The appellants Khan Beg and Sardool have preferred this appeal against their conviction recorded on a charge under section 325 read with section 34, P.P.C. On the said charge the appellants were sentenced to undergo R.I. For a term of six years, and to pay a fine of Rs.1,000. In default of the payment of fine it was ordered that they shall undergo further R.I. For a further period of one year's each. In the event of realisation of fine, it was ordered that the same shall be paid to the heirs of the deceased Sarwar as compensation under section 544-A, Cr.P.C. The appellants alongwith acquitted accused namely Ghulam alias Gaman, Bahadur and Ahmad were tried on charges under sections 148, 302, 149, 325 and 149, P.P.C., for forming unlawful assembly with the common object of causing death of Sarwar deceased and for causing injuries to Waryam P.W.6, Mutalli P.W.7, Inayat P.W.14 Amir P.W.15, Khan Muhammad P.W.11, Mst. Saban P.W.13, Mst. Muradan P.W.12 and one Manak.
2. According to the prosecution versions, the occurrence took place at Dhali Peshiwela. The complainant Waryam alongwith injured witnesses was returning from Chak Sheikhans after performing betrothal ceremony of Mst. Rajan with Pehalwan. The complainant Waryam was accompanied by Saban P.W.13, Inayat P.W.14, Amir P.W.15, Khan Muhammad P.W.11, Mutalli P.W.7, Khushhall P.W.16 and Manak who was not examined, and when they all reached near the tube-well situated at a distance of about one square from their Dhari, suddenly the appellant Ahmad, Bahadur and Gaman armed with Lathis appeared. The appellant Khan Beg raised a Lalkara, that the complainant party will not be spared and would be taught a lesson for the betrothal of Mst.
Rajan with Pehalwan. According to the prosecution version the appellant Khan Beg gave Lathi blow on the head of Sarwar deceased, and Sardool appellant also gave Lathi blow on the head of Sardool deceased, as a result of these blows Sarwar fell down at the spot. The complainant Waryam P.W.6 was injured by Gaman and Bahadur accused. The other accused persons, allegedly gave blows to the other injured eye-witnesses. The hue and cry raised by the complainant attracted Bahadur P.W.7 and MS Muradan P.W.12 to the spot. Khan Beg appellant injured Mst.
Muradan P.W.12 as well. The appellants Sardool and Bahadur acquitted accused were also injured.
Sarwar deceased expired at the spot and the accused party took to their heels.
3. Complainant Waryam P.W.6 proceeded to the Police Station Sadar Jhang. But he came across Safdar Ali A.S.1 P.W.20. S.H.O. Sadar Jhang on the way, and the complainant got a statement Exh. P.A.
Recorded which was sent to the Police Station, where formal F.I.R. Exh.P.A/1 was drawn.
4. Doctor Safdar Ali P.W.1 examined Inayat P.W.14 on 21-8-1972 and found 7 blunt weapon injuries on his person. One of them was declared to be grievous. Amir P.W.15 was examined and 4 simple injuries caused by the blunt weapon were found on his person. On the person of Khan Muhammad P.W.11, 5 injuries caused with a blunt weapon were noted which were simple in nature. Manak who was not examined had received one injury caused with a blunt weapon. On the person of Mst.
Muradan P.W.12. 3 injuries were noted. One of them was grievous. Mst. Saban P.W.13 had suffered 3 injuries which were simple in nature. Mutalli P.W.7. Had received one simple blunt weapon injury.
Waryam P.W.6 had suffered 2 simple injuries caused by blunt weapon.
5. Sardool appellant was also examined by the same doctor and 8 injuries were noted on his person 2 of which were grievous. Bahadur acquitted accused had also received 6 injuries. One of which was grievous while the rest were simple.
6. The deceased had received 2 injuries on his head, and both the injuries were caused by blunt weapon, injury No.2 was grievous and fatal.
7. At the trial the accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution case. Sardool and Bahadur appellants stated that they were present at the tube-well, and the complainant Waryam P.W.6 and Mutalli P.W.7 suspecting Sardool having illicit liaison with Mst. Rajah, attacked them alongwith other persons, in their own land, and caused them injuries, and they acting' in the exercise of the right of self-defence, caused injuries to the deceased and others. It was further stated by Sardool appellant and Bagadur that Gaman, Khan Beg appellant and Ahmad were innocent and were not present at the time of occurrence.
8. The learned Sessions Judge, Jhang after careful scrutiny of the evidence, rejected plea of self- defence raised by Sardool and Bahadur, and the learned trial Judge came to the conclusion, that it was a free fight, and since .The appellant were attributed specific role, Therefore, the learned Sessions Judge found the appellants guilty on the charge under section 325 read with 34, P.P.C. The learned trial Judge further concluded that the evidence was not clear as to who had caused injure to whom, and since in such like case of free fight, the evidence as the role played by the persons involved should be unambiguous for recording the conviction, and because such evidence way not forthcoming on the record of the present case, therefore, the benefit of doubt was given to the acquitted accused persons.
9. The examination of the prosecution evidence supports the conclusion arrived at by the learned trial judge. In a free fight an individual car only be convicted on the basis of individual liability, therefore, undoubtedly before recording the conviction, the evidence should be unambiguous as to the role played by an individual in the free fight.
10. The evidence reveals that Sardool was anxious to get married with Rajan sister of Sarwar deceased, but the proposal of her marriage with Sardool was turned down, and instead she was betrothed to pehalwan. Annoyed by such refusal, the accused side had ambushed themselves, and were waiting for the complainant side to return from Chak Sheikhana, where the complainant side had gone for the betrothal ceremony. No sooner the complainant side reached near the bushes, the accused attacked them. This aspect further stands proved on account of the presence of women namely Mst. Saban P.W.13 and Mst. Muradan P.W.12, as they must have gone for the betrothal ceremony alongwith the males.
11. The plea of self-defence is devoid of any force, inasmuch as, two persons could not have caused so many injuries to 7 injured witnesses. If number of injuries, is compared on both sides the plea of self -defence stands exploded.
12. For the foregoing reasons I am of the view, that the learned trial Judge by sifting the evidence had come to the conclusion, that the evidence with regard to the appellants, as to their participation, and the role played by them was positive and free from doubt. Both had caused one injury each to Sarwar deceased, one of which was simple. In this view of the matter, there is no substance in this appeal. The learned counsel for the appellants contended before me that the occurrence had taken place on 20th of August, 1972, and remained as under-trial prisoner till the conclusion of trial on 15-10-1974 ad thus the appellant remained under-trial prisoners for about 24 months. After their conviction by the learned Sessions Judge, they further, suffered three months further R.I. And on 15th of October, 1974 their sentences were suspended by this Court. According to the learned counsel, the appeal has come up for hearing after a lapse of ten years and if the benefit under section 382-B, Cr.P.C. Is allowed, then in A the said event, according to the calculation referred to above the appellant; have suffered imprisonment far 27 months. The learned counsel contended that the period already undergone would be sufficient to meet the ends of justice, and this was a fit case for reduction of the Sentences.
13. I find force in the contention raised by the learned counsel, which is in line with the practise of this Court in such like cases. I would reduce the sentence to one already undergone. However, the sentence of fine is maintained, the appellants shall pay the amount of fine of Rs.1,000 each within two months of the passing of this order. It is further directed that the amount of fine shall be paid to the heirs of Sarwar deceased as compensation under section 544-A, Cr.P.C.
14. With the above modification, this appeal is hereby rejected.