' Falak Sher (since murdered), Abdul Ghafoor, Rashid Ahmad sons of Fateh. Muhammad and Hassan Muhammad son of Bala have through this Criminal Appeal called in question judgment, dated 30-6-1996 passed by the Additional Sessions Judge, Kasur whereby Falak Sher and Abdul Ghafoor were convicted under section 316, P.P.C. For Qatl-e-Shibh-i-Amd of Muhammad Boota and each one of them was sentenced to 14 years' R.I. By way of Tazir. They were also ordered to pay Diyat in the sum of Rs,1,70,610 separately to the legal heirs of the deceased. In default of payment of Diyat to be detained in jail till the payment is made. Benefit of section 382-B, Cr.P.C. Was extended.
' Rashid Ahmad was sentenced under section 337-A(ii), P.P.C. For causing injuries to Nazar Muhammad P.W. And sentenced to five years' R.I. By way of Tazir and ordered to pay 10% of Diyat as Arsh amounting to Rs,17,610, to the injured P.Ws. Failing which .He shall be detained in jail till the payment of the amount. Benefit of section 382-B, Cr.P.C. Was extended.
' Hassan Muhammad was convicted under section 337-F(vi), P.P.C. For causing injuries to Ali Muhammad P.W. And sentenced to three years' R.I. By way of Tazir and ordered to pay Daman of Rs,5,000 to the injured P.W. Failing which he was ordered to be detained in jail till the payment of Daman. He was also extended benefit of section 382-B, Cr.P.C.
' Muhammad Mushtaq was convicted under section 337-F(i), P.P.C. And sentenced to six months' R.I.
And ordered to pay Daman of Rs,2,000 for causing injuries to Nazar Muhammad complainant. He has undergone his sentence and has not appealed.
' Muhammad Mushtaq and Muhammad Mansha also inflicted injuries to Akbar P.W. And as such they were convicted under section 337-A(i), P.P.C. And sentenced to six months' R.I. Each and payment of Daman in the sum of Rs,2,000 each payable to the injured P.W. They have undergone their sentence and have not appealed.
' Fateh Muhammad, Muhammad Tufail and Kala were given benefit of doubt and were acquitted.
' Falak Sher appellant slipped away at the time of announcement of the judgment and perpetual warrants of arrest were issued against him who after filing of the appeal, it is stated, was murdered by his opponents. Appeal of Falak Sher, therefore, abates, to the extent of his imprisonment.
' Muhammad Ashraf son of Fateh Muhammad one of the accused named in the F.I.R. Alongwith his aunt Mst. Zainab Bibi were murdered during the trial for which F.I.R. No,48 of 1996 Exh.D.K. Was lodged at the instance of Rashid Ahmad co-accused of this case against Munawar P.W. Of this case alongwith Sarwar, Khalid and his brother who were challaned and the case is pending adjudication.
' Complainant Nazar Muhammad has filed Criminal Revision No,365 of 1996 for enhancement of sentence awarded to the appellants. I intend to deal with all these matters through this single judgment.
3. The occurrence which resulted in the death of Muhammad Boota and injuries to the P.Ws. Took place on 21-7-1993 at 12 noon at the village thoroughfare of Mauza Shamspura Police Station, Saddar, Kasur at a distance of 5/6 miles from the said police station. Nazar Muhammad made a complaint on the same day at 7-30 p.m. To Muhammad Yasin who met him at Adda Bahadur Pura while present in connection with patrol duty alongwith the police party. The complaint was sent to the police station Where formal First Information Report was registered at 8-15 p.m.
4. Allegations recorded in the complaint authored by Nazar Muhammad son of Muhammad Boota is that on the fateful day at 12 noon his sister Mst. Hamidan Bibi was going to ease herself in the lands belonging to Fateh Muhammad son of Bala. Muhammad Tufail, one of the acquitted accused, son of Fateh Muhammad cut a joke with her upon which she raised hue and cry which attracted him and Muhammad Tufail started grappling upon which partymen of Muhammad Tufail namely, Fateh Muhammad son of Bala, Abdul Ghafoor, Kala, Ashraf, and Falak Sher sons of Fateh Muhammad, Mansha son of Rehmat, Mushtaq son of Mehraj Khalid all armed with Sotas, Hassan Muhammad son of Bala, Rashid Ahmad son of Fateh Muhammad armed with Kulharis arrived and his partymen namely, Hayat Muhammad son of Sher Muhammad, Muhammad Boota son of Shada, Rashid Ahmad son of Ghulam Muhammad, Muhammad Akbar son of Umar Din, Ali Muhammad son of Sher Muhammad, Niamat son of Ghulam Muhammad, Ramzan son of Ghulam Muhammad, and Ibrahim son of Muhammad Ali also arrived armed with Sotas and a fight ensued.
