1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the three convicts in two separate petitions to examine whether theirs was not more appropriately a case to which exception IV to Section 300 PPC was attracted.
2. It is said that near about 24th February, 1975 Mohammad Khan appellant had lopped the branches of a tree standing in the land of complainant Mohammad Amir (PW.12). Muzaffar deceased had protested, abused, and slapped Mohammad Khan and snatched away the lopped branches.
3. Mohammad Khan had threatened revenge.
4. On the 28th February, 1975 at about roti wela (9-10 a.m.) Mohammad Amir (PW.12) on a donkey and his son Muzaffar deceased on a mare left for their field for bringing fodder for their cattle. On way when they reached the field of Ghulam Amir (PW.14), a brother of Mohammad Amir, Sher Khan aged 62 armed with hatchet, his two sons Karamat aged 16 years also armed with hatchet, Mohammad Khan aged 26 years armed with Chhuri, and a brother of Sher Khan, Ahmed Khan armed with Chhuri appeared on the scene, calling out that they would not allow them go unpunished for the insults. Sher Khan gave hatchet blow on the right shoulder of Muzaffar.
5. Mohammad Khan gave a chhuri blow on his right flank. Ahmad Khan gave a chhuri blow on his belly. When he fell all of them gave chhuri and hatchet blows.
6. Mohammad Amir advanced to protect his son. He was given a chhuri blow on his chest by Mohammad Khan. Karamat gave hatchet blow from the blunt side on his head.
7. Ghulam Amir (PW.14) a brother of Mohammad Amir (PW.12) and his tenant Mohammad Nawaz (PW.13) were returning after taking a round of their crops and were attracted to the scene. Ghulam Amir was given hatchet blow by Sher Khan while Mohammad Nawaz was given chhuri blow by Ahmad Khan. Mohammad Nawaz had a stick in the hand with which he gave blows to Mohammad Khan accused. When the accused retreated from the spot cots were brought and the injured were removed to the hospital at Chakwal where they arrived at 2-50 p. m.
8. Dr. Asghar Hamid (PW.1) examined the injured and informed in writing Malik Mohammad Bashir, A.S.I. (PW.16) about the medico legal cases attended by him. He went to the hospital and recorded First Information Report on the statement of injured Mohammad Amir. Muzaffar Khan expired the next morning.
9. Muzaffar Khan had received the following injuries-- "(1) A -stab wound 3 -- " x 1 -- " x chest cavity deep on front and outer part of left chest, 3 -- " below and outside the nipple. Left lung lobe had come out of the wound. Surgical emphyzema was present all around. The direction was not probed due to fear of infection.
(2) A stab wound 1 -- " x -- " x peritoneal cavity deep on right side of pit of stomach, close to the middle line. It was 2" deep and was going downwards to the left and backwards.
(3) A stab wound 1 -- " x 1" x shoulder joint cavity deep, muscles were cut. There was a cut over the anterior surface of right humrus. The wound was situate on front and outer side of right deltoid area, close to the shoulder joint.
(4) A stab wound 1 -- " x 3/4" x 1 -- " deep on front and outer side of right arm, 1 -- " deep on front and outer side of right arm, 1 -- " below injury No. 3.
(5) A stab wound 2 -- " x 1 -- " x shoulder, cavity deep, that is, 2" deep on front of left shoulder, the bone underneath was cut and fractured.
(6) A stab wound 3/4" x 3/8" x muscle deep over scapular area-
(7) A stab wound -- " x -- " x 1" deep on dorsal spine, just to the left of the middle line, 1" deep going forward and to the right reaching the spine.
(8) A stab wound 1" x -- " x chest wall deep going downwards forwards and to the left on the back of left chest near the scapular angle.
(9) Incised wound -- " x 1/16" superficial with a swelling 1 -- x 1 on the back of the scalp on the right side.
(10) Incised wound 1 -- " x -- " x bone deep on top of scalp to the right of middle line. The skull bone showed superficial cut and corresponding cut marks were present on the blood-stained Bunyan."
10. Mohammad Amir (PW.12) had the following injuries-- "(1) A lacerated wound 1 -- x -- " x bone deep on left parietal area of scalp with swelling 2 -- x 2".
