' MUHAMMAD MUNIR KHAN, J.-- These three Criminal Appeals Nos. 41 of 1988/BWP, filed by Iftikhar Ahmad, No. 43 of 1988/BWP filed by Muhammad Akram, Muhammad Jameel and Ghulam Muhammad and No.42 of 1988/BWP, for the enhancement of sentences of convicts/appellants filed by Nazir Jameel complainant, arise from the judgment of learned Judge, Punjab Special Court for Speedy Trials No.VI, Bahawalpur, whereby he on 21-6-1988, convicted Muhammad Akram, Muhammad Jamil, Ghulam. Muhammad, Iftikhar Ahmad and Ghulam Fareed (not appellant) under section 304-I, P.P.C. For causing the death of Khalid Jameel (31) and under section 323, P.P.C.
For causing hurt to the deceased and Allah Ditta P.W. And sentenced them as under:- ' Under section 304-1, P.P.C.
' Muhammad Akram, Ghulam Muhammad and Muhammad Jameel appellants to 7 years' R.I. And a fine of Rs.20,000 each in default thereof 3 years' R.I. Each with the direction that the fine if recovered half of it be paid to the legal heirs of the deceased.
' Under section 323, P.P.C. ' for causing simple injuries to deceased.
' Muhammad Akram and Iftikhar Ahmad appellants to one year's R.I. And a fine of Rs.1,000 each, in default thereof 3 months' R.I. Each with the direction that the fine if recovered half of it be paid to the legal heirs of the deceased.
' Under section 323, P.P.C. ' for causing injuries to Allah Ditta P.W.
' Muhammad Akram and Ghulam Fareed to one year's R.I. And a fine of Rs.1,000 each, in default thereof 3 months' R.I. Each, with the direction that the fine if recovered, half of it be paid to Allah Ditta P.W.
' The sentences were to run concurrently. It may be noted here that Ghulam Fareed convict has not filed appeal against his conviction and sentence. We propose to dispose of the three appeals through single judgment.
2. The occurrence took place on 14-7-1987 at 9-45 p.m. Near Bus Stand Chistian. The F.I.R. Is statement Exh.P.K. Of Nasir Jameel P.W.8, brother of Khalid Jameel deceased, which was recorded by Jaffer Ali, A.S.I. P.W.11 on the spot. Formal F.I.R. Exh.P.K./1 was drawn up by Muhammad Hanif A.S.I.
(not produced) on the same day at 10-45 p.m. The distance between the place of occurrence and the police station is 3 k.m.
3. Nasir Jameel complainant and Muhammad Jameel appellant are Transporters. Khalid Jameel deceased was In charge of New Chaudhry Bus Service. One Muhammad Aslam was In charge of Rahim Bus Service. Muhammad Akram appellant used to help him. One year before this occurrence, Muhammad Akram and Muhammad Jameel appellants gave beating to Khalid Jameel deceased. The case, was however, compromised. Thereafter, Khalid Jameel deceased gave beating to Muhammad Akram appellant and a case was registered against the deceased and his brother Nasir Jameel complainant which was pending at the time of occurrence. It is said to take revenge of beating to Muhammad Akram, the appellants have killed the deceased. The immediate cause of attack disclosed by the prosecution was that Khalid Jameel deceased was Incharge of General Bus Stand Chistian. He used to regulate timings of the buses at the Bus Stand.
At the eventful time, the deceased and Nasir Jameel complainant were present at the bus stand.
