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Criminal Appeal No.1-A of 1985, decided on 17th December, 1985.

---S. 302/304/325--Occurrence taking place over turn of water wherein many persons attacked complainant party and it could not be said with definite certainty that which accused caused injury with what weapon- Statement of accused recorded under S.342, Criminal Procedure Code, clearly proving that accused and complainant parties were present at spot--Presence of eye-witnesses at scene of occurrence Established by fact of injuries they received--Motive disclosed in first information report, not different from one which came into light during trial Occurrence proved beyond any doubt by eyewitnesses and no falsehood appearing in their deposition--Accused party was first to attack- Occurrence took place all of a sudden and neither intention to commit murder nor any premeditation proved against accused--Case falling under S.304 Part I, Penal Code--Conviction under S.302, P.P.C. s4tered to S.304 Part T, P.P.C. and sentence of imprisonment reduced to seven years' R.I.

------S. 302 & 325--Appreciation of evidence--Inconsistency in e0idence of witnesses qua medical evidence--Too much to except from eye-witnesses to state in exact terms that as to which accused caused injuries by what weapon--Presence of eye-witness established at Spot--- Any inconsis tency in statement of such witness and medical evidence, held, could be overlooked, especially when many persons had attacked complainant party and had belaboured them.

---S. 302/325/34--Appreciation of evidence--Contradiction in evidence Evidence recorded in trial more than eleven years after incident-- Some ,lapses and minor discrepancies in disposition, held, were bound to occur in such situation but presence of eye-witnesses at spot would exclude question of contradiction in evidence.

---S. 302/325/34--Appreciation of evidence--Independent witness- Presence of eye-witnesses at spot established due to fact that the had received injuries in incident--Held, there could be, no better evidence than such witnesses and it would-be immaterial whether any independent witness was present at spot and was not examined.--[Witness]

------S. 302/325/34--Evidence Act (I of 1872), S.33 Appreciation of evidence--Prosecution witness, who was not proved to be not available not examined, yet his evidence was taken into consideration trial Court--Statement of such witness recorded during committal proceedings and his evidence in those proceedings not transferred under S.33, Evidence Act--Evidence of such witness, held, could not be takes into consideration.

---S. 302/325/34--Criminal Procedure Code (V of 1898), S.154--First Information Report--Admissibility--Non-examination of complainant Offence proved beyond any doubt by other eye-witnesses even without proving first information report--Non-examination of complainant, would make no difference.

------S. 3021325/34--Criminal Procedure Code (V of 1898), S.154--First Information Report--Not a substantive piece of evidence but only information to police that a certain offence has taken place of which police may take cognizance.

-----S. 302/325/34--Oaths Act (X of 1873), S.13--Witness--Failure to record evidence on solemn affirmation--Eyewitnesses injured at spot giving evidence and no, falsehood appearing in their depositions--Failure of trial Judge to record evidence on oath or solemn affirmation, held, would make no difference and evidence would not become invalid since it was a mere irregularity curable by section 13, Oaths Act, 1873.- [Evidence].

----S. 302/325/34--Injuries on person of accused were not explained by prosecution--One of eye-witnesses stating that he had seen accused injured but it had not come on record as to how this injury was caused--Occurrence taking place all of a sudden and eye-witnesses becoming unconscious and one of them died--Held, in such circumstances it would not be expected from prosecution -witnesses to depose as to how one of accused was injured.

------S. 302/325/34---Applicability of S.34--Omission of trial Court to refer to S.34 Penal Code in judgment--Charge clearly showing that accused committed offence in furtherance of their common intention and same charge was disclosed to them and common intention of accused clearly established beyond any doubt--Non-mentioning of section 34 P.P.C. by trial judge in his judgment while convicting and sentencing accused, held, was a mere irregularity which caused no prejudice to accused.

--------S. 302/325/34--Self-defence, plea of--Accused party, finding complainant party busy in irrigating land, ordering them not to take water and on their refusal attacking them--No right of private defence of property involving in matter--Plea of right of self-defence not accepted.--[Private defence, right of].

M. Aslam Chishti and Mir Muhammad Nawaz Marri for Appellant.

Muhammad Nawaz Ahmed for the State.

Date of hearing: 17th December, 19h5.

