' In a trial held by Sardar Ghulam Farid, Additional Sessions Judge Sargodha in a case under section 302/307/34, P. P. C. Dosa son of Gaman (50), his son Nawaz (22) and Alam Sher son of Allah Jowaya (25) all Muslim Sheikh by caste, were convicted under section 302/34, P. P. C. And sentenced to imprisonment for life each and a fine of Rs, 2,000 each or in default of payment of fine to undergo further R. I. For a period of one year each for causing the death of Salahoon deceased in furtherance of their common intention. The fine if realized was ordered to be paid to the heirs of the deceased. They were also convicted and sentenced to five years' R. I. Each and a fine of Rs, 1,000 each under section 307/34, P. P. C. For making a murderous assault on Nalara P. W. In default of payment of fine they were to undergo further six months' R. I. Each. Both the sentences were to run concurrently. The learned trial Judge however, acquitted Yousaf son of Dosa, their co-accused, by giving him the benefit of doubt.
2. The convicts have filed the present appeal against their conviction and sentences.
3. The facts of the case briefly are that Muhammad Yousaf complainant was married to one Mst.
Bakhtan in Chak No, 40/N. B. And in exchange his sister Mst. Bakhtan was given in marriage to one Wazir son of Mitha, the brother of his wife. Twenty-five days prior to the occurrence he divorced his wife and as a reaction his sister was divorced too. The act of divorce on the part of the complainant offended Muhammad Nawaz maternal cousin of Mst. Bakhtan. The appellant Muhammad Nawaz was residing close to the jhugi of the complainant-party in the area of Chak No, 55/N. B. Muhammad Nawaz appellant and his relatives ,had the suspicion that the divorce had been given by the complainant at the instance of Salahoon deceased his maternal-uncle. In the earlier hours of the night preceding the occurrence an altercation with exchange of abuses took place between the mother of the complainant and mother of Muhammad Nawaz which gave rise to the exchange of tensile words between the men also which came to an end on the intervention of one Ramzan and Kaila who had come there as guests. On the day of occurrence at about rotiwela the complainant Muhammad Yousaf, his brother Muhammad Aslam and maternal-uncle Salehoon (deceased) and the latter's son Nazra P. W. We're returning to their homes from the house of Chanan after condoling the death of Mst. Fateh Bibi, the niece of his wife. Salehoon deceased and his son Nazra were going ahead whereas the complainant and his brother Aslam were following them at a distance of 50 karams. When the deceased and his son Nazra were passing in front of the jhugi of Dosa appellant, Alam Sher appellant challenged Salehoon that he would avenge the divorce and simultaneously gave a wahola blow to Salehoon which fell on his head.
Nawaz inflicted a hatchet blow on the face of Salehoon. Dosa gave him a dang blow. Nazra P. W.
Tried to intervene but was given a hatchet blow by Muhammad Nawaz and a dang blow by Muhammad Yousaf co-accused. Salehoon fell down after the receipt of those injuries. Muhammad Yousaf and Muhammad Aslam raised hue and cry and also tried to intervene but were scared by the appellants. The appellant and Muhammad Yousaf co-accused made good their escape with their respective weapons. On the noise the people from the nearby jhugis collected there. The deceased and the injured were taken to the Civil Hospital, Sargodha where at zoharwela Salehoon succumbed to the injuries.
' Ali Nasar Inspector (P. W. 10) while posted as S. H.
0. Police Station, Saddar Sargodha recorded the F. I. R. Exh. P. J. On 28th August, 1978 at 2-30 p. m. At the instance of Muhammad Yousaf P. W. He also partly investigated the case inasmuch as he prepared the injury statement Exh. P. K. And inquest report Exh. P. L. In respect with the deceased and despatched the dead body to the mortuary for post-mortem examination : visited the spot and took into possession blood-stained earthlvide memo. Exh. P. G. And then got the site plans Exhs. P. A. And P. A./l prepared by Rahmat All Patwari.
4. During the investigation, partly conducted by him. Muhammad Shafi S. I. (P. W. 5) arrested the appellants and Muhammad Yousaf co-accused on 1st September, 1978 since the latters had appeared before him. Muhammad Yousaf co-accused produced sota P. 1 which was taken into possession vide memo. Exh. P. C. Dosa appellant similarly produced rota P. 5 which the Investigating Officer took into possession vide memo. Exh. P. D. Alam Sher appellant produced blood-stained wahola P. 6 which was taken into possession vide memo. Exh. P. E. Muhammad Nawaz appellant produced before him blood-stained hatchet P. 7 which was taken into possession vide memo. P. F.
