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Criminal Appeal No. 585 of 1979: decided on 19th October, 1981.

-- S. 304 read with S. 300, Exception IV-Murder-Sudden fight -Occurrence admittedly a sudden fight between parties in which fatal injuries to deceased caused by co-accused alone-Accused, held, could not be committed for offence under S. 304, P. P. C: in circum stance-Conviction and sentence set aside.

-- S. 307 read with S. 308-Offence, alteration of-Occurrence admittedly not a case-of murder but a case of free fight in which deceased from complainant side lost his life while witnesses received injuries-Accused, held; at worse liable under S. 308, P. P. C. and not under S. 307, P. P. C. for injuries caused to prosecution witnesses-Conviction under S. 307, 'P. P. C. altered to one under S,. 308, P. P. C. in circumstance.

-- S. 304-Sentence, reduction in-In a free fight accused also receiving three. injuries caused with a sharp-edged weapon besides a sharp-edged injury sustained by another on his side which was declared dangerous to life-Accused remaining in jail throughout trial and appeal-Held, a fit case for reduction of sentence-Sen tence of 10 years' R. I. reduced to 5 years' R.I. in circumstances. [Sentence].

Sh. Khizar Hayat for Appellants.

Muhammad Siddiq Safdar for the State.

Date of hearning : 19th October, 1981.

This criminal appeal arises from the judgment of the learned Addi tional Sessions Judge, Multan whereby he, on 22nd February, 1979 convic ted Abad Ali aged 35 years, Sardar Ali aged 60 years, and Mukhtar Ali aged 45 years under various sections of the Pakistan Penal Code. They were convicted under section 304/34, P. P. C. for causing the death of Raza Hussain. Abad Ali appellant was sentenced to, 10 years' R. 1. and the others two to 4 years' R. 1. They were further convicted under sec tion 307/34, P. P. C. for murderous assault upon Mst. Manzooran (P.W. 9) and Sakhawat (P. W. 10) and sentenced to 4 years' R. 1 each. The sentences were to run concurrently.

2. The occurrence took place on 26th December, 1977 at 9 p. m. in the area of Mazza Tindni, Police Station Sadar; Multan. The distance between the place of occurrence and the police station is three miles.

3. The F. I. R. is the statement Exh. P. B. of Ashiq Ali (P. W. 8) recorded near Octroi Post No. I by Jamshaid Ali S. 1. (P. W. 12), formal F. I. R. is Exh. P.B./I recorded at 10.30 p. m. the same day.

4. Motive. Abad Ali appellant divorced his wife Mst. Imdad Bibi, sister of Ashiq Ali (P. W. 6), two days before the occurrence. On the fate ful day, the complainant party convened a meeting to demand the dowery of Mst. Imdad Bibi from Abad Ali appellant. It has been alleged that the appellants overheard the talk and became furious.

5. Occurrence.-At 9 p. m. when Mst. Manzooran (P. W. 9) sister of Imdad Bibi, her brother Sakhawat (P. W. 10) left for their house and were on the way when they were attacked by the appellants. Sardar Ali and Mukhtar Ali appellants were armed with sotas and Abad Ali appellant with knife. Abad Ali appellant gave knife blow to Mst. Manzooran Bibi (P. W. 9) and when Sakhawat (P. W. 10) tried to rescue her he was also injured with knife by Abad Ali appellant. Mukhtar Ali and Sardar Ali appellant also injured Mst. Manzooran Bibi (P. W. 9). The injured wit nesses raised alarm which attracted Raza Hussain (uncle of Mst. Manzoo ran. Bibi) ; Ahmad Din (not produced) father of Mst. Manzooran Bibi (P. W. 9), on seeing this, ran to his house and brought a stick. Then all the appellants injured Raza Hussain deceased with their respective weapons and caused his death on the spot.

6. The prosecution case is that Ahmad Din who had brought stick caused injury to the accused/appellants to save his children. Mst. Ghulam Batool, wife of Sardar Ali appellant meanwhile reached there and Abad Ali appellant out of mistake injured her by giving a knife blow. The accused/appellants had also injured Ahmad Din P. W. (not produced). Nadir P.W also saw this occurrence. On seeing the villagers approaching, the appellants ran away with their respective weapons. Meanwhile, Ashiq Ali (P. W. 8), complainant, reached the spot and Mst. Manzooran P. W. 9, told the occurrence to him.

