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Criminal Appeal No. 56 of 1966, decided on 26th June 1970.
S. 304, Part II read with S. 100‑Murder‑Free fight‑Right of private defence‑Cannot be successfully invoiced by accused voluntarily and deliberately engaging themselves infighting.
S. 304, Part II & S. 302 Murder‑Sentence‑Fatal injury to deceased given by accused Normal conviction should be under S. 302 and not under S. 304, Part II, Penal Code, 1860‑High Court, however; declined to interfere with conviction since State did not appeal against acquittal of accused under S. 302 and accused remained in jail as under trial prisoner for more than 6 years.
Ch. Abdur Rahman Cheema for Dr. Tassaduq Hussain for Appellant.
Major Mufti Nazar Muhammad for the State.
Date of hearing : 24th June 1970.
Abdul Hamid (28) resident of Chak No. 161 G. B., Police Station Toba Tek Singh was committed to the Court of Session along with his two brothers Nawab alias Babu (30) and Muhammad Hand (26) under section 302 read with section 34 and 323 read with section 34 of the Pakistan Penal Code for allegedly committing murder of one Ghulam Farid, their co- villager and causing simple hurt to his father Baru (P. W. 9) and his brothers, Muhammad Siddique (P. W. 10) and Rash id (P. W. 11) on the morning of 22nd June 1964, in the area of Chak No. 161 G. B. They were tried by Mr. Abdul Alim Dareshani. II‑Additional Sessions Judge, Lyallpur. Abdul Hamid was convicted under section 304, Part (if) of the Pakistan Penal Code and awarded a sentence of sever: years rigorous imprison ment. Ha was also fined Rs. 1,000.00, hair of which was directed to be paid to the heirs of the deceased is compensation under section 544‑A of the Criminal Procedure Code. In default of the payment of fine he was directed to undergo further rigorous imprisonment for a period of one year. His brothers; Muhammad Hanif and Nawab alias Babu were acquitted. The convict has cone up in appeal, bearing No. 56 of 1966. He has also been convicted under section 19 of the Arms Act and awarded sentence of two years rigorous imprisonment with regard to which he has filed Criminal Appeal No. 55 of 1966. This judgment shall dispose of both the aforesaid appeals. .
2. The facts of the case briefly are, that Baru (P. W, 9) was allotted 7 killas of land in Square No. 32 in Chak No. 161 G. B., by the Government, in lieu of the land held by him in Chak No. 14, wherefrom be was displaced. The appellant and his brothers have their land opposite to the land of aforesaid Baru" with a road intervening between them.
3. On the 21st of June 1.964, when Baru went to his field, he noticed, that some fodder. had been cut therefrom and removed. He suspected the appellant and his brothers to have committed the theft. He complained to Muhammad Sharif (P. W. 13), who accompanied him to the dera of the appellant. The appel lant alone was there, and when be was told that he was suspected of the theft of fodder, he lost his temper and directed Baru to go away.
4. Baru and Muhammad Sharif went away to the dera. of the latter. After sometime the appellant also arrived there, followed by his brother Hanif and they assaulted Baru by giving hint fist and kick blows. Muhammad Shad f got him rescued and he left for his dera.
5. Baru P. W. met his s a, Muhammad Siddique (P. W. 10) and told him about what had happened. Both of them went to the dera of the accused, but they were not there.
6. The same evening Nazar Muhammad (P. W. 14) and Jan Muhammad (P. W. 15) were contacted 13y Muhammad Siddique P. W. and were informed of the mischief done by the accused. They were requested to call a Panchayat. They agreed to the proposal. Thus on the following day, i.e., on 22nd June 1964, Baru and his sons were summoned by aforesaid Nazar Muhammad and Jan Muhammad through Karam Din Chowkidar (P. W. 12).
Thus Baru and his sons, Muhammad Siddique (P. W. 10), Rashid (P. W. 11) and Ghulam Farid, deceased, started for the village. Muhammad Sharif (P. W. 13) joined them. When they got on to the road from killa No. 1 of their land, the appellant and his brothers, Muhammad Hanif and Nawab suddenly appeared from the sarkanda bushes growing along the bank of the stream where they were hiding and attacked them. Abdul Hamid was armed with a spear and his brothers carried sticks. Abdul Hamid appellant gave a spear blow on the left side of the chest of Ghulam Farid, who was ahead of the party of his father. He was given another spear blow, which fell on his left arm, as a result whereof he fell down: Hanif accused gave a lathi blow on the head of Baru. Nawab struck a latht blow on the person of Muhammad Siddique P. W. Both Baru and Muhammad Siddique fell down. Hznif and Nawab accused then inflicted blows on the person of Rashid (P. W. 11). Rashid P. W. also had a stick, and he inflicted blows on the persons of the three accused. Ghulam Farid died at the spot. ' The accused then ran away.
