' Through this single judgment I would like to dispose of Criminal Appeal No,59 of 2000 filed by Sultan Khan, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Chunian vide his judgment, dated 17-1-2000 under section 302(b), P.P.C. To undergo Imprisonment for life and to pay fine of Rs,20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default six months' S.I.
2. Occurrence in this case had taken place on 1-10-1995 at 10-00 p.m. Within the jurisdiction of Police Station Allah Abad at a distance of 10 miles away while the matter was reported to the police on the same day at 12-30 p.m. By Muhammad Rafique complainant through complaint Exh.P.B. And the formal F.I.R. Exh.P.B./1 was recorded by Peryez Iqbal M.H.C. In police station on the same day at 12-55 p.m.
3. Brief facts of the case as disclosed by Muhammad Rafique complainant are that on 1-10-1995 at 10-00 p.m., he alongwith Ali, Sattar Khan, Arshad, Iqbal, and Aslam was sitting by his tubewell on cots, busy in conversation when the electric bulb was on. The accused Master Sultan, Taqqi, Muhammad Ismail, all the three armed with hatchets; Rustam armed with a wooden club; Muhammad Islam, Sajjad alias Papu and Shakeel all the three armed with guns .12 bore, emerged there. They were shouting to make the complainant party taste for the non-allowance of 'irrigation of their fields. The accused Sultan gave the blow of his hatchet on the head of Ali Muhammad who fell in the watercourse. After this the accused Taqqi gave the blow of his hatchet near the forehead of Muhammad Aslam. The accused Taqqi, Rustam and Sultan again bullied the said Muhammad Iqbal, Muhammad Arshad, Muhammad Aslam and Sattar, one after the other, testing the wrong sides of their respective hatchets and wooden club. The accused Sajjad, Muhammad Islam and Shakeel continued challenging that all the members of the complainant party be killed. They were also firing in the air, with their guns. The noise attracted Qasim and Zahoor Khan who also appeared on the scene of occurrence to witness it. With their intervention the accused fled away.
The complainant brought the ' injured Ali Muhammad, Arshad, Muhammad Aslam, Iqbal and Sattar to Civil Hospital, Allah Abad where the said injured Ali Muhammad succumbed to the injuries.
4. After registration of the formal F.I.R. Abdul Ghafoor, S.-I. P.W.13 went to the spot, prepared injury statement Exh.P.Q. And inquest report Exh.P.R., inspected the spot collected blood-stained earth which was taken into possession vide memo. Exh.P.H: He also took into possession from the place of occurrence, a pair of shoes P.1/1-2, sleeper P.2, another sleeper P.3 vide memo. Exh.P.H., thereafter, the investigation was entrusted to Rab Nawaz, Inspector P.W.14, on 13-10-1995 arrested Sultan, Taqqi, Muhammad Ismail, Rustam Khan, Shakeel Ahmad, Muhammad Islam and Sajjad alias Papu.
On 14-10-1995 Islam accused while in police custody led to the recovery of gun P.6 which was taken into possession vide memo. Exh.P.K. On the same day, Sajjad accused while in police custody led to the recovery of gun P.7 which was taken into possession vide memo. Exh.P.L. On the same day, Shakeel accused while in police custody led to the recovery of double barrel gun P.8, which was taken into possession vide memo. Exh.P.M. On 23-10-1995 Sultan accused led to recovery of hatchet P.10 which was taken into possession vide memo. Exh.P.O. On the same day, Rustam accused led to the recovery of Dang P.9 which was taken into possession vide memo. Exh.P.N. After completion of the investigation the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.T. Regarding blood-stained earth and Exh.P.V. Regarding hatchet and closed the prosecution case then the statements of the accused were recorded under section 324, Cr.P.C. In which they pleaded the right of self-defence.
