' KAMAL MUSTAFA BOKHARY, J.-Thiraj (aged 30 years) and Allah Ditta (20 years), sons of Amir and their father Amir son of Ahmad, Farid (80 years), Rajab (55 years), Dara (45 years), Allah Yar (70 years), all sons of Ahmed and Bashir (24 years) son of Allah Yar were tried for the murder of Manzur (aged 18 years) and for murderous assault on Rustam and Haq Nawaz P. Ws. And Ahmed Yar (not examined as won-over) and for rioting having armed themselves with deadly weapons after forming themselves into an unlawful assembly in prosecution of their common object. Rao lqbal Ahmad Khan, Additional Sessions Judge, Multan, vide his judgment and order passed on 30-8-1975 convicted Thiraj and Bashir aforementioned under section 302, P. P. C. For their individual acts and sentenced Thiraj to death and to pay a fine of Rs, 2,000 or in default of its payment to further undergo R. I. For a period of two years while Bashir was sentenced to life imprisonment and to pay a fine of Rs, 1,C00 or in default of Its payment to further suffer R. I. For a period of one year and in the event of the fine being realized the entire amount was ordered to be paid as compensation to the heirs of Manzur deceased. Thiraj and Bashir both were acquitted of charges under section 307/149, P. P. C. Amir and Allah Yar aforementioned were convicted under section 324, P. P. C. For their individual acts for causing injuries to Rustam and Haq Nawaz P. Ws. And each of them was sentenced to suffer R. I. For three years and to pay a fine of Rs, 500 each or in default of its payment to further suffer six months' R. I. Each. Farid, Allah Ditta, Rajab and Dara aforementioned were sentenced to suffer R. I. For one year under section 323 for causing simple injuries to Rustam and Haq Nawaz P. Ws. Farid, Allah Ditta, Rajab, Dara. Allah Yar and Amir were acquitted under section 302/307/149, P. P. C. But all of them were sentenced to suffer R. I. For three years each under section 148, P. P. C. And their substantive sentences were ordered to run concurrently. All the eight convicts filed appeal against their convictions and sentences and the learned trial Judge sent reference under section 374, Cr. P. C. For confirmation of the death sentence of Thiraj appellant. This judgment will dispose of both the Matters.
2. The F.
1. R. In this case was lodged at Police Station, Kabirwala, District MuRan, on 10-5-1972 at 10 p.m. On the statement of Allah Ditta P. W, (not an eye-witness) in respect of an occurrence which allegedly took place on the same day at 3 p.m in a field in the area of Mauza Yakka, Tehsil Kabirwala, District Mu!Tan. It was originally registered under sections 148, 307/323/149, P. P. C. But after the death of Manzur in hospital section 302, P. P. C. Was also added. The distance between the spot and the police station was given as nine miles.
