warabandi on the outlet No. 32550/ R had been amended in March, 1972, on 23 March, 1972. The time had been kept the same but those who irrigated their fields during the day were to irrigate during the night according to the amended warabandi. The change was from night to day and vire versa, an appeal was preferred against this order, which was finally decided on 28June, 1972 by the Divisional Canal Officer who maintained the order of the Sub-Divisional Canal Officer to execute that order. Zilladar Fayyaz Husain visited Chak No. 140 to announce the amended warabandi. He collected the entire villagers on 19October, 1972 and announced that the new warabandi would be put into effect from 22nd October. 1972 viz. From the night of Monday as the night precedes the day. The night of Monday starts as soon as the sunsets on Sunday. Whenever there is change in the warabandi surplus water has to be distributed amongst the shareholders by mutual consent. The Zilladar announced that surplus water to be distributed according to the mutual arrangements amongst various shareholders of Moga No. 32550/R. The surplus water was to be distributed amongst the Tail end shareholders. They agreed with Mamma, Mamoora. Ismail, Muhammad Ahmad sons of Murad and others that the surplus water according to their share be utilized by Mamma, Mamoora, Ismail, Noora, Taja and others and they would get the surplus share of water along with their turn when the warabandi was put into effect accordingly they had to get their share on following Sunday. It was mutually agreed that Mamma, Mamoora. Ismail and others should start watering their fields from 6-00 p.m. On 22October, 1972 accordingly. Salehon and Jalla sops of Taja, Mamoora, Mamma and Masoora sons of Noora, Manak and Talib sons of Bahab, Nawaz son of Jallah, Amin son of Haqqa and Ismail son of Muhammad, started their turn at 6-00th th rd th rd th th nd p.m. On 22nd October, 1972 and continued their turn of water throughout the night between 22nd and 23rd October, 1972 when they were attacked by Muhammad Hayat, Dosa, Rehman's and Said Ahmad deceased along with Sharif at 5 or 5-30 a. m. Muhammad Hayat P. W. Opened fire on Nawaz son of Jallah which also accidentally hit Said Ahmad deceased and in the fight both the parties received injuries. The possession of water remained with Mamma and Mamoora accused.
Thus the amended warabandi which was put into effect at 6-00 p.m. On 22October, 1972 was admitted by Muhammad Hayat P. W. Who made the application Exh. D. M. Before the D. C. O., Lyallpur on 9th February, 1972 and admitted therein that the amended wara--bandi had been put into effect from the evening of 22nd October, 1972 at 6-00 p.m. And this state of affairs continued for about nine months from f-00 p.m. From 22nd October, 1972 to June, 1973."
13. The learned trial Court, after an examination of all the oral and documentary evidence adduced before it, came to the conclusion that the new warabandi was not in force on 23rd October; 1972 at 6-00 a. m. And neither the complainant party nor the accused party had their turn of water at 6-00 a. m. On 23rd October, 1972. The learned trial Judge held that both the parties admitted the presence of each other and otherwise there was no prior enmity between the two groups and, there--fore, as none of the parties was entitled to any turn of water at 6-00 a. m. On the fateful day and that both the groups, duly armed, had attacked each other, it was a case of free fight and that each accused was liable for his individual act, except Manak, who was given The benefit of doubt and acquitted. The learned trial Judge did not rely upon the recoveries, but relied upon the medical evidence as corroborating the injuries inflicted by the various accused on the deceased and the injured witnesses. The learned trial Judge, accordingly, convicted and sentenced the accused as stated in Para No. 1 above.
14. We have heard the arguments of the learned counsel for the appellants, the respondents, the State and the private complainant. One important fact which stands out prominently is that the occurrence is not denied by the appellants and there is no previous enmity between in the parties.
According to the statements of the appellants recorded under section 342, Cr. P. C., the amended warabandi was to start on the midnight of 22nd and 23October, 1972 but in view of some arrangement arrived at by Mamma, Mamoora and Ismail, appellants, and Muhammad and Ahmad sons of Murad and others, on the one side with, the tail end shareholders, on the other, the surplus water was to be utilized by Mamma, Mamoora and Ismail, appellants, with Noora, Taj and others, and therefore, they started watering their fields from 6-00 p.m. On 22October, 1972.
