SALEEM MAZHAR, J.--The two appellants Nazar Muhammad and Rab Nawaz along with six others were tried by the learned Sessions Judge, Multan for offences under sections 148, 307/149, P. P. C. On six counts and 302/149, P. P. C. For having murdered Gul Muhammad and having made murderous assault on Muhammad Yusuf, Zafar Ahmad, Muhammad Iqbal, Mumtaz Ahmad, Muhammad and Allah Ditta P. Ws. In prosecution of the common object of unlawful assembly, In Killa No. 5, Square No. 23 of Chak No. 90/10/R, on 2-7-1965 at 10: a.m, three miles from Police Station Khanewal, District Multan. Vide the impugned judgment dated 31-7-1967, the appellants were con--victed under section 304, Part I read with section 34, P. P. C. With an award of seven years' R. I. Each. The six co- accused of the appellants were, however, acquitted, of whom Fazil and Haq Nawaz are Chadhar by caste whereas the remaining four, namely, Amir, Ashiq, Allah Yar and Gul Sher are Baluch by caste.
The appellants who are also Chadhar by caste have filed the present appeal against their conviction and sentences. Muhammad lqbal filed Criminal Revision No. 1490 of 1967 against the acquittal of the co-accused of the appellants and also for enhancement of the sentences of the appellants. The revision petition was admitted by a learned Judge of this Court vide order dated 3- 4-1968 and notices were ordered to be issued to the accused. This judgment will dispose of the appeal as well as the revision petition.
2. Briefly the case for the prosecution is that Saiful, father of Nazar Muhammad appellant, was murdered about eight years prior to the present occurrence. Punnun brother of Saiful was challaned for the murder and Gul Muhammad deceased supported Punnun in that case which resulted in his acquittal. On that account Nazar Muhammad and his brother Fazil accused bore a grudge against Pannun, who jointly owned land with the four Chadhar accused, which they had privately partitioned. There used to be quarrel between them over the turn of water. About six months prior to the present occurrence, said Pannun and Gul Muhammad deceased on one side and the four Chadhar accused on the other were challaned under section 107/151, Cr. P. C. On the day of occurrence at about 10 a.m., the land of Nazar Muhammad appellant and Fazil accused was being irrigated water when incidentally the water breached into the land of Gul Muhammad deceased. At that time the deceased along with Muhammad Yusuf, Muhammad Iqbal, Zafar Ahmad, Mumtaz Ahmad sons of the deceased, Allah Ditta and Muhammad P. Ws. Were sitting under a kikar tree in the square of Gul Muhammad deceased and were conferring about a matrimonial affair. In the meantime the accused turned up there armed with guns, hatchets, dings, Phauhra etc., and raised a lalkara at the deceased shouting out that they would teach him a lesson for helping Punnun in the murder case and also for the cut made in the watercourse for irrigating his land when it was their turn. The deceased got up in order to pacify them. Amir accused gave a Phauhra blow on the neck of the deceased felling him to the ground. Nazar Muhammad, Rab Nawaz appellants, and Fazil (acquitted accused) who were armed with a gun each, fired at the deceased hitting him in the back. Rab Nawaz then fired at Muhammad Yusuf P. W.
Twice hitting him in the legs and chest. Rab Nawaz again fired at Muhammad Iqbal P. W. Hitting his testicles. Fazil accused fired twice at Zafar Ahmad hitting him on the left and right arms. Ashiq and Allah Yar accused gave stick blows to Zafar hitting him on the left arm and left side of the body.
