' This appeal has arisen from the judgment, dated 9-9-1987 pronounced by the learned Sessions Judge, Bahawalnagar, who had convicted Muhammad Yar, Shafiq and Muhammad Rafiq appellants under section 302/34 of the P.P.C. And had awarded them imprisonment for life each and a fine of Rs,5,000 each. In default of the payment of fine, they were directed to suffer one year's R.I. Each. A moiety of fine, if recovered, was directed to be paid to the heirs of the deceased as envisaged under section 544-A of the Cr.P.C. Muhammad Rafiq and Shafiq appellants, who were found guilty under section 323/34 of the P.P.C. For causing simple hurt to Munir P.W., were awarded six months' RI. Each. They were also fined Rs,500 each or to suffer one month's R.I. Each in default thereof. The fine, if recovered, was to be paid to Munir Ahmad P.W. To the extent of one-half,
2. The brief facts of this case are that both the parties lived in close proximity to each other. They were the tenants of Makhdooms and were themselves landless. There was a dispute regarding a passage near their houses. On 7-64987, at about 8 or 9-00 a.m., Abdul Sattar, the father of Mushtaq Ahmad complainant, tried to pass by that lane and he was restrained from doing so by Shafiq. Abdul Sattar said that nobody could restrian him from passing through that lane. Shafiq and Muhammad Rafiq are the real brothers and Muhammad Yar is married to the mother of Shafiq and Rafiq after the death of their father. Shafiq and Rafiq picked up Sotis lying there and Muhammad Yar held a wooden mattock. Muhammad Yar struck his wooden mattock on the region of the head of Abdul Sattar, who fell down. When he was lying prostrate, he was given Soti blows by Rafiq and Shafiq. Munir Ahmad, the son of Abdul Sattar, intervened to save his father, who was given blows by Rafiq and Shafiq on his head and legs. Manak and Bashir witnessed this incident, who restrained the appellants from making further harm. Abdul Sattar became unconscious on the spot. He was taken to his house wherefrom he was transported to the local hospital. As soon as he arrived in the hospital, he succumbed to the injuries before the doctor could be contacted.
3. Mushtaq Ahmad, the son of Abdul Sattar, lodged F.I.R. Exh.P.I. At 5-30 p.m. The police went to the spot and collected the blood-stained earth from there and sent the dead body of Abdul Sattar to the mortuary for autopsy. Dr. Capt. Abdul Majeed P.\V.1, performed the autopsy on the dead body of Abdul Sattar and had listed the following injuries on his corpse:-
(1) Bluish swollen area about 10 c.m. Circular behind left ear and on left perital area.
(2) One contusion mark 2 c.m. x 2 c.m. Just behind the left ear.
(3) Neck swollen through all sides.
(4) Bluish swollen area about 15 c.m. Circular just behind right ear and on right perital area.
(5) Head swollen from its top.
(6) An area of 6 c.m. x 4 c.m. Swollen on the left knee joint. Direction oblique.
(7) An area of 3 c.m. x 1 c.m. Swollen on the right ankel joint with oblique direction.
(8) Multiple contusion mark on an area of 21 c.m. x 18 c.m. On the back of the chest and abdomen.
Each mark measuring 8 c.m. x 3 c.m. And oblique in direction.
' He has opined that there was an external haemotoma in the brain and fracture of scalp bone and the death occurred due to the injury on the head, which was sufficient to cause death in the ordinary course of nature. He has added that injuries Nos.1, 4 and 5 were the result of independent blows whereas injuries Nos.1 and 2 could be the result of one blow.
4. The same doctor had examined Munir Ahmad on the same day and had observed the following injuries on his person:--
(1) An area of 4 c.m. x 2 c.m. Swollen on the left perital region about 8 c.m. Above the left ear.
Direction is oblique.
(2) An abrasion mark 3 c.m. x 1 c.m, on the front of right leg about 12 c.m. Below the knee joint.
Direction is oblique.
(3) An area of 10 c.m. x 6 c.m. Swollen on the outer part of right leg about 4 c.m. Below the knee joint. Direction is oblique.
(4) One contusion mark 8 c.m. x 2 c.m. On the left calf about 20 c.m. Below the knee joint. Direction is oblique.
(5) An abrasion mark 1 c.m. x 1/2 c.m. On the darscem of left index finger on its middle phalonx.
Direction is oblique. All the injuries were found simple caused by a blunt weapon.
