This Criminal Appeal No. 184 of 1983 and connected Criminal Revision No. 495 of 1983, by Muhammad Ishaq for the enhancement of the sentence, arise from the judgment of learned Additional Sessions Judge, Gujranwala whereby he on 18-4-1983 while acquitting Mst. Rehmat Bibi, convicted Muhammad Arshad, Muhammad Asghar, Muhammad Akbar and Muhammad Nazir appellants under sections 302 and 323, P.P.C. And sentenced them as under:- (1)Muhammad Arshad appellant. To imprisonment for life and a fine of Rs.10,000 in default thereof two years' R.I. Under section 302, P.P.C: for causing the death of Mst. Naziran Bibi.
(2)Muhammad Asghar, Muhammad Akbar and Muhammad Nazir to 8 months' R.I each under section 323, P. P. C. For causing hurt to Ishaq, Shafiq and Mst. Robina P.Ws.
I propose to dispose of them through single judgment.
The occurrence took place on 18-9-1981 at Chahwela in front of the house of Mst. Naziran Bibi deceased situated in village Jandiyala Baghwala of Police Station Sadar, Gujranwala. The F.I.R Exh.P.E. Was lodged by Muhammad Ishaq complainant, the son of the deceased on the same day at 6.45 a.m. And was recorded by Iqbal Akbar Inspector of Police. The distance between the place of occurrence and the Police Station is three miles.
3. The motive as set up by the prosecution was that on 17-9-1981, at evening time, Muhammad Ishaq complainant returned to his house where his mother Mst. Naziran Bibi deceased told him that Khalid aged 7/8 years (the brother of the complainant) was flying kite on the roof of the house of Muhammad Nazir appellant when Akbar son of Muhammad Nazir appellant abused him and asked him to get down. Mst. Rubina P.W. Asked Akbar that he should not abuse Khalid. This led to a quarrel between them. The respectable of the Mohallah intervened and effected compromise between them. Despite compromise, this occurrence.
4. As far the main occurrence, it has been stated that at the eventful time Mst. Naziran deceased and Ishaq complainant, Mst. Rubina, Siddiq and Shafiq P.Ws. Were sitting in their house when Muhammad Arshad appellant armed with Chhuri, Muhammad Akbar armed with iron pipe, Muhammad Asghar and Muhammad Nazir armed with Sotas alongwith Rehmat Bibi acquitted accused came and stood in front of the door of the house. Muhammad Arshad raised Lalkara that Mst. Naziran and others should come out of the house. On this Mst. Naziran came out of the house followed by Muhammad Ishaq complainant, Shafiq, Siddiq and Mst. Rubina. They told the appellants not to be so much provoked on a petty quarrel between the children. The alarm attracted Ashiq and Sultan P.Ws. To the spot who tried to pacify the appellants. However, on the Lalkara of Mst. Rehmat Bibi, the appellants opened the attack. Muhammad Arshed gave Chhuri blows on the chest of Mst. Naziran. Ashiq P.W. Snatched away Chhuri from him. Muhammad Akbar and Muhammad Nazir appellants caused injuries to Ishaq P.Ws. With their weapons. Muhammad Asghar appellant and Muhammad Akbar appellant also injured Mst. Rubina and Shafiq P.Ws. Ishaq P.W. Had snatched Sota from Nazir and thereby inflicted injuries to the appellants namely Arshad, Muhammad Asghar, Muhammad Akbar and Manzooran Bibi co-accused (sic). After receiving the injuries Mst. Naziran fell down by the side of a Pacca Road and expired.
5. Doctor Muhammad Ashfaq P.W. 8 conducted post-mortem examina--tion on the dead body of Mst. Naziran Bibi. He found two injuries on her person which were caused by sharp-edged weapon.
In his opinion death was due to shock and haemoharrage as a result of injury on the chest. He also examined Muhammad Ishaq, Muhammad Shafiq and Mst. Rubina and found seven injuries caused by blunt weapon on their person. All the injuries were simple in nature. The Doctor also examined Muhammad Arshad, Muhammad Ashgar and Muhammad Akbar appellants and Manzooran Bibi acquitted accused. He found as many as 21 injuries caused by blunt weapon and simple in nature, on their persons.
6. To prove its case, prosecution examined nine witnesses. Muhammad Ishaq P.W. 6 and Muhammad Ashiq P.W. 7 have given the ocular account of the occurrence. They supported the prosecution case as stated above. Muhammad Akbar, Muhammad Asghar and Muhammad Nazir were arrested on 20-9-1981 and Muhammad Arshad was arrested on 1-10-1981. Muhammad Asghar and Muhammad Akbar got recovered Sota P.5 and iron pipe P.6 which were taken into possession vide memo. P.R. And P.S. Respectively. The rest of the evidence is almost of formal nature.
7. When examined under section 342, Cr.P.C. The appellants pleaded the right of self-defence of their person. They did not led any evidence in defence.
8. The learned trial Court after having disbelieved the versions of the parties, came to, the conclusion that at the eventful time, the parties, due to the previous day incident, armed themselves variously in full expectation of an armed conflict and were determined to have a trial of strength and as such there was a free fight between the parties. It may be noted that there was a cross complaint filed by the accused party, the learned trial Court has convicted the accused persons in both the cases.
9. The learned counsel for the appellants has not challenged the finding of the trial Court as well as the participation of the appellants in the fight. As far Muhammad Arshad, the learned counsel submitted that the judgment of the trial Court accepted at its face value, his act of killing Mst.
Naziran Bibi one of the participants, was a culpable homicide not mounting to murder'. He relied on Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502. So far as the other appellants are concerned, learned counsel, requested for reduction in their sentence. Conversely the learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the trial Court.
10. I have considered the submissions made by the learned counsel for the parties with care.
Parties have not challenged the finding of the learned trial Court that it was a free fight which resulted in the death of Mst. Naziran and simple injuries to the P.Ws. As well as the accused. So, it is only the nature of the offence committed by Muhammad Arshad, which is to be determined by this Court. Relying on the A case-law relied upon by the learned counsel for the appellants, I hold that the act of Muhammad Arshad of killing Mst. Naziran in the free fight, is not a murder but culpable homicide and as such he could have been punished under section 304(II), P.P.C. And not under section 302, P.P.C. His conviction under section 302, P.P.C. Is set aside instead he is convicted under section 304(11), P.P.C.
11. This brings me to the question of sentence. I find that Muhammad Arshad appellant was arrested on 1-12-1981; that appellant received injuries at the hands of the deceased party and that three co-accused also received injuries at the hands of the deceased party. In these circumstances, I am of the view that the agony of the protracted trial coupled with his detention, as an under-trial prisoner the sentence already undergone by him would meet the case. So far as the other appellants are concerned, I find that they had also suffered the agony of protracted trial; that they have been in jail as an under-trial prisoners and have served out three weeks, R.I. And as such it may not be proper to send them back to jail after lapse of more than two years. So Muhammad Arshad shall be released immediately if not required to be detained in some other case and the other appellants are discharged of bail bonds.