Accordingly it was submitted that Salehoon and Jalla sons of Taja. Mamoora, Mamma and Masoora sons of Noora, Manak and Talib sons of Wahab, Nawab son of Jalla, Amin son of Haqna and Ismail son of Muhammad started taking their turn at 6-00 p. m. On 22nd October, 1972 and continued their turn of water throughout the night between 22nd and 23rd October, 1972 when they were attacked by the complainant party at 5-00 or 5-30 a. m. And in pursuance of their right of private defence of person and property, they caused injuries to the complainant party. This story was totally disbelieved by the learned trial Judge, who held that the story, as given by the complainant, namely, that the amended warabandi had to start at 6-00 p. m. On 23rd October, 1972 was correct and that the appellants had at 6-00 a. m. Engaged themselves with the complainant party in a free fight. The appellants have pressed the same case in appeal as pleaded by them in their statements under section 342, Cr. P. C. Once again. Both the opposing contentions therefore, require examination.
15. In fairness to the appellants, it will be proper to evaluate first the case pleaded by them.
Muhammad Abdullah Patwari P. W. 4 and Fayyaz Hussain Zilladar P. W. 5 have both testified that in March, 1972, the panel warabandi relating to Moga No. 32550/R was amended, that an appeal against the same was decided in June, 1972, that an application Exh. D. G. Was made by Salehon father of Muhammad Aslam accused, sometime in October, 1972 to the Zilladar requesting that thend rd nd amended warabandi be implemented, that pursuant to the said application both of them proceeded to Chak No. 140, where all the persons, who benefited from the moga were summoned that Fayyaz Hussain Zilladar P. W. 5 then openly announced to all the shareholders then present that the amended warabandi would be enforced from 23rd October, 1972 at 6-00 p. m. And that the statement Exh. D. N. Of those shareholders of the moga who were then present when the proclamation was made, was recorded by the Zilladar in token of their acceptance to the amended warabandi. The amended warabandi Exh. P. T/2-4 clearly shows in Column No. 25 thereof that the turn of the first shareholder of the water was to start from Monday 6.00 p. m. From the evidence of the said Patwari and Zilladar and the amended warabandi Exh. P. T/2-4, it is clear that the new warabandi had to be implemented on 23October, 1972 at 6-00 p. m. Though Exh. D.
N. Does not give the time of implementation, but the statements of the Patwari and Zilladar are clear that it was to be enforced at 6-00 p. m. On 23October, 1972 and the time and day also stands corroborated by Exh. P. TI2-4. Apart from this factor, even assuming that the amended warabandi was to be enforced on 23rd October, 1972 at 12-00 midnight but that some of the appellants with some others came to some arrangement with the tail end shareholders with regard to the distribution of the surplus water and that in accordance with that arrangement, the said surplus water was to be utilized by Mamma, Mamoora and Ismail, appellant, with Noora, Taja, and others and they started watering their fields from 6-00 p. m. On 22nd October, 1972, the said contention neither finds support from any evidence of any tail end shareholders nor any documents on the record. Neither the Patwari nor the Zilladar were cross-examined as to who were the tail end shareholders whose turns to take water were ordinarily due from 6-00 p. m. On 22nd October, 1972 to 0-01 a. m. On 23rd October, 1972 because unless their names were disclosed and it was proved that they had given up their turns the question of the tail end shareholders conceding their turns to Mamma, Mamoora etc. Would not arise. The fact that the Patwari and the Zilladar were never cross-examined as to who these persons were and none of the tail end shareholders came to support the defence version, clearly shows that their contention is not founded in truth.
According to Exh. P. T/2-4, the under-noted persons had their turns of water from 6-00 p. m. On 22October, 1972 to 6-00 p. m. On 23rd October, 1972 according to the old warabandi: Sr. No.Name From To 42.Wali Muhammad son of Mansha 5-43 p.m.6-43 p.m.
43.Mst. Mantey widow of Umra 6-43 p.m.8-25 p.m.
44.Muhammad Ali son of Phumman 8-25 p.m.10-03 p.m.
45.Wali Muhammad son of Mansha 10-03 p.m.10-47 p.m.
46.Noor Muhammad son of Raja (Complainant patty)10-47 p.m.12-40 a.m.
47. Zakir and others 12-40 a.m.4-50 a.m.
48.Burkhurdar & Ahmad 4-50 a.m.6-00 a.m.