Mumtaz Ahmad P. W: was fired at by Nazar Muhammad appellant which hit him on his left arm. Gul Sher gave a hatchet blow to Mumtaz Ahmad, hitting him or the right hand. Haq Nawaz gave a hatchet blow to Mukhtar hitting him on his right shoulder. Allah Ditta P. W. Was fired at by Fazil accused hitting him in the left flank. Gul Muhammad deceased succumb--ed to his injuries shortly after the occurrence. During the occur--rence Amira accused received injuries at the hands of the appellants and their co-accused. Ghulam Muhammad com--plainant raised an alarm attracting Muhammad Ismail P. W. To the spot besides some other persons of the village. The appellants and their co-accused left the spot. The deceased and the injured P. Ws. Were carried to Civil Hospital, Khanewal and Ghulam Muhammad (P. W. 19) himself proceeded to Police Station Khanewal where he lodged the initial report (Exh. P. D.) at 1 p.m., on 2-7-1965, which were recorded by S. I. Haq Nawaz (P. W. 28).
3. After recording the initial report, the Sub-Inspector proceeded to Civil Hospital, Khanewal and prepared the injury statement (Exh. P.OO) and the inquest report (Exh. P. N N) of the deceased and sent the dead body to the mortuary at Nishtar Hospital, Multan as the Medical Officer was not present at Khanewal. The Sub-Inspector instructed A. S. I. Ghulam Mohiud--din P. W. To get the P.
Ws. Medically examined and himself repaired to the spot.
4. At the spot, the Sub-Inspector took into possession blood-stained earth from Killa No. 5 of square No. 23 belonging to the deceased and made it into a sealed parcel vide memo. Exh. P. G. He secured 10 crime empties (P. W. 12/1-10) from the spot and took them into possession vide memo.
Exh. P. H. Ghulam Muhammad P. W. Produced Phaura (P. l) before the Sub-Inspector which had been left at the spot by Amira accused which was taken into possession vide memo. Exh. P. E. He also produced stick (P. 2) of Ashiq accused which was taken into possession vide memo. Exh. P. F.
On the following day the Sub---Inspector sent the sealed parcels through F. C. Muhammad Majid for depositing them in the Malkhana and himself proceeded to Police Station Dinapur for the arrest of Fazil accused, leaving Salabat Khan A. S. 1. (P. W. 25) at the spot, for further investi--gation and the arrest of the other accused. He got prepared site plan (Exh. P. K.) from Imam Din Patwari P. W.
On the same day.
5. A. S. I. Salabat Khan attested Gul Sher, Allah Yar, Haq Nawaz, Rab Nawaz and Nazar Muhammad accused on 3-7-1965. Haq Nawaz appellant while- in custody led to the recovery of hatchet (P. 9) from his house which was secured vide memo, Exh. P. U. Gill Sher accused produced blood-stained hatchet (P. 10) which was secured vide memo. Exh. P. V. Allah Yar accused led to the recovery of dang (P. 11) which was taken into possession vide memo. Exh. P. X. Lal Shah produced Nazar Muhammad appellant along with gun (P. 19), which was secured vide memo. Exh. P. T. Haq Nawaz accused had injuries on his person and the A. S. I. Prepared his injury statement (Exh. P. AA.) and got him medically examined.
6. A. S. I. Ghulam Mohyuddin (P. W. 16) accompanied the Sub-Inspector to Civil Hospital, Khanewal on 2-7-1965 where he prepared the injury statements Exh. P.FF., P. GG., P. HH. P. JJ and P. KK, in respect of Muhammad' Yusuf, Muhammad Iqbal War Ahmad, Mumtaz Ahmad, Muhammad and Allah Ditta, P. Ws. Respectively. He arrested-Amira, and Ashiq accused on 2.7-65 and prepared their injury statements (Exh. P.LL and P.MM) respectively and got them medically examined.
7. On 7-7-1965, Rab Nawaz accused led to the recovery of unlicensed gun (P. 16) which the Sub- Inspector Haq Nawaz took into possession vide memo. Etch. P. J. On 11-7-1965 the Sub---Inspector arrested Fazil accused, who had a gun (P. 17) along with six live-cartridges (P. 18/1-6) with him, which were secured vide memo. Exh. P. R.
