' M. S. H. QURAISHI, J.-This is an appeal by leave of the Court. The three appellants, namely, Maqbool Ahmad, Abdus Sattar and Liaqat Ali, inter se, and their co-accused Asghar Ali, Muhammad Younas alias Gola and Muhammad Yousaf son of Rehmat Ali, were tried in a case relating to the murder of Ijaz Hussain and Ghulam Mehdi deceased and injuries to Nazir Ahmad and Shabir Hussain, P. Ws.
Three co-accused were acquitted but the appellants were convicted and sentenced as follows :
(i) under section i02/34, P. P. C. To death on each count and to a fine of Rs, 2,000 or in default to R. I.
For two years' each ;
(ii) under section 307/149, P. P. C. To R. I. For seven years' each ;
(iii) under section 449/149, P. P. C. To R. I. For two years' each ;
(iv) under section 148/149, P. P. C. To R. I. For two years' each ;
(v) under section 324/149, P. P. C. To R. I. For two years' each ;
(vi) under section 323/149, P. P. C. To R. I. For one year each ; ' It was further ordered that in case the death sentences be not confirmed, all the sentences of imprisonment would run concurrently. The convicts appealed before the High Court but their appeal was dismissed and their convictions and sentences except the one under section 148/149, P.
P. C. Were maintained and the sentences of death were confirmed.
2. According to the prosecution, there was a State owned Ahata, situate in Chak No, 137/P, Tehsil and District Rahimyar Khan, where the residents of the village wanted the Government to build a school. Asghar Ali, co-accused, however, took possession of it and made a woman to live there and offered his own land near the village for building the school. The Government agreed and the school building was constructed, but no sooner was it completed than Asghar Ali took possession of this building too, whereupon litigation followed. Yousaf Ali complainant and his co-residents of the village admonished Asghar Ali which gave rise to inimical feelings.
3. On the fateful day, i,e,, 7-8-1975 at about 11 a.m., Ijaz Hussain son of Yousaf All complainant had come to take bath at the hand pump in the ahata of his uncle Ghulam Mehdi. At that time, appellants Maqbool Ahmad armed with a revolver, Abdus Sattar with a barchhi and Liaqat Ali with a takwa and the acquitted co-accused Muhammad Yousaf alias Gola with a hatchet, Muhammad Yousaf son of Rehmat Ali with a sota and Asghar Ali with barchha, entered the ahata and opened fire. On hearing the report of the fire, Ghulam Mehdi, his brother Nazir Ahmad and son Shabir Hussain, who were, sitting in the room of the ahata, came out. Abdus Sattar appellant gave a barchhi blow on the abdomen of ljaz Hussain who fell on the ground with his intestines protruding out. When the witnesses tried to rescue him, Liaqat Ali gave two takwa blows, Muhammad Yousaf alias Gola two hatchet blows and Abdus Sattar appellant a barchhi blow to Ghulam Mehdi. Asghar also delivered a barchha blow to him, at which he, too, fell down on the ground. Liaqat All appellant gave two takwa blows, Muhammad Yousaf alias Gola one hatchet blow and Muhammad Yousaf son of Kehmat Ali for sota blows to Nazir Athinad P. W. Maqbool Ahmad appellant fired with his revolver hitting Nazir Ahmad on the left arm. Liaqat All appellant gave one takwa blow, Muhammad Yousaf alias Gola one hatchet blow and Muhammad Yousaf son of Rehmat All for sota blows to Shabir Hussain P. W. In the meantime, Nazir Ahmad P. W. Picked up a wood from the fireplace (choolah) and gave two blows to Abdus Sattar appellant. Shabir Hussain P. W. Similarly picked up a wood from the same choolah and inflicted 4/5 blows to Liaqat Ali in self-defence. Yousaf Ali complainant, Muhammad Siddiq and Allah Ditta P. Ws. Who had also rushed to the scene on hearing the commotion saw the occurrence. The assailants fled the scene carrying their weapons with them. Ijaz Hussain died at the spot. Yousaf All leaving others in injured condition, went to P. S. Sadar Rahimyar Khan where he lodged the report at 1 p.m. The same day. Meanwhile, the injured were taken to hospital but Ghulam Mehdi succumbed to his injuries on the way.
