' This revision petition filed under section 439, Cr.P.C. Arises out of the judgment dated 22-10-1985 passed by the learned Additional Sessions Judge, Sargodha whereby he acquitted respondents Nos.1 and 2 from the charge of committing the murder of Sardar Khan deceased and having committed murderous assault upon Ali Muhammad complainant and Muhammad Aslam P.W.B.
2. The brief facts of the case are that Ali Muhammad (P.W.7) alongwith his son Muhammad Aslam (P.W.8) and Sardara deceased, left for Noor Hayat Colony on bicycles, on 28-12-1984 at Peshiwala.
When they reached near Dingi Pul situated within the area of Chak No,7/S.B. Muhammad Afzal and Muhammad Manzoor accused-respondents armed with Sotas emerged from a garden and raised a Lalkara that they had come to avenge the previous insult by Sardara deceased. They assaulted Sardara who was ahead of Ali Muhammad, petitioner. Muhammad Afzal respondent inflicted a Lathi blow upon the left side of the head; whereas Muhammad Manzoor respondent gave a blow hitting the deceased on the left side of his forehead. Sardara deceased fell down, and then both the respondents inflicted more injuries. The petitioner's son Muhammad Aslam injured P.W.8, tried to rescue Sardara deceased but both the respondents inflicted injuries on his face, right arm and knees. The petitioner came forward to rescue his son Muhammad Aslam but both the respondents caused injuries upon his left eye, right arm and chest. As the petitioner and his son Muhammad Aslam were also having Soties, therefore, they also caused Soti blows to the accused-respondents in self-defence. In the meantime Muhammad Younas P.W. Was attracted at the spot and he rescued the petitioner and his companions by reprimanding the respondents. Muhammad Younas P.W. Took them to Civil Hospital, Bhalwal and the petitioner after getting the medico-legal certificates appeared before Sher Muhammad S.I. And made his statement Exh.PN upon which the case was registered firstly under section 307/34, P.P.C. And then on 29-12-1984 it was converted into section 302/34, P.P.C. When Sardar Khan died.
3. The motive behind this occurrence was that about a month before the occurrence, Muhammad Afzal respondent visited the house of Sardara deceased situated in Noor Hayat Colony and on that occasion Sardara deceased asked him not to visit his house on the ground of his being bad character. Muhammad Afzal took ill of it and threatened Sardara deceased that he would avenge his insult for forbidding him from visiting the house.
4. Dr. S.M. Rafiullah, Senior Medical Officer (P.W.1) medically examined Sardar Khan deceased and found five lacerated wound on the different parts of his body; mainly on his head. All the injuries were declared as caused by blunt weapon within one/two hours of examination. Exh.PA is the carbon copy of medico-legal report.
' On the same day at 4-40 p.m. He medically examined Ali Muhammad (P.W.7) and found six injuries on his person having been caused with blunt weapon within the duration of one or two hours. Exh.PB is the correct carbon copy of his medico-legal report. He also examined Muhammad Aslam and found 10 injuries on his person having been caused with blunt weapon within the duration of two or three hours. Injuries Nos. 6, 7 and 8 were declared as grievous caused by blunt weapon. He also examined Muhammad Afzal on the same day at 5-45 p.m. And found 8 injuries on his person. All were simple caused by blunt weapons with 4/5 hours duration. Exh.PD is the medico- legal report. He also examined Manzoor respondent and found 6 injuries on his person. Exh.PE is the correct carbon copy of his medico-legal report, according to which the injuries were caused by blunt weapon within 2/5 hours.
5. On 29-12-1984 at 1-30 p.m. Dr. S.M. Rafiullah (P.W.1) did autopsy on the dead body of Sardar Khan deceased, and found five injuries on his person. In the opinion of the Doctor the death occurred due to shock and haemorrhage from injuries Nos.2, 3 and 4 which caused fractures of the skull bones resulting in extradural haemorrhage and compression of the left hemisphere of the brain. All the injuries could cause death separately and , collectively. All the injuries were ante-mortem caused by blunt weapons and were sufficient to cause death in ordinary course of nature. Exh.PF is the copy of post-mortem report and Exh.PF/1 is the diagram showing the injuries.
6. All the respondents were charge-sheeted on 7-7-1985 under section 302/34, P.P.C., they did not plead guilty to the charge and claimed trial. , The prosecution produced 10 witnesses during the trial before Court when the eye-witness account was furnished by P.W.7 Ali Muhammad and P.W.8 Muhammad Aslam and for the testimony of the recovery of weapons Muhammad Afzal (P.W.6) was examined alongwith the Investigating Officer. The reports of the Chemical Examiner and that of the Serologist being positive were also placed on the record.