8. The sealed parcels received by M.H.C. Were handed over by him to F.C. Muhammad Nasib (P. W.
4) which were duly delivered by the latter in the office of the Chemical Examiner and the Forensic Science Laboratory, Lahore, intact.
9. Dr. Imtiaz Ahmad (P. W. 1) on 2-7-1965, at 8-45 p.m. Medically examined Muhammad Yusuf and found nine gunshot wounds. The injured was X-rayed by Dr. Mushtaq Ahmad, Assistant Radiologist, Nishtar Hospital, Multan, who observed as under:--
(a) Chest-Multiple small dense shadows in the chest area, more on right side.
(b) One big and two small radio opaque shadows in the soft tissues of arm and two small shadows in the elbow region.
(c) Right forearm one big and one small radio opaque shadows in the soft tissues.
(d) Left leg-Multiple dense shadows with fracture of the fibula and tibia.
(e) Right leg-Multiple shadows with comminuted fracture of tibia.
The injuries were of 12 hours' duration, caused by fire-arm. Injury No. 4 was grievous.
Zafar Ahmad P. W. Was medically examined by the same doctor the same day and was found to have sustained eight injuries, of which five were gunshot injuries while the remaining three contusions caused by .a blunt weapon. On X-Ray the Assistant Radiologist found multiple small radio opaque shadows in the left forearm area just above the wrist-joint with com--minuted fracture of the ulna. No bony injury was seen in other bones. All the injuries were caused within a duration of 12 hours.
Dr. Imtiaz Ahmad medically examined Muhammad P. W. And found two gunshot injuries on the person of- the injured. These injuries were of 12 hours' duration.
Allah Ditta P. W. Was medically examined by the same doctor, the same day and was found to have sustained one gun--shot wound. On X-ray the Radiologist found multiple dense irregular sized radio opaque shadow in the soft tissue of the thigh in lower half. No body injury was seen.
Muhammad lqbal P. W. Was found to have sustained six injuries, of which there were three lacerated wounds, two con--tusions and a gunshot wound. On X-ray the Radiologist found two radio opaque shadows in, the soft tissues. No body injury Mumtaz Ahmad P. W. Was found to have sustained six injuries of which there were three gunshot wounds, one incised wound, one lacerated wound and one contusion. On X-ray the Radiologist found comminuted fracture of radius and ulna in the lower third within multiple small radio opaque shadows round about the fractured area. All the injuries were of 12 hours' duration.
10. On 3-7-1965 at 7-30 a.m., Dr. Imtiaz Ahmad, con--ducted the post-mortem examination on the dead body of Gut Muhammad and found the following injuries :--
(1) Twelve gunshot wounds wearing incised, 1/2' x 1/2' x 1/8' on the left lumber region, leading into the abdomen.
(Three pellets were palpable in the left region and three on the front side of abdomen. The margins of the wound were burnt.)
(2) A gunshot wound 1/2' x 1/2' on the left milar bone. The margins of the wound were burnt and bone underneath the injury was fractured.
(3) A contused swelling, 2' x 2' on the back of lower part of the neck.
(4) Two gunshot wounds 1/10'x 1/10' on the back of the chest, pellets were palpable.
All the injuries, in the opinion of the doctor were ante-mortem, caused by a fire-arm excepting injury No. 3 which was caused by a blunt weapon. The stomach contained food matter. Eleven pellets were found in the mesentry and intestines. The large and small intestines were found punctured at several places. The abdomen contained 10 ounces of blood.
Death was due to shock and intra-abdominal haemorrhage. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Death was immediate. Time between death and post- mortem was 12-24 hours. Twenty pellets taken out from the body were handed over to F. C.
Muhammad Nasib P. W.
11. Dr. Muhammad Ikram Qureshi (P. W. 2) on 3-7-1965 at 8 a.m., medically examined Haq Nawaz accused and found the following two injuries :----
(1) A contused wound --' x --' x --' over the front of the right foot 1' below the little toe.
(2) An abrasion --' long over the back of the left hand in between the ring and middle finger.