They also produced Dr. Liaquat Ali as D.W.1 in their defence. After conclusion of the trial, present appellant was convicted and sentenced while the other accused were acquitted by the learned trial Court.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342Cr.P.C. And other relevant material available on record learned counsel for the appellant submits that at the time of quarrel the turn of water was of the appellant party and he has specifically referred to the cross-examination of Muhammad Rafique complainant P.W.2, that in fact it was the complainant who told the appellant that they would not allow them to irrigate their land, that three persons from the side of the appellants were also injured but their injuries were suppressed by the prosecution, that the tubewell from where the lands were being irrigated 1/4th share belonged to Sultan appellant, that only one injury on the person of the deceased was attributed to the present appellant, that Sultan appellant though was not injured in this case. He has referred to the statement of Sultan appellant specially in reply to question No,5 of his statement recorded under section 342, Cr.P.C. That appellant had produced Dr. Liaquat Ali as D.W.1, who had examined Rustam Khan, Shakeel and Sajjad co-accused of the present appellant, that appellant is behind the bars since' 13-10-1995 and he was never granted bail during the trial and during the pendency of appeal before this Court, that it was clear case of right of self-defence.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that appellant is the main accused in this case, that he was having Kassf, that he gave fatal blow and killed young man in this case, that ocular account is corroborated by medical evidence, that it was not a case of right of self-defence. Learned counsel 'for the complainant submits that appellant was -unable to produce M.L.Rs, of their injured accused persons, that in fact, their injuries were with friendly hands and Dr. Liaqat Ali D.W.1 had admitted the same, that co- accused of the present appellant were never injured during the occurrence but they in connivance with Dr. Liaquat Ali fabricated these injuries on their persons, that learned trial Court was right in convicting the appellant. They both support the judgment of the learned trial Court.
8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, from the side of the complainant party Ali Muhammad lost his life while Muhammad Aslam, Arshad, Iqbal and Abdul Sattar were injured. In all there were 24 injuries on their persons. Two injuries are incised wounds while on the other hand, accused party received 11 injuries on their persons. They were also medically examined on the same night by Dr. Liaquat Ali D.W.1. The objection of learned counsel for the complainant that accused party was not medically examined from the same dispensary from where the complainant party was medically examined and while arguing the case it was submitted that appellant intentionally did not go to that dispensary where the complainant party was medically examined because they had no injury on their person. In my opinion, as both the parties had already a fight with each other, many persons were injured from both the sides, one person lost his life so it was not proper for the appellant to visit the said dispensary because there, some more may have lost their lives. This objection of learned counsel cannot damage the case of the defence. In order to reach at a just conclusion, I have also gone through the judicial file and the police file. Appellant was arrested on 13-10-1995 and at the time of his arrest the version of the appellant was the same which he had stated in his statement recorded under section 342, Cr.P.C.
While replying to question No,5 which is reproduced below:-- "The P. Ws. Are inter se related therefore, they have falsely deposed against me. The real facts are that the abvoesaid tubewell is installed jointly by four parties in equal shares. We have got 1/4th share in the tubewell and we have decided about the turns of water. On the day of occurrence we had to water our land from the tubewell from 9-00 p.m. To 6-00 a.m. The complainant party did not allow us to use the tubewell for watering our field on our turn. I came to take water at 9-00 p.m.
With a Kassi in my hand and I tried to divert the water in the Main Khal which we had been using for the last 20 years. Rustam, Sajjad and Shakeel were also with me at that time. Ali Muhammad deceased and others including Muhammad Iqbal, Muhammad Aslam and Arshad armed with Sotas came there .And they raised Lalkaras that we should stop taking the turn of water and they started giving Sota blows to Shakeel, Sajjad and Rustam and injured them. Ali Muhammad deceased came forward and raised his Sota for giving blow to me, I was holding a Kassi and in order to defend myself, I gave Kassi blow to Ali Muhammad to ward off the blows of the assailants.
He received the injury and fell down. We all disbursed because there was Raula that Ali Muhammad had died. In the next morning the police came and with the connivance of the complainant party concocted false story. After one month they planted hatchet upon me, although I had produced Kassi before the Investigating Officer and had stated the correct position. The other assailants received minor injuries at the hands of my above-said companions, who were given Sota blows by the complainant party. I had used the right of self-defence of my person as well as right of defend the turn of water of the tubewell which was owned jointly and we had a share in it.
