MUHAMMAD MUNIR KHAN, J: - This Criminal Appeal No. 349 of 1987 filed by Noor Muhammad and Arif Hussain appellants and Cr A. No. 379 of 1987 filed by Walayat Ali and Tariq Mahmood appellants, connected Murder Reference No. 138 of 1987 and two Criminal Revisions Nos. 426 and 427 of 1987 filed by the complainant for the enhancement of sentence of the appellants and against acquittal of Inayat Ali and Akbar accused, arise from the judgment of learned Additional Sessions Judge, Gujranwala, whereby he on 11-6-1987, while acquitting Inayat Ali and Akbar co- accused, convicted Walayat Ali, Tariq Mehmood, Noor Muhammad and Arif Hussain under sections 302 and 323, P.P.C. For the murder of Muhammad lqbal (36) and for causing hurt to him and sentenced them as under: Walayat Ali and Tariq to death and a fine of Mehmood appellants under Rs.2,000 or in default section 302, P.P.C. Thereof further R.I. For one year each. They were directed to pay Rs.10,000 each as compensation to the legal heirs of the deceased or in default further R.I. For six months.
Noor Muhammad and Arif to six months' R.I. And a Hussain appellants under, fine of Rs.2,000, in default section 323, P.P.C. Further R.I. For one month each, for causing injuries to the deceased.
2. The occurrence took place on 27-7-1985 at 6-30 p.m. On a road situate in village Hoiwali, at a distance of 7 miles from Police Station Saddar, Gujranwala. F.I.R. Exh. P.K. Was lodged by Muhammad Nawaz P.W.11, brother of the deceased on the same day at 7-30 p.m. Recorded by Muhammad Riaz, Inspector P.W.13.
3. Muhammad Iqbal deceased was brother of Muhammad Nawaz complainant, P.W.11. Imtiaz Ahmad P.W.12 is the first cousin of the deceased. Noor Muhammad appellant and Inayat Ali, acquitted accused are real brothers. Walayat Ali appellant and Akbar, acquitted accused are brothers inter se. Inayat Ali, acquitted accused is father of Walayat Ali and Akbar. Tariq Mahmood appellant is son of Noor Muhammad appellant. Grandfather of Arif Hussain appellant is real brother of the grandfather of Noor Muhammad appellant. There was no serious enmity between the parties.
4. The motive allegedly was that a day before the occurrence,, the crops of Muhammad Tufail and Yousaf were damaged by the cattle of Inayat Ali, Noor Muhammad and Arif Hussain appellants.
Thereafter Tufail and Yousaf came to the village and took Muhammad lqbal deceased with them to the house of Noor Muhammad and Inayat Ali for complaining to them about the damage to their crops done by the cattle of Inayat Ali, etc. There took place an altercation between Muhammad lqbal -and others on one side and Inayat Ali and Noor Muhammad on the other side, The dispute was, however, patched up then and there. The incident, which led to the main occurrence of the murder of Muhammad Iqbal, as stated by Ikhlaq Ahmad P.W.7, was that at Degarwela on the fateful day, he, Yousaf and Muhammad Azam were passing near a syphon of a canal when Pervez and Muhammad Iqbal son of Muhammad Sharif met and join them for village Talwandi Musay Khan. Iqbal and Pervez were carrying their licensed gun with them. When they reached the dera of Azam, Noor Muhammad appellant armed with Toka, Akbar, acquitted accused, Walayat Ali and Tariq Mehmood appellants armed with dangs, suddenly appeared there ad sna0aed licensed guns from lqbal and Pervez declaring that they will teach lesson for the damage done to their crops a day before. During the process of snatching the gun from Pervez it went of and caused fire-arm wounds to Akbar accused. Noor Muhammad appellant gave toka blow on the head of Azam. Akbar then gave a sota blow on the shoulder of his (Ikhiaq) shoulder.
Walayat Ali accused gave him butt blow on the right shoulder Akbar then gave sota blow on his right shoulder. Tariq Mahmood gave him butt blow on his right thigh. Azam was also injured by them by butt and dangs blows. On this Ikhlaq Ahrnad and Azam ran away front the spot to their dera and reaching there they told the incident to Muhammad Iqbal deceased, Imtiaz Ahmad P.W.12, Nazir and Muhammad Nawaz (both not produced) whereupon the four above-named persons left towards the dera of Inayat Ali and Noor Muhammad for the restoration of guns and for settlement.
