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Criminal Appeal No. 176 of 1982, decided on 29th February, 1981.

---Ss. 302 & 304, Part II--Number and nature of injuries commensurate with number of accused and statements of eye-witnesses not suffering feom any material infirmities--Free fight taking place between parties Over a dispute of land wherein deceased lost his life--Offence, held, not that of murder but of culpable homicide and act of accused falling under section 304, Part II--Conviction changed from one under section 302 to S . 304--II, Penal Code.

---S. 302--Injuries found on person of accused not properly explained by eye-witnesses--Entire evidence, held, could not be rejected on that score.

---S. 302--Mutual fight--Parties trying to minimise part played by them--Material and important question for determination in such cases, hue, would be as to manner in which occurrence took place.

---S. 302--Right of private defence--Dispute over possession of land bringing parties to conflict and a free fight taking place Question of right of private defence, held, not arising and each of participants would be responsible for his individual act.--[Private defence, right of

---Ss. 302 & 304, Part II--Free fight taking place between parties wherein one person lost his life--Offence, held, not that of murder but of culpable homicide.

Syed Ali Bepari v. Nibran Mollah and others P L D 1962 S C 502 rel.

---S. 302--Prosecution witnesses receiving 43 simple injuries and 6 grievous injuries and it was not ascertainable as to who caused grievous injuries--Accused convicted for lesser offences.

---S. 302--Accused in free fight between parties causing three hatchet injuries to deceased which were individually and collectively sufficient to cause death--Conviction of accused altered from S. 302 to S.304- Part II, Penal Code but in matter of sentence accused, held, did not deserve any leniency and maximum sentence of ten years' R.I. awarded to him.

Sahibzada Farooq Ali Khan and Malik Mureed Abbas for Appellants.

Muhammad Khalid Alvi for the State.

Date of hearing: 29th February, 1984.

This criminal appeal arises from the judgment of the learned Sessions Judge, Muzaffargarh, whereby he on 30-6-1982 while acquitting Hashim and Fazil, the co-accused, convicted Bahawal, Baqir, Muhammad Amir and Bahadar, the appellants, under various sections of the Pakistan Penal Code, as under:--

(i) Under section 302/34, P.P.C., for causing the death of Fazil, deceased, and sentenced to imprisonment for life and a fine of Rs.2,000 each, in default thereof to further rigorous imprisonment for two years;

(ii) under section 307/34, P.P.C., for murderous assault upon Nek Muhammad, Machhia, Khan Muhammad, Haqnawaz, Sultan, Ramzan, Najabat and Allah Bakhsh P.Ws. and sentenced them to 5 years' rigorous imprisonment and a fine of Rs.500 each, in default thereof to further rigorous imprisonment for six months each; and

(iii) under section 447/ 34, P . P . C . , and sentenced them to three

months' rigorous imprisonment each.

All the sentences were directed to run concurrently. It was further directed that the fine awarded under section 302/34, P.P.C., if recovered, be paid to the heirs of the deceased and the fine awarded under section 307/34, P.P.C., if realised, be paid to the 8 injured P.Ws. proportionately.

2. The occurrence took place on 10-4-1978 at 7-00 a.m. near a Jhuggi situate in Killa No. 9 of Square No. 95 of village Aadha 'aabutra of Police Station, Rangpur. The distance between the police; station and place of occurrence is 6 miles. The F.I.R. Exh. P.A.A. was lodged by Waryam (P. W. 8) on the same day at 9 a.m. and was recorded by S.I. Muhammad Taj (P.W. 12).

3. The motive, as alleged by the prosecution, was that there was a dispute between the parties over the ownership of land situated in village Aadha Chabutra. According to Waryam, the complainant, his land in Square No. 95 was under the unlawful possession of the appellant's party for the last 14/15 years. On 23-9-1977 he got back the possession of his land through Martial Law Authority. On 5-10-1977 the appellant's party committed criminal trespass and occupied 3 Kanals of land whereupon Waryam (P.W. 8) lodged report under section 447, P. P.C., at Police Station, Rangpur wherein 8 persons were involved. The case was still pending when on the eventful day at Subba Nimazwela, Nek Muhammad (P.W. 11) and Fazil, deceased, went out to have a round of their land Wand on reaching near Jhuggi they found the appellants and the acquitted co-accused sitting therein after having trespassed into it. Bahadar, appellant, was armed with hatchet. Baqir, appellant, was armed with Berchha, Bahawal and Muhammad Amir, appellants, were armed with Dangs and the acquitted co-accused were armed with guns. On enquiry made by Nek Muhammad (P.W. 10) and Fazil, deceased, as to why they were sitting in the Jhuggi, the appellants and the acquitted co-accused first threatened and then opened attack on the deceased and Nek Muhammad P.W. who raised alarm which attracted Waryam (P.W. 8). Machhia (P.W.9), Khan Muhammad (P.W.10) and the other injured witnesses. Fazil, the acquitted co-accused fired at Fazil, deceased, who fell down oil the ground. Bahadar, appellant, inflicted hatchet blows on the person of the deceased, Bahawal and Muhammad Amir, appellants, injured the deceased with their Dangs whereas Baqir, appellant, injured him with the handle of his Berchha. When the witnesses tried to intervene they were injured by the appellants. All the accused then decamped ' alongwith their weapons.

