1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal is directed against judgment, dated 8-12-1975 of the Lahore High Court whereby a criminal appeal arising out of a murder case was dismissed.
2. Leave to appeal was granted "for the purpose of satisfying ourselves that the convictions recorded against the petitioners are consistent with principles, governing the safe administration of criminal justice". In the circumstances noted as follows.
3. ' The five appellants alongwith one Muhammad Latif were tried by a learned Additional Sessions Judge for offences falling under sections 302 and 323, P. P. C. Muhammad Latif was acquitted whereas Muhammad Aslam alone was convicted under section 302, P. P. C. And sentenced to undergo imprisonment for life and to pay a fine of Rs, 1,000. The remaining four appellants namely Muhammad Sharif, father of Muhammad Aslam, Muhammad Siddique son of Ghulam Muhammad, Muhammad Siddique son of Din Muhammad, and Muhammad Yaqoob appellants who were very closely related inter se were each convicted under section 323, P. P. C. And sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs, 500 each, A learned Judge of the Lahore High Court maintained these convictions and sentences by the aforementioned judgment against which as already noted leave to appeal was granted.
4. ' The occurrence took place on 27th August, 1972 at 4 p.m. In village named Chaiyeiwali. From the prosecution side besides Lal Din deceased, Atta Muhammad, Muhammad Riaz and Bashir Ahmad eye-witnesses received injuries in the occurrence in question. Lal Din deceased had suffered both types of injuries from sharp-edged and blunt weapons, Muhammad Aslam appellant used a knife while Muhammad Siddique son of Ghulam Muhammad had a Darat while the remaining accused were said to have been armed with Sotas. On the appellant side also Muhammad Sharif suffered numerous injuries with blunt weapon including a grievous one on his head resulting in the fracture of the right parietal bone. On the same side Mst. Hanifan sister of Muhammad Sharif suffered two injuries : an incised wound on the left side of her forehead and another a minor blunt weapon injury on a finger.
5. ' Both the Courts below held that the incident arose all of a sudden and each accused was responsible for his individual act. It has also been held that the fatal injury to Lal Din was caused by Muhammad Aslam appellant. The plea of self-defence raised by Muhammad Sharif as also the plea of alibi raised by some other accused, was rejected. In connection with the plea of self- defence, it has been observed in the impugned judgments that the defence had failed to examine Mst. Hanifan so as to ascertain the circumstances and background relatable to the plea of self- defence and because the doctor who had medically examined Mst. Hanifan was also not produced by the defence, it remained inconclusive as to what was the real nature of the injuries suffered by her.
6. ' We have with the help of the learned counsel gone through the evidence. Atta Muhammad P. W. 6 is an injured eye-witness. He is also the first informant. It would be of advantage to notice the prosecution case regarding motive and occurrence from the deposition made by him at the trial :- "I was sitting in my house. I heard noise from the side of mosque. I came to the mosque. I saw there Siddiq, Aslam, Muhammad Sharif, Muhammad Yaqub, Siddiq son of Muhammad Din, and Muhammad Latif accused. Aslam accused had knife in his hand. Muhammad Siddiq son of Ghulam Muhammad accused had a Drat and the remaining 4 accused had Sotas in their hands.
7. They were quarrelling with Lal Din (deceased). They were asking him to hand over possession of 7 Marlas of land situated in village Hargnanwala to Muhammad Sharif son of Boota of village Hargnanwala. Lal Din deceased was refusing to do so. On his refusal, Muhammad Siddiq, son of Ghulam Muhammad accused gave him Sota blows which hit the deceased on the right arm. Then Yaqub accused began to beat him with Sota. Then Muhammad. Siddiq son of Muhammad Din accused also started beating him with Sota. Then Muhammad Aslam accused gave knife blow to the deceased on his right shoulder, on which Lal Din fell down with his mouth downward. Then Aslam accused again gave knife blows on his back near the shoulder. Then Bashir and Riaz P. Ws.
