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Criminal Appeal No. 717 of 1980, decided on 5th July, 1982,
-- Ss. 302 & 447/34-Free fight-Parties having free fight over pos session of land-Each accused to be liable to extent of harm caused by him-Accused giving solitary fatal blow on head of deceased and not repeating same convicted under S. 302 and sentenced to life imprisonment-Accused responsible for causing simple injuries convicted under S. 323 and sentence reduced to already undergone ---Their conviction and sentence under S. 447/34 set aside in circum stances of case.
Kh. Sultan Ahmad for Appellants.
Habib Ullah Warraich for the State.
Dates of hearing: 4th and 5th July, 1982.
Hussain Shah (47), Qurban Shah (47/48), Muhammad Hussain Shah (34), Qurban Shah son of Muhammad Alam Shah (37), Pehlwan Shah (27), Mehr Shah (37), Inayat Shah (48) Sajawal Shah (50), Talib Shah (66), Mastan Shah (34), Chanan Shah (32) and Naib-Sub. Mardan Shah were tried for the murder of Saidan Shah and for having murderously assaulted Sadiq Shah, Amir Shah, Gul Hussain Shah and Masoom Shah, by the Additional Sessions Judge, Jhelum. On 24th May, 1980 Sajawal Shah was convicted under section 304, Part 1, P. P. C and was sentenced to imprison ment for life with a fine of Rs. 5,000 in default of payment of fine he was ordered to undergo R. I. for two years further. He was also convicted under section 308/34; P. P. C. and was sentenced to five years' R. I. and a fine of Rs. 3,000 in default to further undergo R. I. for one year. He was further convicted under section 447/34, P. P. C. and sentenced to one month's R. I. Qurban Shah and Inayat Shah were convicted, under section 308/34, P. P. C. and were sentenced to five years' R. I. and a fine of Rs. 3,000 in default to suffer further R. I. for one year. They were also convicted under section 447/34, P. P. C. and were sentenced to R. I. for one month. The sentences of the convicts were ordered to run concurrently. The remaining accused were acquitted of the charges. Half fine, if recovered was ordered to be paid to the heirs of the deceased. Appeal of the convicts and the connected revision of the informant against acquittal of the accused under section 302, P. P. C. are before me.
2. Some land was jointly held by Saidan Shah (deceased) and Sajawal Shah (accused). In July, 1976 Sajawal Shah, Qurban Shah and Sardar Shah illegally took its possession from the deceased who reported the matter to the Tehsildar, Jhelum, and a direction was issued for action under Martial Law Regulation No. 115. About a year before the occurrence in this case, a case under section 447, P. P. C. was also registered against some of the accused. The possession of the land was restored to the deceased on 10th January, 1977 and on 25th January, 1977 Saidan Shah (deceased) alongwith P. W. Sadiq Shah went to cut fodder from the said field. Sajawal Shah and Qurban Shah alongwith others resisted them and again illegally dispossessed them. A report was made to the Police by the deceased and a case under section 147/447, P. P. C. was registered which was also pending.
According to the prosecution on 28th July, 1977 at about rotiwela Saidan Shah (deceased), Masoom Shah and Amir Shah P. Ws were ploughing their field. Just then, Hussain Shah, son of Muhammad Alam Shah, Qurban Shah son of Muhammad Shah, Hussain Shah son of Ahmad Shah, Qurban Shah son of Suleman Shah, Pehlwan Shah, Mehr Shah, Inayat Shah, Sajawal Shah, Talib Shah, Mastan Shah, Channan Shah and Mardan Shah armed with sticks came there. Sajawal Shah, gave a stick blow to Saidan Shah on his head, who fell down. Amir Shah and Masoom Shah P. Ws. gave stick blows to Sajawal Shah accused. Qurban Shah son of Muhammad Shah, Inayat Shah and Mardan Shah accused inflicted stick blows to Sadiq Shah who bad also reached there and tried to save the deceased. Qurban Shah accused gave a blow on the back of Sadiq Shah who fell down. Inayat Shah and Mardan Shah accused gave him blows when he lay on the ground. Pehlwan Shah accused gave a stick blow to Amir Shah P. W., which hit upon his head and he also fell down. Mastan Shah and Talib Shah accused also beat him up. Mehr Shah accused gave a stick blow to Gul Hussain on his head. He too fell down. Thereafter Hussain Shah and Channan Shah accused beat him up. Qurban Shah accused gave a stick blow to Masoom Shah, P. W. Hussain Shah accused gave a stick blow to Mulazam Shah P. W. Ajmal Shah, Munshi Khan and Mehr Shah P. Ws. also witnessed the occurrence. They tried to interfere and the accused left. The injured were taken to the hospital.
