SADIQ MAHMUD KHURRAM, J. -Muhammad Aslam son of Muhammad Nawaz, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) were tried along with Muhammad Sadiq son of Muhammad Ramzan (since acquitted) by the learned Additional Sessions Judge, Yazman in case FIR No. 241 of 2013 dated 25.11.2013 registered at Police Station Head Rajkan, District Bahawalpur , in respect of offences under sections 302, 324,148 and 149 PPC for committing the Qatl-i-Amd of Irshad Ahmad son of Allah Ditta (deceased). The learned trial court vide judgment dated 01.02.2017, convicted Muhammad Aslam son of Muhammad Nawaz, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) and sentenced them as under: Muhammad Aslam son of Muhammad Nawaz : Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Irshad Ahmad son of Allah Ditta (deceased).
The convict namely Muhammad Aslam son of Muhammad Nawaz was ordered to be hanged by his neck till dead.
Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz:- Simple Imprisonment for one year as Tazir under section 337- F(i) PPC and directed to pay Daman of Rs. 10,000/- to Shafi Muhammad (PW -4) and to remain in custody till the payment of amount of Daman .
Muhammad Akmal son of Muhammad Nawaz:- Simple Imprisonment for one year as Tazir under section 337- F(i) PPC and directed to pay Daman of Rs. 10,000/- to Muhammad Amjad (PW -3) and to remain in jail till the payment of amount of Daman .
Muhammad Nawaz son of Allah Ditta:- Simple Imprisonment for one year as Tazir under section 337- F(i) PPC and directed to pay Daman of Rs. 10,000/- to Dilshad Ahmad (PW -1) and to remain in jail till the payment of amount of Daman .
The convicts namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta were extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court Muhammad Sadiq son of Muhammad Ramzan, the co-accused of the convicts was acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Aslam son of Muhammad Nawaz (convict) lodged Criminal Appeal No.75 of 2017 assailing his conviction and sentence. Feeling aggrieved, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) lodged Criminal Appeal No.72 of 2017 assailing their conviction and sentences. The learned trial court submitted Murder Reference No.08 of 2017 under section 374 Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Aslam son of Muhammad Nawaz . We intend to dispose of the Criminal Appeal No.72 of 2017, Criminal Appeal No.75 of 2017 and the Murder Reference No.08 of 2017 through this single judgment.
3. Precisely , the facts necessary , as divulged through the statement of Dilshad Ahmad (PW-1) , the complainant of the case, are as under:- "On 25.11.2013, it was about 11:00 a.m. I present on, my land at Chak No.21/DNB. That land was purchased by my father from Iqbal Abbasi. We were in possession of that land and we were cultivating that land. Suddenly Akram, Aslam, Akmal while armed with rifles, Allah Nawaz was armed with sota and 3/4 unknown accused persons came there. Aslam accused made a lalkara that today they would teach a lesson to us for watering the field. The accused persons encircled us. Aslam accused made a fire from his rifle which hit at the chest of my brother Irshad Ahmad since deceased. Akmal accused made a fire from his rifle which hit on the thigh of Amjid. Ajmal accused made a fire from his rifle which hit on the thigh of the Waseem. On our hue and cry my mother Zarina Bibi, Sabir and Shafi Muhammad came there. They tried to save us, thereupon, Aslam accused gave a batt blow to my mother Zarina Bibi. Akram alias Dilshad accused gave a sota blow to Shafi at his head. Nawaz accused gave a sota blow on my right arm. Aslam accused repeated the fire which was landed on the right upper arm of Sabir . The accused persons thereafter gave beating to us. After the occurrence, the accused persons with their fire arm weapons and weapon of offence made good to their escape. With the help of our relatives, the injured persons were shifted to the hospital. The death of Irshad Ahmad was declared by the doctor in the hospita l. I went to the police station for reporting the matter . Thereafter , police came in the hospital. I submitted my application Ex.P.A. Police prepared injury statements. Thereafter , police came to the place of occurrence. Police collected 11 crime empties, taken in possession, sealed into parcel through recovered memo Ex.P.B. I attested the recovery memo. Police also collected blood stained earth of Amjid PW, made into sealed parcel through recovery memo Ex.P.C. I attested the recovery memo. Police also collected blood stained earth of Irshad, made into sealed parcel through recovery memo Ex.P.D. I attested the recovery memo. After registration of the case, Akram alias Dilshad accused present before the court was arrested on 10.12.2013. On 15.12.2013 sota was recovered on the pointation of accused from the tractor garage of accused. That sota was taken into possession by the police through recovery memo Ex.P.E.
The recovery memo was attested by me and Sajid Hussain.
On 23.12.2013 rifle was recovered from Aslam accused present before the court in my presence as well as in the presence of Sajid Hussain. That recovery was affected from the residential house of Aslam accused. The rifle was taken into possession by police through recovery memo Ex.P.F. The recovery memo was attested by me and Sajid Hussain PW .
Police also arrested Akmal accused but without recovery from him, he was sent to judicial lock up.
The motive behind the occurrence land dispute between us and accused party ."
4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 24.12.2014, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case, got statements of as many as fifteen witnesses recorded. The ocular account of the incident was furnished by Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7).