Hap Hamal and two others, appellants herein, were convicted under sections 302/325, P.P.C. and sentenced to undergo rigorous imprisonment for 14 years and 7 years respectively by the Additional Sessions Judge, Sibi vide judgment, dated 1-1-1985. They have come up with the present appeal. Notice of enhancement was also given to the appellants by this Court.

2. The facts briefly stated are that on 12-7-1972 Mohammad Amir Khan S. H .O. Police Station Jhatpat received an information that some fight had taken place in village Goth Hot Khan. He alongwith a police party reached the spot at 10-00 a.m. where Meeral son of Mulguzar reported to him that on the said day, he, accompanied by Gella, Turk Ali, Tangai and Hot Khan had gone to the land of Hot Khan in the morning time to irrigate the same from a water channel which was common between them and Haji Hamal Khan. At about 8-30 a.m. accused Haji Hamal Khan accompanied by his relatives accused Amir, Mouj Ali, Muhammad Khan, Khuda-i-Dad and some other unknown persons came there and asked the complainant party not to irrigate their lands but Hot Khan replied that it was their turn of water, whereupon the accused party, armed with sticks and axes, attacked the complainant party. Hot Khan died at the spot as a result of the injuries whereas he, Gella, Turk Ali and Tangai were injured. This report was incorporated in F.I.R. No. 62/1982 of Police Station, Jhatpat. The injured and the deceased Hot Khan were sent to Civil Hospital, Jhatpat for treatment and post-mortem examination. P.W.1 Dr. Fazal Ahmad gave medical aid to the injured and conducted post-mortem examination on deceased Hot Khan on the same day. After investigation all the five accused were sent up for trial before the Additional Sessions Judge, Sibi, by the committing magistrate who had found that the accused were prima-facie guilty of murder and caused injuries to the other aforesaid persons. In the meantime accused Mouj Ali was murdered and accused Khuda-i-Dad died and the learned Additional Sessions Judge, on 18-5-1982, charged the three appellants herein under section 302/325/324/147/148/149, P.P.C. to which they pleaded not guilty and claimed trial. The State produced four witnesses in support of the prosecution case. The appellants were examined under section 342 Cr.P.C. and appellant Haji Hamal Khan also produced two defence witnesses.

3. P.W.1 Dr. Fazal Ahmad performed post-mortem examination on the dead body of Hot Khan from 12-50 p.m. to 2-10 p.m. on 12-7-1972 and found the following injuries:-

"Injury No. (1) A lacerated wound 2"x1"x1" deep on the right side of the temporal region in front of ear. The blood was coming from the right ear.

Injury No.2. A lacerated wound 3"x1"x1 " deep on the back of the skull.

Injury No.3. The blood was coming from the interior of the injured nose.

Injury No.4. A blackish contusion 3"x 1" on the right side of the chest.

On internal examination I found the following damages to the internal Organ.

Cramium and spinal cord

Skull:- The skull bone was fractured at temporal region "Temporal bone."

Minerce and Brain

The dura mater was detached from the bone. The blood was collected in between the dura mater and skull bone.

Middle maningial artary was lacerated. The brain matter was also slightly lacerated on the right side.

Thorax

All the internal organs in the thorax were normal.

Abdomen

Phoynx was blood-stained. The stomach was containing slight blood like flowing. Rest of the internal organs were normal."

According to the opinion of the doctor death occurred due to haemorrhage and shock produced by the injuries which were ante-mortem in nature and were inflicted by the blunt and hard substance like Lathi. The death occurred in about half to two hours.

On the same day the doctor examined P.W. Meeral and found the following injuries on his person:--

"Injury No.1. A contusion 3" x 2" below the left scapula.

Injury No.2. A contusion 2" x 1" on the left side of the back."

The injuries were caused by blunt and hard substance like Lathi and were simple in nature.

The doctor also examined P.W.4 Gallo and found the following injuries on his person:-

"Injury No.(1). An incised wound 2 " x 1" x 1 " deep on the back of right fore-arm.

"Injury No.(2). An incised wound 1" x 1/3" x on the front of the left upper arm.

Injury No.(3). A contusion 4" x 1" on the right scapula.

Injury No.(4). A contusion 5" x 1" on the right buttocks.

Injury No. (5) . A contusion 6" x 1" on the right side of the back.

Injury No. (6). A contusion 3" x 1" on the outer side of the right upper arm.

