' RUSTAM S. SIDHWA, J.--This judgment will dispose of criminal appeal Cr.A.32 of 1984 preferred by Zulfiqar and Allah Ditta appellants (hereinafter referred to as "the appellants") against the judgment of a Division Bench of the Lahore High Court, Multan Bench, dated 15-2-1983 maintaining their convictions under sections 302/34, P.P.C. And 323/34, P.P.C., but altering their sentences to imprisonment for life under section 302/34, P.P.C. And acquitting Shabbir accused by giving him the benefit of doubt and criminal appeal CrA.31 of 1984 preferred by Nusrat appellant hereinafter referred to as "the complainant") against the same judgment for the enhancement of the sentences of the appellants and for the conviction and sentence of Shabbir acquitted accused under sections 302/34, P.P.C. And 323/34, P.P.C.
2. The occurrence took place on 12-12-1978 at 8.00 a.m. In a field situated in Chak No,89/15-L in the area of Police Station Mian Channu. The F.I.R. Ex.P.M. Was lodged by Nusrat P.W.8 the cousin of the deceased on the same day at 12.15 p.m. And was recorded by Muhammad Shafi S.I./S.H.O., P.W.12.
The distance between the place of occurrence and the Police Station is 25 miles.
3. The motive as alleged by the prosecution is that the appellants and Shabbir acquitted accused suspected that Muhammad Nawaz deceased had illicit relations with their cousin namely Mst.Maryam.
4. The prosecution case is that at the eventful time, Muhammad Nawaz deceased, Nusrat P.W.8 and Allah Ditta P.W.9 were present in Killa No,11 of rectangle No,48 owned by Nusrat P.W.8, when Allah Ditta accused armed with a Chhuri, Zulfiqar accused armed with a hockey and Shabbir accused empty handed came there on bicycles, which they threw on the road. Zulfiqar accused raised a Lalkara to the effect that Muhammad Nawaz deceased would be taught a lesson for having illicit relations with Mst.Maryam. At this, Muhammad Nawaz ran towards the west, followed by the accused who encircled him in Killa No,15 of Rectangle No,47 owned by Ahmad Janoo.
Shabbir accused caught hold of the deceased and Zulfiqar accused gave a hockey blow on his head, followed by a Chhuri blow on the back of right chest by Allah Ditta accused. As a result of these injuries, Muhammad Nawaz fell down and expired on the spot. When Allah Ditta P.W.9 tried to interfere, he too was injured by Zulfiqar accused with his hockey. The occurrence was also witnessed by Farid (given up PW). It was further stated that the accused were also injured by Muhammad Nawaz deceased and Allah Ditta P.W.9 in their self-defence. After the occurrence, the accused ran away towards their Dhari, leaving their bicycles on the spot.
5. On 13-12-1978 Dr.Shaukat Kanwal P.W.1 conducted the autopsy on the dead body of Muhammad Nawaz deceased and found a lacerated wound 3-1/4" x 3/4" on the right side of the forehead and a vertical stab wound 1" x 1/2" going into right chest cavity on the back of right chest. The blunt weapon injury had caused the fracture of the scalp. The stab wound was found to be sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. On the same day Dr.Shaukat Kanwal P.W.1 medically examined Allah Ditta accused and found a lacerated wound 1" x 1/2" x bone deep over the right eyebrow and an abrasion 1-3/4" x 3/4" on the left forearm, both of which simple injuries were found to have been inflicted within 24 hours. The same doctor also examined Zulfiqar accused the same day and found a lacerated wound 2-3/4" x 1/4" x bone deep on the left side of front of head and a bruise 7" x 5" on the lower left upper arm, both of which blunt weapon injuries were found to have been inflicted within 24 hours. The injury on the left upper arm was grievous. Shabbir accused was also examined the same day by the same doctor, who found a bruise 3" x 2" on the base of the right thumb and a bruise 3" x 1/4" on the lower left forearm, both of which simple blunt weapon injuries were found to have been inflicted within 24 hours. On the same day Dr.Muhammad Aslam Javed P.W.11 medically examined Allah Ditta P.W.9 and found a contused wound 2" x 1/4" x scalp deep on the middle of the head, which simple blunt weapon injury was found to have been inflicted within 24-36 hours.
