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Criminal Appeal No. 51 of 1982, decided on 8th June, 1983.

‑‑‑Ss. 300, Exception 4, 302 a 304, Part 1‑‑Culpable homicide, not amounting to murder‑‑Both parties receiving grievous injuries On complainant side, one person lost life and four received injuries with sharp and blunt weapon and on accused side two persons received 8 injuries with blunt and sharp weapons‑‑Place of occurrence a Chowk between residence of accused party and shop of complainant party‑‑rendering Occurrence rendering occurrence a free fight‑‑Case, held, would within Exception 4 of S. 300, P.P.C‑‑Conviction alters from S.302,P.P.C. to one under S. 304, Part I, P.P.C. and sentence reduced to 10 years.

‑‑-Ss. 148 & 302/149‑‑Common object, question of‑‑In a case of free fight, each participant would be liable for his own act‑‑Provisions of Ss.148 t 149, P.P. C., held, would not attract in such case.

Sardar Mahmood Khan and M. M. A. Pirzada for Appellant.

Akhtar Masood for the State.

M. Yasin Khan Wattoo for the Complainant.

Date of hearing: 8th June, 1983.

This criminal appeal and the connected Criminal Revision No.62 of 1982 for enhancement of the sentence of Muhammad Iqbal appellant and retrial of the acquitted 7 co‑accused arise from the judgment of learned Additional Sessions Judge, Vehari, whereby, he on 10‑1‑1982 while acquitting 7 co‑accused, convicted Muhammad Iqbal appellant under section 302, P.P.C. for causing the death of Sarwar and sentenced him to imprisonment for life and a fine of Rs.1,000 to be paid to the legal heirs of the deceased. In default thereof to further S.I. for 3 months.

2. The occurrence took place on 5‑10‑1979 at 5‑30 p. m. in the area of Chowk KamianwaIa village Abadi Chak No.499/E.B. The F.I.R. Exh. P.A was lodged by Noor Muhammad P.W.3, brother of the deceased at 6‑30 p.m. on the same day at P.S.Sadar, Burewala and it was recorded by Zia‑ul‑Haq, S.I. P.W.7. The distance between the place of occurrence and the police station is 4 miles.

3. The motive as alleged by the prosecution is that at 3‑00 p. m. Muhammad Akram P.W., the brother's wife of the deceased was abused by Mst. Noor Bibi wife of Muhammad Yaqoob on the ground that he was having an evil eye on her. Muhammad Akram threw back the abuses to her. In the meantime Muhammad Yaqoob had come there but on the intervention of Master Ghulam Nabi, the brother of the deceased, the matter did not proceed further.

4. The prosecution case is that the shop of Ghulam Muhammad P.W. the brother of the deceased is situated at 40 Karams from the house of Noor Muhammad co‑accused. Just before the occurrence Mst. Zainab and Mst. Sughran, the wife and daughter respectively of Noor Muhammad co‑accused were mud plastering the wall of their house in the Chak. Ghulam Muhammad P.W. happened to pass nearby and was abused by the ladies. Ghulam Muhammad also returned the abuses. At this juncture, Muhammad Iqbal appellant armed with a dagger alongwith 7 co‑accused armed with Sotas reached there. They abused Ghulam Muhammad and Noor Muhammad complainant and proceeded towards the shop of Ghulam Muhammad when Allah Din P. W.5 intervened requesting Muhammad Iqbal and others to abstain from fight. Muhammad Arshad, however, opened attack by giving Sota blow on the wrist of Allah Din followed by Sota blows by Muhammad Aslam on the shoulder and hand of Allah Din. On seeing this, Sarwar deceased, Abdul Hameed, Riaz, Ghulam Muhammad who had already assembled in the shop of Ghulam Muhammad came out' of the shop duly armed with Sotas. They came towards Chowk Kamianwala. Muhammad Iqbal and others launched assault on them. Muhammad Iqbal appellant gave Barchha blow in the chest of Sarwar who fell down. Muhammad Iqbal also injured Muhammad Akram P.W. with Barchha. Muhammad Yaqoob and Noor Muhammad accused injured Abdul Hameed. Muhammad Aslam accused injured Riaz P.W. In retaliation Muhammad Akram and Abdul Hameed P.Ws. caused injuries to Muhammad Yaqoob and Noor Muhammad co‑accused. Muhammad Sarwar succumbed to injuries on the spot. This occurrence was also witnessed by Muhammad Yousaf and Ali Muhammad.

5. In the occurrence, both the sides suffered injuries. On the side of the complainant Sarwar lost his life. Ghulam Muhammad, Riaz, Abdul Hameed and Allah Din sustained injuries. On the other side Noor Muhammad and Muhammad Yaqoob received injuries including 5 grievous injuries.

