' LEHRASAP KHAN, J.--Muhammad Akbar (17), Muhammad Munir (25), Nazir Ahmad (30), Iftikhar Hussain (30) and Sultan alias Kalu (33) have been convicted on 11-6-1983, by a learned Additional Sessions Judge, Sheikhupura, under sections 148, 302/149 and 324/149, P.P.C., for forming an unlawful assembly and for causing the murder of Asghar Ali deceased and for inflicting injuries on Bashir Ahmed P.W.12.
' For causing the murder of Asghar All deceased, Muhammad Akbar has been sentenced to death and a fine of Rs,5,000 or in default one year R.I. The fine if recovered has been directed to be paid to the legal heirs of Asghar Ali deceased to the extent of one-half. The remaining aforementioned four accused have been sentenced to transportation for life and a fine of Rs,5,000 each or in default one year R.I. Same direction regarding compensation has been made as has been made in the case of Muhammad Akbar. Under section 324/149, P.P.C. All of them have been sentenced to one year R.I. Each and a fine of Rs,2,000 each or in default six months' R.I. Under section 148, P.P.C. All of them have been sentenced to one year R.I. Each.
' Mst. Bashiran co-accused has been acquitted by the same judgment.
' The substantive sentences of imprisonment have been directed to run concurrently.
2. The aforementioned convicts have challenged their convictions and sentences through Criminal Appeal No,318 of 1983 while the matter also stands referred to us (Murder Reference No,128 of 1983) under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Muhammad Akbar.
Bashir Ahmad complainant has also filed Criminal Revision No,554 of 1984, seeking a direction against Muhammad Akbar accused for payment of compensation under section 544-A, Cr.P.C., for enhancement of sentence of imprisonment for life awarded to Nazir Ahmad, Muhammad Munir, Iftikhar Hussain and Sultan under section 302/149, P.P.C. To death and also for the enhancement of sentence of imprisonment awarded to all the convicts.
' It is noteworthy that since the learned trial Judge awarded sentence of transportation for life to Nazir Ahmed, Muhammad Munir, Sultan and Iftikhar Hussain under section 302/149, P.P.C. Instead of imprisonment for life and as it was not a legal sentence we admitted the revision petition for regular hearing.
' All the aforementioned three matters, i,e, the criminal appeal, the murder reference and the criminal revision shall be disposed of by this judgment.
3. The occurrence in this case took place on 20-7-1981 at 3-00/4-00 p.m. Opposite Rajbah Gulluke in front of Chah Mochianwala, in the area of village Gandhowal, at a distance of 13 miles from Police Station Narang, District Sheikhupura.
' Statement Exh.P.H. Of Bashir Ahmad P.W.12, brother of Muhammad Asghar deceased was recorded at 9-00 a.m. On 21-7-1981 by Mushtaq Ahmad S.I. P.W.19 Narang Morr. Formal F.I.R., Exh.P.A, was recorded at the police station on 21-7-1981 at 9-20 a.m. By Muhammad Ashraf, Muharrir Head Constable P.W.2.
4. As regards motive it has been alleged that Muhammad Yaqoob, a cousin (Phuphizad) of the deceased and Bashir Ahmad complainant, was of infirm mind and he used to rear sheep. On 19-7- 1981, while he was grazing his sheep at Chah Chathian Wala, Javed aged 13/14 years and Pervaiz aged 11/12 years sons of Mst. Bashiran, acquitted co-accused and brothers of Muhammad Akbar appellant cut jokes with Muhammad Yaqoob. In the evening Muhammad Yaqoob protested before Mst.Bashiran, mother of the boys, who instead of admonishing her sons gave fist blows to Muhammad Yaqoob alongwith Javed and Pervaiz. Afterwards Muhammad Yaqoob (not produced) went to Muhammad Latif (not prOduced) father of the deceased and the complainant and informed him of his insult at the hand of Mst. Bashiran and her young sons. Muhammad Latif accompanied by Muhammad Yaqoob went to the house of Mst. Bashiran and lodged protest but Mst. Bashiran and her son's rubuked Muhammad Latif as well. He also retaliated, whereupon Mst.
