1977 PLP r (PCRLJ)

Date of hearing : 9th February 1977. Asghar son of Shera, Ditta son of Hussain, and Muhammad son of Noora were tried along with others but vide judgment dated the 12th of June 1976, the Additional Sessions Judge, Gujranwala, while acquitting the others convicted and sentenced Asghar, Ditta and Muhammad as follows: Asghar was convicted under section 304(II), P. P. C. for causing the death of Sultan alias Shana and way sentenced to two years' R. I. plus fine of Rs. 1000 or in default to undergo one year R. I. Ditta was convicted under section 324, P. P. C. for causing injury to Bashir P. W. 6 and was sentenced to six months' R. I. plus fine of Rs. 500 or in default to undergo three months' R. I. ; and Muhammad was convicted under section 324, P. P. C. although no specific injury had been attributed to him and he was likewise sentenced to six months' R. I. plus fine of Rs. 500 or in default to undergo three months' R. I. Asghar was stated to be armed with dang whereas Ditta and Muhammad were armed with kassi. There were three it juries on the person of Muhammad and four injuries on the person of Ditta. The convicts have appealed against their convictions and sentences, which is being disposed of by this judgment. Ditta and Muhammad appellants are on bail due to the shortness of their sentences.

2. The occurrence took place on the 31st of October 1972, at digarwela within the area of village Qila Bakasha at a distance of 12 mile3 from Police Station, Sukheki, District Gujranwala. F. I. R. Exh. P. V. was lodged by Bashir P. W. 6 nephew of the deceased at 10‑15 p.m. on the same day. The facts given in the F. I. R. art that Bashir P. W. went to his field and saw that Ditta appellant had given water to the crop so that it should be destroyed. There was an altercation between them and on the alarm raised by both the sides their supporters came forward including the appellants as well as the injured P. Ws. in the instant case. Bashir P. W. was hit by Ditta appellant with kassi on his fore‑arm. Asghar appellant gave a blow with his dang on the head of Sultan alias Shana who fall down and subsequently died. The accused party caused injuries to four members of the complainant party besides the deceased. I have already pointed out that the members of the accused party namely, Ditta and Muhammad appellants sustained injuries in the course of the occurrence at the hands of the complainant party.

3. The motive for crime as set up in the F. I. R. is that Asghar appellant had abased Saif P. W. 9 a close relative of the deceased about seven months prior to the present occurrence and he had also threatened him with his gun. It is stated that the deceased had tried to dissuade Asghar appellant on which Asghar appellant along with another fired at the deceased although the deceased was not hit. Consequently a case was got registered under section 307, P. P. C. against Asghar etc. at the instance of the complainant side. The motive indicates that the parties are inimical.

4. The prosecution has produced four eye‑witnesses of the occurrence and they are all injured. These are Bashir P. W. 6, nephew of the deceased, Haider P. W. 7, Zulfiqar P. W. 8 and Saif P. W.

9. The latter three are close relatives of the deceased.

5. The recoveries in this case are of no use because they are not found to be blood‑stained. The case of the prosecution is based essentially on the ocular testimony.

6. The appellants in their statements before the trial Court did not deny the occurrence. The defence was that Asghar appellant was not present at the scene of crime and that the complainant party had attacked the accused party in their field and that the accused side had indicted injuries to the complainant side in the exercise of their right of self‑defence, because as a result of the attack of the complainant side two members of the accused party had sustained injuries.

7. The medical evidence is to the effect that the deceased received one injury caused with a blunt weapon on the head, which proved fatal. This injury has been consistently attributed to Asghar appellant. Bashir P. W. had one simple incised injury on his fore‑arm attributed to Ditta appellant. Haider P. W. had one simple blunt weapon injury attributed to Ghulam Rasul acquitted co‑accused. Zulfiqar P. W. had three simple injuries caused with blunt weapon attributed to Bati, Nazir and Ahmad acquitted co‑accused. Saif P. W. bad two simple injuries caused with blunt weapon attributed to Bahu acquitted co‑accused. Thus according to the medical evidence eight injuries in all were caused to the complainant side including the deceased by the accused party. On the accused side Muhammad appellant had received three blunt weapon simple injuries and Ditta appellant had received four simple blunt weapon injuries. In other words seven injuries had been sustained by the accused side at the bands of the complainant party.

8. I have heard learned counsel for both the sides and carefully perused the record. It is submitted on behalf of the appellants by their learned counsel that the testimony of Ali Muhammad Patwari P. W. 5 would indicate that the aggressors in the circumstances could only be the members of the complainant party. He has also taken me through portions of the testimony of Bashir P. W. to show that on the day of occurrence the turn of water was of Ditta appellant and that Bashir P. W. had irrigated his field once or twice prior to the occurrence. I have carefully examined this argument of learned counsel. But I am afraid I feel more inclined to accept the reasoning of learned Additional Sessions Judge in this case. It appears that the motive could not be proved in his case. The parties are inimical towards one another. The immediate cruse of occurrence could not be determined. We do not know as to why a dispute arose between the parties. The occurrence is not denied by the accused side the complainant side has received eight injuries whereas the accused side has received seven injuries. Apparently it was a sudden fight, which took place between the parties and, therefore, Exception 4 to section 300, P. P. C. was made applicable in this case. In a sudden fight it is immaterial as to who is aggressor and who is aggressed. The injuries caused on both the sides were simple except the fatal injury caused on the head of the deceased, which is attributed to Asghar appellant. After perusing the record and hearing learned counsel for both the sides I am of the considered opinion that the fatal blow on the head of the deceased has been attributed to Asghar appellant by the P. Ws. who themselves were injured and their presence on the spot could not be doubted. They have consistently stated that the deceased had received the fatal blow at the hands of Asghar appellant. In this view of matter in the circumstances Asghar appellant was rightly convicted and sentenced under section 304(11), P. P. C. His conviction and sentence are, therefore, accordingly maintained. His appeal is dismissed. Ditta appellant is himself injured. He has received four simple blunt weapon injuries at the hands of the complainant party and he is stated to have caused one injury simple incised to Bashir P. W.

6. I am, therefore, of the view that his conviction under section 324, P. P. C. and sentence thereunder were not proper. His conviction and sentence are accordingly set aside and he is acquitted. His appeal is accepted. He is on bail. His bail bonds shall now stand discharged. Muhammad appellant has not been in fact attributed any injury in the course of occurrence although he has himself received three simple injuries at the bands of the complainant side. His conviction and sentence were likewise not proper. The result is that his conviction as well as sentence are hereby set aside and he is acquitted. His appeal is accepted. He is already on bail. His bail bonds shall now stand discharged. Order accordingly.