P. W. 7 Dr. Afzal-ur-Rehman, Medical Officer, D. H. Q Hospital, Jhelum, examined the injured on 28th July, 1977, and found the following injuries on them:--
(1) "A contusion 4 " x 1" left frontal-parietal region reddish blue in colour oblique in direction with swelling 5" x 4" extending upto left eye-swelling of left eye-lid reddish blue in colour."
There was a multiple fractures of skull.
(1) A lacerated wound 2.5" x 1/3" x scalp deep right frontal region.
(2) A lacerated wound 1.5 x away scalp deep right parietal region 4 away from right ear.
(3) A lacerated wound 1 1/3 " x " x scalp deep left frontal region.
(4) A lacerated wound 1 " x 1/6"x scalp deep left frontal region.
(5) A lacerated wound 3" x 1 1/3 x scalp deep left parietal region 3.5" away from the left ear.
(6) A lacerated wound 1" x "x skin deep on the back of right elbow joint.
(7) Multiple contusion on the right upper arm reddish blue in colour.
All the injuries were simple, caused by blunt weapons.
(1) A lacerated wound '3 x "x scalp deep parallel to sagittai suture on the left parieto-occipital region.
(2) A lacerated wound 3" x x scalp deep right parieto occipital region.
(3) A contusion 6" x 1" on the back of left forearm reddish in colour.
(4) A contusion 6" x I" on the right scapular region horizontal reddish in colour.
(5) A contusion 6" x 1" on the back of left side vertical reddish in colour.
(6) A contusion 13"x I" on the back of left side vertical reddish in colour.
All the injuries were simple, caused with blunt weapons.
(1) A lacerated wound left parietal region 2 " x ' x scalp deep.
(2) A contusion 7" x 3" on the right scapular region horizontal reddish blue.
(3) A contusion 5" x 2" on the left scapular region, horizontal red dish blue.
(4) A contusion 6" x 1" on the back of left chest horizontal reddish blue in colour.
(5) A contusion 5" x 1" on the back of the left right chest horizon tal reddish blue.
(6) A contusion 6" x 1" on the left buttock vertical reddish blue.
(7) A contusion 5" x 1" on the right buttock reddish blue.
All injuries were simple, caused with blunt weapons.
(1) A lacerated wound left parietal region 1 "x 1/6" into scalp deep.
(2) A contusion left shoulder 3'x 1" reddish blue in colour.
Both the injuries were simple, caused with blunt weapon.
(1) A lacerated wound 1 " x 1/6" on the top of the head.
(2) A contusion on the back of left side 4' x l" reddish blue.
(3) A contusion on the back right side 4" x 1" reddish blue.
(4) A contusion left scapular region 5" x 1" reddish blue in colour.
(5) A contusion left shoulder region 3" x 1' reddish blue in colour.
All the injuries were simple, caused with blunt weapons.
4. On 28th July, 1977 the accused were examined by P. W. 1 Dr. Muhammad Taqi, Medical Officer, Civil Hospital Daryala Jalap, District Jhelum and their respective injuries are as follows :-
(1) Contused wound V-shaped 2 ' x " x bone deep oblique on the left side of the scalp 3" above the left ear. There were two branches of wound on upper wing of V present on posterior end.
(2) Contused wound Y-shaped 2" x " x bone deep oblique on the top of scalp.
(3) Contused wound " x " x bone deep on the back of inner border of right forearm. Four inches below right elbow through which piece of ulna bone was peeping out. Underneath ulna bone was fractured.
(4) Contused wound 1/4'"x 1/4" x muscle deep on the back of right elbow.
(5) Contusion mark 5" x 1 " oblique on the back of left chest, below left scapula.
(6) Contusion mark 5" x 1" oblique on the back of left shoulder.
(7) Contusion mark 2 " x 1" x on the back of left shoulder 1" x away to outer side from injury No. 6.
(8) Contused wound 1/4" x 1/8" x skin deep on the inner side of middle of left little finger.
Injury No. 3 was grievous. The rest were simple.
(1) Swelling 2"x l "x oblique on the back of medial aspect of left hand.
