1. SHAFIUR RAHMAN, J.-- Nawaz Khan aged 60 years, his sons Mulazim Hussain aged 17 years and his son-in-law Mehr Khan aged 20 years, all convicts under section 302/34, P.P.C. (to counts) and under section 307/34, P.P.C. (to counts) were granted leave to appeal A to re-appraise the evidence with a view to ensure that it was not a case of "a sudden fight or a free fight in which both the parties fired at each other".
2. The prosecution case against the appellants was that Nawaz was grantee of State land in Chak No. 114-S.B. Sargodha and was getting it cultivated through Arif (since dead) and his brother Ghulam Mustafa. He wanted them to be evicted from the land, which was cultivated by them. On the morning of 20th April, 1975 when Arif (since dead) was present in his "Behk" in Killa No. 25 Square No. 21, Nawaz armed with a revolver and the to other appellants armed with a gun came there. They challenged Arif and the prosecution witnesses. Afzal Hussain Shah deceased who was a resident of Sargodha and had come to meet his friend Azam deceased and happened to be present there went forward to persuade the appellants not to indulge in violence. Mehr Khan aimed his gun at him. Afza1 Hussain caught hold of the barrel. Mehr Khan bit his teeth on his arms. At that stage Mulazim appellant fired a shot at Afzal Hussain injuring him on the arm. Muhammad Azam deceased, a son of the complainant Fateh Khan (P.W.7) had also a licensed gun with him, which he loaded and fired at Mulazim injuring him on the head. On this Nawaz Khan fired his revolver injuring Azam on the chest. When Arif the tenant advanced, Mehr Khan fired at him injuring him on the buttock. Lal Khan (P.W.8) another son of Fateh Khan advanced towards the appellants whereupon both Mulazim and Mehr Khan fired at him causing extensive injuries on his person. The licensed gun of Azam deceased dropped at the spot, which was picked up by the appellants and taken away from there. Fateh Khan took the injured persons, namely, Azam deceased, Arif and Lal Khan (F.W.8) to the hospital and therefrom went to Police Station Sillanwalli at a distance of 12 miles from the spot and lodged a report at 2 p.m.
3. Muhammad Hayat (P.W.12), at that the S.H.O. Sillanwalli Police Station, recorded the report, came to the spot, attended to the dead body of Afzal and despatched it for post-mortem examination. He recovered from the spot blood-stained earth and three empties of .12-bore and one empty of .32 bore, One empty of .12-bore matched with the licensed gun (P.10) of Nawaz Khan which was handed over by Mulazim and another with the licensed gun of Azam which was produced later by Nawaz appellant. The .32-bore empty matched with the revolver of Nawaz Khan. Mehr Khan was arrested on 28-4-1975 from Karachi. The other appellants were arrested earlier on 21-4-1975.
4. Dr. Obaidur Rahman performed autopsy of Afzal Hussain deceased and found one fire-arm iniury which was fatal, three contusions ano five abrasions on his dead body. He also examined Azam who died of the injuries on 25-4-1975. Azam had to fire-arm wounds of entry, one on the chest and the other on the back on right side. Dr. Mumtaz Ahmad Janjua (P.W.10) examined Arif (since dead) and found only one pellet injury on his buttock. The same doctor examined Lai Khan (P.W.8) and found sixty five wounds of entries of pellets, three wounds of exit and one lacerated wound.
5. The appellant Mehr Khan denied his presence or participation in the occurrence. Nawaz Khan and Mulazim put forward a counter-version. Their case was that Arif and his brother Ghulam Mustafa were undoubtedly their tenants cultivating the land but in January, 1975 they had voluntarily surrendered the possession. On the day of occurrence, it was an effort made by them, with the assistance of the family members of Fateh Khan (P.W.7) and their friend Afzal deceased, and they wanted to regain possession of the land as they had come to believe that the tenants in cultivating possession of the land were to be made owners thereof. These appellants claimed to be victims of aggression and they claimed to have acted only, in self-defence of their person and property.
