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Criminal Appeal No. 477 and Murder Reference No. 177 of 1983, heard on 18th November, 1985.

‑‑ Ss. 302/34 & 324/34‑Time and place of occurrence, presence of deceased, prosecution witnesses and accused, admitted facts of case ‑‑‑Prosecution and defence giving different version of occurrence -Parties not appearing to have come out with whole truth‑Eye witnesses suppressing injuries found on persons of accused in order to minimize part played by them‑Accused. party taking ‑a contra dictory stand as to nature of arm carried by deceased at time of occurrence‑Accused stated at first that deceased was armed with a pistol whereby he fired a shot which did not bit any one, while in their statement under section 342, Criminal Procedure Code, accused's case was that deceased at time of occurrence was carrying a hatchet with him which was snatched by one of accused who inflicted one injury allegedly in self‑defence to deceased‑Accused failing to explain injuries to show as to what exactly transpired during incident‑Background of occurrence based on a trivial quarrel between womenfolk of parties wherein provocative remarks were uttered and then fight ensued amongst men‑Place of occurrence a lane which was not in exclusive occupation of parties‑From injuries found on deceased, prosecution witnesses and accused, it could safely be said that each party anticipated resistance from other and were determined to have a trial of strength and in entering upon conflicted each party knowingly and deliberately took upon itself risk of encounter‑Case thus was of free fight and each of partici pants was responsible for his individual act‑Question of exercise of right of self‑defence as asserted by accused, therefore would not' arise ‑Accused being guilty of an offence punishable under section 302, Penal Code, their conviction was maintained.

Abdul Rehman v. Gadai Khan and 3 others 1972 S C M R 676 rel.

---Ss. 302/34‑No direct and reliable evidence available to show as to what exactly transpired during incident‑Court to draw its own inferences flowing from evidence and circumstances keeping in view principle that would be consistent with safe administration of justice in criminal cases.

‑‑S. 324‑Accused causing simple injury with sharp‑edged weapon to injured ‑Conviction of accused under section 324, Penal Code, maintained.

‑‑Ss. 302/34‑Accused allegedly armed with hatchet but no injury was caused to injured with sharp‑edged weapon and all injuries were caused by blunt weapons‑Accused acquitted.

‑‑ S. 323‑Accused causing injury with a Sota‑Conviction under section 323, Penal Code, maintained.

---S. 302‑Sentence‑.Free fight taking place wherein accused also received injuries at hands of complainant party‑Mitigating circum stances, held, existed in favour of accused for lesser penalty Sentence of death altered to imprisonment for life.‑[Sentence].

‑‑ Ss. 323 & 324‑Sentence ‑ Accused remaining in jail as an under‑trial prisoner as well as convict for sufficient long time Sentence reduced to what already undergone by accused.‑[Sentence].

Sardar Muhammad Latif Khan Khosa, Ghaus Muhammad Ch. and Ch. M. A. Saleem for Appellants.

Altaf Muhammad Khan for the State.

Dates of hearing : 17th and 18th November. 1985.

.‑This Criminal Appeal No. 477 of 1983 and the connected Murder Reference No. 177 of 1983 arise from the judgment of learned Additional Sessions Judge, Sheikhupura, whereby he, on 2‑8‑1983 while acquitting Abdullah co‑accused, convicted Muhammad Ali (30), Ahmad Ali (25) and Bagh Ali (22), the three real brothers, under section 302/34, P. P. C. for the murder of Ramzan Ali (30), under section 324/34, P. P. C. for causing injuries to Mst. Niaz Bibi P. W. 7 and under section 323, P. P. C. for causing hurt to Sultan Ali P. W. 8 and sentenced them as under :‑

Under section 302, P. P. C. (i) Muhammad Ali to death and a fine of Rs. 5,000 or in default thereof 6 months' R. 1.

(ii) Ahmad Ali and Bagh Ali to imprisonment for life and a fine of Rs. 5,000 or in default thereof 6 months' R. I. each. It was directed that the fine if recovered, 3/4th of it be paid to the legal heirs of the deceased.

