1. NASIM HASAN SHAH, J.-The petitioners herein, namely, Fazal Din son of Ibrahim, Hanif son of Musa, Nazir son of Ismail and Abdur Rehman son of Ghulam Muhammad, alongwith six others, namely, Ibrahim son of Mahanda, Muhammad Ramzan son of Ibrahim, Ismail son of Mabanda, Latif son of Sama, Muhammad Anwar son of Ahmad Din and Ch. Khurshid Ahmad son of Shahab Din were charged with forming an unlawful assembly in field No. 1072, at Chah Kabranwala, Khudian, while armed with deadly weapons, committing rioting by using force and intentionally injuring and murdering Bagh All (deceased) and voluntarily causing simple injuries with sharp-edged and blunt weapons to Abdul Qadoos and Siraj Din P. Ws. On 14th June, 1969 at 4/5 p. m.
2. The prosecution version, as it appears from the F. I. R. (Exh. P.A.) is that on 14th June, 1969, at 4.45 p. m., Hakim Abdul Majid (complainant) (P. W. 14) alongwith Abdul Aziz Rangraiz (P. W. 4) was Inspecting his fields at Cbah Kabranwala and his tenants, namely, Bagh A.I (deceased) and Siraj Din (P. W. 16) sons of Ghulam Muhammad and his son Abdul Qadoos (P. W. 16) were Irrigating Khasra No. 1072 and the ad--joining field with canal water. Meanwhile Ibrahim son of Mahanda (accused) armed with a takwa, Fazal Din (accused) son of Ibrahim with a spear, Muhammad Ramzan (accused) son of Ibrahim with a takwa, Abdul Rehman (accused) son of Ghulam Muhammad with a dang, Nazir (accused) son of Ismail with a dang, Muhammad Ismail (accused) son of Mahanda with kassi, Muhammad Hanif (accused) son of Musa with a takwa, Muhammad Anwar (accused) son of Ahmad Din with a dang, Muhammad Latif (accused) son of Sarna with a dang and Ch. Khurshid Ahmad son of Shahab Din (accused) empty-handed acting collaboration with one another emerged on the scene to forcibly occupy khasra No. 1072. The accused called upon Muhammad Ismail irrigate field No. 1072 who thereupon diverted the water to the, aid Khasra No. 1072 with his kassi. On seeing the accused Hakim Abdul Majid (complainant) alongwith Abdul Aziz came to the nearby geld. Bagh A.I (deceased) stopped Ismail from diverting the water, Khurshid accused raised a lalkara to kill the P. Ws. And the deceased. ;)n the exhortation of Khurshid accused the co-accused Ibrahim and "there afore-mentioned attacked Bagh A.I deceased and the P. Ws. Siraj Din and Abdul Qadoos.
3. Fazal Din accused (petitioner No. 1 herein) gave a blow to Bagh A.I hitting his right arm-pit, who fell down, Ibrahim and '4uhammad Ramzan (accused) gave takwa blows to Siraj Din P. W. Fitting his head. Muhammad Hanif (accused) (petitioner No. 2 here--in) gave a takwa blow on the left arm of Abdul Qadoos, P. W. Siraj Din P. W. Snatched the hatchet from the hand of Ibrahim (accused) and Abdul Qadoos P. W. Snatched the dang from Anwar (accused, with which the two P. Ws. Injured the accused in their self-defence. The :accused then gave other injuries to the deceased and the P. Ws.
4. Hereafter the accused ran after Hakim Abdul Majid (P. W. 14) and Abdul Aziz Rangraiz (D. W. 4) who ran for their lives towards Basti Kabir Kot. On their alarm Jalal Din Dogar and Abdul Aziz Mochi P. Ws.
5. Also were attracted to the scene. On seeing them the accused ran away towards the tube-well of one Muhammad Din from which side they have arrived. When Hakim Abdul Majid (complainant) (P.
6. W. 14), and Abdul Aziz Rangraiz (D W 4) went near the deceased and the injured, they found the deceased Bagh A.I to be dead. While Siraj Din and Abdul Qadoos P. Ws. Were also lying in an injured condition in the field. Leaving Jalal Din Dogar and Abdul Aziz Mochi P. Ws. With the dead body of the deceased and the injured P. Ws. Hakim Abdul Majid (complainant) went to the Police Station Khudian where he logded the F. I. R. (Exh.
