MUHAMMAD AFZAL ZULLAH, J.-Judgment dated 10-3-1976 of the Lahore High Court partly allowing the convicts appeal in a murder case has been brought under challenge in these appeals. Special leave was granted on three petitions, one filed by Khan Bahadur, convict, one by Pervez, complainant and the other by the State.
2. Regarding the leave to the convict, the point noted is whether his conviction was "consistent with the principles of safe administration of criminal justice". Leave was granted in the other two petitions to examine the correctness of the reduction of sentence of death awarded to Khan Bahadur, appellant by the High Court to life imprisonment and acquittal of Ali Aksar, accused- respondent, in the charge of murder under section 302, P. P. C. By application of section 34, P. P. C.
3. The prosecution case as contained in the deposition of Pervez, com--plainant, who is also an injured eye-witness was that on the day of occurrence which took-place on 7-10-1973 at about 6- 30 p.m. He was with his brother Firdaus, the deceased, in this case. At that time, the deceased was selling sugarcane pieces called (Ganderies). In the meanwhile Khan Bahadur and Dawood accused who were armed with chhuri as also Ali Bahadur and Ali Aksar accused armed with a stick and hockey respectively, came there. Khan Bahadur uttered a lalkara. Firdaus tried to escape but Khan Bahadur and Dawood gave him a chhuri blow each on the back. When Firdaus fell down, Khan Bahadur gave another chhuri blow near his ear. Ali Aksar and Ali Bahadur accused also gave stick and hockey blows to the fallen victim. On the intervention of Pervez, he was hit by Ali Aksar with his hockey. Ayub, P. W. And Qayyum (an abandoned witness) saw the occurrences. Firdaus, who was then in unconscious condition, was taken on a cot to the Police Station, but he died on the way. Pervez, however, lodged the F. I. R. At the nearby Police Station at 6-45 p.m.
4. It is strange that although Pervez had given the details of motive in the F. I. R., be, it appears, deliberately omitted to make any statement in that behalf at the trial. Instead Ami. Khan, P. W., the father of the deceased in his deposition stated that he and Khan Bahadur, appellant, were co- tenants of Sardar Bahadur Khan and Muhammad Aslam, though on different pieces of land. They had only one room to keep their agricultural tools with demarcation therein for both the sides.
About eight or nine months prior to the occurrence both fell off on the dispute as to whether Khan Bahadur could keep his tobacco leaves on the side of Amir Khan. They had then exchanged hot words and had also grappled with each other. Manzoor Ilahi another prosecution witnesses deposed about an immediate cause of the occurrence, namely that a couple of hours before the main occurrence there was an incident in which Khan Bahadur, appellant and Firdaus, deceased had abused each other, because Firdaus when coming on a bicycle had hit Khan Bahadur. He also deposed that Khan Bahadur had then suffered some injuries on his person. It may be mentioned here that the name of this witness, viz. Manzoor Ilahi was not mentioned by the complainant in the F. I. R. As having seen this earlier incident.
5. All the four accused in the case are brothers inter se ; Khan Bahadur, aged 51, being the eldest.
On the other hand, as already noted, the main eye-witness, Pervez, is the real brother of the deceased. The other P. W. Ayub is also closely related to him being a first cousin and brother-in- law. Both of them supported the prosecution case in so far as the ocular account goes. Prosecution also led evidence regarding recovery of a chhuri each from Khan Bahadur and Dawood accused.
The former was stated to be blood-stained.
6. Dawood and Ali Bahadur, accused, denied participation and attributed false implication on account of enmity. Khan Bahadur (appellant) and Ali Aksar (accused-respondent) accepted their presence with an elaborate counterversion raising plea of self-defence. It is contained in this detailed statement made by Khan Bahadur under section 342, Cr. P. C. It read as follows: -- "I used to cultivate the land of Sardar Bahadur Khan about one month prior to the occurrence.
Sardar Bahadur Khan had a bargain for selling tobacco at the rate of Rs. 41 per maund to Maman Shahinchi. I did not agree because the rate of tobacco was Rs. 45 per maund at that time. Sardar insisted that as he had already struck a bargain over Shahinchi Maman Khan as such I should not object and agree to his proposal. I told him that I am a poor man and not ready to agree to his proposal pertaining to my share. I also restrained Maman Shahinchi from the said bargain and told him not to give my share of price to Sardar Bahadur. I also sold my share in tobacco to Maman Shahinchi at the rate of Rs. 45 per maund. Sardar Bahadur Khan got annoyed and told me that he would avenge his insult. Sardar Bahadur Khan had told me that I should vacate his lands after cutting maize crop. I cut the maize crop took my share and left the share of Sardar Bahadur Khan in the fields and did not send it to his house as his customary, Sardar Bahadur Khan got annoyed on account of this also.