4. Dr. Muhammad Afzal Mian (P.W.4) examined the injured witnesses and found as many as 49 injuries on their persons caused by sharp as well as blunt weapons. Out of the injuries found on the persons of the 8 injured witnesses, 6 injuries were declared grievous. On 11-4-1978, the same doctor conducted post-mortem examination on the dead body of Fazil and found following injuries on his person: --

(1) A long cut wound 8" x 1" was present on the back side of the head cutting the scalp, right part of frontal bone, right temporal bone and right parietal bone. Nasal bone was also fractured.

(2) A perpendicular cut wound on the right head below injury

No-1 cutting right occipital bone and pinna of right ear.

(3) A cut wound 3" x 1" on the right cheek outer to right eye

cutting right maxilla and upper part of right mandible bone.

All the injuries had clotted blood in and around them.

(4) A lacerated wound 4' x 1" on the back of the head and left

ear. Occipital bone was fractured.

(5) An abrasion 1" x on back of left shoulder.

(6) An abrasion upper part of left fore-arm.

(7) An abrasion mark 3" x 1" above left knee.

(8) A contusion mark 3" x 1" above injury No. 7.

Injuries Nos. 1 to 3 were caused by heavy sharp-edged weapon and the rest with blunt weapon. Injuries Nos. 1 to 4 were found grievous and fatal. In his opinion the death had occurred due to shock and bleeding caused by destruction of skull and brain due to injury Nos. 1 to 4 which individually as well as collectively were sufficient to cause death in the ordinary course of nature. It may be mentioned here that the two appellants, namely, Bahawal and Muhammad Amir were also medically examined. 5 injuries were found on the person of Bahawal, all simple in nature. 2 injuries were caused by sharp-edge weapon and the remaining with blunt weapon. One injury simple in nature caused by blunt weap as found, on the person of Muhammad Amir, appellant.

5. The appellants were arrested on 17-4-197ga No recovery was effected from Bahadar, appellant, Bahawal, Muhammad Amir and Baqir, appellants, however, got recovered Dangs P. 3, .P. 4 and Barcha P. 5 respectively which were not stained with blood.

6. In order to prove its case the prosecution examined as many as 12 witnesses out of whom Waryam (P.W.8), Mdchhia (P.W. 9), Khan Muhammad (P.W. 10) and Nek Muhammad (P.W. 11) have given the ocular account of the occurrence. Waryam (P.W. 8) has supported the F. I. R. and also deposed about the motive. The rest of the evidence s more or less of formal nature.

7. Bahawal and Muhammad Amir, appellants, when examined under section 342, Cr. P. C., admitted their presence at the place of occurrence and pleaded right of self-defence of person and property Baqir and Bahadar, appellants, however, denied their presence and articipation in the occurrence. In reply to question No. 9 Bahawal, appellant, stated: --

"We have been occupying the land in dispute since long. Neither the demarcation nor the Wat Bandi of the two villages of Multan and Muzaffargarh District was arranged: It was difficult to determine the place and situation of the Killa of the disputed area. It was flooded area and all the marks and Bannajats were washed away by the flood. The land in dispute which was claimed in the ownership of the complainant party was in our possession till the day of occurrence. The revenue authorities did not come on the spot and made no demarcation of the land. We were not ejected from the land in dispute by the revenue authorities or police. The complainant party, two or three times before this occurrence, tried to get possession of the land from us. A false case under section 447, P.P.C., was registered against us in which we were acquitted from the Additional Sessions Judge, Muzaffargarh. I produce the attested copy of the judgment Exh. D.H.

On the day of occurrence in the early morning time I and Amir accused were ploughing our land which was adjacent to the land in dispute. There was no Banna between the two lands. The complainant party came armed with deadly weapons to get the possession of the land from us. They attacked us and injured us. I and Amir also injured the complainant party in self-defence of person and property. The case against us is false. We are innocent."

Muhammad Amir, appellant, adopted the statement of Bahawal, appellant. The appellants produced FC Shamir Ali (D .W .1) and Muhammad Khalil, Record Keeper, Nishtar Hospital, Multan (D.W.2) in their defence. Muhammad Khalil (D.W. 2) has proved the signatures of the doctor who had prepared the medicolegal report relating to Bahawal and Muhammad Amir, appellants. It may be noted here that Bahawal and Muhammad Amir, appellants, were medically examined on 10-4-1978 at 4-50 p.m. in Nishtar Hospital, Multan.