Both the injuries were simple caused by a blunt weapon within two days' duration.
The same day Amira accused was found to have sustained the following two injures :---
(1) An incised wound 5--' x 2--'over the upper part of the back 4' on the left side and 1--'' on the right side 2' below the neck.
(2) A contused wound 1--'x --' x --' over the front and central Injury No. 1, caused by a sharp-edged weapon, was kept under observation while injury No. 2 caused by a blunt weapon was declared simple. The duration was one day.
The same day Ashiq accused was found to have sustained the following two injuries :--
(1) A semi-circular incised wound 3--' in circle and 3/4' with the flap of the skin low down over the back side of the head 3' above the left ear.
(2) A contused wound 1' x --' skin deep over the right side of the head 3' above the right eyebrow.
Both the injuries were kept under observation. Injury No. 1 was caused by a sharp-edged weapon while injury No. 2 with a blunt weapon. The duration was within one day.
12. Apart from a fairly large number of eye-witnesses at least five of whom sustained injuries establishing their presence at the time the positive report of Shah Johan Khan, Fire-arms Expert P.
W. 27, lent further support to the prosecution case in so far as the use of shot-gun No. 60652 Exh. P.
16 and .12 bore clutch-action shot-gun Exh. P. 17 at the hands of Rab Nawaz and Fazil respectively was concerned.
13. At the trial, the accused pleaded not guilty to the charge, denied the recoveries and attributed their false implication to enmity. All denied their presence at the spot and participation in the fight except Haq Nawaz, Amira and Ashiq. The plea taken by Haq Nawaz was that on the day of occurrence it was his turn of water when the members of the complainant party diverted the water into their fields. He accompanied by Amira and Ashiq went to enquire about this when they were attacked by the complainant party. They also inflicted some injuries to them in self-defence. Amira accused stated that he and his son were present in the adjoining field when they heard an alarm from the field of the deceased where a fight was going on. They rushed forward to rescue Haq Nawaz and be received a hatchet blow at the hands of Yusaf P. W. And became unconscious. The same position was reiterated by his son Ashiq, who also allegedly received injuries and fell down.
14. Having considered the evidence on the record, the learned Sessions Judge acquitted the set of four accused who were Balochis by caste namely ; Ameera. Ashiq, Allah Yar and Gul Sher, as also two of the Chadhar accused namely ; Fazil and Akmal. Nazar Muhammad and Rab Nawaz were found guilty for having exceeded in the exercise of right of private defence and were awarded a sentence of seven years' R. I. Each under section 304(I) read with Section 34, P. P. C.
15. The aforesaid conclusions of the learned trial Judge are based on the findings (i) that Haq Nawaz one of the acquitted accused, being admittedly in possession of water it being his turn Ed the relevant time was within his rights to mend the cut in the watercourse and protect his right of the use of water; (if) that the plea taken by Ameera and Ashiq, the two Baloch ac--cused appeared to be plausible in view of the conspicuous absence of their enmity with the complainant party or their relationships or friendship with the Chadhar accused, thus having no motive to depose falsely against the former; (iii) that in the above view of the situation Ameera and Ashiq were justified in rushing forward to rescue Haq Nawaz; (iv) that similarly Gul Sher and Allah Yar were also justified in rushing to the spot in defending Haq Nawaz; and (v) that since Haq Nawaz was already being defended by the two appellants: namely, Nazar Muhammad and Rab Nawaz, bad exceeded in their right to defend Haq Nawaz by using their guns resulting in the death of Gul Muhammad and injuries to other P. Ws.
