' JAVID IQBAL, J.-Maqsood Hussain, aged 17 years, and his brother Aliah Ditta, aged 35/36 years, both sons of Fazal Dad, have been convicted under section 302/34, P. P. C. For the murders of Muhammad Ramzan, aged 27 years, and his father Muhammad Zaman, aged 50 years, and each of them was sentenced to death on two counts plus fine of Rs, 2,000 or in default to undergo two years' R. I. And if the fine was realized from them it was to be paid as compensation to the heirs of the two deceased; they both were likewise convicted under section 307/34, P. P. C. For murderous assault on Muhammad Kazzaq (P. W. 7), nephew of Muhammad Zaman deceased and cousin of Muhammad Ramzan deceased and each of them was sentenced to two years' R. I. Plus fine of Rs, 500 or in default to undergo six months' R. I. And if the fine was realized from them it was to be paid to Muhammad Razzaq P. W. As compensation. The Judgment has been passed against them by the Sessions Judge, Rawalpindi, on the 21st of May, 1975. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. This occurrence took place at about 8.00 a.m. On the 27th of February, 1973, in Abadi Dhoke Phalli Dakhli Akhia, at a distance of six miles from Police Station Gujjar Khan. F. I. R. (Exh. P. B.) was lodged by Muhammad Razzaq (P. W. 7) injured, at 12.20 a.m. On the same day and it was recorded by Allah Dad Khan S. I. (P. W. 15).
' It may be pointed out at this stage that both the appellants in this case had also sustained injuries in the course of occurrence, Since the police did not register their case against the complainant party, they filed a cross-complaint (Exh. D. A.) on the 21st of September, 1974, under section 307/148/149, P. P. C. Against the two deceased, Muhammad Razzaq P. W. And two others.
3. The motive for crime as set up in the F. I. R. Is that 15/16 days prior to the present occurrence Fazal Dad, father of the appellants had demanded the hand of Mst. Sajida, daughter of Muhammad Zaman deceased and sister of Muhammad Ramzan deceased for Maqsood Hussain appellant. But it was refused. It is stated that as a result relations between the two parties became strained although the accused and the complainant parties being barbers were inter-related.
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Muhammad Razzaq (P.W. 7) injured, cousin of Muhammad Ramzan deceased and nephew of Muhammad Zaman deceased, Muhammad Daulat (P. W. 8), cousin of Muhammad Zaman deceased, and uncle of Muhammad Ramzan deceased as well as father-in-law of Muhammad Razzaq P. W.
5. Maqsood Hussain appellant was arrested from the hospital where he was getting treatment for his injuries on the 27th of February, 1973, by Allah Dad Khan S. I. (P. W. 15). Allah Ditta appellant who was also injured was arrested by the same police officer on the same day. At the instance of Maqsood Hussain appellant was recovered blood-stained knife P.3 which was taken into possession vide memo. Exh. P.G., and at the instance of Allah Ditta appellant was recovered blood- stained knife P. 4 which was taken into possession vide memo Exh. P. J. These recoveries were made on the Ist of March, 1973, and were attested by Mahmood-ul-Hassan (P. W. 13), Muhammad Aslam (P. W. 14) and Allah Dad Khan S. I. (P. W. 15). According to the report of the Serologist Exh. P. LL.
The afore-mentioned knives were found to be stained with human blood. Blood-stained clothes of the two appellants were also got removed from the person of the appellants at the time of their arrest and were taken into possession by the police. But they were of no consequence as the appellants admitted having participated in the occurrence and having received injuries during the course of occurrence at the hands of the complainant party. Their case was that their clothes had got besmeared by their own blood.
6. The appellants in their statements before the trial Court did not deny participation in the occurrence but they pleaded that they had acted in self-defence. Their case was that the deceased and his companions had inflicted injuries to both of them and that in connection with the same Allah Ditta appellant had filed a cross-complaint which was pending in the Court of resident Magistrate Gujjar Khan, and that they had been falsely involved by the complainant party in order to save their own skin.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner : On the fateful day Muhammad Razzaq P. W. Alongwith two deceased and Muhammad Daulat (P. W. 8) was proceeding towards Gujjar Khan. When they reached Dhoke Phalli Dakhali Aknia, the appellants armed with knives came from the front and opened their attack on Muhammad Zaman and Muhammad Ramzan deceased. Maqsood Hussain appellant gave a knife blow on the right chest of Muhammad Ramzan deceased who fell down. Allah Ditta appellant gave a knife blow on the back of Muhammad Zaman deceased who also fell down. Muhammad Razzaq and Muhammad Daulat P. Ws. Tried to rescue them but Allah Ditta appellant gave a knife blow on the right neck of Muhammad Razzaq P. W. And thus injured him. Thereafter, both the appellants left towards Gujjar Khan direction saying that they had taught a lesson to the deceased for not giving the hand of Mst. Sajida. The two deceased in an injured condition were taken to the Civil Hospital, Gujjar Khan in a taxi by Muhammad Razzaq and Muhammad Daulat P. Ws. Muhammad Ramzan deceased died on reaching the hospital whereas Muhammad Zaman deceased died on the 19th of March, 1973.
' It may be pointed out at this stage that on the 28th of February, 1973, dying declaration of Muhammad Zaman deceased was recorded while he was still alive, by Mr. Hamid Ahmad Sethi, M.
