Muhammad Amir (23) and Muhammad Ashfaq (21), brothers later se were sent up by Maika Hans Police of Sahiwal District to face trial under sections 452/34, 323/34 and 302J34, P. P. C. They were tried by the learned Additional Sessions Judge who vide the impugned judgment dated the 8th of November 1968, acquitted them of charges under section 452, P. P. C. But convicted them under section 325/34, P. P. C., with an award of three years' R. I., each and a fine of Rs. 2,000 or further one year's R. I. Each in default of payment thereof. They were also convicted under section 323/34, P. P.
C. With an award of a fine of Rs. 200 each or three months' R. I. In default of payment of fine. The fine of Rs. 2,000 awarded on the first count was in the event of recovery to be paid to the legal heirs of Muhammad Akram deceased. Feeling aggrieved they have preferred this appeal.
2. The relevant background of the dispute between the parties culminating in the death of Muhammad Akram deceased, first cousin of the, appellants, briefly is that Ghulam Mustafa, father of the appellants and brother of Shah Muhammad complainant, was a candidate for the post of Lambardar in village Malka Hans during the lifetime of his father Sadiq Muhammad. Accordingly; he prevailed upon the latter to transfer two squares of land in has name on the understanding that the same would be re-transferred in the name of Sadiq Muhammad aforesaid as soon as he was appointed a lambardar. He, however, did not succeed in his efforts in this regard but thought fit to retain the two squares of land in his own name. Sadiq Muhammad died about eight or nine years, prior to the occurrence and after some time thereafter Ghulam Mustafa even stopped giving the share of produce of the two squares to his brother Shah Muhammad complainant, father of Muhammad Akram deceased. Accordingly, the relations between the two brothers got strained. On the 24th of June 1967, the two appellants wanted to prepare mud for the construction of the outer wall of their house shown in the site plan Exh. P. A. And dug earth for the purpose in the public street at point No. 6. They pumped in water from the hand-pump of Shah Muhammad complainant' which is also indicated in the site plan. According to the prosecution version, as set out by Shah Muhammad in his police report Exh. P. J. He and his son Muhammad Akram were present in their house when at about noon time the two appellants armed with sticks came there and started pumping the water at the complainant's hand pump into the mud-pit in the street to which the complainant and his son took exception. This led to an altercation whereupon Muhammad Ashfaq appellant caught hold of Muhammad Akram deceased while Muhammad Amir gave him a long blow on the head which felled him. Both of them then caused injuries to Shah Muhammad complainant who raised an alarm which attracted Ghaus Muhammad and Ghulam Farid P. Ws.
Who saw the occurrence. Muhammad Akram was removed in a state of unconsciousness to D. H.
Q., Hospital, Sahiwal on the same day, and was medically examined by Dr. Wasim Akhtar P. W. I at 4-15 t5 m. Who vide his M. L. Report Exh. P. V. Found a contused wound 3-- ' x -- ' x, bone deep on the right front-parietal region on bead. The injury was kept under observation and was caused by a blunt weapon.
3: At about 6-00 p.m. Vide ruqqa Exh. P. M. The doctor informed the S. H. O., Police Station, Sahiwal Saddar regarding the admission of Muhammad Akram in the Hospital, on the receipt of which Malik Muhammad Sultan A. S. I., P. W. 6 visited the hospital and his queries regarding the fitness of Muhammad Akram to make a statement were replied in the negative by the doctor, on the 25th of June 1967, the A. S. I. Recorded the statement of Shah Muhammad in the hospital on the basis of which the case was formally registered by Muhammad Shafi, Moharrir Head Constable at Police Station Malka Hans at 2-CO p.m. Vide report Exh. P. J./2. The A. S. I. Also prepared the injury statement of Shah Muhammad Exh. P. K. And Muhammad Akram Exh. P. L. On the following day, i.e. 26th June 1967, the doctor 'informed the S. H. O., Saddar Police Station vide letter Exh. P. M. That Muhammad Akram had expired at 1-15 a.m. The same day. On receipt of this information Malik Muhammad Sultan A. S. I. Proceeded to the hospital and prepared the inquest report Exh. P. N. And sent the dead body to the mortuary for post-mortem examination under the escort of F. C.
