1996 SCMR 112 (PLP)

(6)??????? A round superficial black wound on the back of right hand. (iii)?????? Muhammad Ashraf: (1)??????? Two lacerated wounds 5 x 4 cm. in size side by side on the middle of ??????????? head. (2)??????? A lacerated wound 4 cm. in size on right side of head anteriorly. (3)??????? An. abrasion 10 cm. long alongwith mark of bruises on the back of right shoulder. Other contusion 15 cm. long on the back of waist. (4)??????? A rounded wound 6‑1/2 cm. above the lateral to right nipple of chest. (5)??????? A rounded wound 3 cm. above the umbilicus on abdomen. (6) A rounded wound above the left knee alongwith abrasion on knee. (iv) Muhammad Sohna P W : (1)??????? Two oval wounds on the back of right forearm. There was swelling and tenderness of the upper part of the forearm. (2)??????? Two small abrasions on the inner side of left forearm. (3) Two abrasions on the right side of the chest. (v) Sanaullah accused: (1)??????? A lacerated wound 2 x 1/4 c.m. on the right side of head. (2)??????? A lacerated wound 3 c.m x 1 c.m on the middle of head. Both the injuries were simple in nature and had been caused with . blunt means. (vi)?????? Attaullah accused (1)??????? Two oval wounds on the back of the right shoulder. (2)??????? One lacerated wound in front of right shoulder Both the injuries were the result of firearm fracturing achromion of right scapula. (vii) Abdur Rasheed accused (1)??????? A lacerated wound 2 cm x 1 cm on the right temporal region. (2)??????? Three rounded wounds on the anterior lateral aspect of left lower ??????????? chest. (3)??????? An oval wound on left side of abdomen 6 cm away from the umbilicus. ??????????? Wound is superficial in nature. (4)??????? A penetrating rounded wound on outer aspect of left thigh. (5)??????? A penetrating rounded wound on front of right thigh.' (6)??????? A small oval wound on the left‑side of forehead. All the injuries had been of fire‑arm and were found simple. 9.???????? The appellants and the accused were convicted as under:‑‑ ? (i) Fazal Din, (ii) Amanat Ali, (iii) Karamat Ali, (iv) Abdur Rasheed, (v) Muhammad Ramzan, (vi) Sanaullah; (vii) Mansab Ali, (viii) Attaullah, and (ix) Iftikhar under sections 302/149, P.P.C. for causing the death of Sajwara deceased. Of them, Abdur Rahseed, Amanat and Mansab were sentenced to death subject to confirmation by the High Court and to pay a fine of.Rs.10,000 each or in default to undergo rigorous imprisonment for one year each. Fazal Din, Karamat Ali, Muhammad Ramzan, Sanaullah, Attaullah and Iftikhar were sentenced to imprisonment for life and a fine of Rs.10,000 each or in default to suffer rigorous imprisonment for one year each. Half of the amount, on realisation, was directed to be paid to the heirs of Sajwara deceased. Fazal Din and Muhammad Ramzan were further convicted under sections 302/149, P.P.C. for causing the death of Jaffar deceased and were sentenced to death subject to confirmation by the High Court and to a fine of Rs.10,000 each or in default to undergo rigorous imprisonment for one year. Again half of the fine, on recovery, was directed to be paid to.the heirs of the deceased. Amanat Ali, Karamat Ali, Abdur Rasheed, Sanaullah, Mansab, Attaullah and Iftikhar were also convicted under sections 302/149, P.P.C. for causing the death of Jaffar deceased and sentenced to imprisonment for life and a fine of Rs.10,000 each or in default to suffer rigorous imprisonment for one year each. Likewise, the half of this fine was also directed to be paid as compensation to the heirs of Jaffar deceased. All the nine accused including the appellants herein were further convicted under section 307 / 149, P.P.C. for effectively attempting at the life of Sohna P.W. and sentenced to rigorous imprisonment for five years each and a fine of Rs.2,000 or in default to suffer rigorous imprisonment for six months and, on realization of fine, half of it was directed to be paid to Sohna P.W. They were also convicted under sections 307/149, P.P.C. for effectively attempting at the life of Ashraf P.W. and sentenced