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Criminal Appeals Nos. 135 and 153 and Murder Reference No. 98 of 1985, decided on 22nd March, 1986.

‑‑‑S. 302/324/34‑‑Prosecution and defence versions in juxtaposition‑ Place of occurrence, time of occurrence, presence of accused, presence of witnesses, receiving of injuries by deceased, two witnesses and one defence witness in occurrence, admitted facts‑‑Parties blaming each other for aggression and minimizing part played by them in occurrence‑ Prosecution witnesses not explaining injuries on persons of accused‑ Defence witness, injured in occurrence, not naming his assailant‑‑Both parties, held, had not come up with true story and by placing both versions in juxtaposition, Court would draw its own inference flowing from evidence and circumstances for safe administration of justice.

‑‑‑Ss. 302 & 324/34‑‑Right of private defence‑‑Motive, quarrel over hitting of van of accused with Tonga of deceased‑‑Incident of motive not denied‑‑No satisfactory evidence showing either party as aggressor‑‑Ten injuries on persons of deceased and prosecution witnesses‑‑Eight injuries on persons of accused‑‑Motive, double‑edged weapon providing cause of attack to both parties‑‑Both parties arming themselves in full expectation of conflict‑‑Held, it could not be said as to which of the parties acted in exercise of‑right of private defence and irresistible conclusion would be that each party knowingly and deliberately took upon itself risk of encounter, thus case was clearly of free fight amounting to culpable homicide punishable under S.304, Part II.

‑‑‑Ss. 302 & 324/34‑‑Nature of offence‑‑Witnesses clearly attributing fatal injury to one accused‑‑Defence witness not rebutting it‑‑Second accused attributed simple injury to witness‑‑Accused causing fatal injury, held, guilty of offence under S. 304, Part II, P.P.C. and accused causing simple injury to witness, guilty of offence under S. 324, P.P.C. in circumstances.

M.B. Zaman for Appellant. Pervaiz Alamgir for the State.

Noor Alam Qureshi for the Complainant.

Date of hearing: 22nd March, 1986.

.‑‑These two Criminal Appeals Nos. 135 of 1985 by Muhammad Arif and 153 of 1985 by Muhammad Ashraf appellants and the connected Murder Reference No. 98 of 1985 arise from the judgment of learned Additional Sessions Judge, Lahore, whereby he on 13‑2‑1985, while acquitting Najam co‑accused, convicted Muhammad Arif appellant under section 302, P.P.C. for causing the death of Muhammad Bashir (30) and sentenced him to death and a fine of Rs 10,000 or in default thereof two years' R.I. with the direction that the fine when recovered be paid to the legal heirs of the deceased. Muhammad Ashraf appellant was convicted under section 324, P.P.C for causing injuries to Muhammad Nazir P.W.9 and sentenced to one year's R.I. and a fine of Rs.500 in default thereof further R.I. for one month. We propose to dispose of them through single judgment.

2. The occurrence took place on 12‑2‑1984 at about 9‑45 a.m. on Post Office Road, near Chowk Neelam Cinema, Lahore at a distance of two Furlongs from P.S. Misri Shah, Lahore. The F.I.R. Exh.P.K. was lodged by Muhammad Nazir P.W.9, brother of the deceased on the same day at 1‑45 p.m. and was recorded by Murawat Bari, S.I., P.W.11.

3. The motive as alleged by the prosecution was that at 9‑00 a. m. on the day of occurrence, Muhammad Nazir P.W.9 and his brother Muhammad Bashir deceased were loading passengers in their Tonga near Ikmoria Bridge, Lahore where a red Suzuki Pick Up driven by Najam, acquitted accused collided with Tonga over which there was an altercation between the parties, who grappled with each other and exchanged fist blows. The passengers, however, separated them. Najam, acquitted accused, while leaving threatened the deceased and the complainant that he will deal with them.

