SHAFIUR RAHMAN, J.-Two criminal appeals, one filed by the two convicts and the other by the father of the two deceased who was himself injured in the occurrence, and time-barred petition for leave to appeal by a third convict, are all directed against the judgment of the Lahore High Court dated 17th March, 1975 whereby the appeals filed by the convicts partly succeeded and the revision petition filed against convicts and other accused failed. Leave to appeal was granted to examine whether in view of the finding of the trial Court and the observations of the High Court itself it was not a case of application of section 149, P. P. C. And whether the respondents who were charged for causing the murders of Sher Zaman and Asad Ullah and injuries to six other could be acquitted on the murder charge.
The prosecution case, in brief, was that on the 29th March, 1971 at about 2-30 p. m. Yousaf complainant had gone to his fields in order to cut shatala. He had taken a sheep along with him and driven it to the fields. On the way the sheep went astray into the Shatala crop of Arif and Arif used a provocative language to warn Yousaf to take out the sheep from the crop. There was an altercation between them followed by grappling in which Arif petitioner was thrown on the ground, Sabir his companion is said to have intervened and separated them. After cutting Shatala from his own field Yousaf returned to his Dera when all the respondents, Sadiq, Arif, Bodi, Sabir armed with spears and Taj Din, Abdul Malik and Younas absconder armed with hatchets and A.I Muhammad with a Danda appeared on the scene looking for Yousaf (P. W. 14) who had insulted and beaten Arif.
Yusuf (P. W. 14) and his younger brother Mubarik (P. W. 18) tried to run away and seek protection of others related to them who were working in the field. The accused pursued them and opened attack on them treating them all as of one party. Yousuf (P. W. 14) managed to ward off all blows by his Lathi. Sadiq appellant gave a spear blow to Sher Zaman causing his instanta--neous death. He also inflicted a Barchi blow to Mubarik (P. W. 18). Bodi and Arif appellants both gave Barchi blows to Asad Ullah who died subsequently in the hospital. Arif also gave a Barchi blow to Mubarik (P. W. 18) while Bodi gave a Barchi blow to Niaz Khan (P. W. 19). A.I Muhammad gave a Lathi blow to Jafar Khan (P. W. 15) causing a grievous and a simple injury to him and he also caused simple injuries to Sarwar. Sabir gave a Barchi blow to Nawab (P. W. 16). Taja gave a hatchet blow from the blunt side to Sarwar causing simple injury. Abdul Malik respondent gave a hatchet blow from the blunt side to Jafar (P. W. 15).
Muhammad Yousaf (P. W. 14) went to Police Station Sadar, Sheikhupura, and lodged the report about the occurrence at 5-45 p.. m. It was recorded by Abdul Aziz (P. W. 29). He arrested the accused except Yaja, Arif and Sadiq who along with Younus could not be arrested and were declared proclaimed offenders and arrested on 22-5-1971 by Agha Abdul Ghani (P. W. 26). Younus remains an absconder in the case to date.
The plea of the accused was that they had not participated in the occurrence and had been falsely implicated. It is only Abdul Malik alias Molu who made a statement explaining the occurrence and their implication in it, in the following words :- "On the day of occurrence I was cutting fodder with Arif accused, when a sheep of Yusaf P. W.
Trespassed into the field and damaged the crop. There was an exchange of abuses between P. W.
Yousaf and Arif accused. They grappled with each other. I gave three or fours laps to Yousaf, who went back to his Dera, and brought the injured P. Ws., and they all caused injuries to us with Kulharis. I raised an alarm. Basbir, Cheema, Sadiq, Ahmad and Jahana came to the spot and tried to rescue me. They were also given beating by the P. Ws. So they in self-defence and to save me from the clutches of the P. Ws. Injured them. There was no one else at the spot at the time of occurrence. After the occurrence, I, Bashir, Sadiq, Ahmad and Jahana were taken to the Civil Hospital. I was unconscious for 3-4 days."
This accused had the following injuries on his person which were examined and reported by Dr. Shafiq Ahmed (P. W. 1) at 6-30 p. m. The same day- "(1) An incised wound 3/4' x 1/8' scalp deep on the right middle of skull 3 --' above the right ear.
(2) A shaped incised wound 2' x 1/8' scalp deep on the anterior part of right side of skull just behind the interior hair margins.
(3) An incised would 3/4' X 1/2' skin deep on the right side of the face just outside the right eye- brew."
