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Criminal Appeal No.106 of 1986, heard on 3rd June, 1987.

--Ss.302 & 307/34--Two versions in juxtaposition--Place of occurrence, presence of 3 injured witnesses, presence of two injured accused (one acquitted), receiving of injuries by accused and election rivalry being admitted facts--Parties blaming each other for aggression--F. I. R. promptly lodged--Nothing an evidence suggesting its recording after deliberation or preliminary investigation--Names of accused and witnesses given therein--Presence of injured witnesses established- Number of injuries on deceased and witnesses commensurate with number of assailants--Accused were the persons who were expected to join attack on complainant party--Prosecution not giving satisfactory explanation of injuries on persons of accused--Accused also not giving satisfactory account of injuries to deceased and witnesses Parties not coming up with full details of occurrence--Brother of deceased contesting election against one of accused--Polling in progress at time of occurrence--Both parties receiving injuries with sharp as well as blunt weapons--Both parties going to place of occurrence duly armed--Immediate cause of conflict not disclosed by parties Accused not acting in cruel or unusual manner nor taking unfair advantage- Incident, held, appeared to be sudden fight in the heat of passions No right of self-defence would arise nor same was established by evidence or spelt out from record--Act of accused causing death of deceased would be covered by Exception 4 to S.300, P.P.C. punishable under 5.304, Part I, P.P.C. read with S.34, P.P.C. and causing injuries to witnesses in furtherance of their common intention would fall under S.308/34, P. P. C.--Convictions and sentences altered accordingly.

Ejaz Hussain Batalvi for Appellants.

Kh. Shaukat Ali for the State.

Date of hearing: 3rd June, 1987.

This Criminal Appeal No.106/86 and connected Revisions Nos.141 and 402 of 1986 filed by Shamshad Ahmad complainant for enhancement of sentence of the appellants and for retrial of Muhammad Asghar, acquitted accused, arise from the judgment of learned Additional Sessions Judge, Gujrat, whereby he on 24-2-1986 while acquitting Muhammad Asghar co-accused, convicted Sikandar Hayat, Muhammad Shafi, Muhammad Saeed and Muhammad Rashid appellants under section 302/34, P.P.C. for causing death of Jamshed Ali and under section 307, P.P.C. for murderous assault on Shamshad Ahmad, Sanover and Zulfiqar Ali and sentenced them as under:-

U/S.302/34, PPC.to imprisonment for life and a fine of Rs.5,000/ each in default thereof 3 years' R.I. each, with the direction that the fine if realized half of the same be paid to the legal heirs of the deceased.

U/5.307, P.P.C.to 7 years' R.I. each and a fine of Rs.1,000/ each or in default thereof one year R.I. each, with the direction that the fine if recovered half of the same be paid to the injured PWs.

The sentences were ordered to run concurrently. We propose to dispose of them through single judgment.

2. The occurrence took place on 28-9-1983 at 10-30 A.M. near M.B. High School, Mandi Baha-ud-Din at a distance of four furlongs from P.S. Mandi Baha-ud-Din. The FIR Ex.P.A. is statement of Shamshad Ahmad P.W.8, nephew of the deceased which was recorded by Fateh Muhammad ASI, P.W.14 on the same day at 11-30 A.M. in Civil Hospital, Mandi Baha-ud-Din. Formal FIR Ex.PA/1 was registered at P. S. Mandi Baha-ud-Din at 11-50 A.M. on the same day by Muhammad Yousaf, Moharrir Head Constable, P.W.1.

3. Sikandar Hayat appellant is real brother of Muhammad Asghar, acquitted accused. Muhammad Shafi appellant is brother of the wife of Sikandar Hayat appellant.' Muhammad Rashid appellant is son of Muhammad Saeed appellant. Saeed and Sikandar Hayat appellants are friends and partisan.

