Mazhar (26), Sikandar son of Adil (50) and Zulfiqar son, of Sikandar (26), have been convicted by a learned Additional Sessions Judge, Jhang on 1-7-1985, under section 304, Part II, P.P.C. For causing the death of Ate Muhammad (25) and have been sentenced to five years' R.I. And a fine of Rs.5,000 each or in default six months' R.I. It has also been directed that the fine if realized, half of the same would be paid to the legal heirs of the deceased as compensation.
Riaz, Ghulam Farid, Nek Muhammad, Khadim, Nazar, Manzoor, Jamal, Akbar, Lal, Zulfiqar son of Bahadur, Amir Bakhsh, Wali, Hakim and Sikandar son of Manak, fourteen co-accused have been acquitted by the same judgment.
2. The aforementioned convicts have challenged their conviction and sentence through the present appeal.
3. The occurrence in this case took place on 23-1-1984, at 5 p.m. In the fields in the area of village Monger, at a distance of nine miles from Police Station Qadirpur, District Jhang The occurrence was reported by Salehoon P.W. 10, cousin of the father of the deceased, vide F.I.R. Exh.P.Y. At the police station which was recorded by P.W.4 Imtiaz Hussain Moharrir Head Constable.
4. About the motive it has been alleged that one day prior to the present occurrence, Anwar P.W. 13, Ali P.W.12 and Ahmad (given up) cut the Lai bushes from the reiverain tract of land and after cutting the bushes carried the cut wood in form of bundles on their heads and passed by the side of Dera of the accused party. Sikandar, Zulfiqar, Mazhar and Farid accused told the abovementioned P.Ws.
That the bushes in fact belonged to the accused party and why they had cu the same. Thus, hot words were exchanged and Sikandar etc. Held out threat to Anwar, Ali and Ahmed that they would be taught a lasso for cutting their Lai bushes.
5. Regarding the main occurrence, it has been stated that at the eventful time, twelve members of the complainant party, namely, Saleho0 P.W.10, Zulfiqar P.W.11, Ali P.W.12, Anwar P.W.13. Ahmad (n produced), Munawar (not produced), Mutalli (not produced), Jews (not produced), Sadiq (not produced), Akbar (not produced), Muzammal (not produced) and Ate Muhammad deceased were doing husband work in the fields. Sikandar son of Manik (acquitted accused) pass by their fields and he removed sugarcane plants from the sugarcane field of the complainant party, on which Ahman son of Salehoon P.W.10 took exception and admonished Sikandar. Exchange of hot wards ensued whereupon Sikandar raised alarm and called his party men for help Consequently all the accused armed with Dangs emerged at the scene of occurrence and opened attack on the complainant party. Zulfiqar son of Sikandar appellant dealt a Deng blow to Ata Muhammad deceased on his head. After receiving the injury he fell down. In fallen condition, Sikandar son of Adil dealt a Deng blow on the back of his right ear. Mazhar also dealt a Dang blow causing injury on the head of the deceased towards the back side. The deceased became unconscious. The other accused, who have since been acquitted, allegedly caused injuries with their respective Dangs to other members of the complainant party. Ate Muhammad deceased while in injured condition was removed to the District Headquarters Hospital, Jhang, where he succumbed to the injuries before any medical aid could be administered to him. The other injured witnesses were taken to Shah Jewana hospital where they were medically examined. After obtaining their medico-legal reports, Salehoon P.W.10 went to the police station and got registered the case.
6. P.W. 1 Dr. Muhammad Riaz, medically examined, Muzammal Hussain, Ali, Zulfiqar Ali, Sadiq, Mutalli, Jewan, Manawar Hussain, Anwar Ali, Ahmed Yar and Akram on 23-1-1984, as private cases. In case of these injured persons, he noticed injuries caused by blunt weapon on different parts of their bodies as detailed in their respective reports. In all these cases, except injury No. 1 on the side of the head of Sadiq and injury No. 2 on the back of left shoulder of Mutalli, other injuries were declared as simple. The aforementioned two injuries as a result of X-Ray reports were declared as grievous.
7. Dr. Muhammad Hanif P.W.2, conducted autopsy on the dead body of Ata Muhammad deceased on 24-1-1984 at 3-30 p.m. He noticed a lacerated wound on the right side of head, 8 c.m. Above right ear, a lacerated wound on the back of right ear and a swelling on the back of head. He opined that the deceased had died due to haemorrhage, and damage to brain resulting from injury No. 2, which was to cause death in the ordinary course of nature. Injury No. Declared grievous while injury No. 2 was found to be simple. It further opined that all the injuries were ante-mortem and caused blunt weapon.
On the same day this doctor medically examined, Akbar acquitted accused, Zulfiqar appellant, Jamal acquitted accused, Mazhar Abbas appellant and Ghulam Farid acquitted accused. On their persons he found injuries on different parts of the bodies as detailed in their respective medico- legal reports, caused by blunt weapon, but in regard to certain injuries, X-Ray was advised and the injuries were kept under observation, but subsequently the police did not get the accused X-Rayed and thus, no opinion could be recorded about the injuries kept under observation.
