MUHAMMAD MUNIR KHAN, J: -- This Criminal Appeal No.53 of 1989 and connected Murder Reference No.45 of 1989 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 26-2-1989, while acquitting Zulfiqar and Sumar, convicted Akbar Shahbaz (22), Akram alias Akree (25) and Saleem alias Gola (25) appellants under section 302/34, P.P.C. For the murder of Sajid Masih (15) and under section 323/34, P.P.C. For causing hurt to Shahbaz Masih P.W.8, Ayyub P.W.9 and Javed P.W.11 and sentenced them as under:-- Under section 302, P.P.C.
(i)Akbar Shahbaz appellant:Death and a fine of Rs.10,000, in default thereof 3 years'
R.I.
(ii) Akram and SaleemImprisonment for fife and a fine of Rs.10,000, in default thereof 3 years' R.I. each.
Under section 323,/34, P.P.C.
All the three appellantsOne year's R.I. each.
' The sentences were to run concurrently. It may be noted that no direction for the payment of compensation to the legal heirs of the deceased has been given in this case.
2. The occurrence took place on 13-11-1987 at 10-00 a.m. In a lane outside the house of Shahbaz Masih P.W.8 situate in Chak No.72/10-R at a distance of 6 miles from Police Station Saddar, Sahiwal.
F.I.R. Exh.P.R. Was lodged by Shahbaz Masih P.W.8, brother of the deceased on the same day at 1-15 p.m. And was recorded by Khawar Zaman, S.I. P.W.12. There was no previous enmity between the parties.
3. The prosecution case is that on the fateful day at about 8-00 a.m. Shahbaz P.W.8 and Sajid deceased while on their way to the house were passing near the Bheni of Chaman when Saleem son of Chaman not only forbade them from passing near his house but also abused them whereupon Shahbaz Masih slapped him. In the meantime, Mst. Zainab, mother of Saleem, came there and started abusing Sajid Masih and Shahbaz Masih P.W.8. Sajid Masih pushed her and she fell on the ground. The complainant and Sajid Masih then came to their house. After about 2 hours of this incident Sajid Masih and Shahbaz Masih P.W.8. Ayyub Masih and Javed Masih were sitting in front of their houses, when Akbar Shahbaz appellant carrying dagger in - his hand, Akram alias Akree appellant armed with .12 bore gun, Sumar, Zulfiqar and Saleem armed with Sotas came there. They raised Lalkara that they will teach lesson for quarrel with Saleem and his mother. Akbar Shahbaz stabbed Sajid Masih in his abdomen, who fell down. Sumar and Saleem gave Sota blows to Shahbaz Masih P.W.8. When Ayyub Masih tried to intervene, Saleem appellant gave him two Sota blows. Akram appellant gave blow with the Butt of gun on the left arm of Javed Masih. Zulfiqar (acquitted accused) inflicted Sota blow on the hand of Javed Masih. Saleem also gave Sota blow on the left leg of Javed P.W. During the scuffle some of the accused received injuries. The accused then ran away taking weapons with them. Sajid Masih and the other injured P.Ws. Were removed to Civil Hospital, Khanewal. Sajid Masih succumbed to the injuries in the way.
4. On 13-11-1987, Dr. Naeem Haider Gardezi, P.W.1 examined Ayyub P.W. And found following injuries on his person: "(1) Lacerated wound 1.5 x 0.25 c.m. In frontal region of scalp 13 c.m. Above the left eye-brow.
(2) Swelling 4 x 3 c.m. Just above the left eye-brow."
The injuries were caused by blunt weapon and were simple in nature.
On the same day he examined Shahbaz Masih P.W.8 and found following injuries on his person:- "(1) Swelling 9 x 8 c.m. Just above the knee joint.
(2) Abrasions two in number, measuring 1 c.m. Each on the back of left ring finger one c.m. Apart."
Both the injuries were simple in nature and were caused by blunt weapon.
