P L D 19 61 (W (PLP)

2. The parties of the complainant and the accused are inter related. According to 'the facts as brought out in evidence at the trial both parties were in joint possession of certain lands in a bela, the real owners of which were. Sarganas of Thatha Sargana. The lands were partitioned between them about four years before the occurrence and both the parties constructed their dharis in their respective shares. It was alleged by the prosecution that in the course of this partition, a piece of land was left undiyided to serve as a common passage for the two blocks of their respective dharis. The accused party removed their dharis about a year before She occurrence, but the dharis of the complainant existed on the spot. It was alleged that. on the 2nd of July 19,59, all the accused persons eleven in number, carpe to the spot and started ploughing their land including the portion where their dharis once. existed and took a further step of ploughing the common passage referred to above. This was .resisted by Karam Ali deceased and P. Ws. Jalla and Malta. A fight started resulting in the death of Karam Ali and simple injuries to Jalla and‑ Malta.

3. As the present appeal relates only to the guilt of Pehlwan appellant., it is necessary only to deal with the part attributed to him by the P. Ws. in this crime and incidentally also to the part played by some of the other accused who allegedly shared this particular crime with Pehlwan. The conviction against Pehlwan, it may be repeated, has been recorded only in respect of the hurt cased by him to Karam Ali deceased, which resulted in his death.

4. On post‑mortem examination Karam Ali was found to have received :‑ (1) a contused wound, 2" x " x 1", three inches above the root of nose, under this the scalp was extensively ecchymosed, (2) a contused wound, 1 " x " x ". three inches above and behind the left ear top. Scalp underneath was ecchymosed, and (3) a contused wound, " x 1/8", above and behind the root of left ring‑finger. Death resulted from concussion of brain due to fissured fracture of cranial vault and base under injury No. 1, which was fatal in the ordinary course of nature.

5. The first information report, Exh. P. E., was lodged by P. W. Jalla at the police station situated at a distance of twenty three miles from the place of occurrence at 12‑30 a.m., on the 3rd of July 1959. The occurrence had taken place the day before, i.e., 2nd of July 1959, at about 6 to 7 a m. Jalla described in the first information report the incident leading to the fight and stated therein that Pehlwan, the appellant, had given a stick blow on the head of Karam Ali, followed by Hayat, Momand and Nura, out of the co‑accused, who also beat him. At the trial Jalla as P.W. 3 stated that Peblwan gave the first blow on the head of Karam Ali deceased hitting him on the head and the second was also given to him by Momand which also hit Karam Ali on his head. P. W. 4 Malla in his statement at the trial reversed this process by attributing the first blow on the head of Karam Ali to Momand accused and the second also on the head to Pehlwan appellant. Both Jalla and Malla attributed a third blow to Nura, a co‑accused, which fell on the arm of Karam Ali. Mst. Fatima, the third eye witness in the case, during her cross‑examination depicted the event as follows :‑ "When Karam Ali and Malla went to take up an objection they asked the accused not to plough the path but when the accused did not stop ploughing, Karam Ali abused the accused and the accused abused my brothers on which Karam Ali deceased gave a blow with lathi to Pehlwan accused and the accused started giving blows to my brothers." In her examination‑in‑cheif, however, she had stated that :‑ "Pehlwan, Momand, Nura and Hayat surrounded Karam Ali and Pehlwan accused gave the first blow while the second blow was given by Momand accused to Karam Ali." The learned trial Judge on his analysis of the evidence has quite rightly come to the conclusion that the prosecution evidence of the ocular witness is interesten. All the three eye‑witnesses are close relations of the deceased, Malla and Jalla being his real brothers of Fatima his sister. Again, another finding of the learned trial Judge to which no exception can be taken is that the fight had developed between the parties all of a sudden and was un premeditated. None of the accused persons was armed with a lethal weapon and in fact they had come there to plough their lands and not with any intention of picking up a fight nor with any anticipation of a fight taking place. Some of them did have small goading sticks with them but none of them had a danda or a hatchet, as stated by the prosecution witnesses. There is no evidence in the case that any common passage was left over undivided at the time when the parties partitioned their lands and as such it is difficult to determine which party had the right on its side in the origin of the fight. It seems to me that the fight started when the appellant and his companions attempted to bring under plough a portion of the land which the complainant party had come to consider as a passage to their dharis regardless of their legal title to the same. In the heat of the moment, blows were exchanged and the appellant also dealt a blow to the deceased Karam Ali which according to the prosecution case landed on the head of the deceased. But it is difficult to uphold the conviction of the appellant under section 304 Part II because the damage caused to the head of the deceased cannot be entirely ascribed to the blow attributed to the appellant. According to the evidence a second blow was also given on the head of the deceased by Momand accused and according to P. W. Malla, as already men tioned above, Momand was the first to give that blow on the head. On this evidence it is difficult to escape the conclusion that the grief caused to Karam Ali on the head may have been the cumula tive effect of both these blows, and of one or the other in a greater e or lesser degree. Under these circumstances the guilt of Pehlwan appellant has to be reduced to a lower degree and I do not think that it is safe to convict him for any other offence than section 3251 P. P. C. because by giving a blow on the head with the result that followed it can only be said that he intended to cause grievous hurt to the deceased.

6. An argument was addressed by the learned counsel for the appellant that according to Mst. Fatima's statement the deceased after exchange of abuses was the first to give a stick blow on Pehlwan appellant and if Pehlwan in return caused any injury to him it was in the exercise of the right of self‑defence of his person. I regret I cannot accept this argument because it is carrying the self‑defence to limits not contemplated by law. Where in a fight, such as occurred in this case, both parties engage themselves, it does not affect the guilt of any individual on either side as to who gave the first blow. Where both the parties got ready to fight the question of self‑defence does not arise. It is a different matter, however, if one side is taken unawares an defends an attack which is made on it by the other party. In view of the above discussion and my feeling that the deceased Karam Ali was not entirely free from any blame in this incident and had actually given a blow to the appellant in the course of the sudden fight which developed between the parties, I consider that an indulgent view in this case will meet the ends of justice. As already remarked above; the offence of the appellant cannot be taken beyond the pale of section 325, P. P. C. Therefore, finding him guilty under section 325, P. P. C. and altering his conviction accordingly I reduce the sentence imposed on him to one year's rigorous imprisonment.

7. The appellant was released on interim bail on the 20th of April 1960, by Muhammad Shafi, J. which was later confirmed by J. H. Rizvi, J. on the 3rd of August 1960. He shall now be arrested in pursuance of a warrant to serve his imprisonment as ordered by me. K. B. A. Sentence reduced.