1. Forest Department 6-00 a.m.6-24 a.m.
2. Noor Muhammad etc. (complainant party) 6-24 a.m.8-07 a.m.
3. Muhammad Ahmad son of Murad 8.07 a.m.12-05 a.m.
4. Ismail son of Muhammad etc. (accused party) 12-05 p.m.4-49 p.m.
5. Noora and Mamoora (accused party) 4-49 p.m.9-03 p.m.
Assuming, that the Warabandi had to start from 00-01 a.m. On 23rd October, 1972 with the Forest Department as the first shareholder to receive water, but in accordance with the arrangement with the tail enders, the appellant party stated 6 hours earlier at 6-00 p.m. On 22nd October, 1972, than unless they proved that they also had some arrangement with Noor Muhammad son of Rajard rd nd (complainant party) up to Barkhurdar and Ahmad, who had their turns during the preceding 6 hours, the appellants could not have taken their turns of water. This also presupposes the fact that those shareholders of this Moga who had their normal turns falling between 6-00 p.m. On 22nd October, 1972 and 00-01 a.m. On 23October, 1972 according to the old Warabandi had also agreed, which is not borne out on the record. During arguments, the appellants placed great stress on document marked `A' by the trial Court and copies thereof exhibited as Exh. D. K. And Exh. D. M.
This document could not be proved by tire defence as Hayat P. W. 11 did not admit its execution and Muhammad Iqbal D. W. 1 stated that he was not conversant with the handwriting of Muhammad Hayat. Even if we assume that this document was written by Muhammad Hayat P. W. 11, it only shows that at 6-00 p.m. On 22nd October, 1972 the appellants had among themselves hatched a conspiracy with regard to the change of their turn of water and that when the complainant party went to the Moga at 6-00 a.m. The next day to have their turn of water, they were subjected to at attack by the appellant party. It was further recorded in this application that on the night between 22nd and 23rd October, 1972, the appellant party forcibly took the turn of the water. There is nothing in this document to suggest that the amended Warabandi was in force at 6-00 p.m. On 22nd October, 1972 as is alleged. In fact document Exh. D. J. Which is a report made by the Zilladar on 24th October, 1972 confirms that the amended Warabandi, which was notified to the share-- holders of the Moga on 19th October, 1972, was to take effect on Monday, 23rd October, 1972. The learned counsel for the appellants tried to press in service document Exh. D. L. a statement allegedly given by Hayat P. W. 11, but this document was neither put to Hayat P. W. 11 in cross- examination nor otherwise proved to have been written by him and, therefore, the same cannot be looked into. From this collective appraisal of various facts, it is clear that the defence plea is not supported by any circumstance on the record. In cross-examination, Hayat P. W. II admitted that he had irrigated his land at the tail of the outlet on the night between 22nd and 23rd October, 1972 and again later at 6-24 p.m. Till 8-07 p.m. On 23rd October, 1972. It was suggested that this proved the defence plea, but actually the earlier turn alluded to by Hayat P. W. 11 relates to the turn of water which he had between 10-47 p.m., on 22nd October, 1972 and 12-40 a.m. On 23rd October, 1972 as shown at Serial No. 46 in amended Warabandi Exh. P. T./2-4. Looking at the case from all angles, the learned Additional Sessions Judge was right in coming to the conclusion which he did, namely, that the defence plea as~ urged by the appellants was not proved.
16. This brings us to the case of the prosecution. As held by us already in para 15 above that the amended Warabandi was to be implemented on 23October, 1972 at 6-00 p.m. This also was the finding arrived at by the learned Additional Sessions Judge in para. 29 of the judgment. However, in para. 40 of the judgment, the learned trial Judge held that since the occurrence took place at 6-00 a.m., the turn of water of the Forest Department was from 6-00 a.m. To 6-24 a. m. And since both the complainant and the appellant party did not have their turns during this period, the doctrine of free fight came into play. This seems to be rather an unusual deduction. It reminds us of the observation of Harrison, J. In Ahmad Sher v. Emperor (AIR 1931 Lah. 513 that when Courts cannot decide on the evidence which side or which individual began the attack, the difficulty is avoided by holding that there is a free fight.
17. This brings us to the question what is a free fight. But in dealing with this matter, it will be also appropriate to discuss in the same context what is a sudden fight. The learned Sessions Judge has described the incident as a free fight. There is a word of a difference between a sudden fight and a free fight, in the context in which these two terms are used in cases relating to homicide. Sudden fight is that which generally arises out of a chance encounter, squabble, verbal dual, quarrel, where passions having been ignited, the slightest blow or provocation results into a fight and the opposing parties assault and injure each other, with or without weapons, causing the death of one or more, on either side. The basic feature of a sudden fight is the initial absence of premeditation tord rd cause death or injuries due to the absence of time for reflection. Where culpable homicide results in such a sudden fight and the offender is not guilty of premeditation of having taken undue advantage or having acted in a cruel or unusual manner, the case is covered by Exception IV to section 300 of the Pakistan Penal Code and the culpable homicide is not murder. The term 'sudden fight', as used in cases relating to homicide, applies to such sudden fights covered by Exception IV to section 300 of the Pakistan Penal Code. However, a free fight, as that expression is generally understood in homicide cases, is one where two opposing parties, with preparation and design to meet force with force or to fight, go out to meet force with force or to fight and a pitched battle results. A number of variable situations arise in such cases. If the intention of both the sides in a free fight is not to commit murder but to assert or defend their respective real or supposed rights or claims, reasonably believing the same to be available and, if obstructed or attacked by the other.
