SAJJAD ALI SHAH, C J.--Appellant Mansoor Masih filed petition for leave to appeal from jail, on which leave has been granted by this Court to reappraise the evidence as it is a case of two versions in which both sides sustained injuries and the motive was also not proved. After grant of leave petition was converted into appeal.
2. Appellant Mansoor Masih and his three brothers, namely, Maqbool, Munir and Yagoob were put on trial for offence under sections 302/307/34, P.P.C. In the Court of Additional Sessions Judge, Sargodha for having committed murder of Akhtar Shahbaz by giving him blows of Chhuri and knife in furtherance of their common intention and causing injuries to P.Ws. Tahir Naveed and Muhammad Tariq with Chhurri and hockey stick on 1st June, 1987 at 6-45 p.m. In the area of Kalyer Town within the jurisdiction of Police Station Cantt., District Sargodha. F.I.R. Was lodged at 8-15 p.m.
On the same day by complainant Tahir Naveed in which it is stated that he alongwith Akhtar Shahbaz and Muhammad Tariq came in rickshaw and as they got down and were going towards their house, they were attacked by the four accused persons. Munir Masih and Manzoor Masih were armed with Chhuris while Maqbool Masih was armed with knife and Yagoob Masih was armed with hockey stick and they raised alarm that none would be spared. Maqbool Masih inflicted knife blow which hit Akhtar Shahbaz on the left thigh. Muhammad Tariq intervened and was given Chhuri blow on left side of his head by Munir Masih. Manzoor Masih inflicted second Chhuri blow to Akhtar Shahbaz. Maqbool inflicted knife blows one after the other to Akhtar Shahbaz on his buttocks.
Yagoob hit Muhammad Tariq on his head with his hockey stick, Munk inflicted Chhuri blow to Muhammad Tariq on his left arm. On cries of the complainant and injured persons, Maqbool M.Shahid and Maqsood Masih arrived at the spot and saw the incident. Thereafter, the accused persons ran away. Injured Akhtar Shahbaz was brought to the hospital where he succumbed to his injuries. It is stated in the F.I.R. That during the attack the complainant and P.W. Muhammad Tariq caused injuries to accused Manzoor Masih, Maqbool Masih and Munir Masih while exercising right of private defence. Motive in F.I.R. Is that about 9/10 months prior to the incident, one George John filed a case under sections 452, 323, 148 and 149, P.P.C. Against the accused persons in this case in which the complainant and deceased Akhtar Shahbaz used to help him. Hence, accused were annoyed and wanted take revenge.
3. S.I. Muhammad Hanif, who recorded F.I.R., took in hand the investigation of the case. He proceeded to D.H.Q. Hospital, Sargodha where he found the dead body of Akhtar Shahbaz which he sent for post-mortem examination. He proceeded to the place of occurrence which was inspected by him and fromwhere he secured blood-stained earth and put it into a sealed parcel. On the following day, he arrested Manzoor Masih, Maqbool Masih and Munk Masih. On 12th June, 1987, Manzoor Masih while in custody led to the recovery of blood-stained Chhuri which was put into a sealed parcel. Likewise, Munir Masih and Maqbool Masih also led to the recovery of blood-stained Chhuri and blood-stained knife respectively from their houses. After completion of other steps in the investigation, challan was presented in which Yaqoob Masih was named in Column No,2 for the reason that he was found innocent during the investigation.
4. In the trial Court, prosecution examined twelve witnesses in support of its case. From them, three are examined as eye-witnesses, who are P.W.6, Tahir Naveed complainant, who was also injured in the incident. P.W.7, Maqbool Shahid, is another eye-witness who was not injured in the incident and he was attracted to the spot on hearing alarm. Both these eye-witnesses have supported the prosecution case. Third eye-witness is P.W.8, Muhammad Tariq, who was injured during the incident but during his examination-in-chief in the trial Court resiled from the prosecution story and withheld his support. He was declared hostile and cross-examined by the prosecution. He stated that deceased Akhtar Shahbaz was carrying a hockey stick with which he caused injury to Munir accused and P.W. Tahir gave a knife blow to Munir accused. According to him, Manzoor and Maqbool accused came out from their house and intervened to save their brother Munir and attacked Akhtar Shahbaz and P.W. Tahir Naveed and by that time it had become quite dark, hence it could not be ascertained as to who had injured Akhtar Shahbaz, Tahir Naveed P.W. And himself.