4. The appellants, who were arrested the next day, were also found to have injuries on their person, for which they were medically examined. On 15-8-1975, the police recovered a blood-stained takwa at the pointing of Liaqat Ali appellant, an unlicensed revolver at the pointing of Maqbool Ahmad appellant which had in its chamber five fired shells and one missed bullet, and a barchhi at the pointing of Abdus Sattar appellant. Presence of human blood on the takwa and the barchhi was confirmed by, the Serologist.
5. The post-mortem examination disclosed the presence of the following injuries on Ijaz Hussain deceased :"(1) Small and lam intestines were lying out of the abdomen and there was one punctured wound 1" through and through on the small intestines.
(2) A punctured wound 1" x x through and through on the small intestines at a distance of 1}" from injury No. 1.
(3) A punctured wound 1" x 1 x through and though on the small intestines 21" from injury No, 2.
(4) A punctured wound l" x 1" on the small intestines at a distance of 3" from injury No, 3.
(5) A punctured wound 1" x 1" X through and through on small intestines i" from injury No, 4.
(6) There were three punctured wounds which were through and through on the mesentery against injuries Nos. 3, 4 and 5.
(7) A punctured wound 1" x f" x through and through on the mesentery at a distance of 2" from injury No, 6.
(8) A stab wound 3i" x x viscera cut through and through on the left lower abdomen at 5 o'clock, at a distance of 3i" from the umbilicus.
' Injury No, 8 including its resulting injuries was found sufficient to cause death. All the injuries had been caused by sharp-edged weapon.
6. The examination of the body of Ghulam Mehdi deceased disclosed the presence of- "(1) An incised wound 1' x x scalp deep on the right side of forehead.
(2) An incised wound 1" x f" x scalp deep on the right side of the head at the parieto-temporal area 3" from right ear and 2' from injury No 1.
(3) An incised wound 1' x I" x scalp deep on the right side of the head at the parieto-occipital area 5" from right ear.
(4) An incised wound I" x f" x bone cut through and through (terminal phalynx of right little finger).
(5) An incised wound 2f" x x skin deep on the the right elbow joint at the posterior surface.
(6) An incised wound 3' x f' x skin deep on the right cheek tailing into right ear.
(7) Stab wound 5" x 2f" x viscera cut through and through on the right abdomen at 9, 10 and 11 o'clock, from the umbilicus and 2" from the anterior superior iliac spine.
(8) A stab wound 2" x I I" on the left side of the abdomen in the midaxillary line at 2 o'clock, 5f away from the umbilicus and 4' above the anterior superior iliac spine."
' Injuries 7 and 8 individually and the others collectively were found sufficient to have caused the death in the ordinary course of nature. All the injuries had been caused by sharp-edged weapon.
7. Nazir Ahmad P. W. Was found to have sustained- "(1) A firearm wound 1" x f" X D. N. P. On the left arm upper'" towards its medial aspect.
(2) A punctured wound N. P. On the posterior surface of right arm, middle *".
(3) Contusion on the front of left chest with central abrasion.
(4) Swelling with severe tenderness around the left thumb.
(5) An incised wound " x 1/10" x 1/10" on the anterior surface of right little finger.
(6) A punctured wound on the anterior surface of right knee-joint *" X *" x D. N. P.
(7) Contusion 3' x 1" on the posterior lateral surface of left thigh.
' The first injury was caused by firearm, injuries 2, 5 and 6 by sharp-edged weapon and others by blunt weapon. Injuries 1 and 4 were grievous, the others being simple.