6. Dr. Muhammad Afzal P.W.2‑ conducted post‑mortem examination on the dead body of the deceased and also examined the injured witnesses and the injured accused. He found the following injury on the person of the deceased.

"A stab wound 1‑3/4" x x deep going on the front of left chest 2 away from left nipple between 7 to 8 o'clock position. Almost transverse. Shirt was cut."

In his opinion, the death was due to shock and haemorrhage as a result of ruptured of heart from injury No. 1. The injury was sufficient to cause death in the ordinary course of nature. It was anti‑mortem and caused by sharp‑edged and sharp‑pointed weapon.

He found one incised wound on the person of Muhammad Akram P.W. the injury was caused by sharp‑edged weapon and simple in nature. He found one contused and one lacerated wound on the person of Muhammad Riaz P.W. The injuries were caused by blunt weapon and simple in nature. He found 2 contused and 2 lacerated wounds on the person of Allah Din P.W. caused by blunt weapon. Injury No. 1 on left forearm was found grievous. He found 7 contusions on the body of Abdul Hameed P.W. caused by blunt weapon and simple in nature.

On the side of the accused, he found 2 contused wounds, 2 incised wounds and one swelling on the person of Noor Muhammad co‑accused. Injuries Nos. 3 and 4 were caused by sharp‑edged and the remaining with blunt weapon. These injuries i.e. No.3/4 were found grievous. On the person of Muhammad Yaqoob accused, he found 3 injuries caused by blunt weapon and all grievous in nature. The above statement of the injuries indicates that on the side of the complainant 5 persons received 11 injuries in all caused by blunt as well as sharp‑edged weapons whereas on the side of the appellant two persons received as many as 8 injuries including 5 grievous injuries caused with blunt as well as sharp‑edged weapon.

7. The appellant was arrested by the police. On 11‑10‑1979, he got recovered blood‑stained Barchha Exh. P.7 from his house which was taken into possession vide memo. Exh. P.T. attested by Muhammad Yousaf P.W.9 and Ali Muhammad (not produced). The Chemical Examiner Report Exh. P. G shows that Barchha was stained with human blood. The Serologist report, has, however, not been brought on the record.

8. In order to prove its case, the prosecution examined as many as 12 witnesses out of whom Noor Muhammad P.W.3, Allah Din P.W.5, Muhammad Yousaf P. W.9, Muhammad Akram P. W.10, Abdul Hameed P. W.11 and Muhammad Riaz P.W.12 have given the ocular account of the occurrence. They have supported the prosecution case as detailed above. They stated that Muhammad Iqbal appellant had inflicted the solitary fatal blow to the deceased. Muhammad Yousaf P.W.9 has supported the recovery of Barchha from the appellant. The rest of the evidence is more or less of formal nature.

9. The appellant when examined under section 342, Cr. P. C. denied all the incriminating circumstances and raised the plea of false implication.

10. The trial Court found that the appellant party was more aggrieved and that it was an open sudden fight in which both the parties had pitched battle.

11. The learned counsel for the appellant has submitted that the prosecution has failed to prove its case beyond reasonable doubts through reliable witnesses and in any case there being a free fight no case punishable under section 302, P.P.C. is made out against the appellant.

12. As against this, the learned counsel for the State assisted by Mr. Mian Yasin Khan Wattoo has supported the prosecution case as given in the F.I.R. According to them it is a clear case of murder in furtherance of common object of the appellant as well as the acquitted co‑accused. The learned counsel for the complainant, therefore, prayed that the sentence of Muhammad Iqbal be enhanced to death and an order for retrial of the acquitted co‑accused be passed.

13. Having considered the arguments advanced by the learned counsel for the parties in the light of the record and peculiar circumstances of the case, I am inclined to hold that it is, not a case of murder but a case of free fight falling within Exception 4 to section 300, P.P.C. From the statements of facts given in early part of the judgment, it is obvious that the time of occurrence, the place of occurrence, the fact that both the sides received injuries; that on complainant side, one person lost life and 4 received injuries with sharp and blunt weapon; that on the accused's side two persons received 8 injuires including 5 grievous injuries caused with blunt and sharp‑edged weapon; that the place of occurrence is a Chowk in between the residence of the accused party and the shop of the complainant party and that the complainant party duly armed had assembled in the shop of Ghulam Muhammad P.W. before the occurrence and therefrom had come to Chowk Kamianwala where the occurrence took place, are the admitted facts of the case.