8. Learned counsel for the appellants has submitted that the prosecution has failed to prove its case beyond reasonable doubt; the ocular evidence produced by the prosecution is not reliable; the eye-witnesses have suppressed the injuries of the two appellants; Bahawal and Muhammad Amir, appellants, had acted in exercise of their right of self-defence and in any case it is a case of exceeding the right of self-defence. Learned counsel for the State assisted by learned counsel for the complainant has, however, supported the judgment of the trial Court.

9. From the statement of facts given above it is very much obvious that the time of occurrence, place of occurrence, the presence of Khan Muhammad P.W. 10, Naik Muhammad P.W. 11 and other injured witnesses, the presence of Bahawal and Muhammad Amir appellants, and the fact that both parties received injuries during the occurrence are the admitted and proved facts of the case. As for the ocular evidence of the prosecution. I find that the number and nature of the injuries commensurate with the number of the appellants and that the statements of the eye-witnesses do not suffer from any material infirmities. No doubt, the injuries found on the person of the appellants have not been properly explained by the eye-witnesses but the entire evidence- cannot be rejected on this score. It is but natural that in case of mutual fight, the parties try to minimise the part played by them, therefore, the material and important question for determination is as to the manner in which the occurrence took place. For that the place of occurrence is of great significance. There is nothing on the record with regard to the ownership of Killa No. 9 or Jhuggi situate therein. From the statement of Nazar Hussain, Patwari (P.W. 5) it appears that the complainant party was given possession of Khasra Nos. 311, 8/2, 13/1 and 13/2 and not of Killa No. .9. There is no evidence as to who constructed the Jhuggi allegedly trespassed into by the appellants. Nazar Hussain Patwari has stated that on 26-10-1977 Patwaris of both the districts of Multan and Muzaffargarh including him had visited the spot on the application made by the appellants for the, demarcation of the land but demarcation could not be made on that date because of lack of certain formalities. He further stated that since demarcation was not made, he could not say of any deviation or discrepancy from the existing boundary. To my mind, the parties have not come out with true facts and have told incomplete tale to minimize the part played by them, therefore, the Court has to draw, inference from the evidence and attending circumstances.

10. In the case in hand, no satisfactory evidence is on the record that either party was in exclusive possession of the Jhuggi or the land nearby and during the occurrence, both the parties received injuries with sharp as well as blunt weapon. The legitimate conclusion can safely be drawn that the parties went duly armed to enforce their right or supposed right in the disputed land expecting an armed resistance. They were thus determined to have trial of strength and the incident of occupation of Jhuggi and dialogues between the parties brought them in conflict and there ensued a free fight wherein the question of right of private defence does not arise and each of the participants would be responsible for his individual act.

11. Now I proceed to consider the liability of each of the appellants. Since during the free fight one person lost his life the offence is, therefore, not that of murder but- that of culpable homicide as held by the Supreme Court of Pakistan in case Syed Ali 'Bepari v. Nibran Mollah and others P L D 1962 S C 502. According to the medical evidence, the injuries inflicted by Bahadur appellant were individually1 and collectively sufficient to cause death of the deceased. His act is, 1 therefore, punishable under section 304-II, P.P.C. According to the medical evidence injury No. 4 of the deceased caused by the blunt weapon was also individually and collectively sufficient to cause death but it is not known as to who had caused this injury. As for the injuries of the P.Ws besides 43 simple injuries, six' grievous injuries were also found on their person but it is not ascertainable as to who caused the grievous injuries. In this situation, there is, no alternative but to convict the three appellants, Baqir, Bahawal 'and Amir for lesser offence. The' conviction and sentences, of these three appellants under sections 302/34, 307/34, P.P.C., are set aside. Instead Baqir appellant is convicted under section 324, P.P.C,' Bahawal and Amir appellants are convicted under section 323, P.P.C:- Prosecution has failed to prove the physical possession of the complainant party over the Jhuggi or Killa No. 9, the conviction under section .44 7 , P . P. C., is, therefore, not sustainable. The appellants are acquitted 'of this charge.

12. This brings me to the question of sentence to be awarded to the appellants. Since Bahadur appellant gave three injuries with hatchet which were individually and collectively sufficient to cause the death, he does not deserve any leniency and is awarded the maximum punishment i.e. 10 years R.I. and a fine of Rs.2,000, in default whereof, R. I. for two years. The fine when recovered be paid 1 to legal heirs of deceased. He will, however, get benefit of section 382-B, Cr.P.C. As for Baqir, Bahawal and Muhammad Amir appellants, they are in the jail since their conviction on 30-6-1982. The sentence already undergone by them is sufficient to meet the case. They shall be released forthwith if not required in other case.

M. Y. H. Appeal partly allowed.