16. It was contended before us on behalf of the appellants that the presence of Ghulam Muhammad, the first informant was rather doubtful, in view of the absence of the injury on his person and as such no sanctity should be attached to the eye-witness account furnished by him, that even otherwise, the prosecution had failed to put forward a natural and consistent version of the occurrence offering no satisfactory explanation, of the injuries sustained by tlaq Nawaz, Ameera and Ashiq accused which were completely suppressed in the initial report, that the investigation did not appear to have been conducted in a straightforward manner and in particular the evidence of recoveries attributed to the appellants was far from convincing, that once it was conceded that it was the turn of water of the accused party they had every right to protect their right by use of force including the two appellants but in the circumstances of the case could not reason--ably be found to have exceeded in the exercise of that right, and lastly that in any case, there could hardly be any question of the invocation of section 34, P. P. C. In a case where the right of private defence was conceded.
17. Having considered the contentions raised on behalf of the appellants we are inclined to think that they are not without substance: In the first instance it is not disputed that it was the turn of water of Haq Nawaz Chadhar. It is also conceded that at the relevant time the water was flowing into the field of the com--plainant party. It is, however, alleged that it was not a case of deliberate cut but as accidental breach in the watercourse. Another admitted position is that at the relevant time Ghulam Muhammad Gul Muhammad deceased, Yousaf, Iqbal, Nazar Muhammad, Mumtaz, Allah Ditta and Muhammad P. Ws. Were sitting in the land of the deceased and were talking about matri--monial affairs. Although such incidents do take place in life yet having regard to the background of blood-feuds in the instant case, the fact that previously at the time when the deceased and eight other members of his family were sitting together the breach should have taken place during the tern of water of Haq Nawaz Chadhar and that too in the land of the deceased, has to be taken with grain of salt. In the circumstances, the possibility cannot be ruled out that the complainant party had not necessarily gathered at the spot with an Innocent purpose.
What further casts suspicion on their bona fides is the fact that none of them cared to repair the so-called accidental breach in the water--course so as to prevent the flow of water into their field.
The only possible consideration which could be construed in their favour and was pressed on behalf of the petitioner in the private revision against acquittal was that in the event of a pre- planned attack they would not have faired so badly. Be that as it may however, we are of the view that the plea taken on behalf of Haq Nawaz, Ameera and Ashiq cannot be completely excluded from consideration.
18. As rightly pointed out by the learned counsel for the appellants, even otherwise the version put forth by the prosecution is neither consistent nor convincing. As stated earlier, a reference to the injuries of Haq Nawaz and Ashiq was conspicuous by its absence in the F. I. R. Of course, Ghulam Muhammad P. W. Referred to the injuries of Ameera accused attributing them to his co-accused, Ameera suffered an incised wound on the back and a contused wound on the head. Having regard to the com--plete suppression of the injuries of Haq Nawaz and Ashiq, we would be rather sceptical to accept this position. In his supple--mentary statement Exh. D. F., Ghulam Muhammad had categorically stated that Ameera was the only person injured from the side of the accused party. At the trial, however, be specified that he was injured at the hands of Iqbal, P. W. 22 which was denied by the latter in his police statement Exh. D. H. Of course, at the trial, Iqbal P. W. 11 admitted having attacked Ameera with the Vaholi which was not recovered. He did not remember whether he had also given a blow to Haq Nawaz. Surprisingly enough earlier, before the committing Magistrate he categorically stated that he and his brother were empty-handed. Mumtaz P. W. 20 stated at the trial that he did not see Iqbal P. W. 22 injuring any of the accused persons. Likewise, Zafar Ahmad P. W.
21. Stated in his police statement Exh. D. G. That the accused were injured at the hands of other co-accused. At the trial, however, stated that he could not say how the accused were injured. Of course, there was Vaholi lying at the spot. Yousaf P. W. 23 stated before the committing Magistrate that Ameera had received hatchet blow at the hands of Gul Sher accused while his son Ashiq at the hands of Haq Nawaz. On the other hand, he stated at the trial that the P.
Ws. Were empty-handed and he did not know who had inflicted injuries to the accused.
These inconsistencies and contradictions strongly militate against the veracity of P. Ws. And the credibility of the version put forth by them.
