1. ' MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated the 11th of April, 1974, whereby the convictions and sentences of the respondents 1 to 8 were altered by the High Court. Leave was, accordingly, granted to consider :- "Whether the High Court has acted on correct judicial principles in reaching the conclusion that this was indeed a case of a free fight, and A that the respondents were entitled to the benefit of Exception 4 to section 300, P. P.
2. C."
3. ' This question was posed for consideration as it was urged at the time of the hearing of the petition for leave to appeal that the High Court eminently ignored the manner of assault by the respondents while giving weight to the statement of respondent Aslam to the effect that a fight had broken out between the parties.
4. ' The motive which led to the present incident arose over the purchase of a site in front of the house of Sharif. It was alleged by the prosecution that this was purchased from Muhammad Latif, but subsequently Bashir and Hamida purchased it from Latif's wife and included it in the area of their house, as a result of which there was apprehension of breach of the peace and proceedings under section 107, Cr. P. C. Were initiated against both the parties to keep peace. Another subsidiary reason assigned for bad relations between the parties was that respondent Hussain had constructed a Haveli on a vacant site in front of the house of Sardar and Mukhtar, brothers inter se.
5. ' The present incident occurred at 5-00 p. m. On the 28th of June, 1969, in Mauza Chinkowandi, about three miles away from Police Station Barki, District Lahore. It was alleged by Mukhtar Ali, the complainant, that both the parties had gone to attend the hearing of their cases, and as the case against the respondents was L.Ken up first they returned home earlier than the complainant party. At the stated time his brother Muhammad Sadiq went to attend the call of nature at some distance from the Abadi, in a wheat field, where he was attacked and severely beaten by Asiam, Hussain, Bashir, Nazir and Rashid, of whom the first two were armed with spears and the others carried hatchets. However, on his raising a hue and cry Mukhtar Ali, complainant, Sardar, Sharif, Rashid and Rehmat went to his rescue from the side of the complainant party. Sharif, Ghafoor, Mubarik and Hamida joined the attackers and intercepted the rescuers by causing injuries to Rashid, Rehmat and Sharif P.
6. Ws. Rehmat and Sardar took to their heels and ran towards their houses followed by Aslam, Hussain, Bashir, Nazir, Rashid, Sharif, Mubarik and Manzoor alias Hamida, and while inside their houses they not only inflicted injuries on Rehmat and Sardar, but also on Mst. Alam Bibi, Mst. Rani and Mst. Aisha who intervened to save them. Rashid and Rehmat on the side of the complainant party, however, caused a blow each to Aslam and Hussain by a Tangli and Sota, respectively while trying to rescue deceased Muhammad Sadiq. The incident was also witnessed by P. Ws. Ghulam Hussain, Khushi Muhammad and Mst. Jantey. Mukhtar Ali thereupon hastened to Police Station Barki where he lodged the F. I. R. At 6-15 p. m.
7. ' The deceased suffered multiple injuries but all with blunt-weapons. P. Ws. Rashid, Rehmat and Sardar suffered multiple injuries with blunt-weapons. P. W. Sharif, however, had two incised and other multiple injuries caused by blunt-weapons. Mst. Alam Bibi and Mst. Rani suffered multiple blunt-weapon injuries. Mst. Aisha had one punctured wound and a tender swelling on the first phalanx of a finger. Respondents Aslam and Rashid had one contused wound each.
8. ' Aslam denied that Ghafoor, Ghani and Sharif were involved in the security proceedings. He also stated that he received "injuries" at the hands of Sharif, Sardar, Rashid and Muhammad Sadiq, deceased, and became unconscious soon after. Hussain explained his injuries stating that he was given a Danda blow by Abdul Waheed, S.-I., at the time of his arrest. The others, however, denied their participation.
9. ' Upon an appraisal of the evidence, the trial Court believed the eyewitness account of the incident given by the injured P. Ws., namely, Sharif, Rehmat and Rashid, and that of Mukhtar Ali, and Khushi Muhammad although the latter was closely related to the injured P. Ws. As his presence at the spoit was held to be natural and duly corroborated by the medical evidence and recoveries of a blood-stained hatchet and a blood-stained blade of a spear at the behest of two of the respondents.