8. Shabir Hussain P. W. Had suffered- "(1) One V shaped lacerated wound on the upper and lateral side of left eye, 1" x x skin deep.
(2) An incised wound 1k" x *" x 1/10" on the left arm outer side lower 1/3rd, transverse in direction.
(3) Multiple abrasions on the right elbow joint covering area 3" X 2'.
(4) A lacerated wound 1' x superficial on the left little finger medial side.
(5) An incised wound 11" " on the left buttock.
(6) An abrasion on the right knee joint."
' All the injuries were simple. Injuries 2 and 5 had been caused by sharp, edged weapon and others by blunt weapon.
9. Maqbool Ahmad appellant had one lacerated wound superficial on the posterior surface of left thumb and an abrasion on the left knee-joint, which were simple and caused by a blunt weapon.
Abdus Sattar appellant had one lacerated wound 1" x r scalp deep on the left of the head at the fronto-parietal area transversely oblique in direction, and a contusion 3" x 3' on the posterior and anterior and surface of left hand and left thumb, which were simple and caused by a blunt weapon. Liaqat Ali appellant had six injuries, of which three were lacerated wounds, one on the left side of the -head at the parieto-occipital area I" x 4." x, scalp deep at a distance of 4" from the left ear, the other scalp 'deep on the left side of the head in the fronto-parietal area, and the third skin deep on the middle of right thumb and right index finger. The fourth injury was a contused swelling on left index finger, the fifth a swelling on right knee joint and the sixth and abrasion on the left knee joint. All the injuries were simple and caused by a blunt weapon.
10. The ocular testimony was furnished by the two injured, namely, Nazir Ahmad (P. W. 14) and Shabir Hussain (P. W. 15) besides Yousaf Ali complainant (P. W. 12) and Muhammad Siddiq (P. W. 16).
In his statement under section 342, Cr. P. C. Maqbool Ahmad appellant came out with the following counter-version-- "On the day of occurrence, at about 10 a.m., I alongwith my brothers Abdus Sattar and Liaqat were coming to or house on a cart loaded by cotton sticks. When we reached near the house of Ghulam Mehdi deceased in lane Ghulam Mehdi deceased armed with takwa, Shabir P. W. Armed with dang Ijaz deceased with dang and Nazir P. W. Armed with barchhi encircled or cart. Ijaz deceased inflicted a dang blow on me on which I jumped and ran towards my house which is situated in the same lane at few paces and brought a revolver from my house. When I came out I saw Nazir raising lalkara to his companions saying `finish them because they are not allowing us to manage the marriage of Mst. Rafia'. Shabir and Mehdi were attacking Liaqat who was saving himself with his hatchet, and was inflicting injuries to Shabir and Mehdi in his self-defence. I fired few shots with my revolver in air in order to scare them away. Sattar had a sota in his hand by which he was driving the bullock-cart and he was defending himself from Ijaz Hussain deceased but when Nazir P. W.
Forwarded towards Abdus Sattar in order to inflict barchhi blow I fired at him on the left arm on which he fell down, at that time Mehdi deceased also attacked Sattar who jumped from the cart and picked up the barchhi which fell from the bands of Nazir and in order to save himself inflicted injuries to Mehdi and Ijaz deceased. Then Liaqat and Sattar also inflicted injuries to Nazir P. W. If we would have not acted in self-defence the above-mentioned deceased persons and P. Ws. Nazir and Shabir would have killed all of us. Yousaf son of Rehmat, alias Gola and Asghar Ali accused were not present at that time. At the end of the fight the people of the village who were present at that time were threatened by Nazir and Shabir that if anybody will depose against them they will be dealt with dire consequences."
' He further stated : "We have been involved and attacked at the instance of Mst. Hamida because she instigated Ghulam Mehdi, Nazir, Shabir and Ijaz to kill us because we were thought by her being a hurdle in the marriage of Mst. Rafia. I was married a month earlier to this occurrence. I alongwith Abdul Sattar and Liaqat Ali appeared before the police in the afternoon of the day of occurrence."
