1994 P Cr (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This judgment shall dispose of Murder Reference No. 260 of 1991, Criminal Appeal No. 549 of 1991, Criminal Appeal No. 357 of 1991 and Criminal Revision No. 208 of 1992.

2. Moti Muhammad son of Hashmat, Muhammad Zafar son of Sardar Muhammad, Malik Muhammad alias Kala son of Faqeer Muhammad, Malik Muhammad son of Nizam, Muhammad Yousaf son of Duna, Fazal Muhammad alias Kaka son of Hashmat, Gaman son of Daula, Boota son of Sardara, Iqbal son of Jhanda appellants in Criminal Appeal No.549 of 1991 alongwith Abdul Ghafoor son of Fazal Muhammad, Manzoor son of Sardar Muhammad, Niaz son of Wali Muhammad; Sikandar son of Moti, Hafiz Mehr Ali son of Ali Muhammad, Dost Muhammad son of Faqir Muhammad respondents in Criminal Revision No.208 of 1992 faced the trial under section 302/307/148/149 read with section 109, P.P.C. for the allegation of committing the murder of Muhammad Sultan son of Abdul Ghafoor and for murderous assault on Muhammad Iqbal, Malik Muhammad son of Wali Muhammad, Khushi Muhammad and Manzoor Hussain P.Ws. The learned Sessions Judge, Vehari vide his judgment, dated 22-5-1991 convicted and sentenced the appellants as under:-- (i) Moti Muhammad: Death sentence under section 302, P.P.C. for causing death of Sultan Muhammad deceased with a fine of Rs.10,000 and in default of the payment of fine to undergo R.I. for three years. He was also directed to pay ks.10,000 as compensation to the legal heirs of the deceased and in default of the payment of compensation to undergo R.I. for six months. He was acquitted of the remaining charges. (ii) Muhammad Zafar: Convicted under section 307, P.P.C. for causing injuries to Manzoor ul-Hassan, Muhammad Iqbal and Malik Muhammad P.Ws. and sentenced to 10 years' R.I. with a fine of Rs.10,000 and in default of payment of fine to undergo R.I. for two years. He was also directed to pay compensation to Manzoor-ul-Hassan, Muhammad Iqbal and Malik Muhammad injured witnesses in equal share, and in default of the payment of compensation to undergo R.I. for six months. He was acquitted of the remaining charges. (iii) Malik Muhammad alias Kala son of Fagir Muhammad and Malik Muhammad son of Nizam appellants. For causing murderous assault on Muhammad Iqbal, both were convicted under section 307, P.P.C. and sentenced to four years' R.I. each with a fine of Rs.2,000 each and in default of the payment of fine to undergo R.I. for one year each. They were directed to pay compensation of Rs.2,000 each to Muhammad 1qbal, and in default of the payment of compensation to undergo imprisonment for six months each. The, were acquitted of the remaining charges. (iv) Muhammad Yousaf. Fazal alias Kaka and Gaman appellants. For causing injuries to Malik Muhammad son of Wali, they were convicted under section 307 read with section 149, P.P.C. and were sentenced to R.I. for four years with a fine of Rs.2,000 each and in default of the payment of fine to undergo R.I. for one year each. They were also directed to pay compensation of Rs.2,000 each to Malik Muhammad injured witnesses, in default of the payment of " compensation to undergo R.I. for six months each. (v) Muhammad Boota and Iqbal. For causing injuries to Khushi Muhammad P.W., they were convicted under section 307 read with section 149, P.P.C. and were sentenced to R.I. for four years with a fine of Rs.2,000 and in default of the payment of fine to undergo R.I. for one year each. They were also ordered to pay Rs.2,000 each to Khushi Muhammad and in default of the payment of compensation to undergo R.I. for six months each. All the convicts were acquitted of the charges under section 148, P.P.C. Hafiz Mehr Ali, Dost Muhammad, Sikandar, Abdul Ghafoor, Niaz and Muhammad Shafi accused were acquitted of all the charges giving them the benefit of doubt. The State has preferred appeal against all the accused except Moti Muhammad against their acquittal under the different charges and a notice was accordingly issued. The criminal revision filed by Muhammad 1qbal was ordered to be heard alongwith Criminal Appeal No.549 of 1991. The learned Sessions Judge also made reference to this Court for the confirmation of the death sentence awarded to Moti Muhammad appellant.

