' This Criminal Appeal No,701/80 and Criminal Revision No, 831/80 arise from the order of learned Additional Sessions Judge, Vehari, whereby, he on 15-6-1980 while acquitting Sardar and Muhammad Siddiq, convicted Muhammad lqbal and Muhammad Mushtaq appellants under section 304-1, P.P.C. For causing the death of Abdul Majid and sentenced them to 10 years' R.I. And a fine of Rs,500 to be paid to the legal heirs of the deceased or in default thereof to 3 months' S.I.
Each. He further convicted the appellants under section 323, P.P.C. For causing hurt to Jan Muhammad P.W.7 and sentenced them to 3 months' R.I. Each. Both sentences were directed to run concurrently.
2. The occurrence took place on 14-8-1977 at 6.30 p.m. Near a water course in the area of Chak No,66/W.B. Tehsil and District Vehari. The F.I.R. Exh. P.H. Was lodged at P.S.Saddar Vehari on same day at 9.00 p.m. By Jan Muhammad P.W.7, the brother of the deceased which was recorded by Malik Ashiq Hussain S.H.O., P.W.9. The distance between the place of occurrence and the police station is 13 miles.
3. The motive as alleged by the prosecution was a dispute over a kotha which was constructed in the land of Muhammad Siddiq, the acquitted co-accused.
4. On the eventful day Jan Muhammad P.W.7 and the deceased were present near the water- course as their turn of water had to commence from 8-00 p.m., when the appellants and the acquitted accused all armed with dangs came there. Muhammad Siddiq asked Abdul Majid deceased to vacate the kotha who refused to do so. Thereon, Muhammad Siddiq declared that he would see that the Kotha is vacated on that day and asked his sons to kill the deceased. On this lqbal appellant gave Dang blow on the head of Abdul Majid followed by a Dang blow by Mushtaq on his face. After having received these blows, Abdul Majid fell down when Sardar and Muhammad Siddiq, the acquitted co-accused gave pushes with their Dangs on chest of the deceased. Jan Muhammad P.W.7 intervened but he was injured by the appellants as well as acquitted co- accused. At this juncture, Jan Muhammad complainant rushed to his house, he brought out his licensed gun and fired with the same in self-defence causing injuries to Muhammad lqbal and Muhammad Mushtaq appellants and Sardae Muhammad acquitted accused. Abdul Majid in injured condition was removed but he expired on his Way to the hospital. This occurrence was also seen by Muhammad Azam P.W.6 and Muhammad Shafi (not produced).
5. [Medical].
6. The appellants were arrested on 16-9-1977. Muhammad lqbal appellant produced Dang Exh. P.7.
Which was taken into possession vide memo. Exh. P.M. Muhammad Mushtaq appellant produced Dang Exh. P.5 on 22-9-1977 which was taken into possession vide memo. Exh. P.L.
' These memoranda were attested by AU Muhammad P.W. 8 and Hasan Din (not produced).
7. In statement recorded under section 342, Cr.P.C. The appellants pleaded right of self-defence. Their case is that at the time of occurrence it was the water turn of the accused party and that Muhammad lqbal appellant was watering his land, when 5 persons namely, Abdul Majid deceased, Jan Muhammad P.W.7, Wali Muhammad and Abdul Ghafoor came there. Out of them Jan Muhammad and Abdul Majid were armed with single barrel guns. Hanif was armed with stick and others were empty-handed. They asked lqbal as to why they were irrigating land from Khal which passes through their lands. They launched attack on lqbal who ran away to save his life but Abdul Majid fired at him, which however, missed. On hearing the alarm and gun report Mushtaq appellant and Sardar, etc. Came there at the spot. Abdul Majid again fired at lqbal which hit him seriously and he fell down. Mushtaq co-accused intervened to whom Hanif gave Dang blow on his head. Mushtaq appellant snatched away his Dang on which Jan Muhammad fired at Mushtaq. Then Mushtaq caused injuries to Jan Muhammad in self-defence.Sardar co- accused stepped forward but he was fired at by Abdul Majid deceased. Sardar co-accused snatched the gun. Then Mushtaq and Sardar gave injuries to Abdul Majid deceased with Dang and Butt of the gun in their self-defence. Muhammad Siddiq co-accused, however, pleaded alibi.