Injury No. (7). A contusion 4" x 1" on the left side of the back." The injuries No.1 and 2 were caused by sharp-edged weapon and rest by blunt ante hard substance like Lathi and were simple in nature.

The same doctor also examined P.W.3 Tangai on the same day and found the following injuries on his person:-

"Injury No. (1). A contusion on the outer side of the right upper arm. The humouras bone was fractured.

Injury No.(2). A contusion 1" x " below the left eye.

Injury No.(3). A contusion 2" x 1" on the front of the right side of the chest 2" below the clavics."

Injury No.1 was grievous and the rest were simple in nature and were caused by blunt and hard substance like Lathi.

The doctor on the same day also examined P.W.2 Turk Ali and found the following injuries on his person:-

"Injury No.(1). A contusion 2 " x 1" on the right fore-arm. 2 " above the wrist joint.

Injury No.(2). A contusion 2" x 1" on the skull above the right ear.

Injury No.(3). A contusion 3" x 1" on the right buttocks."

All the injuries were simple in nature, produced by blunt and hard substance like Lathi.

4. It appears that appellant Mohammad Khan was also injured in the same scuffle and he was also examined by the same doctor who found one incised wound 3" x 1" x 1 " deep to the bone on the front of the left fore-arm. The injury was simple and was caused by a sharp-edged weapon like hatchet.

P.W.2 Turk Ali had stated that on the date of incident according to Warah Bandi it was their turn of water and when they released the water towards their field, accused Haji Hamal, Amir, Mohammad and Mouj Ali came and attacked them. The accused party was armed with hatchet and Dandas. Accused Haji Hamal was armed with hatchet. He sustained Danda injury. Deceased Hot Khan, after sustaining hatchet injury, fell down and expired on the spot. In cross-examination he stated that he had not caused any injury on the person of any of the accused although they were armed with spades but he, has admitted that accused Mohammad Khan had received injury on his person. P.W.3 Tangai has stated that. all the five accused came and attacked them. Haji Hamal was armed with hatchet while the other were' armed with Dandas. He (P.W.Turk Ali) sustained hatchet as well as bands injuries. He has also stated that Hot Khan sustained injuries, fell down and expired at the spot. In cross-examination he has stated that he had not seen any of the assailants who had received injuries. He has admitted that he closed the water from the field of Haji Hamal and diverted it towards their field.

5. P.W.4 Gello has corroborated the testimony of the aforesaid eye witnesses and further stated that accused Haji Hamal was armed with hatchet while the other four accused were armed with Dandas. They attacked and abused them. All the persons of the complainant party sustained injuries and that he had sustained hatchet injury on his right arm while Danda injuries on rest of his body. In cross-examination he has said that deceased Hot Khan received injury first of all and he had seen the same and that was hatchet blow caused by Haji Hamal by using sharp side and was inflicted near the right eye. He has further stated that accused Mohammad Khan had also inflicted Danda blows to him.

6. P.Ws Mehr Ali, Acher, Abdul Rahim and complainant Meeral were also witnesses in the case. However, they were given up. It was stated by the P.P. that the first three witnesses had been murdered, killed or died except P.W. Meeral, about whom there is nothing on record to show as to why he was not examined. Raja Mohammad Akram, the then A.C. and Mohammad Amir Khan, the then S.H.O. Police Station Jhatpat were not examined because they had both retired and gone to Punjab and their whereabouts were not known. Ch. Mohammad Ramzan was also a witness but he was also not examined because his whereabouts were also not known.

7. All the three appellants in their statement under section 342 Cr.P.C. denied the commission of the offence and further stated that they had been falsely implicated. Appellant Mohammad Khan further stated that on the date of incident he and his companions Mouj Ali and Khuda-i-Dad were attacked by the complainant party and they sustained injuries. Appellant Haji Hamal had further stated that he was not present at the place of incident and has been falsely implicated. In proof of this allegation appellant Haji Hamal had produced two witnesses in defence, namely Mohammad Noor and Ali Mohammad, who had both stated that Haji Hamal was present in their village where one person came and informed him that persons from Rind Tribe had attacked his tenants were upon Haji Hamal and accused Amir proceeded towards the place of incident.