3. The relevant facts as contained in the F.I.R. Exh.P.C. lodged by Muhammad Iqbal son of Fateh Muhammad and recorded by Rajan Sher S.I. Police Post Machhiwal, District Vehari are that Muhammad Iqbal complainant and his nephew Muhammad Sultan deceased were going towards their land on a bullock-cart to fetch fodder and when they reached near the Sugarcane crop of one Sardar Muhammad, Moti Muhammad armed with .7 mm rifle, Malik Muhammad alias Kala son of Faqir Muhammad, Mali k Muhammad son of Nizam with hatchets, Manzoor and Muhammad War with .12 bore guns, Niaz, Muhammad Yousaf, Fazal Muhammad, Gaman, Boota, Muhammad Iqbal, Muhammad Shafi (since dead), Sikandar and Abdul Ghafoor armed with Sota suddenly emerged. Sikandar. Abdul Ghafoor and Muhammad Shari raised Lalkara not to spare the complainant who was armed with Gandasa and Muhammad Sultan deceased with a .12 bore licensed gun. The complainant and the deceased in order to save their lives made an attempt to run towards their houses but the accused did not allow them and on their alarm, Malik Muhammad son of Wali Muhammad with Sota, Abdul Khaliq with .12 bore shot gun, Khushi Muhammad and Manzoor-ul-Hassan with sticks reached at the spot. Manzoor Ahmad and Muhammad Zafar accused fired shots causing injury to Malik Muhammad son of Wali Muhammad and Manzoor-ul-Hassan P.Ws. Muhammad Yousaf, Fazal Muhammad alias Kaka and Gaman accused caused injuries to Malik Muhammad P.W. Boota and Iqbal accused caused injuries with Sotas to Khushi Muhammad whereas Sikandar and Abdul Khaliq accused snatched his licensed gun and Moti Muhammad accused fired at Muhammad Sultan deceased causing injury on his tample. The deceased succumbed to the injuries at the spot. The complainant in exercise of his private defence caused injuries to Moti Muhammad and Malik Muhammad with Gandasa whereas Malik Muhammad son of Wali Muhammad P.W. caused Lathi blows to Moti and Malik Muhammad son of Nizam accused. Muhammad Yousaf, Fazal, Gaman dealt with Sota blows to Malik Muhammad son of Wali Muhammad P.W. Boota and Iqbal caused Sota blows to Khushi Muhammad. Malik Muhammad alias Kaka, Malik Muhammad son of Nizam and Niaz accused caused injuries to complainant with their respective weapons. Sikandar accused picking up the gun of Muhammad Sultan deceased struck it on the ground breaking its butt, The accused after causing injuries to the P.Ws. and Sultan deceased run towards their house.

4. The motive for the occurrence was that on 26-8-1988, there was an exchange of hot words between Muhammad Zafar accused and Manzoor-ul- Hassan P.Ws. over the rash driving of tractor by Muhammad Zafar as a result of which the buffalos belonging to Muhammad Yaqoob got scattered. Manzoor-ul-Hassan gave a blow to Muhammad War with Munni. However, Muhammad Yaqoob and Bashir Ahmad P.Ws. patched up the matter for the time being but Muhammad Zafar feeling it badly was not ready to pocket the insult. Muhammad Ismail son of Sher Muhammad and Muhammad Ismail son of Fazal Muhammad relatives of the parties on coming to know about this situation made serious efforts to settle down the issue but Hafiz Mehr Ali and Dost Ali extended threat to take revenge from the complainant side.

