' SH. RIAZ AHMED, J.---This is an appeal with the leave of the Court against the judgment dated 4- 9-1996 delivered by a Division Bench of the Lahore High Court whereby Cr.A. No, 191 of 1991, M.R. No,21 of 1992 and Cr.R. No,77 of 1992 filed by the complainant for enhancement of the sentence of the appellants and Cr.A. No,80 of 1992 filed by the State against the acquittal of the co-accused were disposed of. Cr.A. No,191 of 1991 was dismissed and the death sentence awarded to Muhammad Zaroof was confirmed and the murder reference was answered in affirmative.
2. Appellants Muhammad Zaroof, Muhammad Jamil, Javed Akhtar and Kamran were tried on a charge under section 302/307/148/149, P.P.C. For having committed the murder of Rukhsar and Iftikhar deceased and for having caused murderous assault upon Razzan and Muhammad Akhlas.
Vide judgment dated 17-10-1991, a learned Additional Sessions Judge acquitted Muhammad Zabar alias Zamir, Abdul Shakoor and Babar co-accused, but found the appellants guilty on the charge under section 302, P.P.C. Appellant Muhammad Zaroof was convicted under section 302, P.P.C. On two counts for the murders of Rukhsar and Iftikhar and was thus sentenced to death on two counts and to pay fine of Rs,50,000 on two counts or in default to suffer R.I. For a term of 5 years. Appellant Muhammad Jamil was found guilty under section 302, P.P.C. For having caused the murder of Rukhsar deceased and was thus convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs,50,000 or in default thereof to suffer further R.I. For a term of 5 years. Appellant Javed Akhtar was also found guilty under section 302, P.P.C. For having caused the murder of Rukhsar and was, thus, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs,50,000 or in default thereof to suffer further R.I. For a term of 5 years. Appellant Kamran was found guilty on the charge under section 307, P.P.C. For having committed murderous assault upon Akhlas and Muhammad Razzan and was thus sentenced to undergo R.I. For a term of 10 years and to pay a fine of Rs,5,000 or in default thereof undergo further R.I. For a term of 1 year. The learned Additional Sessions Judge further directed that in the event of the recovery of the fine,' half of the same shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The appeals of the convicts and the criminal revision filed by the complainant seeking enhancement of sentence awarded to Javed Akhtar and Kamran appellants as well as the appeal filed by the State challenging the acquittal of Muhammad Zabar alias Zamir, Abdul Shakoor and Babar, co-accused were dismissed. Both the trial Court as well as the appellant Court had come to the conclusion that it was a sudden fight and therefore, placing reliance upon the judgments of this Court reported as Mushtaq Ahmed and 4 others v. The State (1996 SCM R 520), Muhammad Iqbal v. The State (PLD 1993 SC 1), Allah Diwaya v. The State (PLD 1993 SC 35), Nazar Muhammad and 2 others v. The State (1993 SCM R 1329), Hassan Muhammad v. The State (1994 SCM R 1212) and Sikandar v. The State (PLD 1996 SC 555), leave was granted to consider that in such like cases the conviction ought to have been recorded under section 304, Part I, P.P.C. And thus the sentence of death could not have been awarded to the appellant Muhammad Zaroof.
3. The tragic occurrence resulting into the murders of Rukhsar and Iftikhar deceased and the murderous assault upon Razzaq and Akhlas took place on 9-9-1989 at 4.00 p.m. Within the area of village Nambal at a distance of 8 miles from Police Station Murree. On the receipt of information about the occurrence, S.I. Muhammad Afsar reached Civil Hospital Murree at 6.00 p.m. Where the injured had been removed. In the hospital, an application written by the complainant Muhammad Fazil was given to S.I. Muhammad Afsar, who sent the same to the police station for registration of a case and, thus, on the basis of the said application, the formal F.I.R. Was recorded at the police station. In the said application Muhammad Fazil complainant stated that on the fateful day, i.e, 9- 7-1987 at about 9.00 a.m., a quarrel had taken place among Rukhsar deceased and appellants Jamil, Javed and Kamran. Haji Abbas, Haji Taj Muhammad, Muhammad Farooq, Haji Maqsood forming a Jirga proceeded to village Nambal for bringing out a reconciliation. The complainant alongwith the members of the Jirga, after Zohar prayers, assembled at Dhobi Ghat of the village and heard the complaint of Jamil appellant whereupon Haji. Abbas remarked that Rukhsar deceased be also summoned. The complainant then told the members of the Jirga that presence of Rukhsar was not necessary because his brother was present and in a case Rukhsar was found guilty, then his brother would apologize. Haji Abbas, Farooq and Maqsood insisted upon the presence of Rukhsar and, thus, Rukhsar was summoned. As soon as Rukhsar reached Dhobi Ghat, Muhammad Farooq started adminishing Nazar Muhammad brother of Rukhsar upon which the Jirga sent back Rukhsar, who proceeded towards the road. While Farooq and Nazar Muhammad were altercating, appellants Zaroof and Jamil abusing Nazar Muhammad also reached in Jirga.
