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Criminal Appeal No. 190 of 1976, decided on 12th May 1976.

‑‑‑ Sentence‑Mitigation‑Accused party sustaining 27 injuries against 12 injuries received by complainant party‑Accused already serving out 21 years in jail after protracted trial but eventually found respon sible for an offence under S. 325, P. P. C.‑‑Sentence reduced to period already undergone, in circumstances.‑[Sentence].

‑‑ Ss. 299 & 304 read with S. 325‑Both parties fighting out a pitched battle in which complainant party also used hatchets and dangs‑No sharp‑edged weapon injury found on person of deceased while complainant party used sharp side of hatchets against accused party‑Accused responsible for giving deceased a Latchet blow by wooden side of its handle, but himself receiving five injures including a sharp‑edged weapon injury‑Accused, held, only committed an offence under S. 32.5, P. P. C., in circumstances.

Ch. Muhammad Anwar Bhinder for Appellant.

M. A. Zafar for the State.

Date of hearing : 12th May 1976.

Manzoor son of Mathela (32), Nawaz eon of Khudullah (36), Ashraf (44) Bashir (30) Moonda (33) sons of Sohni and Khudullah son of Malla (60) were tried under action 302/326/324/148/149, P. P. C. by the learned Additional Sessions Judge, Gujranwala, who vide his judgment dated 17th February 1976 while acquitting Manzoor, Nawaz, Ashraf and Khudullah convicted and sentenced Bashir to ten years' R. I. with a fine of Rs. 1,000 or in default thereof to under o further one year's R. I under section 304‑1, P. P. C. Moonda accused was however, convicted and sentenced to six months' R. I. and a fine of Ra. 500 or in default of payment of fine to suffer further six months' R. I. under section 324, P. P. C.

Both, Bashir and Moonda convicts have filed a joint appeal against their conviction and sentences.

2. The brief facts of the case are that on 19th August. 1972 at 3‑15 p.m. when Muhammad Akram complainant was going to Chah Lakarianwala, to offer some Fatiha, he was attacked by Manzoor, Nawaz, Ashraf (co- accused), Moonda and Bashir appellants, who all were armed with hatchets while Khudullah co‑accused who was empty‑handed exhorted them that the complainant should be killed. According to the case of the prosecution, Bashir appellant put a noose around the neck of Muhammad Akram and felled him on the ground. Taking advantage of the situation, Manzoor co‑accused gave a hatchet blow, which bit on his left foot. The other accused also inflicted injuries to him from the sharp as well as blunt side of their respective hatchets. The complainant became unconscious and was removed from the place of occurrence by Sher Muhammad, Muhammad Nawaz, Umar Dram, Mahanda P. Ws. and Nazar Hussain deceased who had reached there after receiving the information of this assault. While Muhammad Akram complainant was being carried away on a cot and the above mentioned P. Ws, had reached near his house, all the accused once again emerged and launched attack on them. In this second attack Bashir appellant inflicted a blow on the head of Nazar Hussain deceased who fell down. Khudullah co‑accused, as usual, went on raising lalkara. Moonda appellant inflicted a hatchet blow on the person of Umar Draz P. W. while Nawaz co‑accused also gave a hatchet blow on him from the wrong side of his hatche. Nazar Hussain deceased became unconscious. It is also stated by the complainant that the P. Ws. also retaliated and injured the person is their self‑defence. All the injured were taken to Sukheki Hospital but as the doctor was not available, they were removed to Pindi Bhattian Hospital where the complainant gave statement Exh. P. B. to the Investigating Officer, which was read over to him and he thumb‑marked it in token of its correctness.

3. The motive for the attack is stated to be that Manzoor co-accused had cultivated one Killa of land as the tenant of the complainant but did not give him the share of produce on which the complainant filed a suit for recovery of the same before the Court of Tehsildar which was pending at the relevant time.