6. On 12-12-1978 Muhammad Shafi S.I. P.W.12 recovered bicycles Ex.P. 5 & P.6 from the spot vide memos Ex.P.K. & P.L. On the same day he arrested Zulfiqar and Shabbir accused. Zulfiqar led to the recovery of hockey stick Ex.P.3, which was taken into possession vide memo Ex.P.4. On 13-12-1978 Allah Ditta accused was arrested. He led to the recovery of blood-stained Chhuri Ex.P.4, which was taken into possession vide memo Ex.P.N.
7. All the three accused in their statements under section 342, Cr.P.C. Raised the plea of self- defence. Allah Ditta accused stated:- "I and the other two co-accused were going to our shops at Addah Chhab. In the way the deceased alongwith his brother Haq Nawaz and his cousin Yousaf who were all armed with Dangs came out from a nearby field and not from Killa No,11 of Square No,48. They all attacked us and injured us with their weapons. I picked up a small Soti and used it in self-defence whereas Shabbir co-accused used his pen-knife taking it from his pocket in self-defence. We acted in the exercise of private defence of myself and in defence of other co-accused. In fact the deceased was bad character who had been teasing the women of the Chak. He had teased Mst.Maryam on the previous evening and on that account Noor Din my brother had reprimanded him and given him beating. By way of revenge the following morning they attacked us. They had also snatched our cycles there.
' Zulfiqar and Shabbir accused adopted the same version. The accused examined Noor Din in defence, who stated that prior to the occurrence there was exchange of some hot words between Mst.Maryam and Muhammad Nawaz deceased. On his inquiry Mst.Maryam told him that the deceased had teased her, whereas the deceased replied that he had simply cut a joke with her and that he gave a beating to the deceased on this account and that the deceased whilst leaving had threatened to avenge the insult.
8. The learned Judges of the High Court, keeping in juxtaposition the case of the prosecution and the defence, held that the evidence on the record and the surrounding circumstances proved the case of the prosecution and they accordingly convicted and sentenced Allah Ditta and Zulfiqar accused, as stated in para 1 above, and acquitted Shabbir accused.
9. Leave was granted to Nusrat complainant to consider whether the penalty of death given to Allah Ditta and Zulfiqar accused and the conviction of Shabbir accused by the learned trial Judge was not legally correct on the basis of the evidence on the record, and leave was granted to the appellants to consider whether their convictions and sentences were based on a proper appraisal of the evidence on the record.
10. On behalf of the appellants it is submitted that the case is one of free fight as both the parties duly armed fought with each other and that Zulfiqar appellant is therefore, individually liable under section 325, P.P.C. For the grievous injury to the deceased and under section 323, P.P.C. For the simple injury to Allah Ditta P.W. And Allah Ditta appellant is liable under section 304-I, P.P.C. For the fatal injury to the deceased and under section 323, P.P.C. For the simple injury to Allah Ditta P.W.
11. On behalf of Nusrat complainant it is submitted that the case is not one of free fight, but even assuming it is so, the appellants and the acquitted accused would still be liable under sections 302/34, P.P.C. And 323/34, P.P.C. As found by the learned trial Judge. It is further submitted that the acquittal of Shabbir is not justified inasmuch as section 34, P.P.C. Was applicable and the said acquitted accused admitted his participation in the fight in his statement recorded under section 342, Cr.P.C.
12. The learned counsel for the State does not support both the appeals.
13. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have perused the record. The case is not of free fight, as urged by the learned counsel for the appellants. It is nobody's case that both the parties duly armed had come out to have a pitched battle, in the course of which they injured each other. Even the appellants and the acquitted accused in their statements under section 342, Cr.P.C. Refer to the complainant party as attacking them whilst they were going to their shops at Addah Chhab, during which occurrence in self-defence Allah Ditta appellant picked up a Soti and Shabbir acquitted accused pulled out his pen-knife from his pocket in order to defend themselves. There is a world of a difference between a free fight and a sudden fight. Sudden fight is that which generally arises out of a chance encounter, squabble or quarrel, where passions having been ignited, the slightest blow or provocation results into a fight and both the parties assault or injure each other, with whatever weapons they have or can lay their hands on. The basic feature of a sudden fight is the initial absence of pre-meditation to cause death or injuries, due to the absence of time for reflection. The absence of common intention or common object is one of the distinguishing features of a sudden fight. However, a free fight is where two opposing parties after having made preparations to meet force with force go out to face each other, with full planning to have a pitched battle. The essential feature is that both the parties from the very start intend to and prepare themselves to fight, before going out to and actually having their pitched battle. The presence of common intention or common object is one of the distinguishing features of a free fight. Where both the opposing groups have the opportunity to have recourse to the protection of the public authorities, but resort to force, the members of both the groups are equally responsible for the total acts of their respective assembly. In this connection Mammora v. State 1990 PCr.LJ 463 may be referred, which appropriately explains the difference between a sudden fight and a free fight and the variable situations which arise in such cases. The case in hand is definitely not one of free fight and the arguments of the learned counsel for the appellants therefore, have no merit and must be rejected.