' Allah Ditta complainant stated therein that he was resident of Rukanpur and his family had purchased l square of land in Mauza Yakka from Nishat Ahmad and Iintiaz Ahmad of Khanewal about three or four years earlier and the land adjacent to it belonged to Major Ahab Daha of Khanewal, measuring about 16 acres, which was being cultivated by Allah Yar, Amir, Rajab and Farid appellants sous of Abmad etc. After getting it on lease for about three or four years prior to the occurrence but they had also illegally occupied about two acres of land of the complainant party and had included it in the lease land but the complainant party bad taken possession of that two acres of land from the appellants' party about a year prior to the occurrence. He further stated that in the current kharif crop season Major Aftab also got back his 16 acres of land from Allah Yar appellant etc. Which was on lease with them and Major Aftab started self-cultivation on it. Because of those two incidents Allah Yar appellant and others felt aggrieved and Ahmad Yar appellant took back that lease land from Major Aftab and also obtained therein four bighas of land on account of which Allah Yar appellant and his relations had felt aggrieved. He also stated yet another dispute with the appellants. According to him the turn of water of Bashir Ahmad appellant and Thiraj appellant who bad irrigated their locsan crop in the lease land ended at 2-45 p.m. On the day of occurrence and thereafter it was the turn of the complainant party due to which the brother of the complainant, namely, Rustam injured P. W. Went to divert water at 2-45 p.m. When Bashir appellant and I hiraj appellant did not permit him to do so as a result whereof they exchanged hot words and attacked the complainant party. Amir appellant armed with a hatchet, Rajab, Dara and Farid appellants sons of Ahmad armed with a sofa each, Allah Ditta appellants also with a solo, Allah Yar appellant carrying a hatchet, all residents of Mauza Yakka who were hiding themselves behind a wall suddenly came out and opened the attack. Farid and Allah Ditta appellants started causing injuries to Rustam P.W. On whose alarm Hay Nawaz injured P.W. Manzoor deceased and Ahmad Yar injured (not examined), all residents of Rukanpur, went forward to the spot in order to separate the parties when Allah Yar appellant hit Hay Nawaz P. W. With hatchet on his head and Rajab appellant gave sofa blows to Haq Nawaz P. W. On head and left arm. Thiraj appellant gave a iota blow to Manzur deceased on his head while Bashir appellant gave an iota blow to the deceased on his eye.
Dara appellant caused injuries to Ahmad Yar P. W. On his left arm and head while Amir appellant gave a hatchet blow to Ahmad Yar P. W. On his chest. The occurrence was witnessed by Mehr Mahmood of Rukanpur und Bashir Ahmad of Raipur. During that occurrence out of the appellants Allah Ditta, Farid, Allah Yar, Amir and Rajab also suffered injuries at the hands of the members of the complainant party. The complainant concluded his statement by saying that he was at his Arhat shop and on coming to know of the occurrence he reached the spot when the injured persons and witnesses of the complainant party told him the details of occurrence as a result of which the complainant brought all the injured members and the witnesses alongwith relations and got the injured persons admitted in the hospital at Kabirwala and after obtaining their medico legal certificate reported the matter at the police station while the condition of Manzur deceased being precarious the doctor after medical examination immediately sent him to the Nishtar Hospital at Multan while the remaining injured persons had been admitted in the hospital at Kabirwala. He produced their medico legal reports.
' It is to point out here that a cross case at the instance of one Sher Muhammad son of Shamir of the party of the appellants bearing F. I. R. No, 164 (Exh. D. C. At page 85 of the printed paper book) was also registered at the same Police Station, Kabirwala, on the same day I e. 10-5-1972 at 10-45 p.m. That report was lodged on the statement of said Slier Muhammad recorded at the spot when All Muhammad S. H.
0. Visited the spot in connection with the investigation of the F. I. R. Of the complainant party of the present appeal. In the F. I. R. No, 164 eight persons of the complainant party of the present appeal were accused of offences under sections 148 and 324/149, P. P. C. And their names were Rustam P.
W., Muhammad Yar, Ahmed Yar, Wali Muhammad, Manzur deceased, Waryam Allah Ditta and Haq Nawaz P. W. Who were alleged to have caused injuries to five appellants namely Farid, Allah Ditta, Rajah', Allah Yar and Amir. The accused in that F. I. R. Were also challaned but we are informed that they were acquitted by the trial Court.