I. C. (P.W. 5). It is Exh. P. B. The version of the occurrence given in the dying declaration of Muhammad Zaman deceased is identical to that given in the F. I. R. By Muhammad Razzaq P. W. It may be further pointed out at this stage that in both the F. I. R. As well as the dying declaration no explanation is given or mention is made as to how the two appellants received injuries. It, therefore, appears that the complainant side had deliberately suppressed the part played by them during the occurrence.
8. Dr. Muhammad Aslam Arshad (P. W. 1) conducted post-mortem examination on the dead body of Muhammad Ramzan at 3-15 p. m. On the 27th of February, 1973, and found on his person one incised stab wound on the front of right chest. The injury was caused by sharp-edged pointed weapon and was sufficient to cause death in the ordinary course of nature. In his opinion, the death was due to haemorrhage and shock caused by this injury.
' On the same day at 10-00 a. m. He medically examined Muhammad Zaman while he was still alive and found on his person an incised stab wound on the back of right chest. The injury had been caused by sharp-edged pointed weapon and it was kept under observation. The patient was operated upon but he could not be saved. On the 20th of March, 1973, at 8-00 a.m. The same medical officer performed the post-mortem examination on the dead body of Muhammad Zaman and noted the same injury on his person besides three other wounds which were operation wounds. In his opinion, the deceased died as a result of the back injury which was sufficient to cause death in the ordinary course of nature. The time between injury and death was about 21 days.
' On the 27th of February, 1973, at 10-15 a.m. He medically examined Muhammad Razzaq P. W. And found on his person an incised stab wound on the right neck and a superficial lacerated wound just below the left eye, The first injury was kept under observation whereas the second was simple in nature. The first was caused by sharp-edged weapon and the second by blunt weapon possibly due to friction with some hard substance. Later, on the 3rd of September, 1973, the first injury was declared simple.
' On the same day at 9.10 a. In. He medically examined Maqsood Hussain (Muhammad Maqsood) appellant and found on his person two lacerated wounds and two contusions on the front of head, left upper arm, left fore-arm and right fore-arm. All the injuries were subsequently declared simple.
They had been caused by blunt weapon.
' On the same day at 9-20 a. m. He medically examined Allah Ditta appellant and found on his person nine injuries in the form of contusions and abrasions on the top of head, right shoulder, right chest, right index finger, right fore-arm, right wrist and left fore-arm. All the injuries were simple and caused by blunt weapon.
9. We have heard learned counsel for both the sides and carefully perused the record. It has already been pointed out that the parties are inter-related and their relations had become strained because of the refusal of one side to give their girl in marriage to the other. From the record it appears that the appellants had not made any pre-planned attack on the complainant side but it was a chance encounter between the two sides as a result of sudden flare up in which probably dangs were used by the complainant side and knives by the accused side. In the F. I. R.
And the dying declaration the part played by the complainant side was suppressed and it is not mentioned at all as to how the two appellants sustained a total number of 13 injuries. However, before the Committing Magistrate Muhammad Razzaq and Muhammad Daulat P. Ws. Had stated that each of them had pelted one stone each on the two appellants. They made further improvement at the trial stage by stating that the two of them threw stones on the appellants in order to defend themselves athough they could not tell if those stones had hit the appellants.
Learned counsel wants us to believe that Muhammad Daulat P. W. Was a put up witness because had he been present on the spot, he would have also received some injuries. May be it is so. But the presence on the scene of crime of the two deceased as well as Muhammad Razzaq P. W. Who were injured is clearly established. Similarly, the presence of the two appellants on the spot is established as both of them were injured. On one side we have the version of Muhammad Razzaq P. W. Corroborated by the dying declaration of Muhammad Zaman deceased as to how the occurrence had taken place. On the other side there is a version of the defence as given by the appellants and supported by the injuries on their person. This version is also the basis of the cross- complaint case filed at the instance of the accused party against the complainant party. The occurrence is not denied by the defence. Each side claims that they had been attacked by the other but each side at the same time suppressed or minimized the role played by them. In our considered view, the occurrence took place in the form of a sudden fight when the two parties encountered each other on the way to Gujjar Khan. It appears that the complainant side were armed with dangs whereas the appellants had knives. In the open fight between them dangs and knives were freely used. In the light of this discussion we are of the considered view that the case of the appellants was covered by Exception 4 to section 300, P. P. C. And each of them was responsible for his own act. In that view of the matter, their convictions and sentences under sections 302/34 and 307/34, P. P. C. We're not proper and are accordingly set aside. Instead we convict and sentence the appellants as follows : Maqsood Hussain appellant caused the death of Muhammad Ramzan deceased and he is convicted under section 304(I), P. P. C. And sentenced to ten years' R. I. Plus fine of Rs, 1,000 or in default to undergo one year R. I. If the fine is realized from him, it should be paid as compensation to the heirs of Muhammad Ramzan deceased. Allah Ditta appellant caused the death of Muhammad Zaman deceased and he is convicted under section 304(I), P. P. C. And sentenced to ten years' R. I. Plus fine of Rs, 1,000 or in default to undergo one year R. I. If the fine is realized from him it should be paid to the heirs of Muhammad Zaman deceased as compensation. He also caused simple injury with knife on the neck of Muhammad Razzaq P. W. And, therefore, he is convicted under section 324, P, P. C. And sentenced to one year R. I. Plus fine of Rs, 250 or in default to undergo three months R. I. If the fine is realized from him it should be paid as compensation to Muhammad Razzaq P. W. The sentence of imprisonment in his case shall run concurrently. The appeal of the convicts is accepted to this extent.
10. The death sentence awarded to the appellants on two counts is not confirmed.