4. As for the main occurrence, it has been stated that after about 45 midutes of the aforesaid incident when Muhammad Bashir deceased and Muhammad Nazir P.W.9 were near Chowk Neelam Cinema and the passengers were alighting from their Tonga, the acquitted accused Najam driving the same red Suzuki Pick‑Up reached there. He was accompanied by Muhammad Arif and Muhammad Ashraf appellants. Najam acquitted accused was carrying a Danda. Muhammad Arif was armed with a dagger. Muhammad Ashraf appellant was having a Danda in his hand. Najam co‑accused, raised Lalkara that the deceased and the complainant be caught hold of and done to death. Najam, then, took Bashir deceased in his 'Jappha'. Arif appellant inflicted a dagger blow on the chest of Bashir who fell down on the ground. Muhammad Ashraf appellant gave Danda blows to Muhammad Nazir P.W. 9 causing injuries on his arms and back of chest. The alarm raised by the complainant and others, attracted Muhammad Bashir P.W. 8, Muhammad Anwar (not produced) and Muhammad Iqbal D.W.1 to the spot. When Muhammad Iqbal went ahead, Arif appellant gave him dagger blow on his right thigh. At this juncture, Muhammad Bashir and Muhammad Nazir P.W.9 apprehended Muhammad Arif who threw away his dagger which was picked up by Najam co‑accused. Leaving Muhammad Arif appellant in the custody of the P.Ws. Najam drove away his Suzuki taking Muhammad Ashraf with him. Thereafter, Muhammad Nazir P.W.9 took his brother Muhammad Bashir in injured condition to Mayo Hospital but he died on way to hospital. Leaving the dead body in the Emergency Ward of the hospital Muhammad Nazir went to the police station to lodge report.

5. Dr. Zaheer Anjum Sherazi, P. W.7 conducted post‑mortem examination on the dead body of Muhammad Bashir on 13‑2‑1984. He found following injuries:‑--

(1) Ecliptical shaped incised wound 3 c.m. x 8 c.m., 4 c.m. lateral to mid line and 5 c.m. medial to left nipple over left chest in the vicinity of third left intercostal space.

(2) Abrasion 1.5 c.m. x .3 c.m. x 12 c.m. below sternal notch.

(3) Angular abrasion each limb measuring 8 c.m. in length, 1 c.m. lateral to injury No.2.

(4) An abrasion .5 c.m. long over proximal interphalangeal joint of left ring finger.

In his opinion, the death had occurred due to shock and haemorrhage as a result of injuries to the vital organ. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Injury No. 1 was caused with sharp‑edged weapon and the rest were caused by blunt weapon. The probable time between injuries and death was immediate and between death and post‑mortem was 24 hours.

6. Dr. Qamar‑ud‑Din P.W.10, medically examined Muhammad Nazir P.W.9 on 13‑2‑1984. He found following injuries:‑---

(1) Contusion on other lower left arm 7 x 3 c.m.

(2) Contused swelling back mid right fore‑arm 6 x 4 c.m.

(3) Laceration on inner aspect of right side of lower lip 1.5 x 1 c. m.

(4) Contusion on back of lower chest in the centre 10 x 1 c. m.

(5) Abrasion on back of lower abdomen on left side 7 x 1 c.m.

The injuries were caused by blunt weapon and were simple in nature.

7. On the same day, he examined Muhammad Bashir P.W.8 and found following injuries:‑

(1) Abrasion on back of right index finger in the centre c.m. x c. m.

(2) Complain of pain in back.

The injuries were simple in nature and were caused by blunt weapon.

8. On the same day, he examined Muhammad Arif appellant and found following injuries on his person.

(1) Contused swelling on left perietal region 2 x 2 c.m.

(2) Abrasion on back of right fore‑arm lower half 11 x c.m.

(3) Abrasion on back of middle finger of right hand in the centre .2 x .2 c.m. on the proximal phalynx back .2 x .2 c.m. on outer aspect of middle finger 1 x .2 c.m.

(4) Multiple contused wound on back of chest 16 x 5 c.m. on left side of chest and left lower abdomen 25 x 7 c.m.

(5) Contusion on back of lower abdomen in the centre 4 x 2 c.m.

The injuries were caused by blunt weapon and were simple in nature.

9. On 12‑2‑1984 he had examined Muhammad Iqbal D.W. 1. He found following injury on his person:‑

"Incised wound on outer upper right thigh 2.5 x 1 c.m. corresponding cut is present on the Shalwar marked and initiated and handed over to police."