Under section 324/34, P. P. C. to one year R. I. each and a fine of Rs. 2,000 or in default thereof 3 months' R. 1. each.

It was directed that the fine if recovered J of it be paid to Mst. Niaz Bibi P. W . 7.

Under section 323/34, P. P. C. to one year R. I. each.

All the sentences were to run concurrently.

2. The occurrence took place on 17‑8‑1982 at 5.00 p. m. outside the house of Nathey Khan complainant situated in Dera Rhaliwala at a distance of 5 miles from P. S. Saddar Sheikhupura. The F. I. R. is statement Exh. P. G. of Nathey Khan P. W. 6, father of the deceased which has recorded on the same day at 7.00 p. m. by Asmat Ullah S. 1. P. W. 12 in Chowk Khan Wala of Sheikhupura. The formal F. 1. R. Exh. P. E. was drawn up on the same day at 7.15 p m. at P. S. Saddar Sheikhupura by Muhammad Mushtaq, Head Constable, P. W. 4.

3. The motive as alleged by the prosecution was that on the day of occurrence, at noon time Mst. Ghafooran Bibi, wife of Sultan Ali P. W. 8 had given fist blows to Mst. Irshad Bibi, wife of Muhammad Ali appellant. When Sultan Ali P. W. 8 came back from his land, Mst. Irshad Bibi told him that his wife Mst. Ghafooran Bibi was a bitch and should be turned out of the house. On this Sultan Ali P. W. replied that he will turn her out of the house provided she (Mst. Irshad Bibi) was prepared to live with him hereupon Mst. Irshad Bibi rebuked him. After sometime, Sultan Ali P, W. went to the shop of Arif, Blacksmith, where Muhammad Ali and Ahmad Ali appellants came and started beating him. Ramzan by that time had also come there intervened and it has been alleged that despite having given beating to Sultan Ali, the appellants were carrying grudge in their minds, hence this

occurrence.

4. As far the main occurrence, it has been stated that at the event ful time, Ramzan Ali deceased, Nathey Khan P. W. 6, Msr. Niaz Bibi P. W. 7 and Sultan Ali P. W. 8 were present in their house, Muhammad Ali and Ahmad Ali appellants armed with hatchets, Bagh Ali appellant carrying a Sota and Abdullah acquitted accused empty handed carne in front of the house. Abdullah raised Lalkara asking Sultan Ali and others to come out of the house, so that he will teach a lesson to them. On this Nathey Khan P. W. 6, Mst. Niaz Bibi P. W. 7, Sultan Ali P. W. 8 and Ramzan Ali deceased came into the outer door of their house. Abdullah acquitted accused instigated the appellants to do away with the two brothers namely Sultan Ali P. W. 8 and Ramzan Ali deceased. Ramzan Ali stepped forward to entreat them. Muhammad Ali gave a hatchet blow on the right side of his head. When Mst. Niaz Bibi tried to save Ramzan Ali, Ahmad Ali appellant gave her a blow with his hatchet. The appellants then caused injuries to Sultan Ali P. W. on his head and other parts of the body. The occurrence was also seen by Faqir Muhammad P. W. 9 and Bashir (not produced). The appellants and the acquitted accused, then, made good their escape. Ramzan Ali, Sultan Ali and Mst. Niaz Bibi in their injured condition, were removed to District Head quarter Hospital, Sheikhupura on a tractor trolley. On reaching the hospital, Ramzan Ali succumbed to the injuries. Nathey Khan then left the hospital for the police station to lodge the report. On the way he met Azmat Ullah, S. L, P. W.; 12., who recorded his statement Exh. P.G,

5. Dr. Muhammad Rafiq P. W. 2 conducted post‑mortem examina tion on the dead body of Ramzan Ali. He found an incised wound 14 c.m. x 2 c.m. x brain deep on the right side of the head, 6 c.m. from right ear. On dissection there was an incised wound 10 c.m. x 1 c.m. x 6 c.m. on the right lobe of the brain. Blood clot was present in the wound and under the skull bone it was depressing the brain.

In his opinion, the death had occurred due to severe shock, haemor rhage and compression of the brain. The injury was sufficient to cause death in the ordinary course of nature. The time between the injury and the death was about 1‑2 hours.

