1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the complainant Abdul Latif to examine whether the High Court of Lahore while acquitting the three respondents by its judgment dated 15- 8-1979 had not taken an erroneous view of the evidence with regard to the change of possession of cultivated area for determining their criminal liability.
2. ' The complainant party and the accused party had been involved since at least 1960 in land disputes. Mst. Habib Begum was the allotted of land in Square No, 32, Chak 232 I. B. In. Faisalabad.
3. She is the mother of the first two respondents and aunt of the third. The deceased and his brothers were litigating against this allotment and had ultimately got it cancelled and had also obtained physical possession of the land which had after cancellation from the name of Mst. Habib Begum been allotted to them. On the evening of 7th of March, 1976 the respondent-party had allegedly removed from the land stumps of fallen trees and sugar-cane. A report of it was made at the police station and an F. I. R. No, 51 was entered at Police Station Sadar at 2 p.m. On 8th of March, 1976 about the damage. The same afternoon at about 5 p.m. Abdul Latif (P. W. 9) and the deceased Muhammad Iqbal were present on the land when Abdus Samad and Hamid Ali, the two respondents, came, armed with drantis for harvesting the standing wheat crop. These two asked them not to do so. They left the place saying that they would take possession of the land and returned within half an hour in added strength with for others, for of them armed with guns, one with rifle and one empty-handed. Abdul Ghani, the father of the first two respondents, shouted a lalkara while Harald Ali and Younus fired at Iqbal injuring him. Abdus Samad also fired at him. He fell on the ground. Abdul Latif (P.W. 9) was also fired at but escaped injury. Abdul Latif claimed that he was armed with a rifle and Muhammad Iqbal with a gun and they also tired in self-defence. A report of the occurrence was lodged by Abdul Latif (P. W. 9) at 10-30 p.m.
4. ' It appears that Abdul Samad had also been taken to the hospital. He was found to be injured and at the hospital his mother Mst. Habib Begum had lodged a report which was recorded at 12.15 a.m.
5. On the night between the 8th and 9th of March, 1976. Dr. Major Yousaf All had examined Muhammad Iqbal who was brought to the hospital in an injured condition and found the following injuries on his person :- "(1) Seventy fire-arm blackished wounds 1/9" diameter x D. N. P. Back of lower one-third of the chest trunk and upper parts of both buttocks.
(2) Seven fire-arm wounds 1/9" diameter each X D. N. P. And blackish on the front and medial aspect of right upper arm.
(3) Five blackish fire-arm wounds 1/9" diameter each x D. N. P. On the front and medial aspect of the right fore-arm.
(4) One fire-arm wound 1/9" diameter D. N. P. Blackish near the left nose of left upper lip.
(5) One fire-arm wound 1/9" diameter x D. N. P. Blackish left side of forehead.
(6) One fire-arm wound 1/9' diameter X D. N. P. Blackish right cheek.
(7) One fire-arm wound 1/9" diameter X D. N. P. Blackish right side of forehead.
(8) Four fire-arm wounds 1/9" diameter x D. N. P. Blackish frontal and medial aspect or left forehead."
6. ' The same day Iqbal died and autopsy was performed by Dr. A. A. Khalid. Abdus Samad, the respondent, was examined by Dr. Major Yousaf Ali at 9 p.m. On. 8th of March 1978 and he noted the following injuries- "(1) A fire-arm wound 2" xi' x bone central part of frontal head with abrasion 1/6" around the edges of the wound at anterior end of the wound.
(2) A fire-arm wound 2r x 2' x D. N. P. Front of upper part of left thigh near the anterior superior lick spine, the edges were burned.
(3) A fire-arm wound 3/4' X i" x D. N. P. Left lumber region on the back. A hard mass was palpable which was very superficial near the wounds.
(4) Fire-arm wound 1/6' diameter x D. N. P. With black burnt edges 1" above the injury No. 1.
(5) A lacerated fire-arm wound 2i" x 11" x D. N. P. Front of middle third of left thigh.
