AGHA Au HYDER, J.-The appellants were convicted by the learned Additional Sessions Judge, Hyderabad, for offences under sections 302/34 and 326/34, P. P. C. On the first count, they were given imprisonment for life, and, on the latter count, R. a. For five years, both the sentences running concurrently. Fourteen other co-accused standing trial with them were given the benefit of doubt, and acquitted.
The complainant, Ghulam Rusool, had extensive lands of his own in Deh Buriro, Taluka. Math, and he had some other lands on lease. It is alleged that the appellants' party wanted to dispossess him of some of these lands. The prosecution story is that, on the 2nd of April 1971, the Haris of Ghulam Rasool were laughing Survey No, 235. At about the mid-day, Ghulam Rasool had also reached there on his horse to look after his lands. When he was still there, the appellants, accompanied by thirteen other persons, variously armed, had turned up. They called upon the complainant to stop sloughing the land, otherwise they were to be done to death. On the protest of Ghulam Rasool, abuses were showered, and attack was let loose on the instigation of Muhammad Khan Leghari, since acquitted. Ghulam Rasool was having a revolver in his bandolier, which came to be snatched. Seeing the inevitable coming, Ghulam Rasool spurred his horse, and made a bid for safety, but a number of his Haris were given hatchet and qathi' blows. When Ghulam Rasool looked back at the tumult from some distance, he had found that his Haris Abdul Hakeem, Saeed and others, were being dragged away to the appellants' village, alongwith the pair of bullocks. Ghulam Rasool proceeded in the direction of Police Outpost Gulab Leghari, when on the way, he met A. S. I.
Gulistan Khan, and informed him of the happenings. Reaching at the "wardat", they found Abdul Hakeem lying dead, while injuries had been sustained by Saeed Khan, Abdullah, Kehar and Darya Khan. He then recorded the First Information Report on a piece of paper and prepared the "mashirnamas" of the `wardat' and that of the injuries. Thereafter, he made enquiries from some of the witnesses. Then came the inquest report. Thereafter, the injured persons, alongwith the dead body of Abdul Hakeem, were sent to the Medical Officer, Tando Muhammad Khan. Shorn of all details, it will suffice to say that the appeallant, Fateh Muhammad, came to be arrested the same day, and produced `lathy. There was an injury on the nose of Fateh Muhammad, for which a separate `mashirnama' was prepared. On 3-4-1971, the oppellant, Ali Muhammad, had gone to the Math Police Station, and lodged the counter report of the incident for offences under sections 147, 148, 307/149 and 114, P. P. C. He was arrested thereafter, and a `mashirnarna' was prepared. After due investigation, the case came ultimately to be challaned.
3. The appellant, Ali Muhammad, In his statement at the Court of Enquiry denied all the allegations made against him. At the trial, however, he admitted the receipt of the injury at the hands of the complainant's party, and added that the injuries given to the other side were in defence of their person and property. He also maintained that he and his son, Taj Muhammad, were Maurusi Haris of Survey Nos. 234 and 239 since before Partition, and the complainant's party was out to evict them by force. The appellant, Ali Muhammad, while denying the various allegations made against him, however, admitted that he had been to the Matli Police Station, where he had lodged the counter report of the incident. Further, he added that he had been involved in the case because of the dispute between the parties over lands.
4. The murder of Abdul Hakeem, and the injuries to the four persons, referred to earlier, are beyond the pale of any controversy, and remain admitted. In the light of the view I am taking, it is not necessary to go into any details on that score. According to Tapedar Muhammad Bachal, Survey No, 234 and No, 239 were evacuee properties, while Survey No 235 belonged to Ghulam Rasool and his brother. He has further stated that Survey No, 234 had been transferred to some claimant and had been surrendered by him under the Martial Law Regulations being in excess of his entitlement.