5. P.W.9 is S.I. Muhammad Hanif who had investigated the case as stated above. P.W. 10 is Dr. Muhammad Khalid Qureshi who was posted at D.H.Q. Hospital, Sargodha. He performed post- mortem examination on the dead body of Akhtar Shahbaz and found the following four injuries on his person: "(1) Incised wound 1" x 1/2" going towards right on left of pupis 3/4" from midline and 1/2 half inch from base of penis.
(2) Incised wound 1" x 1/2" deep on front of lett thigh 3" below inguinal ligament.
(3) Incised wound 1" x 1/2" x 1" on middle of left buttock.
(4) Incised wound 1" x 1/3" x 1" on right buttock on junction with thigh."
' According to the doctor, death was due. To haemorrhage and shock caused by injury No,1 which was inflicted with a sharp-edged weapon and that was sufficient to cause death in ordinary course of nature. Remaining injuries were simple in nature. P.W.12 is Dr. Muhammad Aslam Chaudhry, Medical Officer, D.H.Q. Hospital, Sargodha who on 1st June, 1987 examined Tahir Naveed and found one incised wound 3 x 1 c.m. Deep bleeding profusely on the left side of the head. On the same day he examined P.W. Muhammad Tariq and found one incised 2-1/2 x 1/2 c.m. Wound bleeding profusely on the back of his chest and one incised wound 2 x 1 c.m. On the back of his left forearm. The third was lacerated wound 2 x 2 c.m. On the back of his head. Remaining witnesses examined by the prosecution are formal in nature. Prosecution produced reports of the Chemical Examiner and Serologist with positive findings with regard to the earth and two Chhuris recovered from Manzoor and Muneer and knife recovered from Maqbool having been found to be stained with human blood.
6. In the trial Court, accused persons were examined under section 342, Cr.P.C. And denied prosecution allegations. They claimed false implication due to enmity and further declined to give statements on oath as contemplated under section 340(2), Cr.P.C. Yaqoob Masih stated that during investigation he was declared innocent and his name was put in Column No,2 of the challan. Munir Masih stated that a day before the incident, Tahir Naveed had picked up a quarrel with him in the playground of Government College, Sargodha which resulted in the beating given by him to Tahir Naveed. On the day of incident, in the evening, when it was dark and he was returning from his shop and reached near the house of his sister, Tahir Naveed, Muhammad Tariq and Akhtar Shahbaz attacked him. Tahir Naveed was armed with Chhuri while others were armed with Lathis. Tahir Naveed gave him Chhuri blow near the neck and others also gave him Lathi blows. On his cries, Maqbool and Manzoor came from the house of his sister and intervened to rescue him. A large number of persons collected there and in the melee Tahir Naveed, Muhamamd Tariq and Akhtar Shahbaz also sustained injuries. Incident was seen by Ayyub and Younas Masih.
He got himself medically examined. Police registered a false case against them and did not register their case in spite of the directions from the High Court. Complainant party was aggressor.
Yaqoob was not present at the place of occurrence. Manzoor Masih and Maqbool in their statements under section 342, Cr.P.C. Denied the prosecution allegation and adopted the same stand as had been taken by their brother Munir. Accused persons examined one witness in defence who is D.W.1, Devis Gil, who is Senior Dispensar in DHQ Hospital Sargodha. He identified handwriting of ' Dr. Muhammad Ashraf, who had medically examined Manzoor Gohar, Munir Suhail and Maqbool Javed on 1st June, 1987 and issued in their favour Medico-Legal Certificates.