Bashiran went on top of the roof of her house and threw brick bats on Muhammad Latif but he escaped. The quarrel ended with the intervention of Ilyas P.W.9, Bashir, Nazir and Afzal (not produced). It has further been alleged that Mst. Bashiran sent message to her sons Muhammad Akbar and her relatives Nazir Ahmad and Muhammad Munir, who accompanied by Iftikhar Hussain and Sultan, their friends, came to the village to avenge the so-called insult of Mst. Bashiran.
5. As for the main occurrence is concerned, it has been stated that on 20-7-1981 at the eventful time Bashir Ahmad P.W.12 alongwith his younger brother Asghar Ali deceased were returning from their well Mehrwala, while their father Muhammad Latif and brother Munir (both not produced) were still working at the well. When Bashir Ahmed P.W.12 and Asghar Ali deceased reached near Rajbah. Gulluke in front of Chah Mochianwala, the appellants, namely, Muhammad Akbar, Nazir Ahmad, Muhammad Munir, Iftikhar Hussain and Sultan came in front of them. Muhammad Akbar, Nazir Ahmad and Muhammad Munir were armed with daggers while Iftikhar Hussain and Sultan had Sotas with them. Muhammad Akbar opened the attack and caused a dagger blow hitting the left side of the abdomen of Asghar Ali deceased. He inflicted a second blow in the vicinity of the first blow. Thereafter, Asghar Ali fell to the ground and became unconscious. Sultan and Iftikhar Hussain caused successive Sota blows on the left elbow, waist and other parts of the body of Asghar deceased. Bashir Ahmad P.W.12 tried to escape but the appellants encircled him.
Muhammad Munir and Nazir Ahmad appellant tried to hit him in the abdomen with daggers but he received the injuries on his left wrist and palm, whereby his wrist and palm were injured. Iftikhar Hussain and Sultan caused him Sota blows on his head, left elbow, left thigh, knee and right calf. On his alarm, Muhammad Latif, his father, Munir his brother came running from Chah Meherala to save them. They were also injured by the appellants with their respective weapons. Munir received thirteen injuries on different parts of his body while Latif received two injuries on his person. In the meantime many persons from the village including Khadim Hussain P.W.13 reached the place of occurrence. With their help the complainant and his brother Munir were able to snatch daggers from Muhammad Akbar and Muhammad Munir appellants and when the other appellants tried to attack them they caused injuries to Nazir Ahmad and Iftikhar Hussain in exercise of right of self- defence. Subsequently, the injured were taken to Mayo Hospital where Asghar Ali deceased succumbed to the injuries on 7-8-1981.
6. P.W.8 Dr. Tanvir Ahmad, the then Casualty Medical Officer, Mayo Hospital, Lahore medically examined Asghar Ali deceased while he was still alive on 20-7-1981 at 5-50 p.m. And noticed an incised wound 2 c.m. x 1 c.m. On the posterior exillary line of the chest. Besides this injury he also observed a swelling, an abrasion and another swelling on the outer aspect of the left fore arm, on the outer aspect of the right fore arm and on the outer aspect of right upper arm, respectively.
Injury No,1 was declared as grievous while rest of the injuries as simple. It was also opined that injury No,1 was caused with sharp-edged weapon while the rest were with blunt weapon.
' Autopsy on the dead body of Asghar Ali deceased was performed on 7-8-1981 at 5-30 p.m. By P.W.17 Dr. Muhammad Anees Sheikh. He noticed the aforementioned incised wound besides an abrasion on the outer aspect of right fore arm and an operational wound. He opined that the injuries were ante-mortem. Injury No,1 was sufficient to cause death in the ordinary course of nature. Death occurred due to the septicemia leading to septic shock and death as a result of injury No .1.
7. P.W.20 Dr. Muhammad Tahir Anees examined Bashir Ahmad P.W.12 on 20-7-1981 at 10-00 p.m. He noticed two incised wounds, one ever -upper outer part of left fore-arm and the other over inner upper part of left palm in addition to an abraded swelling over left front part of head, a lacerated wound over inner middle part of right leg, a contused swelling over inner middle of right leg, a contused swelling on back of left elbow and an abrasion on front of left knee. He opined that all the injuries were simple and that injuries Nos. 1 and 2 were caused with sharp-edged weapon while the remaining injuries were caused with blunt weapon.