Muhammad Akram P. W. 4.
4. The post-mortem examination of the dead body of Muhammad Akram deceased was conducted by Dr. Wasim Akhtar who had examined him earlier, on the 76th of June 1967 at 1-15 p.m.
Vide his post-mortem report Exh. P. X. The doctor found that the right side of the frontal right parietal, and the right temporal bones were fractured. The facture line was extending down on the base of skull. The clotted blood was present in the sub dural space and extra dural space. Death in the opinion of the doctor was due to shock and inter-cranial haemorrhage as a result of the extensive fracture of the skull on account of the blunt weapon injury which was sufficient to cause death in the ordinary course of nature.
5. On the 24th of June 1967, the two appellants got themselves medically examined by Dr. Muhammad Ashraf, Medical Officer, Pakpattan, (P. W. 2) and vide his M. L. Report Exh. P. N. He found five contused wounds and one abrasion on the person of Muhammad Amir appellant.
6. The same doctor, vide his M. L. Report Exh. P. A. A. Found on the person of Muhammad Ashfaq appellant, three contusion marks, a swelling and an abrasion.
All the injuries sustained by the appellants were declared simple in nature caused by blunt weapon.
7. It would be pertinent to observe in this context that on the 25th of June, 1967, at 11-15 a.m., before the case was formally registered against the appellants, a report giving the counter version was lodged at Malka Hans Police Station by Muhammad Saeed, brother of the appellants. According to this report, the appellants had already prepared mud for the construction of their wall by taking water from the hand-pump of Shah Muhammad complainant, when suddenly Shah Muhammad accompanied by his son Muhammad Akram deceased, his two nephews Muhammad Ghaus and Muhammad Ashraf appeared in the street armed with sticks. Shah Muhammad remonstrated as to why had the appellant taken water from his hand pump when they were not on speaking terms and then abused Muhammad Ashfaq. In retaliation the appellants also hurled abuses on them whereupon Shah Muhammad and his companions opened the attack on the appellants. Shah Muhammad and his son Muhammad Akram deceased gave darog blows to Muhammad Amir while Muhammad Ghaus and Muhammad Ashraf hit Muhamitiad Ashfaq. The appellants also dealt blows to the complainant party in self-defence. The occurrence was witness--sed by Muhammad Munshi and Barkat A.I of Chak No. 34/S. B. And Malik Muhammad A.I of Malka Hans. It was also admitted that Ghulam Mustafa, father of Muhammad Saeed, and the two appellants had grabbed the produce of two squares of land which his father Sadiq Muhammad transferred in his name.
8. The case was investigated by S. I. Muhammad Sadiq P. W. 16 who reached the spot on the 25th of June, 1967, took into possession blood. Stained earth vide memo. Exh. P. G. Shah Muhammad P. W.
Produced before him his own clothes i.e. Shirt Exh. P. 5, chadar Exh. P. 6, safa Exh. P. 7 and clothes of his son Muhammad Akram deceased i.e. Shirt Exh. P. 8, chador Exh. P. 9, Lungi Exh. P. 10 which were taken into posses--sion vide memos. Exhs: P. E. And P. F. Respectively. All the clothes were stained with blood. Saeed, brother of the appellants, produced before him blood-stained shirt Exh. P. 1 and vest Exh. P. 2 of Muhammad Amir appel--lant which were taken into possession vide memo. Exh. P.