Muhammad Asif, (PW-10) stated that on 25.11.2013, the Medical Officer handed over the last worn clothes of the deceased to the police official in his prese nce. Sarfraz Ahmad 23/C (PW-12) stated that on 25.11.2013 the Medical Officer handed over to him the last worn clothes of the deceased which he handed over to the Investigating Officer of the case and further stated that on 15.12.2013 Zahoor Ahmad, ASI (PW-13) handed over to him three sealed parcels for their onward transmission to the office of Punjab Forensic Science Agency , Lahore and further stated that on 29.12.2013 Zahoor Ahmad, ASI (PW-13) handed over to him one sealed parcel for its onward transmission to the office of Punjab Forensic Science Agency , Lahore, which parcels he deposited in the Punjab Forensic Science Agency , Lahore, intact. Shabbir Ahmad , SI (PW-14) stated that on 25.11.2013 he recorded the formal F.I.R (Exh.P A/1). Muhammad Afzal, Patwari (PW-14) prepared the scaled site plan (Exh.PP) of the place of occurrence. Sajjad Hussain, SI (PW-15) investigated the case from 25.11.201 3 till 07.05.2014, arrested the appellant namely Muhammad Aslam on 15.12.2013, arrested the appellant namely Muhammad Akram alias Dilshad Ahmad on 29.11.2013, arrested the appellant namely Muhammad Akmal on 02.02.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Muhammad Asif Manzoor (PW-11) examined, who on 25.11.2013 was posted as Medical Officer at RHC Head Rajkan and on the same day conducted the postmortem examination of the dead body of Irshad Ahmad son of Allah Ditta (deceased). Dr. Muhammad Asif Manzoor (PW-11) ,on examining the dead body of Irshad Ahmad son of Allah Ditta (deceased) observed as under: "(i) A lacerated wound measuring about 1 cm x 1 cm situated on left side of chest, near the left border of sternum about 14 cm from left nipple and 15 cm from chin. Its margins were blackened, collar of abrasion was present at left inferior aspect of wound.
(ii). A lacerated wound measuring about 2 cm x 2.5 cm, situated at posterior aspect of right shoulder slightly lateral aspect, about 11 cm. from tip of right shoulder . Margins and fatty tissue were everted from the wound, profusely bleeding.
(iii). A contusion of blackish in colour measuring about 2.5 cm x 1cm situated at left side of Forehead, about 2.5 cm from left eye brow . Injury No(i) and (ii) were deep on inserting probe.
(iv) A contusion at left Forehead about 2.5 cm from left eye brow . removing scalp skin black coloured blood present, but bone was normal, not fractured .......................
OPINION .
After thorough external and internal post mortem examination of the body , this was of my opinion that injury No(i) and (ii) were caused by firearm, in tract of bullet damaged the major blood vessels and right lung that leads to acute Hemorrhagic shock resulting in form of death. This injury was sufficient to cause death in ordinary course of nature. All three injuries were antemortem in nature. Injuries No.(i) and (ii) were caused by firearm, and death was less than one hour and between death and post mortem was jury No.(iii) was caused by blunt weapon. Probable time between injury less than 12 hours."
On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Muhammad Amjad (PW-3) and observed the following injuries:- "Injury No. (01): A lacerated wound measuring about 1 cm x 1 cm situated an anteromedial aspect of thigh. The wound was having slightly burned margins and inverted tissue. Advised Digital X-Rays Rt-thigh and Surgical opinion.
Injury No.(02): A lacerated wound measuring about 2cm x 3cm situated at posterolateral aspect of right thigh (Rt- gluteal region) slightly below centre of gluteal region. Margins of tissue and fatty tissue everted and bleeding profusely .
Injury No.(03): A swelling measuring about 10 cm x 8 cm situated on left side of head including temporal region.
There was also swelling of left eye. Advised CT Scan Brain with Bone window , Surgical opinion, Ne opinion.
Final Opinion.
Injury No(01), (02) & (03) were KUO Beca use police had not provided Digital X-rays, CT scan and Neurosurgeon's opinion, so nature of injuries and type of weapon not declared.".
On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Muhammad Sabir (PW-7) and observed the following injuries:- Injury No. (01): Two wounds at Right arm
(i) A lacerated wound measuring about 2.5 cm x 1 cm situated medial aspect of right arm about 12 cm from right elbow joint. Wound was slightly bleeding and margins were inverted, margins were slightly black ands. seemed burned. Advised Digital X-Rays and Surgical Notes from BVH, Bahawalpur .
(ii) There was also a lacerated wound measuring about 5 cm x 1.5 cm situated on medial aspect of right arm about 3 cm from right elbow joint. Wound was profusely bleeding, margins were everted. No blackening seen. Advised Digital X-rays right arm Ap, lateral view and surgical notes from BV", Bahawalpur .
Injury No.(02): There was swelling of left arm. Swelling was diffused, involving left elbow . Severe pain and tenderness on movement. Advised Digital X-rays and radiologist's Opinion from BVH, Bahawalpur .
Final Opinion.
Injury No(01) & (02) were KUO.Because police has not provided Digital X-rays, and consultant's opinion from BVH, Bahawalpur . I was unable to declare nature of injuries and type of weapon."
On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Shafi Muhammad (PW-4) and observed the following injuries:- "Injury No.(01): There was a lacerated wound measuring about 7.5 cm x 2 cm and Bone exposed, bleeding profusely , flaps of scalp were raised. Advised Digital X-Rays Skull AP- Lat view and Surgical Notes.
Injury No.(02): There was swelling, reddish black in colour , present at left eye brow and infra orbital region. No bleeding, No laceration seen.
Final Opinion.
Injury No(02) was described as 337-L2 and because of injury No(01). Injury No.(01) was KUO and caused by blunt weapon. Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injury No(01)."