5. Rajan Sher, S.I. after recording the statement of the complainant went to the spot and prepared inquest report Exh.P.E. and injury statement Exh.P.G. of Sultan Mehmood deceased. The injury statement Exh.P.H. of Malik son of Wali Muhammad, injury statement Exh.P.J. of Khushi Muhammad, injury, statement Exh.P.K. of Manzoor-ul-Hassan, injury statement Exh.P.L. of Moti and injury statement of Malik Muhammad son of Nizam were prepared by him. He secured blood-stained earth from the spot vide memo. Exh.P.F. and made it into a sealed parcel. He also took into possession: four empties from the spot vide recovery memo. Exh.P.G.

6. Doctor Masud Nisar Rana, Medical Officer, P.W.7 conducted the post-mortem examination on the dead body of Sultan deceased on 28-8-1988 at 7 am. and. found the following injuries on his person:-- (1) A lacerated fire-arm wound 5 c.m. x 4 c.m. bone deep through and through on the left cheek. The lower jaw and left maxilla were fractured. The edges of the wound were inverted and blackened and charged. (2) A lacerated wound 3 c.m. x 2 c.m. on the angle of the right mandible communicating with injury No.1. The edges of the wound were everted. The jaw on the right side was fractured. Death in the opinion of the doctor was due to shock and haemorrhage as a result of fire-arm injuries sustained by the deceased which were sufficient to cause death in the ordinary course of nature. He on the same day also medically examined Malik Muhammad son of Wali and found the following injuries on his person:-- (1) A lacerated wound 3 c.m. x 1/2 c.m. on scalp deep on the left side of head. (2) A fire-arm wound 1/2 c.m. x 1/2 c.m. x scalp deep on the back of head with swelling around. (3) A lacerated wound 4 c.m. x 1/2 c.m. x scalp deep on the back and left side of head. (4) An abrasion 1 c.m. x 1/2 c.m. on the back of left ear. (5) An abrasion 0.5 c.m. on the top of left ear's pinna. (6) A contusion 5 c.m. x 1 c.m. on the lateral side of left upper arm. (7) A contusion 5 c.m. x 2 c.m. on the back of left shoulder. (8) A contusion 25 c.m. x 2 c.m. on the back of chest including right and left sides. (9) A contusion 10 c.m. x 3 cm. on the back and lower part of left chest. Injury No.2 was caused by fire-arm and the remaining injuries were of blunt weapon. The medical examination of Khushi Muhammad revealed the following injuries on his person:-- (1) A lacerated wound 3 c.m. x 1/2 c.m. on the back and top of the head. (2) A lacerated wound 1 c.m. x 1/2 c.m. on the back and right side of the head. (3) A contusion 8 c.m. x 4 c.m. on the back and middle of left forearm. (4) A contusion 3 c.m. x 4 c.m. on the front and middle of left thigh. (5) Multiple contusions over the back and right shoulder in an area of 10 c.m. x 5 c.m. (6) A contusion 10 c.m. x 3 c.m. on the back of left shoulder. (7) A contusion 4 c.m. x 2 c.m. on the back of left renal angle area. The injuries were simple in nature caused with blunt weapon. On the same day the same doctor examined Manzoor-ul-Hassan injured who sustained the following injuries:-- (1) A pellet wound 3 c.m. in diameter on the inner side of left eyebrow. (2) Multiple fire-arm pellet wounds on the left upper arm from shoulder to elbow, .3 c.m. in diameter each. (3) Multiple pellet wounds on the back and upper part of left fire-arm below the elbow. (4) Multiple fire-arm pellet wounds in an area of 30 c.m. x 15 c.m. on the back and lateral side of left chest as well as left renal area, (5) Four fire-arm wounds in an area of 15 c.m. x 10 c.m. on the back and lower part of right chest. (6) Two fire-arm wounds on the back of left buttock. (7) Fire-arm wounds on the back and lower part of left upper arm. (8) Three fire-arm pellet wounds on the inner and upper part of right forearm. The injuries were caused with fire-arm. Malik Muhammad son of Nizam was also examined on the same day who was found injured in the following manner:-- (1) A lacerated wound 6 c.m. x 1/2 c.m. x scalp deep on the right side of the head, 7 c.m. above the right ear. (2) An incised wound 3 c.m. x 1 c.m. x bone deep on the base of index finger of left hand. (3) An abrasion 2 c.m. x 1 c.m. on the back of left shoulder. The injuries were simple in nature caused with blunt and sharp-edged weapon. He also examined Moti Muhammad appellant on the same day at 3 p.m. and found the following injuries on his person:-- (1) An incised wound 6 c.m. x 1.5 c.m. x bone deep on the back and right side of neck. (2) An abrasion 3 c.m. x 2 c.m. over the right -ear on the head with swelling beneath it. (3) An abrasion on the top of right hand little finger. Injury No.1 was caused with sharp-edged weapon while injuries Nos.2 and 3 with blunt weapon. The medical examination of Muhammad Iqbal son of Fateh Muhammad revealed the following injuries on his person:-- (1) An incised wound 2.5 c.m. x 1/2 c.m. x skin deep on the middle and front of head. (2) A lacerated wound 2 c.m. x 1/2 c.m. x scalp deep on the left side of injury No.1. (3) An incised wound 3 c.m. x 1/2 c.m. x bone deep on the back and top of head. (4) An abrasion 2 c.m. x 1/2 c.m. on the left side of head. (5) Three fire-arm pellet wounds on the lateral side of the left upper arm, each measuring .3 c.m. in diameter. (6) Multiple fire-arm pellet wounds on the lateral side of left forearm. (7) A fire-arm pellet wound .3 c.m. in diameter on the dorsum of right thumb. (8) An incised wound 2 c.m. x 1/2 c.m. x bone deep on the dorsum of left hand. (9) An abrasion 2 c.m. x 1/2 c.m. on the dorsum of left thumb. (10) A fire-arm pellet wound .3 c.m. on the dorsum of right finger. (11) Two fire-arm pellet wounds each .3 c.m. in diameter on the lateral side of left buttock. Injuries Nos.1, 3 and 8 were caused with sharp-edged weapon whereas 2, 4 and 9 were of blunt weapon and injuries Nos.5, 6, 7,10 and 11 were caused with fire-arm. All the injuries were simple in nature.

