SHAFI-UR-REHMAN, J.-Leave to appeal was granted against an order of acquittal of the two respondents recorded by the Lahore High Court on 9-5-1975 to examine the following contentions of the learned counsel for the appellant :-
(1) That the High Court was entirely wrong to discard the evidence of the two injured eye-witnesses which found strong corroboration in the medical evidence, the evidence relating to recovery of blood-stained spear and blood-stained earth from the Nakka;
(2) that there were only two accused in the case and the fact that the injuries caused to the deceased and the prosecution witnesses included stab wounds and fire arm injuries clearly showed that the two deceased and P. Ws. Were attacked by the assailants ; and
(3) that the close blood relationship of the parties excludes the possibility of false implication in a capital case.
2. Imam Din was the grandfather of the two deceased Anwar and Hakam Ali and of the two injured Muhammad Ali (P. W. 15) and Ghulam Rasul (P. W. 16) and of the two respondents--accused Manzoor and Fateh Ali. Their land was located in Chak No. 195/R.B. At a distance of five miles from the Police Station Chak Jhumra, District Faisalabad. For the purposes of cultivation, they had separated it. On the 5th of November, 1973, the turn of water of Hakam Ali deceased and Manzoor accused and others and from 1-30 p. m. To 3-01 p. m. And thereafter it was the turn of Feroze Din, the father of complainant Muhammad Ali, P. W.
11. At the exact hour, Muhammad Ali P. W. 15, Ghulam Rasul P. W. 16 and Anwar deceased, the three brothers went to take their turn of water.
Manzoor wanted to avail of additional four minutes, which, according to him, had been on an earlier occasion utilized by the complainant party. Manzoor respondent, however, claimed that the complainant party wanted to divert the water even before the time of their turn had been reached.
This led to an altercation followed by a fight. Manzoor allegedly fired the first shot hitting Ghulam Rasul (P. W. 16) in the neck and his uncle Fateh Ali respondent gave barchhi blows to Anwar, Muhammad Ali and Ghulam Rasul Hakam Ali deceased and his brother Nawab C. W. 1 were also attracted to the venue of fight and Hakam Ali received a spear blow of Fatch Ali as they were not on speaking terms over a dispute over womenfolk. The complainant Muhammad Ali (P. W. 15) succeeded in snatching the spar from Fateh Ali and started giving blows with it to Manzoor and gave a number of them when it broke down. Manzoor tried to fire more shots but he could not from the pistol, which he had. The respondents went away from the scene. The injured were removed to the village. Hakam Ali and other injured were then moved to hospital on a bullock cart. The distance covered was about 17 miles. Hakam also expired in the hospital. The next morning at 5 a. m.Muhammad Ali reached the Police Station Chak Jhumra on train and lodged a report about the occurrence.
3. Manzoor Ali, Sub-Inspector (P. W. 17), conducted the investigation of the case and made the recoveries from the spot. Both the respondents were arrested on 11th of November, 1972. Manzoor respondent led to his house and got recovered the revolver Exh. P. 7 with an empty and two live bullets in it. The broken spear with blood-stained blade had already been produced at the spot.
4. Hakam Ali had two stab-wounds on his person ; one on the front left side of the chest and the other on the back of right chest. The dead body of Anwar had two incised wounds both on the chest. Ghulam Rasul had a fire-arm wound on the front of the neck and two incised wounds on his person. Muhammad Ali had one incised wound on the upper arm. Manzoor accused-respondent had five injuries on his head one of which appeared to be a lacerated wound and he had received incised wound on his shoulder. Fateh Ali respondent denied his presence at the spot or his participation in the occurrence but Manzoor stated about the occurrence in the following words :- "Fateh Ali accused was not present. Ghulam Rasul P. W. Was also not present. Muhammad Ali, P. W.
And Muhammad Anwar deceased, however, arrived at the nakka and informed me that they were going to divert the flow of water towards their land. I told them that I had yet to take the supply of water for six minutes more saying that my turn to take the supply of water had not finished. But they did not listen to me."
He explained his injuries as follows :- "I received the injuries when Muhammad Ali P. W. And Muhammad Anwar deceased attacked me at the nakka when an altercation took place over the turn of water."
5. The learned trial Court held that the occurrence had' taken place at the Nakka and that a sudden quarrel or dispute had taken place over the turn' of water. However, the Court concluded that as the deceased and the witnesses were unarmed and Manzoor and Fateh Ali had formidable weapons, which bad been used by Fateh Ali most cruelly, he was not entitled to the benefit of Exception IV. At the same time, it was not a case where section 34, P. P. C. Could be applied.