8.Zulfiqar appellant was arrested on 31-1-1984, by Ibrahim. S.I. (P.W.15). Sikandar son of Adil was arrested on 10-2-1984, by the same police officer while Mazhar was arrested on 10-2-1984, by the same Sub-Inspector. Sikandar appellant at the time of his arrest on 10-2-1984, produced Deng P.6 which was taken into possession, vide memo. Exh.P.B.B. Attested by Manzoor Ahmed P.W.8, Namdar Khan (not ,produced) and Ibrahim S.-I. P.W.15. On the same day Mazhar produced Deng P.7, which was secured, vide memo. Exh.P.C.C attested by the same witnesses. Zulfiqar appellant on led to the recovery of Deng P.14 from his house which was taken into possession, vide memo. Exh.P.L.L., attested by Mopal P.W.9, Malik Muhammad Yousuf (not produced) and Ibrahim S.-I. (P.W.15). These Dangs were not blood-stained and, therefore, were not sent to the Chemical Examiner and the Serologist and hence could not be connected with the offence. The alleged recoveries in the circumstances are of no consequence.
9. Salehoon P.W.10 complainant, Zulfiqar son of Salehoon P.W.11 (injured), Ali P.W.12, brother of Salehoon (injured), Anwar P.W.13 son of Salehoon (injured) and Akarm P.W.14, nephew of Salehoon (injuured) have testified at the trial as eye-witnesses. By and large these witnesses have supported the prosecution case, as detailed in the F.I.R. Exh.P.Y.
10. The stance of the accused was that in order to take revenge of their previous day's insult, the complainant party waylaid Sikandar son of Manak acquitted accused and he was dragged to the Dera but on his alarm, Sikandar appellant, Jamal, Akbar, Zulfiqar appellant, Mazhar appellant and Ghulam Farid went to the scene of occurrence. They were also attacked by the members of the complainant party and in order to save themselves and save Sikandar son of Manak, these persons also caused injuries in exercise of right of self-defence to the members of the complainant party, but it was practically impossible to determine who hit whom. As the complainant party was able to obtain medico-legal reports first, they got the case registered and attributed different injuries of the injured P.Ws. And the deceased to the different members of the accused party. This plea has been disclosed by Sikandar appellant in his reply to question No. 10, while he was examined under section 342, Cr.P.C. His answer to question No.10 reads:--- "On 22-1-1984, there was an altercation between Ali, Anwar, Ahman P.Ws. Mazhar, Zulfiqar, Farid and myself. The P.Ws. Went to their Dera with the Lai wood which they had brought from their land on the river side and threatened us to take the revenge for obstructing their way and insulting them.
On the following day Sikandar son of Manak, my cousin was coming back to our Dera from Shah Jewana, when passed from near the Dera of complainant party, Ata deceased Muzammal, Ali Anwar etc. Caught hold of him, wanted to kidnap and confine him to take the revenge of previous day's insult. He raised hue and cry. I was present at my cane crusher and was attracted to the hue and cry of, said Sikandar and reached there alongwith Jamal, Akbar, Zulfiqar, Mazhar and Ghulam Farid to rescue said Sikandar. The P.Ws. Attacked us in order to save Sikandar son of Manak and to protect to our own person, we inflicted injuries to the P.Ws., in the exercise of right of self-defence. It was practically impossible to determine who hit whom. The complainant side after getting medical examination attributed the injuries to each of us. They have also coined a pretex for their presence at the alleged place of occurrence for sowing tobacco, whereas tobacco is never sown in that season and in fact the P.Ws. Had gathered there to take the revenge of the previous day's incident.
As per chance the complainant party sustained more injuries and one of them expired. The police did not listen to us and registered a salse case against us."
The appellants examined Muhammad Nawaz M.H.C. D.W.1, who produced Exh.D.H. Contents whereof are to the effect that between the period July, 1968 to August, 1979, Ali P. W.12 was involved in 11 cases registered on different dates under sections 457/380, 457/411 and 379, P.P.C.
11. It has been contended on behalf of the appellants that injuries to the members of the accused party have been suppressed in the, F.I.R. And that in the circumstances of the case, there was no occasion for the accused party to be present at one place to open attack at the alarm of Sikandar on the complainant party. It has also been urged that in the site plan no place has been shown, where the accused were allegedly hiding themselves and no sugarcane plant has been taken into possession.
12. The learned counsel for 'the State on the other hand supported the judgment under appeal.
13. The contentions raised on behalf of the appellants have been considered. No doubt, injuries on the persons of the accused party have been suppressed in the F.I.R. They have also received injuries at the hand of the complainant party. In certain cases, their injuries were kept under observation, but the police did not care to get their injuries X-Rayed. The site plan indicates that the Deras of both the parties are not far of from the place of occurrence and at a short notice they could reach the place of occurrence quickly. In view of injuries caused with blunt weapons (mostly simple) on the large number of persons belonging to both the parties, it appears to be quite probable that members of both the parties participated in the fight which occurred suddenly on account of previous day's exchange of hot words. In this sudden and free fight members of both the parties sustained injuries. It is an established proposition of law that in case of sudden and free fight, the question of vicarious liability does not arise and each individual participating in such a fight is liable for his personal role. In the circumstances of the present case, but for the injuries to Ata Muhammad deceased, it has not been specifically told as to who were the authors of injuries received by different members of the complainant party and those of the accused party. In case of deceased, of course, specific role has been attributed to the three appellants, who were alleged to have caused injuries with Dangs on the head and ear of the deceased. 106ince the three appellants caused injuries with Dangs on vital part of the body of the deceased, therefore, they can be burdened with the knowledge that they knew that their act was likely to cause the death of the deceased, even if they did not intend to cause his death. They have, therefore, been rightly convicted under section 304, Part II, P.P.C. The sentence of five years' R.I. And a fine of Rs.5,000 each on the charge of culpable homicide is not excessive in any manner.
14. In the light of the foregoing conclusions, the conviction and the sentence of the appellants is upheld and their appeal is dismissed.