On the same day he examined Javed Masih P.W. And found following injuries on his person:- "(1) Swelling 6 x 5 c.m. Just above the left wrist joint.
(2) Two abrasions 1 c.m. Each on the dorsal aspect of right index finger.
(3) Swelling 10 x 6 c.m. On left calf 6 c.m. Below the left popliteal fossa."
All the injuries were simple and were caused by blunt weapon.
On the same day he conducted post-mortem examination on the dead body of Sajid Masih deceased and found that there was a stab wound 4 x 2 c.m. On antero-lateral surface of right lower chest 15 c.m. Below and lateral to the right nipple. In his opinion, the death had occurred due to severe haemorrhage and shock as a result of injury found on the person of the deceased.
5. The appellants were arrested on 14-11-1987 by Khawar Zaman, S.I., P.W.12. On 14-11-1987 Akbar Shahbaz appellant led to the recovery of blood--stained dagger Exh.P.3, which was taken into possession vide memo Exh.P.M. Attested by Nathanial Masih (not produced) and Khawar Zaman, S.I.. P.W.12. Akram appellant produced gun Exh.P.4 which was taken into possession vide memo.
Exh.P.N. Attested by the same witnesses. On the same day Saleem produced Sota Exh.P.7 which was taken into possession vide memo. Exh.P.Q. Attested by the same witnesses.
6. To prove its case, prosecution produced 12 witnesses. Shahbaz P.W.8, Ayyub, P.W.9, Khurshid P.W.10 and Javid Masih P.W.11 have given the ocular account of the occurrence. They have fully supported the prosecution case as detailed above. They claim to have seen the appellants and their co-accused causing death of Sajid Masih and injuries to the injured P.Ws. Jan P.W.7 and Khawar Zaman, S.I., P.W.12 have supported the incriminating recoveries from Akbar Shahbaz and Saleem appellant. Dr Naeem Haider Gardezi P.W.1 has proved the post-mortem examination report of Sajid Masih and medico-legal reports relating to the injuries of Shahbaz Masih P.W.8, Javed Masih and Ayyub Masih P.Ws. Dr. Jehangir Shahzada P.W.5 had examined Akbar Shahbaz appellant on 15-11-1987. He found following injuries on his person:- "(1) Contused swelling 9 x 9 c.m. On the darsum of left hand.
(2) Contused swelling 10 x 3 c.m. On the right side of upper arm."
On the same day he examined Akram Masih appellant and found following injuries on his person:-
(1) Lacerated wound 2.5 x 1 c.m. On the back side of forearm 9 c.m. Below the right elbow joint.
(2) Abrasion 1 x 1 c.m. On the right side of lumbo sacral area."
The injuries found on the person of both the appellants were caused by blunt weapon and were simple in nature. The rest of the evidence is more or less of formal nature.
7. When examined under section 342, Cr.P.C., Saleem appellant denied his presence and participation in the occurrence. Akbar Shahbaz pleaded right of self-defence. In reply to question.
"Have you anything else to say?" He stated:- "I am innocent. The prosecution vemlon is incorrect and has been fabricated. The correct version is that on the day of occurrence at about 8/9 a.m. Sajid Masih deceased accompanied by Javid Masih P.W. Trespassed into our cotton crop situated in Killa No.15 of Square No. 52 near our dhari. At that time cotton crop was ripe for picking. Sajid Masih deceased and Javid P.W. On the pretext of picking gross also picked cotton from our field stealthily and put the same in bundle. My mother Mst. Zareena Bibi noticed the deceased and Javid Masih committed the theft of cotton and caught them red-handed. The deceased Sajid Masih and Javid Masih P.W. Raised alarm which attracted Ayub Masih and Shahbaz Masih P.Ws. In the meantime I alongwith my cousin Akram Masih co- accused also reached the spot and helped my mother to take the thieves to our bhaini. We were however attacked by the deceased and his companion Ayub Masih. Ayub Masih had a pistol.