3. Malik All Muhammad (P. W. 11), who was then posted as S. H.
0. At the Police Station, Kabirwala, after recording the formal F. I. R. There visited the hospital in order to record statements of the injured P. Ws. But the doctor declared Haq Nawaz P. W. As unfit to make the statement. Therefore, the investigating officer recorded the statements of Rustam P. W. And Ahmad Yar not examined). On 11-5-1972 he went to Nistitar Hospital, Multan and learned about death of Manzur upon which he sent his dead body to the mortuary for autopsy after completing the formalities. Then he visited the spot and on arrival there he secured blood-stained earth, vide memo. Exh. P. J. On the same day he took into possession last worn clothes of the deceased which were brought to him by the Foot Constable after the post-mortem examination. On 13-5.1972 he arrested the appellants namely Thiraj, Allah Yar, Bashir, Dara and Farid. Thiraj and Bashir appellants led to the Investigating Officer to the recoveries of sota (P. 5) and (P. 6) respectively from the khalwara which were secured vide memos Exh. P. L. And P. M. Allah Yar, Dara and Farid appellants produced their sotas (P. 4), (P. 7 and 8) which was secured vide memos. Exh. P. K., P. N. And P.
0. Respectively. Sofa (Exh. P. 5) of Thiraj appellant was found to be stained with human blood but rest of the sotas were not blood-stained. The investigating officer got prepared copy of warabandi report (Exh. P. V.) from the canal Patwari, Abdul Rehman. He also got prepared the site plan. On completion of investigation the the police challaned the eight appellants for trial in Court.
4. Dr. Altaf Hussain Girdezi (P. W. 1), conducted post-mortem examination on the dead body of Manzur (aged 18 years), on il-5-1972 at about 5-40 p.m. And found two injuries on his dead body.
Injury No, 1 was a contused wound (stitched) on the right side of the head, 3' above the right eye- brow. Injury No, 2 was a contusion on the outer side of the right thigh in its middle. He bad died in the hospital on 10-5-1972 at 9-30 p.m. Accord-mg to the post-mortem examination report (Exh. V.
Q.). In the opinion of the doctor the cause of death was shock and intracranial haemorrhage due to injury No, 1 which was sufficient to cause death in the ordinary course of nature and that both the injuries were caused by blunt weapon. He gave the time between injuries and death as about 6 to 12 hours and that between death and post-mortem was given by him as 18 to 20 hours. He proved his post-mortem examination report. He was not cross-examined by the defence before the committing Magistrate nor was he examined or cross-examined at the trial.
5. Dr. Abdul Rauf Bhatti (P. W. 2) medically examined Manzur deceased, aged 18 years, while he was still alive, in the civil hospital at Kabirwala, on 10-5-1972 at 5 p.m. And recorded two injuries on his person which were the same as detailed above in his post-mortem examination report.
' The same doctor also medically examined Rustam P. W., aged 26 years, on the same day and recorded four injuries on his person in his medico legal report, all of which were blunt weapon injuries in the nature of contused wounds with swelling on the head, on the upper part of the head, on the right little finger and on the right upper arm on the outer and inner side. The duration of injuries was given as within six hours.
' The same doctor on the same day at 5 p.m. Medically examined Ahmad Yar (not examined by the prosecution or defence), aged 28 years, and noted down three injuries on his person out of which injury No, 2 was caused with sharp-edged weapon while the remaining two injuries were caused by blunt weapon and injury No, 3 was grievous in nature while remaining two were declared simple in nature. All the injuries had been caused within a duration of six hours.
' The same doctor on the same day also medically examined Hag Nawaz P. W. Aged 35 years, and noted four injuries on his person, all of which had been caused within a duration of six hours, were declared simple and except injury No, 1 which was caused by sharp-edged weapon rest were caused by blunt weapon. Injury No, 1 was an incised wound on left side of the forehead, injury No, 2 was a contusion on the upper part of the right eye which was swollen, injury No, 3 was an abrasion with swelling on the left parietal bone of skull and injury No, 4 was also a swelling 8" x all around the left elbow joint.
6. According to the same doctor, namely, Abdul Rauf Bhatti, who was examined as D. W. 1, out of the appellants Rajab, Amir, Allah Yar, Allah Ditta and Farid were found to have suffered injuries in the same occurrence according to the medico legal reports, dated 10-5-1972, of that doctor. Rajab appellant, aged 55 years, had five simple injuries out of which injury Nos. 1, 2, 3 and 4 were incised wounds on the top of head, on right side of head, below injury No, 2, on left index finger and a blunt weapon injury which was an abrasion on the outer side of the joint.
