' This Criminal Appeal arises from the judgment of the learned Additional Sessions Judge, Vehari whereby he on 17-12-1981, while acquitting the seven co-accused convicted Muhammad Rafiq and Bhola appellants under section 302, P.P.C. for causing the death of Khushi Muhammad and sentenced them to imprisonment for life each and a fine of Rs, 2,000 each in default whereof to S.I. for three months, with the direction that the fine be paid to the legal heirs of the deceased.
2. The occurrence took place on 11-5-1978 at 8-30 p.m. in front of the house of Muhammad Yacloob co-accused in Chak No, 475/E.B. of Police Station Burewala. The F.I.R. Exh. P.Y. was lodged at the Police Station by Abdul Karim P.W.5 nephew of the deceased on the following day at 8-15 a.m. and was recorded by Nazar Abbas A.S.I., P.W.10. The distance between the place of occurrence and the Police Station is eight miles.
3. The prosecution case is that on the eventful day just before the main occurrence, Qasim Ali P.W.4 went to enjoy television in the souse of Ate Muhammad Lambardar of village. The television was not in working order. On his way back to his house when he reached in front of the house of Muhammad Yaqoob acquitted accused, Muhammad Rafiq appellant met him and cut a vulgar joke. Qasim Ali retaliated. On the alarm, Abdul Karim P.W.5, Nazir Ahmad P.W.6, Bagh AU P.W.7, Muhammad Hanif P.W.8 and Khushi Muhammad deceased came there. Simultaneously Bhola appellant and the seven acquitted accused, all armed with Dangs reached there and challenged that Tailis will not go alive. The complainant party withdrew. The accused party however opened attack. The two appellants and Muhammad Aslam acquitted accused gave Dang blows to Khushi Muhammad who on receiving the injuries fell down on the ground and was given still further blows.
Muhammad Siddique acquitted accused gave Lathi blows to Abdul Karim P.W.S. Muhammad All acquitted accused injured Muhammad Hanif P.W.8. Fayyaz acquitted accused gave Lathi blows to Nazir P.W.6. Naseem acquitted accused inflicted Lathi blows on Qasim P.W.4. Yaqoob acquitted accused injured Bagh Ali P.W. The occurrence was also witnessed by Muhammad Siddiq, Ghulam Qadir and Shahab Din P.Ws. (not produced). The accused then decamped with their weapons.
Khushi Muhammad in injured condition was removed to the house of Abdul Karim P.W.5 where he succumbed to injuries next morning. It may be noted here that during the occurrence Muhammad Rafiq appellant and Fayyaz acquitted accused had also received injuries. On 12-5-1978 at 6-00 p.m. Dr. Muhammad Azhar, P.W.1 conducted post-mortem examination on the dead body of Khushi Muhammad and found following injuries:- "(1) A contused wound 1" x x scalp deep on the front of head near top.
(2) A contused wound 1" x 1/3" x scalp deep on the left side of head.
(3) Two small abrasions on the right side of forehead.
(4) An abrasion 1" x 1/8" on the front of nose.
(5) A contusion mark 2" x 4" on the top of left shoulder.
(6) Two contusion marks on right buttock in 7" x 3" area.
(7) A contusion mark 14" x 3/4" on the inner side of left ankle.
(8) A contusion mark 2" x 1" on the left forearm.
' Right temporal, parietal, and frontal bone were fractured up to base of skull against injury No,1 and hemorrhage found in the sub Dural space on both sides of brain which was congested. Stomach contained 4 oz of semi-digested food. Intestines contained faces. Bladder was full of urine. Liver, spleen and kidneys were congested but healthy. Rest of the organs in the body were healthy."
' In his opinion death was due to hemorrhage and shock as a result of fracture of the skull from injury No,1 which alone was quite sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by blunt weapon. Probable time between injuries and death was within 12 hours and between death and post-mortem was about 12 houRs,
4. On the same day, the Doctor had also axamined Qasim Ali P.W.4, Abdul Karim P.W.5, Nazir Ahmad P.W.6, Bagh Ali P.W.7 and Muhammad Hanif P.W.8 and on their persons found 2, 12, 3, 6 and 5 injuries, respectively. All the injuries were simple in nature caused with blunt weapon within 24 hours of the examination.