19. Regarding the falsity of the evidence of recoveries, our attention has been drawn to a significant circumstance namely that Ismail P. W. 18 was named as one of the witnesses of the recovery of hatchet Exh. P. 9 Haq Nawaz, of hatchet Exh. P. 10 of Gul Sher of dang Exh. P. 11 of Allah Yar, of gun Exh.
P. 19 of Nazar Muhammad had admittedly not signed any of the aforesaid recovery memos. Which clearly goes to show that he was not present at the relevant time and having mentioned his name in anticipation, the police subsequently forgot to obtain his signatures on the recovery memos.
However, they per se would not in our opinion, be good enough to reject the entire evidence of recoveries which for the purpose of the present appeal is primarily confined to gun P. 16 of Rab Nawaz and gun P. 19 of Nazar Muhammad. Similarly Exh. P. V. Recovery memo. Of blood-stained clothes of the accused produced by Muhammad ' Naseeb F. C. Was not got signed by him.
Notwithstanding these lapses we are of the view that evidence aliunde is available in regard to the recoveries of the guns from the two appellants.
20. It was not controverted on behalf of the State that once the right of private defence were conceded to Rab Nawaz and Nazar Muhammad there would be no question of the applica--tion of section 34, P. P. C. Particularly when there is no convincing evidence of their presence as the site and it is not established beyond doubt that both of them had come together from the same place reaching simultaneously.
21. It was further argued on behalf of the appellants that having regard to the nature of injuries suffered by Ameera of which one was incised wound 5--' x 2--'' on the upper part of the back left side 2' below the neck and the contused wound 1--'' x --' x --' over the central part of the head which kept him in the hospital for about two months, as also having regard to the admitted presence of eight persons from the complainant side it cannot be reasonably inferred that the two appellants had exceeded in the exercise of the right of private defence, that in view of the acquittal of Ameera who gave vaholi blow to the deceased felling him on the ground and of Fazil who besides injuring Zafar Ahmad, Muhammad and Allah Ditta P. Ws. Had also fired at the deceased with his gun P. 17 which was found to be out of order by Shahjehan P. W. 27 the fire-arm expert, and the author of the fatal injury could not be determined and as such both the appellants were entitled to acquittal on benefit of doubt. Reliance was placed in this regard on Ram Parsad and others v. The State (AIR 1959 All. 790) and Ahmad and others v. Emperor (AIR 1919 Lah. 458).
22. Having considered the contentions we see much force in it. Obviously the invocation of the principle of constructive liability against persons fighting in self-defence would be simply absurd and a contradiction in terms. Having regard to the admitted fact by the complainant side that it was the turn of water of Haq Nawaz, that water had flowed into the field of a deceased who was sitting closeby along with seven others near relations, as also the plausibility of the plea raised by Haq Nawaz Ameera and Ashiq further considered in the light of suppression of material evidence by the P. Ws. Who were near relations of the deceased and had a background of blood-feuds, with the appellants also their collaterals, we are inclined to think that originally the quarrel started between Haq Nawaz and some members of the complainant party who had already gathered there and that the two appellants were subsequently attracted to the spot and had tired in exercise of the right of private defence. Thus in the circumstances of the case when six out of the eight accused persons were acquitted by the learned trial Judge, the case would attract the invocation of the principle of indivisibility of credibility. Again the incised wound sustained by Ameera would clearly justify the inference that he along with Haq Nawaz and Ashiq who were also injured had a reasonable apprehension or danger to life and as such it cannot be justifiably held that the appellants had exceeded in the exercise of their right of private defence to get possession of water or rescue their companions by firing several shots with their guns resulting in the unfortunate death of Gul Muhammad. Accordingly, we allow this appeal, set aside the convictions and sentences of the appellants and acquit them. They shall be released from the jail if they have not already secured their release after having undergone the sentences subject to their detention in any other case.
23. In view of the above finding, it is hardly necessary for us to examine the contentions raised on behalf of the petitioner seeking enhancement of Sentences, The Revision petitions fail and are dismissed.