On 25.11.2013, Dr. Muhammad Asif Manzoor (PW-11) also medically examine d Dilshad Ahmad (PW-1) and observed the following injuries:- "Injury No.(01): There was swelling in the right forearm, near the wrist. joint, mild swollen bruise was visible. There was severe pain and tenderness in the wrist joint. Advised Digital X-Rays right forearm AP- Lat view .
Final Opinion.
Injury No(01) KUO and caused by blunt weapon.
Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injuries."
On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Allah Ditta (PW-2) and observed the following injuries:- " Injury No. (01):- A lacerated wound measuring about 4 cm x 2 cm having raised flaps of scalp, bone exposed.
Wound was bleeding profusely . Wond (sic) was situated on right side of head about 9 cm from right ear. Advised Digital Rays Skull AP- Lat view .
Injury No. (02):-There was lacerated wound measuring about 3.5 cm x 1 on Bone not exposed, bleeding profusely , situated on left side of head about 4 cm from left ear . Advised Digital x-rays skull and surgical Notes. Final Opinion.
Injuries No. (01) & (02) were KUO.
Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injuries."
On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Muhammad Waseem (PW-6) and observed the following injuries:- "Injury No.(01): A lacerated wound measuring about 3 cm x 1 cm, Bone not exposed, situated on left side of head about 7 cm from left hear . Wound was profusely bleeding. Advised Digital X-rays Skull AP- Lat view .
Injury No.(02):There was a lacerated wound triangular in shape, measuring about 4 cm x 3 cm, flaps of scalp were raised and bone exposed. W ound was profusely bleeding. Advised Digital X-rays Skull AP- Lat view .
Injury No. (03): There was mild, no visible swelling pain was described by patient, No bruise no laceration seen.
Injury No.(04): - There was mild swelling of left arm, near elbow , No bruise no laceration seen.
Injury No.(05): - There was a lacerated wound measuring about 5 cm x om, situa ted on posteromedial aspect of right thigh about 10 cm from right knee joint. Wound was slightly bleeding. Margins were black in colour (seemed to be burned). Advised Digital X-rays Right thigh AP view- Lat view .
Final Opinion.
Injuries No.(03) & (04) Nil.
Injuries No (01), (02) & (05) were KUO.
Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injuries and type of weapon."
The prosecution also got Dr. Bushra Tariq (PW-9) examined who on same day examined Zareena Bibi (PW-5) and observed the following injuries:- Description of injuries 1 An oblique incised wound 05 X 01 CM X bone not exposed on left side of skull. Advised X-ray .
2. A longitudinal incised wound 03X01 CM X bone not exposed on top of skull. Advised X-ray .
3. Complaint of pain in back but no marks of violence.
Injury NO. 01 and 02 were Kuo. Injury No. 03 was no injury . Probable duration of injuries was within 08 hours.
Kind of weapon By sharp edge weapon.
X-ray reports.
Patient not reported to x-ray department for x-rays."
7. On 21.01.2016, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the blood stained earth (Exh.PBB) and the report of Punjab Forensic Science Agency , Lahore regarding the comparison of empty and the recovered Rifle (Exh.PCC).
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Aslam son of Muhammad Nawaz, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta under section 342 Cr.P.C. and in answer to the question why 12 this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. The appellants further claimed that on the day of occurrence they were attacked by the complainant party while they were present on their own land and during the said attack by the complainant party , the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured. The appellants also claimed that during the occurrence Irshad Ahmad (deceased) died at the hands of Dilshad Ahmad (PW-1) by the fire made by him. The appellants namely Muhammad Aslam son of Muhammad Nawaz and Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , opted to get themselves examined under section 340(2) Cr.P.C. and also produced Abdul Hakeem (DW-3) and Haji Muhammad Ramzan (DW-4) as witnesses in their defence. The learned counsel for the accused also tendered in evidence the following documents in support of the version of the accused :-
1. Attested copy of statement of Muhammad Shafi In suit titled "Muhammad Nawaz Vs. Muhammad Shafi"
Exh.DC .
2. Attested copy of order dated 30.10.2010 Exh.DC/1.
3. Attested copy of Rapat No.5 dated 15.05.2013 P .S Head Rajkan Exh.DD.
4. Copy of agreement between Muhammad Shafi and Muhammad Nawaz dated 30.03.2010 alongwith receipt (three pages) Mark.A.
5. Copy of application made by Muhammad Shafi to DCO Bahawalpur for Patta Malkiat dated 1 1.03.2013 Mark-B.
6. Copy of challan dated 04.03.2013 regarding payment of Installment Mark-C.
7. Copy of Khasragirdawri from Khareef 2012 to Rabl 2013 Mark-D
8. Copy of application u/s 19 of Colonies Act alongwith statements of the parties and proceeding of Patwari dated 07.06.2013 (five pages) Mark-E.
9. Copy of Jamabandi for the year 2010-201 1 Mark-F .
10. Copy of MLC of accused Aslam Mark-G.
11. Copy of MLC of accused Akram Mark-H.
12. Copy of MLC of Zarina Mai Mark-I.
13. Copy of MLC of Aziz Mai Mark-J.
14. Copy of application by Aziz Mai to DSP Bahawalpur for registration of FIR Mark-K.
15. Copy of application u/s 22-A Cr.P.C alongwith order dated 23.12.2013 (four pages) Mark-L.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Yazman, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4) , Zareena Bibi (PW-5) , Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) were not worthy of reliance. The learned counsel for the appellants further argued that on the day of occurrence the appellants were attacked by the complainant party while they were present on their own land and during the said attack by the complainant party , the appellants namely Muhamma d 14 Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured, whereas Irshad Ahmad (deceased) died at the hands of Dilshad Ahmad (PW-1) by the fire made by him.. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution proved its case beyond the shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injury suffered at the hands of the appellant namely Muhammad Aslam and the witnesses were also injured at the hands of the appellants . They further contended that the medical evidence also corroborated the statements of Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7). They contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of the appeals.