5, Doctor Muhammad Khan Malik (P. W. 11) on 28th August, 1978 at 11-40 a. m. Examined Salahoon while he was in injured condition and found the following injuries on his person :-
(1) Incised wound left side forehead near hair margine 8 c. m x c. In x bone deep with suspected fracture underline bones.
(2) Contusion left eye-brow with echymo's left eye with swelling around 6 c. In. x 5 c. m.
(3) Bleeding from nose, mouth, left ear.
(4) Incised wound left cheek 3 c. In x 1/2" x skin deep, ' Injuries Nos. 1 and 2 were kept under observation and No, 4 was declared as simple. Injuries Nos. 1 and 4 were caused with a sharp-edged weapon and No, 2 with a blunt weapon. This doctor on the expiry of Salehoon deceased held autopsy on his dead body, on 29th August, 1978 at 10.30 a. In. And found the same injuries. However, under injury No, 1 he found that the scalp was echymosed and reddish on inner aspect under that injury. There was fracture of fronto-parietal bones under injury No,
1. In his opinion injury No, 1 with its internal findings was sufficient to prove fatal in the ordinary course of life. The death occurred on account of intracranial haemorrhage and shock as a result of forceful and violent impact with a sharp-edged weapon of assault such as kulhari, kasi, wahola or any other similar weapon of assault.
' He examined Nazar Muhammad P. W. And found an incised wound on left parietal region 12 c. m. x 1 c. m. x bone deep with suspected fracture underlined wound ; a contusion on the back right shoulder 5 c. m. x 3 c. m. With swelling around and suspected fracture underlined wound. Both the injuries were kept under observation. Injury No, I was caused with a sharp-edged weapon whereas injury No, 2 with a blunt weapon.
6. At the trial the prosecution relied upon the following pieces of evidence :-
(i) Ocular evidence given by Muhammad Yousaf P. W. 8 and Nazar Muhammad P. W. 9, the injured witness.
(ii) The evidence as to motive furnished by Kaila P. W. 7 and Muhammad Yousaf and Nazar IVItthammad P. W. 8 and P. W. 9, respectively.
(iii) The recoveries, supported by the testimony of Muhammad Shafi S. I. P. W. 5, Ali Nasir S. H.
0. P. W. 10 and Muhammad Hayat P. W.
6.
(iv) The medical evidence given by doctor Muhammad Khan Malik P. W.
11.
7. The appellants and the co-accused when examined at the trial admitted their relation inter se.
Alam Sher appellant and Yousaf co-accused denied all the allegations and professed innocence.
They stated that they had been falsely involved in the case due to their relation with Dosa appellant.
' Dosa appellant stated that due to enmity over relations with the wife of Muhammad Yousaf complainant he had been falsely involved. He further stated that he was injured by Salehoon deceased and Nazar Muhammad P. W. During the occurrence but the police intentionally avoided to examine his injuries so as to change the complexion of the case. Nawaz appellant stated :- "I am innocent, Yousaf complainant suspected me of having illicit relations with his wife. Salehoon deceased, Nazar P. W. Attacked me on the day of occurrence which attracted certain persons from nearby 'jhugis'. They attacked and caused injuries to Salehoon and Nazra P. W. I had not given any injury to anybody. I also received injuries during this occurrence but the police intentionally did not get me examined so as to change the complexion of this case."
' No evidence was led in defence.
8. The learned trial Judge dealt with the evidence of motive in paragraphs Nos. 35, 36 and 37 and came to the conclusion :- "So in view of the matter, Yousaf and Nazra are independent P. Ws. Having no against the accused.
Both of them have deposed as to the motive asserting that 25 days prior to the occurrence, Mst.
Bakhtan was divorced by Yousaf complainant. The relation of Yousaf with Salehoon is admitted.
The relation of Mst. Bakhtan with the accused is admitted, and definitely the factum of divorce must have offended the accused and it is so proved on record that a day before the present occurrence, the women-folk of the parties exchanged abuses over this account which led to altercation and the same was followed by the men of both the sides, wherein the accused were on the one side and the parties were separated which has been fully deposed by Kaila P. W. This altercation between the parties is an immediate motive and it has been proved on record that the accused had the motive against the deceased for whom it is deposed that the accused suspected that Mst. Bakhtan has been divorced at his instance, which seems natural according to the prevalent set up of our society."
' He rejected the suggestions of the defence that since the occurrence took place near the jhughi of Dosa appellant as such the appellant acted in self-defence. As to the injuries alleged to have been suffered by Dosa and Nawaz appellants he observed that there was no proof of the injuries caused to these appellants by the complainant-party since both the appellants remained free for three days but neither they went to the hospital nor got themselves examined. Even at the time they appeared before the police they did not wish their examination.