8. Began to reprimand Muhammad Aslam accused for his knife blows. Then Muhammad Siddiq son of Ghulam accused abused the remaining accused and remarked that it was sad that the 5 persons could not finish Lal Din. Then I restrained with my hand in order that no further injury be inflicted on thee person of the deceased. When I advanced my hand, Muhammad Siddiq gave me Drat blow on my left hand. At this stage, on the alarm of the deceased many persons assembled there on which all the accused ran away with their respective weapons. Then we brought the cot on which we took Lal Din in injured condition went to the police station. But on the way near the village Chohan, Lal Din expired. Then we took the dead body to the P. S. Where I lodged the F. I. R.
9. Exh. P. A. Which was read over to me and I signed the same in token of its correctness. Besides myself, Bashir Ahmed, Riaz and Muhammad Boota Lambardar had also witnessed the occurrence.
10. Bashir Ahmed P. W. Had also received injuries during the occurrence at the hands of Muhammad Yaqub accused. Riaz P. W. Received injuries by accused Latif. Riaz and Bashir P. Ws. Had also Sotas and they had also given blows to the accused Sharif. Latif accused had also given Sota blows to Lal Din deceased during the occurrence."
11. ' The defence plea contained in the statement of Muhammad Sharif accused which was adopted also by Muhammad Aslam appellant, reads as follows :- "On the date of occurrence my nephew Nisar Ahmed was illegally confined by Hamid in respect of which my sister Mst. Hanifan complained to Atta Muhammad and other P. Ws. Instead of redressing her grievances, they beat her. When she was being beaten I happened to pass by that way. I intervened and gave a few Sota blows to Lal Din. The complainant-party attacked me. Lal Din had a knife with him and assaulted on me with it. I snatched away that knife from him and inflicted injuries on his person. Lal Din also received injuries on his hand and arms during the scuffle.
12. Thereafter Atta Muhammad P. W. Tried to snatch that knife from me and got his hand injured. I was beaten by the complainant-party. I fell unconscious on the spot and was removed to the hospital. I acted in self-defence and also to defend Mst. Hanifan who was also injured and was medically examined on that date. I have been involved in this case falsely due to the enmity of the P. Ws."
13. ' It needs to be mentioned that the weapons of offence were recovered from all the accused including a knife Room Muhammad Aslam appellant. It was stained with human blood. This recovery has not been seriously challenged by the learned counsel for the appellant with the explanation that even if the participation of Muhammad Aslam appellant is established, he would gain benefit in case plea of self-defence is allowed to Muhammad Sharif appellant, his father.
14. ' Learned counsel for the appellant has stressed that although an attempt was made by the eye- witnesses to withhold the reality about Mst. Hanifan having been injured in the same occurrence, there was sufficient material on the record for the learned Courts below to give a positive finding in this behalf in favour of the defence. He has particularly relied upon the admissions made by the Investigating Officer and Muhammad Boota an eye-witness when under cross-examination. He has also relied on Exh. D.D.. Which is the medico-legal report regarding injuries on Mst. Hanifan and it; was admitted by the Investigating Officer as the same which was issued by the doctor regarding injuries received by Mst. Hanifan. Learned counsel further pointed out that even Atta Muhammad complainant while professing (at the trial) ignorance about injuries to Mst. Hanifan, could not deny that he had when dictating the F.I.R. Mentioned more than one person as injured on the accused side because the phrase used in Urdu in this behalf was eyekt-).1.,444 o, , %-ket. Admittedly there is no other person injured on the accused side in addition to Muhammad Sharif excepting Mst.
15. Hanifan, therefore, as a logical conclusion it was further argued the word "URDU TEXT" was used in the F. I. R. In relation to Mst. Hanifan. Basing his other arguments on the aforenoted facts learned counsel contended that the prosecution having failed to explain the injuries on Mst. Hanifan who is sister of Muhammad Sharif and real paternal-aunt of Muhammad Aslam, it was a fit case for giving positive finding of self-defence and in any case it was sufficient to give benefit of reasonable doubt to the accused on the question of the plea of self-defence.
16. ' It would be seen that both the parties had given totally divergent versions regarding immediate motive. According to the prosecution the appellants wanted Lal Din to give up the possession of a piece of land in village Hargnanwala for the benefit of another Muhammad Sharif (not the one who is an accused in this case). On refusal of Lal Din to give up possession, he was attacked by all the appellants and while rescuing him the P. Ws. Also received injures at their hands. This motive is denied by the defence. The immediate motive asserted from their side is that a son of Mst. Hanifan was detained by a son of Atta Muhammad P.W. And that Mst. Hanifan complained to Atta Muhammad and other P. Ws. Who were related to him; but instead of redressing her grievance they started beating her. It is on account of this reason that Muhammad Sharif intervened to save his sister and that is how several persons then received injuries on both the sides.
