1. The appellants alongwith Hasnat Ahmad, Tariq Mahmood, Jamshed Ahmad (since acquitted) and Muhammad Malik (who has not filed the appeal) were tried under section 302/307/148/149, P.P.C.
2. By the learned Additional Sessions Judge, Chakwal, who vide his judgment, dated 9-5-1987 acquitted Hasnat Ahmad, Tariq Mahmood and Jamshed Ahmad of the charges but convicted and sentenced the appellants and Muhammad Malik as under:- Muhammad Lateef Muhammad Afzal and Muhammad Ishaque Imprisonment for life and a fine of Rs.10,000 each or in default two years' R.I. Under section 302, P.P.C. Rs.8,000 out of fine in each case if recovered was ordered to be paid to the legal heirs of the deceased.
3. Muhammad Akbar Three years' R.I. And a fine of Rs.1,000 or in default four months' R.I. Under section 325, P.P.C. For causing grievous injury to the deceased. Rs.800 if recovered was ordered to be paid to the legal heirs of the deceased as compensation.
4. Muhammad Malik Sentence already undergone, under section 323, P.P.C. For causing simple injury to Fazal Hussain.
5. Zafar Ahmad One year's R.I. And a fine of Rs.500 or in default two months' R.I. Under section 323, P.P.C. Rs.400 if recovered was ordered to be paid to the legal heirs of the deceased.
6. A.I Asghar One year's R.I. On two counts, i.e. Under section 323, P.P.C. For causing simple injuries to Dilshad and Fazal Hussain P.Ws. And a fine of Rs.500 or m default two months' R.I. On each count. Rs.800 if recovered was ordered to be paid to the injured P.Ws. In equal shares. The substantive sentences to run concurrently.
7. Abdur Razzaq Three years' R.I. And a fine of Rs.1,000 or in default four month's R.I. Under section 325, P.P.C., Rs.800 if recovered was ordered to be paid to Qadoos injured P.W.
8. Zameer Akhtar One year's R.I. And a fine of Rs.500 or in default two months' R.I. Under section 323, P.P.C. Rs.400 was ordered to be paid to Qadeer injured P.W. As compensation.
9. Shahsawar One year's R.I. Under section. 323, P.P.C. On three counts for causing simple injuries to Ajmal Lateef, Dilshad, Fazal Hussain P.Ws. And a fine of Rs.500 on each count or in default two months' R.I. Three years' R.I. Under section 325, P.P.C. For causing grievous injury to Qadoos P.W. And fine of Rs.1,000 or in default four months' R.I. Three fourth of fine if recovered was ordered to be paid to the injured P.Ws. The substantive sentences shall run concurrently.
10. Bostan Khan One year's R.I. On two counts and a fine of Rs.500 on each count or in default two months R.I. On each count under section 323. P.P.C. The fine if recovered Rs.800 was ordered to be paid to Lateef and Fazal Hussain, in equal shares. The sentences shall run concurrently. ,
2. The complainant has filed revision petition No. 111 of 1987 against A.I Asghar and 10 others praying that their acquittal under section 302, P.P.C. Be set aside and retrial be ordered. Another revision petition No. 116 of 1987 has been filed by the complainant for enhancement of sentence of Lateef, Afzal and Ishaque.