' He believed the ocular testimony discussing the same in paragraphs Nos. 40, 41 and 42. However, he did not believe the recovery of dang P44 and dang P. 5 allegedly recovered from Yousaf co- accused and Dosa appellant since both were not stained with blood. He accepted the evidence as to the recovery of wahola P. 7 and hatchet P. 6 (blood-stained) recovered at the instance of Alam Sher and Muhammad Nawaz appellants, respectively. Consequently giving the benefit of doubt to Yousaf co-accused he acquitted him. However, he convicted and sentenced the appellants as mentioned above.
9. The learned counsel for the appellants has contended that the deceased Salehoon and his son Nazra P. W. Were not residents of the village. The deceased and his son had come to create mischief because Muhammad Yousaf complainant had suspected that his wife had illicit relation with Muhammad Nawaz appellant, so they wanted to punish him. The place of occurrence is in front of the house of Muhammad Nawaz, the reason given by the P.Ws. For coming near to the house of Muhammad Nawaz is false. The motive is false. It strikes quite unnatural because Muhammad Nawaz appellant was a distant relation of Mst. Bakhtan the wife of the complainant, being her khalazad. Muhammad Nawaz received injuries in the occurrence. Dosa appellant also received injuries but the prosecution suppressed the injuries as to both of them. Muhammad Yousaf P.W. 8 in his statement had admitted that Salehoon deceased was holding a small stick at the time of occurrence. Nazra P. W. 9 was confronted with his statement Exh. D. B. Wherein it was recorded that Salehoon deceased was having a dangori. He was also confronted with Exh. D. B.
Wherein it was stated that Muhammad Nawaz and Dosa appellants received injuries at the hands of his father Salehoon deceased. Mst. Fateh Bibi died 25 days ago in village hadali therefore, to say that they had gone to condole the death of Mst. Fateh Bibi to the house of Chaisnan whose wife's niece she was in Chak No, 55/N. B. Is false. Alam Sher appellant was not present. Had he been present he would have also received injuries like Dosa and Muhammad Nawaz appellants. It is a case of self-defence as to Muhammad Nawaz appellant because the occurrence took place in front of the house of Muhammad Nawaz. The injuries as to Muhammad Nawaz and Dosa appellants were admitted but concealed by the prosecution. In the alternative the case is that of a sudden flare up, as such not of culpable homicide amounting to murder, therefore, it is to be measured according to the individual liability. The case falls under section 304-II, P.P.C. Where at the worst the appellants are liable either to five years' R. I. Or seven years' R. I. Except Dosa appellant.
10. The learned counsel for the State has in his reply submitted that no case of self-defence has been made out. The motive has been believed by the learned Additional Sessions Judge in para. No, 37 of his judgment and the plea of self-defence has been dealt with, in paragraph No, 44 of his judgment. However, it is admitted that the deceased was carrying a small stick but it is nowhere in the record that the deceased opened the attack first. It is also not there that he wielded his stick. It has already been held by the learned Additional Sessions Judge that if the deceased used his stick then he used that when he was attacked. The case against the appellants is fully proved. They are, therefore, not entitled to the benefit of Exception IV to section 300, P.P.C.
11. In view of the facts on the record it cannot be believed that the deceased and the P. Ws. Were waylaid by the appellants because it could not be known before hand that the complainant-party would be returning by that time after condoling the death of Mst. Fateh Bibi and also it does not strike as probable that the complainant-party for the purpose of condoling the death of Mst. Fateh Bibi instead of her parents would go to a distant relation. It can also be not conceived that Alam Sher appellant who is son-in-law of Dosa appellant and is alleged to have challenged at the opening that he would avenge the divorce and then simultaneously inflicted wahola blows to Salehoon deceased, was in any way an aggrieved person and same wise Muhammad Nawaz appellant who only happened to be a khalazad of Mst. Bakhtan, was aggrieved, so also his father.
The divorce had taken place 25 days before the day of occurrence, so the motive as set out is not forceful.