7. In the trial Court, prosecution evidence was criticised on the ground that Maqbool Shahid was not witness of the incident and had been added in the list just to give support to the prosecution case as no independent witness was ready to support the prosecution version. Maqbool Shahid, who is examined as eye-witness, is real uncle of deceased Akhtar Shahbaz and the complainant.
The eye-witnesses suppressed the fact that injuries were caused to the accused persons as well.
Eye-witness Muhammad Tariq did not support the prosecution case and was declared hostile. In such circumstances, prosecution case had failed to prove against the accused persons beyond doubt. As against the prosecution case, defence took up the plea that the complainant party had attacked first and caused injuries to the accused persons. Another plea taken was that it was a free fight between the two parties which took place all of a sudden and due to darkness it could not be ascertained as to who inflicted injuries to deceased Akhtar Shahbaz, Tahir Naveed and Muhammad Tariq P. Ws.
8. Trial Court, after evaluation of the evidence adduced by both the parties, came to the conclusion that the house of the sister of accused persons was situated in the same lane where the house of Tahir Naveed was situated but accused persons did not produce satisfactory explanation to show their presence in the house of their sister and it appeared that they were present at the spot with preparation and had come fully armed with Chhuris and knife and caused injuries to the deceased and the F'.Ws., hence defence version of self-defence was concocted as an afterthought and was rejected by the trial Court. Trial Court discarded the evidence of motive produced by the prosecution on the ground that George John was not produced; neither any documents were produced to show that the deceased and the complainant supported him in the proceedings of a criminal case filed by him. Trial Court discarded evidence of recovery of weapons on the ground that independent witnesses from the locality were not examined to support the recovery and secondly report of the Serologist was not produced to show that the weapons were stained with human blood and in that respect report of the Chemical Examiner available in the record was not adequate as it only showed that the weapons were stained with blood. Trial Court in the conclusion awarded death sentence to Manzoor Masih with fine of Rs,10,000 or in default R.I. For one year.
Maqbool Masih was sentenced to life imprisonment with benefit of section 382-B, Cr.P.C. He was imposed with a fine of Rs,10,000 or in default R.I. For one year. Both Manzoor and Maqbool were acquitted of the charge under section 307/34, P.P.C. Since injuries attributed to Munir accused were simple in nature and were inflicted on prosecution witnesses, he was held guilty for offence under section 324, P.P.C. And sentenced to R.I. For two years on two counts with direction that they should run concurrently. Yaqoob Masih was acquitted by the trial Court for the reason that he was declared innocent during the investigation.
9. High Court on appeal, after appraisal of the evidence, came to the conclusion that both the parties had concealed the manner in which the incident had commenced and each party shifted the burden to the other party, hence it was held that the incident had occurred on account of a sudden fight between the parties and there was no common intention among the accused persons hence each one of them was liable only for the act committed by him. In the result, High Court set aside the conviction of Maqbool for offence under section 302/34, P.P.C. As he was found guilty for offence under section 324, P.P.C. And sentenced to a term of imprisonment already undergone by him with benefit of section 382-B, Cr.P.C. Conviction of Manzoor under section 302, P.P.C. Was maintained but his death sentence was not confirmed and reduced to life imprisonment for the reason that the death of Akhtar Shahbaz was not the result of premeditated attack but had been occasioned by a sudden flare up. He has been directed to pay a fine of Rs,10,000 as compensation to the heirs of the deceased or suffer R.I. For six months. This fine was in addition to the fine already imposed by the trial Court to be paid, if recovered, to the heirs of the deceased.
Munir was convicted for offence under section 324, P.P.C. And was sentenced to R.I. For two years by the trial Court and his counsel in the High Court did not press his appeal for the reason that he had already undergone the sentence, High Court vide the impugned judgment has also dismissed Criminal Revision No,192/89 filed by the complainant for enhancement of the sentence including amounts of fine.