(2) Swelling with central contusion mark 2" x 1" on the outer border of the right elbow.
(3) Contusion mark 7 " x 1 " x oblique on front of right shoulder.
All injuries were declared simple caused by blunt weapon.
(1) Contused wound 1/4" x " x skin deep at root of the nose.
(2) Contused wound 1/4" x 1/8" x skin deep on the upper edge of the nose.
(3) Contused wound 1/4" x 1/8" x skin deep on the back of middle joint of left index finger.
All the injuries were simple caused by blunt weapon.
5. Saidan Shah was admitted in the D. H. Q. Hospital, Jhelum. He expired on 30th July, 1977 at 10-40 p.m. The police was informed. Necessary documents were prepared and the dead body was sent for its post-mortem examination.
P. W. 7 Dr. Afzalur Rehman held the autopsy and found the following injuries on the dead body: -
(1) A contusion with big swelling on the left side of frontal-parietal region of the head.
(2) A contusion frontal parietal region of the left side.
There was a fracture of the skull bone, frontal parietal bone of left side and the fracture extending back upto occipital bone. It has ruptured the memberance. There was clotted blood under menings on the left side of the brain. Death occurred due to intra-cranial haemorrhage caused, by injuries on the head to the skull bone with the blunt weapon. This injury was sufficient to cause death in the ordinary course of nature.
6. P. W. 11 Muhammad Fareed, A. S. I., Police Station Jalalpur Sharif, arrested the accused on 3rd August, 1977. The accused produced their sticks, which were not blood-stained. After completing the investigation, the accused were sent up for trial.
7. All accused denied guilt and ascribed the case to enmity. Qurban Shah accused admitted that a case under section 147/447/460, P. P. C. which was registered on 26th January, 1977 at Police Station, Jalalpur Sharif, on the report of the deceased in respect of field Nos. 838, 849, 852 and 917 against Sajawal Shah, accused and his brother, was still pending. He, however, denied if Saidan Shah (deceased) was in actual possession of the land. He denied that proceedings under Martial Law Regulation No. 115 were initiated at the instance of the deceased. He admitted that Saidan Shah (deceased) had made an .application for the correction of revenue entries pertaining to Khasra Nos, 205, 243, 494 and 860.
Explaining the case against him, Qurban Shah said that they have been falsely implicated due to their relationship with Sajawal Shah accused. He made the following statement: -
"As a matter of fact, the deceased was a small shareholder in Khasra No. 494 alongwith Muhammad Shah. In the past, Muhammad Shah mortgaged a part of his share in favour of Habib Shah and delivered him the full possession of the Khasra No. He got redemption of the land in 1963 and himself assumed the possession after his death. His two sons and one daughter continued to remain in possession to the exclusion of the deceased. However, they enjoyed the possession of the land through Sajawal Shah, accused."
Explaining the case against him, Sajawal Shah accused made the following statement: -
"The fact is that Khasra No. 494 belonged to Qurban Shah, accused, his brother Sardar Shah and his sister Mst. Masturan Begum They were in possession of it through me. I am married to Mst. Masturan Begum. Some small fractional share of the land was owned by the deceased. I cultivated the land and was in possession of it. On the day of occurrence, Qurban Shah, Inayat Shah and myself were ploughing the field. Saidan Shah, deceased, accompanied by Sadiq Shah, Amir Shah, P. Ws. came there. They trespassed into the land and committed assault. It was repelled, Masoom Shah, Mulazam Shah and Gul Husnain, P. Ws: also joined the deceased party, one by one. During the assault, they were injured. Qurban Shah, Inayat Shah and myself also received injuries from their hands. The remaining accused were not present. Saidan Shah, deceased, and the P. Ws. were given blows by the said accused in exercise of their right of private defence. The above-said land was mortgaged by Muhammad Shah and total possession of the land was delivered to the mortgagee in year 1963. Muhammad Shah got the land redeemed. Eversince then, the land was delivered in possession of Muhammad Shah and after his death, his sons and daughter continued to remain in possession. Entries of Khasra numbers in favour of the deceased were against facts."
The remaining accused supported his statement. The accused- led no evidence in defence.