5. When the aforesaid persons were on their way to the dera of Inayat Ali and were just near the Eidgah, when the four appellants and the two acquitted accused namely Inayat Ali and Akbar emerged there. Inayat Ali and Walayat All were carrying guns. Tariq Mehmood appellant was armed with Sarya. Arif Hussain, Noor Muhammad and Akbar were holding sotas in their hands.
Akbar accused exhorted that lqbal should not be spared alive. On this Tariq gave Sarya blow on the head of Iqbal. Noor Muhammad gave sota blow on the back of Iqbal, who fell down. Arif Hussain gave sots blow on his buttock. Akbar again exhorted that Iqbal was still alive and he should be shot dead. On this Inayat All accused fired shot hitting Iqbal on his left shoulder. Walayat Ali appellant then fired sho L hitting underneath the arm of Iqbal. He succumbed to the injuries on the spot the appellants and the acquitted accused made good their escape taking weapons with them.
6. Dr. Haji Ikram P.W.4 had examined Ikhlaq Ahmad P.W.7 and Muhammad Azam (not produced) on 27-7-1985. He found four contusions on left scapula, right shoulder, right arm and right leg of Ikhlaq Ahmad P.W.7. The injuries were caused by blunt weapon and were simple in nature. He found two abrasions, one contusion and one incised wound on the person of Muhammad Azam. The injuries were simple in nature. One of the injuries was caused by sharp-edged weapon while the remaining were caused by blunt weapon.
Dr. Khalid Mehmood P.W.8 conducted post-mortem examination on the dead body of Muhammad lqbal on 2$-7-1985 at about 1-15 p.m. He found following injuries on his body: "(1)Lacerated wound 4 x 1/2 c.m. Upto bone blood-stained at the top of head lightly postural.
(2)Fire-arm wound 5 x 3 c.m. x 6 c.m. Below the top of axillary armpit, middle part of lateral side of chest going deep.
(3)Fire-arm wound 7 x 5 c.m. At the medial side of left upper arm at the junction of upper 1/3rd with lower 2/3rd upto muscles destroying the above area.
(4)Oval wound 1 x 1/2 c.m. At the junction of neck with chest with averted margins.
(5)Circular wound 2/3 x 2/3 c.m. x 3 c.m. Lateral to injury No. 4 at upper surface of chest.
(6)Abrasion 2 x 1 c.m. Over the top of right shoulder.
(7)Contusion 11 x 2 x 3 c.m. Below left scapula going obliquely posto--interiorly,
(8) Contusion 10 x 2 c.m. At the back of left thigh."
"(1) Multiple fire-arm wound 1 x 4 c.m. Each circular in shape on palmer surface of right hand inner side of right forearm of the same type two on medial surface of the right upper arm.
(2) Multiple fire wounds circular 1 x 4 c.m. Each right side of the abdomen and chest upto the in front of right thigh Corresponding holes on the Chadar, worn by him. He was wearing no shirt."
The injuries were caused by fire-arm and were simple in nature.
7. Walayat Ali, Tariq Mehmood, Noor Muhammad appellant and Inayat Ali acquitted accused were arrested by Muhammad Riaz, Inspector, P.W.13 on 9-8-1985 Akbar was arrested by him on 28-7- 1985. On 18-8-1985 Inayat Ali produced gun Exh.P.8 and his licence before Muhammad Riaz Inspector, P.W.13, which was taken into possession, vide memo. Exh. P.O. Attested by Muhammad Nawaz P.W.11 and Nazir (not produced). On the same day Noor Muhammad, Tariq Mehmood and Arif Hussain produced Sotas Exh.P.10, Sarya Exh. P.Ll and Sota Exh.P.12 (all not blood-stained), which were taken into possession by Muhammad Riaz, S.H.O. P.W.13 vide memo. Exhs, P.Q., P.S. And P.T.
Attested by the same witnesses. On 21-8-1985 Walayat Ali appellant produced two guns Exhs.P.13 and 14 from his house before Muhammad Riaz Inspector, P.W.13 which were taken into possession vide memo. Exh. P.U. Attested by Imtiaz Ahmad P.W.12 and Bashir (not produced). On 28-7-1985 Akbar, acquitted accused produced Sota Exh.P.7 (not blood-stained), which was taken into possession vide memo. Exh. P.M. Attested by the same witnesses. It may be noted here that no empty was recovered from the place of occurrence, so recovery of guns, from Walayat Ali and Inayat Ali were of no consequence.