The complainant party had no right to prevent us from watering our fields from the tubewell which we had been using for the last twenty years. The police reports on record under the influence of the complainant party and gave a fabricated twist to the story which they have failed to prove."
' Dr. Liaquat Ali D.W.1 when was cross-examined by D.D.A. The first question which was put to him and the answer is as follows:-- "There is every possibility that injuries on the head of injured persons who were examined by me could lead to the death. I admitted Rustam injured in the hospital due to injury No,1 but I did not admit two other injured namely, Shakeel and Sajjad. I did not feel head injuries of the persons, namely, Shakeel and Sajjad dangerous, therefore, they were not admitted in the hospital. Injury No,1 on the person of Rustam Khan was grievous. It is correct that bones of the skull are stronger than the other bones of -the body. There was possibility that such type of injuries could be caused by friendly hands. The above-said injuries could be caused by a Sota not by heavy Lathi, iron rod etc. Nor wrong side of the . Hatchet. The injured were examined by me privately without any request of the police or order of any competent Court. I inquired from these injured about the history of the injury. I do not recollect correctly as to what they stated about the history. Again said that probably these injured accused told me that other party- had gone to R.H.C. Allah Abad and i,e, why they had come to Kanganpur. They have also told me that they have received injuries in a fight. The fact that these injured accused received the injuries in fight came to my notice but I did not send any information to police station. When I conducted the examination of the injured jurisdiction of k.H.Cs.
Was not clear cut. It was common practice to issue the M.L.Rs,, of other police stations as well. It is incorrect to suggest that injury No,1 on Rustam Khan accused was self-suffered and it is also incorrect that I declared it as 'Shajjah Madiha illegally."
I am not going to accept this version of the doctor that injuries on the persons of co-accused of the present appellant were with friendly hands, these injuries could not have been caused with friendly hands because some of them are on head and he has already admitted that one of the injury on the person of Rustam was grievous one. These injuries have been suppressed by the prosecution.
' I would also like to reproduce some portion of the statement of Muhammad Rafique complainant P.W.2 specially at page 3 of his cross-examination as under:-- "It is correct that on the said day, the turn of water to be taken by Sultan Khan etc. At 9-00 p.m., Sultan Khan etc. Had to water their land from 9-00 p.m. To 6-00 a.m. It is correct that Sultan Khan etc. Were having their turn of water in the night of day of occurrence. After one hours of watering of land the quarrel arose between the parties. We told them .That the accused would not be allowed to water their lands from this 'watercourse. The accused insisted that they would water their lands from the same watercourse as in the past. It is correct that on this issue the altercation arose between the parties which culminated into fight."
' It has also been admitted by this P.W.2 the complainant that there were four co-sharers of the said tubewell and 1/4th share belonged to the present appellant: According to 'Pakistan Penal Code when any person even apprehends a grievous injury 'he had a right of self-defence. In the instant case, three persons from the side of the present appellant were injured during, the fight and those were suppressed. The injuries cannot be weighed in golden scale. Only one injury is attributed to the present appellant, he is behind the bars since 13-10-1995, I accept the version of Sultan appellant which he submitted during the trial and also in his statement recorded under section 342, Cr.P.C. Specially in reply to question No,5 and even if both the versions, one put forward by the prosecution. And the other put forward by the appellant in his statement recorded under section 342, Cr.P.C. The version of the appellant seems to be true and convincing one. Appellant is behind the bars since 13-10-1995, therefore, I convert his conviction from section 302(b), P.P.C. To section 302(c), P.P.C. And sentence which the appellant has already undergone is treated to be sufficient to meet the ends of justice. He shall be released forthwith if not required in any other case.
' It may 'also be mentioned here, that Muhammad Rafique complainant had also filed Criminal Appeal No,162 of 2000 titled as Muhammad Rafique v. Taqqi Muhammad etc. Which was dismissed by Division Bench of this Court on 13-9-2000. On the same evidence co-accused of the present appellant were acquitted by the learned trial Court and the order of Division Bench of this Court also confirms the version of the appellant in the instant case. With the above-said modification in the sentence, this appeal stands dispose of.