1. A.) at. 5-15 p. m.
7. The motive alleged in the F. I. R. Was that nearly a decade ago Hakim Abdul Majid (complainant) (P.
8. W. 14) had purchased about 25 acres of land at Chah Kabranwala from one Muhammad Ishaq and hers, which land was in the cultivating possession of Ibrahim accused and his sons as tenants, Ch. Khurshid Ahmad (accused)? So wanted to purchase that land. On 10th May. 1969 the complainant Ibrahim (accused) and his sons elected from that land through Revenue and Police Department and himself came into its possession was on account of this grievance that the petitioners and their co---accused wanted to take possession of Khasra No. 1072 by irrigating it after "inverting the canal water to that plot of land.
9. The accused, namely, Fazal Din (petitioner No. 1 'herein), Ibrahim, Muhammad Latif, Nazir (petitioner No. 3 herein) and Abdur Rehman 1 petitioner No. 4 herein) were arrested by Sub-Inspector Muhammad Aslam S. H. O. Police Station Khudian on 14th June, 1969. He prepared 1lle inquest Report (Exh. P. D. D.) and Injury Statement of Bagh A.I deceased) (Exh. P. E. E.) He also prepared injury Statements regarding '"juries on the persons of Siraj Din (P. W. 16) (Exh. P. F. F.) and Abdul Qadoos (P. W. 15) (Exh. P. G. G.) and despatched the dead body to the mortuary at Kasur for post- mortem examination through F. C Muhammad Ilyas and Muhammad Yaqoob. The Investigating Officer then examined the P. Ws. Under section 161, Cr. P. C. And forwarded the injured P. Ws. To the Civil Hospital. Khudian for their medical examination. He also secured blood-stained earth from underneath the deceased and the injured .P. Ws. And made it into a sealed parcel vide Memo. Exh.
10. P. B.
11. Fazal Din (accused) while in Police custody led to the recovery of spear (Exh. P. 5) from the tube well of Muhammad Din from under--neath the reeds which was taken into possession vide Memo.
12. Exh. P. E. Ibrahim (accused) led to the recovery of takwa (P. 6) from the roof of the kotha of tube well of Muhammad Din which was secured vide Memo. Exh. P. F. Nazir accused (petitioner No. 3 herein) got recovered dang (P. 7) from the cattle-shed of Ibrahim (accused) which was secured vide Memo. Exh. P. G. Latif (accused) produced Bang (P. 9) which was secured vide Memo. Exh. P. J.
13. Abdur Rehman (accused) (petitioner No. 4 herein) led to the recovery of dang (P. B) which was secured vide Memo. Exh. P. H. Fazal Din, Ibrahim, Nazir and Abdul Rehman (accused) who were also injured were got medically examined. Shirt (P. 1) and Chadar (P. 2), both blood-stained, were removed from the person of Ibrahim (accused) and secured vide Memo. Exh. P. C. Shirt (P. 3) and safa (P. 4), blood-stained, were removed from the person of Fazal Din (accused) (petitioner No. 1 herein) and secured vide Memo. Exh. P. D. Shirt (P. 15) and chador (P. 16), blood-stained, were removed from the person of Abdur Rehman (accused) (petitioner No. 4 herein) and secured vide Memo. Exh. P. K. Shirt (P. 17), blood-stained, belonging to Nazir accused (petitioner No. 3 herein) was produced before the Investi--gating Officer by Hukam Dad F. C. Which had been given to the Constable by the Medical Officer, Khudian. Chadar (P.18) was also removed from the person of Nazir (accused) and the shirt (P. 17) as also chador (P. 18) of Nazir accused were secured vide Memo. Exh. P.
1. Ismail, Anwar and Ramzan accused were produced before the Investi--gating Officer by one Muhammad Sharif on 16th June, 1969 and they were arrested by the Investigating Officer. Ismail (accused) produced kossit (P. 19) which was secured vide Memo. Exb. P. H. H. Anwar (accused) produced Bang (P. 20) which was secured vide Memo. Exh. P. J. J. Muhammad Ramzan (accused) produced takwa (P. 21), blood-stained, which was secured vide Memo. Exh. P. K. K.
