1980 P Cr (PLP)

7. On 27th October, 1972 Mamma., Mamoora, Manak, Talib, Muhammad Amin and Muhammad Ismail accused were arrested by the Investigating Officer.

8. On 30th October, 1972, Nawaz and Aslam accused were also arrested by the aforesaid Investigating Officer.

9. On 3rd November, 1972, Amin. accused led to the recovery of his licensed gun P. 1 from his house, which was taken into possession, vide memo Exh. P B. Aslam accused led to the recovery of his bloodstained lathi P. 2 from his house which was taken into possession, vide memo Exh. P C. Nawaz accused led to the recovery of a lathi P. 3 from his residental kotha, which was taken into possession, vide memo. Exh. P. D. Talib accused led to the recovery of a blood‑stained kassi P. 4 from his sugar‑cane field which was taken into possession, vide memo Exh. P. g: Manak accused led to the recovery of a hatchet P. 5 from his maize crop which was taken into possession vide memo. Exh. P F. Mamma accused led to the recovery of a blood‑stained kassi P. 6 from his sugar‑cane crop which was taken into possession, vide memo, Exh. P G. All these recoveries were witnessed by Muhammad Hayat, P. W. 11, and Fida Hussain Shah, A. S. L, P. W. 13.

10. On 4th November, 1972,.Fayyaz Hussain Shah (Zilladar) P. W. 5 produced documents P T & P T/1 to P T/4, relating to Warabandi before the Investigating Officer.

11. After completing the necessary investigation and getting the site‑plans prepared, all the eight accused were sent up for trial.

12. At the trial, all the accused denied the accusation imputed to them. They all submitted the same defence. Aslam accused in his examination under section 342, Cr. P. C which statement the other accused also adopted, stated as follows :‑ "Warabandi on the outlet No.‑ 32550111 had been amended in March, 1972, on 23rd March, 1972. The time had been kept the same but those who irrigated their fields during the day were to irrigate during the night according to the amended warabandi. 'The change was from night to day and vice versa. an appeal was preferred against this order which was finally decided on 28th June, 1972 by the Divisional Canal Officer who maintained the order of the Sub‑Divisional Canal Officer to execute that order. Zilladar Fayyaz Hussain visited Chak No. 140 to announce the amended warabandi. He collected the entire villagers on 19th October, 1972 and announced that the stew warabandi would be put into effect from 22nd October, 1972 via. from the night of Monday as the night precedes the day. The night of Monday starts as soon as the sunsets on Sunday. Whenever there is change in the warabandi surplus water has to be distributed amongst the shareholders by mutual consent. The Zilladar announced that surplus water to be distributed according to the mutual arrangements amongst various shareholders of Moga No. 32550/11. The surplus water was to be distributed amongst the tail end share‑holders. They agreed with Mamma, Mamoora, Ismail, Muhammad Ahmad sons of Murad and others that the surplus water according to their share be utilized by Mamma, Mamoora, Ismail, Noora, Taja and others and they would get the surplus share of water along with. their turn when the warabandi was put into effect accordingly they had to get their share on following Sunday. It was mutually agreed that Mamma, Mamoora, Ismail and others should start watering their fields from 6‑00 p. m. on 22nd October, 1972 accordingly. Salehon and Jalla sons of Taja, Mamoora, Mamma and Masoora sons of Noora, Manak and Talib sons of Bahab, Nawaz son of Jallah, Amin son of Haqqa and Ismail son of Muhammad, started their turn at 6‑00 p._ m. on 22nd October, 1972 and continued their turn of water throughout the night between 22/23rd October, 1972, when they were attacked by Muhammad Hayat, Dosa, Rehman and Said Ahmad deceased along with Sharif at 5 or 5. 30 a. m. Muhammad Hayat P W opened fire on Nawaz son of Jalla which also accidentally hit Said Ahmad deceased and in the fight both the parties received injuries. The possession of water remained with Mamma and Mamoora accused. Thus the amended warabandi which was put into effect at 6‑00 p. m. on 22nd October, 1972 was admitted by Muhammad Hayat P W, who made the application EYh. D M before the D. C. O., Lyallpur on 9th February, 1972 and admitted therein that the amended warabandi had been put into effect from the evening of 22nd October, 1972 at 6‑00 p. m. and this state of affairs continued for about nine months from 6‑00 p. m. from 22nd October, 1972 to June, 1973,"