Shahbaz Masih had a dagger. Ayub Masih fired his pistol in order to threaten us and got released Javid Masih and Sajid Masih who also picked up the Sotas and joined their companions Ayub Masih and Shahbaz Masih. Shahbaz Masih caused dagger blow on the right arm of my mother while Sajid Masih and Javid Masih caused injuries with their Sotas which she received on her head and she fell down. I and Akram co-accused intervened to rescue my mother. We were also given beatings by Javid Masih and Sajid Masih who had been threatening the neighbours not to intervene at pistol point. I grappled with Shahbaz Masih and in the meantime the dagger which he was holding fell down. Sajid Masih deceased tried to pick up the dagger in order to stab my mother who was lying on the ground in injured condition, but I picked up the same the dagger immediately and Akram co-accused snatched Sota from Javid Masih and Akram co-accused caused injuries to Sajid Masih, Javid Masih, Ayub Masih and Shahbaz Masih in self-defence. Summer Masih, Zulfiqar Masih and Saleem Masih co-accused were not present at the time of occurrence. Similarly Khurshid and Fazal, P.Ws. Were also not present at the time of occurrence.
My mother, myself and Akram Masih were removed to D.H.Q. Hospital Khanewal by our relatives immediately where my mother was medically examined. I and Akram were also medically examined. We were still in the hospital. We informed the police about the occurrence first but the police did not register our case and apprehended us on the day of occurrence. The police dishonestly showed our arrest on 14-11-1987. The recoveries were planted upon us. The dagger and sticks were produced by the complainant which were planted on us. There was only one occurrence which took place near our dhari and police in order to help the complainant party purposely separated the same into two incidents. The blood-stained earth was taken by the police near our Bhaini "
Akram alias Akree appellant adopted the version of the occurrence disclosed by Akbar Shahbaz in his statement under section 342 Cr.P.C. The appellant did not give evidence on oath/solemn affirmation in disproof of the charge against them. However, they produced two witnesses in defence. Lady Doctor Mst. Zahid Khanum D.W.1 stated that she had examined Mst. Zarina, were of Chaman on L3-11-1987 and had found following injuries on her person.
"(1) Painful swelling 3 x 3 c.m. On left of head near the four finger above left ear.
(2) A lacerated wound 1 x 1/2 c.m. x bone deep on upper part of right of the forehead two finger above the right eye-brow.
(3) An incised wound 1 x 1/2 x 1/3 c.m. On lateral aspect of lower part of right forearm:"
The injuries were caused by blunt weapon and were simple in nature. Ahmad Din Patwari D.W.2 appeared to prove copy Exh. D.G of Khatuni of Canal Department.
8. While believing the prosecution version and the witnesses produced by it and disbelieving the plea raised by Akbar Shahbaz appellant, the trial Court has convicted and sentenced the appellants as stated above.
9. Learned counsel for the appellants argued that the prosecution has failed to prove its case beyond reasonable doubts; that the eye-witnesses are closely related to the deceased; that they have suppressed the injuries found on the person of Akbar Shahbaz and Akram appellants; that they have given contradictory statements; that the recoveries from the appellants are fake and that there is a reasonable possibility of the defence version being true. In the alternative, the learned counsel for the appellants argued that since there was, no previous enmity and only one blow was inflicted on the person of the deceased, therefore, the appellant could not have been punished under section 302, P.P.C. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
10. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have carefully reviewed the entire evidence that has been produced by the prosecution, the statements made by the accused under section 342, Cr.P.C., the statements made by the defence witnesses and the p circumstances appearing in the case. We find that there is no dispute with regard to the time of occurrence, the presence of Akbar Shahbaz and Akram Masih appellants, presence of the deceased, Shahbaz Masih P.W.8, Ayub P.W.9 and Javed Masih P.W.10 and to the facts that the deceased, injured P.Ws., injured appellants and Mst. Zarina were found injured by the Medical Officer examining them. So, the real question for determination is as to whether the occurrence took place in the manner as stated by the prosecution or in the manner as disclosed by Akbar Shahbaz appellant in his statement recorded under section 342, Cr.P.C. On our independent assessm ent of the evidence and the circumstances appearing in the case, we feel that the parties have not told the whole truth and have' tried to minimise the part played by them.
