1968 P Cr (PLP)

MUHAMMAD YAQUB ALI, J.‑Leave to appeal was given in this case to examine whether in view of the injuries found on the person of the appellants and the finding of the High Court that the origin of the fight was shrouded in mystery the plea in defence that in causing the death of one Fazaldad and inflicting injuries on six of his companions the appellants had acted in exercise of their right of private defence was given due weight by the Courts below. The parties belong to village Dhok Balhor Dakhli Gidari, Police Station Sohawa, District Jhelum and though related inter se had bad blood between them on more than one account. It happened that on the morning of 18th June 1964, Fazaldad, deceased, accompanied by Muhammad Riasat, Qurban Hussain, Kala Khan, Muhammad Ajaib and Muhammad Sarwar, P. Ws., and one Allah Ditta, set out from their village to attend a fair in village Smothi. On the way they stopped to take bath in Kansi Nallah and were still in the stream when Khan Muhammad, Abdul Khaliq and Gulzar, appellants, armed with hatchets and Sharif, appellant, holding a dang overtook them and went ahead. At a distance of 330 karams they, however, stopped and took up positions behind a bush along the path. After taking bath the complainant party unwarily followed the appellants. As soon as Fazaldad who was ahead of the rest came near to the place of ambush the appellants emerged from behind the bush and Khan Muhammad gave him a blow with the hatchet which felled him to the ground. Thereafter the companions of Fazaldad who came on the scene one by one were waylaid and cause a large number of grievous and simple injuries with hatchets and dung. To ward off the attack some members of the complainant party also inflicted injuries on the appellants to which we will advert presently. After the appellants had decamped Dheru, P. W., who happened to be nearby went to Dhoke Mal and informed there one Muhammad Afsar about the occurrence. The latter then made arrangements for carrying Fazaldad and Qurban Hussain on cots to the well of one Mir Aslam in village Kansi and the latter on finding the condition of Fazaldad serious took the precaution of recording his dying declaration. From the well of Mir Aslam the injured persons were taken to village Dhangola, but on the way Fazaldad succumbed to his injuries. From there the injured P. Ws., along with the dead body of Fazaldad boarded a bus and went to the Police Station, Sohawa, reaching there at about 7 p.m. Half an hour later three of the appellants, namely, Khan Muhammad, Gulzar and Sharif also reached Sohawa and joined the local dispensary for medical treatment. On examining them the doctor sent a ruqqa to the S. H. O., whereupon Muhammad Yousaf, Assistant Sub‑Inspector, who had earlier recorded F. I. R., to the dictation of Muhammad Riasat, P. W came to dispensary and placed the three appellants under arrest Abdul Khaliq, the fourth appellant, was secured by the police a few days later and found to bear injuries on his person which in duration coincided with the occurrence in the case. It being admitted that the appellants had caused injuries to the complainant party as a result of which Fazaldad had died and five of the prosecution witnesses and Allah Ditta had suffered grievous and simple injuries it is unnecessary to give further details of the investigation except perhaps to mention that Khan Muhammad and Abdul Khaliq, appellants, led to the recovery of a hatchet each and Muhammad Sharif led to the recovery of a dang all of which were found to be stained with human blood which furnished ample corroboration of the direct evidence in the case about their participation in the attack. This brings us to the question whether the appellants had acted in the exercise of private right of defence. The ocular evidence furnished by the five injured P. Ws., is to the following effect "After taking our bath Fazal Dad deceased and I started towards the Mela. I was following the deceased at a distance of 2 or 3 paces. All the four accused were sitting ambush behind a bush. All the accused got up and Khan Muhammad accused gave a hatchet blow on the back of Fazal Dad deceased who fell on the ground. The hatchet got stuck in the wound Then Gulzar accused gave a hatchet blow on the head of Fazal Dad deceased. Then Khaliq accused gave a hatchet blow on the right arm of the deceased. I went forward to rescue my brother Fazal Dad deceased when Gulzar accused gave me a hatchet blow on face as a result of which my two teeth were broken. I raised an alarm. I gave a hockey blow‑ to Gulzar accused whereupon the hockey stick broke into pieces. Sharif accused gave me a stick blow on my head. I thereupon fell on the ground. My brother Ajaib, F. W., also reached the spot raising alarm. Khaliq accused gave a hatchet blow on him head, followed by Gulzar accused who also hit him on his head with hatchet. Qurban Hussain, P. W., also reached the spot in the meanwhile, Khan. Muhammad accused took out the hatchet from the body of Fazal Dad