13. The learned trial Court, after an examination of all the oral and documentary evidence adduced before it, came to the conclusion that the new warabandi was not in force on 23rd October, 1972 at 6.‑00 a. m. and neither the complainant party nor the accused party had their turn of water at 6‑00 a. m. on 23rd October, 1972. The learned trial Judge held that both the parties admitted the presence of each other and otherwise there was no prior enmity between the two groups and, there fore, as none of the parties was entitled to any turn of water at 6‑00 a. m. on the fateful day and that both the groups, duly armed, had attacked each other, it was a case of free fight and that each accused was liable for his individual act, except Manak, who was given the benefit of doubt and acquitted. The learned trial Judge did not rely upon the recoveries, but relied upon the medical evidence as corroborating the injuries inflicted by the various accused on the deceased and the injured witnesses. The learned trial Judge, accordingly, convicted and sentenced the accused as stated in para No. 1 above. 14, We have heard the arguments of the learned counsel for the appellants, the respondents, the State and the private complainant. One important fact which stands out prominently is that the occurrence is not denied by the appellants and there is no previous enmity between the parties. According to the statements of the appellants recorded under section 342, Cr. P. C., the amended warabandi was to start on the mid‑night of 22/23rd October, 1972, but in view of some arrangement arrived at by Mamma, Mamoora and Ismail, appellants, and Muhammad and Ahmad sons of Murad and others, on the one side, with the tail end share‑holders, on the other, the surplus water was to be utilized by Mamma, Mamoora and Ismail, appellants, with Noora, Taja and others, and, therefore, they started watering their fields from 6‑00 p. m. on 22nd October, 1972. Accordingly, it was submitted that Salehon and Jalla sons of Taja, Mamoora, Mamma and Masoora sons of Noora, Manak and Talib sons of Wahab, Nawab son of Jalla, Amin son of Haqqa and Ismail son of Muhammad, started taking their turn at 6‑00 p. m. on 22nd October 1972 and continued their turn of water throughout the night between 22/23rd October, 1972, when they were attacked by the complainant party at 5‑00 or 5‑30 a. m. and in pursuance of their right of private defence of person and property, they caused injuries to the complainant party. This story was totally disbelieved by the learned trial Judge, who held that the story; as given by the complainant, namely, that the amended warabandi had to start at 6‑00 p. m. on 23rd October, 1972 was correct and that the appellants had at 6‑00 a.m. engaged themselves with the complainant party in a free fight. The appellants have pressed the same case in appeal as pleaded by them in the statements under section 342, Cr. P. C. once again. Both the of )sing contentions therefore, require examination.

15. In fairness to the appellants, it will be proper to evaluate first the case pleaded by them. Muhammad Abdullah Patwari PW 4 and Fayyaz Hussain Zilladar PW 5 have both testified that in March, 1972. the penal warabandi relating to Moga No. 32550/R was amended, that an appeal against the same was decided in June, 1972, that an application Exh. DG was made by Salehon, father of Muhammad Aslam accused, sometime in October, 1972 to the Zilladar requesting that the amended warabandi be implemented, that pursuant to the said application both of them proceeded to Chak No. 140, where all the persons, who benefited from the Moga, were summoned, that Fayyaz Hussain Zilladar P. W. 5 then openly announced to all the share‑holders then present that the amended warabandi would be enforced from 23rd October, 1972 at 6‑00 p. m, and .hat the statement Exh. DN of those share‑holders of the Moga, who were then present, when the proclamation was made, was recorded by the Zilladar in token of their acceptance to the amended warabandi. The amended warabandi Exh. PT/2‑4 clearly shows in column No. 25 thereof that the turn of the first share‑holder of the water was to start from Monday 6‑00 p. m. From the evidence of the said Patwari and Zilladar and the amended warabandi Exh. PT/2‑4, it is clear that the new warabandi had to be implemented on 23rd October, 1972 at 6‑00 p. m. Though Exh. DN does not give the time of implementation, but the statements of the Patwari and the Zilladar are clear that it was to be enforced at 6‑00 p. m. on 23rd October, 1972 and the time and day also stands corroborated by Exh. PT/ 2‑