' Amir anpellant also had four simple injuries on his person out of which injury No, 1 was an incised wound on the left side of head while remaining three were blunt weapon injuries like contused wounds on left side of the head, on the top of the head and a contusion on the left shoulder. Allah Yar appellant had three simple blunt weapon injuries like contused wounds with swelling on the right side of head, a contusion on the right shoulder joint and also a contusion on the back of left shoulder. Allah Ditta appellant had two simple blunt weapon injuries one of which was a contused wound with swelling on the right side of the head and the wound was bleeding while scond injury was a contusion on the left shoulder joint. Farid appellant had one simple sharp-edged weapon injury of six hours duration which was an incised wound on the left parietal region.
7. At the trial prosecution examined 11 witnesses in all. Allah Ditta (P. W. 8) was examined as a complainant who lodged the F. I. R. On receipt of information but was not an eye-witness of the occurrence and he repeated the facts narrated by him in the F. I. R. Rustam injured (P. W. 9) and Haq Nawaz also injured (P. W. 10) were examined as eye-witnesses. Ahmad Yar injured, Mahmood and Muhammad Bashir were given up as won-over witnesses. The recoveries of blood-stained sofas (P. 5) from Thiraj appellant and four others. Weapons not blood-stained which were hatchet (P. 4) of Allah Yar, rota (P. 6) of Bashir, sota (P. 7) of Dara and a rota (P. 8) of Farid appellants were proved by Bashir Ahmad (P. W. 7) and the investigating officer, All Ahmad S. H.
0. (P. W. 11). Other formal witnesses were also examined. They all supported the prosecution case.
According to the report (Exh. P. D.) of the Serologist the earth recovered from the spot and the scrapping from rota of Thiraj appellant were found stained with human blood.
8. The appellants pleaded not guilty to the charges. When examined under section 342, Cr. P. C.
Thiraj, Bashir and Dara appellants who were not injured in the occurrence denied their presence and participation and attributed their false implication due to enmity. They also denied all other allegations of the prosecution, motive as well as recoveries. However, Thiraj appellant had admitted before the committing Magistrate in answer to question No, 2 that according to sanctioned warabandi of the Canal Department the complainant party had to take canal water at 2-45 p,m. As alleged by the prosecution. At the trial Thiraj stated that actually Rustam P. W. Had diverted water at 2-25 p.m. And he went to the spot and re-diverted water to his own field, he left the place of occurrence and thereafter he learnt that party of the appellants were injured by Rustam P. W. And his party-men and they were at Kabirwala. He also stated at the trial that during all that time he was with Girdawar. Bashir appellant before the committing Magistrate had stated in reply to question No, 8 that the complainant party themselves murdered Mansur intentionally and falsely implicated the party of the appellants but at the trial he gave almost the same statement as was given by Thiraj appellant. In addition at the trial Bashir also stated that Rustam P.
W., Manaur deceased, Haq Nawaz. P. W, Ahmad Yar and others had made murderous assault on the appellants, namely, Rajab, Amir, Allah Ditta Allah Yar and Farid, who in exercise of their right of self-defence of their person and property caused injuries to them. Dara appellant made a similar statement before the committing Magistrate but at the trial he stated that Rustam P. W. Had no sanctioned warabandi at all and that the appellant had been involved in the case because he was related to his co-accused. Rest of the five appellants had suffered injuries in the same occurrence.
They denied the allegations of the prosecution but did not deny their presence and participation and stated that all the five of them acted in the exercise of their right of self-defence and in defence of their property.