(2) A stab wound 1" x -- " x abdominal cavity deep, on front of lower part of the chest over the sternum downwards and to the right and backwards. The omentum was present in the womb. The corresponding cut marks were present in the sweater and Bunyan which were all blood-stained.
11. The patient was breathing through this wound. He was breathless, blood---pressure was 130 x 70 and was conscious."
12. Mohammad Nawaz (PW.13) had the following injuries on his person-- "(1) A swelling 6" x 5" on the back of left hand.
(2) A stab wound -- " x 1/8" x half-inch deep, on left deltoid muscle over outer part.
(3) A stab wound 2" x 3/4" x muscle deep, on front and inner side of middle of left arm."
13. Ghulam Amir P.W. 14 had the following injuries on his person- "(1) A T-shaped stab wound 3/4" x 3/4" x 1 -- " deep with swelling 3 -- " x 3" around over lower part of dorsal spine. The lower limb of stab was ending superficially into an abrasion which was 1-3/4" long and was going to the left and downwards.
(2) Incised wound 3/8" x -- x skin deep with swelling 2" x 2" around on the back of left hand."
14. The accused Mohammad Khan had the following injuries-- "(1) A lacerated wound 2" x -- " x bone deep, on left parietal area of scalp, 4" above and behind left ear.
(2) A lacerated wound 1" x 1/8" x. Bone deep on anterior part of the scalp on left side.
(3) A lacerated wound 1" x -- " x bone deep on posterior part of the scalp behind left mastoid area.
(4) Three abrasions, each -- " x 1/3" on left cheek and nose.
(5) A lacerated wound 1" x 1/3" x bone deep, with abraded margins and swelling 5" x 4" on the back of right elbow.
(6) Two reddish contusiom marks in an area of 4" x 3", on left deltoid area.
(7) Reddish contusion mark -- " x -- " on the back of left chest close to the spine in the middle.
(8) Reddish contusion mark 4" x 1" on right deltoid muscle."
15. The doctor reported on 2-3-75 that this accused had absconded from the hospital.
16. Sher Khan accused had the following injuries on his person-- "(1) An abrasion 1" x 3/4'' on back and inner border of right forearm, over the middle.
(2) Superficial incised abrasion 1" x 1/32" tapering upward on front of left forearm, 2 -- " above the wrist.
(3) A swelling 1" x -- " with abrasion 1/3" x 1/3" on left forearm near wrist, on the radial border.
(4) An abrasion -- " x 1/3" on back of left forearm below the elbow.
(5) Superficial incised wound -- " x 1/16" on right palm, close to the base of little finger.
(6) An abrasion 2" x 1/3" on the back of right scapular area."
17. The investigation of the case was taken up by Mohammad Bashir PW.16 who arrested the accused Sher Khan who led to the recovery of blood-stained hatchet (Ex.P.4). Karamat Husain also led to the recovery of blood-stained hatchet (Ex.P.5). Ghulam Mohammad, S.I. (PW.15) recovered blood- stained chhuri (Ex.P.6) at the instance of Mohammad Khan. Ahmed Khan got recovered the blood- stained chhuri (Ex. P.7) which was taken into possession.
18. The accused took up the plea of self-defence. Sher Khan denied having attacked the complainant party. He explained the case in the following words-- "Muhammad Ashraf son of Muhammad Amir complainant is keeping goats and the goats used to be let loose in our field. A day before the occurrence he was letting loose the goats in our field and I to scare him away gave two/three slaps to him. He went away weeping. On the day of occurrence when Muhammad Khan co-accused and I were present in our field, there Ghulam Amir, PW armed with Chhuri, Muhammad Amir complainant and the deceased armed with hatchets and Nawaz P.W. Armed with Sod reached and assaulted us. Muhammad Khan took out the Janggi of the plough and acted in self-defence."
19. All others except Ahmed Khan subscribed to this plea. Ahmed Khan pleaded alibi in the following words-- "I was doing the course of Sub-Inspector, at Lahore. I have no wife or anybody else at village, except my house. After doing the course, I came to the village to have a look at my house and was to report back at Bahawalpur on 2nd March, 1975. I had also land in district Bahawalnagar. I returned to Bahawalpur and then to Bahawalnagar and there I learnt about my false implication in the present case."