8. The learned counsel for the appellants had urged many points in support of the appeal. His firm contention was that the medical evidence is not consistent with the ocular evidence of three eye witnesses. It was urged by him that P.W.2 Turk Ali had stated that P.W. Tangai and P.W.4 Gello had received Danda injuries and other members of the complainant party had received hatchet injuries, but on the contrary according to the deposition of Dr. Fazal Ahmad deceased Hot Khan had sustained only Danda injuries and P.W.3 Tangai had received hatchet injury. It was his contention that this inconsistency in the medical and ocular evidence had created a great doubt in the case. We have given our serious thought to this aspect of the matter. It was urged by him that there were also material contradictions in the statements of the eye-witnesses. In so far as the injuries were concerned, we would not take into consideration this point for the reason that the witnesses were present at the spot and the occurrence took place suddenly and they could not see as to who was injured by which of the accused. The statement of appellant Mohammad khan recorded uncle Section 342 Cr.P.C. clearly proves that the accused and complainant parties were present at the spot, they had fought with each other and in the bargain five persons of the complainant party were injured out of whom one died arid the appellant Mohammad Khan also received one injury. The other three prosecution witnesses stated that they became unconscious after receiving the injuries. In view of the aforesaid circumstances it cannot be said that the eye witnesses had made falser statements. The occurrence took place suddenly and many persons had: attacked the complainant party and it could not be said with definite certainty that which accused has caused injury by what weapon. The presence of the eye-witnesses is established because they were all injured and were found injured at the spot by the police. As such it is immaterial if any particular type of weapon had been ascribed to any particular assailant. It is an established principle of criminal law that when the presence of the eye-witness is established at the spot any inconsistency in his statement and medical evidence can be overlooked and specially in this case when many persons had attacked the 8 complainant party and had be labored them, it would be too much to expect from the eye-witnesses to state in exact terms that as to which accused caused injuries by what weapon. We, therefore, cannot accept this contention of the learned counsel for the appellants. In so far as the question of contradiction in the, evidence is concerned, first of all' it may be stated that the evidence had been recorded in the trial more than eleven years after the incident. Some lapses and minor discrepancies C in the deposition are bound to occur in such a situation but the presence of the eye-witnesses at the spot will exclude the question of contra-I dictions in the evidence.

9. The learned counsel for the appellant further contended that the eye-witnesses have admitted that many persons had gathered at the place of incident but no independent witness was examined. This contention is also without any force for the reason that the presence of the eye-witnesses at the spot has been established due to the fact that they had received injuries in the incident. They could be no better eye-witness than these witnesses. It is therefore, immaterial whether any independent witness was present at the spot and was not examined.

10. It was further urged by the learned counsel for the appellants that motive was not proved. He contended that according to the F.I.R. occurrence took place due to dispute between the parties over land pending in a Court, whereas according to the evidence produced at the trial the occurrence took place due to turn of irrigation of water. No doubt these two motives have come on the record but in the peculiar circumstances of this case the question of establishment of a particular motive has become immaterial. It is admitted that there was some dispute between the parties on the turn of water and the lands had to be irrigated. It can, therefore, be safely said that the motive for the offence was the dispute about the turn of irrigation of land. In this context we can say that the motive disclosed in the F.I.R. is no different from the motive which came into light during the trial.

11. The learned counsel for the appellants then contended that i was not proved that P.W. Meeral was not available and he was no examined but his evidence was taken into consideration by the learned trial Judge. The statement of this witness was recorded during the committal proceedings and his evidence in those proceedings could be transferred under section 33 of the Evidence Act but we do not find any such order on the record. The evidence of this witness could not be taken into consideration. However, this does not make any difference because there were other three eye-witnesses of the incident. In this connection it was urged by the learned counsel for the appellant that he was the complainant and due to his non-examination the F.I.R. is excluded from consideration. No doubt the F.I.R. has not been proved but it is not a substantive piece of evidence. It is only information to G the police that a certain offence has taken place of which the police may take cognizance. The offence was proved beyond any doubt by the other eye-witnesses even without the proof of the F.I.R. ThiS1 H lacuna also does not make much difference.