17. ' After carefully analysing the evidence led from both the sides on the question of motive we have formed an impression that both the parties have withheld the truth about the real motive. While furnishing the details of the motive from the prosecution side, Atta Muhammad P. W. Gave two different versions about the identity of the beneficiaries regarding demand of the accused party from Lal Din deceased to give up the possession of certain land. In the F. I. R. The beneficiaries were stated to be the accused party while at the trial the position taken was that they wanted Lal Din to hand over the possession to Muhammad Sharif of village Hargananwala. Otherwise too the failure of the prosecution to examine Muhammad Sharif Hargananwala in support of the prosecution version of the motive has deprived the Courts from testing the veracity of the eye-witnesses in this behalf who admittedly are not directly connected with the motive part of the prosecution case.
18. Same is the position regarding the defence version about the motive. It has not been disclosed from that side as to why, when and where was Mst. Hanifan's son detained by Atta Muhammad and the other eye-witnesses. It may be mentioned here that while Atta Muhammad, Muhammad Riaz and Muhammad Bashir eye-witnesses are closely related to each other, no direct relationship of this group of persons, has been established with Lal Din deceased and his cousin Muhammad Boota the other eye-witness. As the son of Hanifan was detained, besides examining Hanifan the defence could examine the detainee himself. Thus, it is not possible in the circumstances of this case to uphold one or the other version of the motive. In this background regarding serious doubts about the real motive it would be pertinent to mention here the impression gained by the learned trial Court regarding the start of the occurrence. It was observed that in the initial encounter between both the parties they exchanged abuses whereupon the accused started beating Lal Din and "during the course of scuffle he received fatal blow which resulted in his death. As such in my opinion each accused acted in his individual capacity and not in furtherance of common object of killing him and, therefore, each accused incurred individual liability". That is why neither section 34 nor 149 was applied by the learned trial Court and the culpability of each accused was judged vis- a-vis his own act. This very aspect was highlighted by the High Court in the following observation:- "I agree with the learned trial Judge that it was not a premeditated attack and the incident took place as a result of a sudden flare up due to which each one of the appellants is liable for his individual act."
19. ' It would be necessary now to examine the plea raised by the learned counsel for the appellants that the injuries suffered by Mst. Hanifan should not have been ignored by the learned Courts below. We agree that a finding could be given in favour of the defence that Mst. Hanifan sister of Muhammad Sharif received injuries in this very occurrence. Firstly Atta Muhammad P. W. Who was confronted with the First Information Report stated therein by the use of word "URDU TEXT" that another person in addittion to Muhammad Sharif accused received the injuries in the occurrence.
20. Admittedly no one else has been named from either side as that person excepting Mst. Hanifan.
21. Muhammad Boota while under cross-examination admitted that he had stated before the Committing Magistrate that "Riaz and Bashir P.Ws. Had injured Mst. Hanifan Bibi and Muhammad Sharif accused". Even at the trial he did not deny in so many words that Mst. Hanifan was not injured during this occurrence. Nazir Hussain P. W. The Investigating Officer admitted under cross- examination that he examined Mst. Hanifan Bibi but had failed to include her name or the name of the lady doctor who had also seen her injuries as witnesses in the challan. He, however, admitted that Mst. Hanifan Bibi was "injured in this occurrence because her medical certificate was also received by him". He then proved the said medical certificate as Exh. D. D.
22. In these circumstances it was an amply fit case for examination of Mst. Hanifan Bibi and the lady doctor as Court witnesses under the Second Part of section 540, Criminal Procedure Code which provides that "the Court shall summon and examine" or re-call and re-examine a person if his evidence "appears to it essential for the just decision of the case". While it is discretionary under the First Part of section 540 for the Court to summon or refuse to summon a Court witness, under the Second Part it becomes mandatory for it to summon and examine a person if it appears to the Court to be essential for the just decision of the case. In the background highlighted the examination of Mst. Hanifan and also the lady doctor was essential for the just decision of the case.
