1. JAVID IQBAL, J.--Chiragh Din son of Faqir Muhammad aged 75, his- brother Jalal Din son of Faqir Muhammad aged 80 as well as Manzoor Ahmad son of Chiragh Din aged 25 along with his two real brothers namely Abdul Ghafoor aged 27 and Mahmud Ahmad aged 16 were charged and tried under section 302/307/452/380/148/149 of the Pakistan Penal Code and vide judgment, dated 30th April, 1976 the Additional Sessions Judge, Multan convicted and sentenced them as follows: Each of them was convicted under section 148, P.P.C. And sentenced to suffer two years' R.I. Again each of them was convicted under section 302/149, P.P.C. For the murder of Muhammad Amin and was sentenced to life imprisonment plus fine of Rs.2,000 each or in default to undergo 11 years' further R.I. Each. Each of them was likewise convicted under section 323/149, P.P.C. For causing simple injuries to Feroz Din and Mst. Hussain Bibi P.Ws. And was sentenced to suffer six months' R.I. Each on each count. All of them were convicted under section 452/149, P.P.C. And each of them was awarded two years' R.I. Plus fine of Rs.500 or in default to undergo six months' R.I. Each. Chiragh Din and Manzoor Ahmad were further convicted under section 380/34, P.P.C. And each of them was sentenced to two years' R.I. Plus fine of Rs.500 or in default to undergo six months' R.I. Each. All the sentences of imprisonment were ordered to run concurrently. On the realization of the amount of fine to the convicts under section 302/149, P.P.C., half of the amount was directed to be paid to the legal heirs of Muhammad Amin deceased as compensation. On appeal the Lahore High Court, Lahore, vide judgment, dated 2-5-1978 acquitted Abdul Ghafoor and Mahmood Ahmad but dismissed the appeal of Chiragh Din, Jalal Din and Manzoor Ahmad although their conviction and sentence under section 148, P.P.C., were set aside, the sentences awarded to them by the trial Court under section 302/323/452/34, P.P.C., were maintained. This appeal by special leave, therefore, arises out of the aforesaid judgment passed by the Lahore High Court, Lahore.
2. The occurrence took place on 7-6-1973 at 10 a.m. Within the area of Chak No. 216-EB at a distance of 12 miles from Police Station Vehari, District Multan. The prosecution version is that, on 7-6-1973 at about 10 a.m. Muhammad Amin deceased, his wife Mst. Hussain Bibi P.W. 12 and his brother-in-law
(Sala) Feroz Din P.W. 11, who is also complainant in this case were present at the Dera of the deceased when Chiragh Din appellant armed with a hatchet, Jalal Din appellant armed with Gandhala, Manzoor Ahmad appellant armed with Sota along with Abdul Ghafoor and Mahmood Ahmad acquitted co-accused also armed with Sotas appeared there and launched an assault on the person of the deceased with their respective weapons. The assault had been launched on the Lalkara of Chiragh Din appellant to the effect that they would teach a lesson to the deceased for having instituted a pre-emption suit against them. While the deceased was being given blows by the members of the accused party Feroz Din P.W. Tried to interfere but on the instigation of Chiragh Din appellant, Manzoor Ahmad appellant as well as Abdul Ghafoor acquitted co-accused attacked him with their respective Sotas and caused injuries to him. Thereafter, when the deceased fell down or the ground in an in injured condition his wife Mst. Hussain bibi P.W. Advanced forward in order to rescue him and she was given hatchet blow by Chiragh Din appellant as well as Sota blows by his three sons namely Manzoor Ahmad appellant, as well as Abdul Ghafoor and Mahmood Ahmad acquitted co-accused. All of them also caused injuries to the deceased after he had fallen down on the ground and had become unconscious. On the alarm raised by Feroz Din as well as Mst.
3. Hussain Bibi P.Ws. The accused party decamped but while leaving Manzoor Ahmad appellant lifted away a licensed gun belonging to the deceased on the instigation of Chiragh Din appellant his father. During the scuffle some of the members of the accused party were also stated to have received injuries at the hands of the complainant side. Hakam A.I (not produced) is stated to have reached the spot after the occurrence had taken place and saw the accused party running away from the spot along with the gun belonging to the deceased. Again a short while after the occurrence Saifur Rahman, Muhammad Iqbal and Muhammad Rafiq of the said Chak (not produced) likewise arrived there and took away the injured persons first to the Chak and then to the Civil Hospital Vehari for treatment.