12. We have heard the learned counsel for the appellants, the learned counsel appearing on behalf of the complainant/respondent No.2, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
13. The occurrence in the present case is admitted by the parties with their own respective versions. Each party has given different motive of the occurrence to establish the aggression of his opponent. According to the prosecution witnesses on 25.11.2013, at about 11:00 a.m. they were present on their land at Chak No.21/DNB, which land, according to Dilshad Ahmed (PW-1), was purchased by his father from Iqbal Abbasi, when the appellants namely Muhammad Akram alias Dilshad, Muhammad Aslam, Muhammad Akmal while armed with rifles and the appellant namely Muhammad Nawaz armed with a Sota and 3/4 unknown accused persons came there and attacked them . The appellants claimed that on the day of occurrence they were attacked by the complainant party while they were present on their own land and during the said attack by the complainant party , the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured. The appellants also claimed that during the occurrence Irshad Ahmad (deceased) died at the hands of Dilshad Ahmad (PW-1) by the fire made by him. It is a case of two versions, one set by the prosecution and the other as stated by the appellants. The common features in both the versions (one set out by the prosecution and the other by the appellants in their statements recorded under sections 340(2) and 342, Cr.P.C.) are that place of occurrence is not disputed and the cause of the incident, in both the versions, is almost same, being the dispute over the title and possession of the place of occurrence. First of all, we would like to see whether the prosecution has succeeded to prove its case against the appellants beyond any shadow of doubt because primarily , it is responsibilit y of the prosecution to discharge the said onus. The prosecution, in order to prove its case, mainly relied on the ocular account of the occurrence as furnis hed by Dilshad Ahmad (PW-1) , Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4) , Zareena Bibi (PW-5) , Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) and the medical evidence. Presence of Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) at the place of occurrence ,at the time of occurrence is established as they had the stamp of injuries on their bodies. The prosecution witnesses name ly Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) were examined by Dr. Muhammad Asif Manzoor (PW-11) and the prosecution witness namely Zareena Bibi (PW-5) was examined by Dr. Bushra Tariq (PW-9). The presence of the prosecution witnesses namely Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3) , Shafi Muhammad (PW-4) , Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) at the place of occurrence ,at the time of occurrence was not even disputed by the appellants. We have also noted that Dilshad Ahmed (PW-1) reported the matter to the police with promptitude and presented his written application (Exh.P A) to Sajjad Hussain SI (PW-15) at the RHC Head Rajkan at 12.45 pm on the day of occurrence, upon which the formal F.I.R (Exh.P A/1) was registered at the police station Head Rajkan on the same day at 1.00 pm in which details of the incident have been mentioned.
While appearing before the learned trial court , the prosecution witnesses namely Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) remained consistent on material particulars of the incident and we see no reason not to believe testimony of these prosecution witnesses with regard to their presence at the place of occurrence ,at the time of occurrence . So far as medical evidence is concerned, Dr. Muhammad Asif Manzoor (PW-11) who conducted post-mortem examination on the dead body of Irshad Ahmad son of Allah Ditta (deceased), noted the following injuries on his person and opined as under:- "(i) A lacerated wound measuring about 1 cm x 1 cm situated on left side of chest, near the left border of sternum about 14 cm from left nipple and 15 cm from chin. Its margins were blackened, collar of abrasion was present at left inferior aspect of wound.
(ii). A lacerated wound measuring about 2 cm x 2.5 cm, situated at posterior aspect of right shoulder slightly lateral aspect, about 11 cm. from tip of right shoulder . Margins and fatty tissue were everted from the wound, profusely bleeding.
(iii). A contusion of blackish in colour measuring about 2.5 cm x 1cm situated at left side of Forehead, about 2.5 cm from left eye brow . Injury No(i) and (ii) were deep on inserting probe.
(iv) A contusion at left Forehead about 2.5 cm from left eye brow . removing scalp skin black coloured blood present, but bone was normal, not fractured ...........................
OPINION.
After thorough external and internal post mortem examination of the body , this was of my opinion that injury No(i) and (ii) were caused by firearm, in tract of bullet damaged the major blood vessels and right lung that leads to acute Hemorrhagic shock resulting in form of death. This injury was sufficient to cause death in ordinary course of nature. All three injuries were antemortem in nature. Injuries No.(i) and (ii) were caused by firearm."
Dr. Muhammad Asif Manzoor (PW-11) also examined the prosecution witnesses namely Dilshad Ahmad (PW-1) , Allah Ditta (PW-2) , Muhammad Amjad (PW-3) , Shafi Muhammad (PW-4) , Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) and Dr. Bushr a Tariq (PW-9) examined the prosecutio n witness namely Zareena Bibi (PW-5) .After careful analysis of the evidence produced by the prosecution in this case, we are of the considered view that the prosecution has proved that the appellants were present at the spot while armed and caused injuries on the person of the deceased as well as the prosecution witnesses. As we have held above, n this case date, time and place of occurrence is admitted but only the manner of the incident stated by the appellants side is different from the prosecution case. We have noted that surprisingly , the appellants in their statements recorded under sections 340(2) and 342, Cr.P.C. have stated nothing as to how the complainant side received injuries but only stated that four persons from their side i.e. the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured and that the deceased died as a result of fire made by Dishad Ahmed (PW-1) . Similarly , the prosecution case is also silent about the injuries suffered by the four persons of the appellants' side, so, it can be gathered from the above that both the parties have not come to the Court with clean hands and have not stated the whole truth. In such a situation, the Court cannot be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstance s of the case. In this regard reliance is placed on Syed Ali Beopari v.