From his party Muhammad Hayat son of Sher Muhammad, Muhammad Boota son of Shada, Rashid son of Ghulam Muhammad, Muhammad Akbar son of Umar Din and Ali Muhammad son of Sher Muhammad were injured and from the party of the accused Fateh Muhammad and Hassan Muhammad were injured. This occurrence was witnessed by Ahmad Nawaz son of Muhammad Anwar and Muhammad Boota son of Shada and were instrumental in separating both the parties from fighting any further. The injured were taken by the respectables of the village for treatment to the District Headquarters Hospital, Kasur whereas he alongwith Akbar son of Umar Din and Ali Muhammad son of Sher Muhammad also injured were coming to the police station for lodging the report when the Sub-Inspector met them at Adda Bahadarpura where the complaint was lodged.
5. Muhammad Boota son of Shada died on 23-7-1993 and the postmortem examination was conducted by Dr. Altaf Hussain, Medical Officer, District Headquarters Hospital, Kasur and he found one lacerated wound measuring 5 x 4 c.m. Bone deep and are exposed over the left parital and occipital region of the skull. In the opinion of the doctor cause of death was shock and haemorrhage due to the injury to the vital organ i.e, brain caused by the said injury with a blunt weapon which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and duration between injury and death was between 26 hours and between death and postmortem was 24 hours.
' Apart from Muhammad Boota who was injured in the occurrence and subsequently died, Muhammad Akbar P.W.7 was also found to have two injuries on his head which were caused by a blunt weapon and were declared as Shajja-e-Khafifah. Muhammad Hayat not examined was also found to have three injuries on his forehead caused by blunt weapon and X-ray Report disclosed linear fracture of left frontal bone, therefore, the injuries were declared as Shajja-e-Hashmiah. Ali Muhammad P.W.8 had an incised wound on the right finger and the X-ray Report indicated fracture, therefore, the injury was declared as Jaifah Manaqilah.
' Muhammad Nazar son of Boota was found to have four injuries on his head, mid-thigh and right hand, were caused with blunt weapon and the X-ray Report indicated fracture of left parital bone in skull as well as thigh. Therefore, both the injuries were declared as Shajja-e-Hashimah and the other two injuries as.Ghair Jaifah Dammiah.
' Muhammad Rashid son of Ghulam Muhammad was found to have three injuries on his skull and left arm at the elbow-joint caused by a blunt weapon and no fracture was found in the X-ray, therefore, the injuries were termed as Shajja-e-Muddihyah and Jurh Ghair Jaifa Daimaha.
6. Dr. Altaf Hussain P.W.16 in cross-examination admitted that Fateh Muhammad, one of the accused was examined by him on 21-7-1993 and found seven injuries on his person on the right frontal region, right temporal mandibular region, contusion with swelling over outer aspect of right arm, contusion and swelling on the right elbow-joint, contusion over right lateral chest upper part, contusion 16 x 2 c.m. Over right lateral chest upper part, abdomen and contusion 37 c.m. x 2 c.m.
Over right thigh on posterior aspect. It is stated that all injuries were kept under observation and were caused by blunt weapon within three hours but since Fateh Muhammad never turned up the nature of the injuries could not be determined. However, he was referred to General Hospital, Lahore. Similarly same doctor stated that he had also examined Muhammad Hassan son of Balay Khan appellant vide Medical-Legal Report Exh.D.D. And found a lacerated wound 4 x 1/2 c.m. With swelling 6 x 2 c.m. Over left occipital region, lacerated wound 2 x 1/2 c.m. Joining first injury swelling 9 c.m. x 2 c.m. Over the upper out aspect of right forearm, contusion with swelling measuring 14 c.m. x 8 c.m. Over left scapula region, lacerated wound 1 c.m. x 1 c.m. Over the lateral tip of right index finger and lacerated wound 3 c.m. x 1 c.m. With swelling'5 c.m. x 5 c.m. Over left parital region posteriorly. All these injuries were kept under observation and were caused by blunt weapon within Three hours but since the injured did not turn up he did not declare the nature of the injuries.
However, the patient was admitted in the District Headquarters Hospital, Kasur. Medical Report of Fateh Muhammad and Hassan were prior in time with those of the complainant party.
