1. SHAH NAWAZ KHAN,J.-Sardara, Elahi Bakhsh, Khuda Bakhsh, Dina, Swala, Sharif and Fateh Muhammad were tried in the Court of Additional Sessions Judge 11, Sahiwal, for the murder of Muhammad Din, deceased, and for voluntarily causing injuries to P. Ws. Bashir Ahmad, Nawab and Faqir Muhammad.
2. At the conclusion of the trial Sardara accused was found guilty of offence punishable under section 302, P. P. C. He was convicted and sentenced to suffer life imprisonment and to pay fine of Rs. 5,000 or in default of payment of fine to suffer further R. I. For three years. It was also directed that the fine, when realised, was to be paid to the heirs of the deceased by way of compensation. Sardara accused was also found guilty of offence punishable under section 452, P. P. C. He was consequently convicted and sentenced to suffer R. I. For 3 years. This order was passed by the learned Additional Sessions Judge, Sahiwal, on 19-7-1973. By the same judgment and order, the other six accused were found guilty of offence punishable under section 148, P. P. C. And each one of them was sentenced to suffer R. I. For one year for that offence. They were also found guilty of offence punishable under section 452/149, P. P. C. And were convicted and sentenced each to undergo R. I. For 3 years. They were also found guilty of offence punishable under section 324/149, P.
3. P. C. And were convicted and sentenced to suffer R. I. For one year. They were further convicted and sentenced each to undergo 6 months' R. I. Under section 323/149, P. P. C. All the sentences were ordered to run concurrently.
4. The allegations against the accused were that Sardara armed with a gun and Elahi Bakhsh carrying a takwa while the other 6 accused having dangs went in the street near the residential Ahata of Elahi Bakhsh etc. In Chak No. 11/11-L, district Sahiwal and demanded that Bashir Ahmad and Faqir Muhammad P. Ws. And Muhammad Din, deceased, should vacate that Ahata When they refused to agree, the accused attacked them and caused injuries to them as a result whereof Muhammad Din died and the other three witnesses suffered injuries. In self-defence, the complainant party also caused injuries to the appellants, namely, Khuda Bakhsh, Dina and Swala.
5. Sardara appellant had allegedly fired with his '12 bore shot gun, which hit the deceased on the abdomen as a result of which he fell down. The occurrence was witnessed by Rehmat Ali, complainant, and Abdul Majid, besides the three injured persons named above. Rehmat Ali then went to the Police Station Chicha--Watni for report.
6. The motive alleged in the F. I. R. Was that one day prior to the day of occurrence, the deceased and Bashir Ahmad P. W. Had purchased the building constructed in that Ahata for Rs. 300 from Abdullah and had taken its possession, but it was not liked by the accused because Allah Bakhsh and Khuda Bakhsh wanted to purchase that Ahata as it was situated opposite to their Ahata, where they were living.
7. A learned Judge of the Lahore High Court after hearing the appeal as well as the revision petition submitted by Rehmat Ali complainant dismissed the revision petition in limine.
8. The appeal of all the convicts-accused was dismissed, and the Court held that from the evidence on record and in the circumstances of the case, the prosecution has proved the guilt of the convicts-appellants beyond reasonable doubt. The High Court held that the defence plea of Sardara that he fired only to rescue his partymen was not acceptable. The High Court observed, "that he did not fire any shot to secure away the complainant party and he was not capable of firing from his gun so as to hit the front portion of the deceased at a time the deceased was fighting with any member of the appellant, party". It was further observed by the High Court that, "the defence version was rightly rejected by the learned trial Judge and I have no reason to dis-- agree with him. It is in evidence that the appellants trespassed into the Ahata in dispute where the occurrence took place and from where the blood--stained earth was recovered".
9. Petition No. 48-R of 1975 was submitted by Sardara and 6 others challenging their convictions and praying for their acquittal. Petition No. 314 was filed by Rehmat Ali, complainant, and it was directed against the revisional order of the High Court refusing to enhance the sentence of Sardara from transportation for life to death. The latter is directed against another revisional order of the High Court of even date refusing to convict respon--dents Nos. 1 to 6 under section 302/149, P. P. C. Of which charge they were cleared by the trial Judge.
10. Incidentally Cr. Petition No. 314 and Cr. Petition No. 357 of 1975 were time-barred. Delay was condoned at the stage of leave granting order as on merits it was contended that the trial Judge had distinguished the case of Sardara from the other accused wholly on artificial and untenable grounds. All the appeals were consequently ordered to be taken up together.