7. Malik Muhammad alias kala produced hatchet P.11 before the Investigating Officer on 2-9-1988 which was taken into possession vide memo. Exh.P.S. Gaman, Niaz, Muhammad Yousaf, Fazal Muhammad alias Kaka, Boota and Muhammad Iqbal produced Sotas before the Investigating Officer on the same day which were taken into possession vide memo. Exhs.P.T., P.U., P.V., P.W., P.X. and P.Y., respectively. Sikandar produced his stick P.25 before the Investigating Officer on 3-9-1988 which was taken into possession vide memo. Exh.P.Z. He also led to the recovery of .12 bore shot gun P.27 which he allegedly snatched from Abdul Khaliq P.W. at the time of occurrence and the same was taken into possession vide memo. Exh.PA. Abdul Ghafoor accused while in custody led to the recovery of broken gun P.28 of Muhammad Sultan deceased on 3-9-1988 which was taken into possession vide memo. Exh.P.BB. He also produced stick P.26 before the Investigating Officer which was taken into possession vide memo. Exh.P.C. Malik Muhammad son of Nizam led to the recovery of hatchet P.1 which was taken into possession vide memo. Exh.P.EE. Moti accused led to the recovery of .7 mm rifle P.2 with licence which was taken into possession vide recovery memo. Exh.P.GG. Abdul Khaliq P.W. produced .12 bore licensed shot gun which was taken into possession vide memo. Exh.P.HH. Muhammad Ismail paternal-uncle of Sultan Muhammad deceased produced licence P.4 of the shot gun belonging to Muhammad Sultan deceased which was taken into possession vide memo. Exh.PJJ. Muhammad Shafi accused died before the commencement of the trial. After completion of the investigation, all the accused were challaned to face the trial.