4. Muhammad Baqir P. W. 11 who was posted as an S. H. O. at Police Station, Sukheki on 19‑4‑1972, after taking the cognizance of this case, went to Pindi Bhattian Hospital and enquired from the doctor ride applications Exhs. P. J. and P. K. if Nazar Hussain and Muhammad Akram complainant were in a fit condition to make a statement. The doctor was of the opinion that Nazir Hussain was nut in a position to make a statement while Muhammad Akram wait fit to do so. Exh. P. B, of Muhammad Akram P. W. was recorded and spent to the police station for formal registration of the case. He then reached the spot and recovered blood‑stained earth vide memo. Exh. P. C. and also inspected this site of the fist occurrence to find out whether tire events had left some blood stains at that place but he could not succeed in his efforts On 22‑8‑1972, he received information that Nazar Hussain had died. He at once reached the ho3pital an‑1 prepared inquest report Exh. P. D. and sent his dead body to the mortuary for post‑mortem examination, under the escort of Munawar Khan F. C.

On 21‑8‑1972 he arrested all the accused with the exception of Khudullah co‑accused who was arrested later on 31‑8-1972. Moonda Ashraf, Manzoor, Bashir and Nawaz accused after making disclosure, led individually to their respective houses and got recovered hatchets P. 2, P. 3, P. 4, P. 5 and P. 6, which were taken into possession vide memo. Exhs. P. D., P. E., P. O., P. F. sad P. H. respectively.

5. Dr. Sabir Ali P. W. 1, conducted post‑mortem examination on the dead body of Nazar Hussain deceased and found the following injuries on his person: -

(1) A stitched contused wound 2' long with 5 stitches on the top and mid of the head, 8' from the tip of the nose and 7' from the right ear.

(2) Abrasion 1" x ', x on the front mid left chest.

In his opinion injury No. I was caused by some blunt weapon and was sufficient to cause death in the ordinary course of nature.

On the fame day at 8‑30 a.m. Dr. Nawaz Ahmad Bajwa, P. W. 2, medically examined Muhammad Akram complainant and found the following injuries on his person: ‑

(1) Incised wound on the left foot about ' above the tarsophalengial joint. The bone 5th lateral blow the wound cut oblique in nature 2 x up to sole.

(2) Incised wound on the right fore‑arm on the back side oblique in nature 1" x x .

(3) Incised wound on the left arm outer side oblique in nature 1 x x .

(4) Abrasion on the left side of the nose 1' x .

(5) Contusion on the right eye‑brow with congention of the eye.

(6) Abrasion on the left side of the neck in the middle. Transverse in nature.

(7) Abrasion mark on the right side of the neck transverse in nature.

In his opinion injury No. 1 was grievous while injuries Nos. 2 to 7 were simple, Injuries Nos. 1, 2 and 3 were caused with sharp‑edged weapon while injuries Nos. 4 to 7 with blunt weapon.

On the same day at 8‑45 a.m., dais doctor medically examined Umar Draz P'. W. and found the following injuries on his person :‑

(1) Contused wound on the occipital bone 1 " x " sap to bone.

(2) Contusion on the back of neck 3' x I' x '.

(3) Complaint of pain on the right shoulder‑joint. All these injuries were caused with blunt weapons arid were simple in nature.

6. Dr. Ghulam Haider D. W. 1, deposed that he was posted at Sukheki on 19-8‑1972 and on that date at 6‑00 a.m. he medically examined Manzoor accused and found the following injuries on his person :‑

(1) A lacerated wound 1" x 1/8" x scalp deep on the top of head.

(2) A lacerated wound 1" x 1/8' x scalp deep behind injury No. 1.

(3) A lacerated wound 1' x 1/6' x scalp deep on the back of head in the middle.

(4) An Incised wound 1" x x 1/6' or the upper inner part of right side of back.

(5) An incised wound 3" x 1' x 1 " on the upper outer part of left side of back with a tale 4 long going to the inner part of the back. The wound was 1 from the tip of shoulder.

(6) A swelling 6 " x 4 on the outer aspect of left elbow‑joint.

(7) An abrasion x ' on the inner aspect of right fore‑arm. 1 " from the elbow joint.

(8) An abrasion 'x 1/6" on the middle of right knee joint.

(9) A contusion 6" x 2' on the outer middle of right thigh.

(10) A contusion 7' x 4' on the outer middle part of left thigh.