On the day of occurrence after iftar I was going to the Bus Stand to enquire of the arrival of my brother Ali Aksar who had gone to Rawalpindi. As he did not turn-up. As the bus had not arrived I came towards the Chowk. Firdaus deceased came there abusing me. He had a danda in his hand.
He told me that as I have insulted Sardar Bahadur Khan as such I (he has) have come to avenge his insult at his instance. He struck a danda blow to me, I retreat and pelted stones at him. The deceased overpowered in and threw me on the ground. He placed danda on my neck and started pressing it: In the meantime my brother Ali Aksar arrived there. He had a stick in his hand and he inflicted blows with stick on the deceased. The grip of the deceased on my neck loosened a bit and I pulled. Up a knife from my pocket and inflicted two blows with it to the deceased in order to save my life. I acted in the right of my self-defence. Many people had gathered there as the hotels were opened. People dragged the deceased away from me. My co-accused Dawood and Ali Bahadur were not present at that time."
". . . . . . I tender in evidence pedigree tables Exh. D. D., Exh. D. E. And copy of record of rights Exh. D. F. I have produced the copies of pedigree tables to prove the relationship between Muhammad Amin P. W. And Muhammad Afzal Khan son-in-law of Muhammad Aslam Khan. Muhammad Aslam Khan is an uncle of Sardar Bahadur Khan. The ocular P. Ws. Were not present and have deposed against me at the instance of Sardar Bahadur Khan. I produced no further defence evidence."
Except for the documents already mentioned no other evidence was produced in defence.
7. The learned trial Court disbelieved the recovery from Dawood and rejected the depositions of the eye-.Witnesses against him as false with a finding that Dawood accused had been falsely implicated in the case on account of his blood relationship with the rest of the accused. It is very necessary to note here that this acquittal is not under challenge before us nor has other--wise been assailed. But it needs to be mentioned that the learned Judges in the High Court, it appears, also appraised the trial Court judgment in so far as the nature of the acquittal of Dawood is concerned. They were under correct impression that it was, in reality on a benefit of doubt (and should have been so).
8. Khan Bahadur and Ali Aksar were found guilty of murder by apple--cation of section 34, P. P. C.
Both were awarded death penalty under this charge. They along with Ali Bahadur accused were also convicted under section 333/34, P. P. C. For causing injuries to Pervez, P. W. And were awarded one month's R.1. Each. Fine was also imposed and so was the compensation awarded.
9. On appeal and reference to the High Court, the learned Judges of the Division Bench relying on the eyewitness account given by the two eye--witnesses and the recovery of a chhuri from Khan Bahadur appellant maintained his conviction under section 302, P. P. C. But reduced the sentence to imprisonment for life, because as they thought his conduct in taking the law into his hands, was in reality a retaliation which was provoked by the deceased because "Khan Bahadur appellant bad received injuries at the hands of the deceased a few hours before the occurrence". They acquitted Ali Aksar in so far as the charge of murder is concerned, because it appeared to them that "Khan Bahadur appellant pulled out a chhuri from his pocket at the time of occurrence. It can, therefore- be said that Ali Aksar appellant had no common intention with Khan Bahadur appellant to. Murder the deceased. Conviction and sentence of both of them, under section-323, P.P.C. For causing simple hurt, were maintained. As already noted, three petitions for leave to appeal having been allowed, the matter under appeal for consideration is whether Khan Bahadur, appellant, has rightly been convicted, if so, whether his sentence should be enhanced and whether Ali Aksar, respondent, should have been convicted and sentenced under section 302, P. P. C. Read with sec--tion 34, P. P.
C.
10. Learned counsel for Khan Bahadur, appellant (and Ali Aksar, `respondent) had laid considerable stress on Pervez, P. W. Having omitted from his deposition that part of his F. I. R. Which related to the motive latent or immediate. According to him, this was done in order to avoid his being exposed in so far as the real cause of the occurrence is concerned ; and if he would have been exposed, the value of his deposition as an injured eye-witness would have been reduced. There is considerable force in this argument. The counter-motive alleged by Khan Bahadur in his statement has almost in its entirety been-admitted in cross-examination by the father of the deceased namely, Amir Khan, P. W. In addition to the motive regarding the "dispute about placing tobacco leaves" in which, according to him, Khan Bahadur was at fault and he the witness "felt insulted over his (accused's) attitudes" be--cause, "he had abused and grappled" with him, he deposed that Sardar Bahadur, their common landlord "had a bargain for selling tobacco leaves at the rate of Rs. 40 per maund with Mamad Shahinchi Khan. Khan Bahadur objected to the said bargain and contended that he would not surrender his share of tobacco leaves as its rate is not less than Rs. 45 per maund": He also accepted that "after getting the main crop and taking his share, Khan Bahadur left the cultivation" while obviously the witness and his sons continued as tenant3 of Sardar Bahadur. He also admitted that Khan Bahadur had not delivered the produce of the maize crop at Sardar Bahadur's house but had handed it over to him (the witness), as Kardar of Sardar Bahadur. He however despite the aforementioned admissions, denied the suggestion that Firdaus, deceased, had feelings of annoyance ' (similar as the witness had) regarding insulting behaviour of Khan Bahadur towards the witness (Amir Khan father of the deceased) as also to Sardar Bahadur Khan their landlord ; and that for the said reasons of annoyance the deceased had attacked Khan Bahadur.