8. To prove its case, prosecution produced 13 witnesses. Muhammad Nawaz P.W.11, Imtiaz Ahmad P.W.12 have given the ocular account of the; occurrence. Muhammad Tufail P.W.5 has deposed about the motive. Ikhlaq Ahmad P.W.7 and Muhammad Azam P.W.10 are the witnesses of first incident, which took place on the fateful day at Degarwela. All the aforesaid witnesses have fully supported the motive, first incident and the main occurrence as detailed above. Muhammad Nawaz and Imtiaz Ahmad P.Ws. Claim to have seen Tariq Mehmood appellant giving Sarya blow on the head of Muhammad Iqbal, Noor Muhammad and Arif Hussain giving sota blows on the person of Muhammad Iqbal deceased. They also saw Inayat Ali, acquitted accused, firing shot on the left shoulder and Walayat Ali appellant firing fatal shot at the deceased. Dr. Khalid Mahmood P.W.8 has proved the post-mortem examination report. Dr. Hafiz Muhammad Akram has proved the medico- legal reports of the injuries of Akbar acquitted accused. Dr. Haji Ikram P.W.4 has proved the medico-legal reports pertaining to the injuries found on the person of Ikhlaq Ahmad P.W.7 and Muhammad Azam P.W.10. Muhammad Nawaz P.W.11 and Imtiaz Ahmad P.W.12 and Muhammad Riaz, Inspector, P: te'.13 have supported the recoveries of weapons from the appellants and the acquitted accused. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C. The appellants and the acquitted accused denied all the incriminating circumstances. Inayat Ali, Walayat Ali, Noor Muhammad and Arif Hussain have denied their presence and participation in the occurrence. While raising the plea of self-defence Muhammad Akbar acquitted accused stated: "I was aggressed by the complainant side and the real facts are that in fact while I was coming out of my haveli in village Hoiwali, I entered on the bath going towards the Mosque of the village when all of sudden Iqbal deceased armed with gun alongwith Pervaiz P.W. Came at the said place. Iqbal deceased fired at me hitting me at my abdomen and chest and I received pellet injuries on my person. While he was going to fire at Iqbal deceased and in that another shot at me, I snatched the gun of Pervaiz and exercised my right of self-defence, I fired at Iqbal deceased and in that sequence, I had given butt blows on the head of Iqbal. Walayat my co-accused was not present at that time. He had come after the occurrence."
The appellants did not produce any evidence in defence although they gave evidence on Oath in disproof of the charges against them.
10. While giving benefit of doubt to Akbar and Inayat Ali, the trial Court acquitted them. Believing the motive, ocular account of the occurrence and the incident leading to the main occurrence as deposed by Ikhlaq Ahmad P.W.7 and Muhammad Azam P.W.10 and disbelieving the version given by Akbar, the trial Court had conceived the appellants as stated above.
11. Learn---' counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubts; that the eye-witnesses are closely related to the deceased; that the eye-witnesses have been disbelieved to the extent of Inayat Ali and Akbar accused; that the statements made by the eye-witnesses suffer from discrepancies and contradictions; that the occurrence did not take place in the manner as stated by lkhlaq Ahmad P.W.7 and Muhammad Azan: P.W.10, Muhammad Nawaz P.W.11 and Imtiaz Ahmad P.W.12 but in fact took place as stated by Akbar, acquitted accused and that in the circumstances of the case there was a reasonable possibility of the defence version being true. Conversely, the learned counsel for the State has supported the judgment of the trial Court. Mr. Talib H. Rizvi, the learned counsel for the complainant has decided not to press Criminal Revisions Nos. 426 and 427 of 1987.