7. Appellants alongwith others were indicted, they denied the charge, pleaded not guilty and claimed a trial. The prosecution examined as many as 16 witnesses. The ocular testimony account was furnished by Nazar Muhammad P.W.10 complainant, Rashid Ahmad, P.W.6, Muhammad Akbar P.W.7 and Ali Muhammad P.W.8, all injured witnesses alongwith one Ahmad Nawaz P.W.9.
8. Muhammad Yasin while working as Sub-Inspector after recording the complaint and sending the same to the police station for registration of the First Information Report proceeded to the place of occurrence, prepared the injury statement of the injured and rough site plan as Exh.P.U. On the following day he went to the hospital and contacted the doctor regarding recording of the statements of the injured. Some of the injured including Hayat, Boota and Rashid were sent to the General Hospital, Lahore whereas other were admitted in the local hospital. On the next day Muhammad Boota succumbed to his injuries. Inquest report Exh.P.Z. Was prepared before despatching the dead body to the District Headquarters Hospital, Kasur for post-mortem examination. On 10-8-1993 the appellants alongwith their co-accused were arrested and recoveries of Sotas and hatchets were affected on the same day. These weapons of offence were not blood-stained and for reasons recorded by the trial Judge they were not believed. I, therefore, need not dwell on this aspect any further.
9. Muhammad Tufail one of the accused when examined under section 342, Cr.P.C. Denied having cut jokes with Mst. Hamidan Bibi P.W. And stated that she was just like his sister. In reply to the question as to why the case has been brought against him and other accused, he made the following answer:-- ' "The case against me and my co-accused is false and is result of concoction and false implication of myself and my father, my five brothers, my uncle and cousins. A civil litigation regarding a piece of land was going on between my father, my brothers, Ashraf since murdered, Falak Sher, Ghafoor and Ashiq alias Kala. The civil suit has been filed by Ghulam Muhammad alias Gama father of Rashid, Niamat and Ramzan P. Ws. Of this case. Apart from that my father had a joint tubewell to irrigate the lands with Buta deceased and Buta deceased wanted to oust my father in order to forcibly use tubewell alone. Apart from that there was party faction in the village which resulted in an animosity and antagonism between us and the complainant party. On the day of occurrence, the complainant party comprising Nazar complainant, Buta deceased, Hayat Rashid Ahmad, Muhammad Akbar, Ali Muhammad, Niamat, Ramzan, and Ibrahim armed with Sotas came there when only myself, my father Fateh Muhammad and my uncle Hassan Muhammad were present and rest of the accused persons were not present. My old father and uncle Hassan Muhammad were given injuries by the above-referred persons and in the course of scuffle Buta took my father Fateh Muhammad in Jappha and was also trying to inflict injury upon him, then Akbar P.W. While trying to inflict injury on the person of Fateh Muhammad caused Sota blow on Buta deceased resulting into head injury which ultimately became the cause of his death.
Myself and my uncle Hassan Muhammad co-accused armed with Sotas meant for driving the cattle in order to save ourselves and my father Fateh Muhammad in exercise of self-defence inflicted minor injuries on the aforementioned persons. In the course of scuffle people of the village gathered and the complainant party received injuries at the hands of the village people who had come to our rescue. The complainant party was aggressor but the investigation was carried out in a false and dishonest manner by the local police. Myself and my co-accused were arrested within 2/3 days of the occurrence but our arrest was not shown till 10-8-1993. Since all the grown up male members of family including elders were roped in the case, therefore, we were rendered incapacitated to defend ourselves and local police in connivance with the complainant party cooked up this false case. I am producing in defence evidence attested copies of F.I.R. No,504 of 1989, Police Station Sadar, Kasur under sections 325/34, P.P.C. Which was got registered against me and others as Exh.D.E., attested copy of plaint of civil suit filed by Ghulam Muhammad alias Gama father of Rashid P.W. And Exh.D.F. Attested copy of written statement in the said suit as Exh.D.G. And interim order, dated 17-5-1994 Exh.D.H. My paternal-cousin Akbar was assaulted with fire-arm and case F.I.R. No,127 of 1994 was registered and challan is pending adjudication, copy of F.I.R. Is Exh.D.I.
And copy of challan is Exh.D.J. My brother Arshad an accused of present case was murdered and in the occurrence my aunt Mst. Zainab Bibi was also murdered. My brothers Ashiq, Mansha accused and Javed and Mst. Nazia a relative of us were also injured and in the said case Nazar Muhammad complainant of this case, alongwith Munawar P.W., Khalid, Sarwar his brothers alongwith others were challaned and the case is pending adjudication. Attested copy of the said F.I.R. Is Exh.D.K.