Muhammad Akram and Ghulam Muhammad appellants told the deceased that the time of the parking of his bus had ended. So, his bus should leave the bus stand. On this the deceased replied that two minutes were still there. This led to the exchange of hot words between the parties. After two minutes the bus of the complainant party left the bus stand. Thereafter Muhamamd Akram, Ghulam Muhammad, Muhammad Jameel, Iftikhar Ahmad appellant and Ghulam Fareed convict, came there carrying Sotas in their hands. Muhammad Akram, Muhammad Jameel and Ghulam Muhammad gave one Sota blow each on the head of Khalid Jameel, on which the deceased fell down Iftikhar Ahmad and Ghulam Fareed gave Sota blows to Khalid Jameel while he was lying on the ground. Allah Ditta P.W. Tried to intervene, whereupon Muhammad Akram and Ghulam Fareed gave him injuries with their Sotas. The occurrence was also seen by Muhsthaq and Sakhi, P.Ws. After causing injuries to the deceased and Allah Ditta P.W., the appellants and Ghulam Fareed ran away taking weapons with them. Khalid Jameel succumbed to the injuries in hospital on 15-7-1987 at 5- 45 p.m.
4-5. Dr. Muhammad Ashraf P.W.1 had medically examined the deceased while he was alive. He found 7 injuries caused by blunt weapon on his person. The patient was referred to Neuro-Surgical Ward, Nisthar Hospital Multan.
' On the same day, the doctor examined Allah Ditta P.W. And found following injuries: "(1) A lacerated wound at the tip of nose. Swelling at the base of the nose.
(2) A lacerated wound on the right shoulder joint.
(3) A lacerated wound at the middle inter phalyngeal joint of right little finger."
' The injuries were caused by blunt weapon and were simple in nature.
' On 20-7-1987 at 10-15 a.m. The doctor examined Ghulam Muhammad appellant and found following injuries:- "(1) A contusion left forearm about 7 c.m. Below (again said above the wrist).
(2) Swelling of right little finger.
(3) Complains of pain on left forearm."
' All the injuries were caused by blunt weapon. Injury No.1 was grievous and the rest simple in nature.
' On 16-7-1987 at 12-00 noon, Dr. Anjum Jamal P.W.12 conducted postmortem examination on the dead body of Khalid Jameel. He found following injuries:-
(1) A stitched wound about 4 c.m. Long having 4 stiches on right side of skull about 10 c.m. Above right ear.
(2) J-Shaped stitched wound about 14 c.m. Having 16 stiches on the left temporal region of skull about 3 c.m. From left eye-brow."
' On internal examination, the doctor found that:- "There was fracture of left parietal, left temporal, left occipital, right parietal and right temporal bones of the skull. The bur-holes left and right side done by Surgeon were present. On opening of skull cavity I found clotted blood present on surface of brain membranes. Both the bases of skull of middle cranial fossa were fractured. All the parts of abdomen, thorax have no abnormality and were normal. Stomach was empty.
' In his opinion, the death was due to intercranial haemorrhage and shock due to injuries Nos. 1, 2, 3 and 4 as described in M.L.C. No.68/87 which, were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was 12 to 24 hours and between death and postmortem was 12 to 24 hours.
6. Muhammad Akram, Ghulam Muhammad and Ghulam Fareed were arrested on 19-7-1987 by Jaffer Ali, A.S.I. P.W.11. On 22-7-1987, Muhammad Akram led to the recovery of blood-stained Sota Exh.P.4 from cluster of bushes near General Bus Stand, Chistian, which was taken into possession vide memo. Exh.P.H. Attested by Mukhtar Ahmad P.W.6 and Muhammad Saleem (not produced. On the same day Ghulam Muhammad appellant got recovered bloodstained Sota Exh.P.3 from cluster of bushes near General Bus Stand which was taken into possession vide memo. Exh.P.G. Attested by the same witnesses. On the same day Ghulam Fareed got recovered Sota Exh.P.5 (not blood- stained) which was taken into possession vide memo. Exh.P.I. Attested by the same witnesses.
Serologist Report Exh.P.Q. Shows that Sotas Exh.P.3 and P.4 were stained with human blood. It may be noted here that the learned trial Judge has disbelieved the recovery of weapons from the appellants.