The injury was caused by sharp‑edged weapon and was simple in nature.

10. On 16‑2‑1984, the doctor examined Najam acquitted accused. He found following injuries on his person.

(1) Abrasion on right side of fore‑head .5 x .2 c.m.

(2) Multiple abrasion (scabbed) on bridge of nose 1 x .4 c.m.

(3) Abrasion on left nostral .8 x .2 c.m.

The injuries were caused by blunt weapon and were simple in nature. The probable duration of the injuries was 4 to b days.

11. Muhammad Arif appellant was apprehended on the spot and was produced before Murawat Bari P.W. 11 on the same day. Muhammad Ashraf appellant was arrested on 12‑2‑1984 by Murawat Bari S.I., P.W.11. Najam, acquitted accused was arrested on 15‑2‑1984 by the same S.I. On 17‑2‑1984, Muhammad Ashraf led to the recovery of Danda Exh.P.7 (not blood stained) from his house which was taken into possession vide memo. Exh.P.J. attested by Muhammad Bashir P.W.8 and Muhammad Anwar (not produced). On 15‑2‑1984 Najam, acquitted accused produced Danda Exh.P.5 (not blood stained) at the time of his arrest which was taken into possession vide memo. Exh . P. E. attested by Muhammad Siddiq P.W. and Muhammad Ismail (not produced). On 19‑2‑1984 Najam, acquitted accused led to the recovery of blood‑stained dagger Exh.P.6 from the heap of 'Bajri', which was taken into possession vide memo. Exh.P.F. attested by the same witnesses. Murawat Bari, S.I., P.W.11 prepared the memoranda. The Serologist Report Exh.P.2 reveals that dagger Exh.P.6 was stained with human blood.

12. To prove its case, prosecution examined 11 witnesses. Muhammad Bashir P.W.8 and Muhammad Nazir P.W.9 have given the ocular account of the occurrence. They claim to have seen Muhammad Arif inflicting dagger blow on the chest of Muhammad Bashir resulting in his death. They also claim to have seen Muhammad Ashraf causing injury to the complainant. Muhammad Siddiq P.W.6 has supported the recovery of dagger Exh.P.6 and Danda Exh.P.5 from Najam acquitted accused and recovery of Danda Exh.P.8 from Muhammad Ashraf appellant. Dr. Zaheer Anjum Sherazi P.W.7 has proved the post‑mortem report of Muhammad Bashir deceased. Dr. Qamar‑ud‑Din P.W.10 has proved the medico‑legal reports pertaining to Muhammad Bashir and Muhammad Nazir P.Ws. Muhammad Iqbal D.W. and the two accused namely Muhammad Arif and Najam. Muhammad Nazir has also deposed about the incident of motive. The rest of the evidence is more or less of formal nature.

13. When examined under section 342, Cr.P.C. Muhammad Ashraf appellant denied all the incriminating circumstances. He raised the plea of false implication. Muhammad Arif appellant and Najam, acquitted accused while admitting their participation in the occurrence, pleaded the right of self‑defence of person. In reply to the question, "Why this‑case against you " Muhammad Arif stated:

"On the day of occurrence I and my brother Najam were going towards our house on this Suzuki Van and due to the rush my Suzuki hit the Tonga of Nazir P.W. who abused me and I caught hold of him and gave him fist and kicks blows then he drove away the Tonga towards Misri Shah by extending threats to us. Within few minutes when we reached Chowk Neelam Cinema on the same Suzuki Van we were waylaid by Nazir P. W. Bashir deceased and other Tonga drivers by putting the Tonga in front of our Suzuki and we were forced to get down from our Suzuki. Bashir deceased was armed with stick and he started giving me stick blows and his companions also started belabouring me and my brother Najam Butt. My condition became precarious whereupon my brother Najam Butt immediately ran towards a butcher's nearby shop and immediately picked up a Chhuri from there and gave a single Chhuri blow to Bashir deceased in order to save my life from him and to save his own life from the complainant party. As a result of which Bashir deceased fell on the ground and then scuffle started and during the scuffle my brother and some persons from the complainant side received minor injuries. My brother Najam Butt threw the Chhuri at the spot and ran away in the said Suzuki to inform the police and I fell on the ground unconscious. When I regained consciousness I was in the police station. Ashraf accused is not known to us."