8. The prosecution case rests on the evidence of Muhammad Iqbal complainant P.W.8, Malik Muhammad son of Wali Muhammad P.W.9, Khushi Muhammad son bf Shafi Muhammad P.W.10, Manzoor-ul-Hassan P.W.11, the injured witnesses of the occurrence. In addition to the eye-witnesses, and apart from the formal witnesses the prosecution examined doctor Masaud Nisar Rana P.W.7 who conducted the post-mortem examination on the dead body of Sultan Ahmad and medically examined the injured P.Ws. and the accused. Muhammad Hussain son of Farzand Ali P.W.14, Muhammad Ismail P.W.15, Muhammad Yousaf P.W:16, Muhammad Bakhsh each .P.W.13 and Bashir son of Nathu P.W.17 are the witnesses of the recoveries. Bashir Ahmad P.W.17 also deposed on the motive part of the prosecution story. The prosecution after placing on record the report of Chemical Examiner Exh.P.XX. and that of Serologist Exh.P.YY. closed the prosecution case.

9. All the accused pleaded not guilty denying the prosecution allegation. Moti Muhammad made the following statement under section 342, Cr.P.C. "I alongwith Malik Muhammad son of Nizam Din were irrigating our field in Killa No.18, Square No.37 from the Tube-well, situated in Killa No.23, Square No.36 which is jointly owned by Qadir Bakhsh and us on our turn of water which started on Saturday at 3-00 p.m. and concluded on 12-00 noon. We were present near the Tube-well in Killa No.18 of Square No.36 when we were attacked by Sultan deceased Iqbal, Manzoor-ul-Hassan, Khushi Muhammad, Malik Muhammad son of Wali Muhammad and their companions when they were armed with guns, Gandasa and hatchets. I and Malik Muhammad son of Nizam Din my co-accused were injured at their hands and on the alarm raised by us, people from the Village collected from both sides and in the fight in a melee the deceased and the above P.Ws. received injuries. I was not holding any rifle at the time of the occurrence nor did I use the same. My co-accused present in the Court, were also not present there except. Malik Muhammad son of Nizam. The complainant party concocted this false case against me and my co-accused. They were in fact the aggressors because on 26-8-1988 Zafar co-accused being son of Sardar Muhammad, Lambardar fixed the duties of the complainant party for Thikri Pehra and sent the register for information through the Village Chaukidar Manzoor-ul-Hassan P.W. instead of complying with the direction, insulted the Chaukidar who informed Zafar and on this Zafar abused and slapped Manzoor-ul-Haq P.W. To evenge that insult the present attack on 28-8-1988 was mounted by the complainant party on us."

10. Muhammad Iqbal complainant P.W.8 who is an injured witness of the occurrence reiterated the facts stated by him in the F.I.R. Exh.P.C. without any material improvement. According to him he with a Gandasa and Sultan Ahmad deceased having a .12 bore shotgun with him were encountered by the appellants armed with deadly weapons. The shot fired by Mod hit Sultan deceased on tample who died at the spot and the complainant caused Gandasa blows in his defence to Mod and Malik Muhammad son of Nizam. The motive furnished by this witness was the exchange of hot words between Manzoor-ul- Hassan P.W. and Muhammad Zafar accused two days earlier when Manzoor ul-Hassan P.W. advised Muhammad Zafar to drive the tractor slowly so that the cattle may not scattered. It is also in the evidence that Ismail son of Fateh Muhammad and Ismail son of Sher Muhammad made an attempt to settle the issue between the parties because of the incident of quarrel between Mehmood-ul-Hassan and Zafar. He admitted that during the days of occurrence "Theekri Pehra" was arranged in the village and Sardara, Lambardar father of Zafar had to depute the persons to perform the duty at "Theekri Pehra" in rotation. Bakhtawar, Chowkidar had to maintain a register obtaining the thumb-impression of the persons who were to be deputed at Theekri Pehra. He however, denied that Bashir, Bakhsheesh and Manzoor-ul- Hassan son of the complainant refused to accept to their thumb-impression on the register by giving slaps to Bakhtawar four days earlier to the occurrence and also denied that Manzoor and Zafar accused sons of Sardara, Lambardar thereafter physically assaulted Manzoor-ul-Hassan P.W. for misbehaviour and insult to Bakhtawar, Chowkidar. He stated that Sultan deceased was accompanying the complainant at the time of occurrence for his safety and that he and Sultan deceased were carrying arms with the apprehension of clash due to the refusal of the accused party to accept apology tendered by them. He stated that the occurrence took place in Killa No.18 Square No.36 owned by Qadir Bakhsh, but he denied the suggestion that Malik Muhammad son of Fateh Nizam and Mott Muhammad appellants were irrigating their land from the tube-well situated in Square No.36 Killa No.23 adjoining to Killa No.18 when deceased and the injured P.Ws. armed with deadly weapons to avenge the insult of Manzoor-ul-Hassan attacked on them and that the complainant party and not the accused were the aggressor. He deposed that if the Gandasa blow would not have been caused by him, to-Mod Muhammad accused, he must have been fired at by Moti Muhammad who fired at Sultan Ahmad deceased from a distance of 1-1/2 Karam.