6. Nawaz Khan stated as follows:- "On the day of occurrence at about 8-30 a.m. I was working in my fields in Killa No.8 of Square No.21 when I saw Arif (since dead), Lal Khan P.W., Muhammad Azam, Afzaal Hussain deceased persons alongwith to other persons present in Killa No.25 of Square No.21. They were putting a Khurli in my land. I went there and told Arif P.W. That he had voluntarily vacated the land and why he was now trying to re-occupy the land. He replied that Mr. Bhutto had declared that whoever was in posses-- sion of land would become its owner and, therefore, he would re-occupy the land. I told Arif to take away the 'Khurli'. This led to an altercation. I was felled down by Afzaal Hussain acecused. I raised an alarm. My son Mulazim Hussain was present at the Dera. He came running with my gun. When he was at some distance from the place of occurrence Muhammad Azam deceased who had a gun with him fired at him, hitting him on his head. Muhammad Azam then re-loaded his gun with a view to firing at my son again. In the meantime I got up and with revolver I had in my Dub, fired at Muhammad Azam deceased. Thereupon firing started from both sides. Some persons were sitting hiding in Killa No.5 of Square No.22. They belonged to the complainant party. They and the to unknown companions of Arif etc. Also started firing. After the incident I immediately 'proceeded to the Police Station, where I reported the incident and produced my revolver and the gun of Muhammad Azam deceased. The S.I., however, refused to record my statement. He came with me to the spot of occurrence and then joined hands with the complainant party and challaned us."
7. Two motives were given in the First Information Report for the occurrence. The first concerned entirely the tenants and related to the effort of the appellants to get them evicted from the land, if need be, by force. The second was a grievance on account of the fact that Azam deceased had insulted four or five days before the occurrence the wife of Mehr Khan who was the daughter of Nawaz and the sister of Mulazim. The second motive was not pressed or pursued and none of the Courts held it established. On the contrary, the trial Court held that the presence of Fateh Khan, his sons and Afzal Hussain was at the spot not by design or after preparation but they were present there by chance and their presence was innocent. The trial Court believed that the tenants were in possession; that the appellants wanted to evict them and that the to killed were innocent interveners who were subjected to attack. The trial Court did not believe the defence version that they were exercising the right of private defence of their person and property. On these conclusions, the trial Court held all the appellants quality of the offence under section 302/34, P.P.C.
8. (to counts) and under section 307/34, P.P.C. (to counts). Nawaz was sentenced to death on to counts and a fine of Rs.5,000 on each count payable to the heirs of Azam and Afzal as compensation or in default to suffer six months' R.I. On each count. Mulazim and Mehr Khan were sentenced to life imprisonment on to counts and no fine or order of compensation was passed on account of their relationship with Nawaz and their age. For conviction under section 307/34, P.P.C.
9. (to counts) Nawaz was sentenced to seven years' R.I. And a fine of Rs.2,000 on each count payable to the injured Lal Khan and to the heirs of Arif (since dead) as compensation. The other to appellants were sentenced to seven years' R.I. And no order of compensation was made. The charge under section 379, P.P.C. Relating to the gun of Azam removed by Nawaz was held not proved as the removal was held not to be dishonest.
10. In appeal and while the High Court was seized of the confirmation of the death sentence of Nawaz, it was pointed out that there was an obvious improvement in the prosecution case directed at making the ocular testimony consistent with the medical report so far as the injuries of Azam deceased were concerned. The F.I.R. Version was that only one bullet injury had been caused to him on the chest. It appeared from the autopsy that not only a bullet was recovered but also seven pellets. The High Court dealt with this arguments in the following words:- "This improvement is hardly material since the presence of the witnesses instances of the spot cannot be doubted. In fact Nawaz Khan admits the presence of Lal Khan in his statement under section 342, Cr.P.C. The occurrence and firing by both the parties is also admitted. It is not the case of the appellants that the injury by gun pellets was sustained later. In view of this nothing turns upon this improvement."
11. The discrepancies with regard to the ocular account and the medical report concerning Afzaal Hussain wherein a member of injuries caused by a blunt-weapon remained unexplained were dealt with by the High Court in the following words:- "injuries Nos.l to 6 described in Exh.P.S. Which is the post--mortem report in relation to that apart from the fatal injury there were 5 abrasions on his body and three contusions wounds. This corroborates the prosecution version that there was a scuffle between Mehr Khan accused and Afzaal Hussain deceased and also fits in the defence version that there was firing from both sides and in this connection we have already taken note of the fact that multiple pellets were removed from the lungs of Afzaal Hussain deceased."
12. The High Court affirmed the conclusion of the trial Court by holding that: - "It stands sufficiently proved from the evidence on record including the ocular and medical evidence that the attack on the complainant party was with premeditation in order to secure possession of the land held by Muhammad Arif and is the process the accused caused fatal injuries to Afzaal Hussain deceased and Muhammad Azam deceased and injuries to Lal Khan, P.W-.8 and Muhammad Arif."