7. Baru P. W. left for Police Station Toba Tek Singh, where he arrived at about 3‑30 p.m. on the day of occurrence and lodged report Exh. P. A., which was recorded b‑y Assistant Sub‑Inspector Amir Hussain Shah:
8. During the course of investigation, Abdul Hamid appel lant offered to produce the spear. He led Sub‑Inspector Muhammad Afzal Shah (P. W. 19) to his sugarcane field in kind No. 17 of Square No. 29 and therefrom took out spear P. 4 and produced it, in the presence of Nazar Muhammad (P. W. 14) and Muhammad Din (P. W. 18). It was found to be stained with blood. It was sealed into a parcel and taken into possession vide memo. Exh. P. D. The aforesaid spear was sent to the Chemical Examiner and his report Exh: P. Y. is to the effect, that it was stained with blood. When it was examined by the Serologist, whose report is Exh. P. Z., it was ‑noticed, that it was stained with human blood:
9. Dr. Abdul Ghafoor (P. W. 1) examined Muhammad Siddique P. W. at 6‑45 p.m., on 22nd June 1964, and found rout' injuries on his person, which were caused with blunt W04poa and were simple in nature.
10. On the same day at 7‑10 p.m., he examined Baru P. W. and noticed three injuries on his person. These were caused with blunt weapon and were simple in nature.
11. Post‑mortem examination on the dead-body of Ghulam Farid was conducted by Dr. Masood Farooqui (P. W. 2) on 23rd June 1964, at 11‑45 a.m. and he noticed the following injuries :‑
(1) Incised wound, 1 " x ", just blow left nipple, oblique in direction, cavity deep. situated, on the left side of the front of the chest.
(2) Incised wound, 1 " x on the back part of left. Upper arm.
(3) Incised wound 2 below injury No. 2 on the left upper arm measuring 1 x .
(4) Abrasion, 3' x 2", on the upper outer part of the left thigh.
Internal examination revealed, that costal cartilage of the 5th rib and left ventricle of the heart were cut under Injury No. 1. Pericardium was full of clotted blood. Death was due to injury No. 1, which was inflicted by sharp pointed weapon. It led, to the haemorrhage:
The injury was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 and 3 were also caused with sharp‑edged weapon cutting through and through. Injury No. 4 could be due to fall. The death was instantaneous and the time that elapsed between death and post‑mortem was from 12 to 3,6 hours. Exh. P. V. is post‑mortem report.
12: Dr. Muhammad Iqbal (P. W. 17) examined Rashid P. W. on 23rd June 1964, and found two injuries on his person, which were simple in nature and had been caused by blunt weapon.
13. The same doctor examined Abdul Hamid appellant, on 22nd June 1964, at 7 p.m., and found four injuries on his person. These were simple and had been caused by blunt weapon.
14. On the same day, at 7‑30 p.m., the same doctor examined Muhammad Hanif, the acquitted accused, and found one injury on his person, which was simple and had been caused with blunt weapon.
15. Shortly earlier to that on the same day, the same doctor examined Nawab, the acquitted accused; and noticed two injuries on his person, one of which was kept‑under observation, It had been caused with blunt weapon. Subsequently on the basis of the X‑ray examination and report of the Radiologist, the injury was declared grievous.
16. The prosecution examined Baru (P. W. 9), father of Ghulam Farid deceased,, Muhammad Siddique (P. W. 10) and Rashid (P. W. 11) sons of Baru, Karam . Din (P. W. 12), Muhammad Sharif (P. W. 13), Nazar Muhammad (P. W. 14) and Jan Muhammad (P. W. 15) as witnesses to the occurrence. It also examined Nazar Muhammad (P. W. 14), Muhammad Din (P. W. 18) and Sub‑Inspector Muhammad Afzal Shah (P. W. 19) with regard to the recovery of spear P. 4 at the instance of the appellant.