4. The motive as alleged by the prosecution was that in the local bodies election of 1977 Haji Mukhtar Ahmad, father of Shamshad Ahmad complainant and Sikandar Hayat appellant contested election in which the complainant's father was declared successful. In the local bodies election held in the year 1983, there was again a contest between the complainant's father and Sikandar Hayat appellants. On the day of occurrence, the position of the complainant's father was better than Sikandar Hayat so far as voting was concerned, hence this occurrence.

4-A. As far the main occurrence, it has been stated that at the eventful time Sikandar Hayat, Muhammad Saeed, Muhammad Shafi and Muhammad Rashid appellants armed with chhuras and Asghar acquitted accused armed with Sota arrived at the place of occurrence. Muhammad Asghar, acquitted accused raised lalkara declaring that the members of the complainant party should be taught a lesson for contesting election against Sikandar Hayat. They opened the attack. Muhammad Saeed and Muhammad Rashid caused chhura blows on belly, chest, left flank and on right flank of Jamshed Ali, respectively. When Zulfiqar Ali P.W. intervened Muhammad Shafi appellant inflicted ehhura blows on his right flank. When Shamas-ud-Din P.W.8 came forward, he was injured by Sikandar Hayat appellant. Muhammad Saeed, Muhammad Rashid and Muhammad Shafi appellants with their chhuras inflicted blows on his left flank, left upper arm, left buttock and right hand. Sanover P.W. was given Sota blow by Muhammad Asghar, acquitted accused. Muhammad Asghar and Muhammad Shafi also received injuries with iron chairs thrown on him by complainant party. Jamshed Ali succumbed to the injuries on the spot. The appellants and the acquitted accused ran away taking weapons of offence with them.

5. On 28-9-1983 Dr. Nazir Ahmad Anwar P.W.11 conducted post -mortem examination on the dead body of. Jamshed Ali P.W. He found following injuries:-

(i) "A penetrating incised wound 13 x 3 c.m. x going 'into the abdomen, just below the umblicus, about two "feet length of small gut was coming out of the wound. On dissection two cuts each 3 x 1 c. m. in the small gut and four cuts biggest 4 x 2 c.m. and smallest 3 x 1 c.m. were found in the mesentry.

(2) A penetrating incised wound 7 x 2 c.m. x going into the chest, over right side of the chest on dissection right fourth and fifth ribs were found cut underneath. There 'was a cut 3 x 1 x 3 c. m. over the outer surface of right Lung.

(3) A penetrating incised wound 3 x 1 x 3 c. m. below the left armpit .

(4) A penetrating incised wound 3 x 1 c. m. x going into the chest and abdomen, deeply giving a cut in the outer surface of spleen in an area of 2 x x 1 c. m. Left 10 ribs was found partially cut."

In his opinion, the death was due to shock and haemorrhage as a result of injuries Nos.l to 4, which were sufficient to cause death in the ordinary course of nature. The death was immediate and the duration between death and post-mortem was within 2 to 4 hours. All the injuries were inflicted by sharp-edged weapon.

6. Dr. Muhammad Rashid Javaid P.W.12 examined Zulfiqar P.W. on 28-9-1983 and found following injury on his person.

"An incised wound 3 x 1 c. m. into chest cavity deep on right side lower part of chest. The wound was bleeding, air was coming out from the wound. Surgical emphysema was developed."

The injury was declared dangerous to life and was caused by sharp-edged weapon.

On the same day, the doctor examined Shamshad Ahmad P.W. and found following injuries on his person:

"(1) An incised wound 3 x 0.8 c. m. into going deep into muscles of left hip wound was bleeding.

(2) An incised wound 4.5 x .8 c.m. into skin deep on left arm.

(3) An incised wound x c.m. into superficial on right ring finger on palmer aspect.

(4) An incised wound x c.m. into going deep left upper outer part of chest."

The injuries were caused by sharp-edged weapon and were simple in nature.

On the same day he examined Sanover P.W. and found following injury:-

"A lacerated wound 1 x c. m. into scalp deep on top of head."

The injury was caused by blunt weapon and was simple in nature.