23. It is necessary, mandatory, therefore, for the learned trial Judge to have examined them as Court witnesses under this Part of section 540, Cr. P. C. It was not necessary for either party to move the Court for summoning of these persons as Court witnesses. The apprehension that the party aggrieved by such an act of the trial Court could c move a transfer application, even if genuine, in given circumstances should not have deterred the Court concerned from acting in accordance with the dictates of the law.
24. However, the analysis of the material on record regarding injuries on Mst. Hanifan, shows that it is highly probable that she suffered these injuries at the hands of the deceased and/or the prosecution witnesses and such a material on this finding might be used for purpose of finding of a fact as visualised by the definition of "proved" given in section 3 of the Evidence Act. All this would not have been necessary if the learned trial Judge would have acted in accordance with the provisions of section 540, Criminal Procedure Code.
25. ' Notwithstanding the foregoing finding in favour of the defence regarding injuries to Mst. Hanifan, it would not be possible in the circumstances of this case to consider the further finding that Mst.
26. Hanifan was attacked by the complainant party or for that matter Muhammad Sharif acted in exercise of her private defence. The injuries found on Mst. Hanifan according to Exh. D. D. Are : an incised wound f x 1/8" x skin deep on the outer part of the left eye-brow and a swelling of the right interphalangeal joint of the right ring finger. It needs to be noticed that the length and breadth of the incised wound is too small to have been caused by a direct blow by a sharp-edged weapon used by an adversery. Similarly the description of the other injury reveals that there was no breaking of the skin underneath the swelling, mainly of the interphalangeal joint. This also could not be considered as the direct result of a blow by a Sota which is alledged to have been used by the eye-witnesses, If the lady doctor might have been examined a possibility cannot be excluded that the case might have taken a different turn involving an allegation that these injuries had been self- suffered. But there being nothing on record to support such a suggestion, the maximum benefit shall have to be allowed to the defence in this behalf. And that cannot be more than this that Mst.
27. Hanifan received both the injuries in the souffle which had ensued between both the parties, not on account of any direct blow but as a result of her intervention so as either to separate the parties or to save his own brother or nephew who had already engaged themselves in a brawl with the other party.
28. As it appears from the facts stated above and also as found by the High Court, there was no premeditation on the part of the accused-party nor there seems to be any premeditated attack by the complainant side on the accused-party. The nature, number and location of injuries on both sides also conforms this supposition. The motive not having been established from either side beyond reasonable doubt, it is justified to assume that on some trivial matter (the learned trial Judge held that there was no previous enmity) both the parties engaged in a sudden quarrel and a fight developed in the heat of passion. Several persons on both sides then suffered injuries at the hands of the adversaries. Undoubtedly there was no premeditation. And it cannot be said that when Muhammad Aslam appellant used the knife in suddenly developed fight, in which his father received a heavy blow on his head which fractured the bone underneath and when both the parties were almost equally armed, he took any undue advantage or acted in a cruel or unusual manner. His case would, therefore, fall under exception 4 to section 300, P. P. C. We agree that in the circumstances of this case each convicted accused was responsible for his own act. The remaining appellants, therefore, were guilty of causing only simple hurt with blunt weapon.
29. Accordingly while altering the convictions of Muhammad Aslam from 302, P. P. C. To 304, Part I, P. P.
30. C. We uphold the convictions of other appellants under section 323, P. P. C. The sentence of Muhammad Aslam appellant is reduced from imprisonment for life to 10 years' R. I. And a fine of Rs, 20,000 in default of which he shall suffer 4 years' R. I. The award of fine of Rs, 1,000 by the learned trial Court against him shall be treated as award of compensation under section 544-A, Cr. P. C. He shall pay the same and in default thereof he shall suffer another sentence of 6 months' R. I. The amount of Rs, 20,000 shall also be paid as compensation to the heirs of the deceased. The sentence of rigorous imprisonment undergone by the other appellants would meet the ends of justice in so far as their conviction under section 323, P. P. C. Is concerned. They would however pay to the injured the compensation of Rs, 500 as directed by the learned trial Court and in default shall suffer 6 months' R. I. Each. In other words if they fail to pay the compensation they shall be re- arrested so as to suffer the imprisonment awarded in default of compensation. With the above modifications, this appeal stands partly allowed.