At the trial, apart from Muhammad Yousaf (P. W. 14) the complainant who had lodged the report, six eye-witnesses who were all injured in that occurrence were also produced to implicate the respondents and to explain the injuries received by them. They are Jafar Khan (P. W. 15), Nawab Khan (P. W. 16), Anwar Ahmad Khan (P. W. 17), Mubarik Khan (P. W. 18), Niaz Khan (P. W. 191 and Sarwar Khan (P. W. 20).
The recoveries were also effected, from Sadiq (Barchi Exb. P. 7) from Arif(Barchi P. 5), from Taja (hatchet Exh. P. 6) from A.I Muhammad a dang, from Sabir a Barchi, from Bodi a Barchi and from Abdul Malik a hatchet.
The learned trial Court after considering the entire evidence on record and the plea of the accused recorded the following findings with regard to their implication and application of section 149- "Although there is no doubt that the accused formed an unlawful assembly, and armed with deadly weapons they came in a rioting fashion to attack the complainant party, and they all did take part in the assault, I would not hold them jointly or constructive liable for causing the death of Sher Zaman and Asadullah, and for causing grievous and simple injuries to the P. Ws. Attracting applicability of section 149, P. P. C. Along with section 302/307/326/325/324/323, P. P. C. So far as the forming of unlawful assembly and committing of rioting was concerned, they were all equal offenders but respecting other offences I think they should be awarded punishment according to their individual roles."
Thereafter the trial Court proceeded to determine the guilt of each accused and came to the conclusion that Sadiq was responsible for causing the death of Sher Zaman for which he was sentenced to death and to pay a fine of Rs. 2,000 or in default to suffer two years' R. I. Bodi and Arif appellants were found guilty under section 302, P. P. C. For causing the death of Asadullah and sentenced to life imprisonment and a fine of Rs. 1,000 or in default to 1 Year's R. I. Sadiq was also found guilty under section 324, P. P. C. And sentenced to one years rigorous imprisonment and a fine of Rs. 1,000. Arif was additionally held guilty under section 326 for causing Barchi injury to Mubarik and sentenced to 5 years' rigorous imprisonment and a fine of Rs. 500 or in default six months' R. I. Bodi was convicted under section 326, P. P. C. And sentenced to 5 years' R. I. And a fine of Rs. 500 or in default six months imprisonment for causing Barchi injury to Niaz Khan. A.I Muhammad was convicted for causing grievous and simple injuries to Jafar Khan and was sentenced on conviction under se Lion 352, P. P. C. To 3 years' R. I. And a fine of Rs. 300 and under section 31?v>.One year and a fine of Rs.
100. He was also convicted for causing simple injuries with blunt weapon to Sarwar (P. W. 20) and on conviction under section 323 was sentenced to 1 year rigorous imprisonment and a .Fine of Rs.
100. Sabir was also convicted under section 324 for giving a Barchi blow to Nawab and sentenced to one year R. I and a fine of Rs.
100. Taja was held guilty under section 323, P. P. C. For using the blunt side of hatchet on Sarwar and causing simple injuries and was sentenced to one year R. I. And a fine of Rs.
100. Abdul Malik was similarly convicted under section 323, P. P. C. For causing the blunt side hatchet injury to Jafar and sentenced to one year R. I.
And a fine of Rs. 100.
On two criminal appeals filed by the convicts and a criminal revision filed by Jafar along with the reference received from the Sessions Judge with regard to confirmation of death sentence of Sabir the High Court re-examined the entire case, and came to the following conclusion :--.
"It is probable that on account of this incident the appellants collected together and proceeded to teach a lesson to the complainant side who were cutting fodder crop in the adjoining field. If the testimony of the injured eye-witnesses as well as Muhammad Yousaf P. W. Is read with the background of this motive, it appears that a sudden fight broke out between the complainant and the accused parties in which Abdul Malik appellant sustained injuries from the accused side and six persons were injured plus two died on the complainant side. It may also be noted here that in the F.I. R. The injuries sustained by Abdul Malik appellant were not mentioned at all indicating thereby that the complainant side had either suppressed this fact deliberately or were trying to minimise their own role in the fight. We have heard the arguments of learned counsel as well as carefully perused the record and we are of the considered opinion that the case of the appellants would fall under Exception IV to section 300, P. P. C. And that in the circumstances each of the appellants would be responsible for its own act."
Applying the standard set forth the High Court altered the conviction of Sidiq front one under section 302, P. P. C. To one under section 304, Part I and sentenced him to life imprisonment and a fine of Rs. 1,030. Bodi and Arif were also convicted under section 304-I and sentenced to 10 years' R.
I. Or in default 500 rupees. The sentences to Arif, Bodi, A.I Muhammad, Sadiq, Taja and Molu under sections 326, 325- and 323 were maintained but were appropriately reduced. And in cases of sentence under sections 323, and 324 the sentence already undergone was considered sufficient along with a fine of Rs. 100 which was required to be paid within 15 days of the announcement of the judgment.