4. The motive for the commission of the crime was that about one year and three months before the present occurrence the land sold by one Jalal Din brother of the deceased was made subject- matter of a pre-emption suit lodged by the deceased as against the accused party which had caused annoyance to them. The prosecution version is that they had always been insisting upon the deceased to abandon his pre-emption claim but the deceased would not do so.
5. There are two eye-witnesses of the occurrence namely Mst. Hussain Bibi P.W. 12 wife of the deceased as well as Feroz Din P.W. 11 brother-in-law (Sala) of the deceased. Both of them have sustained injuries in the course of occurrence and, therefore, their presence on the spot is established. Two of the appellants namely Jalal Din and Manzoor Ahmad had also been injured in the course of the occurrence.
6. The deceased was medically examined while he was still alive by Lady Dr. Shahida Akhtar, on 7-6- 1973 at about 4-15 p.m. She found on his person as many as 14 contused wounds as well as multiple abrasions on different parts of the body. Three injuries out of the same were declared grievous and the rest were kept under observation.
7. All the injuries on the skull and face were referred to for X-Ray examination. These injuries had been caused by blunt weapon. The deceased died, on 9-6-1973 in the hospital and on the same day Dr. Mushtaq Ahmad P.W. 2 conducted post-mortem examination and noted the same injuries on his person. In his opinion the cause of death was due to shock and hemorrhage caused by the head injuries which were sufficient to cause death in the ordinary course of nature. All the injuries on his person were found to have been caused with blunt weapon.
8. The lady Medical Officer also medically examined Feroz Din P.W. And found on his person 10 injuries in the form of contused wounds as well as abrasions. All the injuries on his person had been caused with blunt weapon out of which one injury was declared simple and the others were kept under observation. She also medically examined Mst. Hussain Bibi P.W. And found on her person two swellings on the head and one on the left arm and one incised wound muscle deep on the palmer surface of the root of index finger of the left hand. The incised injury was caused with sharp-edged weapon whereas the others were caused with blunt weapon. The head injuries were kept under observation whereas the others were declared as simple. The same lady Medical Officer examined Jalal Din and Manzoor Ahmad appellants. There were six injuries on the person of Manzoor Ahmad appellant out of which one on the left ring finger in the form of contused wound was declared grievous. So far as Jalal Din appellant is concerned out of five injuries found on his person two were kept under observation whereas the remaining were declared simple. These injuries had been caused with blunt weapon.
9. Jalal Din and Manzoor Ahmad appellants who were both found injured in the course of occurrence were arrested on 7-6-1973 whereas the other members of the accused party were arrested on 9- 6-1973. Chiragh Din appellant led to the recovery of three articles, i.e. Gun P. 5, hatchet P. 6 and Gandhala P. 7 although Gandhala was attributed to Jalal Din appellant and Manzoor Ahmad appellant was stated to have taken away the gun belonging to the deceased. Abdul Ghafoor acquitted co-accused led to the recovery of Sota P. 8 and also produced another Sota P. 9 which was attributed to Manzoor Ahmad appellant. However, Mahmood Ahmad acquitted co-accused produced Sota P.
10. These recoveries have not been relied upon by the Lahore High Court.
10. The defence has its own version advanced by the two injured appellants namely Jalal Din and Manzoor Ahmad. Jalal Din in his statement before the trial Court stated that on the day of occurrence at about 8 a.m. Muhammad Amin deceased and Feroz Din P.W. Started ploughing Killa No. 5/47 in order to take possession of land which belonged to the accused party. On this Jalal Din and Manzoor Ahmad appellants objected and resisted. As a result Muhammad Amin deceased and Feroz Din P.W. Attacked them and caused injuries to them. Thereafter, Jalal Din and Manzoor Ahmad appellants in the exercise of their right of self-defence of their persons and property caused injuries to the other side. Mst. Hussain Bibi P.W. Received injury as she came in between the scuffle. Muhammad Amin deceased and Feroz Din P.W. Were injured at their hands in these circumstances. There was no dispute in regard to the withdrawal of the pre-emption suit. The only dispute was over a portion of Killa No. 5 which the accused side claimed as theirs as it was in their possession and that Muhammad Amin deceased as well as Feroz Din P . W . Unlawfully wanted to take some of the portion of the same.