The doctor also examined the three appellants on 18‑8‑1982 at about 1.00 p. m. He found 3 simple injuries caused with blunt weapon on the persons of Muhammad Ali and Bagh Ali each. He also found one abrasion on the person of Ahmad Ali appellant which was simple in nature and caused by blunt weapon. The injuries were inflicted within 24 hours of the examination.

6. On 17‑8‑1982 at 7.15 p. m., Dr. Muhammad Aslam P. W. 3 examined Msr. Niaz Bibi. He found one incised wound 4 c.m. x 0.5 c.m. x bone deep on the middle of the head. The injury was caused by sharp edged weapon and was simple in nature.

On the same day, he examined Sultan Ali P. W. and found 6 simple injuries caused with blunt weapon on different parts of his body. The time between injuries and the examination was about 3 to 5 hours.

7. The appellants were arrested on 18‑7‑1982 by Asmat Ullah, S. I, P. W. 12. On 21‑7‑1982, Muhammad Ali led to the recovery stained hatchet Exh. P 3 from this house which was taken into possession vide memo Exh. P. I. attested by Faqir Muhammad P. W. 9 and Bashir Ahmad (not produced) On the same day Ahmad Ali and Bagh Ali got recovered hatchet Exh. P 4 'and Sot& Exh. P 5 respectively from their houses which were taken into possession vide memorandas Exh. P. J. and P. K. The hatchet Exh. P 4 and Sota Exh. P 5 were not stained with blood. The Serologist Report Exh, P. N./1 reveals that hatchet Exh. P. 3 recovered from Muhammad Ali appellant was stained with human blood.

8. To prove its case, prosecution produced 13 witnesses. Nathey Khan P. W. 6, Mst. Niaz Bibi P. W. 7, Sultan Ali P. W. 8 and Faqir Muhammad P. W. 9 have given the ocular account of the occurrence. They stated that on the Lalkara raised by Abdullah acquitted accused, the appellants had opened the attack, causing the death of Ramzan Ali and injuries to Msr. Niaz Bibi and Sultan Ali P. Ws. Faqir Muhammad P. W. 9 and Muhammad Hanif, Inspector Police, P. W. 13 have supported the recoveries of hatchets Exh. P. 3, P. 4 and Sota P. 5 from Muhammad Ali, Ahmad Ali and Bagh Ali appellants respectively. Dr. Muhammad Rafiq P. W. 2 has proved the post‑mortem examination report and medico -legal reports pertaining to the appellants. Dr. Muhammad Aslam P. W. 3 has proved the medico‑legal reports of Mst. Niaz Bibi and Sultan Ali P. Ws. The rest of the evidence is of formal nature.

9. When examined under section 342, Cr. P. C., Abdullah acquitted accused denied his participation in the occurrence. The three appellants while admitting their presence at the time of occurrence, raised the plea of self‑defence of person. In reply to Question, "Why the case against you ", Ahmad Ali appellant stated :‑

"Due to enmity. The real facts are that we were passing in front of the door of the complainant party and in fact they attacked upon us in which 1, Muhammad Ali and Bagh Ali accused received injuries. One of us snatched hatchet from Ramzan deceased and inflicted one injury to him in self‑defence."

Muhammad Ali and Bagh Ali appellants made almost same statement. In defence no witness was produced.

10. Learned counsel for the appellants contended that the prosecu tion has failed to prove its case beyond reasonable doubt ; that the F. 1. R. was prepared after preliminary investigation ; that the eye‑witnesses are not reliable ; that the motive, in fact, was with the complainant party to attack the appellants and that there is a reasonable possibility that the plea of self‑defence of person raised by‑ the appellants might be true. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