It is also to be seen that, to begin with, the Tapedar had prepared the sketch showing Survey No, 234 as the "Wardat". However, he was again taken to Survey No, 235, and had prepared another sketch. On his own showing, none of the prosecution witnesses was present, when he had prepared the earlier sketch, and therefore the prosecution case, which includes the version of the Investigating Officer, that the blood had been secured from Survey No 235, is not open to any doubt. Evidently, there, was a se-amble for some of these lands between the parties, and the matter was pending before the Revenue Authorities for consideration. It is, however to be noted that there was no question put to the Tapedar that Survey No, 234 was in the actual possession of the appellants' party at the time of the incident. It is also clearly made out that there was no dispute in regard to the title of Survey No, 235, which belonged to the complainant's party, and where the incident actually took place. The case of the rival parties has, therefore, to be judged in this perspective.
5. The witnesses of the incident examined at the trial are Ghulam Rasool, Saeed Khan, Abdullah and Kahar. The last three witnesses had sustained injuries, and were examined by the Medical Officer, and therefore there can be no doubt about their presence. Ghulam Rasool has stated that he had gone to his lands at about the mid-day to look after the same, where his Haris Saeed Khan and others were ploughing the land. However, on his own showing, he had a revolver on his person. The ploughing would not have started at about the mid-day, and Ghulam Rasool, as he stated, was not there earlier. It was hardly the time to go and see as to what was happening in the land. As referred to earlier, the appellants' party had confined their rights to Survey Nos. 234 and 239, and Survey No, 235 had nothing to do with the same. It is not necessary to dilate on the evidence of the witnesses in any detail, as the question of the right of private defence of property, or, for the matter of that, person, as contended by Mr. Allandino Memon, is wide of the mark. I agree with Mr. S. Murtaza Hussain, learned counsel for the State, that it was a free fight between the parties for the survey numbers in dispute; Survey No, 234 being certainly involved in it. It is also to by sew that none of these prosecution witnesses had a word to say as to how injuries came to be sustained by Fateh Mohammed, and his son Taj Muhammad, who had been referred to the Medical Officer on the very day of the incident. Ghulam Rasool has stated that, once he had been deprived of his revolver, he had spurred his horse and made good his escape, not looking back till he had covered quite some distance. The other witnesses say that they were just empty-handed. It is not necessary in the circumstances of the case, to refer to the version of the appellants, according to which, the complainant's party consisted of more than a dozen people. It is also to be seen that there were as many as sixteen people arraigned at the trial, though it might be mentioned that one of them, namely, Abdul Hadi, since acquitted, was altogether for a different offence, namely, for being in possession of the bullocks of Saeed Khan. Thirteen of the co-accused were acquitted by the trial Judge, only on the ground that there was no confirmatory circumstance available against them. It will be idle now to examine the question, as to why the injuries on the person of Taj Muhammad escaped his notice, for which there was also medical evidence, and whose presence was further made out by his father, Patch Muhammad. The fact, as to which party had the better of it, if it was a free fight, will be of no consequence whatsoever, looking to the state of the law
6. Mr. S. Murtaza Hussain, learned counsel for the State, submitted, that, if it was a case of free fight and we agree with his candid stand, then the case will be governed by the principles laid down in Syed All Bepari v. Nibaran Mollah and others and Inayatallah and another v. The State . The appellants, in that event, would be liable for their own acts and part in the crime. On the showing of the prosecution, both the appellants were armed with `lathis', and Fateh Muhammad is alleged to have given a blow therefrom to Abdul Hakeem, the deceased, and Ali Muhammad was responsible for a blow to Abdullah. These injuries, as borne out from the record, would be simple in nature, which will make the appellants liable for an offence under section 323, P. P. C. Only, and nothing more. The question of any vicarious liability, under the circumstances, would not arise. I might as well add that, otherwise too, in the light of his findings, the learned Additional Sessions Judge should not have taken resort to section 34, P. P. C., but still section 149, P. P. C. As he had only given the benefit of doubt to the other co-accused, who were more than five. It was not his finding that there were only two persons, or, at any rate, a number below five. I would, therefore, set aside the conviction of the appellants for the offences under sections 302 and 326 read with section 34, P. P.
C. And alter their conviction to section 323, P. P. C. The maximum punishment for an offence under section 323, P. P. C. Is one year, and both of them are sentenced accordingly. However, as the judgment was pronounced on 3-11-1973, the appellants have already served out their sentences.
They would, therefore, be released from custody forthwith, unless wanted in connection with some other case. G. M. SHAH, J.-I agree. PLD 1962 SC 502 PLD 1966 Lab. 8