Manzoor was held guilty, under section 307, P. P. C. For murderous assault upon Ghulam Rasul P. W.
And was sentenced to suffer seven years' R. I. And to pay a fine of Rs. 500 or in default to undergo one year's R. I. Fateh Ali was held guilty under section 302, P. P. C. On two counts for causing the deaths of Muhammad Anwar and Hakam Ali and he was convicted accordingly. He was sentenced to death subject to confirmation by the High Court. He was also sentenced to pay a fine of Rs. 1,000 or in default to undergo two years' R. I. In addition, he was held guilty under section 304, P. P. C. On two counts for having caused simple injuries to Ghulam Rasul and Muhammad Ali, P. Ws. With a sharp-edged weapon and was sentenced to suffer six months' R. I. On each count.
6. When the case came up in the High Court for confirmation of death sentence and on appeal, the learned Judges observed that "although Manzoor Ahmad appellant has admitted his presence on the spot and receipt of injuries on his person at the nakka yet first we have to see whether the prosecution has proved its case against the appellants beyond reasonable doubt." The learned Judges thereafter found a number of infirmities in the prosecution case and considered it unsafe to rely on it and without putting it in juxtaposi--tion or considering the version of accused Manzoor they allowed the benefit of doubt to the respondents and acquitted them.
7. The learned counsel for the appellant has contended that in view of the relationship between the parties and absence of any enmity, there was no likelihood of false implication or enlargement of the accusation against the persons not concerned with the occurrence. Similarly the injuries on the person of the complainant party and Hakam Ali speak for themselves and admit of no controversy.
The persons who inflicted them acted cruelly and had the advantage of weapons over the complainant side if at all the com--plainant caused all the injuries that were found on the person of Manzoor. From the other side, Manzoor alone was injured and none else. According to the learned counsel, the doubts expressed by the learned Judges in the High Court were more conjectural than real and could be demonstrated to be not tenable. For example, in a fight, it is possible that a person wielding even a formidable weapon like a spear or a revolver or a gun, may be disarmed. It is also possible that the revolver may have misfired or/and may have not fired more shots thereby enabling the complainant to approach Manzoor with a view to disarm or apprehend him. After Fateh Ali bad been disarmed there was no point in attacking him for the object of the complainant party was not to take revenge but to ensure their own safety which prompted them to avoid harm likely from Manzoor who was even after Fateb Ali had been disarmed, effectively armed. There was indeed a delay in lodging the F. I. R. But it was not inordinate considering the means of communication readily available and actually availed of. It has also been pointed out by the learned counsel that at Chak Jhumra there is a small dispensary, which could not meet the requirements of the complainant as serious injuries had been received.
8. In the background of the facts stated, it is clear that it was a case of sudden fight. The trial Court had held it to be so. The learned Judges in the High Court were aware of the admitted presence of Manzoor respondent and his participation in the fight. All the same the prosecution case was analysed and tested to stand by itself beyond reasonable doubt irrespective of the facts established or admitted. The facts established were that two persons had been put to death, two others had been injured on the complainant side and Manzoor had received the injuries in the same occurrence. The parties were related and had no previous background of enmity or at least no Court has held that there was any enmity of which serious notice could be taken. In a case like this as in the case of free fight or absence of direct evidence, the Court has yet an onerous duty to perform. As pointed out in Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 592)
" . . . In a case of this type the parties do not generally come out with the true story. It is a normal incident of an `adversary proceed--ing' to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing inferences that properly flow from the evidence and circum--stances . . . . ."
In another case State v. Manzoor Ahmad (PLD 1966 SC 664) this Court held as follows: - "Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and, if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence t connect anyone with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be the duly of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and the condition of the place where the incident took place, the articles found there, the motive for the crime and the other surrounding circumstances proved."
9. In this case the learned Judges in the High Court failed to undertake; and discharge this very duty. This Court is therefore obliged to review the entire evidence with a view to ascertain the criminal liability, if any, of the respondents.