' On the same day he examined Muhammad Munir (not produced) brother of Bashir Ahmad F'.W.12 and noticed 13 injuries caused by sharp-edged as well as blunt weapon on his person. Similarly he examined Muhammad Lath (not produced) father of Muhammad Bashir and noticed two incised wounds on his person.
8. On the same appellant and twenty included two incised blunt weapon. Day at 10-30 p.m. He examined Iftikhar Hussain Injuries were noticed on his person. These injuries wounds while all other injuries were caused by blunt weapon.
' Nazir Ahmad appellant was also medically examined on that very day and in his case three stab wounds, one incised wound, two lacerated wounds and many contusions were noticed. In all he had suffered 24 injuries.
9. Muhammad Akbar, Iftikhar. Hussain and Muhammad Munir were arrested by Mushtaq Ahmad S.I.
P.W.19 on 30-7-1981. Sultan and Nazir were arrested by the same police officer on 10-8-1981.
Muhammad Ajmal A.S.I. Arrested Mst. Bashiran acquitted accused on 19-10-1981.
' On 27-9-1981, Bashir Ahmad P.W.12, produced Chhuri P.4 (blood-stained) which he allegedly snatched from Munir appellant. This Chhuri was taken into possession vide memo. Exh.P.E by Mushtaq Ahmad P.W.19 in the presence of Said Muhammad P.W.7 and Asghar P.W.11. On the same day Bashir Ahmad produced Chhurri P.W. (blood-stained) allegedly snatched from Akbar appellant. This Chhur was secured vide memo. Exh.P.F. In the presence of the aforementioned Said Muhammad and Asghar P.W.
' On 15-8-1981 Sultan appellant got recovered Danda P.6 (no produced) from his house vide memo.
Exh.P.I. Which has been attested by Bashir Ahmad P.W.12 and Mushtaq Ahmad S.I. P.W.19. Nazir Ahmad appellant led to the recovery of dagger P.7 (not blood-stained) or 15-8-1981 from his house vide memo. Exh.P.K. Attested by Muhammad Hanif P.W.15, Ashfaq Ahmad (not produced) and Mushtaq Ahmad S.I P.W.19. No other recovery could be effected from the other appellants ' Vide Serologist's report Exh. P.U/1, it has been reported that Chhuri P.4 and Chhuri P.5 were stained with human blood. Since Chhuris P.4 and P.5 have not been recovered from the appellants but the same have been produced by Bashir Ahmad complainant the recover of the same cannot be legally treated as an independent corroborator: piece of evidence. Danda and Chhuri allegedly recovered from Sultan and Nazir respectively being not bloodstained are not connected with the crime and these recoveries are, therefore, of no consequence.
10. At the trial Bashir Ahmad P.W.12 brother of the deceased who was also injured during the occurrence and Khadim Hussain P.W.1 who is not related to the deceased or the complainant have testified a eye-witnesses and they have supported the prosecution version as disclosed in the F.I.R.
Exh.P.A.
11. Muhammad Akbar, Sultan and Munir appellants denied their participation while Nazir Ahmad and Iftikhar Hussain appellant pleaded that in fact they were assaulted by the complainant party and they acted in self-defence. No evidence has however, been led in defence.
12. While the learned counsel for the State and the learned counsel for the complainant supported the judgment under appeal, it has been urged on behalf of the appellants that delay in lodging the F.I.R. Ha not been reasonably explained. The occurrence allegedly took place on 20-7-1981 at 3- 00/4-00 p.m., but the statement was made by Bashir Ahmad complainant before the Sub- Inspector at Narang Morr on try following day at 9-00 a.m. It has further been contended that motive to take revenge was with the complainant party and not with the accused as Mst. Bashiran, mother of Akbar appellant and his two younger brothers, had insulted Muhammad Latif father of the deceased and this complainant and had also given fist blows to their cousin Muhammad Yaqoob. It has further been urged that 44 injuries to Nazir Ahmad an Iftikhar Hussain appellants have not been satisfactorily explained and that presence of non-injured appellants at the time of occurrence way highly doubtful.