7. The respondents when confronted with the prosecution evidence, they took up the following plea which was recorded under section 342, Cr.P.C.:--- "Muhammad Afzal accused stated that on the day of occurrence, early in the morning, he went to ease himself in the fields and there he met Mst. Nusrat per chance who had also gone to the fields for the same purpose. While they were talking to each other, Mst. ,Naziran happened to pass nearby and she suspected that they were engaged in love talk. She came home and complained to her father Ali Muhammad. At about Peshiwala when he and Manzoor accused were coming from Bhalwal towards their house, Sardar Muhammad deceased who had been summoned by Ali Muhammad from Bhalwal alongwith Ali Muhammad and Muhammad Aslam P.W. Met them while going back to Bhalwal. Sardar Muhammad complained to Manzoor accused about the misconduct of his son Afzal accused which was narrated to him by Mst. Naziran. Afzal accused started professing innocence but during the abovesaid talk Ali Muhammad, Muhammad Aslam P.Ws. And the deceased Sardara started an altercation, hot words and abuses were exchangt (1 and in the sudden flare up Ali Muhammad and Muhammad AO., P.Ws. And Sardar Khan deceased started beating them with Dangs. They also inflicted injuries in self-defence. The police refused to register their case and lodged a false case at the instance of Muhammad Younas. Ali Muhammad (P.W.7) was the Munshi of the family of Muhammad Younas and had appeared as a prosecution witness in the murder case of a relative of Muhammad Younas. Therefore, a false case has been registered against them. Muhammad Manzoor dittoed the statement of Muhammad Afzal accused."
8. After recording the prosecution evidence, the learned trial Court holding that the motive as alleged by the respondents was more plausible and that both the parties were mitigating and concealing their own part in order to make the other party aggressor; held that it was a case of free fight i,e, the fight took place between the parties consisting of three persons on complainant's side and two persons on accused's side. It was also found that the complainant party was aggressor and the respondents were justified in exercising their right of private defence. It was also observed that both the parties came out in the field in order to show their own strength, and after giving them the benefit of doubt, the respondents were acquitted.
9. Mr. Tariq Shamim, Advocate, appearing on behalf of Mr. Khalid Ranjha, Advocate for the petitioner submitted that having held that both the parties were determined to show their own strength and having established that it was a case of free fight, it was not available to the learned trial Court to grant benefit of plea of self-defence to the respondents. It was also argued that the learned trial Court after having observed that it .Was a case of sudden fight should not have straightaway acquitted the respondents and rather should have convicted them for, whatever, liability, they incurred by having caused injuries to Sardar Khan, which resulted in his death and for having caused injuries to the P.Ws. He cited paragraph 31 of the judgment and stated that "the plea of Muhammad Afzal accused-respondent that he snatched the Dang from Ali Muhammad (P.W.7) with which he gave blows to other party, is also unreliable and bears no ring of truth. He placed reliance on a judgment reported as Abdur Rehman v. Gadai Khan and 3 others 1972 SCM R 676, to fortify his contentions that it was a case of free fight.
10. Learned counsel for the State supported the arguments of the learned counsel for the petitioner.
11. Learned counsel for the respondents argued that interference by this Court in the orders of the subordinate Courts is not justified even if the evidence on record and circumstances divulged different conclusions. He also submitted that High Court could only have ordered, retrial of convicts under sections not held applicable to them by trial Court. In this case retrial is not made out and it, therefore, be refused. He vehemently supported the judgment of the learned trial Court.
12. I have given my earnest consideration to the arguments of both sides and have also gone through the record very minutely. After having looked into the evidence of P.Ws.7 and 8 and the defence plea and also having gone through the medical evidence wherein both the parties appeared to be equally injured; I have reached to the conclusion that as a matter of fact, it was a sudden free fight between equally matched parties in which the respondents also received injuries and also in view of the fact that respondents Nos.1 and 2 stated in their statements under section 342, Cr.P.C. That hot words and abuses were exchanged and in the sudden flare-up, Ali Muhammad, Muhammad Aslam and Sardar Khan deceased started beating them with Daugs and they tried to defend themselves. The learned trial Judge should not have straightaway acquitted the respondents and rather should have convicted them, for, whatever liability, they incurred by having caused injuries to Sardar Khan, which resulted in his death and for having caused injuries to the P.Ws.
13. The learned trial Court when found as per paragraph 31 of the judgment that it was a sudden free fight between equally matched parties in which the accused also received injuries could not give the benefit of right of private defence to the respondents. It is laid down by the Supreme Court of Pakistan in a case reported as Abdur Rehman v. Gadai Khan and 3 others 1972 A SCMR 676 and also Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 that when each party hostile to each other anticipated resistance from the other and were, therefore, determined to have a trial of strength, it would be impossible to say that the accused party were acting on the defensive or in the exercise of any right of private defence of person or property. In such circumstances, it would be reasonable to infer that in entering upon the conflict each party knowingly and deliberately took upon itself the risk of the encounter. In the circumstances such as these, no question of right of private defence would arise and each participant in the free fight would be liable for his individual act.
14. The facts and circumstances on record clearly show that this was a case of free fight ,between the parties and each individual was liable for his individual act; because the motive advanced by the respondents as held by-the learned trial Court being more plausible would not be sine qua non for establishing that the petitioner party was the aggressor.
15. Resultantly, I accept this revision petition, set aside the judgment of the learned trial Court and remand the same to the learned trial Court for fresh decision in accordance with law.