' Appellants Abdul Hakim, Dur Muhammad, and Fakir Bux along with acquitted accused Piaro, Ghulam Nabi, Jaffar and Hazur Bux were tried for causing griovous injuries to Mahboob, Abdul Ghafoor and Gul Muhammad, brothers inter se, but the appellants were only convicted under section 325, P. P. C. And sentenced to rigorous imprisonment for one year and to pay a fine of Re.
500 each, or in default to suffer rigorous imprisonment for three months, by the learned Additional Sessions Judge, Sukkur, ride judgment dated 21st March 1973. They have appealed to assail their conviction and sentence.
2. According to the prosecution case, the incident occurred on 19th February 1973 at 3 p.m. On the cart-track near village Sodo Shahani in deh Shaikani, taluka Ghotki, in which Khawind Bux belonging to the appellants party lost his life and Dur Muhammad suffered pellet injury while Mahboob, Abdul Ghafoor and Dur Muhammad suffered grievous and simple injuries. Both the parties were booked for trial, the appellants for causing grievous and simple injuries and those injured for killing Khawind Bux. According to the version of the injured, they had a hotel on the highway near village Shahan!, in which the appellants resided, but the appellants did not like the hotel being run and so they were in search of an opportunity to fight with them, the reason being that since their women-folk passed that way they did not like the hotel to be at that place. Since they had demanded to vacate the hotel, the injured became apprehensive and at the stated time they proceeded to lodge the report at the police station. Amongst them Mahboob was armed with his licensed gun, and as they reached the western side of the village they were attacked by the appellants and the acquitted accused, who were armed with hatchets and lathis, as a result of which they sustained injuries, whereupon Gul Muhammad and Abdul Ghafoor fell down while Mahboob fired his gun at Khawind Bux. Leaving his gun and the two injured at the wardat, he proceeded to Police Station. Ghotki, where he lodged the repot t at 1710 hours the same day, which was recorded by Abdur Rahman S. H.
0. However, appellant Fakir Muhammad reached earlier and his report (Exh. 14) was recorded the same day at 4-25 p.m.
3. Since Mahboob was injured, he was sent for treatment to the hospital and the S. H.
0. Himself repaired to the wardat, where he saw the dead body of Khawind Bux lying on the carttrack. Abdul Ghafoor and Gil Muhammad were also lying injured. A broken gun was also seen there with an empty cartridge in its barrel. The gun, crime empty and the blood stained earth was secured vide Mashirnama, Exh.
10. The two injured were sent for treatment to the hospital, but before that Gul Muhammad was examined. Two of the appellants were arrested on 24th while Fakir Muhammad on 28th February 1970. Lastly Abdul Ghafoor was examined in the hospital on 5th March 1970.
4. Dr. Ghulam Hussain examined Mahboob, Gul Muhammad and Abdul Ghafoor. On Mahboob he found the following injuries "(1) A small lacerated wound about i" x r as skin deep with swelling about 2' in d.m. Near the left elbow joint.
(2) A small laceration over the bridge of the nose.
(3)A bruised swelling about 2' in d.m. Over the back of left band." In his opinion, injuries 1 and 3 were grievous while No, 2 was simple in nature and that they were caused by a hard and blunt substance, like lathi. On Gul Muhammad he noticed the following injuries :- "(1) A lacerated wound about 2r x x scalp deep over the middle portion between two prominences of the head.
(2) A superficial lacerated wound about 1' x skin deep below the right knee joint.
(3) A bruised swelling about 2' in d.m. Over the upper half of the left forearm.
(4) A bruised swelling about 2" in d.m. Over the back of the left hand."
' In his opinion injuries 3 and 4 were grievous while the others were simple in nature and that they were caused by a like weapon. On Abdul Ghafoor he noticed the following injuries t - "(1) An angular lacerated wound about 4' x x scalp deep (each arm) near the right prominence of the head.
(2) A small lacerated wound about f xr x scalp deep, over the right tempo-parietal region of the head.
(3) A lacerated wound about 2" x If x scalp deep over the upper and middle portion of the head.
(4) A lacerated wound about 2' x x scalp deep over the right occipital region near mastoid eminence.
(5) A bruised swelling about 3" in d.m. With clear bony discontinuity over the upper 1/3rd of the right forearm.
(6) A contusion about 4' x 1" over the back of the right shoulder.
(7) A bruise about 2' x 1' over the lower portion of the right side chest anteriorly."