12. Dosa and Muhammad Nawaz appellants received injuries during the same incident the likelihood of which is very much there in view of the confrontation of Nazra P. W. With his statement before the police Exh. D. B. Wherein it was stated that Salehoon deceased was holding a dangori and he caused injuries to Dosa and Muhammad Nawaz appellants, Muhammad Hayat P. W. Also deposed the same though he was declared as hostile witness but nevertheless his statement remained a part of the record, so it can be inferred that the prosecution deliberately suppressed the injuries perhaps to strengthen its own version. It is within the evidence that a day before the occurrence complainant's mother and mother of Muhammad Nawaz appellants altercated with an exchange of abuses which was witnessed by Ramzan and Kaila P. Ws. It was also followed by an altercation between the men who were separated by Ramzan and Kaila P. Ws. This is sufficient to indicate that the men on both the sides had become emotional not due to the divorce but due to the exchange of abuses between the two ladies. The occurrence took place in front of the house of Muhammad Nawaz appellant and as it has been said above that this was not a case of waylaying, then it comes to be a case wherein the parties per chance met on the thoroughfare near the house of Muhammad Nawaz appellant and as they had a day earlier altercated, they once again entered into that on the day of occurrence. The appearance of both the parties at the scene amply shows that the complainant-party was not armed except that Salehoon deceased was carrying a dangori, therefore, there is no substance in the submission of the learned counsel for the appellants that the complainanti-party had come to attack either Muhammad Nawaz or all of them, the submission of the learned counsel that the appellants had a right of self-defence is not maintainable. Salehoon deceased cannot be said to have armed himself with a dangori because towards the waning age it is used as a support. In the absence of the medical examination as to the injuries which appellants Dosa and Muhammad Nawaz received, the injuries will be presumed as simple. Had the injuries been grievous, the appellants who were arrested three days after the occurrence, would have got themselves medically examined. As to the weapons with which the appellants were said to have been armed, no exclusive inference can be made that they had come prepared because in villages these are the weapons which are usually carried towards the process of husbandry. It was peshiwela and they could be taken to have come out with their instruments just to resume their ordinary pursuit, when the possession of weapons can be explained on any other line as well then no inference as necessarily is to be drawn from that fact so as to indicate the intention of the persons who carry such instruments. The prosecution cannot belie the infliction of injuries by Salehoon deceased upon Dosa and Muhammad Nawaz appellants.
Most of the contentions of the learned counsel have been met by the learned Additional Sessions Judge and there is no reason to differ with his findings in that behalf. There is much substance in the plea in the alternative raised by the learned counsel.
13. It appears as viewed from both the sides a case of sudden fight without premeditation in an altercation in which both the parties suffered injuries which aspect of the case has not been viewed by the learned trial Judge. Each of the appellants is said to have given one blow to the deceased though Muhammad Nawaz appellant repeated his blow but at a different person i. e.
Nazra P. W. The appellants cannot be said to have acted in a cruel or unusual manner since there was no repetition of the blows either on the deceased or the P. W. One blow as to each can be said to have been given in the heat of passion upon a sudden development. The measure of liability in such a situation is individualistic. The injury attributed to Dosa appellant has been returned as simple having been caused with a blunt weapon. Therefore, he can only be regarded as guilty of causing simple hurt to the deceased. The injury attributed to Alam Sher appellant is with a wahola on the head of the deceased which caused the death of the deceased though it can be said as without any intention to cause death yet from the seat of the injury with the weapon used, knowledge can be attributed to Alam Sher appellant that the injury inflicted by him was likely to cause death. The injury attributed to Muhammad Nawaz appellant qua the deceased has not been said as contributing towards the death of the deceased. It has been on the other hand declared as simple.
' As to Nazra P.W. Muhammad Nawaz appellant is attributed a hatchet blow on his head causing fracture.
14. For the foregoing reasons this appeal is partly accepted. The conviction and sentences of the appellants under section 302/307/34, P.P.C. Are set aside. The case as falling under Exception IV to section 300, P.P.C. Is covered by section 304-11, P.P.C. So far as is concerned Alam Sher appellant. He is, therefore, convicted under section 304-11, P.P.C. And sentenced to 10 years' R. I. With a fine of Rs, 2,000, or in default to undergo six D months' R. I. Dosa appellant is convicted under section 323, P. P.
C. And is awarded six months' R. I. For causing simple injury to the deceased. Muhammad Nawaz appellant is convicted and sentenced under section 324, P.P.C. And is awarded two years' R. I. And a fine of Rs, 500 or in default thereof to undergo four months' R. I. For having given simple injury with the hatchet to the deceased. Muhammad Nawaz is further convicted and sentenced under section 326, P.P.C. To five years' R. I. And a fine of Rs, 500 or in default thereof to undergo further four months' R. I. For causing grievous injury with a hatchet to Nazra P. W. Both the sentences shall run concurrently. The fine if realized from Alam Sher and Muhammad Nawaz appellants shall be paid to the legal heirs of the deceased. Similarly the fine if recovered from Muhammad Nawaz appellant (under section 326, P.P.C.) will be paid to Nazra P. W. The learned trial Judge has failed to give the benefit of section 382-B, Cr. P.C. To the appellants. The Jail Authorities are directed to extend the benefit of section 382-B, Cr. P. C. To the appellants. .