B. Although the dates of arrest of the two appellants have not been mentioned either in the statement of the Investigating Officer or in the judgment itself yet from a perusal of the record it appears that Muhammad Ashfaq presumably at the time of his arrest produced a stick Exh. P. 3 which was taken into possession vide memo. P. K. Dated the 28th of June, 1967. Subsequently Muhammad Amir while in police custody appears to have led to the recovery pf stick Exit. P. 4 from inside the verandah of his residential house on the 6th of July 1967 which was taken into possession vide memo. Exh. P. D. The Sub-Inspector got prepared the site plan Exh. P. A. By Farooq Ahmad, Draftsman (P. W. 8). Having completed the investigation, the Sub-Inspector sent up the two appellants on charge: of murder, criminal trespass etc. At detailed earlier. It appears that only one packet containing blood-stained earth recovered from the spot was sent to the Chemical Examiner which, vide report Exh. P. CC. Was found to be stained with blood, but its origin could not be traced owing to disintegration as indicated by the Serologist's report Exh. P. DD.
9. At the trial, the prosecution case rested mainly on the testimony of Shah Muhammad complainant P. W. 13, Ghulam Muhammad, his tenant, P. W. 14, and Ghaus Muhammad, his nephew and son-in-law, P. W. 15.
10. In heir examination under section 342, Cr. P. C. The appellants admitted the dispute between the parties over two squares of land and denied the recovery of the sticks from them. Muhammad Amir appellant gave a detailed statement which in substance was an adoption of the report Exh. D.
F. Lodged by his brother Muhammad Saeed at the Police Station alleging that Shah Muhammad, has scald Muhammad Akram deceased, son-in law Ghaus Muhammad and tire latter's brother Muhammad Ashraf attacked them with sticks for having used their hand-pump for the preparation of mud plaster.
11. Having considered the evidence on the record, the learned trial Judge came to the conclusion that the intention of murder could not be spelt out, that the charge under section 452, P. P. C. Was not established and that it was more or less a case of free fight. Consequently the appellants were convicted under section 325/323/34, P. P. C. As stated earlier.
On behalf of the appellants the following contentions were raised before me:--
(1) That there was considerable delay in the lodging of the first informa--petition report which was not satisfactorily explained;
(2) that the motive lay with the complainant party and not with the appellants to initiate an attack;
(3) that Shah Muhammad complainant, the principal witness in the case, had deliberately suppressed as many as thirteen injuries suffered by the appellants and as such no reliance could be placed on his testimony;
(4) that the prosecution version as set out in the first information report and said to be established at the trial was discarded by the learned trial Judge who had impliedly accepted the defence version and yet not fully disbelieved the plea of self-defence which could be reasonably spelt out from the evidence on the record;
(5) that the finding given by the learned trial Judge that it was a case of free fight between the parties had no sound basis not having been borne out by the evidence on the record;
(6) that the version put forth by Shah Muhammad at the trial besides showing a marked improvement on the first information report would be belied by circumstances inasmuch as having already been injured at the hands of the appellants he could not have been able to cause as many as thirteen injuries to them; and
(7) that the appellants' plea of self-defence received ample support from the prosecution version itself inasmuch as having already received thirteen injuries they were justified in retaliating and causing injuries to the complainant and his deceased son in exercise of the right of private defence."
11. As regards the delay in the lodging of the report with the police I am not inclined to attach much importance to it. No doubt, the occurrence took place on the 24th of June, 1967, at noon-time and the report was not lodged by the complainant till about 24 boars thereafter in the D. H. Q. Hospital, Sahiwal. Although the Police Station stood at a distance of three furlongs from Malka Hans, which was the place of occurrence, yet obviously in a situation like this the complainant would be snore concerned with saving tire life of his son and accordingly without caring to report the matter at Malka Hans Police Station removed him to the D. H. Q. Hospital at Sahiwal. He admitted laving returned to Malka Hans for taking beddings and other necessary articles to the hospital and might as well have availed of this opportunity to lodge the report but his failure to do so could perhaps be attributed to his anxiety about the state of his son whom he had left in a precarious condition which demanded his immediate return without waste of time. Nothing would, therefore, turn upon the delay in the circumstances which appears to have been explained.