7. To prove its case, prosecution examined 14 witnesses. Nasir Jameel P.W.8, Allah Ditta P.W.9 and Mushtaq Ahmad P.W.10 have given the ocular account of the occurrence. They claim to have seen the appellants and Ghulam Fareed co-accused launching murderous assault on the deceased and Allah Ditta P.W. And causing injuries to them with their Sotas. As stated by them, Muhammad Akram, Muhammad Jameel and Ghulam Muhammad appellants had caused one injury each on the head of Khalid Jameel deceased and Iftikhar Ahmad appellant and Ghulam Fareed had caused injuries on the person of the deceased while he was lying on the ground and that Muhammad Akram appellant and Ghulam Fareed had also given injuries to Allah Ditta P.W. The eye-witnesses have supported the prosecution version completely. Dr. Muhammad Ashraf had medically examined the deceased, Allah Ditta P.W. And Ghulam Muhammad appellant/accused on 15-7-1987. Dr. Muhammad Anjum Jamal P.W.12 had conducted post-mortem examination on the dead body of Khalid Jameel deceased. Mukhtar Ahmad P.W. 6 and Ameer Azam Baig S.H.O.
P.W.14 are the witnesses of recoveries of the crime weapons from Muhammad Akram, Ghulam Muhammad and Ghulam Fareed accused. They supported the alleged recoveries. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. Ghulam Muhammad raised plea of self-defence. In reply to Q.No.14, he stated:- "I am innocent. Witnesses have falsely deposed against me on account of party faction and enmity. In fact, on account of altercation over timings of buses and boarding of passengers, Allah Ditta and deceased armed with Sotas launched murderous assault on me, and inflicted injuries on my person including fracture of my ulna bone to which I, too resisted, this assault attracted other persons from the stand as well as Akram and Ghulam Fareed co-accused and in their endeavor to rescue me, injuries were suffered by deceased and Allah Ditta in exercise of the right of self- defence of my person and the deceased Khalid received the injuries."
' Iftikhar Ahmad and Muhammad Jameel, Muhammad Akram and Ghulam Fareed adopted statement of Ghulam Muhammad. The appellants neither produced any witness in defence nor did they give evidence on oath in disproof of the charges against them. They simply placed on record documents Exh.D.D. To D.E./6.
9. Disbelieving the plea Of self-defence raised by the appellants, the learned trial Judge was of the view that Khalid Jameel had lost his life and Allah Ditta had received injuries in a free fight, as such the appellants were responsible for their individual acts. So he has convicted and sentenced the appellants and Ghulam Fareed, as stated above.
10. Learned counsel for the appellants submitted that the witnesses are not reliable, that they have suppressed the real facts, that the appellants had acted in right of self-defence and in any case there is a reasonable possibility of the defence version being true. Learned counsel for the State supported the judgment of the learned trial Judge. Mr. A.R. Tayyib, the learned counsel for Nasir Jamil complainant/petitioner in Criminal Appeal No. 42 of 1988/BWP simply prayed for the enhancement of sentence of the appellants and Ghulam Fareed co-convict on the ground that they have been dealt with leniently by the trial Court.
11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellants and Ghulam Fareed under section 342, Cr.P.C. The documents tendered by the appellants and the circumstances appearing in the case. We find that during the occurrence both sides received injuries. On the side of the prosecution Khalid Jameel lost his life and Allah. Ditta received simple injuries. On the side of the appellants/accused, Ghulam Muhammad received 3 injuries including one grievous injury caused b blunt weapon. This shows that the parties were fully armed at the time of occurrence. It has nowhere been stated in the F.I.R. That it was after the departure of the bus of the deceased for the bus stand that the appellants came there armed with Sotas. The contents of the F.I.R. Clearly indicate that it was a case of single transaction. As usual, the parties have suppressed and also tried to minimize the part played by them in the occurrence e.g. The complainant party has not explained the injuries of Ghulam Muhammad and the appellants too have not accepted the responsibility of death of Khalid Jameel and injuries to Allah Ditta P.W. It was suggested to Nasir Jameel complainant that certain people other than the appellants had injured the deceased and Allah Ditta in order to save Ghulam Muhammad appellant. It is thus very much clear that the parties have not come out with true story. They have told incomplete tale of the occurrence, as such, the learned trial Court was fully justified in drawing proper inference from evidence and circumstances. On our independent assessment, we find that the