4. Apart from this factor, even assuming that the amended warabandi was to be enforced on 23rd October, 1972 at 12‑00 midnight but that some of the appellants with some others came to some arrangement with the tail end share‑holders with regard to the distribution of the surplus water and that in accordance with that arrangement, the said surplus water was to be utilized by Mamma, Mamoora and Ismail, appellants, with Noora, Taja and others and they started watering their fields from 6‑00 p. m. on 22nd October 1972, the said contention neither finds sup port from any evidence of any tail end shareholders nor any documents on the record. Neither the Patwari nor the Zilladar were cross‑examined as to who were the tail end share‑holders whose turns to take water were ordinarily due from 6‑00 p. m. on 22nd October, 1972 to 0‑01 a. m. on 23rd October 1972, because unless their names were disclosed and it was proved that they had given up their turns, the question of the tail end share‑holders conceding their turns to Mamma, Mamoora etc. would riot arise. The fact that the Patwari and the Zilladar were never cross -examined as to who these persons were and none of the tail end share holders came to support the defence version, clearly shows that their contention is not founded on truth, According to Exh. PT/2‑4, the under‑noted persons had their turns of water from 6‑00 p. m. on 22nd October 19?2 to 6‑00 p. m. on 23rd October 1972 according to the old warabandi :‑‑ S. No. Name From To

42. Wali Muhammad s/o Mansha 5‑43 p. m. 6‑43 p. m.

43. Mst. Mantey Widow of Umra 6‑43 p. m. 8‑25 p. m.

44. Muhammad Ali s/o Phumman 8‑25 p. m. 10‑03 p. m.

45. Walt Muhammad s/o Mansha 30‑03 p: m. 10‑47 p. m.

46. Noor Muhammad s/o Raja (Complainant party) 10‑47 a.m. 12‑40 a. m.

47. Zakir and others 12‑40 a. m. 4‑50 a. m.

48. Barkhurdar and Ahmad 4‑50 a m. 6‑00 a. m.

1. Forest Department. 6‑00 a. m. 6‑24 a. m.

2. Noor Muhammad etc. (complainant party), 6‑24 a. m. 8‑07 a. m.

3. Muhammad Ahmad s/o Murad 8‑07 a. m. 12‑05 p. m.

4. Ismail s/o Muhammad etc. (accused party) 12‑05 p. m. 4.49 p. m.

5. Noora and Mamoora (accused party) 4‑49 p. m. 9‑03 p. m. Assuming, that the warabandi had to start from 00‑01 a. m. on 23rd October 1972 with the forest department as the first share‑holder to receive water; but in accordance with the arrangement with the tail enders, the appellant party started 6 hours earlier at 6‑00 p. m. on 22nd October 1972, then unless they proved that they also bad some arrangement with Noor Muhammad son of Raja (complainant party) upto Barkhurdar and Ahmad, who had their turn during the preceding 6 hours, the appellants could not have taken their turns of water. This also presupposes the fact that those share‑holders of this moga who had their normal turns falling between 6‑00 p. m. on 22nd October 1972 and GO‑0l a. m. on 23rd October 1972 according to the old warabandi had also agreed, which is not borne out on the record. During arguments, the appellants placed great stress on document marked `A' by the trial Court and copies thereof exhibited as Exh. D. K. and Exh. D. M. This document could not be proved by the defence as Hayat P. W. II did not admit its execution and Muhammad Iqbal D. W. 1 stated that he was not conversant with the handwriting of Muhammad Hayat. Even if we assume that this docu ment was written by Muhammad Hayat P. W. 11, it only shows that at 6 p.m. on 22nd October 1972, the appellants had among themselves hatched a conspiracy with regard to the change of their turn of water and that when the complainant party went to the Moga at 6‑00 a. m. the next day to have their turn of water, they were subjected to an attack by the appellant party. It was further recorded in this application that on the night between 22/23rd October 1972, the appellant party forcibly took the turn of the water. There is nothing in this document to suggest that the amended warabandi was in force at 6‑00 p. m. on 22nd October 1972, as is alleged. In fact document Exh. D J, which is a report made by the Zilladar on 24th October 1972, confirms that the amended warabandi, which was notified to the share‑holders of the Moga on 19th October 1972, was to take effect on Monday, 23rd October 1972. The learned counsel for the appellants tried to press in service document Exh. D L, a statement allegedly given by Hayat P. W. 11, but this document was neither put to Hayat P. W. 11 in cross -examination nor otherwise proved to have been written by hint and, therefore, the same cannot .be looked into. From this collective appraisal of various facts, it is clear that the defence plea is not sup ported by any circumstance on the record. In cross‑examination, Hayat P. W. 11 admitted that he had irrigated his land at the tail of the outlet on the night between 22/23rd October 1972 and again later at 6‑24 p. m. till 8‑07 p. m. on 23rd October 1972. It was suggested that this proved the defence plea, but actually the earlier turn alluded to by Hayat P. W. 11 relates to the turn of water which he had between 10‑47 p: m. on 22nd October 1972 and 12‑40 a.3n. on 23rd October 1972 as shown at Serial No. 46 in amended warabandi Exh. PT/2‑