17. While denying his guilt, the appellant stated before the Committing Magistrate :‑‑
"On 21‑6‑1964, Baru P. W. attacked me at my dera and I beat him in self‑defence. On 22‑6‑1964, 1 was taking my cattle to my dera in the morning when Baru, Rashid, Siddique and Ghulam Farid attacked me near Square No. 32. My brothers, who were following me, were also attacked and injured like myself. We raised an alarm and 'some people came there anal beat the assailants,
At the trial, however, he stated as under :‑
"The injuries were sustained by me, at the hands of P. W5., Baru, Siddique, Rashid, and deceased Ghulam Farid, when I was going from my village with my mother and a buffalo. I was going to the sera, when I was suddenly attacked by Baru and his three sons, who were armed with sotas. I raised cries, which attracted my two brothers, Hanif and Nawab. They tried to rescue me, but received injuries themselves: One Bashir son of Aziz and two others also came rushing on my cries. Bashir carried a spear. It was Bashir and his two friends, who inflicted injuries on P. Ws. and Ghulam Farid in order to save me and my brothers."
The appellant and his co‑accused declined to produce defence.
18. The prosecution case reveals, that there was motive on the part of both the parties to attack each other. Baru, who had not himself seen the commission of theft of his fodder, suspected the appellant as the thief and the latter; When appro ached and told about it, naturally felt, offended. I cannot exclude the possibility that he might have given fist and kick blows to Baru as stated by Baru P. W. Baru, on the other hand, seems to have grievance as not only was his fodder stolen, but he was beaten by the appellant. He then according to him went along with his son Muhammad Siddique P: W. to the dera of the accused, but fortunately for both sides that they did not find them there and returned. It is thereafter, that he is stated to have requested Nazar Muhammad one Jan Muhammad P. Ws. to convene a panchayat.
19. With regard to the actual occurrence, the, story of the prosecution had been supported by a number of witnesses and so far as Abdul Hamid appellant is concerned, it finds support from the recovery of blood‑stained spear P. 4 at his instance. However, as has been pointed out above, the defence contention at the trial was, that the fatal injury was received by Ghulam Farid deceased at the hands of Bashir son of Aziz and two others, who came rushing to the spot on hearing cries. Bashir carried a spear and it was he and his two friends, who inflicted injuries on the prosecution witnesses and Ghulam Farid deceased in order to save tile appellant and his brother. This version, which is a very much belated one, is, on the face of it, false and absurd, because when explaining his own injuries and those received by the acquitted accused, the appellant made no mention of Bashir and his friends, in, the Court of the Committing Magistrate. On. the other hand, he stated that on the alarm raised by him and his brothers some people came there and beat their assailants. The introduction of Bashir's name at the trial is an afterthought. It was put to a number of witnesses, most of whom denied his presence and participation in the fight. Karam Din (P. W. 12) tried to help the defence. He stated in examination‑in‑chief, that he saw one Bashir son of Aziz running away from the place of occurrence. He was declared hostile and was cross‑examined by the Public Prosecutor. He then admitted, that she had stated before the Committing Magistrate, that Abdul Hamid appellant was armed. with a spear. He was asked the following question :‑
"You had stated before the Committing Magistrate, that Hamid was armed with a spear, and here you have stated that he was armed with a dang ; which of the two statements is correct "
His answer to the aforesaid question runs thus :‑
"My first statement is correct. Hamid was armed with a spear."
The witness also admitted, that he had not stated before the Committing Magistrate that he had seen Bashir son of Aziz running away. If Bashir had really participated in the fight and he is a cousin of the appellant, there is no reason, why Baru would not have named him as a culprit, while making report to the police. In fact he would have been the first person to be involved. Thus I agree with the conclusion of the learned trial Judge, that the participation of Bashir is false and he has been named by the accused to save their skins.
20. There is overwhelming evidence that both the parties, viz., the appellant and his two brothers on one side, Ghulam Farid deceased, his father and two brothers on the other, engaged themselves in a fight a short distance away from their deras. This impression is stengthened by the fact, that‑besides the deceased, his father and two brothers were injured as also all the accused persons, including the appellant, and one of the accused had received a grievous injury.