The members of the Jirga then admonished appellants Zaroof and Jamil and asked them to go back and they also proceeded towards the road where already both the deceased Rukhsar and Iftikhar and Rehman, Akhlas, Ishtiaq, Azizur Rehman, Fayyaz and Muhammad Iftikhar were sitting. In the meanwhile, at about 4.00 p.m., appellants Zaroof, Jamil, Javed and acquitted co-accused Zabar alias Zamir reached the shop of Hukamdad. Appellant Zaroof, armed with a revolver and a churri, Jamil armed with a revolver and a knife, Javed armed with a churri, Kamran armed with a churri, Babar, Zabar alias Zamir and Abdul Shakoor armed with sotis, came out of the shop. Zamir then called Rukhsar, Iftikhar, Ihsan, Akhlas and Azizur Rehman and as soon as they in response to the call of Zamir proceeded towards them all the 7 accused launched an attack. Appellant Zaroof and Jamil fired shots from the pistol. Appellant Javed inflicted a churri blow on the neck of Rukhsar.
Appellant Jamil inflicted a churri blow on the left flank of Rukhsar. Appellant Zaroof then inflicted a churri blow on the left armpit of Rukhsar. On the receipt of these injuries, Rukshar fell down. Abdul Shakoor then inflicted a soti blow. Iftikhar deceased then came forward to the rescue of Rukshsar when Zaroof appellant inflicted a churri blow on his chest. Zamir also inflicted a soti blow on Iftikhar whereupon he fell down. Co-accused Abdul Shakoor then caught hold of Razzan and Kamran appellant inflicted a churri blow near his neck. A second blow was inflicted by Kamran on the mouth of Razzan. Kamran then inflicted a churri blow on the back of Akhlas and then Shakoor also inflicted a soti blow on the chest of Akhlas. Shakoor also inflicted a soti blow upon Akhlas on his buttocks. According to the complainant after launching the attack, all the assailants took to their heels. All the injured were being taken to the civil hospital Murree, but on their way Rukhsar and Iftikhar succumbed to their injuries.
4. Dr. Ijaz Ahmed P.W. 4 conducted post-mortem examination on the dead body of Iftikhar and found one sharp-edged weapon injury. Autopsy on the dead body of Rukhsar revealed 6 sharp- edged weapon injuries and 1 blunt weapon injury. Akhlas P.W. Received 3 injures, one with a sharp edged weapon and two with a blunt weapon. Muhammad Razzan's medical examination revealed that he had received 2 injuries both with a sharp-edged weapon. Javed and Zamir's medical examination revealed that both had received 4 simple injuries each caused by a blunt weapon.
Appellants Zaroof and Jamil were also medically examined. Zaroof had received 2 simple injuries caused with a blunt weapon and Jamil had received 3 injuries, one with a sharp-edged weapon and 2 with a blunt weapon.
5. On 11-7-1989, appellants Zaroof, Jamil and Javed Akhtar were arrested. Zaroof produced his licensed revolver, license and 15 live cartridges, which was taken into possession vide memo Exh.PE, attested by Mushtaq Ahmed Constable P.W.9 and Muhammad Afsar S.I. P.W.
16. On 21-7-1989 appellant Jamil led the police and got recovered knife P.18 from the bushes, which was taken into possession vide memo Exh.PK, attested by Muhammad Ishfaq P.W.11, first cousion of Iftikhar and Ghulam Sarwar P.W.