5. On 14-5-1978, Nazar Abbas P.W.10 arrested Muhammad Rafiq and Bhola appellants. They were produced by Ata Muhammad Lambaitdar. At the time of his arrest Muhammad Rafiq appellant produced blood stained Dang P.5 which was taken into possession vide Memo. P.U. At the time of his arrest Bhola produced blood-stained Sota P.6 which was taken into possession vide Memo. P.V. The memoranda were attested by Lal Din P.W.3 and Muhammad Ramzan (given up). The Serologist's report which has not been exhibited but is on vie record indicates that Dang P.5 and Sota P.6 were stained with human blood.
6. In order to prove its case, the prosecution examined as many as 15 witnesses. Out of whom Qasim Ali P.W.4, Abdul Karim P.W.5, Nazir P.W.6, Bagh Ali P.W.7 and Muhammad Hanif P.W.8 have given the ocular account of the occurrence. They supported the prosecution case as detailed above on all material particulaRs, Lal Din P.W.3 and Nazar Abbas A.S.I. P.W.10 stated that Muhammad Rafiq and Bhola appellants had produced blood-stained Dang P.5 and Sota P.6. The rest of the evidence is more or less of formal nature.
7. The appellants and the acquitted accused when examined under section 342, Cr.P.C. denied all the incriminating circumstances. Muhammad Rafiq appellant having admitted that there was a dispute and altercation between him and Qasim Ali P.W.4 at Isha'a time. Further stated:- "That in pursuance of the above-said altercation, Khushi Muhammad deceased and P.Ws. came armed and attacked me in my house. Fayyaz accused tried to rescue me. I acted in my self- defence. It was a dark night, none of us caused injuries to Khushi Muhammad deceased and other P.Ws."
' Fayyaz acquitted accused made a similar statement. Bhola appellant raising the plea of false implication stated that he was not present on the spot at the time of occurrence.
8. In defence four witnesses were examined. Nazar Hussain Patwari D.W.1 had prepared Exh. D.1 a plan of Abadi of Chak No, 475/E.B. Fazal Hussain D.W.2 stated that Muhammad Hussain acquitted accused was present in his house at the time of occurrence. Ata Muhammad Lambardar D.W.3 stated that the complainant party was aggressor. Muhammad Hussain acquitted accused and Bhola appellant had not participated in the occurrence inasmuch as Muhammad Hussain had gone to Chak No, 483/E.B. whereas Bhola appellant was irrigating his land at the time of occurrence. Muhammad Zaman D.W.4 stated that Bhola appellant was irrigating his land at the time of occurrence and that Muhammad Hussain accused was away to Chak No, 483/E.B.
9. The learned counsel for the appellants contended that the prosecution has failed to prove its case... acted in the exercise of the right of self-defence of person and property and that Bhola was not present on the spot. In the alternative he submitted that it was at the worst a case of mutual fight punishable under section 304, P.P.C. Conversely the learned counsel for the State supported the judgment of the trial Court.
10. From the account of facts given above it is very much obvious that the incident of altercation between Qasim Ali P.W. and Muhammad Rafiq appellant preceding the main occurrence, the place of occurrence i.e, in front of the house of the acquitted accused, the presence of the eye-witnesses, the presence of Muhammad Rafiq appellant and Fayyaz acquitted accused; that the deceased, eye-witnesses and the two accused including Muhammad Rafiq appellant received injuries during the occurrence; and that both the parties were carrying blunt weapons are the admitted and prove facts of the case. Since Bhola appellant has denied all the incriminating circumstances and Muhammad Rafiq has raised the plea of self-defence of property and person, therefore, I propose to appreciate the matter in accordance with the guiding principles laid down by the Superior Courts for the appreciation of such like cases and proceed to discuss the prosecution first in order to arrive at an independent finding as to the truth or falsehood of prosecution case and credibility of ocular evidence because if I disbelieve the prosecution case or exclude the ocular evidence then I shall have to accept the statement of Muhammad Rafiq appellant in toto. In case I do not exclude ocular testimony from consideration, I may then examine the two rival cases placing in juxtaposition and review the entire evidence; statement of accused persons and attending circumstances at the close before arriving at a conclusion regarding the truth or falsity of defence version and may esteem its effect in relation to two questions:-
(i) Is the plea of self-defence raised by Muhammad Rafiq appellant , satisfactorily established by the evidence and circumstances appearing in the case?
(ii) If the answer be in the negative, is yet a reasonable possibility that plea raised by him might be true so as to cast a reasonable doubt upon the prosecution case?