Najam co‑accused adopted the aforesaid statement of Arif appellant. In defence 3 witnesses were produced. Muhammad Iqbal D.W. 1 stated that at the eventful time Muhammad Bashir deceased, Muhammad Nazir P.W. and Muhammad Anwar were standing in front of Shalimar Hotel situated in Chowk Neelam Cinema. Muhammad Arif appellant and Najam acquitted accused came there in a Suzuki Pick Up, red in colour driven by Muhammad Arif appellant. Muhammad Bashir deceased and others stopped Suzuki and dragged out Arif and Najam and started giving them fist blows and Danda blows. Najam ran towards a butcher shop and took a Chhuri from there. At that time Arif was being beaten by Muhammad Bashir deceased and Muhammad Nazir P.W. Najam gave a Chhuri blow to Muhammad Bashir deceased in order to save Muhammad Arif appellant. Muhammad Bashir fell down. Najam threw away Chhuri on the spot. He ran towards his Suzuki Pick Up and drove away the same. The witness stated that about 50/100 people had gathered there When someone was picking up the Chhuri, it hit him on his thigh After about 15 minutes the police came there and removed. Bashir to the hospital. Muhammad Arif appellant was removed to the police station. The witness stated that he was medically examined. The witness further stated that Najam and Arif had no arm with them when they were dragged out of the Suzuki Pick Up. Shah Jehan D.W.2 deposed about the first incident i.e. the motive part of the prosecution case. He stated that on the day of occurrence at about 8/9 a.m., he was sitting on a Tonga near Ikmoria Bridge. A Suzuki Pick Up red in colour came there driven by Najam co‑accused. Arif appellant was sitting with him The Suzuki hit that Tonga. The Tonga driver got down and pulled out Najam accused from his Suzuki and started giving him fist blows. On this Muhammad Arif appellant came out of the Suzuki and gave beating to the Tonga driver At that time the Tonga driver had .declared that:

"Nobody can dare to raise his head before us we will teach you a lesson."

Muhammad Ejaz Chaudhary, D.W. 3 stated that at the eventful time, he saw Muhammad Bashir deceased, Muhammad Nazir, complainant and Muhammad Anwar giving Danda blows to Najam co‑accused and Muhammad Arif appellant, Najam co‑accused ran towards the nearby shop of a butcher, brought Chhuri and gave Chhuri blow to Muhammad Bashir who at that time was causing injuries to Arif by laying him on the ground. Najam then threw Chhuri on the ground and drove away his Suzuki Pick Up. Thereafter, the police arrived at the place of occurrence and removed Arif to the police station and Bashir was sent to the hospital.

14. Learned counsel for the appellant contended that the prosecution has not been able to prove its case against the appellants beyond reasonable doubts; that the eye‑witnesses are not reliable; that the recovery of the weapons from Najam and Muhammad Ashraf is of no consequence; that the deceased and Muhammad Nazir P.W. were the aggressor and that Najam acquitted accused alone had caused the death of Muhammad Bashir in exercise of the right of self‑defence. Conversely, the learned counsel for the State has supported the judgment of the trial Court. He maintained that the eye‑witnesses are quite independent; that by the fact of injuries on the person of Muhammad Nazir and Muhammad Bashir P.Ws. their presence at the time of occurrence is very much established and that the appellants having opened the attack were the aggressors.