12. As regards the next contention relating to question of motive, admittedly previous bad blood existed between the parties on account of the dispute over two squares of land which the appellants' father had grabbed, but this only resulted in strained relations between the parties and by no means furnished an immediate motive for the complainant party to take the initiative.
Admittedly, the appellants had used the complainant's hand-pump for the preparation of mud- plaster which significantly enough was ready when the fight took place as admitted in cross- examination try Ghulam Muhammad (P. W. 14) and Ghulam Farid (C. W. 1). This would go to show that the complainant and his son were not already present in their house when the appellants started using the hand-pump otherwise they would have stopped them at the very outset. As such this would falsify the com--plainant's assertion that he and his deceased son were present in the house when the appellants insisted on forcibly using their hard-pump. Even other--wise though such a highhandedness would not be altogether inconceivable it is difficult to believe that the appellants should have insisted on forcible use of the hand-pump of the complainant particularly in view of the background of their strained relations. It is thus clear that the complainant and his son arrived at the scene after some time when their land-pump bad already been used for some time and the mud plaster was ready. In view Of this, the possibility of their having taken the initiative cannot be ruled out.
13. This brings us to the next contention, namely, that deliberate suppression was made by Shah Muhammad complainant of as many PFD thirteen injuries sustained by the appellants which found no reference what--ever in his police report. Obviously, such an omission could not be accidental or capable of being otherwise explained away. The inference is, therefore, inevitable that six injuries on the person of Muhammad Amir appellant, of which four were contused wounds on the head and five injuries sin that of Muhammad Ashfaq appellant on the left clavicle, left shoulder, right hypochondriacal right left forearms etc. Were sustained by them in the course of the same occurrence, as admitted by Shall Muhammad in his examination-in-chief and also indicated by their duration and the report (Exh. D. F.) lodged in this regard by their brother Muhammad Sated, were deliberately suppressed by Shah Muhammad complainant which considerably detracts from his truthfulness, and as such his testimony has to be taken with a grain of salt. No doubt, at the trial he had tried to explain these injuries of the appellants but the explanation besides being an improvement does not carry conviction either. He stated as follows:- "Ashfaq and Amir accused also gave me blows with their Bangs on my eye-brew and shoulder. I picked up a stick lying nearby and gave blows with it to both the accused in order to defend my son and myself."
14. Coming now to the next contention that the finding given by the learned trial Judge in regard to a free fight between the parties was not justified on the basis of the evidence on the record. I have no hesitation to saying that there is lot of substance in it. Having already come to the conclusion that the complainant and his son arrived at the scene when' the mud-plaster had already been prepared by the appellants by taking water from this hand-pump and having also inferred that in the circumstances the motive lay more with the complainant party to take the initiative, I am inclined to think that the theory of a free fight which in fact was nobody's case was no more than a conjectural hypothesis having no basis on the record. On the other band, case in favour of the plea of self-defence as raised by the appellants at the earlier stage by lodging a report with the police which was prior in time than that of the complainant can be clearly spelt out from the nature and number of injuries sustained by the parties, namely, three by the complainant side and thirteen by the appellants, the suppression of the later by the complainant and the inherent infirmities in the account given by him to which reference has already been spade in the foregoing discussion.
Obviously, as stated earlier in the above background, the motive lay more with the complainant party to taken the initiative. In any case, the possibility of the appellants having fought in self- defence cannot be ruled out. The proposition is not devoid of authori--ties. Reliance may be placed in this regard on Allah Ditta v. Emperor (AIR 1934 Lah. 696), Safdar A.I v: The Crown (PLD 1953 FC 93), Shamir v. The State (PLD 1958 SC (Pak.) 242) and State v. Khair-ur-Rehman (PLD 1960 Pesh. 50).
15. The upshot of the discussion, therefore, is that the convictions and sentences of the appellants cannot stand and are accordingly set aside. Their bail bonds shall stand discharged.