11. Malik Muhammad son of Wali Muhammad P.W.9 husband of niece of the complainant corroborating the testimony of Muhammad Iqbal complainant, deposed that on hearing hue and cry of the complainant and the deceased, he alongwith Manzoor-ul-Hassan and Khushi Muhammad who had a Soti and Abdul Khaliq having a shot gun reached at the spot and received injuries at the hands of accused in the occurrence. He narrating the facts of the prosecution case in detail as disclosed in the F.I.R. and given by P.W.8, stated in the cross-examination that he was at a distance of about 15 Karam from Muhammad Iqbal complainant. He has however, denied the suggestion that the complainant party being aggressor attacked on Moti Muhammad and War when they were irrigating the land. Khushi Muhammad P.W.10 "Khalazad" of Sultan Ahmad deceased an injured witness fully corroborated Muhammad Iqbal P.W.8 and Malik Muhammad P.W.9 on all material points. Manzoor-ul-Hassan P.W.11 another injured eye-witness supported the prosecution case with no contradiction and discrepancy to suggest even a slight doubt in favour of defence. According to him, Muhammad Iqbal, his father armed with Gandasa and Sultan Ahmad deceased armed with gun were being chased by the appellants armed with dead weapons when he run towards the place of occurrence which took place in Killa No.18 Square No.36. He while deposing on motive given by the prosecution narrated the story of his quarrel with Muhammad Zafar two days earlier to the occurrence and also admitted the arrangement of the Theekri Pehra in the village during the days of occurrence to be supervised by Sardara, Lambardar father of Manzoor and War accused with the assistance of Bakhtawar, Chawkidar with the responsibility of deputing persons in rotation at Theekri Pehra. He however, denied to have caused insult to Bakhtawar, Chawkidar and refused to perform the duty at Theekri Pehra for which War and Manzoor sons of Sardara, Lambardar gave him beating and in retaliation Moti Muhammad and Malik son of Nizam accused were dealt with by the complainant party when they were irrigating their land.

12. The occurrence in the present case is admitted by the parties with their own respective versions. Each party has given different motive of the occurrence to establish the aggression of his opponent. According to the prosecution two days earlier Mehmood-ul-Hassan P.W. and Muhammad War accused exchanged hot words with each other for driving tractor by Zafar accused with abnormal speed. On the other hand, the motive alleged by the defence was that Manzoor-ul-Hassan and Zafar accused sons of Sardara, Lambardar gave beating to Mehmood-ul-Hassan for his insulting the Bakhtawar, Chawkidar deputed by Sardara, Lambardar, their father to maintain register of Theekri Pehra. According to the prosecution version of the occurrence, Iqbal complainant father of Mehmood-ul-Hassan and Sultan deceased were attacked by the appellants when they were going to fetch fodder whereas according to the defence version Moti and Malik Muhammad son of Nazim accused were attacked by the complainant and the P.Ws. when they were irrigating their land. The deceased and the P.Ws. are closely related inter se and similarly all accused are closely linked with each other. It is an admitted fact that complainant, Sultan Ahmad deceased, Moti Muhammad and Malik accused had weapons with them and complainant stated that he and deceased were carrying arms with them expecting clash with the accused party and that deceased with gun was with him for his protection. The occurrence in the instant case had taken place in the land situated near the Abadi but no independent person from the village attracted to the spot probably for the reason not to involve himself in such like matters to avoid incur of displeasure of the parties.