7. Medical.-It appears that both sides received injuries during the occurrence, On the side of prosecution .Raza Hussain deceased received two stab wounds; one, on the left side of the chest and the other on the left side of the abdomen and one swelling in the middle of the head. Injuries Nos. 1 and 2 were caused with sharp edged weapon and injury No. 3 with blunt weapon and simple in nature. In the opinion of the doctor, the deceased died due to injuries Nos. 1 and 2 which were individually and collectively fatal and suffi cient to cause death in the ordinary course of life. Sakhawat Ali (P.W.10) received one incised wound on the left side of chest; this injury was caused with a sharp-edged weapon and was dangerous to life. Mst. Manzooran Bibi (P. W. 9) received two injuries; one incised wound at the left iliac region caused with blunt weapon and dangerous to life and the other is lacerated wound at the centre of, head which was simple in nature caused with blunt Weapon.

As against this, Abad Ali appellant received three incised wounds, all simple in nature and caused with sharp-edged weapon. Sardar Ali appellant received one cut wound simple in nature caused with sharp edged weapon. Mst. Batool wife of. Sardar Ali appellant received one incised wound oblique in direction at the left hypochondrial area about 4" lateral from the midaline measuring 2" x 1/2" x 3'. The injury was declared dangerous to life and was caused with sharp-edged weapon.

Investigation.-After recording the F.I.R. Jamshaid Ali 3.1. (P. W. 12) went to the spot prepared the inquest report (Exh. P. M.) and injury statement (Exh. P. N.) and despatched the dead body for autopsy under the escort of Nur Muhammad Constable (P.W. 1). On 27th December, 1977 he arrested Sardar and Mukhtar appellants. Sardar Ali appellant produced stick P. 4 and Mukhtar Ali stick P. 5 which were taken into possession vide memo. Exh. P.J. and P H. respectively. The stick P. 4 produced by Sardar Ali appellant being blood stained was made into a sealed parcel. On the same day he arrested Abad Ali appellant, got removed blood stained clothes; chaddar P. 7, vest. P. 8 and kurta P. 9, which were taken into possession vide memo. Exh. P.L. On 29th December, 1977, Abad Ali appellant led to the recovery of blood-stained knife P. 6 from a corner of his room after digging it out which was taken into possession vide memo. Exh. P. K. The appellants, Abad Ali and Sardar Ali had sustained injuries. Abad Ali appellant was admitted in the hospital. After investigation, the appellants were challaned under section 302/34, P. P. C. At the trial, the prosecution examined as many as 13 witnesses and relied on the following categories of evidence

Occular Evidence, supported by

(1) Mst. Manzooran Bibi (P. W. 9) niece of the deceased,

(2) Sakhawat Ali (P. W. 10) nephew of the deceased, and

(3) Nadir (P. W. 11).

It is to be noted that Ahmad Din, father of Mst. Manzooran Bibi (P. W. 9) who allegedly had caused injury to the appellants had not been produced as being unnecessary.

Recovery-----From Abad Ali, appellant : On 27th December, 1977 the Investigating Officer got removed blood-stained chadar P. 7. Bunyan P. 8 and kurta P. 9 vide memo. Exh P. L. attested by Jammat Ali (P.W. 7) and Muhammad Shafique (not produced given up as unnecessary) and Jamshaid Ali S. I. (P. W. 12). On 29th December, 1977, _he got recovered blood-stained knife P. 6 from a room of his house which was taken into possession vide memo. Exh. P. K. attested by the same witnesses.

From Mukhtar Ali, appellant : On 27th December, 1977, he produced danda P.. 5 (not blood-stained) which was taken into possession yide memo. Exh. P. J. attested by the same witness. ,

From Sardar'Ali appellant : On 27th December, 1977, he produced blood-stained sota P. 4, which was taken into possession vide memo. Exh. P. H, attested by the same witnesses.

Chemical Report is Exh. P. T. and that of the Serologist is Exh. P. U.: which show that the clothes and the weapons of offence, i. e. Sota P. 4 and knife P. 6 were stained with human blood.