To meet force with force to achieve their object and, in prosecution thereof, have a trial of strength, resulting in the death of or injuries to one or more persons on either side, one cannot say that all the members of the party arrayed as accused in the case, just because they went armed in full expectation of a conflict, shared the common intention to commit murder or in prosecution of their common object caused such death. The question who attacks or who defends is immaterial. No right of private defence arises in such a case and each member of the party responsible for his own individual act, on the principle that each person is presumed to intend the ordinary and natural consequence of his action. Syed Ali Bepari v. Nibaran Mallah (PLD 1962 SC 502) is a case in instance. But if the intention or common object of both the sides is to commit murder or cause injuries to the member of the opposite side and a free fight results, all the members arrayed as accused are liable for the said murder or injuries, and section 34 or 149, P. P. C. May become applicable, as the case may be, for persons who are aggressors and united by intention or design to commit murder or cause injuries must bear the consequences that flow out of their united action. Dost Ali v. Province of West Pakistan (PLD 1958 Kar. 549) is a case of this nature, In this case both the sides had attacked and injured each other in a free fight. The object of one group was to use the disputed piece of land as a "dera" and the object of the other was to stop them from doing so. The Sessions Judge convicted members of both the groups in cross---cases before him who were found to be participants, holding them as aggressors and sentencing them to various terms of imprisonment after applying section 149, P. P. C. The High Court, in cross-appeals filed by both the, sets of convicted accused, held that both the sides had ample time to have recourse to the protection of the public authorities, that neither set of appellants had the right of private defence and that members of both the groups were in the same class and equally responsible for the acts of the assembly. Apart from reducing the sentences of a few persons, both the appeals were dismissed. But where a group of persons invade another group of persons to establish their right or claim by force to what is peacefully being held or enjoyed by the latter and the latter group come forward to resist or vacate the aggression with force, and during the pitched battle that results, the aggressors cause death of some of the members of the group who have come forward to defend their right or claim, it is not a case of free fight. In this case, notwithstanding the pitched fight, the members of the invading group are pure aggressors and the group defending their right or clam have every right to resist and vacate aggression with force, subject to the limitations contained in sections 100 and 103 of the Pakistan Penal Code. State v. Kartar Singh (AIR 1958 All. 90), Lakshman v. Lakshman (AIR 1964 Mad. 418and Muhammad Rafiq v. Government of Azad Jammu & Kushmir (PLD 1975 Azad J & K 1are some of the cases which fall in this category.
18. From the above, it is, therefore, clear that one of the basic ingredients of a free fight is that both the sides from the start intend to and prepare themselves to fight, before going out to and actually having their pitched battle. In this background, we have to examine from the evidence on record whether the finding of the learned Additional Sessions Judge that the incident in question was a free fight is borne out by the evidence on the record and circumstances of the case. According to the old warabandi, the Forest Department had their turn from 6-00 a.m. To 6-24 a.m. On 23rd October, 1972 followed by Noor Muhammad etc. From 6-24 a.m. To 8-07 a.m. Noor Muhammad is the father of Said Ahmad deceased and Hayat P. W. 11: There is nothing in the evidence to disclose that the Forest Department took their turn, which obviously means that Noor 'Muhammad etc. Could also take the turn of the Forest Department from 6 a.m. Right through till 8-07 a.m. What actually appears to have happened is that Mamoora and others, appellants, who bad their turn of water according to the old warabandi between 4-49 p.m. And 9-03 p.m. On Monday, very likely thought that their turn started the same day from 4-49 a.m. To 9-03 a.m. Instead of from 4-49 a.m.