11. Learned counsel for the appellants first argued that there existed a long-standing dispute between the parties regarding ownership/ possession of disputed land and that if this was to be kept in mind then the ocular testimony comes forth of the occurrence from interested eye-witnesses namely Feroz Din P.W. And Mst. Hussain Bibi P.W. Whose testimony must not be accepted without corroboration. It was then submitted that there was no incised injury on the person of the deceased nor even on Feroz Din P.W. There was only one simple incised injury on the index finger of Mst. Hussain Bibi P.W. Consequently Chiragh Din and Jalal Din appellants who were old persons and were stated to have been armed with hatchet and Gandhala might have not participated in the occurrence but had been roped in merely because of enmity. It was also submitted that all the members of the accused party had been involved. Chiragh Din appellant was 75 years old whereas Jalal Din his real brother was 80 years old and then three sons of Chiragh Din appellant namely Manzoor Ahmad appellant and Abdul Ghafoor as well as Mahmood Ahmad acquitted co- accused had been roped in indicating that the interested prosecution witnesses wanted the entire family of the accused party to be involved. It was likewise argued that ocular testimony which has been accepted in the case of the appellants had not been accepted in the case of two acquitted co-accused when there was no specific, criterion present on sifting of evidence. It was lastly argued that if this Court was not inclined to consider that a case was made out for self-defence on the part of the appellants then it should at the most be considered as sudden fight or free fight in which both the sides had participated and in that view of the matter each of the appellants should be held responsible for his own individual act.
12. We have carefully considered the arguments of the learned counsel for the appellants and perused the record. The presence of the two eye-witnesses on the spot is established for the reason that Mst. Hussain Bibi and Feroz Din P.Ws. Were both injured in the course of the occurrence.
13. Again Jalal Din and Manzoor Ahmad appellants have both admitted their presence on the spot although they have given their own version of the occurrence. The Lahore High Court gave benefit of doubt to Abdul Ghafoor and Mahmood Ahmad acquitted co-accused not because the eye- witnesses account was disbelieved but according to the ocular testimony Abdul Ghafoor acquitted co-accused is stated- to have given a Sota blow only to Feroze Din P.W. Apart from this there was only a general allegation against both Abdul Ghafoor and Mahmood Ahmad acquitted co- accused that they had also participated in the occurrence but so far as the present three appellants are concerned Chiragh Din had a direct motive and had been attributed a specific part by the eye-witnesses in the commission of crime. Similarly Jalal Din and Manzoor Ahmad appellants had been attributed specific parts and Manzoor Ahmad appellant specifically had taken away the gun of the deceased which was subsequently recovered at the instance of his f4ther. The recoveries have been generally disbelieved but the possibility could not be ruled out that if Chiragh Din and Jalal Din appellants were respectively armed with hatchet and Gandhala they could have used these weapons from the reverse side. The record does not support the argument of the learned counsel to the effect that only two of the appellants namely Jalal din and Manzoor Ahmad had caused injuries to the deceased as well as to the others in the exercise of their right of self-defence of person and property. The number of injuries on the person of the deceased and the injured P.Ws. Indicates that more than two assailants were involved and besides that an extremely important feature of the case is that the occurrence took place at the Dera of Muhammad Amin deceased in Chak No. 216-EB which clearly indicates that the appellants had specifically come to the Dera of the deceased as aggressors, consequently no case for self- defence could be made out. Again in our considered opinion the case of the appellants does not fall under Exception IV to section 300 of the Pakistan Penal Code because they had gone to the Dera of the deceased and attacked him as well as others as aggressors. They even took away the gun belonging to the deceased from his Dera. Thus it was not a sudden fight as contended so as to entitle the appellants to take the benefit of Exception IV to section 300 of the Pakistan Penal Code.