The doctor examined Muhammad Ashgar acquitted accused on the same day and found following injuries on his person:-

"(1) An incised wound 1.5 c. m. x 0.5 c. m. x scalp deep on right side of head. The wound was bleeding.

(2) An abrasion -with swelling 7 x 4 c.m. on right fore-arm on poseterious service dust particle were present.

(3) An incised wound on right middle finger.

(4) An incised wound x c.m. on right side of chest.

(5) An incised wound 1 x c.m. x sking deep on right shoulder joint.

(6) A bruise 7 x 3 c. m. on right arm upper portion.

(7) A bruise 7 x 3 c.m. on left scapulla.

(8) An incised wound 1 x into muscle deep on upper part of left hip."

Except injuries Nos.2, 6 & 7, other injuries were caused by sharp-edged weapon. Injury No.2 was grievous whereas the rest were declared-, as, simple.

On 1-10-1983, the same doctor examined Muhammad Shaft appellant and found following injuries on his person.

"(1) A lacerated seabed wound 1 x 1 c.m. on left eye-brow. There was another seabed wound 1 x 1 c.m. on the left side of forehead.

(2) A seabed clean cut wound on left thumb most probably by sharp-edged weapon."

Injury No.l was caused by blunt weapon. The injuries were simple in nature.

7. Muhammad Shaft, Sikandar Hayat and Muhammad Saeed appellants were arrested on 30-9-1985 by Amjad Karim, S.I., P.W.15. Muhammad Rashid appellant was arrested by him on 1-10-1983. Muhammad Asghar acquitted accused was arrested by him on 29-9-1983. On 5-10-1983 Muhammad Asghar, acquitted accused got recovered Sota Ex.P5 from his house, which was taken into possession vide memo. Ex.PE attested by Bashir Ahmad S.I., P.W.16 and Shamas-ud-Din, P.W.6 and Javaid Ali (not produced). On 12-10-1983 Muhammad Shaft got recovered blood-stained chhura Ex.P.6 from the house of Sikandar Hayat appellant which was taken into possession vide memo. Ex.PF attested by Amjad Karim, S.I., P.W.15, Maqbool Ahmad P W.7 and Saith Siraj Din (not produced). At the same time, he got recovered Shalwar Ex.P.7 and blood-stained shirt Ex.P.8 from a bag lying in the house of Sikandar Hayat appellant, which were taken into possession vide memo. Ex.PG attested by the same witnesses. The Serologist's Report Ex.PX reveals that the clothes and the chhura were stained with human blood. '

8. To prove its case, prosecution examined 17 witnesses. Sham shad Ahmad P.W.8, Sanover Ali P.W.9 and Zulfiqar Ali P.W.10 have given the ocular account of the occurrence. They claim to have seen the appellants and the acquitted accused opening attack, causing injuries with their respective weapons to the deceased and the injured P.Ws. Dr. Nazir Ahmad Anwar P.W.11 has proved the post-mortem examination report whereas Dr. Muhammad Rashid Javaid P.W.12 has proved the medico-legal reports of the injuries of injured P.Ws., Muhammad Shaft appellant and Muhammad Asghar, acquitted accused. Maqbool Ahmad P.W.7, Amjad Karim S.I., P.W.15 and Shamas-ud-Din P.W.6 have deposed about the recovery of Sota Ex.P.5, blood-stained chhura P.6 and blood-stained shirt and shalwar from Muhammad Asghar, acquitted accused and Muhammad Shaft appellant, respectively. Shamshad Ahmad P.W.8 deposed about the alleged motive. The rest of the evidence is more or less of formal nature.

9. When examined under section 342, Cr.P.C., Sikandar Hayat, Muhammad Saeed and Muhammad Rashid appellants denied all the incriminating circumstances and raised the plea of false implication on account of enmity. Muhammad Shaft appellant and Muhammad Asghar, acquitted accused, however, raised the plea of self-defence. In reply to Q.No.17, "Why this case against you", Muhammad Shaft appellant stated: -

"As stated by me earlier, the complainant party had opened the attack and to save me and Asghar my co-accused during the scuffle with the intervention of many persons the

complainant party received injuries and one of them died. The complainant party with the collusion of the police had bro fight this case against me and the other co-accused."