' While discussing prosecution case I would like to consider first whether the witnesses were present at the time of occurrence and were in a position to identify the culprits. In the case in hand, I find that the presence of the eye-witnesses produced by the prosecution stands proved by the facts of injuries on them. Their presence has also not been disputed before me. Since the parties live in the same vicinity and were fully known to each other, I do not see any reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offendeRs, At this stage the further question arises as to whether the eye-witnesses can be relied upon for sustaining the conviction of the appellants without corroboration? In this behalf I find that the eye-witnesses had no motive to falsely involve the appellants A and the co-accused. Mere relationship of the witnesses with the deceased is not sufficient to reject their statements. They have stood the test of cross-examination.
Learned counsel has not been able to point out any inherent infirmity in their statements warranting the exclusion of their evidence. No doubt they have not satisfactorily explained the injuries of the two accused persons but it is well-known that parties generally try to minimize the part played by them and as such the evidence cannot be thrown out on this score The number of the injuries found on the person of the deceased and the eye-witnesses commensurate with the number' of the appellant and co-accused. .Because of their relationship and association with Muhammad Rafiq appellant the co-accused were expected to join the attack. Therefore, implicit reliance can be safely placed on the eye-witnesses. Despite this observation, if the prudence requires corroboration qua each of the appellants that is also there in the shape of recovery of blood-stained weapons which have been proved by reliable witnesses having no animus against the appellants. No doubt the F.I.R. was lodged after about 12 hours of the occurrence but the delay has been satisfactorily explained by the prosecution. For all these reasons I do not desire to discard the evidence produced by the prosecution. The plea of alibi raised by Bhola appellant has not been satisfactorily proved. In view of the distance of the place of occurrence from his lands, the possibility that after having participated in the occurrence he had gone to his lands to irrigate the same cannot be excluded. Further, he did not specifically plead alibi in his statement recorded under section 342, Cr.P.C. He simply stated that he was not present at the spot.
11. Since the ocular testimony cannot be excluded from consideration so I proceed to examine the question formulated by me. As for question at No,l, I find that defence has hopelessly failed to prove the plea of self-defence of property and person. The version is that the complainant party had entered into the house of Muhammad Rafiq and occurrence took place there. No blood was found inside the house of Muhammad Rafiq appellant. The blood was removed from outside the house of the co-accused. This circumstance alone negates the defence case. The plea raised by Muhammad Rafiq appellant is also self-contradictory. After stating that he acted in self-defence, he turned turtle and stated that they did not cause any injury to the deceased or P.Ws. He did not produce any witness to establish his version. The question is, therefore, answered in the negative.
Adverting to question at No,2, I find that since the occurrence took place outside the house, therefore, there is no reasonable possibility of the defence version being true. The plea of self- defence of person is also not spelt out from the prosecution case or attending circumstances.
12. This brings me to the material and the important question for determination as to what offence has been committed by the appellants. I find that there was no previous enmity between the parties; that Qasim All P.W. and Muhammad Rafiq appellants were friends before the occurrence; that there was no intention to kill the deceased; that out of the injuries found on the person of the deceased only one injury was fatal, most of the injuries are on the non-vital parts of the body; that the occurrence took place in an open place and that both sides received injuries. In this view of the matter, I am of the opinion that the legitimate conclusion that can be safely drawn is that the incident of cutting joke and altercation between Qasim P.W.4 and Muhammad Rafiq appellant brought the parties to the spot. The parties were determined to have trial of strength and thus there ensued a mutual fight wherein question of self-defence of person does not arise and the act of the appellants causing death of the deceased would not amount to murder, it rather falls within Exception-IV to section 300, P.P.C. punishable under section 304, Part-II/34, P.P.C.
13. The upshot of the discussion is that the conviction of the appellants under section 302, P.P.C. and sentence awarded there under are set aside. Instead they are convicted under section 304, Part- II/34, P.P.C. and sentenced to 10 years' R.I. each and a fine of Rs, 2,000 each in default whereof to further S.I. for three months with the direction that the fine when recovered be paid to the legal heirs of the deceased. Before parting with the judgment I would like to add that the trial Court had wrongly acquitted the seven co-accused. Since the State/complainant have not cared to file any appeal or revision, therefore, I would not like to issue suo motu notice for the retrial of the acquitted accused.
Conviction altered.