Muhammad lqbal appellant produced Zafar lqbal, Record Keeper as D.W.1 who stated that on 7-1- 1979, Jan Muhammad complainant and his brother Wali Muhammad filed appeal against the order of S.D.C.O. Dated 6-1-1979. The. Respondent in the appeal was Siddiq son of Farid Bakhsh caste Arain, resident of Chak No,66/W.B., Tehsil Vehari, i,e, the acquitted co-accused. He proved Exh. D.B.
The copy of the order, dated 24-2-1979 and Exh. D.C., photostat copy of the memorandum of appeal.
8. In order to prove its case, the prosecution examined as many as 9 witnesses out of whom Muhammad Azam P.W.6 and Jan Muhammad P.W.7 have given the ocular account of the occurrence. They supported the prosecution case as detailed above. They stated that they saw the appellants as well as the acquitted co-accused inflicting injuries on the person of the deceased.
Jan Muhammad stated that he was also injured by the accused persons. Muhammad Azam P.W. 6 supported him. Ali Muhammad P.W.8 and the Investigating Officer supported the recoveries. The rest of evidence is of formal nature.
9. The learned trial Court found that the occurrence was a sudden affair without any previous planning. The trial Court did not accept the prosecution version as a whole. It also disbelieved the defence version as being unconvincing. It came to the conclusion that the fight took place all of a sudden and.The act of the appellants falls within exception 4 of section 300, P.P.C. In view of the above findings, the trial Court acquitted Muhammad Siddiq and Sardar co-accused and convicted lqbal and Mushtaq appellants under section 304-1, P.P.C. For causing the death of Abdul Majid and under section 323, P.P.C. For causing injuries to Jan Muhammad P.W.7. It is remarkable that the trial Court has riot convicted them under section 34, P.P.C.
10. The learned counsel for the appellants contends that the ocular evidence has been disbelieved to the extent of Muhammad Siddiq and Sardar co-accused that the story of the prosecution is improbable because after receiving 5 injuries, it was not possible for Jan Muhammad P.W. To go and bring gun from his house which was at a distance of 23 karams; that the ocular evidence stands belied by the medical evidence and that the defence version is more probable because at the time of occurrence it was the turn of the water of the appellants.
' As against this, the learned counsel for the State has defended the judgment of the learned trial Court. Mr. S.M. Baqir the learned counsel for the complainant has submitted that a case of murder is made out against the appellants and the acquitted co-accused and in any case, the acquittal of Sardar Muhammad who inflicted injuries on the person of the deceased was not justified.
11. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record with care. I find that the time of occurrence, the place of occurrence and the fact that both sides received injuries in the same occurrence, are the admitted facts of the case. It is only the manner of the occurrence which has to be determined. Since in such like cases, the parties do not generally come out with true facts and try to minimize the part played, and throw blame to aggression on each other, therefore, the proper course for the Court is to draw proper inferences from evidence and flow of the circumstances of each case. In the case in hand, since the occurrence has not taken place near the disputed Kotha and at the time of occurrence i,e, at 6.30 p.m. It was the turn of water of Ismail Teli and that the appellant's turn of water had finished one hour before the occurrence and the turn of water of the complainant party was to commence 14 hours after the occurrence therefore. I am convinced that from the state of the relations between the parties, it is reasonable to infer that the occurrence took place all of a sudden over something which has not been disclosed truly by the parties. Furthermore, the complainant party received as many as 12 injuries and the appellants' side received 6 injuries. It thus stands proved that the parties were duly armed and they injured each other during the occurrence. The factum of the injuries on the person of the deceased, Jan Muhammad on one side and injuries on lqbal, Mushtaq and Sardar Muhammad appellants on the other side indicate their presence and participation in the fight. The claim of the appellants that they had acted in self- defence has to be disbelieved on the short ground that since at the time of occurrence, it was not the turn of water of the accused party, therefore, the entire defence version that lqbal appellant was watering his fields from Khaal when the deceased and Jan Muhammad, etc. Came there and asked him as to why he was irrigating the land from that Khaal and that they opened the attack falls down to the ground as being totally false. I further, find that the ocular evidence cannot be rejected in its entirety. The witnesses have tried to minimize the part played by the complainant party which is but natural. It appears that they have not suppressed the material facts. They have no enmity with the appellants. They also stand supported by the circumstances. In the circumstances of the case, I am convinced that there was a sudden fight between the parties and the three accused including the appellants suffered 5 firearm injuries and one injury by blunt weapon and as against these injuries they caused 2 injuries to the deceased (out of which only one injury i,e, injury No,1 has proved fatal) and some simple injuries to Jan Muhammad P.W.7, therefore it cannot be said that the appellants have taken undue advantage or acted in cruel or unusual manner. For all these reasons,I am of the opinion that act of the appellants is fully covered by exception 4 to section 300, P.P.C. And as such the offence committed is a culpable homicide not amounting to murder. Coming to the question of the liability of the appellants, as already stated the trial Court did not convict them under section 34, P.P.C. Furthermore, since it has been found by me that it was a sudden affair, therefore, each participants would be liable for his individual act.