Muhammad Asghar, acquitted accused made almost similar stateme t. No witness was produced in defence. The appellants and Muhaml id Asghar, acquitted accused, gave evidence on oath in disproof of the charges against them.

10. The learned trial Court gave benefit of doubt to Muhammad Asghar and while believing the ocular evidence, recoveries, motive and the medical evidence, convicted and sentenced the appellants as stated above.

11. Learned counsel for the appellants contended that the version of the occurrence given by the eye-witnesses is false; that the eye-witnesses are not reliable, they have not been believed to the extent of Asghar, acquitted accused; that they have given false explanation of the injuries of Muhammad Shaft appellant and Muhammad Asghar, acquitted accused and that in the circumstances that there was not only election rivalry between the parties but Muhammad Shaft appellant and Muhammad Asghar on the side of the appellants received 10 injuries caused by blunt and sharp-edged weapons including one grievous injury, there is at least a reasonable possibility that the plea raised by Muhammad Shaft appellant might be true. Learned counsel for the State supported the judgment of the trial Court. Learned counsel for the complainant requested for enhancement of the sentence of the appellants and retrial of Muhammad Asghar, acquitted accused on the ground that there was no mitigating circumstance in favour of the appellants and that Muhammad Asghar has been acquitted without any justification.

12. I have anxiously attended to the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the accused under section 342, Cr.P. C., statements made by the appellants on oath in disproof of the charges against them and the circumstances appearing in the case, with care. I find that the time of occurrence, place of occurrence, presence of Shamshad Ahmad P.W.8, Sanover P.W.9, Zulfiqar Ali P.W.10, Jamshed Ali deceased, Muhammad Shaft appellant and Muhammad Asghar, acquitted accused, receipt of the injuries of Muhammad Shaft appellant and Muhammad Asghar during the occurrence and the rivalry between the complainant and the accused party on account of local bodies elections held in 1979 and on the day of occurrence, are the admitted facts of the case. The parties, have, however, given different versions of the occurrence and have blamed each other for aggression. According to the prosecution, during the polling, the appellants armed with chhuras and Muhammad Asghar, acquitted accused armed with Sota opened attack and caused the death of Jamshed Ali and Injuries to Shamshad Ahmad P.W.8, Sanover P.W.9 and Zulfiqar Ali P. W .10. The defence version is that the complainant party had opened attack on Muhammad Shafi appellant and Muhammad Asghar acquitted accused and during the fight many persons intervened as a result whereof Jamshed Ali died and the 3 eye-witnesses received injuries. After having appreciated the case in accordance with the well-known principles of the appreciation of cases of two versions, I find that it is a case of oromptly lodged FIR, containing the names of the accused, the weapons carried and used by them, the names of the deceased and the eye-witnesses. There is nothing in evidence that the FIR was recorded after deliberation or after preliminary investigation. By the fact of injuries on their persons, presence of Shamshad Ali P.W.8, Sanover P.W.9 and Zulfiqar Ali P.W.10 is also established. The number of the injuries found on the persons of the deceased and the 3 eye-witnesses commensurate with the number of the assailants named by them. In view of the rivalry over local bodies election between the parties, the appellants were the persons who were expected to join attack on the deceased and the injured witnesses. The eye-witnesses as usual have not come out with whole truth, inasmuch as, they have not given any satisfactory explanation of the injuries found on Muhammad Shafi appellant and Muhammad Asghar, acquitted accused. They claim to have injured Muhammad Shaft appellant and Muhammad Asghar acquitted accused with chairs which were lying in their camp. Muhammad Shaft and Muhammad Asghar received as many as 10 injuries out of which 5 injuries were caused by sharp-edged weapon and one injury of Muhammad Asghar was also grievous in nature. I am sure that the injuries found on the person of Muhammad Shafi appellant and Muhammad Asghar were not caused by the' chairs as stated by the prosecution. On the other hand, the appellants have also not given satisfactory account of the injuries of the deceased and the 3 eye-witnesses. It is not known as to who had caused those injuries. In defence no evidence was led to prove defence version. I feel that the parties have told incomplete tales of the occurrence, but this should not deter me from drawing proper inference from evidence and circumstances. I feel that in the peculiar circumstances of the case that Haji Mukhtar Ahmad, brother of the deceased had contested election against Sikandar Hayat appellant in the year 1979 and was declared successful; that on the fateful day, Haji Mukhtar Ahmad, brother' of the deceased was again contesting local bodies election against Sikandar Hayat appellant; that the election had started on that day on 7-30 A.M.; that both the parties received injuries during the occurrence; that on the side of the complainant one person lost life and 3 received injuries; that on the side of the appellants 2 persons were also injured; that the complainant party received 10 injuries and the accused party also received 10 injuries; that both the parties received injuries with sharp-edged as well as blunt weapon and that one injury found on the person of Muhammad Asghar, acquitted accused was grievous in nature, it would be perfectly safe to presume that both the parties went to the polling station duly armed in expectation of an armed conflict. From the state of relations between the parties and the situation which they were facing on the day of occurrence, it is very much clear that a very trivial incident was sufficient to bring them into conflict. So, it would be legitimate to infer that some incident of sudden quarrel did take place within 3 hours of the start of polling (not truly disclosed by parties), which resulted in a sudden fight in the heat of passion and as such no question of right of self-defence did arise. Furthermore, the right of self-defence has neither been established through any evidence nor the same is spelt out from the prosecution case or its evidence. I feel that the act of the appellants of causing the death of Jamshed Ali is covered by exception 4 to section 300, P.P.C. The relevant provisions of law may be reproduced advantageously:-