8. Defence.-The appellants denied the prosecution case and pleaded the right of self-defence. Abad Ali appellant staled as under

"I had "three children alive from Mst. Imdad Bibi. A Panchayat was held in the ihata of Chiragh Ali in which myself, Sardar Ali, Mukhtar Ali co-accused and Mst. Batool Bibi, wife of Sardar Ali accused were present while from the other side Raza Hussain deceased, Ahmad Din, Sakhawat Ali and Mst. Manzoor Bibi P. Ws. were present. During the Panchyat, there was a demand for the return of dowery etc., but as the children were living with me since their birth, I told that it was not justified, on account of which the other party was annoyed and enraged. I along with my two brothers co-accused and Ust. Batool Bibi were return ing, while in the lane, Raza Hussain deceased, Ahmad Din and Sakhawat Ali alongwith Mst. Manzooran followed us and because they were enraged for the reasons stated above, Raza Hussain and Ahmad Din who had knives while Sakhawat Ali P. W. who had a lathi, being accompanied by Mst. Manzooran P. W. attacked us with knives and stick. Mst. Batool Bibi was also injured at their hands and I and my two brothers were also injured by them. Under these circumstances, I used my pen-knife whereas Mukhtar Ali and Sardar Ali used their sticks in the exercise of right of private defence of us all. It was under these circumstances that we received injuries."

The appellants, however, did not plead any evidence in their defence, The learned Additional Sessions Judge, came to the conclusion that it was a case of free fight and convicted the appellant under section 304/34, P. P. C. for causing the death of Raza Hussain and under section 307/34, P. P. C. for murderous assault upon Mst. Manzooran Bibi and Sakhawat Ali.

9. The learned counsel for the appellants has frankly and rightly conceded that the conclusion arrived at by the learned Additional Sessions Judge, that it was not a case of murder but a case of free fight, in the circumstances of the case; is a correct conclusion. He has simply requested for the reduction of sentence.

10. I have considered the submissions made by the learned counsel for the appellants, gone through the evidence and the judgment with care. I find that both sides received injuries. On the side of appellants Mst. Batool received a sharp-edged injury, dangerous to her life which was certainly inflicted by the complainant party and not by Abad Ali appellant by mistake as alleged by the prosecution. The prosecution case is that Abad Ali appellant had divorced Mst. Nazir Mai, his wife, the sister of Sakhawat and Mst. Manzooran Bibi, two days earlier. This incident could equally have annoyed the complainant party.

11. After accepting the conclusion arrived at by the learned Addi- Sessions Judge, 1 am of the opinion that the conviction of Sardar Ali and Mukhtar Ali appellants under section 304/34, P.P.C. is not sustainable for .the reason that in case of free fight each, accused appellant is responsible for his individual act. Since the fatal injuries were inflicted by Abad Ali appellant, the remaining two appellants could not be convicted under section 3U4/34, P. P. C. The third injury i. e. swelling on the head is not specifically attributed to any one. Therefore, neither Sardar Ali appellant A nor Mukhtar Ali appellant can be held liable, for the infliction of the same. The result is that the conviction of Sardar Ali and Mukhtar Ali appellants under section 304/34, P.P.C. is set aside and they are acquitted.

So far - as the conviction of Sardar Ali and Mukhtar Ali appellants under section 307/34, P. P. C. is concerned, that too is not maintainable g for the reason that after the conclusion, that it was not a case of murder and a case of free fight, they could not be convicted under section 307/34, P. P. C. and at the worst they were liable under section 308, P. P. C. their conviction is altered from section 307/34 to section 308, P. P. C. On the question of sentence. I find that they were convicted on 22nd February, 1979, and allowed bail on 4th June, 1980. i.e. after one year and 4 months, the sentence already undergone by them is sufficient to meet the ends of justice. Their bail bonds stand discharged.

So far as Abad Ali appellant is concerned, his conviction under section 304, P. P. C. is maintained. On the question of sentence I find that: (i) he was arrested on 27th December, 1977, the trial concluded on 22nd February, 1979, he remained throughout in the Jail as an under-trial prisoner ;

(ii) he was convicted on 22nd February, 1979, by the learned Additional Sessions Judge and the execution of his sentence was not suspended ; and

(iii) he received three injuries caused with sharp-edged weapon and on his side Mst. Batool Begum received an injury with sharp-edged weapon which was declared dangerous to life.

12. In these circumstances, I am of the opinion that it is a fit case for the reduction of his sentence. Keeping in view the circum stances of the case the sentence of 10 years is reduced to 5 years' R. 1. With this modification, the appeal is disposed of.

Order accordingly

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