Injuries Nos. 1, 2 and 5 were kept under observation while others were simple in nature. Injuries Nos. 4 and 5 were caused with a sharp‑edged weapon and the rest with blunt weapon. The duration of all the injuries was within 24 hours.

On the same day, the same doctor medically examined Ashraf accused and found seven injuries on his person, out of which three were lacerated wounds, two swellings, one contusion and an incised wound. Injury No. 3, the contusion was grievous in nature while rest were simple. Injury No. 6 was caused with a sharp‑edged weapon while the rest with a blunt weapon.

On the same day at the same time, the same doctor medically examined Moonda appellant and found four injuries on his person, out of which two were contused, one incised and one swelling. X‑ray was advised for injury No. I and was kept under observation. Rest were simple in nature.

Injury No. 1 was caused with a sharp‑edged weapon white the others what a blunt weapon. The duration between the injuries was 24 hours.

On the same day, the same doctor, medically examined Bashir accused and found five injuries on his person, out of which two were abrasions one laceration, one contusion and a linear cut. All the injuries were simple in nature. Injury No. 1 was caused with a sharp‑edged weapon while the rest with blunt weapon. Duration of the injuries was 24 hours.

The overall result of the medical examination would be that four persons namely, Manzoor, Ashraf, Bashir and Moonda, were found injured on the side of the accused party receiving in all 27 Injuries out of which five were deceased to be caused with sharp‑edged weapon, 22 with blunt weapons, with one grievous injury. On the side of the complainant party Nazar Hussain deceased received two injuries with blunt weapon whereas Muhammad Akram complainant received seven injuries in all including three with sharp‑edged weapons. Umar Draz P. W. of course suffered three injuries caused with blunt weapon. This would bring the total injuries to 12.

7. The case of the prosecution rests on the following categories of evidence: ‑

(i) the evidence of motive ;

(ii) the earlier attack on Muhammad Akram complainant by the accused

(iii) the ocular testimony of injured witnesses

(iv) the evidence of recovery of weapon of offence, and

(v) the medical evidence.

8. The case of the defence as deposed by Manzoor co‑accused, at the trial, was in the following words: ‑

I am innocent. The P. Ws. are opposed to me. I was challaned under section 107/151, Cr. P. C. Against Mehanda P. W. In fact I had not taken any land for cultivation from Muhammad Akram P. W. On the day of occurrence I was coating from my louse to go to Chah Lakarian wala. When I came in front of the house of Slier P. W., Nazar deceased, Umar Draz and Mehanda P. Ws. alongwith others armed with deadly weapons attacked me. I raised alarm on which Moonda, Bashir and Ashraf reached the spot. The P. Ws. and Nazar deceased belaboured me and my companions. I had a sota in my hand at that time with which I gave one blow to Nazar deceased on his head and one to Umar Draz 1'. W. to save myself and to rescue my companions. Nawaz and Khudullah accused were not present at the spot. I, Manzoor, Bashir and Ashraf accused were medically examined."

9. The learned trial Court while disbelieving the solitary evidence of Muhammad Akram complainant P. W. regarding the earlier occurrence, held as under: ‑

"In view of these circumstances I have no doubt in my mind that the prosecution has concocted the story of attack on Akram P. W. at the bride. It is also not the case of the prosecution that Akram P. W. eras injured in the main occurrence. The solitary statement of this P. W. remains uncorroborated and thus no one can be held responsible for the same."

While dealing with the evidence of motive, the learned trial Court found that the prosecution bas not succeeded to prove this motive but observed that absence or weakness of motive would be insignificant in view of the ocular testimony. While adverting to the evidence of recovery, it observed as follows: ‑

"As to the recoveries of weapons the learned defence counsel argued that they are planted. I find great force in this contention. The recovered hatchets are not of much significance. There are material contradictions between the statement of the Investigating Officer and that of the recovery witness Sher Muhammad. The Investigating Officer deposed that they were recovered from different houses whereas Sher Muhammad P. W. deposed that they were recovered from the same room. In view of these contradictory versions I am not prepared to rely on the recoveries of weapons of offence."