8. Trial Court came to the conclusion that there was a land dispute between the parties, which resulted in the occurrence. It, however, found that Saidan Shah (deceased) was in possession of Khasra No. 494, and observed that the previous criminal and revenue litigation between the parties was an indication of their strained relations. Since the eyewit nesses were also related to the, deceased, it, therefore, considered them, interested witnesses. But it relied on their statements because the three accused Sajawal Shah Inayat Shah and Qurban Shah had admitted the occurrence by taking up the plea of self-defence, which they failed to establish. Trial Court further observed that Sajawal Shah who gave the solitary fatal blow, did not repeat the attack and, under the circumstances of this case, bad no intention to cause death.
9. Criticising the finding of the trial Court, learned counsel for the appellants contended that the trial Court has misread the evidence. In fact, Sajawal Shah accused was in possession of the land in dispute and had proved it through documentary evidence. Therefore, the accused had the right of defence of property and person against the deceased and the eye-witnesses who had come armed to forcibly take possession of the land.
10. I have considered the matter. The question of possession of Khasra No. 494 is a material point for determination in this case. P. W, 8 Gul Hussain son of the deceased, an injured eye-witness, under cross, examination, admitted that Khasra No. 494 was owned by his father Saidan Shah, Qurban Shah accused, Sardar Shah brother and Mst. Mastoora Begun sister of Qurban Shah accused the last mentioned was married to Sajawal Shah accused. He further admitted that the land, which was being ploughed in this Khasra measured 3 Kanals and 10 Marlas only. At this stage, I may refer to the statement of ' Sajawal Shah who asserted that he was in possession of the land .in Khasra No. 494 through his wife Mst. Mastoora Begum and the Qurban Shah and Sardar Shah remained in possession of this land throughout. He added that a fractional share of land in this Khasra was owned by the deceased. Accord ing to him, a portion of the land was mortgaged by Shah Muhammad and its possession was delivered to the mortgagee in 1963 and said Shah Muhammad got the land redeemed and ever since then the land remained in possession of Shah Muhammad and after his death his sons land daughter continued to remain in possession. P. W. 5 Munshi Karam Dad " Patwari was examined at the trial and according to him Saidan Shah deceased and the accused were co-sharers in Khewat No. 117. The defence never ques tioned this witness about the quantum of the shares in Khasra No. 494. On the other hand, P. W. 8 Gul Hussain Shah son of the deceased had said that Sajawal Shah and Qurban Shah had got the entries in the Khasra Girdawari pertaining to Khasras Nos. 205, 245, 494 and 860 changed in their favour, whereas his father remained in possession of the land and the deceased made an application to the Deputy Commissioner on 12th September, 1977 for this illegal change in the revenue record and on 13th November, 1977 the District Magistrate upheld the objection of the deceased and directed the correction in the entries of revenue record. The accused have not controverted this fact in their statements. The trial Court observed that neither any review nor any appeal on their behalf was put up before any higher authorities against the order of the Deputy Commissioner. This fact rightly weighed with the trial Court in determin ing the question of possession in this case. I find that the accused have not explained away this circumstance in their statements as to whether any. step had been taken against the said order of the Deputy Commissioner, on the other hand, the fact remains that the accused also had a share in Khasra No. 494 where the occurrence took place. True, the extent of their shares have not been clearly established. The possession of the accused with regard to the portion of land in Khasra No. 494, which was being ploughed by the deceased and his relations is not clearly brought out by them. It appears that in this Khasra they had a share in another portion of which they might have been in possession. Undoubtedly, the parties had a dispute about their shares in Khasra No. 494. In this view of the matter, I am of the opinion that it was a case of a free fight between the parties in which each accused would be liable to the extent of the harm caused by him. Sajawal gave the solitary fatal blow on the head of the deceased. His conviction should have been under section 302, P. P. C. He has already been sentenced to imprisonment for life. He gave a single blow and did not repeat the attack. Further, keeping in view the fact that the occurrence took place as far back as 28th July, 1977 and the parties are also related to each other, I, therefore, do not deem it proper to order a retrial. His appeal is, therefore, dismissed, and his sentence of imprisonment for life and the fine awarded is maintained. His conviction under sections 308/34 and 447/34, P. P. C. is set aside. In so far as the conviction and sentence of Qurban and Inayat are concerned, since they were responsible for having caused simple injuries to their victims, their con viction is altered to section 323, P. P. C. and their sentences are reduced to a period already undergone by them. Their sentences of fine are also reduced to Rs. 500 each, in default to undergo six months' R. I. each. Their conviction under section 447/34, P. P. C. is set aside.
M' A. K. Order accordingly.
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