11. We have considered the arguments advanced by the learned counsel for the parties with care. We have not been able to persuade ourselves to agree with them. After having appreciated the entire case to accordance with the guiding principles laid down by the superior Courts in this behalf, we find that the time of occurrence. place of occurrence, presence of the deceased, Mst. Niaz Bibi. Sultan Ali P. Ws. and the three appellants, are the admitted facts of the case. The prosecution and the defence have given different version of the occurrence. We feel that the parties have not come out with the whole truth. The eye‑witnesses have suppressed the injuries found on tae persons of the appellants in order to minimize the part played by then. On the other hand, the accused party had taken contradictory plea, in that it was suggested to Mst. Niaz Bibi P. W. 7 and Sultan Ali P. W. 8 that at the time of occurrence, Ramzan Ali deceased was armed with a pistol and he fired a shot which did not hit anyone and the accused in self‑defence inflicted one injury to the deceased whereas in 'their statements recorded under section 342, Cr. P. C., the appellant's case was that at the time of occurrence, Ramzan Ali deceased was carrying a hatchet with him which was snatched by one of them who inflicted one injury in self‑defence to Ramzan Alt deceased. The appellants, neither in their suggestion to the P. Ws. nor in their statements recorded under section 342, Cr. P. C. have explained the injuries found on the person of Mst. Niaz Bibi and Sultan Ali P. Ws. So, there is no reliable direct evidence to show as to what exactly trans pired during the incident. In these circumstances, we are of the view that both in principle and in authority it would be consistent with the safe administration of justice in criminal cases that we should draw our a own inference which may flow from the evidence and circumstances and we should not be deterred from the incompleteness of the tale told b each of the parties. For that, we will have to depend on the circum stances and probabilities in order to ascertain the truth. After having examined the probabilities in the light of evidence and circumstances, more particularly, the background of the occurrence, i. e. a quarrel between the womenfolk of the parties ; provocative remarks by Sultan Ali, P. W. the place of occurrence i. e. a lane which was not in the exclusive occupation of the parties, the‑ injuries found on the deceased, P. Ws. and the three appellants and the nature and number of the injuries found on the parties, it can safely be said that each party, anticipated the resistance from the other and were, therefore, determined to have a trial of strength. Since there was a quarrel between the womenfolk of the parties and Muhammad Ali and Ahmad Ali had also given beating to Sultan Ali P. W. before the occurrence, therefore, a very trivial incident could bring them into conflict, and as such, it can reasonably be inferred that in entering upon the conflict each party knowingly and deliberately took upon itself the risk of the encounter, therefore, the question of the exercise of right of self‑defence did not arise. It seems to us that it was a case of free fight and each of the participants was responsible for his individual act. 5o relying on case title 4bdal Rehman v. Gadai Khan and 3 others (1972SCMR676). We hold that Muhammad Ali who caused the death of Ramzan Ali was guilty of an offence punishable under section 302, P. P. C. Since Ahmad Ali had inflicted simple injury with sharp edged weapon to Mst. Niaz Bibi, therefore, he was guilty of an offence p punishable under section 324, P. P. C. As far injuries of Sultan Ali P. W., we find that he had received no injury caused with sharp‑edged weapon and all the injuries were caused by blunt weapon; so, there is no alternative but to acquit Muhammad Ali and Ahmad Ali, who, allegedly were armed with hatchets of this charge. Since Bagh Ali had given injury with Sota, therefore, his conviction under section 323, P. P. C.1 is maintained.

12. This brings us to the question of sentence. We find that there. are mitigating circumstances in favour of Muhammad Ali for lessor penalty, inasmuch as, it was a case of free fight wherein Muhammad Ali had also received injuries at the hands of complainant party. So far as Ahmad Ali and Bagh Ali are concerned, we find that they have remained in jail as an undertrial prisoner as well as convicts for sufficient long time, therefore, the sentence already undergone by them would meet the case.

13. The upshot of the above discussion is that while maintaining/ the conviction of Muhammad Ali under section 302, P. P. C., his sentence do of death is altered to imprisonment for life and a fine of Rs. 5,000 or in default thereof 6 months' R. I. The fine if recovered both of it be paid to the legal heirs of the deceased. Ahmad Ali and Bagh Ali appellants H are acquitted of the charge under section 302/34. P. P. C. Their convictions under sections 324 and 323, P. P. C. respectively however, maintained. The sentences having been reduced to one already undergone by them, they shall be released forthwith, if not required to be detained to some other case.

M. Y. H. Appeal partly accepted.

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