Nibaran Mollah and others (PLD 1962 Supreme Court 502).
14. The occurrence with material facts having been admitted, the sole question left for determination was as to whether the version given by the prosecution or one put by the defence was the correct picture of the occurrence.
The prosecution having taken benefit of large number of injuries on the person of injured prosecution witnesses and the deceased, pleading the annoyance of the accused over the dispute over the title and the possession of the place of occurrence, made efforts to prove the aggression of the defence, whereas the defence taking advantage of the injuries sustained by the accused specially for the injuries caused to the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai , pleaded causing of injuries to the complainant party . Seven persons on the side of the complainant were injured and one lost his life. On the other hand, the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured as has been brought on record during the course of trial. Sajjad Hussain SI (PW-15) ,the Investigating Officer of the case, stated in his statement before the learned trial court that he deferred the arrest of the appellant namely Muhammad Akram alias Dilshad as he was injured and also state d that the appellant namely Muhammad Aslam was also injured when he was arrested by him. Sajjad Hussain SI (PW-15), the Investigating Officer of the case, in his examination in chief stated as under:- "On 29.11.2013, I arrested accused Muhammad Akram. Accused Akram was injured at that time. I took him to hospital for treatment after having prepared his injury statement . Injury statement of the accused is not available today on judicial file as well as on police file. The doctor referred accused Akram to hospital at Bahawalpur . I deferred arrest of accused Akram because of his being injured. On 01.12.2013 accused Akram was discharged from BV hospital, Bahawalpur . I then formally arrested him. ...............
On 15.12.2013, I arrested accused Aslam in this case. Accused Aslam was injured at that time. I prepared his, injury statement and took him to RHC Head Rajkan for treatment."(emphasis supplied)
Then in cross examination Sajjad Hussain SI (PW -15), the Investigating Of ficer of the case,admitted as under:- "Mst. Aziz Mai mother of accused Aslam and Zarinaa Mai sister of accused Aslam had also suffered injuries and their MLCs were issued and are not available in police file. Injury statements of accused Akram and Aslam are Exh.DA and Exh.D.B respectively . I had not annexed with the challan the MLRS of Aslam, Akram, Aziz Mai and Zarina Bibi. V olunteered, they are available on police file today ."(emphasis supplied)
Additionally , the appellants namely Muhammad Aslam son of Muhammad Nawa z and Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , opted to get themselves examined under section 340(2) Cr.P.C. and were cross-examined by the learned Deputy District Public Prosecutor alongwith the learned counsel for the complainant however during cross examination it was not even suggested to them that they i.e the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were not injured during the occurrence . Furthermore copy of the Medico Legal Examination Certificate of the appellant namely Muham mad Aslam (Mark-G), copy of the Medico Legal Examination Certificate of the appellant namely Muhammad Akram alias Dilshad (Mark-H), copy of the Medico Legal Examination Certificate of Zarina Mai (Mark-I) and the copy of the Medico Legal Examination Certificate of Aziz Mai (Mark-J) were also tendered in evidence without any objection raised by the learned prosecutor or the learned counsel for the complainant. A perusal of the said Medico Legal Examination Certificates reveals that the appellant namely Muhammad Aslam had suffered three injuries out of which Injury No.1 was declared to be of the kind of Shajjah-i- Mudihah whereas injury No.2 was declared to be the kind of Jurh Ghayr -jaifah Munaqqilah . The appellant namely Muhammad Akram alias Dilshad also had three injuries on his person as noted by the Medical Officer when the Medico Legal Examination Certificate (Mark-H) was prepared however their kinds were not determined. However , the number of injuries on the person of the deceased and prosecution witnesses were more to that of the accused persons. The facts in evidence with no doubt suggest that both parties expecting an unfortunate incident at any time were mentally and physically prepared to face the situation. The prosecutio n witnesses admitted that they were also having Kassis, at the time of occurrence . Dilshad Ahmad (PW-1), during cross-examination admitted as under:- "We had kussies for this purpose."
Sajjad Hussain SI (PW-15) the Investiga ting Officer of the case , also did not collect any evidence, including the Kassis or any other tools being used by the prosecution witnesses to level the land , to prove the purpose for which the prosecution witnesses were present at the place of occurrence. It was also admitted by the prosecution witnesses that none of them including Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) had their residences at or around the place of occu rrence rather they were residents of other villages. Dilshad Ahmed (PW- 1) during cross-examination admitted as under:- "The distance of place of occurrence at Chak NO. 21/DNB from my shop is near about 03 kilometers . I alongwith my family is residing near my shop at Khan pur adda. The house is owned by me. Allah Ditta PW is my father , he is residing at Nawazabad. He is doing zamindara. Amjad is my nephew . His house is at Basti Nazeer abad mouza Mehrab wala Tehsil Ahmadpur East, at the distance of 17/18 kilometeres from the place of occurrence . He is student at first year in college Ahmadpur East. Sabir Hussain is my Phopha, he is residing at Channi Goath, Tehsil Ahmadpur East. Channi Goath is near about 40 km from the place of occurrence . He is Messon by profession where ever he found job, he do his work. Now a days he is working at Quetta. Waseem is son of Muhammad Sabir and is also residing at Channi Goath. He is student in High School Channi Goath.