21. Learned counsel for the appellant did not challenge ‑the participation of the appellant and his brothers in the fight. His sole contention is, that the appellant 'and his brothers were attacked and they injured their adversaries in self‑defence. It is contended, that the appellant has not exceeded the right of private defence and, therefore, he could not have been convicted under section 304, Part (II) of the Pakistan Penal Code. In any case, the sentence awarded to him is too severe: The learned trial Judge after elaborate discussion of the evidence, produced by the prosecution, did not agree with the prosecution story, that the appellant and his companions lay in ambush and made a sudden attack on the deceased, his father and brothers. There can be no difference of opinion with the aforesaid conclusion arrived at by the learned trial Judge. His finding is correct and runs as under :‑
"The only conclusion, therefore, which can be arrived at in the circumstances of the case, would be that a fight took place between Baru and his three sons, on the one side, and the three accused persons on the other; it being impossible to gay with any certainty, as to how the fight actually started; for the purpose of this order, it would be considered as an open fight, in which both the parties freely used the weapons carried by them."
22. The learned trial Judge at another place reiterated by observing:-
"I have already come to the conclusion that it was an open fight, and that, it was not possible to say, a s to how it started and who started it."
In spite of the aforesaid finding, he observed in para. 15 :‑‑
"It being impossible to state as to who started the mischief, the benefit of doubt would go to the accused, that they were not the aggressors, and that they might have caused the injuries in exercise .of the right of self‑defence. In any case, the injuries were caused, during the course of a free fight by all the participants, and the version of the prosecution about all the injuries on the three accused persons have been inflicted by P. W. Rashid is absurd."
22. The learned trial Judge at another place reiterated by observing :‑
"I have already come to the conclusion that it was an open fight, and that, it was not possible to say, a s to how it started and who started it."
In spite of the aforesaid finding, he observed in para. 15 :‑
"It being impossible to state as to who started the mischief, the benefit of doubt would go to the accused, that they were not the aggressors, and that they might have caused the injuries in exercise of the right of self‑defence. In any case, the injuries were caused, during the course of a free fight by all the participants, and the version of the prosecution about all the injuries or, tile throe accused persons have been inflicted by P. W. Rashid is absurd."
23. All I can understand from the conflicting observations of the learned Additional Sessions Judge is, that he is not clear in his mind, as to whether it was a free tight or a fight, which had been started by Baru P. W. and his companions and the accused had to r::‑act in the right of private defence of their persons. It is well known that in the case of free fight, which is the finding of the learned Additional Sessions Judge himself, the right of private defence cannot be successfully invoked by persons, who voluntarily and deliberately engage themselves in fighting with their opponents. 16 a free tight the question as to a who attacks first and who defends himself is wholly immaterial. The circumstances of the case un-disputably reveal that both the parties had grudge against each other. The appellant and his brothers were dissatisfied with the accusation against one of them to have committed theft of the fodder of Baru, whereas Baru on his own part was dissatisfied on account of the attitude of Abdul Hamid, who gave him kick and fist blows, when he charged him with the commission of theft. This shows that although there might have been a demand for convening Panchayat, both the parties, who were fully armed, wanted to have it out and under such circumstances, it does not lie in the mouth of the appellant to claim, that he and his brothers acted in the right of their private defence. The question, whether or not they exceeded such right would, therefore, not arise for determination. Suffice it to say, that in his statement made by the appellant in the Court of the Committing Magistrate, he did not plead the right of private defence of his person. He, as a matter of fact, did not admit that he had caused any injury to any person. On the other hand as has been mentioned above, he stated, that on the alarm raised by him and his brothers, "some people came there and beat the assailants". At the trial also the appellant did not admit that he assaulted the deceased in the right of defence of his person and the persons of his brothers. The result therefore, is that neither the appellant pleaded right of self‑defence nor such a plea was available to him.
24. According to the prosecution story fatal injury to Ghulam Farid deceased was given by the appellant. Normally, therefore, he should have been convicted under section 302, of the Pakistan Penal Code and not under section 304, Part (II) of the Pakistan Penal Code. However, since the State has not appealed against the acquittal of the appellant under section 302 of the Pakistan Penal Code, and the occurrence took place more than six years ago, and since then the, appellant has been in jail either as an under trial prisoner or as a convict, I would not like to interfere, and, therefore, decline to call upon the appellant to show cause, as to why he should not be convicted for murder. However, taking into consideration all the facts of the case, I find no force in the appeals. These are, therefore, dismissed, subject to‑ the modification that the sentence awarded under the Arms Act will run concurrently with the sentence awarded to the appellant under section 304, Part (II) of the Pakistan Penal Code.
Appeal rejected.
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