To 9.03 a.m. On Tuesday, 24th October, 1972. This misunderstanding appears to have occurred due to the long time that elapsed between the date when the amended warabandi was first sanctioned by the Canal Authorities in March, 1972, to the date when it was announced on 19th October, 1972, that it would be enforced on 23rd October, 1972. The appellant Mamoora and his group, being under the wrong impression that their turn started on Monday morning at 4-9 a.m. w.-re there at the Moga taking their turn of water, when the complainant party, who had the option of taking the Forest Department's turn at 6 a. m., in case they were not present to take their water, and of right had their own turn starting from 6-24 a.m., obviously found their water blocked by the appellant Mamoora and others. Whether the occurrence took place exactly at 6 a.m., as alleged, or at about 6-24 a m., is not material, but the fact remains that it was near this time. The evidence of the eye--witnesses is clear that the complainant party did argue with the appellant group that it was their turn of water and that Mamoora appellant and others should desist from preventing the flow of water to their land. [There is nothing on the record to suggest that both the sides had by then armed themselves in readiness for an attack on each other. Rather, it appears that during the arguments and bickering, the supporters of both Mamoora appellant and Hayat, on the one side, and Dosa P. W. On the other, who bad their dharis 11/2 to 2 squares away from the spot, came with whatever weapons they could pick up and that a sudden fight arose out or the sudden quarrel, in which members of both the parties inflicted injuries on each other. We are of the view that the case is no one of free fight as we do not think that both the parties after pre --concert came to the spot with the primary intention or motive to measure their strength and in course thereof inflicted injuries on each other. The fact that Muhammad Amin and Muhammad Ismail appellants and Muhammad Hayat P. W. 11, each had a gun, and Said Ahmad deceased sustained pellet wounds on his right ankle and Nawaz accused sustained pellet injuries on tile front side of his right and left thigh, show that the intention of the parties was not to kill each other. Had it been a case of free tight, the guns and other weapons on either side would have been used more effectively. We, therefore, disagree with the view that the case is one of free fight and, rather, hold that the incident is one a sudden fight in the heat of passion upon a sudden quarrel.
19. So far as the medical evidence is concerned, it assumes importance in determining the culpability of each of the appellants. The fact that it corroborates the injuries inflicted by each of the appellants, as given by the prosecution witnesses, cannot be denied. The analysts of this evidence made by the learned Additional Sessions Judge is correct. The same has not been adversely commented upon by the learned counsel for the appellants. We, therefore, do not disprove the view taken by the learned Additional Sessions Juoge in respect of this evidence.
20. In view of the findings given by us in para. 18 above the conviction of all the appellants, as found by the learned Additional Sessions Judge, is thereby maintained, except the conviction of Nawaz Mamoora and Aslam under section 302, P. P. C., which is altered to that under section 304-1, P. P. C.
From the committal and trial Court records, it appears that ail appellants were in custody as undertrial prisoners from 27th and 30th October, 1972, when they were arrested, up to 18th December, 1975, when judgment in their case was announced by the learned Additional Sessions Judge. It was not till 23December, 1975 that Amin, Talib and Ismail, appellants, were released on bail by the learned Sessions Judge under section 426 (2-A), Cr. P. C. Later, they were granted bail by the High Court on 14th January, 1976 under section 426 (i), Cr. P. C. Mamma appellant was granted bail by the High Court on 30June, 1976. Each appellant has, therefore, spent over three years in jail as an undertrial prisoner apart from some period as a convict. In these circumstances, the sentence of each of the appellants is altered as follows:-
(a) Mamoora, Nawaz and Aslam appellants under sections 304-1/149, P. P. C. To seven years' rigorous imprisonment and compensation of Rs. 1,000 each in default of payment of which to suffer further six months rigorous imprisonment each. Compensation, if recovered, shall be paid to the heirs of Said Ahmad deceased;
(b) Mamma appellant under section 326, P. P. C. Ito one year's rigorous imprisonment and a fine of Rs. 1,000 in default of payment of which to suffer further three months' rigorous imprisonment;
(c) Amin appellant under section 324, P. P. C. To sentence already undergone;
(d) Talib appellant under section 324, P. P. C. To sentence already undergone;
(e) Muhammad Ismail appellant under section 323, P. P. .C . To sentence already undergone ;
(f) Mamoora appellant under section 323, P. P. C. On two counts to sentence already under gone on each count;
(g) Nawaz appellant under section 323, P. P. C. On three counts to sentence already undergone one each count; and
(h) Aslam appellant under section 323, P. P. C. To sentence already undergone ; The sentences awarded to Mamoora, Nawaz and Aslam appellants under the different sections and on separate counts shall run concurrently.
There being no merit in the revision petition filed by Dost Muhammad, the same is dismissed.
21. In view of the findings given above, Amin, Talib and Muhammad Ismail appellants, who are already on bail shall not be taken into custody in this case, unless they are wanted in some other case. Their bail bonds stand discharged. Mamma alias Mamman shall be taken in--to custody to serve out his balance sentence.