Muhammad Shafi PW is father in law of deceased Arshad Ahmad. He is residing at Goggran, Tehsil Lodhran, at the distance of about 75 km. He is doing zamindara and working as tenant in our land. I cannot tell whether any written tenancy deed is present or not. My father would be informed about it. Zarina Mai is my mother who is also residing at Nawazabad. Sajid Hussain PW is my Mamu zad. He is also resident of Nawazabad. He is also working as Messon. Witness Muhammad Abu Bakar is my paternal uncle. He is residing at Channi Goath. Asif Witness is my Chacha zad. He is also resident of Channi Goath." (emphasis supplied).
Similarly Sajjad Hussain SI (PW-15), the Investigating Officer of the case , during cross-examination admitted as under:- "Mouza Nawaz bad is at the distance of 2/5 kilometers from the place of occurrence. PW Allah Ditta is resident of Mouza Nawaz Abad. All the PWs whose statements u/s 161 CrPC were recorded by me are resident of Mouza Nawaz Abad . The place of incident falls in Chak No.21/ DNB, Tensil Yazman. I do not know in what Tehsil Mouza Nawaz Abad falls. However , it does not fall in Tehsil Yaman. I had not recorded u/s 161 Cr.p.c statement of any person resident of Chak No.21/DNB. Chak No.21/DNB consists of as many as 35 houses."(emphasis supplied)
We have also noted that the prosecution witnesses could not prove their title and possession over the place of occurrence, at the time of occurrence. According to the prosecution witnesses on 25.11.2013, at about 11:00 a.m. they were present on their land at Chak No.21/DNB, which land, according to Dilshad Ahmed (PW-1), was purchased by his father from Iqbal Abbasi. During cross examination Dilshad Ahmed (PW-1) showed his ignorance regarding the ownership of one Muhammad Shafi over the place of occurrence and denied the same however Muhammad Afzal Patwari (PW-14), brought this aspect of the case on record that the place of occurrence was owned and in possession of the said Muhammad Shafi who had sold the same to the appellant namely Muhammad Nawaz . Muhammad Afzal Patwari (PW -14) during cross examination stated as under:- "The occurrence took place in square No.14 and killa No.25. I keep the revenue record of Halqa Chak No.21/DNB Yazman as being Patwari. The lot of square No.14 is owned by one Muhammad Shafi. The Khasragirdawri of the said land was in the name of Muhammad Shafi prior to the occurrence but after the occurrence, it was entered in the name of Allah Dittah, complainant of this case. All the applications made u/s 19 of the Colony Act are sent by District Collector to Patwari for report. An application u/s 19 of the Colony Act was made by Muhammad Shafi on 07.06.2013 to District Collector , Bahawalpur for allotment of the aforementioned land. The said application was sent to me for report and on 24.06.2013, I made report thereon . I had reported that Muhammad Shafi had sold the above mentioned land to Muhammad Nawaz son of Allah Dittah for a consideration of Rs.20,00,000/-."(emphasis supplied)
Similarly Sajjad Hussain SI (PW-15) the Investigating Officer of the case , also admitted that Dilshad Ahmed (PW- 1) did not provide any documentary evidence to prove that the place of occurrence had been purchased by his father or was owned by them. The appellants also tendered in evidence the attested copy of statement of Muhammad Shafi ( Exh. DC) made in the suit titled "Muhammad Nawaz Vs. Muhammad Shafi ", the attested copy of the order dated 30.10.2010 (Exh.DC/1) the attested copy of Rapat No.5 dated 15.05.2013( Exh.DD ) registered at the police station P.S Head Rajkan, the copy of the agreement (Mark.A.) betw een Muhammad Shafi and the appellant namely Muhammad Nawaz dated 30.03.2010 alongwith receipt, the copy of application (Mark-B) made by Muhammad Shafi to DCO Bahawalpur for obtaining Patta Malkiat dated 11.03.2013, the copy of challan dated 04.03.2013 (Mark-C) regarding payment of Installments ,the copy of Khasragirdawri from Khareef 2012 to Rabi 2013 (Mark-D), the copy of application u/s 19 of the Colonies Act alongwith statements of the parties and proceeding of Patwari dated 07.06.2013 (Mark-E) and the copy of Jamabandi for the year 2010-201 1 (Mark-F) which all documents prove that the place of occurrence was owned by Muhammad Shafi and the same was sold to the appellant namely Muhammad Nawaz .There is, however no satisfactory evidence that either party was in exclusive or unobstructed possession of this land. A legitimate conclusion, therefore, could be drawn that on the day of occurrence both the assemblies went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each party , anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused were acting on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property .
From the state of relations between the parties, it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into a fight. We think it is rational to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the happenstance.