4. Looking at the case from all angles, the learned Additional Sessions Judge was right in coming to the conclusion which he did, namely, that the defence plea as urged by the appellants was not proved.

16. This brings us to the case of the prosecution. As held by us already in para 15 above that the amended warabandi was to be imple mented on 23rd October 1972 at 6‑00 p. m. This also was the finding arrived at by the learned Additional Sessions Judge in para 29 of the judgment. However, in para 40 of the judgment, the learned trial Judge held that since the occurrence took place at 6‑00 a. m., the turn of water of the forest department was from 6‑00 a.m. to 6‑24 a. m. and since both the complainant and the appellant party did not have their turns during this period, the doctrine of free fight came into play. This seems to be rather an unusual deduction. It reminds us of the observa tion of Harrison, J. in Ahmad Sher v. Emperor (A I R 1931 Lah.513) that when Courts cannot decide on the evidence, which side or which individual began the attack, the difficulty is avoided by holding that there is a free fight.

17. This brings us to the question what is a free fight. But in deal ing with this matter, it will be also appropriate to discuss in the same context what is a sudden fight. The learned Sessions Judge has described the incident as a free fight. There is a world of a difference between a sudden fight and a free .right, in the context in which these two terms are used in cases relating to homicide. Sudden fight is that which generally arises out of a chance encounter, squabble, verbal dual, quarrel, where passions having been ignited, the slightest blow or provocation results into a fight and the opposing parties assault and injure each other, with or without weapons, causing the death of one or more, on either side. The basic feature of a sudden fight is the initial absence of premeditation to cause death or injuries due to the absence of time for reflection. Where culpable homicide results in such a sudden fight and the offender is not guilty of premeditation of having taken undue advantage or having acted in a cruel or unusual manner, the case is covered by Exception IV to section 300 of the .Pakistan Penal Code and the culpable homicide is not murder. The term `sudden fight', as used in cases relating to homicide, applies to such sudden fights covered by Exception IV to section 300 of the Pakistan Penal Code. However, a free fight, as that expression is generally understood in homicide cases, is one where two opposing parties, with preparation and design to meet force with force or to fight, go out to meet force with force or to fight and a pitched battle results. A number of variable situations arise in such cases. If the intention ox both the side in a free fight is not to commit murder, but to assert or defend their respective real or supposed rights or claims, reasonably believing the same t be available and, if obstructed or attacked by the other, to meet force with force to achieve their object and, in prosecution thereof, have a trial o strength, resulting in the death of or injuries to one or more persons o either side, one cannot say that all the members of the party arrayed as accused in the case, just because they went armed in full expectation of conflict, shared the common intention to commit murder or in prosecution of their common object caused such death. The question who attacks or who defends is immaterial. No right of private defence arises in such case and each member of the party is responsible for his own individual act, on the principle that each person is presumed to intend the ordinary and natural consequence of his action. Syed Ali Bepari v. Nibaran Mallah (P L D 1962 S C 502) is a case in instance. But if the intention or common object of both the sides is to commit murder or cause injuries