' The above statements were adopted by the co-appellants.
11. The trial Court came to the view that the case against Asghar Ali, Muhammad Yousaf alias Gola and Muhammad Yousaf son of Rehmat Ali had not been established beyond reasonable doubt for the reason that they having received no injury in the occurrence their participation was doubtful, that Asghar All had no grievance against the complainant party, that the prosecution witnesses had intentionally made improvements in their statements in order to implicate him, that Muhammad Yousaf son of Rehmat Ali, to whom sota blows had been attributed was an educated person (M. A. Passed) who had been falsely implicated on account of his being an uncle of the appellants and that the sota blows could have been caused by stick of the barchhi of Abdus Sattar. The trial Court accordingly acquitted them. As regards the appellants, the trial Court believed the recoveries and as for motive, held that the refusal to give Mst. Rafia in marriage to Maqbool Ahmad appellant had created strained relations between the parties and had prompted the three brothers to attack the complainant party. It, however, held the other motive relating to the school to be of weak type. It rejected the appellants' plea of private defence of body and found them guilty and convicted and sentenced them as aforesaid. With this the High Court agreed.
12. Leave was granted to consider whether the plea of self-defence in a sudden fight taken by the appellants had been given the treatment it A deserved, particularly when three of the accused had been acquitted and the factum of injuries caused to the appellants had not figured in the F. I. R.
13. Since the occurrence as also their participation in it is admitted by the appellants, we may first examine if the plea of self-defence taken by them and urged before us finds support from the evidence on record. In this connection, Mr. Ijaz Hussain Batalvi, appearing for the appellants, argued that it was the complainant party who had reason to attack because after their refusal to give Mst. Rafia, daughter of Ghulam Mehdi deceased, in marriage to Maqbool Ahmad, the latter had got married a month before the occurrence while Mst. Rafia was still unmarried and Maqbool Ahmad was being considered by the complaint not party as a hurdle in her marriage. It was next urged that the attack had been in the lane and not in the Ahata which fact was supported by the presence in the lane, of cotton sticks which the appellants had been bringing in their cart at the relevant time. Then, according to him, as a number of the injuries sustained by the appellants was on the head and the face, and as the complainant party was armed with deadly weapons, the appellants had reasonable cause of apprehension of death or grievous hurt in consequence of the assault on them and as such they had, under the law, the right to act in self-defence to the extent of causing death. He further pointed out that the complainant party had deliberately suppressed in the F.
1. R. The fact of their having caused injuries to the appellants.
14. Yousaf Ali and Nazir Ahmad P. Ws. Did admit that the hand of Mst. Rafia daughter of Ghulam Mehdi deceased had been demanded for Maqbool Ahmad appellant but according to them it had been refused on account of his immoral character and that she had been betrothed to llafqat son of Yousaf Ali P. W. But as he was still a student she was given to a nephew of Ghulam Mehdi. Yousaf Ali, Nazir Ahmad and Shabir Hussain P. Ws. All denied the suggestion that the complainant party nourished any grudge on account of it or that Mst. Hamida, the mother of Mst. Rafia, had instigated the complainant party to do away with Maqbool Ahmad. In fact, according to Nazir Ahmad P. W., it was the appellants' party who had nourished grudge against the complainant party for their refusal to accept him as a suitor. This appears to be more likely. Moreover, if the complainant party had any grudge, on this account, against Maqbool Ahmad appellant, there was no reason why they should have kept silent for nearly a month that the latter had been married.