Exception-4 to "Culpable homicide is not murder if it is committed

section 00, FPC. without premeditation in a sudden fight in the heat

of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."

Since in the instant case, there took place a sudden fight in which the accused party also received 10 injuries including one grievous injury with sharp-edged and blunt weapon, therefore, it cannot be said that while inflicting 10 injuries with sharp-edged and blunt weapon to the complainant party, the appellants took unfair advantage or acted in cruel or unusual manner. The submissions made by the learned counsel for the appellants do not carry any weight. The presence of the eye-witnesses is proved as well as an admitted fact. I do not see any legal infirmity in - the evidence. Muhammad Asghar was given benefit of doubt and as such his acquittal does adversely effect the credibility of the eye-witnesses. The statements of the eye-witnesses cannot be thrown out because of failure to give satisfactory explanation of the injuries of accused. As for Muhammad Ashgar, acquitted accused, I find that the learned trial Court has given sound reasons for giving him benefit of doubt and as such no exception can be taken to his acquittal. For all these reasons, I am of the view that the offence of killing the deceased was not murd6r I but culpable homicide punishable under section 304-I, P.P. C. I am also of the view that the appellants had caused injuries to the 3 injured P.Ws. under such circumstances that if they by that act caused their death they would be guilty of culpable homicide not amounting to murder and that the appellants had committed the offences in furtherance of their common intention.

For what has been stated above, the conviction and sentences of the appellants under sections 302/34 and 307, P.P.C. are set J aside. Instead they are convicted under sections 304-1/34 and 308/34,

PPC and sentenced as under:-

1. U/S.304-1/34, P.P.C. to 10 years' R.I. each and a fina of Rs.5,000/- each or in default thereof 2 years' R.I. each.

It is directed that the fine if realized, half of the same be paid to the legal heirs of the deceased.

2. U/S.307/34, P.P.C. to 3 years' R.I. each and a fine of Rs.1,000/- each or in default thereof 6 months R.I. each.

It is directed that the fine if recovered, half of the same be paid to the injured witnesses equally. The sentences shall run concurrently. The appellants would also get benefit of the provisions of section 382-B, Cr.P.C. Resultantly the connected revisions are dismissed.

S.A./S-87/L Sentence altered.

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