11. This judgment will dispose of all these matters.
3. The F.I.R. Exh.P.K. In this case was lodged by Abdul Qadeer (P.W.6) on 1-3-1985 at 10-30 a.m. Which was recorded by Zafar A.I S.H.O. (P.W.11). Initially case under section 307/148/149, P.P.C. Was registered but on the death of Fazal Hussain on the same day the offence was amended to section 302, P.P.C. The prosecution case as unfolded in the F.I.R. Exh.P.K. Is as under:- "Today at 9-00 a.m. I alongwith my brother Abdul Qadoos were present on our Ata Machine, when we heard the noise of `Mar Do', `Mar Do' and hurried towards the Hotel of Fazal Hussain son of Zaman Mehdi and when we reached near the Hotel we saw that Muhammad Akbar son of Rajwali and his sons Muhammad Lateef, Muhammad Afzal, A.I Asghar Bakhral Rajput, Jamshed, son of Muhammad. Ashraf, Muhammad Ishaque son. Of Abdul Ghani, Zafar son of Hayat Muhammad, Zameer son of Muhammad Sharif, Hasnat son of Ghulam Rabbani, Muhammad Malik son of Zaman A.I, Abdur Razzaq son of Muhammad Malik, Tariq Mahmood son of Subah Sadiq, Bashir son of Fateh Muhammad all Jatt Khinger by Caste, Bostan, Shahsawar sons of Ghulab Arain assailants of Abbas A.I and within our view, Muhammad Lateef, Muhammad Afzal, Jamshed and Ishaque aforementioned, inflicted Dang blows on his head (Fatal Hussain son of Abbas A.I) and hitting his eye, who fell down. Muhammad Akbar and Zafar aforementioned accused dealt Dang blows to Fazal Hussain, hitting him on his left leg. In the meanwhile Lateef and his son Ajmal, Fazal Hussain alongwith his son Dilshad, neighbour shop-keepers and relatives of Fatal Hussain injured came to rescue him and advanced to intervene when Bostan, Muhammad Malik, Tariq Mahmood, A.I Asghar, Shahsawar and Muhammad Bashir infected Dang blows to them, hitting them on the various parts of their bodies: In the meanwhile, I alongwith my brother Qadoos could not avoid to see this scene and advanced towards the injured and made entreaties to the assailants folding our hands, when I myself and my brother Qadoos were given Dang blows by Zameer, Hasnat, Abdur Razzaq, Muhammad Bashir and Shahsawar with the slogan that `taste the relation of party faction'. The motive behind this occurrence is that a case of attempted murder under section 307, P.P.C. Was registered against Fazal Hussain son of Abbas A.I injured aforementioned, causing injuries to brother-in-law of Muhammad Akbar accused namely Muhammad Akram. Besides this case many other case were pending in between the deceased and the assailants, therefore, all the aforementioned accused persons in prosecution of their common object forming an unlawful assembly have launched murderous assault -ill Fatal Hussain son of Abbas A.I to take his life, who, is struggling for his life, due to his grievous injuries. Criminal proceedings be initiated against them."
12. 3-A. The investigation in this case was conducted by Malik Zafar A.I, Inspector (P.W.11) who after recording the F.I.R. Prepared the injury statement of Abdul Qadeer (Exh.P.E.), Muhammad Lateef (Exh.P.F.), Dilshad Hussain (Exh.P.G.), Abdul Qadoos, (Exh.P.H.), Fatal Hussain son of Zaman Mehdi (Exh.P.I), Fazal Hussain son of Abbas A.I deceased in this case (Exh.P.C) and Ajmal Lateef son of Muhammad Lateef (Exh.P.J.) and got them medically examined. As Abdul Qadoos, Muhammad Lateef, Fazal Hussain son of Zaman Mehdi and Fazal Hussain (deceased) were in precarious condition, therefore, he submitted the separate applications to the Medical Officer, Civil Hospital, Chakwal, whether they were fit to make the statements. The Medical Officer with the exception of Fazal Hussain (deceased) replied in the affirmative, and accordingly their statements were recorded by him. Fazal Hussain who was removed to Rawalpindi hospital expired on the way, his dead body was brought to Civil Hospital, Chakwal. The Inspector prepared his inquest report Exh.P.K. And sent the dead body to the mortuary for post-mortem examination. Muhammad Aslam F.C. Produced the medico-legal reports of the injured P.Ws. Qadoos, Lateef and Fazal Hussain which were taken into possession vide memo. Exh.P.B., P.O. And P.R. He then proceeded to the spot and collected the blood-stained earth vide memo. Exh.P.S. From the shop of Rashid Shop-keeper where the deceased was injured. On 2-3-1985, Duhman Khan F.C. Produced the last worn clothes of the deceased which were taken into possession vide memo. Exh.P.A. On 3-3-1985, he arrested Muhammad Lateef, Muhammad Ishaque and Bostan Khan. On 11-3-1985, Muhammad Lateef, Bostan and Ishque got recovered Dangs P.4, P.5 and P.6 vide recovery memo. Exh.P.L., P.M. And Exh.P.N respectively. On 13-3-1985, he arrested Muhammad Malik, Muhammad Afzal Shahsawar and Zameer Akhtar who got recovered Dangs P.17, P. 18, P.19 and P.20 vide memo. Exh.P.T., Exh.P.U., Exh.P.V. And Exh.P.W. Respectively. On 16-3-1985, Jamshed Ahmad, Hasnat Ahmad, A.I Asghar, Zafar Ahmad, Bashir Ahmad, Abdur Razzaq and Muhammad Akbar were arrested. On 30-3-1985, Akbar got recovered Dang P.7 vide memo. Exh.P.O. On 2-4-1985, Tariq Mahmood was arrested. He got prepared site plan Exh.P.B. Its duplicate Exh.P.B./1 and triplicate Exh.P.B./2 by Nawab Khan Draftsman (P.W.). He recorded the statements of P.Ws. Under section 161, Cr.P.C. After completing the legal formalities he submitted the challan in the Court of law.