13. The High Court, therefore, maintained the conviction and the sentence of the appellants in terms ordered by the trial Court and confirmed the sentence of death of Nawaz.
14. Mr. Jariullah Khan, the learned counsel for the appellants contended before us that from the proceedings before the authorities concerned with the restoration of possession of the evicted tenants, particularly at the stage of appeal, it stood proved that the tenants had vacated possession of the land volunatrily and it was an effort on their part to regain possession with the assistance of Fateh Khan,and his family friend. Even otherwise, according to the learned counsel for the appellants, the motive which was entirely directed against Arif and Ghulam Mustafa could not have ended in the death of Azam who had nothing to do with it and Afzal a ranker outsider and Lal Khan who was also not directly involved. Arif received a very superficial injury of a stray pellet on his buttock. The second motive which could be substantial was not pursued at all. The very fact that Azam, had come armed with a gun had used it effectively on Mulazim and that Nawaz in spite of being armed with a revolver had used it only when Mulazim his son had been fired at by Azam and had abstained from firing any more shot would indicate that he did not exceed the right of private defence of his own person or that of his son. He has drawn our attention to the discrepancy between ocular evidence and medical evidence and the 'unsatisfactory manner' as he calls it, in which the to Courts dealt it with, though this discrepancy was taken note of and disposed of by both the Courts. Even if, according to the learned counsel for the appellants, the defence version was not entirely satisfactory, so was the prosecution version and the benefit accruing from the discrepancies in the prosecution case should have been made available to the appellants instead of making them responsible for the murder on account of the unsatisfactoriness of the defence version.
15. According to the prosecution case and the findings of the to Courts which, on the state of evidence on the record, we are not able to disturb, are that Arif and Ghulam Mustafa the tenants were in possession of the land comprising their tenancy and for the past three months before the occurrence Nawaz Khan was attempting to get them evicted. The occurrence took place when an effort in that direction was made. The presence of Fateh Khan and his to sons and a friend of the family was just by chance and for innocent purposes. All the same, the proved facts show that there was an altercation between the to groups. The innocent interveners were actively involved in it inasmuch as the deceased Afzal Hussain had three contusions and five abrasions for which no explanation whatsoever was given. Nawaz had also an injury on his knee and Mulazim had a fire- arm injury on his head. Thus the facts as brought out by prosecution itself show that there was a fight between the to groups. If the motive was to evict Arif and Ghulam Mustafa and the appellants had come prepared for that the brunt of the attack would not have been directed towards the persons who happened to be present there by chance and had no particular interest, the proceedings except at the most, moral sympathy, with the tenants. The injuries received by the to groups further substantiate this. The failure of the prosecution witnesses to account for some of the injuries and of the defence to give a satisfactory explanation makes it a typical case of a sudden fight, involving both the parties. In a case of sudden fight where both the groups are armed with fire-arms and use them, the question of self-defence will be academic and will not arise. The criminal responsibility of those involved would be individual and there would be no question of a common intention or a common object being pursued. In the case before us, we find that Nawaz had fired and killed Azam. Mulazim had fired and killed Afzal. Mehr Khan had fired and injured both Arif as well a. Lal Khan. (P.W.8 ) Mulazim had fired and injured Lal Khan.
16. In the circumstances and for the reasons given, we accept this appeal, set aside the conviction of the appellants under section 302, P.P.C. (on to counts) and under section 307/34, P.P.C. (to counts).
17. Nawaz is convicted under section 304, Part I, P.P.C. And sentenced to life imprisonment and a fine of Rs.10,000 or in default to years R.I, The fine if recovered, shall be-paid to the heirs of Azam as compensation. Mulazim appellant is convicted under section 304, Part-I, P.P.C. And sentenced to life imprisonment and a fine of Rs.10,000 which on recovery shall be payable to the heirs of Afzaal Hussain. In default he shal suffer further R.I. For to years. Mulazim appellant is also convicted under section 308, P.P.C. And sentenced to seven years' R.I. And a fine of Rs.5,000. In default, he shall suffer further R.I. For one year. The fine if recovered, shall be paid to Lal Khan. Mehr Khan convicted under section 308, P.P.C. On to counts and sentenced to seven years' R.I. And a fine of Rs.5,000 on each count. In default, he shall suffer further R.I. For one year. The fine, if recovered, shall be paid as compensation to the heirs of Arif and to Lal Khan. The sentence of imprisonment shall run concurrently. The appellants shall be given the benefit of section 382, Cr.P.C. In computing the sentence.