10. I have heard tire learned counsel for the appellants as well as the learned: counsel for the State and have perused the record of the case carefully with their assistance. It has been urged on behalf of the appellants that when the learned trial Court has disbelieved the earlier occurrence at the bridge, the motive as alleged by the prosecution, the recovery of weapons of offence said to have been made at the instance of the accused, there was left nothing for it to record tree conviction of the appellant on the strength of the evidence which was found unreliable qua the acquitted accused. The learned counsel for the appellants further laid great interest in reporting the matter to the police full after 24 hours and vehemently argued that during this period the prosecution after consultation and deliberation made out a story to destroy the right of private defend, to which the appellants are entitled arid have tried to minimize the damage done by them to the appellants as well as their co‑accused in inflicting 27 injuries both, with sharp as well as blunt weapons.

11. On the other hand, the learned counsel for the State has submitted that actually it was a ease of free fight where every person was responsible for his own act and in this matter Bashir appellant can only be burdened with an offence under section 325, P. P. C. as he caused the grievous injury with a blunt weapon on the person of the deceased. He did not support the conviction made by the learned trial Court under section 304‑I, P. P. C. as according to the learned counsel, the ingredients of this section were wanting in the present case via‑a‑vis Basher appellant.

12. I have given my anxious thought to all the points raised by both the parties and find that the prosecution cannot escape an uncontroverted fact in this case that during this fight the complainant party was also armed with lethal weapons like hatchets and dings. Moreover the prosecution cannot deny that no injury was found on the person of the complainant party including that of the deceased caused by the appellants from the sharp side of the hatchets, whereas the complainant party did use the sharp side of this weapon against accused party. This analysis of the arms held by both the parties will give a clear picture of the events and will show that both the parties fought out a pitched battle among themselves and thus the appellants or their co‑accused as stated by the prosecution did not open the attack to commit the murder but actually it was a clash between the two hostile factions. The culpable homicide has been defined in section 299, P. P. C. which is as follows: ‑

"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide."

While looking into the ingredients of this section and taking into account the details of the occurrence in this case and the manner in which it took place, I am of the considered opinion that this section would have no application to the offence committed by Bashir appellant. Bashir appellant himself received five injuries on his person, one of which injury No. 1 was found to be caused with sharp‑edged weapon and thus he has a right to retaliate to save himself as well as to assist his other compatriots who were at that time being attacked by the complainant party. If in that heat of moment, he gave a hatchet blow and that too by the wooden side of its handle as is found from the post‑mortem report of the deceased, it would not be proper to hold that he either intended to cause death of the deceased or inflicted such a bodily injury as was likely to cause death or that he had the knowledge that he was likely to cause death with the blow which he gave on the bead of the deceased.

If Basher appellant had attacked the deceased in order to kill him, he would certainly have used either the right side of the hatchet or its wrong side and will not choose to inflict a blow in the form of a danda by the handle of the hatchet. This very fact makes it crystal clear that only Basher appellant committed an offence under section 325, P. P. C. and nothing beyond that. The maximum punishment provided under this section calends to seven years' R. I. only. Keeping in view the attending circumstances of this case, where Bashir, Moonda appellants arid two of their co‑accused, received 27 injuries eat all against 12 injuries received bra the complainant party and the agony of protracted trial and confinement in jail which lasted for about 2 years, it would fit in all fatness of things if their sentence is reduced to the period already undergone by them. Learned counsel for the State has lent support to this proposition in the interest of administration of criminal justice. I, myself, after going through the entire evidence and keeping in view the injuries suffered by the appellants and their co‑accused and their confinement in the jail for a period of 2 years, feel that the substantive sentence under section 325, P. P. C. would not commensurate with the circumstances of this case.

13. In the light of the above discussion, I partially accept the appeal qua Basher appellant and set aside his conviction under section 304‑T, P. P. C. However, he is convicted under section 325, P. P C. and is sentenced to the period already undergone by him. He will be set at liberty forthwith; unless he is wanted in some other case.

14. As far as Moonda appellant is concerned, I dismiss his appeal and maintain his conviction under section 324, P. P. C. but reduce the sentence to the period already undergone by him. The sentence of fine is also set aside. He is on bail, he will be discharged of his bail bonds.

Order accordingly.