to the members of the opposite side and a free fight results, all the members arrayed as accused are liable for the said murder or injuries, and section 34 or 149, P. P. C. may become applicable, as the case may be, for persons who are aggressors and, united by intention or design to commit murder or cause injuries must bear the consequences that flow out of their united action. Dost All v. Province of West Pakistan (P L D 1958 Kar.549) is a case of this nature. In this case both the sides had attacked and injured each other in a free fight. The object of one group was to use the disputed piece of land as a 'dera" and the object of the other was to stop them from doing so, The Sessions Judge convicted members of both the groups in cross cases before him, who were fouud to be participants, holding them as aggressors and sen tencing them to various terms of imprisonment after applying section 149, P.P.C. The High Court, in cross appeals filed by both the sets of convicted accused, held that both the sides bad ample time to have recourse to the protection of the public authorities, that neither set of appellants bad the right of private defence and that members of both the groups were in the same class and equally responsible for the acts of the assembly. Apart from reducing the sentences of a few persons, both the appeals were dis missed. But where a group of persons invade another group of per sons to establish their right or claim by force to what is peacefully being held or enjoyed by the latter and the latter group come forward to resist or vacate the aggression with .force, .and during the pitched battle that results, the aggressors cause death of some of the members of the group who have come forward to defend their right or claim, it is not a case o free fight. In this case, notwithstanding the pitched fight, the members o the invading group are pure aggressors and the group defending their right or claim have every right to resist and vacate aggression with force, subject to the limitations contained in sections 100 and 103 of the Pakistan Penal Code. State v. Kartar Singh (A I R 1958 All. 90), Lakshman v. Lakshman (A I R 1964 Mad. 418) and Muhammad Rafiq v. Government of Azad Jammu 8c Kashmir (PLD 1975AzadJ&K1) are some of the cases which fall in this category.

18. From the above, it is, therefore, clear that one of the basic ingredients of a free fight is that both the sides from the start intend to and prepare themselves to fight, before going out to and actually having their pitched battle. In this background, we have to examine from the evidence on record whether the finding of the learned Additional Sessions Judge that the incident in question was a free fight is borne out by the evidence on the record and circumstances of the case. According to the old warabandi, the forest department bad their turn from 6‑00 a.m. to 6‑24 a.m. on 23‑10‑1972, followed by Noor Muhammad etc. from 6‑24 a.m. to 8‑07 a.m. Noor Muhammad is the father of Said Ahmad deceased and Hayat P. W.

11. There is nothing in the evidence to disclose that the forest department took their turn, which obviously means that Noor Muhammad etc. could also take the turn of the forest department from 6 a.m. right through till 8.07 a.m. What actually appears to have hap pened is that Mamoora and others, appellants, who had their turn of water according to the old warabandi between 4‑49 p.m. and 9‑03 p.m. on Monday, very likely thought that their turn started the same day from 4‑49 a.m. to 9.03 a.m. instead of from 4‑49 a.m. to 9‑03 a.m. on Tuesday, 24th October, 1972. This misunderstanding appears to have occurred due to the long time that elapsed between the date when the amended‑warabandi was first sanctioned by the Canal Authorities in March, 1972, and the date when it was announced on 19th October, 1972 that it would be enforced on 23rd October, 19