to rigorous imprisonment for five years and a fine of Rs.2,000 each or in default to suffer further rigorous imprisonment for six months. Half of the fine, if recovered, was to be paid to Ashraf P.W. as compensation. All the accused including the two appellants before us were also convicted under sections 342/149, P.P.C. for keeping Ashraf P.W. in unlawful custody and sentenced to rigorous imprisonment for three months and a fine of Rs.200 each or in default to suffer additional rigorous imprisonment for 15 days. All the accused incisive of the two appellants Were convicted under section 148, P.P.C.; each one of them was sentenced to rigorous imprisonment for two years and a fine of Rs.1,000 each or in default to undergo rigorous imprisonment for one month. All the Convicts were, however, held entitled to the benefit of section 382‑B, Cr.P.C. All the convicts appealed to the High Court and a Division Bench of that Court after "having noticed the versions of the occurrence in question" held that "the time and place of occurrence, as alleged by the prosecution, had not been disputed by the defence and that similar was the position of injuries received by members of either side". The controversy that survived for the learned Judges to resolve was "only regarding the genesis of the occurrence in question and the manner in which the said occurrence had actually proceeded". In this context, the learned Judges summed up the whole occurrence in the following words:‑‑ ??????????? " ?the claim of the complainant party was that they were sitting out‑side their `BAITHAK' while the appellants' party came and launched the attack on them whereas the case of the defence was that Rasheed appellant had passed in front of the `BAITHAK' of the complainant party on a motorcycle and it was the complainant party who had initiated the occurrence in question by firing shots at him." Having formulated the crucial question for determination the learned Judges addressed themselves with the question as to "how the occurrence in question had actually got started." After reviewing the evidence the learned fudges reached the following conclusions:‑‑ " ????????? we are of the view that the complainant party had offered no satisfactory justification for their collection at their `BAITHAK' at the relevant time, including the presence of Ashraf P.W. with them at the said time nor did they have any satisfactory explanation as to why should the appellant party have come armed and should have launched such a brutal attack on them." It was on this hypothesis that the learned Judges were persuaded to hold that "the prosecution has not been able to prove that the complainant party were sitting in front of their `BAITHAK' awaiting for the Tehsildar and that it was the appellants' party who had launched a bloody, a brutal and an unprovoked attack on them". Pointing to the omission in the F.I.R. Exh. PK. of some blunt injuries sustained by the two deceased and Sohna P.W. and also of the injuries suffered by Sanaullah accused by blunt means, the learned Judges were "led to believe that the prosecution had concealed some material aspects of the occurrence which they had not disclosed in the F.I.R. and full account of which had not been furnished and the material improvements which they had made during the course of their statements at the trial". In this context, the 'stance taken by Sohna P.W. was not believed that after sustaining extensive damage to life and injuries to him and his companions he ran towards his house and brought his licensed gun with which he caused injuries on the person of Abdur Rasheed and Attaullah in defence for the reason that "after all that had happened, including receipt of fire‑arm injuries by the complainant himself, he would still manage to escape to his house and would come back and would injure Rasheed and Attaullah accused who would still be standing at the venue of the crime having done all the damage that they had to do, awaiting only for Sohna complainant to come back with a gun and to cause injuries on their person". ,