12: 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, statements made by the appellants/acquitted accused under section 342, Cr.P.C., statements made by them on Oath in disproof of the charge against them and the circumstances appearing in the case. We find that on the side of the prosecution Muhammad Iqbal lost life and two witnesses namely Ikhlaq Ahmad P.W.7 and Muhammad Azam P.W.10 received injuries. On the side of the accused Akbar received two fire-arm wounds on his person. According to the defence there was one occurrence in which the deceased, two P.Ws. And Akbar accused received injuries, whereas according to the prosecution there were two incidents with an interval of about 1-2 hours and that Akbar accused and the two P.Ws. Namely Azam and Ikhlaq had received injuries in the first incident and Muhammad Iqbal deceased received injuries in the main occurrence. On our independent assessm ent of the evidence, we feel that the parties have not told the whole truth and have suppressed certain facts with intent to minimise the part played by them. The motive as stated by Muhammad Tufail P.W.5 could operate as a double-edged weapon as both the parties had an altercation and exchange of abuses. The occurrence took place on a public place. We feel that in the peculiar circumstances of the case, it is not possible for us to discard the prosecution case and the evidence produced by it altogether. At the same time, the defence version cannot be believed. Since this Court is not deterred by incompleteness of the tale told by the parties, from drawing proper inferences from evidence and the circumstances. So we propose to draw reasonable inference from the evidence and circumstances appearing in the case. The defence version that after receiving fir-arm wound, Akbar had not only caused the death of Muhammad Iqbal but had also given injuries to Ikhlaq and Muhammad Azam P.Ws. Appears to be false, inasmuch as after having received the fire-arm wounds found on his person, he could not have been in a position to injure his three opponents. Furthermore, the injuries found on the person of the deceased and the P.Ws. Were caused by different kinds of weapons, as such it can safely be inferred that number of the appellants causing death of the deceased and injuries to the P.Ws. Was more than one. In the aforesaid state of affairs a legitimate conclusion can safely be drawn that both the parties had armed themselves in full expectation of an armed encounter as each party anticipated resistance from other and they were determined to have a trial of strength. In this view of the matter, it is not possible to say that as to who was the aggressor. Due to retaliation shown over the damage of crops, a trivial incident, i.e. Exchange of abuses was sufficient to bring them into conflict. Since it cannot be said that the accused party had not acted cruelly and had not taken undue advantage of the situation, therefore, the act of the accused of killing Iqbal is not covered by exception (4) of section 300, P.P.C. And amounts to a murder punishable under section 302, P.P.C. Although each of the accused would be held responsible for his individual act on the basis of free fight.
13. Now we, proceed to consider the extent to which the appellants would be responsible for what occurred at 6-30 p.m. On the fateful day. The medical evidence shows that lqbal had died due to injury No. 2, which according to the prosecution was caused by Walayat Ali appellant. So relying on 'Abdul Rehman's v. Gadai Khan and 3 others' reported as 1972 SCMR 676 he (Walayat Ali) is held, criminally punishable under section 302, P.P.C. The injury attributed to Tariq' Mehmood appellant has not caused the death although it was not declared as grievous. So he would be punishable under section 325, P.P.C. Noor Muhammad and Arif Hussain had caused simple injuries with blunt weapon, so their act falls within the ambit of section 323, P.P.C. For all these reasons, the conviction of Tariq Mehmood appellant under section 302, P.P.C. Is set aside. Instead he is convicted under section 325, P.P.C. The conviction of Noor Muhammad and Arif Hussain recorded by the trial Court under section 323, P.P.C. Is upheld.
14. This brings us to the question of sentence. We have considered this, question with utmost care on our part. We find that since Muhammad Iqbal died in a fight in which one of the accused was also injured, therefore Walayat Ali does not deserve the maximum punishment prescribed under section 302, P.P.C. So the sentence of death awarded to him is altered to imprisonment for life. The fine imposed by the trial Court is maintained, in default of payment of fine he would undergo six months' R.I. Tariq Mehmood is in jail since 9-8-1985 i.e. For about 5; years. He is also entitled to the benefit of the provisions of section 382-B, Cr.P.C. We feel that the period of his imprisonment as an under-trial prisoner and as convict would meet the case. Noor Muhammad and Arif Hussain have remained in jail for about 9 months as under-trial prisoner and have also remained for some time as convicts. So the agony of trial, their detention as under-trial prisoners coupled with the sentence undergone by t would meet the case. The fine imposed on them by the trial Court and the sentence in lieu thereof is, however maintained. They will deposit the fine with the trial Court within 15 days of the receipt of this order pursuant to the above discussion, the appeal is partly accepted as stated above and the connected revisions are dismissed as having not been pressed.