deceased and struck it on the leg of Qurban Hussain, P. W., who fell down on the ground. Sharif accused gave a stick blow on his head. Kala Khan, P. W., then reached the spot, who gave a stick blow to Gulzar accused whereupon both of them grappled with each other. Khan Muhammad, Sharif and Khaliq accused gave hatchet blows to Kala Khan, P. W., Allah Ditta, P. W., also came there and stood aside to see the occurrence. Gulzar accused gave a hatchet blow on the hand of Allah Ditta. Then Khaliq accused. gave a hatchet blow on the shoulder of Allah Ditta, P. W., and last of all Muhammad Sarwar, P. W., reached the spot raising alarm. Gulzar, accused, gave a hatchet blow with its wrong side on the arm of Muhammad Sarwar, P. W. Muhammad Sarwar, P. W., raised an alarm, at which all of the accused ran towards the side of Mela taking away their weapons with them." On the contrary the appellants pleaded that Fazaldad, deceased, and the injured P Ws., bad attacked them first and "we acted in self‑defence." The medical evidence showed that Fazaldad, deceased, and his companions had suffered eleven lacerated wounds, six incised wounds, and thirteen abrasions and bruises some of them resulting in swelling and tenderness while the appellants were caused five lacerated wounds and seventeen abrasions. If the two versions are placed side by side it will appear that while the prosecution case received full support by the proved circumstances in the case the defence version was totally belied. The presence of incised wounds and the recovery of blood‑stained hatchets at the instance of Khan Muhammad and Abdul Khaliq, appellant proved that their side was armed heavily. The complainant party some of whom only carried sticks would not have, therefore, taken the initiative to attack the appellants. Secondly if the complainant party consisting of seven persons had masse appeared on the scene and taken part in the encounter they would have put the appellants on the run though armed only with sticks. Lastly the nature and the number of injuries found on both the parties made out that the appellants had played the role of aggressors and the preponderance case of mischance that Fazaldad received a fatal injury in an equal encounter. The true position which emerges out is that at first Fazaldad who was ahead of the party was belaboured by the appellants and thereafter the others as they came one by one were set upon and given hatchet and dang blows. This is in accord with the prosecution version given above and negatives the theory of "right of private defence." Dealing with the plea of defence the trial Court found as follows: "In the circumstances, the only point to be considered is which of the version is true and which party cats be held to be the aggressor in this case. The injuries on the P. Ws., and the accused have been mentioned to the earlier part of this judgment. The injuries caused on the P. Ws. are with sharp edged and blunt weapons and many of them are grievous. On the other hand, the injuries detailed on the four accused are simple in nature caused by blunt weapons. I am, therefore, not inclined to accept that the version of the accused that they had acted in self‑defence because the number of injured P. W., is six besides the deceased and they are also related inter se and bad they been armed with deadly weapons the accused would not have received these few and superficial injuries. It follows that the accused had come armed to attack the complainant party, otherwise there is no reasonable explana tion for a large number of injuries on various parts of the persons of the prosecution witnesses and merely simple injuries caused with blunt weapons means on the persons of the four accused. Another fact which makes‑ me to hold the accused as aggressor is that the accused had a motive to attack the complainant party." Similarly the learned Judges of the High Court observed: "The medical evidence does show that the hatchets and a dung were used by the appellants while causing injuries to Fazal Dad deceased and others. Considering that the com plainant party was armed with dangs, it is difficult to believe that they were the first to open the attack against the appellants who carried three hatchets besides a dung. We are, therefore, constrained to hold that the appellants were the aggressors." The finding of the High Court that the origin of the fight was "shrouded in mystery" had, therefore, little or no effect on fixing the liability of the appellants, Our own analysis shows that the appellants were the aggressors and the charges under sections 302, 307, 324 and 326 read with section 34, P. P. C. were fully brought home to them. The sentence of death was also appropriately awarded to Khan Muhammad, appellant, who attacked the' deceased with such brutal force that the blade of his hatchet was stuck in the back of the unfortunate victim. There is thus little merit in the appeal and we dismiss it maintaining the respective convictions and sentences of the appellants. Appeal dismissed.