10. The plea of defence was likewise brushed aside by the learned Judges saying that it was not reasonably believable that the party who was sitting at the place of occurrence in a state of complete preparedness after fully arming themselves and also after seeking the assistance of a hired criminal, would commence the aggression by firing shots at Rasheed P.W. and would then permit the appellants party to kill their members to cause injuries on other two persons of their party and to finally let Ashraf P.W., be captured by the appellants and taken away. Besides, this version was dubbed as `fantastic' in, view of lack of explanation about the blunt weapon injuries which the members of both the sides had received on their persons which was also noticed with suspicion.

11. The learned Judges were then persuaded to "re‑construct" the whole 'occurrence which had emerged from `facts proved and admitted on record' and "to determine how the occurrence had commenced' and "how the same had proceeded". According to them, the complainant party had assembled at their `BAITHAK' after having sought the services of Ashraf P.W., apprehending foulplay and a forcible attempt on the part of the accused party to dispossess them of the land which the revenue authorities had declared to be the ownership of Fazal Din accused. "During the period", the learned Judges further observed, "which existed between the two sides, it was either the arrival of Rasheed appellant at the spot or some other members of the appellants' party which triggered off the incident in question. (Underlining is ours). As a sequel to these findings, neither of the two parties were declared aggressor and, in consequence, the occurrence was found to be the result of free fight which erupted at the place of occurrence involving the two sides each member of each side, played the role that he could'. Having held that it was not a planned attack and was a case of free fight, the learned Judges further held that no communion of object existed between the members of the accused party and each one of them was, therefore, liable only to the extent of damage that he had done and further that none was vicariously liable for the acts of the others. In the result, all the convictions and the sentences were set aside by the High Court and proceeded to convict those of the accused who were proved to be guilty of offences. In consequence, the learned Division Bench found the following accused guilty of offences and were awarded the sentences noted against each one of them:‑‑ (i) Mansab Ali was held to have caused death of Sajwara deceased by giving him blow with `Sots"(P. 16); was convicted under section 302, P.P.C. and sentenced to imprisonment for life and a fine of Rs.20,000 or in default to undergo rigorous imprisonment for four years. The entire amount of fine, if realised, was directed to be paid under section 544‑A, Cr.P.C. by way of compensation to the legal heirs of the deceased. (ii)??????? Ramzan appellant was found guilty of murder of Jaffar deceased by firing and was likewise sentenced to imprisonment for life and a fine of Rs.20,000 or in default to suffer rigorous imprisonment for four years. This amount, on recovery, was to be paid to the legal heirs of the deceased as compensation. (iii)?????? Rasheed and Amanat accused were found guilty of effective attempt by firing at the life of Sajwara deceased and each one of them was sentenced to rigorous imprisonment for five years and a fine of Rs.5,000 or in default to suffer rigorous imprisonment for one year each. (iv)?????? Fazal Din convict was likewise convicted for effective attempt at the life of Jaffar deceased and sentenced to rigorous imprisonment for rive years and a fine of Rs.5,000 or in default to undergo further imprisonment for one year. (v)??????? Karamat convict was convicted under section 307, P.P.C. for effectively attempting at the life of Sohna P.W. and sentenced to rigorous imprisonment for five years and a fine of Rs.5,000 or in default to suffer rigorous imprisonment for one year. (vi)?????? Sanaullah, Attaullah and Iftikhar convicts were convicted under section 323, P.P.C. for causing simple injuries to Ashraf P.W. and each one of them was sentenced to rigorous imprisonment for one year. . All the convicts were allowed the 'benefit of the provisions of section 382‑B, Cr.P.C.

12. Mian Muhammad Afzal Wattoo, learned counsel for the appellants, contended that the injuries on the person of Sanaullah, Attaullah and Abdur Rasheed co‑accused of the appellants were not satisfactorily explained by the prosecution which fact alone would entitle the appellants to acquittal. According to the learned counsel, the principle is well‑settled that in a case of two opposite versions the mere fact that the complainant party suffered greater number of injuries would not relieve it of the initial act of aggression and, therefore, the possibility of defence being true could not be excluded and thus the appellants were entitled to acquittal on this score alone. It was lastly contended by Mr. Wattoo that the ocular version furnished by Sohna and Ashraf P.Ws. was disbelieved by the learned Judges in the High Court which was fully contradicted by medical evidence particularly when the said witnesses had made glaring improvements at the trial and had been noticed in the High Court.