15. There is also no proper material to justify the assertion that the incident had taken place in the lane. The cart on which the appellants say they had been coming is not in evidence nor is it shown that the cotton sticks lying in the lane had been the same as brought on that cart. Nor is there anything to show that the blood-stained earth had been recovered from the lane and in this connection though or attention was drawn to the fact that the Investigating Officer did not clearly state from where the blood-stained earth bad been recovered, there is reason to believe, in view of the ocular testimony and the site plan, that, it bad been recovered from inside the Ahata, the scene of the occurrence. The. Investigating Officer had stated that he had recovered blood-stained earth from where the deceaesd had fallen. No suggestion had been put to him that where the deceased had fallen was in the lane. The fact that the occurrence had taken place inside the ahata of deceased Ghulam Mehdi, and we see no reason to hold otherwise, is by itself sufficient to demolish the appellants' plea of private defence.
16. The sequence of events as given by the appellants also does not appeal to reason. According to the appellants, Ghulam Mehdi deceased armed with takwa, Shabir Hussain P. W. And Ijaz Hussain deceased armed with clang each and Nazir Ahmad P. W. Armed with barchhi encircled them and opened attack with Ijaz Hussain giving a :tang blow to Maqbool Ahmad appellant whereupon the latter ran to his house fromwhere he fetched a revolver. If the appellants had been encircled and the attack commenced by giving a blow to Maqbool Ahmad, it is difficult to believe that he could have made his way to his house. Moreover, some time must have elapsed before he returned to the scene because there was the ahata of one Abdul Wahab intervening between his ahata and that of the deceased and during this time the complainant party armed as they were could have caused much damage to the remaining two appellants. Yet, according to Maqbool Ahmad, he on return found Nazir Ahmad P. W. Still giving only lalkara to his companions to finish the appellants.
Then, the injuries suffered by the appellants are all simple and caused and by blunt weapons, though according to them, two of their assailants, namely, Ghulam Mehdi deceased and Nazir Ahmad P. W., were armed with sharp-edged weapons. The injuries suffered by the appellants could only be the result of half-hearted attack and as such there is reason to believe that they had been caused by the victims on the complainant side in their own defence, which is the prosecution case.
On the other hand, the number and intensity of the injuries suffered on the complainant side clearly show that the same had been the result of a determined attack with formidable weapons which are neither accounted for in the defence version nor compatible with the appellants' plea of self- defence. The point that the injuries caused to the appellants had not been disclosed in the F. I. R. Is not very material because it is not shown that Nazir Ahmad and Shabir Hussain P. Ws. Who had caused those injuries had not disclosed the same at the earliest opportunity. The defence version when put to the ocular witnesses had been flatly denied by them. There is thus no reason to accept the defence version of the occurrence. The plea of self-defence totally fails and had been rightly rejected by the Courts below.
17. The ocular witnesses are natural. Nazir Ahmad P. W. The brother and Shabir Hussain P. W. The son of Ghulam Mehdi deceased had been in the Ahata at the time of the occurrence. Even otherwise, they having suffered injuries in the occurrence their presence is not open to doubt. Yousaf Ali brother-in-law and Muhammad Siddiq brother of the same deceased had come attracted on hearing the gun report. The eye-witness account is fully supported by the medical evidence and the recoveries. The nature of the injuries inflicted on the complainant party, shows that there were more than three weapons used. Even the trial Court held that "There are also for types of injuries on the persons of the deceased as well as on the persons of injured". The inference is that there were more than three assailants. However, as the case of the acquitted co-accused is not before us, we may not go into it but at least the acquittal of the co-accused cannot detract from the credibility of the ocular witnesses.
18. The Courts below were, therefore, right in accepting the prosecution version of the case qua the appellants and rejecting that of the appellants and as such we maintain their conviction for the various offences committed. In the matter of sentence, however, we find that no injury caused to the two deceased is attributed to Maqbool Ahmad appellant and that the only injury attributed to him is, though grievous, but on a vital part of the body of Nazir Ahmad P. W. There is thus scope for reduction of his sentence.
' We accordingly reduce his sentence of death under section 302/34, P. P. C. To one for imprisonment for life on two counts, which will run concurrently with his other sentences. The sentence of fine is maintained. The appeal in all other respects is dismissed.