This judgment shall deal with and dispose of Criminal Appeal No.481 1987, as also the connected Criminal Revision No.404 of 1987, both arising out of the judgment, dated 2-7-1987.
2. A learned Additional Sessions Judge at Gujrat had tried Khadim Hussain, Khalid and Bashir Ahmad appellants alongwith 11 acquitted accused for the murder of Taje Khan and for causing injuries to Nazar Muhammad and Muhammad Arif P.Ws. After forming themselves into an unlawful assembly for the prosecution of its common object.
3. On the conclusion of trial, by the judgment now under challenge, he convicted the aforesaid appellants under section 304, Part I, P.P.C. And sentenced each of them to 10 years' R.I. And a fine of Rs.5,000 or in default to undergo one year's R.I. Each. They were also directed to pay a compensation of Rs.5,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to further undergo six months' R.I. Each. Aggrieved by these findings, where the appellants came up in appeal, Nazar Muhammad complainant filed a revision for the enhancement of their sentence.
4. The prosecution story in brief was that on the western side of the village (Ghural), where both the parties resided, there was a well-jointly owned by them. Iftikhar Ahmad accused had installed a peter engine on it with a view to draw out water for irrigating his land. This caused annoyance to the complainant party and on 23-1-1985 at about Deegarwela Nazar Muhammad complainant accompanied by Taje Khan (deceased) and Muhammad Arif P.W. Went to the well and stopped the peter engine' after protesting to Iftikhar Ahmad for causing damage to the well in that way as it was a joint property. Feeling offended by the behaviour of the complainant party, Iftikhar Ahmad accused went towards the village saying that he would teach them a lesson. Suspecting some foul play by the accused party, the complainant party also proceeded towards the village. When they reached near the house of Subedar Rehmat Khan, they were suddenly accosted by their adversaries. Khadim Hussain, Khalid and Bashir Ahmad appellants, besides Adalat Khan and Iftikhar acquitted accused were armed with hatchets, Mahla Khan, Riasat Ali. Barkat Ali, Inayat Khan and Asghar acquitted accused were armed with Sotas while Muhammad Aslam acquitted accused was empty handed. Muhammad Aslam acquitted accused raising a Lalkara caught hold of Taje Khan (deceased) Mahle Khan acquitted gave a Sota blow on his right hand. Khadim Hussain appellant gave him a hatchet blow on the front side of his head followed by Khalid appellant whose hatchet blow struck him on the back side of his head. As a result, Taje Khan fell down and when he was so lying Bashir appellant gave him a hatchet blow, hitting him on the left flank. He gave second blow with the blunt side on the left wrist of the victim. Then the assailants adverted towards Nazar Muhammad complainant and Riasat Ali acquitted accused gave him a Sota blow on his right little finger followed by Barkat Ali acquitted accused who gave him Sota blow on the left arm. Adalat Khan acquitted accused gave him a hatchet blow on the back side of his hand. As a result of these injuries he too fell down. Asghar and other acquitted accused caused him more injuries with their respective weapons on various parts of his body. Now came the turn of Muhammad Arif P.W. Who was attacked by Khadim Hussain appellant with a hatchet causing him an injury on his right ear, followed by Inayat acquitted accused who gave him Sota blow on his head, He also fell down and Asghar acquitted accused gave him a Sota blow on his head. Bashir Ahmad appellant and Mahle Khan caused him injuries on his head and left thigh. The victim raised alarm attracting Lal Khan and Usman Ali P.Ws. To the spot. They also saw the occurrence. Having achieved their mission the assailants went away. Ghulam Muhammad, Yaqub Ah, Javid, Shamim and Muhammad Nawaz armed with rifles went on firing in the air on the top of the house of Subedar Rehmat Khan. Taje Khan injured was taken to Kharian Hospital but he died on the way. The matter was reported to the police by Nazar Muhammad complainant and a case. Was registered against the appellants and the acquitted accused in the manner aforesaid. On the completion of investigation they were sent up to the Court of Session for trial.