15. From the detailed analysis and the scrutiny of the evidence and the circumstances under which the occurrence took place, it can easily be ascertained that due to the extreme and impulsive situation suddenly an expected quarrel took place between the parties resulting in injuries to the members of both sides. The mere fact that complainant side was looser and number of injuries were sustained by their members by itself is not a fact to determine the question of aggression. The prosecution as well as the defence withheld some material facts from placing on record to fix the whole respon sibility of aggression of an individual party . The encounter probably was not planned or premeditated but each party , having a constant fear of attack by the other side, on facing each other became active to deal with the situation. While reviewing the entire evidence produced by the prosecution and the plea taken by the defence, the total respo nsibility of inviting trouble by an individual party cannot reasonably be put either on the accused or complainant party . The circumstances of the case do not prove the defence plea or the aggression of complainant party rather it being a free fight and a melee, which undoubtedly was not an arranged occurrence of either party rather both sides under compelled circumstances were to participate in it. It is common that in such like cases each party hesitates to bring the true facts on record to prove the aggression of his opponent. The prosecution has not brought satisfactory evidence to establish aggression of the accused to come to a definite conclusion to give verdict of the correctness of prosecution version or plausibility of defence plea.Exception 4 of the erstwhile section 300 of the PPC covered those cases where an offender causes death without premeditation in a sudden flight in the heat of passion upon a sudden quarrel and without the offender 's having taken undue advantage or acted in a cruel or unusual manner '. The help of Exception 4 can be invoked if death is caused: (a) without premeditatio n; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed.It is to be noted that the word 'fight' occurring in Exception 4 contained in the erstwhile section 300, P.P.C. is not defined in PPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down. 'Sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter . A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. Exception 4 provided in the erstwhile provisions of section 300, P.P.C. jurisprudentially must be reckoned as a humane provision accepting the fact that even the most rational of men may under the heat of passion do acts which they may not have done or would not do if saner faculties were to prevail. To such persons, law in a humane manner , permits mitigation if and only if it is proved that the passion happened to run in a sudden fight upon a sudden quarrel. The present case fulfilling all the necessary elements of free fight i.e. the preparation of the parties with some background of enmity or grudge against each other and looking for the opportunity to damage the opponent or the happening of something up towards suddenly between the parties, the each participant is burdened with liability of the act committed by him. These factors of the case squarely attract Exception 4 provided in the erstwhile provisions of section 300, P .P.C.
16. Having come to the conclusion that it was a free fight between the parties, we proceed to consider the liability of the each appellant vis-a-vis the role played by him. The appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017), were saddled with the responsibility of causing injuries to the prosecution witnesses and have been rightly convicted and sentenced by the learned trial court with reference to their roles in the occurrence .With regard to the appellant namely Muhammad Aslam (the appellant in Criminal Appeal No. 75 of 2017),death of Irshad Ahmad (deceased) occurred during the course of fight between the parties and no unfair advantage appears to have been taken by the appellant namely Muhammad Aslam (the appellant in Criminal Appeal No. 75 of 2017),who is attributed the fire shot which led to the death of the deceased .The pivotal question in the circumstances shall be whether the appellant namely Muhammad Aslam is liable of committing culpable homicide amounting to murder or he is entitled to the benefit of exception 4 to the erstwhile section 300, P.P.C. The benefit of Exception 4 provided in the erstwhile section 300, P.P.C. cannot be ordinarily denied on the ground that the act committed in a free fight was intentional, rather the benefit is extended subject to the fulfilment of the conditions and taking not undue advantage or acting in a cruel manner . The intention alone in absence of other essential conditions in such cases cannot be pressed for the application of section 302(b), P.P.C.
In case of culpable homicide not amounting to murder , the act of causing death is either done with the intention to cause death or with that knowledge. In the present case, the act of the appellan t namely Muhammad Aslam of causing the fire shot to the deceased was done by him with the intention to cause death but it having been done during the course of free fight, with no undue advantage and not in a cruel manner , the case should fall within the purview of Exception 4 to the erstwhile section 300, P.P.C. to be saddled with the responsibility of committing an offence under section 302 (c ) P.P.C. The said Exception 4 to Section 300 and section 300 of the old law are reproduced hereunder: "300. Culpable homicide -- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the of fence of culpable homicide. ..............................
Exception 1 --When culpable homicide is not murder .--Culpable homicide is not murder if the offender , whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. ..............................
Exception 2 -- Culpable homicide is not murder if the offender , in the exercise in good faith of the right of private defence of person or property , exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. ..............................
Exception 3 -- Culpable homicide is not murder if the offender , being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4 -- Culpable homicide is not murder if it is committed without prem editation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner .
Explanation -- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5 -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suf fers death or takes the risk of death with his own consent."
It has already been held by the august Supreme Court of Pakistan in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C. now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner . In these circumstances Exception 4 contained in the erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P.P.C. In the case Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) the august Supreme Court of Pakistan had considered the scope of section 302(c) PPC (at pages 290-291) and held as under: "Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC
633. there should be no doubt that the cases covered by the Exceptions to the old section 300, P.P.C. read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P .P.C."
In the case of Zahid Rehman v. State (PLD 2015 Supreme Court 77) the august Supreme Court of Pakistan held as under: "... the provisions of section 302 (c), P.P.C. are relevant to those acts of murder which are committed in situations and circumstances which do not attract the sentence of Qisas and I further understand that sections 306 and 307, P.P.C. are person specific whereas section 302 (c), P.P.C. relates to certain situations and circumstances wherein a murder is committed and according to the Injunctions of Islam the punishment of Qisas is not applicable to such situations and circumstances. In the case of Ali Muhammad (supra) it had been declared by this Court that such situations and circumstances are the same which were contemplated by the Exceptions to the erstwhile section 300, P .P.C."
The cases covered by the Exceptions in the old section 300 PPC are to be dealt with under clause (c) of the section 302 PPC. The case of Muhammad Saleem v. State (2007 SCMR 1896 ) was decided after the amendments had been made in the PPC. In this case a sudden fight had taken place and the appellant had given a single blow with a stick on the head of the deceased and the august Supreme Court of Pakistan had converted the conviction awarded to the appellant under section 302 (b) PPC to one under section 302 (c) PPC.. Reference was made to the Exceptions provided in the old section 300 PPC, which defined 'murder', but excepted certain acts, including those mentioned in Exception 4 thereto which attracted the punishment prescribed under the old section 304 PPC. Reliance is also placed on the case of Syed Ali Beopari v. Nibaran Mollah and others (PLD 1962 Supreme Court 502) wherein it was held as under:- "It seems to us that the High Court in this case did not fully .appreciate the circumstances and the manner in which Ahmad Bepari lost his life. Prosecution attempted to establish that the accused party were wrongfully reaping paddy from Ahmad Bepari's land and on his raising protest one of them killed him. In view of the fact that there was no dispute between the parties over the said land the High Court disbelieved this part of the prosecution story . This view of the High Court also finds some support from the fact that no reaped paddy was seized by the Investigating Officer from that land. Hence from the above facts a conclusion may be drawn that the fight was not over the paddy of Ahmad Bepari's land.