72. The appellant Mamoora and his group, being under the wrong impression that their turn started on Monday morning at 4‑49 a.m. were there at the Moga taking their turn of water, when the complainant party, who had the option of taking the forest department's turn at 6 a.m., in case they were not present to take their water, 'and of right had their own turn started from 6‑24 a. m., obviously found their water blocked by the appellant Mamoora and others. Whether the occurrence took place exactly at 6 a.m., as alleged, or at about 6.24 a.m., is not material, but the fact remains that it was near this time. The evi dence of the eye‑witnesses is clear that the complainant party did argue with the appellant group that it was their turn of water and that Mamoora appellant and others should desist from preventing the flow of water to their land. There is nothing on the record to suggest that both the sides had by then armed themselves in readiness for an attack on each other. Rather, it appears that during the arguments and bickering, the supporters of both Mamoora appellant and Hayat, on the one side, and Dosa P.W. on the other, who had their dharis 1 to 2 squares away from the spot, came with whatever weapons they could pick up and that a sudden fight arose out of the sudden quarrel, in which members of both the parties inflicted injuries on each other. We are of the view that the case is not one of free fight as we do not think that both the parties after pre‑concert came to the spot with the primary intention or motive to measure their strength and in course thereof inflicted injuries on each other. The fact that Muhammad Amin and Muhammad Ismail appellants and Muhammad Hayat PW 11, each had a gun, and Said Ahmad deceased sustained pellet wounds on his right ankle and Nawaz accused sustained pellet injuries on o the front side of his right and left thigh, show that the intention of the parties was not to kill each other. Had it been a case of free fight, the guns and other weapons on either side would have been used more effec tively. We, therefore, disagree with the view that the case is one of free fight, and, rather, hold that the incident is one of a sudden fight in the. beat of passion upon a sudden quarrel.

17. So far as the medical evidence is concerned, it assumes impor tance in determining the culpability of each of the appellants. The fact that it corroborates the injuries inflicted by each of the appellants, as given by the prosecution witnesses, cannot be denied. The analysis of this evidence made by the learned Additional Sessions Judge is correct. The same has not been adversely commented upon by the learned counsel for the appellants. We, therefore, do not. disprove the view taken by the learned Additional Sessions Judge in respect of this evidence.

18. In view of the findings given by us in para 16 above, the con. viction of all the appellants, as found by the learned Additional Sessions Judge, is hereby maintained, except the conviction of Nawaz, Mamoora and Aslam under section 302, P. P. C, which is altered to that under sec tion 304‑1, P. P. C. From the committal and trial Court records, it appears that all the appellants were in custody as under trial prisoners. from 27 30th October, 1972, when they were arrested, upto 18th December, 1975, when judgment in their case was announced by the learned Additional Sessions Judge. It was not till 23rd December, 1975 that Amin, Talib and Ismail, appellants, were released on bail by the learned Sessions Judge under section 426 (2‑A), Cr. P. C. Later, they were granted bail by the High Court on 14th January 1976 under section 426 (i), Cr. P. C. Mamma appellant was granted bail by the High Court on 30th June, 1976. Each appellant has, therefore, spent over three years in jail as an under trial prisoner apart from some period as a convict. In these circum. stances, the sentence of each of the appellants is altered as follows :‑ (a) Mamooi a, Nawaz and Aslam appellants under section 304‑I/ 149, P. P. C. to seven years' rigorous imprisonment and compensation of Rs. 1,000 each, in default of payment of which to suffer further six months' rigorous imprisonment each. Compensation, if recovered, shall be paid to the heirs of Said Ahmad deceased ; (b) Mamma appellant under section 326 P . P. C. to one year's rigorous imprisonment and a fine of Rs. 1,000 in default of payment of which to suffer further three months' rigorous imprison ment ; (c) Amin appellant under section 324, P. P. C. to sentence already undergone ; (d) Talib appellant under section 324, P. P. .C. to sentence already undergone ; (e) Muhammad Ismail appellant under section 323, P. P. C. to sen tence already undergone ; (f) Mamoora appellant under section 323, P. P. C. on two counts to sentence already undergone on each count ; ‑ (g) Nawaz appellant under section, 323, P. P. C. on three counts to sentence already undergone on each count ; and (h) Aslam appellant under section 323, P. P. ;S00 sentence ready undergone. The sentences awarded to Mamoora, Nawaz and Aslam appellants under the different sections and on separate counts shall run concur, rently.

10. There being no merit in the revision petition filed by Dost Muhammad, the same is dismissed.

20. In view of the findings given above, , Amin, Talib, and Muhammad Ismail, appellants, who are already on bail, shall not be taken into custody in this case, unless they are wanted in some other case. Their bail bonds stand discharged. Mamma alias Mamman shall be taken into custody to serve out his balance sentence. Order accordingly.