' According to Farid appellant they had been involved in the case because Manzur died in the hospital otherwise the complainant party was the aggressor and had attacked the appellants' party without any reason and it was the appellants' party who had turn of water and that the appellant party had been victimised by the police. In reply to the question how he explained the injuries on his person he stated that Bashir and Thiraj appellants were watering their fields when Rustam P. W. Reached at 2-25 p. In. And diverted the water upon which Thiraj and Bashir appellants reverted the water forthwith to their fields and as a result thereof Rustam P. W. Went to his Bhaini and brought his companions when Bashir and Thiraj appellants had left the place to inform the Girdawar. He further stated that Rustam P. W. Brought Muhammad Yar, Manzur, Ahmad Yar, Waryam (since dead), Allah Ditta, Haq Nawaz P. W. And Walla out of whom Muhammad Yar, Manzur, Rustam P. W. And Walla were armed with hatchet meanwhile others carried dang each. He continued to state that out of the appellants he himself. Allah Ditta, Farid, Allah Yar and Amir were also attracted towards the fields which were being irrigated when the complainant party attacked the appellant's party and tried to divert the water upon which the appellant's party prevented them from doing so. Consequently, the complainant party attacked the appellant's party with their respective weapons due to which he alongwith other appellants namely Amir, Allah Yar, Farid and Allah Ditta were subjected to a murderous assault and suffered injuries at the hands of the complainant party and the said appellant's party including himself caused injuries to the complainant party in defence of their person and the canal water. The other four appellants who had also suffered injuries as aforementioned took up the same plea.
9. The learned trial Judge believed the ocular evidence and found that initially the aggression was committed by Thiraj and Bashir appellants and it was on the alarm of Rustam P. W. That Manzur deceased reached the spot alongwith Ahmed Yar (not examined) and Haq Nawaz P. W. In order to rescue Rustam P. W. Therefore, he bifurcated the accused arrayed before him into different categories and awarded them different sentences as mentioned in paragraph 1 above. He rejected the defence plea of the appellants.
' The learned counsel for the appellants argued that the occurrence in this case was not denied by the appellants but it was the complainant party who was the aggressor and the appellants acted in the exercise of right of private defence of their person and property while three of the appellants namely, Thiraj, Dare and Bashir were not present and had been falsely roped in. According to the learned counsel for the appellants it was a sudden affair in which the complainant party took undue advantage in diverting the canal water at 2-25 p. m. Although their turn had not yet started which became the cause of altercation and the same developed into a flare-up and fight between the parties in which both sides suffered injuries and the appellant party suffered more harm than that of the complainant party. The learned counsel for the State submitted that the convictions and sentences awarded to the appellants by the learned trial Judge be maintained for the cogent reasons given in his judgment under appeal.
10. We have been taken through evidence in this case which we have perused and considered in the light of submissions made by the learned counsel for the parties. We find from the evidence particularly the statements of the appellants before the committing Magistrate as also the statement of some of the appellants at the trial that the immediate cause was sudden in nature being dispute over the turn of water. According to the prosecution the turn of canal water of the complainant party was to start at 2.45 p.m. And when Rustam P. W. Went to take his turn the members of the appellants' party refused to permit him to do so whereas the plea of the party of the appellants was that the complainant party tried to divert water and in fact some of the appellants also stated that the complainant party actually diverted the water at 2-25 p. m.