Bearing No,48 of 1996 which was lodged by Rashid my co-accused. Attested copy of F.I.R. No,211 of 1996 under sections 324/34, P.P.C. Which was lodged by my brother Rashid is Exh.D.L."
' The other accused made similar statements.
10. Learned counsel appearing for the appellants bitterly criticised the prosecution case and maintained that the motive was cropped up by the prosecution to give an excuse for the advent of the fight which was as a matter of fact commenced by the prosecution and the defence in the exercise of right of self-defence caused injuries to the deceased and the witnesses for the reason that Fateh Muhammad and Hassan Muhammad had 13 injuries on their persons but criticising the judgment of the trial Judge it was stated that a completely wrong view, not sustainable in the eyes of law, was taken which has resulted in a grave miscarriage of justice. Conversely counsel for the complainant argued that the appellants were aggressors and no question of extending benefit of right of private defence existed. He supported the conviction and sentence recorded by the trial Judge. Learned counsel appearing for the State toed the line taken up by the counsel for the complainant.
11. I have considered the arguments of the respective parties and have also gone through the record.
12. As far as the motive is concerned undoubtedly Mst. Hamidan Bibi P.W.13 has been produced, who stated that she was going to answer the call of nature on a Pagdandi behind their Haveli when Tufail, one of the accused caught hold of her hand and tried to drag her towards Charri crop upon which she raised alarm which attracted her brothers and a fight started. I do not believe the motive. In the first instance maidens usually answer the call of nature either after the sun sets or much earlier when the day dawns. Going to answer the call of nature at 12 noon seems slightly odd.
Further statement of Tufail in which he has referred to numerous F.I.Rs, and civil litigation shows that both the parties were locked in rancour, litigation and in these circumstances it is unimaginable that one of the accused will have the audicity to catch hold of a young lady of his opponents by hand and drag her towards Charri crop to satisfy his lust. Such acts are resorted to by males of low moral turpitude when they have a feeling that their act of vandalism would be reciprocated. In the instant case in the face of chronic and bitter enmity Muhammad Tufail before embarking upon such an amorous adventure must have definitely known as to what 'would be the consequences. Therefore, attributing the motive seems to be exaggerated and afterthought episode. In the First Information Report Nazar Muhammad had said that Tufail cut jokes with his sister Mst. Hamidan whereas lady when she appeared as P.W.13 stated that her hand was held by Tufail and she was tried to be dragged towards Charri crop. Motive by the prosecution, therefore, does not stand proved.
13. In any case it is admitted by both the sides that a fight erupted on the fateful day at 12 noon. The cause of fight could have been a longstanding enmity manifested by some of the details given below.
14. F.I.R. No,504 of 1989 with Police Station Saddar, Kasur was registered under sections 325/34, P.P.C.
Against Tufail and others on 12-12-1989 by complainant Muhammad Ramzan son of Ghulam Muhammad for beating Niamat and the mother of the complainant Mst. Nawab Bibi which has been produced as Exh.D.E., Exh.D.F. Is the copy of the plaint instituted by Ghulam Muhammad alias Gama father of Rashid injured P.W. On 9-1-1988 against Fateh Muhammad and his sons Ashraf, Falak Sher, Ghafoor and Rashid etc. Being a suit for injunction to restrain the defendants from dispossessing the plaintiff from Shamlat land. Exh.D.I. Is a copy of challan in F.I.R. No,127 of 1994 with Police Station Pattoki wherein paternal-cousin of Tufail namely, Akbar was injured by Nazar Muhammad son of Boota, Ahmad Nawaz son of Anwar and Munawwar son of Boota and the case is -pending adjudication. Ashraf one of the accused in this case alongwith her aunt Zainab Bibi were murdered for which F.I.R. No,48 of 1996 was registered on 24-1-1996 by Rashid co-accused against Munawar P.W., Khalid, Sarwar and his brothers which case is also pending adjudication.