14. Muhammad Hanif accused (petitioner No. 2 herein) was declared as proclaimed offender. He surrendered himself before the Court and was formally arrested by the Investigating Officer on 23rd January, 1970. The Investigating Officer com--pleted the other necessary formalities. He also took into possession copies of the judgment and decree dated 30th April, 1968 passed by Mian Abdul Latif Revenue Assistant/A. C. I. Kasur, copy of daily diary of Patwari dated 3rd February, 1969 bearing No. 157, copy of daily diary of Patwari bearing No. 176 dated 17th February, 1969, another copy of daily diary of Patwari No. 325 dated 10th May, 1969 a copy of khasra girdawari nehri zaid rabbi 1969 relating to Khasra No. 1072 and enclosed them within the challan: He also obtained a report from the A. C. C. Kasur with regard to the possession of Khasra No. 1072 which was to the effect that the symbolical possession of the land was delivered to Abdul Majid (com--plainant (P.
15. W. 14) on 10th May, 1969 whereas the physical possession was that of Ibrahim (accused).
16. Post-mortem examination on the dead body of Bagh A.I (deceased) was performed by Dr. Nasim Ahmad Qureshi on 15th June, 1969 at,6 p. In. And he found the following injuries on his dead body:
(1) A stab wound on the right armpit at the upper and of the inner of the right arm. Its size was 1" x 3/4' and it was directed inwards for 3'. The axillary artery cut in the course of the wound.
(2) A contused wound on the back of the right arm at the lower 1/3 size 1' x 1/3' x skin deep.
(3) A contused wound on the forehead 2' above the right eye-brew size 1" x 1 /4' x scalp deep.
(4) A contused wound on the middle of the top of .The head, size 2" x 1 /2' x bone deep.
17. The stomach contained about 6 ounce semi-digested food matter and the bladder was empty.
18. Injury No. 1 was caused with sharp-edged weapon and the other injuries with blunt weapon. All the injuries were ante-mortem, In the opinion of the Medical Officer the deceased died due to massive injury and shock on account of injury No. 1 which was sufficient in the ordinary course of nature to cause death. The time bet--ween injuries and death was a few minutes and that between death and post-mortem about 24 hours.
19. The two injured P. Ws., namely, Abdul Qadoos (P. W. 15) and Siraj Din (P. W. 16) alongwith four injured persons of the accused-party, namely, Fazal Din, Nazir, Abdul Rehman (Petitioners 1, 3 and 4 herein) and Ibrahim accused, were examined by Dr. Muhammad Afzal Malik the 'then A.M.O., Khudian, on 14th June, 1969. As many as 16 injuries were found on the person of Abdul Qadoos (P. W. 15). Injury No. 8 (a reddish mark of contusion 2'x 1/4' on the lateral aspect of the ,left thigh oblique) was kept under observation and was later declared as simple vide X-Ray Report. Injury No. 2 on his person was with a sharp-edged weapon and the rent by blunt weapons, On the examination of Siraj Din (P. W. 16) as many as 7 injuries were found on his person. Injury No. I (an incised wound (3" x I/4' x 1/4') on the left parietal region 5" above the left ear vertical and injuryrd No. 5 (an incised wound 1 -- " x 1 /2" x 112") on the terminal phalanx of the right thumb on the posterior aspect, were kept under observation and were declared simple later on vide X-Ray Report. Injury No. 1 was caused with a sharp-edged weapon while the rest were with blunt weapons.
20. Ibrahim (accused) was examined the same evening and five injuries were found on his person.
21. Injury No. 1 (a clean cut mark 1" x 1/16' x superficial on the right parietal region 3 -- above the right ear oblique) was caused by a sharp-edged weapon, while the rest were with blunt weapon. All the injuries were simple and self-inflicted.
22. On the examination of Fazal Din accused (petitioner No. I herein), tour injuries were found on his person. Injury No. 1 (a clean cut mark 1/2' x 1/16' x superficial on the right parietal region at the back of the head oblique 3 -- above the right ear) and injury No. 2 (a clear cut mark 1/4' x 1 / 16" x superficial on the right partiatal region in front oblique 3' from the right ear) were caused by sharp- edged weapon, while injuries Nos. 3 and 4 by blunt weapon (self-inflicted). All the injuries were- simple in nature.
23. Three injuries were found on .The person of Abdul Rehman accused (petitioner No. 4 herein). All the injuries were caused by sharp-edged weapon (self-inflicted) within 2 to 3 hours.
24. Nazir accused (petitioner No. 3. Herein) was also examined the same evening. He had 3 injuries on his 'person. ' All the injuries were simple in nature and caused with sharp-edged weapon (self- inflicted) within 2 to 3 hours.