1. e. About twenty minutes before the schedule time of turn of water of complainant party which was to commence at 2-45 p.m. The time, place and cause of death of Manzur deceased including fatal injury which was attributed to Thiraj appellant as also injuries to other two prosecution witnesses in the same occurrence are not disputed. The medical evidence proved beyond any shadow of doubt that the deceased suffered fatal injury in the same occurrence in which Rustam and Haq Nawaz P. Ws. Also suffered injuries. The real question for determination is that who was at fault or who was the aggressor. Both the eye-witnesses suffered injuries and the medical evidence proved that both of them suffered it in the same occurrence. Therefore, their presence at the spot at the time of occurrence cannot be doubted. It was not disputed by the defence either. The perusal of evidence on record discloses that the testimony of the eye-witnesses, namely, Rustam and Haq Nawaz, is consistent uniform and inspires confidence. No previous longstanding enmity existed between the parties. It appears to be a case of misunderstanding with regard to the time over the turn of water. According to the prosecution the turn of water was at 2-45 p.m. Which was admitted by the appellants in their statements before the committing Magistrate as well and even otherwise there is no reason to disbelieve that part of the testimony of the prosecution witnesses but the complainant party either diverted the water at scheduled time of 2-45 p.m. Or 20 minutes earlier on account of some misapprehension of time or wanted to do so which was resisted by the party of the appellants. In any eventuality it was a case of sudden flare-up in which both the parties on being attracted on alarm of Rustam P.W. Reached the spot well in time armed with deadly weapons mostly sotas and then free fight ensued. The result was that on the complainant side one person namely Manzur died as a result of injury suffered by him in that occurrence while three others including two eye-witnesses and one witness, not examined as won-over, suffered injuries while five of the appellants also suffered simple injuries in the same incident. The fatal injury to the deceased was attributed only to Thiraj appellant while Bashir was attributed simple injury on the leg of the deceased and rest of the appellants were attributed injuries to the two eye-witnesses and the witness who was not examined. We are fully satisfied that the case of the appellants is covered by Exception IV of section 300, P. P. C. And it being a case of free-fight each member of the appellants was responsible for his individual act. In the circumstances of the case and on the evidence on record we do not consider it a fit case to uphold the convictions and sentences awarded by the learned trial Judge but we feel satisfied to alter the same in the manner given below.
11. Since Thira appellant caused fatal injury to the deceased and his case was covered by Exception 1V to section 300, P. P. C. His conviction and sentence under section 302, P. P. C. Is set aside and the same is altered to section 304, Part 1, P. P. C. And he is sentenced to suffer R. I. For a period of ten years and to pay a fine of Rs, 1,000 or in default of its payment to further suffer R. I. For one year. In case the fine is realized whole of it shall be paid to the heirs of the deceased. The conviction of Bashir appellant under section 302, P. P. C. Is also set aside and instead he is convicted under section 323, P. P. C. For simple injury to the deceased and his sentence is reduced to that already undergone by him. He shall be set at liberty forthwith if not required in any other case. Ahmed Yar who suffered injuries in the same occurrence was given up by the prosecution has won-over and was not examined at the trial in this case. His injuries were attributed to Amir appellant. Therefore, the conviction and sentence of Amir appellant under section 324, P. P. C. Is set aside and he is acquitted. The conviction of Abroad Yar appellant under section 324, P. P. C. Is set aside and he is acquitted. The conviction of Ahmad Yar appellant under section 324, P. P. C. Is maintained but his sentence is reduced to that already undergone and the fine imposed by the learned trial Judge is remitted. The convictions of Farid, Rajab, Dara and Allah Ditta under section 323, P. P. C. Are maintained but their sentences are reduced to already undergone. The convictions and sentences of appellants, namely, Farid, Dara, Allah Ditta, Rajah, Allah Yar and Amir appellants under sections 148, P. P. C. Arc uncalled for and are set aside. We have reduced the sentences of the appellants except Thiraj to already undergone. They were originally arrested on charge of murder in the month of May, 1972 and since then they have suffered the agony of protracted investigation and trial. They were convicted on different charges aforementioned on 30-8-1975. It is for those reason that we reach the conclusion that their sentences be reduced to already undergone. Except Thiraj appellant all the remaining seven appellants namely, Farid son of Ahmad, Allah. Ditta son of Amir, Rajab son of Ahmad, Dara son of Ahmad, Allah Yar son of Ahmad, Amir son of Ahmad and Bashir son of Allah Yar be set at liberty forth with if not required in any other case. This appeal is accepted to that extent.
' The death sentence of Thiraj son of Amir appellant is not confirmed.