10. ' The trial Court next examined the defence plea of self-defence which though no specifically taken but advanced apparently on the basis of the injuries sustained by two of the respondents, namely, Aslam and Hussain. It was urged that they had caused the injuries on Muhammad Sadiq in self-defence after being belaboured by him. The trial Court principally for the reason that as the fight had not taken place in front of the house of any of the two respondents or at the site under dispute but at a distance of 3 Killas from the Village Abadi, held it to be improbable, the moreso when the venue of the fight was also established as by the recovery of blood-stained, earth from the courtyard and the roof of P. W. Sardar Ali and from the courtyard of the house of Sharif. The other weighty consideretion was that the deceased was unarmed and that the injuries on the complainant party suggested that it was a sustained attack on them. However, while appreciating the case of the individual respondents the trial Court held that it were Aslam, Nazir, Rashid, Bashir and Hussain who had attacked the deceased Muhammad Sadiq with deadly weapons and caused his murder. And as for the involvement of Sharif, Mubarik, Ghafoor, Ghani and Hamida, it was held that their case was distinguishable as they had not taken part in the murder of deceased Muhammad Sadiq, but had only come at a later stage. In particular, the trial Court held that the witnesses had exaggerated the role of Ghani and Mubarik as being involved in the murder of the deceased while deposing in the Court. Again as regards the role of Mubarik and Sharif the trial Court further distinguished it from the case of Ghafoor, Ghani and Hamida as they were only imputed the role of raising proverbial lalkaras by the eyewisnesses, and for this reason the trial Court held that it did not appeal to reason that being armed they would not participate but only utter lalkaras, They were, accordingly, given the benefit of doubt and acquitted, In regard to motive the trial Court had discarded the defence plea that as the respondents were in possession of both the vacant sites, they had no reason to attack the deceased. The trial Court held that in view of the proceedings pending against both the parties it could safely be presumed that they had bad relations. Though Ghani, Ghafoor and Sharif were not arrayed as amongst those against whom proceedings were initiated yet being close relatives of the respondents, the trial Court held that their participation could not be negatived on this ground despite the fact that benefit of doubt was given to Sharif. The trial Court, accordingly, accepted the motive.
11. ' As for the recoveries, the trial Court only placed reliance on the weapons produced by Rashid and Aslam such as a hatchet and a spear which was proved to be stained with human blood. The trial Court also further held that Mst. Rani and Mst. Alam Bibi had not appeared as witnesses at the trial, none of the respondents could be held guilty of causing injuries to them. As for Mst. Aisha she had died before the trial commenced and her statement recorded by the Enquiry Magistrate was brought on record. Accordingly, those of the respondents who caused to her the injuries were liable to be punished for their act.
12. ' In conclusion, the trial Court held Aslam, Sharif, Nazir, Rashid, Bashir, Hamida, Ghafoor and Ghani guilty under sections 148, 459 read with 149 ; 307 read with 149 and 323 read with 149, P. P. C. And sentenced them to various terms of imprisonment.
13. ' Aslam, Rashid alias Sheeda, Nazir, Bashir and Hussain were convicted under section 302 read with section 149, P. P. C. For causing the murder of Muhammad Sadiq. Aslam and Rashid were sentenced to death, while Nazir Bashir and Hussain were each given life imprisonment and to pay a fine of Rs, 1,000 each, which, if realised, was to be paid to the heirs of the deceased. The sentences were also ordered to run concurrently except in the case of those who were awarded death sentence.
