' MIAN ABDUL KHALIQ, J.---Muhammad Siddique, Muhammad Hanif, Muhammad Rafique and Rahim Din (since dead) were tried by the learned Additional Sessions Judge II, Rahimyar Khan for the murder of Muhammad Mansha and causing injuries to Fazal Din (P.W.1) and Muhammad Yousuf (P.W.2) and vide his judgment dated 14-3-1990 they were convicted and sentenced as follows:-- ' Muhammad Siddique appellant Muhammad Hanif and Muhammad Rafique appellants.Under section 304-I, P.P.C. To undergo 10 years' R.I. And a fine of Rs,5,000, in default whereof to suffer one year R.I. Further directed to pay compensation under section 544-A, Cr.P.C. Of Rs,5,000 and in default whereof to suffer 3 months' R.I. Further.Under section 324, P.P.C. To undergo one year R.I. And a fine of Rs,1,000 in default whereof to suffer one month R.I. Also directed to pay compensation of Rs,1,000 under section 544-A, Cr.P.C. And in default one month R.I. (both the sentences were ordered o run tconcurrently).Under section 324, P.P.C. One year R.I. Each with a fine of Rs,1,000 each in default whereof one month R.I. Each. They were also directed to pay compensation under section 544-A, Cr.P.C. Of Rs,1,000 each, in default whereof one month R.I. Each.Rahim Din appellant (since dead) under section 323, P.P.C. To undergo 2 months' R.I. And a fine of Rs,500, in default whereof 10 days' R.I. He was directed to pay compensation under section 544- A, Cr.P.C. Of Rs,500, in default whereof to suffer 10 days' R.I.
' All the accused/appellants were extended the benefit of section 382-B, Cr.P.C. They filed appeal against their conviction and sentence. The State had also preferred Criminal Appeal No,72/1990/BWP which was admitted for hearing. Both the appeals shall be disposed of by this judgment. Appellant Rahim Din has since expired, and proceedings against him are abated.
2. The appellants were challaned by the police of Kot Samaba, District Rahimyar Khan in case F.I.R.
No,153/87 registered on 8-7-1987 under sections 302/307/34, P,P.C. On the complaint of P.W.1 Fazal Din, who had alleged that he was a cultivator and there was Pakki Warabandi of the Chak and after 8 days his turn of water started at 8-45 p.m. On every Wednesday and continued till 6-30 a.m. On Thursday. Meanwhile he alongwith his brothers Muhammad Yousuf, Aziz Din irrigated their separate land. Their turn started after the turn of water of Rahim Din. On the night of occurrence, he alongwith his brother Muhammad Yousuf (P.W.2) and Muhammad Mansha, complainant's son at 8-45 p.m. Went to the Nakka in rectangle No,81/5, Square No,1. It was moonlit night. Muhammad Yousuf (P.W.2) had lantern and at the fixed time when they were going to water their land, Rahim Din armed with Dang, Muhammad Rafique armed with an iron Kassi, Muhammad Siddique armed with knife (Khanjar type) and Muhammad Hanif armed with iron Kassi, residents of the village, after making mutual consultation attacked on the complainant party who were sitting in ambush near the tubewell under the trees. Rahim Din stated that they would teach the complainant party a lesson for using water in excess on the last turn and for having indulged in unjust litigation. In reply the complainant stated that they were not at fault, on which all the appellants infuriated.
Muhammad Mansha tried to water the land, on which Rahim Din raised Lalkara that Muhammad Mansha etc. Should not be spared. Muhammad Rafique appellant after throwing the Kassi caught hold of Muhammad Mansha and felled him on the ground. Muhammad Hanif appellant threw Kassi and seized Muhammad Mansha from his arms and Muhammad Siddique appellant inflicted a knife blow on the left side of the neck of Muhammad Mansha. The complainant stepped forward to rescue Muhammad Mansha, on which they released Muhammad Mansha and took up their Kassis.
Muhammad Hanif appellant inflicted three Kassi blows on Muhammad Yousuf (P.W.2's) left side of the head, chin, left leg and right elbow. Muhammad Siddique appellant gave a knife blow on the left flank of Muhammad Yousuf (P.W.2) and Muhammad Yousuf fell on the ground. Rahim Din gave Dang blows on the back of fallen Muhammad Yousuf.