11. In the circumstances, as analysed above, no further reasoning is necessary to come to a conclusion, that even if there was some dispute between Amir Khan and Khan Bahadur on the placing of the tobacco leaves the real rancour between the two sides was what Khan Bahadur had done to Amir Khan by insulting him and to Sardar Bahadur Khan, the landlord by giving him the a front, notwithstanding his comparatively low position. In such a situation, Firdaus, his brother and father the continuing tenants of Sardar Bahadur Khan would, on their own account, as also, on account of their landlord for whom they were forcefully acting as Kardars, feel aggrieved and annoyed and they or any one of them was likely to take law into his or their hands.
It is in the foregoing background that the alleged bicycle incident, which is said to have taken place few hours before the main occurrence has to be viewed. The contention of the learned counsel for defence is that there was no separate incident involving any cycle and that in reality Khan Bahadur suffered the injuries he had on his person, during the main occurrence and in the manner as explained in his statement under section 342, Cr. P. C. He has advanced several arguments including those relating to absence of certain recoveries. We need not examine all of them. It suffices to observe that Pervez, the star prosecution witness, failed to support the prosecution case in this behalf as set up by him in the F. I. R. With no explanation whatsoever either offered at the trial or now during the hearing of this matter. Manzoor Ilahi, who was instead examined, does not inspire confidence. He is a controversial witness. Besides being an inimical witness and interested person because of a dispute between his father and uncle of the accused over the possession of a house, his entry as a supporting witness was obviously an afterthought.
Although he reached the police station according to one version soon after the arrival of Pervez with the cot of the deceased and according to other even earlier thereto and remained there for some time his statement under section 161, Cr. P. C. In connection with the alleged earlier incident was not recorded then. Not only this, his name is not mentioned in the F.I. R. As having witnessed the said incident. Moreover, it appears that for the first time, the police thought of recording his statement under section 161, Cr. P. C. In this behalf on the next day and that too at the time of the recovery of the blood-stained earth. His deposition to say the least should have been rejected out of consideration as undependable. The conclusion reached thus is that there is no evidence left with regard to there being an earlier incident in which according to the prosecution, Khan Bahadur suffered injuries.
12. The foregoing discussion leads to the next question as to how Khan Bahadur received the injuries and what is the effect of this circum--stance. It is true that the prosecution version in this behalf having been rejected the only other version before the Court is the one given by the defence. But it would not be unlawful to reject that version also and to rely on high probabilities also, as they emerge out of the evidence in the case.
13. The discussion on the question of motive leads us to believe that it was not unlikely that Firdaus, deceased, would have picked up a fight with Khan Bahadur. As to whether he was carrying a danda and Khan Bahadur was carrying a chhuri, remain moot points. On the one hand, it seems logical to assume that if the deceased was carrying a danda, he might have, before pressing it on the clevical/neck of Khan Bahadur, used it as lathi. On the other hand, under the assumption we have already made about motive. Firdaus might have initiated the fight with Khan Bahadur, then the latter would have most certainly, at least in order to defend himself, caused some injuries on the front part of the person of Firdaus if he was carrying openly a chhuri. But it was not so. The learned Judges in the High Court, it seems, were right in taking the view that Khan Bahadur was not carrying a chhuri openly in hands when the occurrence started. The question would still remain whether the chhuri allegedly recovered from Khan Bahadur, the diagrammatic re production of which we have seen on the record, could be concealed by him in his pocket, as visualized by the High Court. This with respect, in our view, was not possible. The chhuri would be too big to so concealed. Therefore, there is no serious impediment in accepting the defence version that Khan Bahadur, appellant had a knife and not the chhuri, produced as evidence at the trial. We have otherwise also scrutinized the deposition of Muhammad Amin P. W., who is the solitary public witness regarding the recovery of chhuri. It suffers from similar infirmities as were pointed out by the trial Court, regarding Muhammad Ashraf. The recovery witness of chhuri from Dawood, with the difference that Muhammad Ashraf's connection with the prosecution side was admitted, while Muhammad Amin tried to conceal it, but did not succeed. Otherwise too, he in one of his statements under oath gave two different places of the recovery of the so-called chhuri. Thus all the essential features of the case set up by Khan Bahadur, get substantial support from the prosecution evidence itself.