14. ' On appeals and references, the High Court re-appraised the evidence and held that in view of the variance in the statements of the prosecution witnesses as to the involvement of those convicted for the murder of the deceased held that it was Aslam and Rashid who had caused fatal injuries to him while the role assigned for his murder to Hussain, Nazir and Bashir was doubtful as there was no corroboratory evidence against them in the background of the partisan nature of evidence. It was, therefore, that the High Court further took note of the admission of Aslam in his 342, Cr. P. C. Statement that a fight broke out between the two sides and for this reason the High Court gave to Aslam and Rashid the benefit of Exception 4 to section 300, P. P. C. Their conviction was altered from 302 read with 149, P. P. C. To section 304, Part I, P. P. C. Each of them was sentenced to undergo R. I. For 10 years and also to pay a fine of Rs, 1,000 each or in default to suffer R. I. For one year. The fine, if realised, was to be paid to the heirs of the deceased. Apparently the High Court was of the view that there was no vicarious liability qua the murder of the deceased because of the suddenness of the fight and each participant should be liable to the extent of his own individual act. In regard to the injuries sustained by Sharif, which were testified to have been caused by Aslam, Hussain, Ghafoor and Hamida, the High Court held that they are collectively responsible for causing as many as 14 injuries to him. Accordingly, they were convicted under section 325 read with section 34, P. P. C. And sentenced to five years' R. I. And also to pay a fine of Rs, 300 each or in default to undergo R. I. For six months. As for the injuries on Sardar these responsible for causing them were Nazirt Bashir and Hussain. They were, accordingly, convicted under section 325 read with section 34, P. P. C. And each of them was sentenced to the same terms of imprisonment and fine as those above.
15. ' Nazir, Hussain, Rashid alias Sheeda, Bashir and Aslam were convicted for causing simple injuries to Rehmat under section 323 read with section 146, P. P. C. And each of them sentenced to suffer R. I. For one year and to pay a fine of Rs, 50 or in default to undergo R. I. For one month. They were also convicted and sentenced under section 147, P. P. C. As for the injuries received by P. W. Rashid, respondents Ghafoor, Ghani, Hamida, Bashir and Rashid alias Sheeda were held responsible for causing them. Therefore, they were convicted under section 323 read with section 146, P. P. C. And each sentenced to suffer R. I. For one year and to pay a fine of Rs, 50 or in default to undergo R. I. For one month. They were also convicted under section 147, P. P. C.
16. ' Aslam and Rashid alias Sheeda were held to have caused injuries to Mst. Aisha and, accordingly, they were convicted under section 323 read with section 34, P. P. C. And each sentenced to suffer R.
1. For one year and to pay a fine of Rs, 50 or in default to undergo R. I. For one month. Out of the fine realised Rs, 300 was directed to be distributed in equal shares between Rehmat, Rashid and the heirs of Mst. Aisha Bibi.
17. While setting aside the conviction of the appellants under section 148, P. P. C., their convictions under section 308 read with 149 and 323 and read with 149, P. P. C. Were altered as aforestated. The High Court maintained the conviction and sentence of the respondents under section 452, P. P. C. Further, the sentences were ordered to run concurrently.
18. It is of significance to note that none of the injuries of the deceased were caused by the sharp side of the hatchet or the spear although these weapo were allegedly found to be blood-stained. Further, the assault took place in to stages and the finding of the High Court is that the evidence is of an interes ted nature and it was for this reason that three of the respondents, namely, Hussain, Nazir and Bashir were acquitted of the capital charge by the High Court as it felt doubtful as regards the role assigned to them. Impliedly, the High Court, therefore, did not take the prosecution evidence on its face value as to the manner in which the fight started and in preference to it, gave due weight to the admission of respondent Aslam that "a fight broke out", which was also sudden as no eminent reason came on the surface to provide an immediate provocation despite the fact that they had bad relations from before and for that reason proceedings were taken against them to keep peace.
19. ' In this view of the matter, the learned State counsel conceded that the findings of the High Court as to the individual liability of the participants was unexceptionable. It was also brought to our notice by the respondents' counsel that those convicted had also undergone their sentences and were released from jail. No one also appeared on behalf of the appellant to press the appeal.
20. ' In these circumstances, we do not find any reason to disagree with the opinion of the High Court as to the nature of the offence committed by the respondents.
21. ' The appeal fails and is hereby dismissed. Those who are on bail, their bail bonds are discharged.