' Thereafter Muhammad Rafique appellant inflicted two Kassi blows on the left wrist and head of P.W.1 Fazal Din complainant. Rahim Din also inflicted many Dang blows on the complainant's left thigh and back. Muhammad Mansha was seriously injured. The complainant tried to take him up, on which Muhammad Siddique appellant gave a knife (Khanjar type) blow on the left side of his chest. He also inflicted on the back of Muhammad Mansha a knife blow. During assault of the accused to defend their person Muhammad Rafique, Muhammad Hanif and Rahim Din appellants were slightly injured by them. On the hue and cry, Abdul Jabbar P.W. (given up) and Muhammad Afzal (P.W.3) reached the spot and witnessed the occurrence. The appellants escaped. P.W.1 Fazal Din was taking Muhammad Mansha in injured condition alongwith Muhammad Yousaf (P.W.2) injured to the police station on a tractor-trolley and on the way near the bridge of canal 5/R Yousuf, Muhammad Mansha succumbed to his injures and his dead body was taken to the Civil Hospital, Kot Samaba. Leaving the dead body of Muhammad Mansha in the compound of Civil Hospital under the guard of Abdul Jabbar, the complainant Fazal Din (P.W.1) reached the police station alongwith Muhammad Yousuf injured. The motive behind the occurrence was that the complainant had got common land with Rahim Din, which was partitioned through Punchayat 26/27 years ago. Six Kanals. Out of Killa No,3/1 and 2 Kanals from Killa No,4 in Rectangle No,81/1 were given in favour of the complainant and the same was in his possession since long and was cultivating the same. Rahim Din appellant dishonestly did not get it mutated and many a time it was demanded, but about 2 years earlier to the present occurrence, to get possession of this land Rahim Din filed a suit before the Tehsildar for ejectment, who decided the case against the complainant. The complainant filed a civil suit and obtained interim injunction and the suit was pending. The accused for taking possession of the said land had many a time extended threats earlier that if the possession is not delivered, the consequences shall not be good. The appellants after making mutual consultation in prosecution of their common object had murdered Muhammad Mansha as well as seriously injured Muhammad Yousuf and the complainant.
3. The appellants were challaned and sent up for trial. A charge under sections 302/34, 307/34 and 307/34, P.P.C. Was framed, to which they denied and claimed trial. The prosecution examined 13 P.Ws. In all to substantiate its case.
4. Appellant Muhammad Siddique when examined under section 342, Cr.P.C. Denied the prosecution evidence against him as well as the recovery of blood-stained knife P.14 at his instance and to a question "Why this case has been got up against you and why the P.Ws. Have deposed against you? Replied.
"On the day of occurrence I and Muhammad Hanif were taking turn of our water when Muhammad Yousuf armed with Kassi, Mansha deceased armed with hatchet, Fazal Din and Abdul Haque armed with sticks came to our land and diverted the water before their turn. On our objection the complainant and the deceased attacked us and injured Rahim Din, Rafique and Hanif. We also acted in self-defence of person and property. The complainant party was annoyed over ejectment proceedings etc. Decided in our favour before the occurrence. The matter was reported, but the police dishonestly did not register the case. We filed cross-complaint which is also pending before this Court. P.Ws. Are hostile to us."
' Muhammad Rafique, Muhammad Hanif and Rahim Din appellants when examined under section 342, Cr.P.C. Had denied the prosecution evidence against them as well as recovery of incriminating articles at their instance and all stated that the present false case had been concocted against them in order to save their own skin and the P.Ws. Were hostile. They neither made statements on oath nor. Produced evidence in defence. Appellant Muhammad Siddique produced Exhs.DJ, DK and DL in defence (copy of the complaint and copies of the judgments) and closed his defence. The learned trial Court vide its impugned judgment found the appellants guilty and convicted them accordingly.
5. We have heard the learned counsel for the parties at length and have perused the record. The oral testimony was furnished on record by the statements of P.W.1 Fazal Din complainant, P.W.2 Muhammad Yousuf and P.W. 3 Muhammad Afzal. P.W.1 Fazal Din complainant narrated the facts mentioned by him in F.I.R. Exh.PA. His statement was corroborated by P.W.2 Muhammad Yousuf.