5. Makhdoom Muhammad Rafiq produced the appellants before the police on 12-6-1987. On 15-6- 1987 Muhammad Shafiq appellant produced his Soti P.3, which was not stained with blood and it was taken into possession vide memo. Exh.P.F. On the same day, Muhammad Rafiq produced his Soti P.4, which had no stains of blood and it was taken into possession vide memo. Exh.P.G. On the same day, Muhammad Yar appellant produced his wooden mattock P.5 which was not stained with blood and it was taken into possession vide memo. Exh.P.H. After the completion of investigation, the challan of all the appellants was submitted and as a sequel to the impugned trial, they were awarded the aforementioned punishment.
6. Mushtaq Ahmad, the complainant, appeared in the witness-box as P.W.7 and has narrated the facts that on account of a dispute regarding the passing through a lane, Muhammad Yar gave blows on the head of Abdul Sattar with his mattock and Rafiq and Shafiq gave Soti blows to Abdul Sattar on his head, back and legs. He has added that Munir, his brother, was injured when he had gone to intervene and Shafiq and Rafiq gave Soti blows on his head, hands and legs. When cross- examined, he clarified that there was an open space in front of the house of Muhammad Yar appellant, who had no enclosing wall and the complainant had constructed mangers at that place and had also installed a handpump, which was his personal property. He has deposed that Munir Ahmad, his brother, walked to the hospital on foot.
7. Munir Ahmad P.W.8, who is the son of Abdul Sattar, was injured during this fight. He has testified that his father was given mattock blows by Muhammad Yar appellant on his head and Rafiq and Shafiq also gave Soti blows on his head, back and legs and on his intervention, Shafiq and Rafiq injured his head and legs. It was suggested to both the ocular witnesses that Muhammad Yar and Shafiq appellants were preparing a rope in front of their house and when Abdul Sattar deceased passed by that way, the rope was entangled in the neck of the deceased, who abused Shafiq appellant and gave him shoe beating and in self-defence, Muhammad Yar gave blows to Abdul Sattar, which was a sudden affair. This suggestion was denied by both the ocular witnesses. Mr. Abdul Rehman Tayyib, Advocate, learned counsel for the appellants, has scrupulously conceded that the defence taken by the appellants is not credible.
8. The story of recoveries of mattock and Sotis from the appellants has not been believed by the learned trial Court because there were no blood stains on the weapons of recovery and they did not connect the appellants with this crime.
9. When examined under section 342 of the Cr.P.C. Muhammad Yar and Shafiq appellants have taken the same defence that when the neck of Abdul Sattar was entangled in a rope being prepared by Muhammad Yar and Shafiq appellants, then Abdul Sattar upbraided Shafiq and gave him shoe beating and, in that process, he was given blows by Muhammad Yar appellant and Munir was injured when he tried to intervene. He has stated that Rafiq was not present on the spot.
10. The learned counsel for the appellants has not defended the case of Muhammad Yar appellant.
He has simply argued that in a sudden flare-up, the individual liability of each appellant is to be taken into account. He could not produce any precedent in support of his contention. He has however, cited Muhammad Zumerred and another v. The State 1988 SCMR 306, Bashir Ahmad and others v. The State PLD 19 SC 86 and Pehlwan v. The Crown 1969 SCMR 641. In 1988 SCMR 306 the benefit of exception 4 to section 300 of the P.P.C. Was extended to the case of the assailants. In this case, there was actually no fight between the parties because Abdul Sattar was not armed nor did he resort to grappling and he was injured by the appellants without any attack from the side of Abdul Sattar. In this manner, exception 4 to section 300 of the P.P.C. Is not attracted to this case. In Bashir Ahmad and others v. The State PLD 1988 SC 86, it has been held that common intention can develop during the occurrence and reverse can also happen. This precedent does not assist the appellants at all. In Pehiwan v. The Crown 1969 SCMR 641, the death was caused on account of the injury on the head caused by 'A', one of the assailants, and death was caused due to the injury struck by 'A' as well as due to rupture of spleen on account of beating given by the other assailants and it was held that the offence was committed under section 325/149 of the P.P.C. And not under section 302 of the P.P.C.
11. In this case, the head injury was caused by all the appellants and, in this manner, the principle enunciated in the above quoted precedent cannot safely be extended to the case of the appellants.
12. Although it was a sudden quarrel yet all the appellants gave head injuries to Abdul Sattar deceased. Muhammad Rafiq and Shafiq gave Soti blows to Munir Ahmad and caused him simple injuries. In the circumstances, their conviction under section 302/34 of the P.P.C. And the conviction of Muhammad Rafiq and Shafiq appellants under section 323/34 of the P.P.C. Are unexceptionable.
I see no merit in this appeal and dismiss the same.