MIAN BURHANUDDIN KHAN, J.--Eleven accused were put on trial before the Court of Sessions under section 302/34 on two counts with sections 307, 148 and 149, P.P.C. For causing the murders of Abdul Aziz and Abdui Sattar and attempt on the life of Sardar A.I P.W.9 on 22-9-1978 at about 2-20 p.m. In the field of Chak No. 337/HR Tehsil Fort Abbas, District Bahawalnagar. Accused /petitioners Rahmatullah, Khadim Hussain and Ghulam Qadir were convicted under section 302/34, P.P.C. For causing the murder of the above named two deceased and were sentenced to life imprisonment with fine of Rs.5,000 each on two counts; Ghulam Haider accused /petitioner was convicted under section 307, P.P.C. For murderous attack on Sardar A.I P.W. 9 and was sentenced to 7 years' R.I. And fine of Rs.5,000; while the rest of the accused were acquitted by the learned trial Court. On appeal the learned High Court Judge dismissed the appeal of all the accused /petitioners and revision petition filed by the complainant, was also dismissed vide the impugned order dated 22-10-1985.
2. Learned counsel challenged the findings of the Courts below and contended that the case of the accused /petitioners emerges out of the facts which established a free fight where each participant would be liable for his individual act; that in the F.I.R. Eleven accused were named and the precise allegation was that all the accused attacked both the deceased and Sardar A.I P.W.9; that none of the accused was attributed any specific role individually; that in such circumstances, the finding of the Courts below that it was a free fight would not be sustainable when the accused party had taken specific plea of the right of self-defence; that out of the 11 accused 7 have been acquitted of all the charges by the learned trial Court, giving them benefit of doubt, and, therefore, the remaining 4 accused would also be entitled to the same benefit. It is further contended by the learned counsel that the accused /petitioners were entitled to the right of self-defence because they had sustained injuries on their persons and the prosecution case, as stated by the witnesses, is absolutely contradictory to the version given by them in the F.I.R. We have examined the contentions raised by the learned counsel and find that accused petitioner Khadim Hassain sustained the following injury:- "An incised wound 12 c.m. x 1 c.m. x bone deep starting from the top of the right shoulder and extending to the outer aspect of the upper part of right arm; Accused /petitioner Rehmatullah sustained injury as under:--- An incised wound 11 c.m. x 1.5 c.m. x 2.5 c.m. Deep on the palmer aspect of left hand starting from the root of left thumb and extending to the root of left little finger and dorsum of hand; and accused/ petitioner Ghulam Qadir sustained the following injuries:- (1)a contused wound 2 c. m. x 1 c. m. x 0.25 c. m. On the right parietal region of skull,
(2) an incised wound 12 c, m. x 1.5 c. m. x bone deep on right side, upper part of front chest;
(3) an incised wound 4 c.m. x 1.5 c.m. x going deep into left shoulder,
(4) a punctured wound 4 c. m. x 1.5 c. m. x going deep into the chest cavity,
(5) an incised wound 7 c. m. x 1.5 c. m. x 1.0 c. m. Deep on upper most part of front chest,
(6) an incised wound 3 c. m. x 0.5 c. m. x 0.5 c. m. In between left thumb and left forefinger:- "We were sitting at that time in our house when we had seen them. I, my father Abdul Aziz, my uncle Abdul Sattar, Abdul Ghafoor and Anwar went to take our Warah towards the water--course at 2.26 for taking the water from the accused. I had Kassi, my father Abdul Aziz had a hatchet, Sattar and Ghafoor had Dangs and Anwar had Sela. We reached at the Nakka after 2.30 p.m. Rahmatullah, Muhammad Shafi, Abdul Shakoor, Ghulam Qadir, Khadim Hussain, Faqir Muhammad s/o Muhammad Shafi, Nazir Ahmad, Ghulam Haider, Faqir Muhammad s/o Abdul Aziz, Mushtaq s/o Barkat A.I were present there armed with Dangs. Rehmatullah raised Lalkara that we are going to take revenge of that insult. I went forward to take water at the Nakka when the accused restrained me. Rehmatullah Abdul Shakoor, Khadim Hussain and Shafi gave Soti blows to Abdul Sattar. Abdul Sattar fell down unconscious. Faqir Muhammad s/o Muhammad Sharif and Wali Muhammad gave Soti blows to my father.
The argument of the learned counsel finds support from the above statement plus the injuries sustained by the accused /petitioners. Learned counsel finally urged before us that it is a case where the prosecution evidence needs re-appraisal. We grant leave to re-examine the evidence.