12. It was then urged by the learned counsel for the appellant that the record of the case shows that the witnesses were not examined on solemn affirmation or oath and their evidence had to be excluded from consideration. We have carefully seen the record of the case and we find that the deposition of all the four prosecution witnesses does not disclose that it was recorded on solemn affirmation or oath. These depositions have been typed and it is quite possible that the official of the Court who typed these depositions forgot to write that the depositions had been recorded on solemn affirmation or oath. No doubt under section 5 of the Oaths Act, 1873 all witnesses whose evidence is to be recorded by or before any Court are to state on oath or solemn affirmation but it has also been provided in section 13 of the said Act that no omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. All the three eye-witnesses were injured at the spot and they had given evidence to that effect. We have not found any falsehood in their depositions. The failure by the learned trial judge to record the evidence on oath or solemn affirmation had not, therefore, made any difference. The evidence has not become invalid. The mere irregularity stands cured by the aforesaid provisions of section 13 of the Oaths Act.

13. It was then urged by the learned counsel for the appellant that the injury on the person of appellant Mohammad Khan was not explained by the prosecution. One of the eye-witnesses has stated that he had seen this appellant injured but it has not come on record as how this injury was caused. It is also a fact that the eye-witnesses became unconscious and one of them died. Moreover the occurrence took place all of a sudden. In these circumstances it can not be expected from the prosecution witnesses to depose as to how one of the appellants was injured.

14. The learned counsel then urged that the learned trial judge has held in the impugned judgment that sections 147,148 and 149 were not attracted to the case but still he convicted the three appellants under, section 34. We have perused the impugned judgment carefully. The learned trial judge has not invoked the provisions of section 34. However, the charge clearly shows that the appellants were accused of the offence in furtherance of their common intention. The intention of the trial judge appeared to charge the appellants for committing the offence in furtherance of their common intention and the same charge was disclosed to them. It is a mere irregularity by the learned trial judge that he did not refer to the provisions of section 34 in his judgment in convicting and sentencing the appellants. The mode in which the complainant party L was attacked would clearly show that the accused party had the common intention to commit the offence. The accused party came at the spot and at once started attacking the complainant party. Their common intention was thus established beyond any doubt. The non-mentioning of this fact by the learned trial judge in his impugned judgment has caused no prejudice to the appellants on this count. We do not accept this contention of the learned counsel for the appellants.

15. It was lastly contended by the learned counsel for the appellants that it was the turn of water of accused party and they had reached the spot in order to exercise their right of private defence of property and at the most they exceeded in enforcing that right. We have very seriously considered this aspect of the case. The facts which have been proved beyond any reasonable doubt are that the complainant party was busy irrigating their lands, the accused party came to know of it, they came at the spot and ordered the complainant party not to take the water and on their refusal attacked them. There was no right', of private defence of life or property involved in the matter. On the contrary we are of the considered opinion that it was a sudden fight' between the parties. The presence of five persons on the side of the complainant party and the presence of at least five persons from the side of the accused persons at the spot has been established beyond) any doubt. Even the defence evidence shows the presence of Haji Hamal and the statement of appellant Mohammad Khan recorded under section 342 Cr.P.C. also proves the presence of this appellant and accused Mouj Ali and Khuda-i-Dad. The fact that all the five persons of the complainant party were injured and one of them died and on the contrary only one injury was received by one of the appellants, would show that the accused party were first to start the attack. There can be no doubt about this conclusion. However, the occurrence took place all of a sudden without any pre-meditation or intention. We are,, therefore, of the considered opinion that the case did not fall under section 302 P.P.C. Neither intention to commit murder nor pre-meditation) had been proved against the appellants. The offence, therefore, falls under section 304, P.P.C. and as grievous injury was caused to one of the prosecution witnesses the provisions of section 325 P.P.C. are also, attracted. As death of one person of the complainant party was caused, so the offence under section 304 P.P.C. is punishable under part-I oft section 304 P.P.C. In the aforesaid circumstances we would partially accept this appeal to the extent that we alter the conviction of the appellants from section 302/325 P.P.C. to under sections 304-Part-111P 325/34 P.P.C. and would reduce the sentence to seven years R.I. under section 304 Part-I/34 P.P.C. and three years R.I. under section 325/34 P.P.C. Both the sentences shall run concurrently. The appellant shall also be entitled to the benefit under section 382-B Cr.P.C.

16. In view of the sentence which we have passed on the appellants we would order the notice for enhancement of sentence to be discharged.

17. The above are the reasons for our short order of even date.

M.Y.H. Appeal partly accepted.

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