13. The crucial question agitated on behalf of the appellants was that because of the injuries both by fire‑arm and blunt means or these injuries remaining unexplained have the effect of rendering the prosecution case doubtful has since long been repelled by this Court. It is, therefore, no more valid to argue that it is always the duty of the prosecution to explain each injury on the accused person regardless of its nature or that the prosecution's failure to explain any injury would per se affect its case with general doubt as to entitle the accused to acquittal. The question whether the prosecution's failure in this respect, reacts on the whole case so as to create a doubt will depend upon the 8 entire gamut of a case and not a single element considered in isolation. In this context, reference may be made to State v. Rab Nawaz (PLD 1974 SC 87).

14. There is no cavil with the general proposition convassed at the bar on behalf of the appellants that in a case of two opposite versions, each side claiming that other was the aggressor, mere fact that the complainant party suffered greater number of injuries would not relieve the prosecution of its initial act of aggression. (Underlining is ours). This principle was laid down in C Muhammad v. Ghous and 4 others (1972 SC111R 264). In the case in hand, the learned Judges have nowhere held the complainant party to be guilty of initiating aggression. In the precedent case of Muhammad, it appears that the High Court had held the prosecution therein responsible for initial aggression and, in consequence, benefit of sustaining greater number of injuries having not found valid was approved by this Court. There is no finding of similar nature in the instant case.

15. The learned Judges in the High Court had nowhere disbelieved the evidence of Sohna and Ashraf P.Ws. in its entirety. On the contrary, by applying the principle laid down by this Court in Sayed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502) which, was reiterated in Abdur Rahman v. Gadai Khan and 3 others (1972 SCMR 676), they were rightly "not deterred by the incompleteness of tale from drawing inferences that properly flowed from evidence and circumstances". There is sufficient and satisfactory evidence that there was a dispute between the parties over a field. The complainant party claimed land as their ownership and had filed a suit. On the other hand, the accused had been declared as owners thereof after demarcation proceedings were conducted. There is, however, no satisfactory evidence that either party was in exclusive or undisturbed possession of this land. A legitimate conclusion was, therefore, rightly drawn by the High Court that on the day of occurrence both the parties were fully prepared to enforce their right or supposed right in the disputed land apprehending a serious encounter and for this purpose they had armed themselves. In such a situation, it would be futile to urge that the accused party were acting in the exercise of self‑defence of person or property. The High. Court was thus justified in declining to the appellants the right of self‑defence. The common object of the alleged unlawful assembly being not discernible on the record, each person was rightly held responsible for his individual act.

16. Mansab Ali appellant was convicted for the murder of Sajwara deceased. The medical evidence, however, disclosed that the lacerated wound on the middle of head 4 x 3 cm with one side of attached flap of skin sustained by Sajwara deceased was sufficient to cause his death. In the First Information Report no reference whatsoever of any injury by means of blunt weapon to either of the deceased has been made. It was in the witness‑box that the charge of causing death of Sajwara by blunt means was improved upon and Mansab Ali appellant was implicated therefor. This improvement was very glaring and had been introduced merely to involve an elderly member of the family of the accused party which has escaped notice of the learned Judges in the High Court. In the F.I.R., Mansab Ali alongwith Iftikhar Ali and Attaullah were F undoubtedly alleged to have been armed with sticks. Nonetheless, the role ascribed to them was of mere `Lalkara' and no overt act of even brandishing the sticks muchless than their use was assigned to them. After gaining knowledge of the lacerated wound on the top of the head of Sajwara at night, Ashraf P.W. for the first time perhaps came up with the allegation that Mansab Ali had dealt with the fatal stick blow to Sajwara which at the trial stage was reiterated by him and adopted by Sohna P.W.

17. We accordingly allow the appeal partly against Mansab Ali and, while setting aside his convictions and sentences, would acquit him. He shall be set at liberty forthwith if not required in any other case. However, the convictions and sentences recorded against Ramzan appellant by the High Court are well founded and are, therefore, maintained. ???????????

18. In view of what has been observed earlier, we found no merit in Cr. Appeal No. 230/1993 by Sohna petitioner and dismiss it accordingly. N.H.Q./R‑272/SC ????? Order accordingly.