TASADDUQ HUSSAIN JILANI, J.---This Criminal appeal, connected Murder Reference and the two Criminal revisions arise out of the judgment, dated 15-5-1991 passed by the learned Additional Sessions Judge, Bhakkar, whereby he (in case F.I.R.. No.193 dated 28-7-1989, Police Station Saddar, Bhakkar) while acquitting Fateh Sher, Feroze son of Razi, Yasin and Mitha son of Ahmad, convicted Ramzan, Feroze son of Gama, Mitha -son of Sawaya, Jamroze son of Gama, Abdul Majid son of Mitha, Allah Diwaya son of Sawaya under section 302, P.P.C. Read with section 149, P.P.C. And a fine of Rs.10,000 each in default whereof to unc]ergo one year's R.I. Each. Allah--Dawaya appellant was also convicted under section 302, P.P.C. But was sentenced to death and a fine of Rs.10,000 in default whereof to undergo further one year's R.I.
2. The prosecution story as narrated by the complainant Allah Dad (P.W.9) is that on 28-7-1989 at about 3=30 p.m. He alongwith Hussain Bakhsh and Abdul Majid P.W.10 were present in their land weeding out bushes when accused Allah Dawaya, Mitha armed with Vaholas, Abdul Majid son of Mitha, Feroze son of C-ama and Jamroze armed with Sotas; Yasin armed with a rifle; Feroze son of Razi and Ramzan armed with .12 bore guns and Fateh Sher empty handed reached the spot. Fateh Sher raised a Lalkara that Hussain Bakhsh (deceased) Abdul Majid and Allah Dad (complainant PW.) may be killed so that they understand how possession over Shamlat Deh land is occupied.
Allah Diwaya inflicted a Vahola blow on the back side of the head of Hussain Bakhsh (deceased); 'Mitha inflicted a Vahola blow at the left upper arm of Hussain Bakhsh; Abdul Majid son of Mitha accused gave Sota blow on the right wrist of Hussain Bakhsh and Jamroze gave a Sota blow on the chin of Hussain Bakhsh. During the scuffle, Hussain Bakhsh (deceased) gave injuries to Ramzan and Feroze accused. As Abdul Majid P.W. Tried to rescue Hussain Bakhsh deceased, Mitha son of Ahmad accused gave a Sota blow on the right wrist of Abdul Majid whereupon he fell down. As he lay on the ground, Mitha son of Sawaya accused gave Vahola blows on his right buttock. Jamroze accused gave a blow to Abdul Majid on his right thigh. Feroze son of Gama also hit Abdul Majid of his right thigh. Abdul Majid son of Mitha accused hit Abdul Majid P.W. On his left buttock and Allah Dawaya gave a Vahola blow on the back of Abdul Majid. The complainant was given a blow by Jamroze which landed on his head. On the hue and cry raised Abdul Ghafoor and Mulazim Hussain (P.W.12) were attracted to the spot. Hussain Bakhsh who was injured was shifted to the hospital the same day where he succumbed to the injuries on 28-7-1989.
3. The motive alleged in the F.I.R. Is that there was some civil litigation pending in Courts qua possession of Shamlat Deh between the complainant and Fateh Sher.
4. During the trial, the prosecution examined fifteen witnesses including the doctor and the Investigating Officer. The accused, when examined under section 342, Cr.P.C. Denied the prosecution story. Accused Ramzan son of Gama and accused Feroze son of Gama, however, gave their own version of the occurrence. According to them, they were present at the disputed Khasra numbers which were in their possession. Allah Dad, Abdul Majid and Hussain Bakhsh armed with Vaholas and Abdul Ghafoor armed with gun appeared and attacked them. Abdul Ghafoor fired a shot but it did not hit anybody. Further added: -- "In our defence we caused injuries to the above said persons and snatched the gun from Abdul Ghafoor which was later on produced by Ashiq Hussain son of Malook, before the police. The complainant party was aggressor and there was an open fight and with no intention to cause murder."
5. P.W.5 Dr. Nisar Hussain Medical Officer, D.H.Q. Hospital Bhakkar conducted the post-mortem examination of the dead body of Hussain Bakhsh deceased. He found the following injuries on the person of the deceased: --
(1) A contused sticked wound 6 c.m. x 2 c.m. On head 14 c.m. Above and behind from left ear.