(6) A fire-arm wound 1/6' diameter with abrasion 1/10' around into D. N. P. Left buttock lower part."
7. ' All these injuries were kept under observation and were found to be simple.
8. ' Mukhtar Ahmad (P. W. 12) recorded the F. I. R. And conducted the infestation. The place of occurrence was found to be Killa No, 20 of Square No, 32 which belonged neither to the complainant nor to the accused but was adjacent to Killa No, 21 about which the dispute existed between the parties. In all six persons were sent up as accused persons for trial.
9. ' The respondent and their three companions all denied having participated in the attack on the complainant party resulting in the death of Muhammad Iqbal. Abdus Samad alone gave an explanation for his injuries and for his involvement in the occurrence. It was in the following words :- "At the time of occurrence I and my mother Habib Begum went to have a round of or fields. Iqbal deceased and Latif P. W. Accompanied by 5/6 others who were armed with fire-arm and other weapons, reached there in order to take over forcible possession of the land and eject us forcibly.
10. The said persons fired at me and I fell down to the ground after receiving injuries. They further fired at me. In the said indiscriminate firing Iqbal deceased also received injuries. I was got admitted in the hospital on the same evening and was medically examined. My mother who was accompanying me to the hospital lodged a report with the police. The complainant party later falsely implicated us in this case. A complaint for the said occurrence is still pending in the trial Court."
11. ' Muhammad Younus, respondent denied his presence and produced two witnesses in defence to prove that on 6th of March, 1976 he had a fracture of the base of 4th metacarpel bone of his right foot, for which he was X-rayed and received medical attention and was on medical leave from 8th of March, 1976 to 7th of April, 1976.
12. ' The trial Court held it proved that the complainant party had obtained possession of the land cancelled from the name of Mst. Habib Begum and allotted to the deceased. It also found proved the motive of the respondents to regain the possession of the land, particularly so after a status quo order had been obtained from the High Court on a constitutional petition filed by them challenging the cancellation of allotment. The disability of Younus was found to be not such as to prevent him from participating in the occurrence. Omission of Abdul Latif (P. W. 9) to mention that he and the deceased were armed with fire-arms and had used them was considered to be not of great significance. On the evidence on record the presence and participation of the three respondents was held established beyond reasonable doubt and that of three others not free from doubt. Hence three others were given benefit of doubt and acquitted while the three respondents were convicted under section 302/34, P. P. C. For causing the death of Muhammad Iqbal. Abdus Samad having fired the effective shot causing the death of Muhammad Iqbal was sentenced to death while the two others were sentenced to life imprisonment with a fine of Rs, 5,000 each with no order as to compensation.
13. ' The matter of confirmation of the death sentence and the appeal of the convicts came up for consideration before the High Court. The learned Judges considered the two eye-witnesses, Abdul Latif (P. W. 9) and Muhammad Yousaf (P. W. 10) partisan witnesses. They found corroboration only against Abdus Samad respondent and also held that his presence and visit to the spot was not entirely innocent but formed the following opinion about the substance of the prosecution case :- "Be that as it may, the fact remains that at the relevant time both parties were armed with guns.
14. During the course of occurrence both fired at each other. As a result of the firing one person from each side was hurt. Thus, from the side of the complainant party was killed while from the opposite side Abdus Samad was seriously wounded. Apart from the ocular testimony which has already stated is of a partisan nature there is nothing on the record which may indicate as to which party was the first one to open fire. If the fire was opened by the complainant party the opposite side would be justified in shooting back in self-defence. We have also considered the possibility whether it is a case where both parties had come to the scene of occurrence with the pre-set intention of shooting at each other but we find the evidence on the record is not sufficient to support any such theory."
15. ' On this conclusion the case of the prosecution was held not proved and the three respondents were acquitted.
16. ' During the course of hearing of this appeal the question most debated and disputed is the fact of the transfer of possession of the disputed property because it is the possession or reasonable claim to it which decides which party was the aggressor and which the victim of aggression. It is however an admitted position that in August, 1975 when the delivery of possession is said to have taken place sugar-cane had already been cultivated on a part of the land by or on behalf of Mst.