15. We have attended to the arguments advanced by the learned counsel for the parties carefully and have appreciated the two versions of the occurrence stated by the parties in accordance with the guide‑lines given by the superior Courts in this behalf. We find that the place of occurrence, the time of occurrence, the presence of Muhammad Arif appellant and Najam, acquitted accused, presence of Muhammad Bashir P.W.8 and Muhammad Nazir P.W.9 and receiving of the injuries by Muhammad Bashir deceased, the two P.Ws. namely, Muhammad Bashir P.W.8 and Muhammad Nazir P.W.9, Muhammad Iqbal D.W.1 Muhammad Arif appellant and Najam acquitted accused, in the occurrence, are admitted or proved facts of the case. It is the manner in which the occurrence took place which is in dispute. The parties have thrown' the blame of aggression on each other and claim to be the aggressee, so we have reviewed the entire evidence that has been produced by the prosecution and the defence and also the statements made by the appellants under section 342, Cr. P. C . and the attending circumstance, placing them in juxta‑position. We feel that parties, as usual, have not' come out with true story. Each party has tried to minimize the part played by it, in the occurrence. Although there were 8 injuries on the person of Muhammad Arif and Najam caused by blunt weapon yet the eye‑witnesses did not explain the same satisfactorily. Muhammad Iqbal D.W.1, who was originally a prosecution witness and had received injury during the occurrence has also not stated the whole truth. It was a day time occurrence and the sharp‑edged injury with dagger was caused to him from close on his thigh yet he did not disclose the name of his assailant. So, for the safe administration of justice, we have to draw our own inferences flowing from evidence and circumstances. The alleged motive has almost been admitted by Muhammad Arif appellant and Najam, acquitted accused. The complainant and the deceased were Tonga Drivers whereas Muhammad Arif appellant and Najam were wagon drivers. Only 45 minutes before the main occurrence, the Suzuki Pick Up driven by Najam acquitted accused and collided with Tonga of the deceased and the complainant which led to an altercation, grappling and exchange of fist blows between the parties. This incident is not denied by the appellant. We feel that this incident was a double‑edge weapon and could provide motive for attack and for taking revenge to the complainant party as well as to the two accused persons. The presence of 10 injuries on the deceased, Muhammad Bashir P.W.8 and Muhammad Nazir P.W.9 and of 8 injuries on the person of Muhammad Arif appellant and Najam, acquitted accused, indicates that the parties had armed themselves before the occurrence and were prepared to fight. There is no satisfactory evidence on record that either party was the aggressor. The natural flow of the circumstances gives rise to irresistible conclusion that both of the parties wanted to take revenge of the motive incident and for that purpose they armed themselves in full expectation of an armed conflict, therefore, 'judging from their acts and conduct, it may safely be said that each party anticipated resistance from the other and were determined to have a trial of strength. So, it is not possible to say as to which of the parties was acting in exercise of right of private defence of person. In such circumstances it has always been reasonable to infer that in entering upon that conflict, each party knowingly and deliberately took upon itself, the risk of encounter and as such, the question of the right of private defence did not arise and it was clear case of free fight covered by exception 4 to section 300, P.P.C. So, the offence of causing the death of Muhammad Bashir was not a murder but culpable homicide punishable under section 304‑II, P. P. C.

16. Now, we proceed to consider the nature of offence committed by the appellants. The two eye‑witnesses namely, Muhammad Bashir P.W.8 and Muhammad Nazir P.W.9 have consistently stated that the solitary fatal injury was inflicted by Muhammad Arif appellant with his dagger and that Muhammad Ashraf had caused injuries to Muhammad Nazir P.W.9. We do not see any reason to disbelieve the part attributed by the two eye‑witnesses to Muhammad Arif and Muhammad Ashraf appellants. The defence evidence being not reliable does not rebut the part attributed by the eye‑witnesses to the appellants. The submissions made by the learned counsel for the appellants do not carry any weight. It seems to us that Muhammad Arif appellant had committed offence punishable under section 304‑II , P.P.C. and Muhammad Ashraf was guilty of offence punishable under section 324, P.P.C. It may be noted that Muhammad Ashraf was not convicted by the trial Court for the murder of Muhammad Bashir. He was convicted under section 324, P. P. C. for causing injuries to Muhammad Nazir P.W.

17. The upshot of the above discussion is that the conviction and sentence of Muhammad Arif under section 302, P.P.C. is set aside and instead he is convicted under section 304‑II, P.P.C. and sentenced to 10 years' R.I. and a fine of Rs.10,000 or in default thereof two years' R.I. It is directed that the fine, if recovered, be paid to the legal heirs of Muhammad Bashir deceased. Since Muhammad Ashraf remained in jail as an under trial prisoner and also for some time after his conviction, therefore, the sentence already undergone by him would meet the case.

S. A./M‑1/L Conviction /sentence altered.

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