(2) A bruise of the size 10 c.m. x 5 cm. On outer side of left upper arm with diffused swelling of lower half of left upper arm. On dissection clotted blood was present under this injury.
(3) A contused wound 2 x 1 c.m. On inner side of lower lip on the right side.
(4) A swelling of size 5 c.m. x 5c.m. On the back of left wrist joint.
In his opinion cause of death was the head injury which caused fracture of the left temporal bone which in turn produced intra carnial haematoma which caused compression of brain resulting in death. All the injuries were ante--mortem.
6. The investigation of this case was partly conducted by Saleemullah Khan S.I. (P.W.15). He arrested accused Ramzan son of Gama, Feroze son of Gama, Allah Wasaya, Mitha son of Ahmad and Fateh Sher and also recorded the Dying Declaration of Hussain Bakhsh deceased which is Exh.P.1 in hospital. He also got examined Muhammad Ramzan and Feroze sons of Gama who appeared before him in an injured condition. P.W.14 Ameer Ahmad D.S.P. Also investigated this case. He arrested Mitha son of Sawaya, Abdul Majid, Yasin, Jamroze and Feroze. Mitha son of Ahmad while in custody led to the recovery of Sota P.6 which was taken into possession vide memo. Exh.PO. Abdul Majid son of Mitha led to the recovery of a Sota P.7 which was taken into possession vide memo.
Exh.PP. Feroze son of Gama led to the recovery of a Sota P.8 vide memo. Exh.PQ. Jamroze son of Gama led to the recovery of Sota P.9 vide memo. Exh.PR. Allah Dawaya son of Allah Wasaya led to the recovery of Vahola P.10 vide memo. Exh.PS. And Mitha son of Sawaya led to the recovery of Vahola P.11 vide memo. Exh.PT. These memos, were attested by Sultan Mahmood (P.W.11) and Mulazam Hussain A.S.I, (P.W.12) who partly investigated the case.
7. The ocular account was furnished by Allah Dad complainant who appeared as P.W.9. He gave a detailed version of the occurrence in question as narrated by him vide F.I.R. Exh.PG./1. Abdul Majid appeared as P.W.10. He corroborated the statement made by Allah Dad complainant. Both these eye--witnesses are injured. P.W.9 received two injuries while P.W.10 received five injuries during the occurrence in question.
8. The learned counsel for the appellants (Mian Aftab Farrukh, Advocate) in support of the above- cited appeal has urged as follows: --
(i) That the prosecution story is false and it has suppressed material evidence. In fact the accused- appellants were the victims of aggression.
(ii) That the occurrence took place in Khasra No.3499 which, was in cultivating possession of the accused.
(iii) That on the fateful day and time, Ramzan and Feroze sons of Gama were present at the place of occurrence weeding out the bushes when the complainant party attacked them and caused them injuries. It was during this fight that the prosecution witnesses also received some injuries.
(iv) That P.Ws. Allah Dad and Abdul Majid are admittedly related inter se. As the criminal and civil litigation was pending, the witnesses are not only related but interested also.
(v) That the statement of Allah Dad (P.W.9) does not inspire confidence inasmuch as if Hussain Bakhsh deceased had received the injuries one of which (injury No.1) was compression of the brain, he could not have caused the injuries to the accused party as stated by the complainant.
(vi) That no reliance can be placed on Dying Declaration as it was neither signed by the doctor nor the deceased could have been in a position to make such a statement in view of the fatal nature of the head injury that he had received. In this connection reliance was placed on 1950 Appeal Cases 203 (at page 211) and AIR 1949 PC 299.
(vii) That as the other appellants were not present at the spot, only injured appellants, namely, Ramzan and Feroze are liable for their individual acts.
9. The learned State counsel has defended the impugned judgment.
10. Mr. MA. Zafar, Advocate, the learned counsel for the complainant while pressing Criminal Revision No.451/91 has prayed that the fine awarded to the appellants may be enhanced and a compensation as required under section 554-A, Cr.P.C. May be awarded. In Criminal Revision No.768/91 he has prayed that the sentences awarded to Feroze, Ramzan, Abdul Majid, Mitha and Feroze may be enhanced and they may be awarded sentence of death.