deceased was not killed in order to take revenge of the beating given to Muhammad Akram appellant by the deceased and the complainant, a year before the occurrence. It has been admitted by Nasir Jameel P.W.8 that no untoward incident took place within for about one year, i.e. In between the date of attack on Muhammad Akram appellant and the present occurrence. The parties are transporters. Their presence at the bus stand at the eventful time was in routine. The quarrel which started over the over timing' of the bus led to the exchange of hot words between the parties followed by a fight in which both the parties received injuries. Ghulam Muhammad appellant also received grievous injuries. The parties used blunt weapons in causing injuries on each other. It is a matter of common experience that there exists, always a possibility of quarrel and an unpleasant incident on the question of timings of the buses at the bus stand. The business rivalry between the transporters is also an open secret. So trivial incident could bring the parties into conflict. We are convinced that it was reasonable to infer that in entering upon the conflict each party knowingly and deliberately took upon itself the risk of the encounter, and as such, the question of the right of private defence of person did not arise. Furthermore, the occurrence took place at the bus stand where a number of persons were present. No witness has been produced by the defence in support of the defence plea raised by them. Under section 340(2), Cr.P.C. They could give evidence on oath in disproof of the charges against them but for the reasons best known to them they have not entered the witness-box. In these circumstances, the possibility of any `reaction' on the prosecution stands excluded altogether. For all these reasons, no exception can be taken to the conclusion of free fight between the parties arrived at by the learned trial Judge.
12. The learned trial Court after holding that each accused was responsible for his individual act, has convicted Muhammad Akram, Muhammad Jameel and Ghulam Muhammad appellants under section 3044, P.P.C. For culpable homicide, i.e. For causing the death by inflicting one Dang blow each on the head of Khalid Jameel with the intention to cause death or with the intention of causing such bodily injury as is likely to cause death. Culpable homicide has been defined under section 299, P.P.C. Which reads as under:- "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
The word 'whoever' is of great significance. Dr. Anjum Jamal P.W. 12 has nowhere stated in the post- mortem report and in his statement before the Court as well that the injuries found on the head of Khalid Jameel (allegedly) caused by the aforesaid three appellants) were individually sufficient to cause death in the ordinary course of nature. In this view of the matter, none of the aforesaid three appellants can be held individually responsible for the death of Khalid Jameel. So we are of the considered view that the offence committed by each of the three aforesaid appellants is neither murder nor culpable homicide punishable under section 304-I, P.P.C., whatever else it may be.
' Now we proceed to consider the extent to which the three appellants namely Muhammad Akram, Muhammad Jameel and Ghulam Muhammad were responsible for what occurred at the fateful time. According to the prosecution version they had caused one Sota blow each on the head of the deceased. Since none of the injuries found on the head of the deceased has been declared grievous or dangerous to life, therefore, giving the benefit of doubt on the question of the nature of offence, we propose to convict the aforesaid three appellants under section 323, P.P.C. For causing injuries to the deceased and sentenced them to one year's R.I. And a fine of Rs.1,000 in default three months' R.I. The conviction and sentence of Iftikhar Ahmad under section 323, P.P.C. For causing simple injury to deceased and the conviction and sentence under section 323, P.P.C. Of Muhammad Akram for causing injury to Allah Ditta P.W. Are maintained.
' As a result of the above discussion, Crimina Appeal No. 41 of 1988 of Iftikhar Ahmad is dismissed in toto. He is on bail. The learned trial. Court will get him arrested and sent to jail to serve the sentence. Criminal Appeal No. 43 of 1988 filed by Whammad Akram, Muhammad Jamil and Ghulam Muhammad is partly allowed. Their convictions and sentences under section 304(I), P.P.C.
Are set aside. Instead they are convicted under section 323, P.P.C. And sentenced as stated above.
Under the relevant law Provincial Government alone can file appeal for the enhancement of sentence and not a private person. So Criminal Appeal No. 42 of 1988 filed by complainant for enhancement of sentence is dismissed as misconceived. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.