14. To my mind, these facts disclose the occurrence of free fight between the complainant's and accused's party for the following reasons:‑

(1) The background of the occurrence is that at 3‑00 p. m. Mst. Noor Bibi of the accused party had abused Muhammad Akram P.W. and that just before the occurrence Mst. Zainab and Mst. Sughran had abused Ghulam Muhammad P.W. These ladies were also abused back by Muhammad Akram and Ghulam Muhammad. Noor Muhammad P.W.3 has admitted in his statement that they were considering that they stood insulted due to the abuses by the ladies. Furthermore, Shaft, nephew of the deceased had lodged a case against Muhammad Iqbal appellant before this occurrence wherein Noor Muhammad complainant was a prosecution witness. On the other side, Muhammad Akram P.W. was having an evil eye on Mat. Noor Bibi. From this statement of relations between the parties it is very much obvious that each party had a motive to attack its opposite party and a trivial incident could bring them into conflict.

(2) That the place of occurrence is a Chowk of the Chak. The shop of the complainant and his brother Ghulam Muhammad is towards south‑east of the place of occurrence whereas the houses of the appellant and others are towards south‑west of ‑the place of occurrence. This would show that the place of occurrence is in between the shop of the complainant and the houses of the appellant. The prosecution case is that prior to the occurrence, the accused party assembled themselves at point No.7 near their houses whereas the complainant party duly armed with Sotas assembled themselves in the shop of the complainant and that the time of occurrence when the accused party was beating Allah Din P.W. with whom, the complainant party was not connected altogehter, the complainant party came out of the shop of the complainant armed with Sotas and came to the spot where as a result of fight between the parties, both sides received fatal and grievous injuries. In this respect, the part of the statement of Noor Muhammad complainant maybe reproduced with advantage;‑

"there was no interval between the actual occurrence and those abuses. On seeing the accused coming to us, Ghulam Muhammad P. W., Muhammad Akram P. W., Hameed, P. W., Riaz P. W. and Sarwar deceased assembled in my shop armed with Sotas and proceeded to the place where Allah Din was being attacked."

Needless to say that it is the case of the prosecution itself that the deceased and others had assembled in the shop of Noor Muhammad and Ghulam Muhammad P.Ws. before the occurrence and therefrom came to the place of occurrence armed with Sotas. This situation gives rise to irresistable conclusion that both the parties who had a motive to attack each other, in fact wanted to measure their strength in full expectation of an armed conflict and as such, it is not possible to say as to which of the parties was aggressor. Briefly stated one party came from one side and the other from opposite side to have a trial of strength resulting in the death of Sarwar and simple as well as grievous injuries to the P.Ws. and two of the acquitted co‑accused. I, therefore, relying on case‑law Syed Ali Bakery v. Nibaran Mullah and others reported as P L D 1962 S C 502, hereby hold that it is not a case of murder but culpable homicide falling in Exception 4 to section 300, P.P.C. It is the prosecution case that the fight was sudden. Since the two co‑accused have received 8 injuries with sharp‑edged and blunt weapon including 5 grievous injuries, therefore, it cannot be said that the appellant's party had acted cruely or had taken undue advantage of the situation.

15. As for the submissions made by the learned counsel for the complainant /petitioner in the connected revision, I am of the opinion that in a case of free fight, each participant being liable for his own act, the provisions of section 148/149, P.P.C. do not attract, as such, B the acquitted co‑accused are not liable for the act of Muhammad Iqbal appellant, whereby, he caused the death of Sarwar. The deceased had received only one injury at the hands of the appellant. The co‑accused did not cause any injury to him, therefore, the question of their re‑trial for the murder of Sarwar does not arise.

16. As far the injuries inflicted by the co‑accused on the person of the 'witnesses I find that no charge with respect to those injuries was framed against the co‑accused. They, therefore, cannot be convicted by the trail Court or by this Court. I have not been able to persuade myself to agree with the learned counsel that since the charge under section 302, P.P.C. with regard to the murder of Sarwar has been framed, therefore, the co‑accused can be convicted under minor offences i.e. section 323/325, P.P.C. for injuries to the prosecution witnesses.

In the peculiar circumstances of the case that the injuries found on the person of the P.Ws. except one injury on the person of Allah Din were of simple nature and that it is not known as to who caused grievous injury to Allah Din. I am of the opinion that only an offence punishable under section 323, P.P. C. would be made out against each accused which is punishable with one year. Since the acquitted co‑accused remained in custody as under‑trial prisoner. I am of the view that no useful purpose would be served by directing re‑trial of the case.

17. The upshot of the above discussion is that the conviction of Muhammad Iqbal appellant is altered from section 302, P. P.C, to section 309, Part I, P.P. C. and he is sentenced to 10 years' R.I. and a fine of Rs.1,000 to be paid to the legal heirs of the deceased. In default C thereof to further S.I. for 3 months. Muhammad Iqbal shall also get benefit of the provisions of section 382‑B, Cr. P.C. The connected revision filed by Noor Muhammad is dismissed.

M.A.K. Conviction /sentence altered.

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