20. The trial Court rejected the evidence of the recovery of weapons from the accused. It also rejected the defence version. "The eye-witness account corroborated by the motive part of the story, the prompt lodging of the F.I.R. And the medical evidence" was considered sufficient "to conclude the charge against the accused." All the four accused were convicted under section 302/34 P.P.C.
21. Mohammad Khan and Ahmad Khan, who had used Chhurries to cause fatal injuries were sentenced to death while the two others to life imprisonment and a fine of rupees one thousand each. They were also convicted under section 307/34 PPC for murderous assault on Mohammad Amir, Ghulam Amir and Mohammad Nawaz and sentenced to seven years' R.I. And a fine of rupees five hundred each on three counts.
22. After the hearing of the appeal but before judgment by the High Court, Sher Khan died. His appeal, therefore, abated. As regards the appeals of other convicts and the confirmation of the death sentence, the learned Judges too rejected the recovery of weapons and the defence version.
23. However, they affirmed their conviction on the findings and comments as hereunder-- "(i) There was no serious enmity between the parties. Considering that from the side of the complainant party one person was killed and three others were seriously injured whereas the appellants escaped away with only minor injuries it seems that the two parties were numerically of equal strength. We can therefore safely exclude the possibility of false additions in the number of assailants.
(ii) So far as the injuries of Sher Khan are concerned we do not think that the failure of the eye- witnesses to explain them in any way compromises their credibility. His injuries consisted mainly of abrasions. No doubt he had two incised wounds but, as mentioned earlier, the doctor who examined him was of the opinion that these appeared to be self-suffered. It is also to be noticed that the sort of injuries which he had on his person could be caused in a scuffle without the participants taking any particular notice of them.
(iii) The site plan (Ex.PL) does indicate that the place of occurrence fell in the land belonging to the appellants and that it was at a short distance from their dera. But then it also shows that the land of Muhammad Amir (PW.12) and Ghulam Amir (PW.14) was contiguous to the field of the appellants.
24. Thus, the presence of the deceased and the eye-witnesses at the spot was not unusual. It is to be noticed that the case of the prosecution was that the deceased was attacked when he was going to his land with his father to cut some fodder for their cattle. "
25. The death sentence of Ahmad Khan was confirmed but that of Mohammad Khan was converted into life imprisonment on the ground that there was possibility of his having acted under the influence of his father and paternal uncle. In other respects, the convictions and sentences were maintained.
26. After the leave was granted, Ahmed Khan, the appellant from Jail, expired and his appeal has, therefore, abated and we are left with only Criminal Appeal No.171/80 of Karamat Husain and Muhammad Khan, requiring disposal.
27. The three factors noted by the High Court and explained as indicated above, are the factors which, according to the learned counsel for the accused-appellants, show a reasonable likelihood of al chance encounter between the two groups and a fight having started. I. It is quite clear on the case disclosed by the prosecution that the' previous altercation was a trivial one and it could not provide a bias for a planned attack involving so many members of the family. Besides, the time and the fact that the deceased and his father would be passing that way at that particular hour could not have been known to the appellants or their associates so as to make preparations and planning possible. The case of the appellants was that one of them had lopped the branches but the tree of which the .Branches were lopped was standing on the shamilat land and not on the land of the complainant party. It is admitted by the complainant as well as by the Investigating Officer that the motive was not further inquired into by any one to identify the tree of which the branches were lopped or to ascertain whether it was on the land of the complainant or elsewhere.
28. Sher Khan, the eldest of the accused, had injuries on his person and these were detected the same day soon after the occurrence had taken place. The doctor has said that "two of these were caused by light sharp-edged weapon" which appeared to the doctor "to be self-suffered". All the same, they could also be caused in warding off the blows. None has owned these injuries and these have been taken to be too superficial or minor to need an explanation. The injuries found on the person of Muhammad Khan have been owned by Muhammad Nawaz, P.W.
29. We find that on the overall consideration of the case, it cannot be said that the prosecution succeeded in proving the case of culpable homicide amounting to murder against the appellants or an intentional murderous assault by them. In the circumstances, we accept the appeal, set aside the conviction and sentence of the appellants under sections 302/34 and 307/34, P.P.C. And instead convict each of them under section 304 Part-1, P.P.C. And section 308 P.P.C. (three counts).
30. The sentence already undergone which is now about ten years is deemed sufficient in law. The sentence of fine and compensation as ordered, shall remain intact. The appeal stands accepted in these terms.