14. Since the occurrence is admitted by the three accused the question that arises is whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances, apart from any fair inferences which can be drawn therefrom, prove the prosecution case to the hilt or lead to the inference that the appellants' version is true or reasonably possible. On the side of the accused both the appellants and the acquitted accused were injured and on the side of the complainant the deceased and Allah Ditta P.W. Were injured. All the injuries on the accused's side were by blunt weapon and simple, excepting one on the left upper arm of Zulfiqar appellant that was found to be grievous. The two injuries on Muhammad Nawaz deceased were by blunt and sharp-edged weapons and both were grievous.
The injury on Allah Ditta P.W. Was simple and by blunt weapon. According to the prosecution, Shabbir acquitted accused was the first person who caught Muhammad Nawaz deceased, where after Zulfiqar appellant gave a hockey blow to him on his right temple and Allah Ditta P.W. a Chhuri blow in his right chest. Nusrat P.W.8, however, in his examination-in-chief admits that Nawaz deceased in self-defence gave injury to Shabbir acquitted accused before he was overpowered and caught by him and that Allah Ditta P.W. Whilst acting in self-defence gave injuries to Allah Ditta and Zulfiqar appellants. It is, therefore, clear that the deceased was the first person to injure the accused party and from the nature of the evidence and the injuries on the persons injured on both the sides, the case appears to be one of sudden fight where both the parties having come across each other by chance, got involved in a fight over some squabble or quarrel, where both the parties assaulted and injured each other with whatever weapons they had or could lay there hands on. In these circumstances, Zulfiqar appellant would be liable under section 323, P.P.C. For the blunt weapon injury on Allah Ditta P.W. And under section 325, P.P.C. For the blunt weapon injury on Nawaz deceased and Allah Ditta appellant would be liable under section 304-I, P.P.C. For the fatal sharp-edged weapon injury on Nawaz deceased. Shabbir acquitted accused, according to the prosecution evidence, not having inflicted any injury to either the deceased or Allah Ditta P.W.
Would not be liable. In any case he was stated to be empty-handed. He is, therefore, not liable for any offence. The convictions and sentences of Zulfiqar and Allah Ditta appellants under sections 302/34 and 323/34, P.P.C. Are therefore, not legally correct and deserve to be set aside.
15. For the foregoing reasons, criminal appeal Cr.A.No,31/84 filed by Nusrat complainant has no merit and is dismissed.
16. Criminal appeal CrA.No,32 of 1984 filed by Zulfiqar and Allah Ditta appellants is partly accepted.
Their convictions and sentences under sections 302/34 and 323/34, P.P.C. Are set aside. Zulfiqar appellant is convicted under section 325, P.P.C. For the injury to Nawaz deceased and under section 323, P.P.C. For the injury to Allah Ditta P.W. He is sentenced under section 325, P.P.C. To seven years'
R.I. With a fine of Rs,5,000 or in default thereof to undergo further R.I. For a period of one year. Fine, if realized, shall be paid to the legal heirs of the deceased as compensation. He is sentenced under section 323, P.P.C. To six months' R.I. With a fine of Rs,500 or in default thereof to undergo further R.I.
For one month. Fine, if realized, shall be paid to Allah Ditta P.W. As compensation. Allah Ditta appellant is convicted under section 304-1, P.P.C. To ten years' R.I. With a fine of Rs,5,000 or in default thereof to undergo further R.I. For a period of one year. Fine, if realized, shall be paid to the legal heirs of Nawaz deceased as compensation. The sentences of Zulfiqar appellant shall run concurrently. The benefit of section 382-B, Cr.P.C. Shall be granted to the appellants.