4. Dr. Shahid Nawaz Malik, Medical Officer, medically examined Fazal Hussain (deceased) when he was alive on 1-3-1985 at 11-00 a.m., and found the following injuries on his person:- (i)Lacerated wound 2-3/4 x 1/4 bone deep in centre of scalp 1" behind hair margin.
13. (ii)Extensive swelling 6-1/2 x 6" on left temporal, parietal forehead and left both eye lids.
14. (iii)Swelling 3" x 3" on vertex (iv)Swelling 4-1/2" x 2" on right zygomatic area and temporal area.
15. (v)Abrasion 6-1/2" x 1-1/2" on front and inner side of left thigh.
16. (vi)Swelling 8" x all round on front of left leg middle and above middle. The bones underneath are fractured.
17. Injuries Nos. 1, 2 and 3 were grievous and dangerous to life. Injury No.5 was declared simple and injury No.6 was declared grievous.
5. Fazal Hussain died on 1-3-1985 at 4-00 p.m. And his post-mortem examination was conducted by the same doctor on 2-3-1985 at 8-00 a.m. And found the following injuries on his body:- (i)Stitched lacerated wound 2-3/4" x 1/4" bone deep (stitches removed) on centre of scalp 1" behind hair margin slightly to the left margin.
18. (ii)Extensive swelling 7" x 6" on left temporal parietal, forehead and both eye lids of left side.
19. (iii)Swelling 3" x 3" on left vertex.
20. (iv)Abrasion 4-1/2" x 2" on left zygomatic and temporal area.
21. (v)Abrasion 6-1/2 x 1-1/2 of front and inner side of left thigh.
22. (vi)Swelling 8" x all around on left leg middle and above middle the bones underneath were fractured.
(vii) There was extensive clotted blood under the scalp on its both temporal parietal area and frontal zone of left side under injuries Nos.1, 2, 3 and 4. There was fissured fracture starting from right side temporal bone and going over the right parietal bone crossing the central line, to left parietal bone which was broken into four pieces. The fracture line went towards the left front bone, supraorbital area in front and up to posterior part of left parietal bone. The left temporal bone was also fractured. The floor of left on terior cranial fossa was fractured under injuries Nos. 1, 2, 3 and 4.
23. Death in the opinion of the doctor was due to bleeding and shock caused by cerebral compression due to extra dural haemorrhage and extensive fracture of skull bones under injuries Nos. 1, 2, 3 and
4. Injuries Nos. 1, 2, 3 and 4 were individually fatal and collectively also. These injuries were sufficient to cause death in the ordinary course of nature. Injury No. 6 was grievous. Injury No.5 was simple. All injuries were ante-mortem and were caused by blunt weapon. Probable time between injury and death was 6 to 8 hours and the time between death and post-mortem was 14 to 18 hours. Exh.P.D. Is the post-mortem report and Exh.P.D./1 is the pictorial sketch.
24. The doctor also examined Abdul Qadeer who had a swelling, reddish contusion mark on outer side of right arm and reddish contusion mark on back of left chest. All injuries were simple and fresh in duration.
25. The doctor also examined Muhammad Lateef who had a lacerated wound 3-1/2" x 1/4" bone deep on right parietal area 1-1/4" to right of middle line and close to hair margin. This injury too was declared simple.
26. The doctor also examined Dilshad Hussain who had two abrasions, one on left scrotal area and the other on front of right knee joint.
27. The doctor also examined Abdul Qadoos who suffered three lacerated wounds, five abrasions and one reddish contusion mark. Except one injury remaining was declared simple.
28. The doctor examined Fazal Hussain son of Zaman Mehdi who had as many as 14 injuries which were caused by blunt weapon and all injuries were simple in nature.
29. The doctor examined Ajmal Lateef, who had a reddish contusion mark on back of his right lumber area, which was declared simple, fresh in duration and caused by blunt weapon.
30. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations.