17. Habib Begum, the lady. No compensation for it was ever determined nor any deposit made by the complainant party which claimed possession of it. They could not claim the sugar-cane crop on the basis of such delivery of possession and the respondent could legitimately claim ownership and control over it. Even apart from this right it appears that Mst. Habib Begum had certain cultivation rights in the vicinity and the presence of her sons near the spot was not by itself an incriminating factor. The learned Judges in the High Court looked for material on the record to ensure that it was not a case of free fight but found the evidence on the record insufficient. It appears that the exact evidence on the subject has not been separated and examined in the context of the other evidence brought on record. Abdul Latif (P. W. 9) is the witness who has been considered to be natural though partisan. He stated as follows :- "After Samad and Hamad had gone back with a threat to us, we remained in the said square. We had however brought the rifle and the gun from or houses in the intervening period of the departure of the said two persons and arrival of all the accused there. Iqbal deceased had only brought his gun during the intervening period whereas the rifle which I used was already at or Dera in square No,
31. Iqbal himself had gone to bring the gun. I went to Square No, 31 and brought the rifle."
18. ' He further stated- "When all the accused came together, Iqbal deceased was standing on the banna between Killas 20 and. 21 with the gun just by the way. The accused at that time were at a distance of one Killa from Iqbal. The arms with which the accused were armed were visible at that time. I did not inform Iqbal about the arrival of the accused persons. I did not fire in order to restrain the accused from coming forward from that place. We did not reply the lalkara raised by the accused persons. My rifle was loaded at that time. Iqbal deceased had loaded his gun on seeing all the accused coming towards that side. None of us made even a fire in the air to alarm the accused persons. We also did not make any noise."
19. ' Such a positive statement by Abdul Latif (P. W. 9) unmistakably shows that when two of the accused retreated from the spot it was with the object of increasing their number and to arm themselves with effective weapons. The complainant side at that time comprising Abdul Latif (P. W.
20. 9) and Muhammad Iqbal deceased, also utilized this time in attempting to increase their number and to improve their weapons. Abdul Latif (P. W. 9) returned with a rifle, Iqbal deceased with a gun.
21. Abdul Latif admitted further- "I had told said Latif and Rashid that there was apprehension of intervention by the accused party.
22. The said two persons did not accompany me to Square No, 32."
23. This provided a classic setting for a free and planned fight. In the face of such evidence the High Court could not have held that the evidence oi4B the record was not sufficient to support the theory of free fight.
24. ' The law with regard to appreciation of evidence in a case of free fight was laid down in the case of Syed Ali v. Nibaran Mollah . The parties do not generally come out with the true story and the Court is not to be deterred by the incompleteness of the tale, from drawing the inference that properly flows from the evidence and circumstances. In the case before us two versions of the occurrence were before the investigating agency from the very begin nine. One person from each opposing camp had received gunshot injuries. One of them was to die soon after. There was an old subsisting disput with regard to the possession of land. There was suppression by the complainant side at the initial stage of their having indulged in any firing but when it was found that Abdus Samad, respondent, was admitted in the hospital they had to own the injury or give explanation for it.
25. ' The High Court found the presence of Abdus Samad respondent establish ed. It also found that his presence at the spot was not for an innocent c purpose. Examined in the context of a sudden fight between two rival group he cannot avoid the criminal liability for his act. He has been attributed the fatal shot causing the death of Muhammad Iqbal. He will, therefore, b guilty of the offence under section 304-1, P. P. C. For which a sentence of 10 years' R. I. Is called for. In addition he shall pay a fine of Rs, 5,000 o in default two years' R. I. And pay compensation of Rs, 20,000 to the heirs o Iqbal deceased failing which he shall undergo six months' imprisonment more. As regards the other respondents, their identity, presence and participation has not been found established because of lack of corroborative evidence. I accordance with the recognized principles of safe1 administration of criminal justice they are given the benefit of doubt and are acquitted. They shall be released forthwith unless their detention is required in some other case. PLD 1962 SC 502