10. The place where, the time when, and matter over which the occur--rence took place, all establish that it was a sudden affair, without preparation or premeditation from either side. The absence of enmity, or even a dispute over sharing of water, coupled with close and harmonious relationship of the parties confirms this. The injuries received by the complainant's side establish that at least two different types of weapons were used, fire- arm for causing injuries to Ghulam Rasul P. W. And a sharp-edged or a sharp-edged pointed weapon for causing injuries to others. In charging two persons for causing the injuries, the prosecution has not thrown the net wide, or included a number in excess of the minimum. Manzoor, received the injuries and admits his presence. Fateh Ali denied his presence or participation. There is nothing on the record to suggest or prompt a substitution so far as he is concerned. The presence of Manzoor as well as Fateh Ali must be held to be proved beyond reasonable doubt. While Manzoor respondent received repeated blows, he is charged for firing only one shot, injuring Ghulam Rasool. It is alleged by the prosecution that he was the first to fire and attempted more shots but his pistol did not work. The pistol when recovered at his instance was found to be in working order. The two live bullets suffered from no defect and had not been fired. No misfired bullet was found or recovered. If Manzoor was so impulsive as to fire the first shot when there was the least justification for it, he would not have desisted or abstained from firing more shots when directly under attack. It would therefore be reasonable to infer that he received the injuries first and fired the only shot towards the end. As this happened during the course of sudden fight and his act did not amount" to taking an undue advantage or acting in a cruel manner it would fall under section 308, P. P. C. In respect of injury to Ghulam Rasul.
As regards injuries to and the death of Hakam Ali the evidence is con--flicting to an extent that it is not possible to reconcile it. Hakam Ali's cultivation in Killa No. 21 of Square No. 20 received water before Manzoor respondent's and after Manzoor's turn it was the turn of the complainant party. In any dispute between Manzoor and the complainant party, the interest of Hakam Ali remained uneffected. He could not actively take sides for any reason. It is not the case of either side that he took and active part in the fight. The entire narration gives the impression that Nawab C. W. And Hakam Ali happened to be there by chance and he received the, injury because of his presence.
The fact that the F. I. R. Was delayed to a time after Hakam Ali had died would make the recital of pre-existing malice] of Fateh Ali against him somewhat doubtful and an afterthought. It is therefore not possible to reasonably hold any of the respondents responsible for his death.
11. As regards Anwar deceased and the injured Muhammad Ali and Ghulam Rasul, it is clear that they had a direct and immediate interest in the water over which the fight had taken place. The learned Judges have rightly doubted their being completely unarmed at that point of time. As they had to divert the water and to keep the channel clean and the water running to their land all the time they must have had ready access to the usual imple--ments like 'kahi' and the injuries on the person of Manzoor appellant particularly a lacerated wound at the top of the head 1--" x 3/8' skin deep and an old incised wound 1" x 1/4 skin deep alongwith a five inch abrasion mark 1/8--- width at the back of left shoulder and back of the left side of chest will bear out that conclusion: Manzoor bad as many as five injuries on his head. The explanation of their having snatched the spear of Fateh Ali and to have used it does not inspire confidence because it was found in a broken state, tied with a wire, otherwise in two pieces, one hanging by the other, not at all in that state manageable as a weapon of offence. In the situation therefore where there was no trace of previous enmity between the parties and they happened to be so closely related and the quarrel over water was trivial and sudden, the conclusion is inescapable that there was no malice before that' both the sides used such weapons as they carried and that both the sides had, access to weapons. It was held by the Federal Court in Abdul Majid v. Crown (PLD1954FC304) that- "The words 'undue advantage' and `cruel manner' which are used in the fourth exception to section 300 not in any special signification but in their ordinary meaning, are not capable of any precise definition and no such definition has ever been attempted, obviously because whether a person can be said to have taken undue advantage or acted in a cruel manner depends upon the circumstances of each particular case, and no general formula can be evolved which may be applicable to all cases that may arise."
12. On the peculiar facts of this case and the state of evidence on record, notwithstanding the fact that the spear was used by Fateh Ali in causing the injuries to the opponents the facts reasonably found established, make out a case of application of exception IV to section 300 in his case for injuries to Anwar deceased. He is therefore convicted under section 304, Part 1, P. P. C. For the death of Anwar and. Under section 308, P. P. C. For injuries to Muhammad Ali and Ghulam Rasul. On being so convicted he is sentenced to 10 years' R. I. And a fine of Rs. 5,000 payable by way of compensation to the heirs of the deceased Anwar. He is also convicted under section 308, P. P. C.
(on two counts) and sentenced to R. I. For 3 years and a fine of Rs. 2,000 payable as compensation on each count to inured Muhammad Ali and Ghulam Rasul. The sentence awarded to him shall run concurrently. In case fine is not recovered and compensation not paid six months' R. I. To be suffered in default on each count. Manzoor on being convicted under section 308, P. P. C. Is sentenced to 3 years' R. 1 and a fine of Rs. 2,000 payable as compensation to Ghulam Rasul. In default he shall undergo six months' R. I. The benefit of section 382-8, Cr. P. C. Shall be extended to both the convicts. The appeal stands accepted in these terms.