14. The next question arises whether even if some of the main features of Khan Bahadur's statement are accepted, but while excluding the exaggera--tions and embroidery, can it be safely held that he acted in exercise of private defence and that it was not a case of sudden fight, which would under Exception IV to section 300, P. P. C.
15. As has been observed in a number of cases, in the circumstances similar to those involved in the controversy before us, the parties adopt an adverse attitude and they do not come out with entire truth. But it has also been held and declared as law that the incompleteness of the story from both the sides would not deter the Courts of Law to determine the correct position for resolving the controversy involved in the case."
16. After hearing all the learned counsel in this case and keeping in view the high probabilities, we have formed the opinion that both the parties, on account of various reasons earlier discussed in connection with the motive, were not only at loggerheads with each other, but also it seems most probable, were under high tempers. At the time of occurrence, which was nearly the Iftari time during Ramazan two persons from each side, namely, Firdaus and Pervez, brothers inter se and Khan Bahadu and Ali Aksar, accused, brothers inter se, met by chance in a Bazar at on open place.
Firdaus who, according to Pervez, was at that time carrying the iron instruments for scrapping and cutting sugarcane so as to make them into pieces (Ganderies) had a formidable weapon in his hands. Even if the danda alleged from Khan Bahadur's side is excluded as an exaggeration, the possibility that Firdaus was carrying some instrument like the one mentioned by Pervez, his own brother, cannot be excluded with any certainty. It is not necessary to go into the question whether Pervez was carrying anything, because for the purpose of present discussion, the fact that Firdaus had something, which could cause grievous hurt or death is more important in the context. And Ali Aksar accused-respondent according to Pervez, was carrying a hockey stick. It is not unlikely. He might be carrying one or other stick-like article with which some of the injury found on the body of Firdaus could have been caused. The type of the injuries found on the person of Khan Bahadur, appellant, could be caused in a scuffle between him and Firdaus or between the four of them, two on each side with dandas as also with the instruments, which, as noted earlier, Firdaus had with him. When both the sides came in contact with each other something sparked. Both of them have concealed it. It must have led to a sudden quarrel and then a sudden fight, wherein both the parties used whatever was available to them. Obviously there was no premeditation. The encounter was by chance. As Khan Bahadur appellant had a knife with him, at that time in a fight like the one afore-visualized, it was not an unusual act on his behalf to use his knife. He inflicted two blows. If it is assumed that the fight was mutual after the grappling then the fact that both the blows were suffered by Firdaus on his back would not make any difference. The story that he was running away when he suffered the two fatal blows on his back is like the one that he suffered a chhuri blow on or near the ear at the hands of Khan Bahadur (which has been belied by the medical evidence because there is no such injury), was a concoction in the nature of an adversity but false version. The only remaining question in the context of ' fight which needs to be examined is whether Khan Bahadur took undue advantage and acted in a cruel manner while inflicting two blows with a knife. On the assumption that Firdaus was carrying formidable weapon, which could be used as weapon of offence such an assumption cannot be made in this case. We hold that it is fully covered by Exception IV to section 300, P. P. C. Not only that both the parties would be responsible for their acts and would be found guilty for the offences committed during the fight but on each party's side also each individual person, would be responsible for his own act.
17. We accordingly allow the appeal (Cr. A. 181 of 1976) of Khan Bahadur partly, set aside his conviction and sentence under section 302, P. P. C. Alter the same to section 304, Part I, P. P. C. And sentence him to eight years' R. I., and a fine of Rs. 20,000, which when recovered shall be paid as compensation to the heirs of the deceased in addition to Rs. 1,500 awarded as compensation under section 544-A, Cr. P. C. In default of payment of fine, he shall suffer further R. I. For four years, and in default regarding compensation he shall suffer further 6 months' R. I. In view of our findings on the nature of offence, it is not necessary to convict him under section 323, P. P. C. His conviction and sentence in that behalf is set aside.
18. Ali Aksar, who himself caused simple hurt with a blunt weapon to his adversary has rightly been convicted and sentenced under section 323, P. P. C. As already observed, he is not vicariously liable by applica--tion of section 34, P. P. C. For homicide. We accordingly dismiss the two appeals filed by the prosecution side, one by the complainant (Cr. A. 180 of 1976) and the other by the State (Cr.
A. 182 of 1976).