17. On the same day, Zaroof also led to the recovery of blood-stained churri P.6, which was taken into possession vide memo. Exh.PH and the same was attested by Muhammad Ashfaq P.W.11 and Ghulam Sarwar P.W.17. On 20-7-1989 Javed Akhtar led to the recovery of churri P.19 and the same was taken into possession vide memo Exh.PL, attested by Amjad Mahmood Inspector P.W.18. On the same day, Kamran also led to the recovery of blood-stained churri P.20, which was taken into possession vide memo Exh.PM and the same was attested by Amjad Mahmood Inspector P.W.18 and Ghulam Sarwar P.W.13.
6. To prove its case at the trial, the prosecution had placed reliance on the ocular testimony furnished by Muhammad Razzan P.W.6 and Akhalas P.W.7 and the statement of the complainant. In addition to the ocular testimony, the prosecution also placed reliance upon the recoveries, motive and the medical evidence to corroborate the ocular testimony. When examined under section 342, Cr.P.C., appellant Zaroof made the following statement:- "There is Government water tap in front of my house, from where all the villagers fetch water for domestic use. On 7-7-1989 Akhlas P.W. Was married. He affixed plastic pipe with water tap and got a supply to his house for ceremonial purposes. It continued till the evening of 8-7-1989 when the womenfolk removed the same for fetching water. This was objected to by Akhlas and there was some row between them. On 9-7-1989, Akhlas, Iftikhar, Rukhsar, Azizur Rehman and Razzan at about 8.00 a.m. Started breaking even the iron pipe of the said water tap. We saw it and dissuaded them, upon which they became nauseate. Myself, Javed and Jamil slapped them and Azizur Rehman suffered injuries during the occurrence. They took to their heels then. A Jirga was convened in Dhobi Ghat. We were told by elders to stay aside and that we will be called there shortly. I along with Muhammad Jamil, Javed Akhtar and Zubair were present at the shop of Zubair in Charra Gali when without waiting for decision of Jirga suddenly Rukhsar and Iftikhar deceased alongwith Razzan and Akhlas P.Ws. Armed variously arrived there and raised lalkara that they have come to avenge the morning incident. I became afraid and in order to terrify them fired shots in the air, but they did not desist and opened attack upon us. I picked up churri from the shop of Zubair and in order to save my life as well as that of my co-accused I caused them injuries. Jamil, Javed and Zubair did nothing else except getting beating Namran, Shakoor and Babar accused were not even present there. After the occurrence we four went to Ghora Gali Police Post and informed Muhammad Afsar S.I., who took along Jamil accused to Murree as his condition was serious, but confined us there at the Post. It was on the following day that said Muhammad Afsar S.I. In collusion with the complainant party fabricated this false story against us."
7. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the entire record of the case and we have also heard the contentions raised by both the sides. We have noticed that 4 of the accused including Appellant Zaroof and Javed had suffered 17 injuries including one sharp-edged weapon injury and Dr. Ijaz Ahmed P.W.14 had stated that these injuries could have been received on 9-7-1989 at about 4.00 p.m. In addition to this circumstances, S.I. Muhammad Afsar P.W.16, who investigated the case, admitted that 4 persons from the accused side were in injured condition at the time of their arrest, but he had not made any query about the injuries. In addition to this feature of the prosecution case, it is noteworthy to mention that the story of the prosecution to the extent that the deceased and the injured P.Ws. Proceeded towards the accused when they were called upon by them is not plausible particularly so when the P.Ws. Admit that the weapons carried by the accused side were visible to them. In course of human affairs, it does not appeal to the reason that on having seen the accused side armed with deadly weapons, both the deceased and the injured witnesses would respond to the call of the accused persons.