11. Sardara, Elahi Bakhsh and Khuda Bakhsh are inter sebrothers. Dina, Swala and Sharif are their cousins while Fateh Muhammad is their sister's son. Muhammad Din is the deceased person and the three persons namely, Bashir Ahmad P. W. 12, Faqir Muhammad P. W. 13 and Nawab P. W. 15 were injured in the incident. In this incident accused Khuda Bakhsh, Dina and Swala were also injured. It is a broad daylight occurrence. Sardara had fired a shot with a shot-gun Exh. P. 6, which is a licensed shot-gun, and which was recovered. The occurrence, according to the F. I. R. Took place at 10 a. m. While the F. I. R. Was lodged on the same day at 12 noon. Muhammad Din, deceased, expired from gunshot wound on the spot one and a half hours after the occurrence. The post- mortem examination was conducted by Doctor Feroze Khan P. W. 1 on 20-11-1970 on the dead body of the deceased, and he found multiple punctured wounds 1/8' x 1/8' into tissue deep circular with lacerated and burnt margins about 100 in number on the lower part of the front of the abdomen right side and upper part of the right thigh on front and its outer part. There was counter punctured lacerated wounds on the inner side of the wall of the abdomen and thigh and counter punctured wounds in the small intestine mesentery and peritonium. There was blood in the abdominal cavity and pelvis. The organs of the pelvis were also injured. According to the Doctor the injuries were caused by fire-arm and were sufficient to cause death of the deceased in the' ordinary course of nature.
12. The Doctor also found some injuries on Bashir Ahmad P. W. Including an incised wound on the back of the left hand thumb. He found injures on the person of Nawab P. W., two in number, one of which was a lacerated wound and the other a bruise. Faqir Muhammad P. W. Was also injured and the Doctor found two injuries (bruises) on his body. He also examined Khuda Bakhsli, Swala and Dina accused. Khuda Bakhsh had a bruise, which according to X-ray report Exh. P. S./1 was grievous as there was fracture of the lower end of the left radius. Swala accused had two simple abrasions one of which was on the back of his head and the other on his left forearm. Dina accused had a lacerated wound on the back of the right hand index finger. This injury was also grievous and was caused by blunt weapon.
13. The learned trial Judge was of the view that Elahi Bakhsh, Khuda Bakhsh, Dina, Swala, Sharif and Fateh Muhammad had formed themselves into an unlawful assembly and their common object was to oust the deceased and his brothers from the Ahata in dispute. About Sardara, the learned trial Judge was of the view that lie had fired only a single shot and that too when his companions had already reached the spot, and they were being injured by the complainant party. As there was no previous enmity between the parties, he took a lenient view while imposing sentence on Sardara accused.
14. The High Court while hearing the appeal definitely came to the conclusion that the cause, time and place of death of Muhammad Amin, deceased, and injuries suffered by Bashir Ahmad, Nawab and Faqir Muhammad P. Ws. Had been fully established on record. They were of the view that the real question involved in this case was whether the deceased was in possession of the Ahata in dispute and the appellants were the aggressors or that the Ahata was in possession of Elahi Bakhsh appellant and the complainant party including the deceased were the aggressors and their intention was to dispossess the appel--lants. The High Court considered the evidence and they found that all the seven appellants are closely related inter se and therefore their common inten-- tion was to have the possession of the Ahata in dispute claimed by Elahi Bakhsh appellant. They consequently found that all the seven appellants have participated in the occurrence in which Muhammad Din, deceased, suffered fatal injuries and died while the other three eye-witnesses suffered injuries at the hands of the appellants. They found the testimony of the eye-witnesses and other prosecution witnesses quite consistent which inspired confidence. The motive as alleged by the prosecution, according to the High Court, also stood established. The defence version was rejected and it was found that the Ahata in dispute was situated opposite the house of Elahi Bakhsh, who wanted to take its possession at all costs. He consequently uphold the conviction of all the accused-appellants and the sentence imposed on them. Their appeal was dismissed. The connected revision petitions were also dismissed.
15. Sardara admits that he fired the shot, but the defence claims the right of self-defence. In the alternative it was pleaded 'hat there was a free fight between the parties, and, therefore, each accused was responsible for his own act. Muhammad Din deceased, was inside the Ahata, when he was fired atby Sardara and killed with a gun.
16. Considering the evidence as a whole, we do not find any inconsistency it the prosecution version or the individual infirmities in the evidence of the prosecution witnesses. In the instant case no question of exercise of right of private defence could arise for either party. In this case the intentions and acts of both the parties are quite clear and each party knowingly and. Deliberately took upon itself the risk of the encounter. In our opinion the offence committed by Sardara was deliberate as the combat was premeditated. Sardara has already been dealt with leniently and we see no reason to interfere Both the Courts below have concurrently found that Sardara was guilty of murder. About the rest of the accused, the High Court concurred with the finding of the trial Court and the sentence awarded to them is not severe.
17. We are, therefore, of the view that the sentence awarded to the appellants is appropriate and it does not require any interference. Criminal Appeal No. 163 of 1976 is. Therefore, dismissed. Criminal Appeal No. 164 of 1976 and Criminal Appeal No. 165 of 1976 are consequently also dismissed.
18. Imprisonment during trial of all the accused to be counted towards the aggregate imprisonment awarded to the appellants.