31. Muhammad Lateef appellant made a detailed statement which reads:- "The fact of the matter is that on the day of occurrence at about 9-00 a.m. I had gone to the shop of Mushtaq Barber for a shave, where Abdul Qadoos P.W. Turned up and a quarrel between said Abdul Qadoos and myself ensued over a taunt to me by him relating to the last National Assembly Election. On my hue and cry, when Abdul Qadoos had started giving beating to me, Fazal Hussain (deceased) armed with a Sota, Fazal Hussain P.W. Alongwith his sons Dilshad P.W. And Fida Hussain and Abdur Rashid son of Nawab Khan came up there, encircled me and I sat down to save myself and when Dilshad P.W. Showered blows on me, I caught hold of the testicles of Dilshad P.W. At this stage, Fazal Hussain son of Zaman Mehdi P.W., gave me a brick bat blow on account of which my arm was fractured. I slipped from underneath and Bostan Khan son of Gulab Khan hearing my hue and cry came up there alongwith Muhammad Ishaque. In the meantime Dilshad and Fida Hussain had mounted to the roof of Fazal Hussain son of Zaman Mehdi, wherefrom they showered brick bats. Muhammad Ishaque, my co---accused had come on the hue and cry of Bostan. Muhammad Ishque made entreaties, when in the meanwhile Muhammad Lateef, Abdul Qadeer and Ajmal Lateef armed with Sotas came there and started injuring me, Bostan Khan and Muhammad Ishaque, my co-accused. Bostan Khan and Muhammad Ishaque alongwith Abdul Khaliq son of Muhammad Malik, Muhammad Isma il, Nazir Machhi, and Nazir Ahmad Shariq pelted stones and brick-bats and also with small Dandas in our self-defence and thus inflicted blows to the deceased and the injured P.Ws., on the ground and also on the rooftop mentioned above. Fazal Hussain (deceased) had given a Dang blow on my head and when he reached a little, he was hit by the pelting of stones from the rooftop as well as from the ground. Muhammad Malik accused was also injured when he turned up at the place of occurrence, almost at the end of the occurrence, by stones pelting. He had come to separate the parties. Fazal Hussain son of Abbas A.I (deceased) and the inured P.Ws. In this case, were injured in this manner and I alongwith Muhammad Ishaque, Bostan, and Muhammad Malik, my co-accused were injured in the manner mentioned above.
32. A cross-case at my instance was registered against Fazal Hussain deceased, Muhammad Lateef, Ajmal Lateef, Fazal Hussain son of Zaman Mehdi, Dilshad, Abdul Qadeer and Abdul Qadoos P.Ws. Of this case and Abdur Rashid son of Nawab Khan and Fida Hussain son of Fazal Hussain and they are facing trial side by side, with the present case.
33. Abdul Khaliq, Muhammad Ismaeel, Nazir Machhi and Nazir Ahmad Shariq had also acted in our self-defence.
34. During the investigation, Malik Zafar A.I, then S.H.O., Ahmad Khan Chaddar D.S.P. Chakwal and Malik Aslam Bhatti, D.S.P. Had investigated the present case as well as the counter case at my instance under section 325/148 read with section 149, P.P.C. And had declared my co-accused Jamshed, Zafar, Bashir, Hasnat, A.I Asghar, Abdur Razzaq, Tariq Mahmood, Muhammad Akbar, Muhammad Afzal, Shahsawar and Muhammad Malik to be innocent and to have not participated, in the present occurrence."
35. The learned counsel for the defence has contended that the genesis of the fight is not known, it is shrouded in mystery, because the enmity which has been given as motive, is very remote one, and it cannot ignite the fight, on the day of occurrence. He has further contended that due to the enmity the evidence of the injured eye-witnesses, though they may be present, cannot be believed, unless it is corroborated by independent evidence, which is lacking in the present case. The learned counsel for the defence further urged that the prosecution has implicated so many innocent persons in the present case as had been deposed by the Investigating Officer Zafar A.I (P.W.11). The learned counsel further urged that Dilshad has suppressed the injuries which he received on his testicles, had Abdul Lateef appellant been in possession of stick he would not have in a desperate manner caught hold his testicles, which belies the prosecution story and Augurs the defence plea. Learned counsel further submitted that it has been the Ending of the trial Court, there was no pre-concert, the fight ensued all of a sudden, hence every person is responsible for his own act, the conviction of the appellants Nos.1, 2 and 3 under section 302, P.P.C. Is not warranted by law.
36. The learned counsel further submitted that the presence of brick bats and Roras on the spot as deposed by the Investigating Officer proves that it was the complainant party which had opened the attack, at the shop of barber Muhammad Mushtaq, and then in self-defence, the appellants, caused injuries to the injured P.Ws. The learned counsel in support of his submission has placed reliance on Arif Nawaz alias Goldy and 2 others v. The State PLD 1983 Lah. 594; Nadeemul-Haq Khan and others v. The State 1985 SCMR 510; Allah Rakha v. The State 1985 SCMR 453; Punhoon and 9 others v. The State 1972 P Cr. L J 1336; and on the principle of free fight referred to Lai Khan and another v. The State 1976 P Cr. L J 1437; as well as Syed A.I Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and also based his submission on Mashal Khan v. The State PLD 1988 SC 25.