13. We have thoroughly considered the contention raised on behalf of the appellants. It has been explained by Bashir Ahmad complainant in his statement that after the medical examination of the deceased himself and the other injured persons, Latif and Munir, he got free from the hospital at mid-night and, therefore, on the following morning at 9-00 a.m. He met the S.I. At Narang Morr and got recorded his statement whereby he reported the occurrence to him. As regards the injuries on the persons of Nazir Ahmad and Iftikhar Hussain appellant, it has been explained by Bashir Ahmad P.W.12, the complainant, that when other persons of the village reached at the scene of occurrence, they were able to snatch the daggers from Akbar and Munir and at that time Iftikhar Hussain and Munir Ahmad attempted to cause injuries to them with their Sotas, therefore, they injured them in exercise of right of private defence. As regards the injuries found on the persons of Iftikhar Hussain and Nazir Ahmad with blunt weapon, he explained that the persons who gathered at the spot had also given beating with Sotas to Nazir Ahmad and Iftikhar Hussain.
14. After a considered analysis of the circumstances of the case, seen in the light of the evidence available on the records, we find that while the complainant party were annoyed with Mst. Bashiran and her sons over the previous day's incident of her insulting Muhammad Yaqoob and Latif, the appellants felt insult as they thought that Mst. Bashiran, mother of Akbar appellant and mother-in- law of Munir appellant was disgraced. In this background when both the parties came across each other they indulged in free fight and caused injuries to the members of the opposite party. In Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502, it was observed:- "Hence judging from their acts and conduct it could safely be said that each party anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances it will be impossible to say that the accused party were acting on the defensive merely or in other words were acting in the exercise of any right of private defence of person ' or property. From the state of relations between the parties, it was also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into conflict. It was reasonable to infer that in entering upon that conflict such party knowingly and deliberately took upon itself the risk of the encounter. In circumstances such as those no question of right of private defence would arise."
' It was also found in the precedent case that in a free fight resulting in death of one of the participants the offence committed was culpable homicide and it did not amount to murder inasmuch as the death of the deceased occurred in the course of fight between two bodies of men who were deliberately fighting together both sides being armed and no unfair advantage appearing upon the evidence to have been taken by any party in the course of the fight. In the present case also both the parties with their respective arms, caused injuries to the members of the opposite party and there is nothing on the records to suggest that the appellants took any undue advantage although Asghar deceased F received injuries which proved fatal and he succumbed to the injuries a fortnight after the occurrence. Two of the appellants also suffered as many as 44 injuries at the hand of the complainant party during the occurrence. Needless to say that in case of free fight the question of vicarious liability does not arise and each participant is liable for his individual act.
15. In the light of the foregoing conclusions, we set aside the convictions of all the appellants under sections 148 and 302/149, P.P.C. Muhammad Akbar appellant is convicted under section 304, Part II, P.P.C. For causing the death of Asghar deceased and he is sentenced to ten years' R.I. And a fine of Rs,5,000 or in default one year R.I. He is also directed to pay Rs,5,000 as compensation to the legal heirs of the deceased or in default thereof to s.Iffer S.I. For six months. The other appellants are convicted under section 324, P.P.C. For causing simple injuries to Asghar deceased and are sentenced to imprisonment already undergone by them. The conviction of the appellants under section 324, P.P.C. Is maintained. The sentence awarded to the appellants other than Muhammad Akbar is reduced to one already undergone by them. The fine awarded against them or the sentence in default thereof is maintained. The sentence awarded to Muhammad Akbar appellant under section 324, P.P.C. Shall run concurrently with the sentence under section 304, Part II, P.P.C.
The other appellants shall be released from jail on payment of fine, if not required to be detained in any other case.
' The revision petition in the above circumstances is dismissed and the death sentence awarded to Muhammad Akbar by the learned ,trial Judge, is not confirmed.
Conviction/sentence altered.