11. In support of his pleas, the learned counsel for the complainant has made the following submissions: --
(i) That the possession of the disputed land was with the complainant party at the relevant time and the appellants had launched the attack with a view to dispossess them. P.W.6 Khalil Hussain Patwari has supported the prosecution case qua 'possession and he has categorically denied the accused version that they were in possession of the disputed land. Controverting the defence version, in an answer to a question, this witness has specifically stated that: -- "It is incorrect that at the spot the accused party is in cultivation possession of Khasra No.3499 and Khasra No.3745/3502."
(ii)That the statements of P.W.9 Allah Dad and P.W.10 Abdul Majid inspire confidence as they are injured and their presence at the spot is not denied by the accused.
(iii) That the `Dying Declaration' Exh.PT is strong corroborative piece of evidence which in absence of any motive attributed to S.I. Saleemullah Khan (P.W.15) who recorded the same, cannot be disbelieved. No suggestion was put to P.W.15 that Hussain Bakhsh deceased was not fit to make the statement Exh.PT. The lack of endorsement by a doctor on the `Dying Declaration' would not ipso facto demolish its evidentiary value. Reliance was placed on PLD 1982 Pesh. 148 and 1969 PCr.LJ 482.
(iv) That the complainant's possession over the relevant Khasra Nos. Is evident from .Yet another corroborative piece of evidence i.e. Blood--stained earth was recovered from Khasra No.3502.
(v) That the medical evidence corroborates the ocular account and strengthens the prosecution case.
12. We have given our anxious consideration to the respective pleas raised by both the sides. It is not a case of complete denial by the defence rather it is a case of counter-version. The defence plea was taken up in the statements of Ramzan and Feroze accused under section 342, Cr.P.C. Who admitted the occurrence and pleaded that on the fateful day and time, the complainant party launched an attack to forcibly take the possession of the disputed land and caused injuries on both of them. It was only in the self-defence, they pleaded, that they snatched the gun from Abdul Ghafoor and caused injuries to the complainant party. It was also pleaded that the accused party was in possession of Khasra Nos.3499, 3745 and 3502.
13. The prosecution case is that they were in possession of Khasra No.3502 and the accused party attacked, them for keeping the possession over the said land. Allah Dad complainant, however, admitted in his cross-examination that the accused person filed civil suits against the complainant party in respect of Khasra Nos.3499, 3521 and 3502 etc. Wherein they claimed physical possession of these Khasra Nos. It was-also admitted that the accused party had been granted stay order. If the accused party had gone to the civil Court to protect their possession then there was no occasion or reason for them to take a forcible possession of the same or to teach the complainant party a lesson for keeping the possession as alleged by the complainant.
In a case of counter-version motive assumes great significance and the motive in the instant case is too weak to have prompted the accused party to mount the alleged attack.
14. The ocular account of the prosecution case consisted of P.W.9 Allah Dad and P.W.10 Abdul Majeed. Both of them are injured witnesses yet in the presence of civil and criminal litigation pending, their testimony cannot be accorded credence without independent corroboration. This independent corroboration is lacking. Even the medical evidence does not fully corroborate the ocular account. For instance according to Allah Dad P.W.9, Hussain Bakhsh deceased had caused injuries to the accused when he had already received half of the injuries (page 39 of the judgment). He received three injuries in total and only injury No.1 proved to be fatal which was scalp deep in an area of 15 c.m. x 13 c.m. In the temporal region. The other two injuries were simple. One being bruise and the other being a contusion. It is in evidence that he received injury No.1 before he acted in self-defence. Had he received injury No.1 before he acted in self-defence, he would have been incapacitated to cause any injury to the accused.
15. It is in the statement of P.W.9 Allah Dad that Abdul Ghafoor was having his licensed gun which was taken away by the accused at the time of occurrence when Ghulam Yasin and Feroze fired in the air. If the complainant party was weeding the bushes, as claimed by them, there was no point for Abdul Ghafoor P.W. Being present at the place of occurrence armed with .12 bore gun.