37. The learned counsel has also challenged the recovery of Sotis at the instance of the appellants and submitted that these weapons of crime were not stained with blood, hence no corroboration can be sought on the basis of these recoveries.
38. I have given my anxious consideration to the submissions of the learned counsel referred above. It is no doubt true that in the present case, the parties are at logger heads with each other, and in view of, this, there uncorroborative evidence cannot be accepted on its face value. The injuries suffered by the eye--witnesses no doubt prove their presence, but this fact alone is not sufficient to prove that what they deposed in the Court is truth, when they have falsely implicated so many innocent persons. The mere presence of eye-witnesses is not sufficient to warrant the conviction in this case, when evidence is coming from the mouth of highly interested and inimical witnesses, without any independent corroboration.
39. I agree in these circumstances, the Court has to look for some independent corroboration against each appellant, in order to warrant their conviction for the role attributed to them. Individually and collectively. The appellants have taken up the plea of self-defence, but the nature and number of injuries suffered by the complainant party negate that right. In the case of Ahmad and 3 others v.
40. The State PLD 1971 SC 720 the following law relating to right of) private defence of person and property was laid down:- "The exercise of the right of self-defence of body or property is subject primarily to the restrictions contained in section 99 of the Penal Code. One basic restriction in this behalf is that no harm is to be caused other than what is absolutely necessary for the exercise of the right of self---defence. If the harm caused to the offending party is out of all proportion to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right, the right of self-defence will stand completely negatived. This right is available only if it is rooted in good faith and no intention is manifested by the circumstances of doing more than is necessary for the purpose of self---defence."
41. The finding of the trial Court that it was a sudden flare up, and no party has taken into confidence the Court about the immediate cause of fight is upheld, hence everybody would be responsible for his own action.
42. Keeping this guideline in view, there is no corroborative piece o evidence against Muhammad Malik, injury attributed to him, can be caused by brick bats or Rorras, he is an old and sick man, his participation is doubtful. Though he has not filed any appeal, hence in exercise of my revisional powers under section 439, Cr.P.C. I acquit him. I find there is sufficient evidence on the record, to hold that Muhammad Lateef, Ishaque and Afzal appellants caused injuries to Fazal Hussain (deceased) which were individually and collectively sufficient to cause his death in the ordinary course of nature, as per evidence of Dr. Shahid Nawaz Malik (P.W.5), but they have exceeded the right of private defence, and their case fairly and squarely falls within the ambit of section 304, Part 1, P.P.C. They are accordingly convicted under section 304, Part 1, P.P.C. And sentenced to 10 years'
43. R.I. Each with a fine of Rs.10,000 each, in default two years' R.I. The fine if recovered, Rs.8,000 from each appellant be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The convictions of the remaining appellants are maintained but their sentences are reduced as under:- (1)The sentence of Akbar under section 325, P.P.C. Is reduced from three years to two years' R.1. But his sentence of fine is maintained.
44. (2)The sentence of Zafar Ahmad under section 323, P.P.C. Is reduced from one year to six months'
45. R.I.
46. (3)The sentence of A.I Asghar under each count under section 323, P.P.C. Is reduced from one year to six months' R.I.
47. (4)The sentence of Abdur Razzaq under section 325, P.P.C. Is reduced from three years to two years'
48. R.I.
49. (5)The sentence of Zameer Akhtar under section 323, P.P.C. Is reduced from one year to six months'
50. R.I.
51. (6)The sentence of Bostan Khan under section 323, P.P.C. On two counts is reduced from one year to six months' R.I.
52. (7)The sentence of Shahsawar under section 323, P.P.C. On three counts is reduced from one year to six months' R.I.
53. The sentence of fine in each case and direction in default of payment as also compensation of the trial Court is maintained. The substantive sentences of A.I Asghar, Bostan Khan and Shahsawar shall run concurrently. The appeal is disposed of accordingly. These appellants are on bail. They shall be arrested and sent to prison to serve the remaining part of their sentences. All the appellants are given the benefit of section 382-B, Cr.P.C.
54. As I have already held that the principal accused Muhammad Lateef, Ishaque and Muhammad Afzal who have been sentenced under section 302, P.P.C. Are liable under section 304, Part I, P.P.C.
55. Hence the revision petition No. 116 of 1987 for enhancement, of their sentences from imprisonment for life to death is without any legal force and is dismissed in limine.
56. SA./M-1234/1