12. The occurrence with material facts having been admitted, the sole question left for determination was as to whether the version given by the prosecution or one put by the defence was the correct picture of the occurrence. The prosecution having taken benefit of large number of injuries on the person of injured P.Ws. and the deceased pleading the annoyance of the accused over the earlier incident between Mehmood-ul-Hassan and Zafar accused made efforts to prove the aggression of the defence, whereas the defence taking advantage of the injuries sustained by the accused specially for the injuries caused to Moti Muhammad on his neck a very sensitive part of the body by the complainant with Gandasa pleaded causing of injuries to the complainant party in the exercise of their right of self-defence. Moti Muhammad received an incised wound 6 c.m. x 1.5 c.m. x bone deep on the back of right side of neck. This injury according to the complainant himself if not caused to Moti Muhammad, the complainant must have been fired at by Moti Muhammad who as per prosecution allegation, had already fired at Sultan Ahmad deceased. All the P.Ws. with no reservation admitted that they rushed to the spot on noticing the complainant and Sultan Ahmad deceased being chased by the appellants and thereafter both sides caused injuries to each other in the occurrence. Four persons on the side of the complainant were injured and one lost his life. On the other hand, Moti Muhammad, Muhammad Iqbal and Malik Muhammad son of Nizam appellants received injuries on very sensitive parts of the body. However, the number of injuries on the person of the deceased and P.Ws. were more to that of the accused persons. Three accused namely Moti Muhammad, Manzoor Ahmad and Zafar had fire-arms with them and the others were carrying hatchets and Sotas with them. On the other side, Sultan Ahmad deceased and Abdul Khaliq P.W. had guns with them whereas Muhammad Iqbal complainant had a Gandasa and the other witnesses with sticks with them. However, as per prosecution story of the F.I.R. and facts in evidence, the complainant party did not use fire-arm which fact is borne out from the medical evidence whereas on the other hand the accused making full use of the fire-arm attacked on the deceased and P.Ws. with fire arms. The motive, whether the quarrel between Mehmood-ul-Hassan and War accused or the dispute between the parties over the issue of performing duty at Theekri Pehra is not a factor to ascertain the correctness of the prosecution or defence version. Undoubtedly, the parties have no serious background of enmity or hatred against each other and only an issue took importance to be a prestige point, with the warning to each other to be prepared for clash. The facts in evidence with no doubt suggest that both parties expecting an unfortunate incident at any time were mentally and physically prepared to face the situation. The people in the villages in normal course of routine business do not keep arms with them but in the instant case, admittedly both sides apprehensive from each other all the time remained alert and armed to face the expected clash.

13. From the detailed analysis and the scrutiny of the evidence and the circumstances under which the occurrence took place, it can easily be ascertained that due to the extreme and impulse situation suddenly an expected quarrel took place between the parties resulting in injuries to the members of both sides. The mere fact that complainant side was looser and number of injuries were sustained by their members by itself is not a fact to determine the question of aggression. The facts of the case suggest that Moti Muhammad and Malik Muhammad of the accused side and Muhammad Iqbal and Sultan deceased of the complainant side initially clashed with each other. Mod Muhammad accused sustained injury at the hand of Muhammad Iqbal whereas the fire shot by Mod accused hit Sultan Ahmad deceased who unfortunately despite having gun with him could not protect himself. The remaining' members of both parties immediately thereafter rushed to the spot and caused injuries to each other. The accused party being large in number done more damage to their opponents. The prosecution as well as the defence withheld some material facts from placing on record to fix the whole responsibility of aggression of an individual party. The encounter probably was not planned or premeditated but each party having a constant fear of attack by the other side, on facing each other became active to deal with the situation.