16. As per the prosecution story three persons from the accused party were armed with fire-arms while the rest were armed with Sotas and Vaholas but none (according to the prosecution) from the complainant party received any fire-arm injury. The complainant party in all received eleven injuries and all of them were found to be simple in nature. As against this, the accused party received eight injuries.
According to Khalil Ahmad Patwari (P.W.6) distance between the: place of fight and the place from where blood-stained earth was recovered is thirty-five karams. This makes the prosecution story further inconsistent as Hussain Bakhsh could not have run 35 karams after having received injury No.1.
17. Coming to the defence pleas we rind that the accused party is also not coming out with truth. It is not possible that the complainant party would come armed to attack the accused party with a view to dispossess them when the matter was pending in a Civil Court and which was ultimately decided against the accused party.(as per the prosecution evidence) after the occurrence.
18. It is case wherein both the sides have attempted to suppress facts as a result of which the exact place of occurrence and as to who attacked first and what was the immediate cause of the alleged occurrence are not free from doubt. In such a case a duty is cast upon the Court to sift the evidence with a view to draw proper inference as to the manner in which the occurrence took place and the quantum of criminal liability on either side. This would be in line with the dictum laid down by the Hon'ble Supreme Court in Nazar Hussain v. Ameer alias Ameero and others 1988 SCMR 286 wherein at page 290 it was observed as follows: --- "Neither the prosecution nor the defence having come out with the true version, Court was called upon to sift the evidence in order to draw proper inference from evidence and circumstances and in such a case where there was no direct reliable evidence to show as to in what precise manner the victim came to be killed, Court has to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and if so what offence if any had been committed by such a person---High Court, in the circumstances of the case was justified in examining the probabilities of the case in the light of evidence and surrounding circumstances proved on the record---Motive disclosed in evidence, in absence of animosity between the parties, seeming to be very trivial and unlikely to cause the passions to rise to such an extent that a number of people from both sides would come into an armed clash resulting in serious injuries and death to one of the participants---No circumstances, on the other hand, to support the defence version---Inference inevitable that the true cause of conflict between the parties was being suppressed on either side and lay burried in mystery---Fact that number of injuries were inflicted on the accused side and fatal injuries were on complainant side indicated that both parties were armed at time of occurrence and it could not be said which party was the aggressor and in such circumstances there was no question of self-defence and each person would be responsible for his own individual acts---Accused were, therefore, rightly convicted and sentenced under sections 300, Exception 4, 304 and 326, P.P.C. And not under section 302, P.P.C."
19. Keeping in mind the afore-referred principle for the appreciation of evidence in a case of counter-version, we hold that it was a case of sudden fight, and the case would fall under section 304, Part Il, P.P.C. And not under section 302 of the P.P.C. Feroze and Ramzan appellants sons of Gama, both have admitted their presence at the spot. They are therefore, convicted under section 304, Part 11, P.P.C. And sentenced to imprisonment which they have already undergone. They are also sentenced to a fine of Rs.20,000 each in C default whereof to undergo further R.I. For a period of two years each. The amount of fine, if recovered, shall be paid to the legal heirs of Hussain Bakhsh deceased. They are further convicted under section 323, P.P.C. For causing injuries to Allah Dad and Abdul Majid P.Ws. And sentenced to one year R.I. Plus a fine of Rs.5,000 each in default whereof to further undergo R.I. For three months. The amount of fine, if recovered, shall be paid to Allah Dad and Abdul Majid (injured P.Ws.) in equal shares. The charge against Allah Dawaya, Jamroze, Abdul Majeed and Mitha son of Sawaya appellants has not been proved beyond a shadow of doubt and they are, therefore, acquitted. This appeal is, therefore, allowed to the extent of Allah Dawaya, Jamroze, Abdul Majid and Mitha son of Sawaya appellants and is partly allowed to the extent of the remaining two appellants, namely, Ramzan and Feroze sons of Gaman in terms of para. 19 above.
20. In view of what has been discussed above Criminal Revision No.451/91 filed Allah Dad and Criminal Revision No.768/91 filed by the State for enhancement of sentences of the accused have no merit which are hereby dismissed.
21. Murder Reference No.233/91 is answered in the negative.