The learned counsel for the convicts-appellants urged that the first information report in the case was very sketchy, that the complainant Yousaf had made different statement at different times and that no clear picture emerged with regard to the injuries inflicted by each of the convicts- accused. Besides, it has been urged by him that there was a material suppression in so far as Abdul Malik's injuries were concerned which were by a sharp edged weapon and on the head.
Injuries caused to Asadullah deceased were not mentioned at all in the F. I. R. A number of other persons belonging neither to complainant side nor to the accused were injured in the same occurrence and it is most likely as pleaded by Abdul Malik, that they had caused the injuries to the prosecution side.
As regards the appeal by Jafar it has been contended that the very finding of the High Court that the accused had collected together and proceeded to teach a lesson to the complainant would show that there was a unity of object and it was to teach a lesson.. As some of the accused were armed with spears and hatchets and only one of them had a Lathi, the common intention could not be but to cause fatal injuries resulting in death of some of the persons whom they were going to teach a lesson. Such a collection and such an aggression would attract the application of section 149, P. P. C. And hence all the accused, everyone of them without exception, should have been saddled with the responsibility for causing the death of Sher Zaman and Asadullah and appropriately punished for the same.
We have examined the record and beard the learned counsel for the parties at length. The admitted facts of the case show that there was a sudden quarrel between the Yousuf and Arif.
What followed, was soon after, that is, within half an hour. Keeping in view the season of the year and the time of the day one can take it that at that hour, that is at about 2-30 p. m. The farmers would be in their fields attending to fodder and other maturing crops. The presence of so many of the complainant party bears this out. Though the allegation was that all the accused appeared together from the direction of the village, what appears more probable, and what has been accepted by both the trial Court as well as the High Court, is that they came to the scene from their fields in the neighbourhood and not necessarily after collecting together and making full preparation from one place and with one object. They had with them the weapons which ordinarily the farmers have' while attending to their agricultural pursuits away from their Dera or village. If it were otherwise, the object of their attack would have been Yousaf and Yousaf mainly and others only incidentally and in giving protection to Yousaf. In the case in hand we find that Yousaf had not received any injury whatsoever and his explanation for not receiving any injury is not entirely satisfactory. This aspect of the prosecution case makes the injury on the person of Abdul Malik important, for these show that there was counter-attack, for otherwise Abdul Malik would not have, in a one-sided attack, received those injuries which he had received. They remained unexplained for a long time arid even then when they were explained there was an obvious discrepancy with regard to person causing it and the weapon used in causing it. It is true that there were six injured witnesses who could depose about the occurrence and have stated about it. There was however, inherent indications in the prosecution case itself to show that there was a fight in which the accused side acted with greater precision and concert than did the complainant, side. The time between the' first occurrence and the second occurrence ultimately on closer scrutiny comes out to be half an hour which would be taken for collection of persons from the neighbouring fields when the news of beating of Arif reached there.
These features of the case as disclosed at the trial led the trial Court to conclude that "I would not hold their jointly or constructively liable for causing the death of Sher Zaman and Asadullah, and for causing grievous and simple injuries to prosecution witnesses." It was for this- reason that individual role was ascertained and responsibility fixed accordingly.
The High Court on re-examining the evidence came to the conclusion that there was a fight and in view of the injuries of Abdul Malik by a share edged weapon on a vital part of the body which remained unexplained, concluded that apart from individual responsibility it was a case of culpable homicide not amounting to murder. The conclusions drawn by the High Court in arriving at the conviction of the accused appear to be plausible and not liable to interference simply because on a stricter standard a different view could be taken. Therefore, the convictions, as ordered by the High High Court are maintained. As regards the sentence particularly of fine and compen--sation where deaths were caused we find on the facts of the case to be highly inadequate and to that extent allow the appeal of Jafar Khan and enhance the fine against Sadiq to Rs. 10,000 or in default 5 years' R.
1. And another Rs. 1,000 as compensation under section 544-A or in default 6 months' R.
1. In case fine and compensation is recovered the entire sum of Rs. 11,000 shall be paid to heirs of Sher &man. The fine against Arif and Bodi is enhanced to Rs. 5,000 each or in default three years' R.
1. And another sum of Rs. 500 each as compensation or six months' R.
1. In case of recovery of fine and compensation (Rs. 11,000) the entire amount shall be paid as compensation to heirs of Asadullah. The appeal of the convicts fails and is dismissed and leave to appeal is refused to Arif being hopelessly time---barred.
S. Q.