P.W.1 and P.W.2 stated before the trial Court that they were empty handed at the time of occurrence. P.W.2 Muhammad Yousuf stated that he did not remember if he had caused any injury to Rahim Din, and he further stated that the accused received injuries with their own weapons. P.W.1 Fazal Din in F.I.R. Exh.PA specifically stated that Muhammad Rafique, Muhammad Hanif and Rahim Din appellants were slightly injured at the hands of the complainant party.. P.W.1 was confronted with Exh.PA. Although he alleged that injuries received by the appellants were minor and had specifically stated that the same were received at the hands of the complainant side, and the same demolishes the case of the prosecution that the injuries on the person of accused Rahim Din were self-suffered. P.Ws.1 and 2 had suppressed the real facts. There was background of litigation between the parties and as such the witnesses are inimical and interested. The defence raised this specific plea and it cannot be said that the accused party was aggressor. It was admitted by P.W.1 Fazal Din complainant and P.W.3 Muhammad Afzal stated that Killa No,1, Rectangle No,81/5 is owned by Rahim Din appellant and P.W.6 Muhammad Aslam Patwari had stated that the place of occurrence is at some distance from the watercourse and if the occurrence had taken place there, then it would be considered that the accused were not aggressors. Muhammad Rafique appellant was armed with a dagger and Rahim Din was armed with a Dang while the other appellants had Kassis with them. The occurrence took place suddenly without premeditation. Both the parties were armed. It was a sudden fight, in which both the parties participated. The complainant as well as the accused party had concealed the true facts. P.Ws.1 and 2 admitted during cross-examination that they were empty handed, but it cannot be believed that they had come to water their land without any sort of implement/weapon. P.W.3 Muhammad Afzal stated that he had no watch with him at the time of occurrence. P.W.3 Muhammad Afzal reached the spot after the alarm, but had stated that he witnessed the occurrence, which is not believable.
6. P.W.7 Dr. Shabbir Alam Khan medically examined P.W.1 Fazal Din and had found 5 injuries on his person and after receipt of X-ray report the injuries were declared simple. One injury was caused by sharp-edged weapon and the rest with blunt weapon. He also medically examined P.W.2 Muhammad Yousuf and found 5 injuries on his person. Injuries Nos.1 and 3 were caused by sharp- edged weapon and the others with blunt weapon and after X-ray all the injuries were declared simple. He had also medically examined Muhammad Hanif, Muhammad Rafique and Rahim Din appellants and found two injuries on the person of Muhammad Hanif caused with blunt weapon simple in nature. He 'medically examined Haji Muhammad Rafique appellant and found 4 injuries on his person caused with blunt weapon. Injuries Nos.3 and 4 were simple whereas injury No,1 was declared simple after X-ray examination and injury No,2 was declared grievous. He opined that possibility of friendly hand or self-suffered could not be ruled out. P.W.7 on the same day medically examined Rahim Din appellant and had found two injuries on his person which were caused with sharp-edged weapon. The deceased had received 5 injuries. Injury No,1 was caused with sharp- edged weapon, whereas the remaining injuries were inflicted with blunt weapon. P.W.2 Muhammad Yousuf received five injuries on his person. Injuries Nos.1 and 3 were caused with sharp-edged weapon and injuries Nos.2, 4 and 5 with blunt weapon, which were declared simple.
7. Appellants Rahim Din, Muhammad Hanif and Muhammad Rafique were arrested by Ch. Muhammad Akram Khan, Inspector/S.H.O. (P.W.13) on 9-7-1987 and on the same day Muhammad Rafique appellant led to the recovery of Kassi P.7 which was secured by P.W.13 vide memo. Exh.P.E.
Alongwith blood-stained turban P.8, shirt P.9 and Chadar P.10 attested by P.W.4 Wali Muhammad.
Muhammad Hanif appellant on the same day led to the recovery of blood-stained Kassi P.11 which was secured by P.W.13 Ch. Muhammad Akram Khan, S.H.O. Vide memo. Exh.P.F. Attested by P.W.4 Wali Muhammad. Muhammad Siddique appellant was arrested on 19-7-1987 and on the same day led to the recovery of knife P.14 which was secured by P.W.13 Ch. Muhammad Akram Khan, S.H.O.
Vide memo. Exh.P.G., attested by P.W.5 Gulzar Muhammad. The reports of the Chemical Examiner Exh.P.V. And the Serologist Exhs.P.T. And P.X. Were positive.
8. The appellants also failed to prove complaint against the complainant party, as they had also received injuries, but the same were concealed.
9. The complainant and the accused party had previous litigation and enmity, and due to that the complainant and the accused party at the relevant time duly armed confronted with each other without premeditation and caused injuries to each other. It was a free fight between the parties and every participant in the circumstances was liable for the injuries caused by him. We are of the view that the appellants were rightly convicted and sentenced by the trial Court and no exception can be taken to the impugned judgment. The conviction and sentence of the appellants are maintained. They shall also pay fine and compensation as ordered by the learned trial Court. The sentence of Muhammad Hand and Muhammad Rafique appellants was suspended by this Court on 1-4-1990. Their sentence and conviction is altered to one already undergone. Their bail bonds are discharged. They shall deposit the amount of the fine and compensation before the trial Court within a month and in default thereof, they shall be dealt with in accordance with law.
10. The connected State appeal has no merit and is dismissed.