10. In this Court also with the help of the counsel appearing for both the parties, we have gone through the evidence which is on the record and we feel inclined to agree with the High Court that it is a case of two versions; one asserted by the prosecution and other by defence. It appears from the record that in such circumstances factum of the incident as such is not disputed but is admitted and both the parties have given their own versions of the manner in which the incident had taken place. Keeping in juxtaposition both the versions and evidence in support thereof, it appears that the prosecution version is more realistic and nearer to the truth than the defence version for a variety of reasons. Firstly, prosecution witnesses admitted that they had caused injuries to Mansoor Masih, Maqbool Masih and Munir Masih while exercising their right of private defence. Receipt of injuries by the appellant and his co-accused, in the trial Court, is admitted by defence and they had produced D.W.1, Devis Gil, Senior Dispenser, who deposed that they were examined by Dr. Muhammad Ashraf who issued medical certificates in their favour. This shows that presence of both the parties at the spot is admitted and receipt of injuries by both the parties is also admitted. Secondly, injuries sustained by appellant Manzoor and his two other co-accused are smaller in number and simple in nature as compared to the injuries caused to the deceased and the other eye-witnesses which are larger in number and heavier in gravity. Deceased Akhtar Shahab sustained four incised wounds caused on different parts of his body, from which injury No,1 on left pupil was declared sufficient to cause death. P.W. Tahir Naveed sustained incised wound on the left side of his head which was bleeding profusely, P.W. Muhammad Tariq sustained three injuries out of which two were incised on the back of right lower chest and left forearm. The third injury was lacerated wound on the back of his head. Nature and number of injuries show that the deceased and the complainant party were not the attackers. Thirdly, if the deceased and the complainant party had been attackers and caused injuries to the accused persons, then they would have lodged FIR and could have gone to the police station first, which they did not do. It is not the case of defence that they went to the police station first before the arrival of the complainant and S.H.O. Refused to lodge their F.I.R. Fourthly, defence version that they were attacked first is supported by P.W.8, Muhammad Tariq, who is eye-witness and also was injured during the incident. This witness did not support the prosecution case and was declared hostile. He testified in the trial Court that he was returning with deceased and Tahir Naveed in rikshaw when they saw Munir going towards his house. They got down from rikshaw and in the meantime Manzoor and Maqbool also came out from the house of their sister. Munir was assaulted by Tahir Naveed P.W. And the deceased. Manzoor and Maqbool intervened to rescue Munir. They also attacked Akhter Shahbaz and Tahir Naveed P.W. After saying that, this witness very brazen facedly stated that at the time of incident it had become quite dark and a large number of persons had collected, therefore, he could not ascertain as to who had caused injuries to Akhtar Shahbaz,' Tahir Naveed P.W. And himself. This witness was friend of the deceased and it was suggested to him in the cross-examination by the prosecution that he had changed his version because he had been won over by the accused but he denied that suggestion. In the circumstances, no reliance can be placed on this witness. Fifthly, there were four accused persons on one side and three persons from the complainant party on the other. Number and nature of injuries on the complainant side more and graver than on the accused side which shows that the complainant side could not be the aggressor. In these circumstances, prosecution version can be relied upon that some injuries were caused to the accused by the complainant party while exercising right of private defence.
11. Facts and circumstances of this case as discussed above clearly indicate that both parties on seeing each other indulged in sudden free fight and had not come out with the true facts as to how and in what manner the occurrence had commenced. High Court has rightly assessed the evidence brought on the record. In such circumstances it would be right to say that in such free tight each participant would be liable for his individual act. On this point it would be advantageous to make reference to the case of Abdul Rahman v. Gadai Khan and 3 others (1972 SCM R 676) in which it is held that when parties are hostile to each other and it is impossible to say that accused party were acting in the defence or in exercise of right of private defence of person or property, then no question of right of private defence would arise and each participant in the free fight would be liable in his individual act. Vital injury in this case is attributed to appellant Manzoor Masih whose death sentence is not confirmed by the High Court and reduced to life imprisonment for valid reasons.
12. For facts and reason mentioned above, we are satisfied that no interference is warranted with the impugned judgment which is hereby upheld and in the result appeal is dismissed which has no merits.