25. The accused persons when examined under section 342, Cr. P. C. Denied the allegations and ascribed the case to enmity. Ibrahim, Fazal Din, Nazir and Abdur Rehman (accused) stated that Bagh A.I (deceased). Abdul Qadoos (P. W. 15) and Siraj Din (P. W. 16), armed with lethal weapons had committed trespass in Khasra No. 1072 in order to take its possession and the P. Ws. And the deceased first attacked them and they had only acted in exercise of the right of private defence of their person and property, which was in their possession. The rest of the accused also denied the allegations and recovery of weapons from them. The accused Ismail, Muhammad Anwar, Muhammad Latif, Muhammad. Ramzan and Ch. Khurshid Ahmad denied their presence Ch. Khurshid. Ahmad (accused) explained that the prosecution witnesses had deposed against them because he had been appointed spurted of the land in dispute. Muhammad Hanif accused (petitioner No. 2 herein) alone denied his participation and stated that he had gone to Sind before the occurrence and on learning about the allegation against him voluntarily surrendered himself before the committing Magistrate. He also stated that- he owned 1 /4th of the disputed Khata and 1/4th of the Khata at Chah Kabranwala which he had mortgaged with Hakim Abdul Majid complainant who after the expiry of the period of mortgage was not willing to allow redemption on payment of the mortgage money on account of which he had been obliged to get the land redeemed through Revenue Court, Kasur He further stated that after redemption he re-mortgaged the land with Ibrahim (accused) and the complainant having felt annoyed by the above two acts had falsely involved him. He . Further stated that Hakim Abdul Majid (complainant) was still in possession of his (Hanif accused's) share of the land and was usurping the usufruct thereof. He, however, led no evidence in defence.
26. The learned Additional Sessions Judge, Kasur, in his judgment dated I8th December, 1973, arrived at the conclusion that so far as the injured-- accused, namely, Ibrahim, Fazal, Nazir, Abdul Rehman are concerned, their had participated in the occurrence. They wanted to divert canal water to land bearing Khasra No. 1072 at a time when it was the turn of the complainant and that the injuries found on their person were self-inflicted. He, however, acquitted Latif, Ismail, Anwar, Ramzan and Khurshid. Fazal Din (petitioner No. 1 herein) was convicted under Section 304, Part I, P. P. C. .For inflicting the fatal blow to Bagh A.I and causing his death and sentenced to imprisonment for life He also con--victed remaining three petitioners, namely Hanif; Nazir and Abdul Rehman (petitioners Nos. 2, 3 and 4 herein) alongwith Ibrahim (co-accused) under section 324, P. P. C. For voluntarily causing hurt to the injured P. Ws. And sentenced them to 2 years R: I. Each. He also found all the five convicted accused guilty under section 148, P. P. C. And sen--tenced- them to undergo further R. I. For one year each. All the sentences wire ordered to run concurrenly.
27. On appeal, a learned Single Judge of the Lahore High Court, by his judgment dated Ist July, 1975, maintained the conviction and sentence of Fazal Din (Petitioner No. 1 herein) under section 304, Part I, P. P. C. The convictions and sentences of the other four convicted co-accused under section 324, P. P. C. Were also maintained with the modification that Ibrahim's sentence was reduced to that already undergone, on account of old- age. The convictions and sentences of all the five convicts accused under section 148, P. P. C. Were, however, set aside. Dissatisfied with the above judgment of the High Court petitioners have moved this petition for special Leave to Appeal.
28. The above plea was also raised in the Courts below and has been considered by the trial Court and by the learned Judge in the High Court. It was found that the evidence on record established that the trouble started when a member of the petitioner-party tried to divert the water to land in Khasra No. 1072 and the deceased restrain--ed him from doing so. Thereupon, a free fight ensued between the parties wherein the petitioners inflicted injuries to the deceased and the P. Ws. The case was, in fact, one of free fight. Consequently no right of self-defence was available to any member. Even otherwise the defence plea was improbable insofar as members of the complainant- party were mercilessly beaten and one of them done to death whereas the members of the petitioner party had only suffered slight injuries which too had been found by medical evidence to be self-inflicted. The question of the petitioners having acted in the right of self-defence, in these circumstances, did not, therefore, arise.
29. We agree with the above appreciation of the situation. The learned counsel for, the petitioners was unable to point out any misreading o evidence or any other illegality or impropriety in the order of the High. Court. No case for interference by this Court in these proceedings, has been made out.
30. The petition fails and is hereby dismissed.