' In his opinion, except injury No, 5, which was grievous, all the others were simple in nature and that all of them were caused by a like weapon. Lastly, he testified to having conducted post-mortem examination on the body of deceased Khawind Bux who bad gunshot injuries on his left side chest and left upper arm. He also examined Dur Muhammad on 24th February 1970 and observed simple gunshot injury on the left index finger. The appellants denied having objected to the running of the hotel and gave out their own version of the inci lent. This is what Abdul Hakim has stated :- "Khawind Bux deceased was driving away the cattle of Mahboob to the cattle pound, as his cattle had damaged the crop of the deceased. P. Ws. Ghafoor and Gul did not allow him to take the cattle to the pound. Meanwhile Mahboob complainant came with a gun and fired at the deceased. I had challengned Mahboob but he tried to assault me with gun. I grappled with him. The gun fell down broken. Mahboob ran away leaving the gun behind. We had caused hurt to Gul and Ghafoor. Fakir Muhammad accused had gone to lodge report. Accused Din Muhammad had also received pellet injuries."
' Appellant Dur Muhammad admitted having received injury in the fight but denied having caused any injury. He stated that it was from the shot fired at Khawind Bux that he received the pellet injury.
He, however, adopted the plea of Abdul Hakim. - Fakir Bux admitted having lodged the counter report and adopted the same defence, Lastly he denied having caused any injury to Mahboob, Abdul Ghafoor or Gul Muhammad.
5. The trial Court has not accepted the case of either. Party as to the origin of the fight' nevertheless it held to-- "Although the parties had indulged in a mutual fight, in which Abdul Hakim, Dur Muhammad and Fakir Muhammad accused were arrayed on the one side and the complainant Mahboob and his two injured brothers, Abdul Ghatoor and Gulla on the other. In this fight three injured persons of the present case had received hurt with blunt weapons."
' Again having concluded thus it further held as under As this is a case of firee fight hence the question as to which party took the initiative or whether any of the parties bad a right of self- defence, is immaterial as held in PLD 1962 SC 502."
In the ultimate analysis, the trial Court reached the conclusion that the appellants were responsible for causing grievous hurt to Mahboob, Abdul Ghafoor and Gul Muhammad without giving its opinion as to who caused injuries to whom n so as to fix their individual liability before convicting them under section 325, P. P. C.
6. While scrutinising the evidence of Mahboob, Abdul Ghafoor and Gul Muhammad, we find that the earlier version has been completely changed and the instead a case of robbery is sought to be made out. It was stated that while Shahnawaz was in the hotel, the appellants removed the gun, radio and the other articles from the hotel. This information was conveyed to them by Shahnawaz, whereupon they left for lodging the report. Mahboob and other two witnesses did not identify the licensed gun which was found broken at the wardat. Mahboob also went to the length of stating that Khawind Box was not amongst the assailants. He was confronted with the F. I. R. And he denied having stated what was recorded in it. Abdul Ghafoor and Gul Muhammad have stated that the appellants did not object to the running of the hotel, but Mahboob made a half-hearted admiss, on that the appellants did harbour grudge on that account. Mahboob stated that he was not armed with a gun and the other two also stated so. They were confronted with their previous statements from which they resiled and the trial Court, therefore, rightly held that the case of robbery set out at the stage of trial was an improvement, for the reason is not far to seek as Mahboob was implicated In the counter case, for the murder of Khawind Buz and so were the other two. It was therefore, to extricate themselves from the earlier version that they had altered it. Nevertheless, it is not possible to accept the case of a free fight either, for neither the appellants were equally armed nor did they suffer any injury. There is also no evidence to establish that any damage was done to the cultivation by the cattle, for neither any trampling nor hoof marks were seen either in the cultivation or at the place where the incident occurred. Thus, it is not possible to believe the appellants' version of the origin of the fight as was held by the trial Court. There is another reason which appears in the evidence which might have motivated the fight, and that is, that 4 or 5 years back Khawind Buz had molested Abdul Ghafoor's wife. If that was so, then it is difficult to see why they would have waited for 4 or 5 years t avenge themselves. This cannot therefore be a reason for the incident. Th evidence thus being worthless inferential conclusions have to be drawn from the circumstances.
Since Dur Muhammad was injured by a pellet he must be in the company of Khawind Bur. The other significant fact is that none from the side of the appellants received injury with any weapon although the injuries on Mahboob, Abdul Ghafoor and Gul Muhammad show a sustained attack on them by blunt weapons though, of course, hatchet has been excluded by the medical evidence. It cannot also be doubted that th shot must have been fired before Mahboob, Abdul Ohafoor and Gul Muhammad were attacked, for as a result of the beating given to them the gun broke into two pieces, in which case it was not possible to use the gun. In this view of the matter, until they were attacked there was apprehension to the lives of the appellants and they were thus justified in causing injuries to them so as to disarm Mahboob. Having thus concluded, the right of private defence has to be conceded to the appellants, In the circumstances, it is not possible to accept the view of the trial Court that there was a free fight. The prosecution has failed to establish its case beyond reasonable doubt against the appellants and I would acquit them while accepting the appeal. They are on bail and their bail bonds stand discharged. '