The learned Judges of the High Court, however , made no attempt to consider the evidence and circumstances as a whole in order to ascertain what actually took place. From the fact that the prosecu tion attempted to shift the place of occurrence they were content to conclude that the complainant party was the aggressor and that the accused persons most probably acted in and within the right of private defence. The evidence and circumstances, however do not justify such conclusions.
Here we may observe that 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 proceeding" 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 the inferen ces that properly flow from the evidence and circumstances. There is sufficient and satisfactory evidence that there was dispute between the parties over the plot which adjoins Ahmad Bepari's land to the south. Syed Ali Bepari (P. W. 1) claimed this southern plot and also filed documents in support of his claim. On the other hand, the accused Adu Mollah filed certain papers in support of his claim. There is, however no satisfactory evidence that either party was in exclusive or un-disturbed possession of this land. A legitimate conclusion, therefore, could be drawn that on the morning of 15th November both parties went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each part), anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused party were acting' on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property .
From the state of relations between the parties, it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into conflict. We think it is reasona ble to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the encounter . Hence in the circumstances such as those of the present case no question of right of private defence would arise and, the common object stated in the charge having failed, each person would be held responsible for his individual acts.
Now we proceed to consider the extent to which these three respondents, namely , Nibaran Mollah, Adu Mollah and Basheruddin were responsible for what occurred on the morning of 15th November 1959. According to the prosecution Nibaran Mollah killed Ahmad Bepari by giving a blow with a katra on his belly. Nibaran's presence m the fight is not disputed. The injuries on his person speak for themselves and prove his participation in the fight.
Out of the six eye-witnesses who deposed in this case, the presence of three of them, namely , Billal Hussain, Shahajuddin and Khedani who had received injuries in the fight could not be doubted. They all have stated that Nibaran Mollah was solely responsible for killing Ahmad Bepari. The defence could not even suggest why they would falsely assign the part of killing to Nibaran Mollah. Hence we do not see any reason to take a view of credibility of these eye-witnesses on this point different from that of the Additional Sessions Judge. We think it has been proved beyond any doubt that Nibaran Mollah was solely responsible for killing Ahmad Bepari.
We also agree with the view taken by the Additional Sessions Judge that the offence committed is culpable homicide, but does not amount to murder , inasmuch as the death of Ahmad Bepari occurred in the course of a fight between two bodies of men who were deliberately fighting together both sides being armed and no unfair advantage appearing upon the evidence to have been taken by Nibaran Mollah in the course of the fight. The sentence of rigorous imprisonment for seven years awarded to Nibaran Mollah also does not seem to be at all on the side of severity ."
To fortify our view, reliance is also placed on Abdul Karim v. The State (2007 SCMR 1375 ). In the said case, in the similar circumstances, accused were convicted under section 302(c), P.P.C. by the learned trial Court, however , were convicted under section 302(b), P.P.C. by the High Court. The matter went to the august Supreme Court of Pakistan and the Apex Court was pleased to restore the judgment of the learned trial Court.
17. For what has been discussed above, the Criminal Appeal No. 75 of 2017 lodged by the appellant namely Muhammad Aslam son of Muhammad Nawaz is partly allowed. The conviction and sentence of the appellant namely Muhammad Aslam recorded by the trial court under Section 302(b), P.P.C are set aside. Instead the appellant namely Muhammad Aslam son of Muhammad Nawaz is convicted under Section 302(c), P.P.C. and sentenced to rigorous imprisonment for fifteen years. The appellant namely Muhammad Aslam shall pay a sum of Rs. 500,000 to the heirs of the decease d by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof he shall undergo simple imprisonment for six months. The benefit under section 382-B, Code of Criminal Procedure, 1898 shall be extended to him. The Criminal appeal No.72 of 2017 lodged by Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) assailing their conviction and sentences, is however dismissed with the modification in the quantum of sentence awarded to the appellants under section 337 F(i) PPC from simple imprisonment for one year to that of already undergone by the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta, keeping in view the circumstances of the case, favouring the reduction in the period of simple imprisonment awarded to the appellants namely Muhammad Akram alias Dilshad Ahmad, Muhammad Akmal and Muhammad Nawaz. The punishment of Daman of Rs.10,000/- to be paid by each of the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017) is however upheld and maintained. It is observed that if the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017) fail to deposit the Daman of Rs.10,000/- in the next twenty one days, they shall be taken into custody and shall remain imprisoned till the payment of Daman amount by them and their imprisonment during the said period shall be treated as simple imprisonment. The senten ces of the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017) were suspended by this Court vide order dated 21.02.2017, and the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhamma d Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017) are present before the Court on bail. The sureties of the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muham mad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017) shall stand discharged from their liability and the bail bonds submitted by the appellants namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawa z, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (the appellants in Criminal Appeal No. 72 of 2017) are hereby cancelled.
18. Consequently , the Murder Reference No. 08 of 2017 is answered in Negative and the sentence of death awarded to Muhammad Aslam son of Muhammad Nawaz is Not Confirmed.