13. While reviewing the entire evidence produced by the prosecution and the plea taken by the defence, the total responsibility of inviting trouble by an individual party cannot reasonably be put either on the accused or complainant party. The circumstances of the case do not prove the defence plea or the aggression of complainant party rather it being a free fight and a malee which undoubtedly was not an arranged occurrence of either party rather both sides under compelled circumstances were to participate in it, hence plea was not available to the appellants. .

14. It is common that in such like cases each party hesitates to bring the true facts on record to prove the aggression of his opponent. The prosecution has not brought satisfactory evidence to establish aggression of the accused to come to a definite conclusion to give verdict of the correctness of prosecution version or plausibility of defence plea what can hardly be said was that both sides armed with deadly weapons expecting a mishap at any moment entered into this clash causing injuries to each other. 15, The present case fulfilling all the necessary elements of free fight i.e. the preparation of the parties with some background of enmity or grudge against each other and looking for the opportunity to damage the opponent or the happening of something up towards suddenly between the parties, the each participant is burdened with liability of the act committed by him, the provisions of section 148/149, P.P.C. shall have no application.

15. Having come to the conclusion that it was a free fight between the parties, we proceed to consider the liability of the each appellant vis-a-vis the role played by him. Death of Sultan Ahmad deceased occurred during the course of fight between the parties and no unfair advantage appears to have been taken by Moti Muhammad accused who is attributed fire shot to the deceased to hold him guilty under section 302, P.P.C. The trial Court with confusion convicted him under section 302, P.P.C. and the remaining appellants under section 307, P.P.C. convicting all the accused under section 148, P.P.C. but at the same time for some misunderstanding and misconception section 149, P:P.C. was also applied. .

16. The pivotal question in the circumstances shall be whether Mod Muhammad accused is liable of committing culpable homicide amounting to murder or he is entitled to the benefit of exception 4 to section 300, P.P.C. The benefit of exception 4 to section 300, P.P.C. cannot be ordinarily denied on the ground that the act committed in a free fight was intentional, rather the benefit is extended subject to the fulfilment of the conditions and taking not undue advantage or acting in a cruel manner. The intention alone in absence of other essential conditions in such cases cannot be pressed for the application of section 302, P.P.C. In case of culpable homicide not amounting to murder, the act of causing death is either alone with the intention to cause death or knowledge. In the present case, the act of Moti appellant of causing fire shot at deceased was done by him with the intention to cause death but it having been done during the course of free fight with no undue advantage in a cruel manner, the case should fall within the purview of exception 4 to section 300, P.P.C. to be saddled with the responsibility of committing an offence under section 304, Part I, P.P.C.

17. We in the light of the foregoing discussion partly allow this appeal. The conviction of Moti Muhammad appellant under section 302, P.P.C. is altered to under section 304, Part I, P.P.C. His sentence is reduced to 10 years' R.I. maintaining the fine and compensation awarded to him by the learned trial Court. The entire fine, if realized, shall be paid as compensation to the legal heirs of the deceased. However, the appellant shall get benefit of section 382-B, Cr.P.C. subject to the payment of fine and compensation. The conviction of Muhammad Zafar and Manzoor Ahmad appellant is altered from section 307, P.P.C. to section 326, P.P.C. and their sentence is reduced to five years' R.I. with benefit of section 382-B, Cr.P.C. The sentence of fine and compensation awarded to them by the learned trial Court shall be maintained which if realized, shall be paid as compensation to the injured P.Ws. in equal share. The conviction of remaining appellants namely Malik Muhammad alias Kaka, Malik Muhammad son of Nizam, Muhammad Yousaf, Fazal alias Kaka, Gaman, Boota and Iqbal under section 307, P.P.C. is also altered to section 326, P.P.C. with redaction of sentence to four years' R.I. each maintaining the sentence of fine and compensation awarded to them by the learned trial Court with benefit of section 382-B, Cr.P.C. The fine and compensation, if recovered, shall be paid to the injured in equal share. The two Criminal Appeals stands disposed of in the above terms and the murder reference is Answered in the negative. The Criminal Revision also stands dismissed. The death sentence of Moti Muhammad is not confirmed. N.H.Q./M-1562/L Order accordingly.