5. On the commencement of trial, the prosecution produced as many as 13 witnesses. Dr. Shahid Raza Butt (P.W.1), who had performed post-mortem examination on the dead body of Taje Khan, gave the details of rive injuries as incorporated in the, post-mortem report (Exh. P.A.A). Injuries Nos.1 and 2, which were incised wounds located on the head, and injury No.3, which was an incised wound cutting the ribs and the vicerae underneath on the left side of lower chest and upper abdomen, were fatal and dangerous to life.
6. He also gave the details of rive injuries, which he found on the person of Muhammad Arif P.W. At the time of medical examination. They all were simple. He had also medically examined Nazar Muhammad complainant and found seven injuries on various parts of his body. All these injuries were caused by a blunt weapon and the one located on the little ringer was grievous while the rest were simple. Nazar Muhammad (P.W.5) and Muhammad Arif (P.W.6) gave the eye--witness account. Their testimony finds reflection in the above narration of the prosecution case. They also deposed about the motive.
7. The remaining prosecution witnesses were formal.
8. The appellants and their acquitted accused denied the incriminating circumstances figuring against them in the prosecution evidence. Iftikhar Ahmad acquitted accused stated that on the day of occurrence when he was working at the peter engine he was attacked by Nazar Muhammad complainant and Muhammad Arif (P.W.6) and Taje Khan (deceased) and to save his life when he was running, Khadim Hussain appellant and Adalat Khan acquitted accused came to rescue him. According to him, the rescuers were also attacked and injured by the complainant party and on the alarm raised by them, people came from the village who caused injuries to Nazar Muhammad, Muhammad Arif and Taje Khan (deceased). Khadim Hussain appellant and Adalat Khan acquitted accused took up the same position as Iftikhar Ahmad had done. They produced Dr. Shahid Raza Butt (P.W.1) who proved three injuries on the person of Adalat Khan acquitted accused and three injuries of Khadim Hussain appellant. Two incised wounds on the head of Adalat Khan and an injury on elbow joint of Khadim Hussain appellant caused by a blunt weapon were declared grievous.
9. On the conclusion of trial three appellants were convicted and their 11 co-accused were acquitted, giving rise to the appeal and the revision. It is argued on behalf of the appellant that the parties were related to each other and their being no previous enmity, they happened to fight over a petty matter as a result of which three persons were injured from the complainant side, out of whom Taje Khan succumbed to his injuries, while two persons were grievously injured from the accused side. According to the learned counsel, the accused party caused injuries to their opponents in the exercise of their right of self-defence and they committed no offence but if at all they, to some extent, exceeded their right of self-defence they had already undergone sufficient ordeal by having been in the prison for about three years before their release on bail under section 426, Cr.P.C. And the sentence already undergone by them would serve the ends of justice.
10. It is argued on behalf of the State and the complainant/petitioner that the accused party displayed high-handedness, which resulted in the death of Taje Khan and the sentence of the appellants needs to be enhanced.
11. The medical evidence as discussed above, indicates that during the occurrence Khadim Hussain appellant suffered three injuries, out of them the one located on his elbow was grievous, while Adalat Khan acquitted accused had suffered two grievous with sharp-edged weapon on his head besides a simple injury on his arm caused by a blunt weapon. On the other hand, Taje Khan (deceased) suffered three grievous injuries, two on the head and one on the left flank, besides two simple, while Muhammad Arif P.W. Suffered five simple injuries and Nazar Muhammad complainant suffered seven injuries all simple, except one on the little finger which was grievous. Thus, it will be seen that the injuries suffered by the two persons from the accused side were no less serious than those suffered by the injured from the complainant side. The nature of the injuries shows that both the sides were armed with deadly weapons and they were fully prepared to face each other. In these circumstances, it is difficult to determine as to who was the aggressor and who was the aggressed. In any case, the right of private defence was available to the accused party who, if at all, exceeded their right, had already undergone about three years' R.I. And this is sufficient punishment for them. Thus, where the conviction of the appellants under section 304, Part I, P.P.C. Is maintained, their sentence is reduced to the one already undergone by them. The appeal is accepted only to this extent. Consequently the revision petition is dismissed in limine.