Another F.I.R. Exh.D.L. Bearing No,211 of 1996 under sections 324/34, P.P.C. Instituted by Rashid has also been produced. Lastly Falak Sher during the pendency of appeal was murdered and this litigation goes to show that both the complainant and the accused were at daggers drawn and were bitter enemies of each other. The occurrence took place on a Pagdandi of the land belonging to another person. Both the parties, as it is obvious from the F.I.R., were armed with Sotas and hatchets, therefore, one can easily conclude that they came prepared for a pitched battle. As to what triggered the occurrence is shrouded in mystery. However, one can easily fathom that the cause was old enmity. What was the exact reason for the advent of the fight, as observed and being reiterated, is not very clear. -However, it is evident that a fight free for all ensued in which six persons from the complainant side and two persons namely, Fateh Muhammad and .Muhammad Hassan from the accused side got injured. The number of injuries on the complainant side is less than 13 injuries suffered by Fateh Muhammad acquitted accused and Hassan Muhammad appellant. However, the number of injuries on either side cannot be a determining factor to decipher as to who was aggressor. Unfortunately no circumstance is available from the evidence adduced on the file to show that who started aggression. The land where the occurrence took place neither belonged to the complainant nor the accused. Only one fact has become clear that both the parties have tempted to test their strength. In such eventuality when there is a free tight every individual is responsible for his own act. Muhammad Boota had suffered one injury on his head' which later on proved fatal and this injury has been attributed to Falak Sher murdered- appellant and Abdul Ghafoor whereas injuries caused to others have been attributed to Rashid Ahmad and Hassan Muhammad for which they have been convicted..
15. Conviction of Abdul Ghafoor under section 316, P.P.C. Also proceeds on wrong interpretation of the said provision of law. It has been observed by the trial Judge that there was free fight between the parties, both armed to cause injuries to others and, therefore, each one of the appellants has to be punished for his individual act. Section 315, P.P.C. Which defines Qatl Shibh-i-Amd takes into account the intention of a person to cause harm to the body of another person by wielding a weapon which does not cause death in the ordinary course of nature. In other words Qatl-Shibh-i- Amd is committed with the intention to cause death with a weapon which ordinarily does not cause death in the ordinary course of nature. In arriving at a conclusion whether this provision of law applies or not, the weapon, amount of force and the part of the body where it is used are some prime considerations which have to be taken into account. The said provision of law has no application when there is a free fight without premeditation out of a sudden impulse. In such eventuality if murder is caused in a free fight proper section is 302(c), P.P.C. It has been held in the case of The State v. Muhammad Hanif and 5 others 1992 SCM R 2047 that exceptions provided under section 300, P.P.C. Of the old law can now be examined under section 302(c) of the Pakistan Penal Code and this decision was an edifice upon which a number of subsequent decisions are based.
16. It is not known whether the appellants brought any complaint for injuries caused to Fateh Muhammad and Hassan. However, that is not the subject-matter of this appeal and I need not dilate upon it. Suffice it to say that 13 injuries on their persons also show the result of use of force by the complainant party who had come armed with Sotas. Death of Muhammad Boota was a result of single injury in a free fight in which both sides used force and violence. There is no premeditation and the fight it seems erupted because of enmity and rancour existing between both sides over a number of years. It is also to be taken note of that Muhammad Ashraf, one of the accused, was murdered after the occurrence in the instant case by the complainant party and Falak Sher who filed the appeal but subsequently was murdered also at the hands of his opponents will definitely show the amount of aggression and rancour both the parties have towards each other. Altering conviction of Abdul Ghafoor from section 316, P.P.C. To section 302(c), P.P.C. And for the reasons that two of the co-accused have been murdered and injuries were caused to Fateh Muhammad and Hassan Muhammad, it is a fit case where sentence of imprisonment is reduced to the period already undergone. Under section 302(c), P.P.C. The punishment of Diyat is not provided, therefore, the sentence of payment of Diyat of Rs,1,70,610 is set aside. For the same reasons sentence of Diyat awarded to Falak Sher is also set aside.
17. Rashid Ahmad appellant who is said to have caused injuries to Nazar Muhammad has been convicted under section 337-A(iii), P.P.C. The reasons given in the case of Abdul Ghafoor are also applicable to his case and that of Hassan Muhammad and as such I reduce sentence of imprisonment to the period already undergone by him. The amount of Diyat in the sum of Rs,17,610 is maintained. It shall be paid in instalments spreading over a period of three years from. The date of this judgment and in the meanwhile within a period of one month Rashid Ahmad shall furnish security to the satisfaction of the trial Judge equivalent to the amount of Diyat.
18. Hassan Muhammad was convicted under section 337-F(vi), P.P.C. For causing injuries to Ali Muhammad P.W. While maintaining his conviction his sentence of imprisonment is also reduced to the period he has already undergone and the amount of Daman is reduced to Rs,2,000 which he shall pay within one month from the date of judgment failing which the order of the trial Judge against him shall become operative. Application of section 382-B, Cr.P.C. Extended by the trial Judge is maintained.
19. Criminal Revision No,365 of 1996 for reasons rendered in this judgment has no merit and is dismissed.
Sentences reduced.