12. As for the contentions raised by the learned counsel for the appellants, I find that the trial Court has disbelieved the evidence to the extent of Muhammad Siddiq and Sardar Muhammad and has acquitted them by giving benefit of doubt. To them; since Jan Muhammad had received simple injuries, the story of the peosecution that he went to his house and brought gun does not become improbable. As for his other contentions, I have already observed that the parties have not disclosed the whole truth and that the defence version was not acceptable.
13. As for the submissions made by the learned counsel for the complainant, I have already found that it was not a case of murder. To my mind, since Muhammad Siddiq is not injured, his participation appears to be doubtful. As for Sardar Muhammad,I find that by the fact of injuries on his person, his presence at the time of occurrence is very much proved. The eye-witnesses have stated that he caused injuries to the deceased. Since the fatal injury has been specifically attributed to Mushtaq, it appears that he caused simple injury/injuries to the deceased. In his statement recorded under section 342, Cr.P.C. He admitted to have injured the deceased. 1 further find that the learned trial Court has not given cogent reasons to acquit him. Adverting to the question of his liability, I find that the trial Court has not applied section 34, P.P.C., while convicting appellants. It has also been held, by me in so many words that it was a case of individual liability and as such the act of Sardar Muhammad would be punishable under section 323, P.P.C.
14. As for the revision filed by the complainant, to my mind, as for the case of Muhammad Siddiq no exception can be taken to it. As for Sardar Muhammad, I have already found that he has been wrongly acquitted. Despite that, I have not been able to persuade myself to direct retrial for the reasons that in view of the findings in the appeal that it is a case of individual liability, the offence committed by him would be punishable under section 323, P.P.C.
Which is punishable with one year's R.I. And for that offence the accused has remained in jail as an under-trial prisoner for 2 years. It is well-settled that the power of revision under section 439, Cr.P.C.
Will only be exercised when there has been clear miscarriage of justice. Since Sardar Muhammad has already been in jail for a period which is more than maximum sentence provided for the offence under section 323, P.P.C., I am of the opinion that no 6 injustice will be done by not directing his retrial.
15. Resultantly, the conviction of lqba/ under section 304-1 and 323, P.P.C. For causing fatal injuries to the deceased and simple injuries to Jan Muhammad P.W. Is maintained. Since during the occurrence he received firearm injuries at the hand of complainant party, I am inclined to reduce his sentence from 10 years to 7 years' R.I. The fine and the sentence in default thereof and directions for payment to the legal heirs of the deceased are also maintained. The sentence awarded to him under section 323, P.P.C. Is also maintained. As for Mushtaq, since he caused grievous injury to the deceased which has not proved fatal, his conviction under section 304-1, P.P.C. Is altered to section 325, P.P.C. And sentence to 10 years' R.I. In view of firearm injuries received by him, is reduced to 5 years' R.I. And a fine of Rs,500, in default thereof to 3 months' S.I. With the direction that the fine shall be paid to the legal heirs of the deceased. His conviction and sentence under section 323, P.P.C. Is also maintained. Since the learned trial Court while awarding the sentence to lqbal and Mushtaq had taken into consideration the period of their detention as an under-trial prisoner, they shall not get the benefit of section 382-B, Cr.P.C. The revision is also dismissed. & . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.