The prosecution witnesses have not satisfactorily explained the injuries found on the person of the appellants namely Akbar Shahbaz and Akram. The prosecution case, however, cannot be and should not be thrown away or rejected on account of this infirmity in the statement of the eye- witnesses. The defence version does not appeal to reasons. Had the occurrence taken place in the manner as stated by the defence, then Ayub Masih who was carrying a pistol (according to the defence story) would have killed Akbar Shahbaz appellant before he (Akbar Shahbaz) could inflict injury on the person of Sajid Masih deceased. It also does not stand to reason that Akbar Masih and Akram Masih empty handed could have caused the death of Sardar Masih and injuries to three prosecution witnesses after snatching dagger and Sota from them. Although the appellants could easily produce their sister Mst. Zarina in support of their defence version, yet no attempt has been made to establish their case, so much so the appellants have not given evidence on oath/solemn affirmation in their defence. So, it is not possible to hold that the accused party had acted in exercise of the right of private defence or person. In the aforesaid state of affairs, we feel that incompleteness of the tale told by the parties should not deter this Court from drawing proper inferences from the evidence and natural flow of the circumstances appearing in the case. From the evidence on file a legitimate conclusi6n can be drawn that it was in a free fight that Sajid Masih lost his life, three P.Ws. And the two appellants received injuries, for the reason that Mst. Zainab mother of Salim appellant had abused the complainant party whereon Shahbaz Masih P.Ws. Had beaten and insulted her. Therefore, this could bring the parties into conflict. By the facts of injuries on the members of the parties, it can safely be inferred that both the parties had armed themselves anticipating resistance from the other and were therefore, determined to have a trial of strength and it was in the course of that trial of strenght that Sajid Masih was killed, three P.Ws. And the appellants received injuries. So, each of the accused will be held responsible for his individual act.
11. Now we proceed to consider the criminal liability of each of the appellants. According to the prosecution case, Akbar Shahbaz appellant caused the death of Sajid Masih. Since it cannot be said that by causing the death of the deceased, Akbar Shahbaz had not acted cruelly or had not taken undue advantage of the situation, therefore, his act is not covered by Exception 4 to section 300, P.P.C. And the offence committed by him is a murder punishable under section 392, P.P.C.
Reliance may be placed on case reported as Abdur Rahman v. Cadai Khan and 3 others 1972 SCMR 676 in which the culprit causing the death of the deceased in a free fight was convicted and sentenced under section 302,. P.P.C. Akram Masih and Saleem Masih have not caused any injury to the deceased. So their conviction under section 302/34, P.P.C. Is not sustainable. Salim appellant had caused simple injury with blunt weapon to Shahbaz Masih, Ayub Masih and Javaid Masih P.Ws.
Akram appellant had caused simple injuries with blunt weapon to Javid Masih P.W. So, they are criminally liable under section 323, P.P.C, This brings us to the question of sentence of Akbar Shahbaz appellant. We find that there are mitigating and extenuating circumstances in his favour for lesser sentence inasmuch as he received injuries during the free fight. So, the sentence of death awarded to him by the trial Court is altered into imprisonment for life. The fine imposed by the trial Court and sentence in lieu thereof are maintained. We direct that the fine, if realised, will be paid to the legal heirs of the deceased. He will get the benefit of the provisions of section 382-B, Cr.P.C.
12. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of Akram and Salim under section 302, P.P.C. They are acquitted of the charge. The conviction of Akram and Saleem under section 323, P.P.C. Is upheld. They are in jail for more than a year. So, the sentence already undergone by them would meet the case. They shall be released forthwith, if not required to be detained in any other case. The conviction of Akbar Shahbaz appellant under section 302, P.P.C. Is upheld but the sentence of death is NOT confirmed. As already stated, the death sentence is reduced to imprisonment for life.