1. MUHAMMAD HALEEM, C.J.--Leave to appeal was granted toll consider as to the nature of the offence committed in the facts and circumstances of the case.
2. Six persons were tried for the double murders of Shamir and Baghela. Out of them Ghulam and Muhammad Yar were acquitted by the trial Court. Appellants Anwar, Jahana and Ahmad were convicted under section 302 read with section 34, P.P.C. And each was sentenced to imprisonment for life and to pay a fine of.Rs.1,000 or in default to suffer rigorous imprisonment for one year. Bulla was alone convicted under section 324, P.P.C. And sentenced to suffer rigorous imprisonment for to years.
3. The episode which resulted in the murders of the to deceased, according to the, prosecution, was the result of an earlier incident which took place a few days before the present occurrence, in which there was a grappling between appellant Anwar on the one hand and Muhammad P.W. 7 on the other over the dismantling of a joint Banna dividing their adjoining lands and uprooting a mulberry tree. They were separated by Falak Sher, a Lambardar, and one Majha.
4. On 4th of August, 1971, it was the appellant's turn of water from the tube-well between 4-00 a.m.
5. And 12-00 noon and thereafter Shamir took his turn of water by diverting it into his field which led to an attack by the appellants and the acquitted accused at 1-00 p.m. The details of the incident which emerge from the F.I.R. Were that as Shamir was returning to his field after checking the flow of water from the tube-well he saw the appellants and the acquitted accused armed with Dangs at their 'Behak' which was near the watercourse upon which he took a different route to avoid meeting them, but did not succeed as he was surrounded by the appellants and those acquitted in the field of Muhammad Yar, the acquitted accused. Shamir raised cries for help which attracted Muhammad, Bhar Poora, Sultan and Falak Sher to the spot. Baghela, however, arrived there earlier; and within their view Anwar inflicted a Dang blow on the head of Shamir while Bulla caused a Sota blow on his right thigh. Jahana next caused a blow with his Dang on the head of Bulla while the second blow was inflicted on him by Ahmad. As a result of the injuries sustained by them, they fell down. Muhammad (P.W.7) and Bhar Poora (P.W.8), it was alleged, caused blows to the appellants with their Dangs and Sultan, an abandoned witness, inflicted hatchet injuries on them in self- defence. Baghela died at the spot and Shamir expired on his way to the Civil Hospital at Sangla Hill.
6. Muhammad (P.W.7) thereupon proceeded to Police Station Sangla Hill where he lodged the report the same day at 5-30 p. m.
7. The appellants pleaded self-defence and gave their own version of the incident. Those acquitted pleaded that they were not present at the the of the incident while the others stated that the complainant party had disturbed the turn of their water to which they had objected; and a little later the to deceased and Muhammad returned duly armed with a spear, a Dang and a hatchet, respectively and attacked appellant Anwar upon which Jahana, Bulla and Ahmad intervened to save him but they also received injuries at their hands. They, however, did not state as to how the to deceased suffered injuries which resulted in their deaths.
8. The autopsy on the dead body of Shamir disclosed that he suffered to injuries--one a lacerated wound on the head and the other a contusion mark of sizable dimension on his right thigh. On Baghela to incised injuries were noticed-- one on the 'vertex' of the head and the other half an inch below the first injury.
9. The injuries on appellant Anwar were to incises--one of which was described as an incised "curved wound", one contusion mark of a sizable dimension on the back of his right chest and to abrasions, one on the back of the right chest and the other on the back of the neck above the shoulder.
10. Ahmad received one injury with a blunt-weapon which resulted in the fracture of his ulna bone of the left forearm. Jahana had one healed scabbed contusion mark on the vertex of his head. Bulla had also a healed scar mark on the back of his left forearm. Both these appellants were medically examined on 7th of August, 1971, and 21st of August, 1971 respectively, while the others were examined on 5th of August, 1971.
11. The trial Court acquitted Muhammad Yar and Ghulam accused as it was conceded by the Assistant Public Prosecutor that they were entitled to the benefit of doubt as no overt at was imputed to them nonetheless their presence on the spot could not be wholly excluded. Additionally, while accepting the concession, the trial Court held that their presence was not established beyond a reasonable doubt and as was the usual trend, they were unnecessarily involved because of their relationship with the appellants.
12. The result of this finding was that the trial Court ruled out the charge of rioting with deadly weapons and the consequent vicarious liability of the members of the unlawful assembly.
13. Nonetheless those convicted for murders were held to have shared the common intention. This common intention, however, was not held to be shared in the case of Bulla.
14. While dealing with the defence plea, the trial Court held that the injuries caused to the appellants were inflicted while they were effecting their escape by the prosecution witnesses. And as for Shamir if at all he was armed with a Ballam he would have caused the injuries with it to Anwar. But this was not so. Again on the assumption that he was so armed, the trial Court held that even if Shamir had caused a blow with his 'Ballam' on "his person" even then there was no justification for Anwar to cause a fatal blow on his head. Baghela to could not have retaliated after receiving injuries at the hands of Jahana and Ahmad. This according to the trial Court was evident from the fact that Ahmad could not have given a blow after he had suffered a fracture of his bone.