This feature of the case coupled with the injuries received by the appellants and the other co- accused, in our view, the trial Court as well as High Court rightly concluded that it was an open fight between the parties. In addition to this circumstance, the statement of injured P.W. Razzan also reveals that it was a sudden affair. The P.W. Stated that all the accused came out of the shop of Zamir, who called out Rukhsar and others by saying "come here" and they went towards them. The witness further stated that they did not ask each other not to go towards the accused even on seeing them armed. The witness further stated that they were at a distance of 4/5 yards from the accused when they fired. They did not turn back to run away when they were fired at but all of them including the deceased and the inured advanced towards the accused together. Similarly, Akhlas also deposed that on the call of Zamir they went towards the accused. They saw the accused from distance of 50/60 yards for the first time. They did not ask each other not to go towards the accused as they were armed. The statements of these two witnesses demonstrate that the complainant side had gone towards the shop of Zamir where accused party was present.
These circumstances would clearly establish that it was not a premeditated affair, but the complainant side also proceeded towards the accused side with a view to test the strength.
8. The occurrence allegedly took place at 4.00 p.m. The injured P.Ws. Akhlas and Muhammad Razzan had reached the civil hospital at 4-30 p.m. Alongwith Muhammad Afsar S.I. Police Station Murree was at a distance of 100 yards from the police station, but no effort was made to lodge a prompt F.I.R. The complainant Muhammad Fazil had admitted in cross-examination that they had reached the hospital at 4.15 or 4-30 p.m. The distance between civil hospital and the police station was 10 yards. The complainant also admitted that he did not go to the police station from the hospital to lodge the report. The complainant further admitted that he did not send the application to the police station nor he himself went to the police station with the application. Dr. Ijaz Ahmed stated that the injury-statements of Iftikhar and Rukhsar, deceased were produced before him on 10-7-1989 at 9-45 a.m. And he had given notes under both the injury statements that post-mortem examination cannot be conducted because the police papers were not complete and the inquest report had not been written by that time and, thus, he refused to conduct the post-mortem examination at that time. Muhammad Fazil complainant admitted that he saw the accused persons in police custody on the following day, i.e, 10-7-1989, but their arrest was shown by the police to have taken place on 11-7-1989 and the admission of the Investigating Officer that the appellants were injured at the time of their arrest and were got examined on 12-7-1989 establishes that the investigation was not being conducted as it ought to have been.
9. Having noted all these features of the case, we have no doubt in our mind that both the trial Court as well as the High Court rightly concluded that it was a sudden fight and every individual taking part in the occurrence was responsible for his own act. It was argued by the learned counsel for the appellants that the complainant party was the aggressor and the appellants had acted in exercise of the right of self-defence to cause these injuries. The argument is devoid of force because the trial Court as well as the Appellate Court came to the conclusion that it was an open fight and in such cases the I question of self-defence becomes irrelevant. We are fortified in this view by judgment of this Court reported as Sayed Ali Bepari v. Nibaran Mollah (PLD 1962 SC 502) and Muhammad Iqbal v. The State (PLD 1993 SC 1). In fact the complainant side had proceeded towards the accused side, who were heavily armed and in our view as well both the sides tried to test strength and, thus, an open fight had taken place. It was also argued before us that none of the eyewitnesses in their statements recorded under section 161, Cr.P.C. Had attributed any injury to appellants Javed and Jamil caused to Rukhsar. Similarly, Akhlas had also not stated so. In our view, nothing turns upon this argument because occurrence had taken place suddenly in which at least 8 persons had participated in the fight, and therefore, omission to mention the causing of injuries by appellants Jamil and Javed to Rukhsar deceased is irrelevant. Evidence in suchlike cases is not to be appreciated on the touchstone of mathematical exactitude. We, therefore, repel the contention raised by the learned counsel for the appellants.
10. After anxious consideration, we are of the view that in such-like circumstances, appellant Zaroof does not deserve the award of extreme penalty of death because the occurrence was without premeditation and since in such like open fight, everyone is responsible for his own individual act, therefore, appellant Zaroof cannot be absolved of the punishment under section 302,' P.P.C. And not under section 304, Part I, P.P.C. Because the circumstances of each case on the basis of which leave was granted are distinguishable. Thus, we hold that both Zaroof and Jamil appellants are guilty under section 302, P.P.C., but while dismissing their appeals, we will alter the sentence of death awarded to Zaroof appellant on two counts into imprisonment for life on two counts, which will run concurrently. With this modification in sentence of Zaroof appellant, the appeal is dismissed. As directed by the Courts below, the benefit under section 382-B, Cr.P.C. Shall be given to the appellant.