15. Therefore, he must have caused the injury to Baghela before he himself sustained it. Lastly, this is what the trial Court held in the alternate: "If at all any blows were given by Shamir and Baghela before collapse, those, in my considered view, had been inflicted to the accused in sheer desperation and in an effort to save themselves from the armed on-slaught of the encircling assailants, but majority of injuries to the accused were the result of blows delivered to them by the rescuers of Shamir and Baghela, who had been subjected to murderous assault in right earnest."
16. As to the liability of Bulls, the trial Court held that as he did not cause any blow on a vital part of the body of Shamir, his case was distinguishable from the others as the blows caused by them were not only on the vital parts but also inflicted with great force so as to cause their deaths. After evaluating the role of the appellants, the trial Court gave a conclusive finding that they had no apprehension of death or grievous injuries and as such they had no reason to cause fatal blows to the to deceased.
17. The High Court also rejected the defence plea holding: "The number and nature of injuries suffered by the deceased and the appellants leads me to the conclusion that the appellants were the aggressors and the incident occurred in the manner alleged by the prosecution. The place of occurrence is near the Katcha road on which Shamir deceased travelled. In order to reach his own field he had to pass the field of Muhammad Yar acquitted accused which is the place of occurrence. He was alone when he was attacked and Baghela deceased reached there to rescue Shamir deceased from the hands of the appellants when he also suffered fatal injuries at the hands of Jahana and Ahmad appellants before arrival of the complainant. It appears after to persons had fallen on the ground and apparently had died, the appellants felt satisfied and left the field. On the evidence on record, I am of the view that the prosecution version stands proved, the defence version is not probable, the appellants were the aggressors and the deceased persons were the victims."
18. The Courts below have consistently held that the appellants were the aggressors, but they were in error to examine the culpability from this angle when the immediate motive apparently was a dispute F over the turn of water and the evidence presented the element of a sudden fight in the heat of passion upon a sudden quarrel consequent upon the diversion of water According to the fixed Warabandi, it were the appellants who first took their turn of water and thereafter it was diverted by Shamir and Muhammad (P.W. 7) to their own fields. This is obvious from the statement of Muhammad (P.W. 7) who admits his presence alongwith Shamir and also that he had a hatchet and a Kasai; and at the the of assault he left the Kassi in the field and took his hatchet. As for Shamir, he stated that he had a Dang and a Kasai. The presence of Baghela was also admitted and his arrival at the spot was stated to be before his own arrival. Again Bhar Poora (P.W. 8) admitted that he was armed with a Lathi while Muhammad (P.W. 7) and Sultan, an abandoned prosecution witness, had hatchets. And as for the to deceased, Shamir had a 'spear' anti Baghela a Sota, and that all of them used the weapons in self-defence and caused injuries to Anwar, Bulla, Jahana and Ahmad.
19. In the context of the defence plea taken, the Courts below have sifted the evidence in a manner that it were the appellants who mounted the attack although the deceased and the prosecution witnesses were armed with more deadly weapons than the appellants and the injuries suffered by them were also larger in number. The other aspects which stand out are; firstly, that Muhammad (P. W. 7) did not suffer any injury although he had come to the spot armed with a hatchet to save Shamir; and, secondly, that the incised injuries were noticed on deceased Baghela although the prosecution version was that he was caused Dang blows. No attempt was made to explain as to how the incised injuries came to be sustained by Baghela. Apparently it appears to be a close fight and no one noticed as to who caused the incised injuries told Baghela.
20. The trial Court somehow concluded that the injuries on the appellants were caused while they were on the retreat, but even this inference is not sustainable as one of the incised injuries on the head of Anwar could not have been caused with a sharp-edged weapon from behind. The inference more consistent with the injuries is that they were inflicted from both sides in the fight. It is equally fallacious to assume as the trial Court did that the appellants did not have any apprehension of grievous injury or death although the complainant party was armed with more deadly weapons in which event such an apprehension could not be denied as fatal injuries could be caused with such weapons. This finding was also irrelevant as it was not a case of self-defence. The prosecution witnesses have apparently minimized their role to reduce their culpability. Therefore, their version as to the origin of fight could not be regarded as credible, and the only inference that can be drawn is that the parties fought upon a sudden altercation resulting from the diversion of water in which case who caused the blows first: is immaterial. It cannot also be said that the appellants acted cruelly or had taken undue advantage in the fight in the facts and circumstances of the case.
21. Having held so, it is a case which clearly falls within Exception 4 to section 300, P.P.C. Accordingly, we alter the conviction of the appellants from section 302, P.P.C., read with section 34, P.P.C. To section 304, Part 1, P.P.C. And as the appellants have remained in jail F for more than 10 years, we reduce the sentence awarded by the Courts below to the period already undergone by each of them. The fine imposed is, however, maintained and so also the sentence in lieu thereof.
22. Subject to this modification, the appeal is dismissed.