1987 PLP 1489 (MLD)

Injuries of deceased Jawed Iqbal. (1) Incised wound on the right side of abdomen just below the rib on the interior axillary line size 2 cm x 1 cm x 5 cm deep. (2) Incised wound on the right side of chest on the back in the 9th intercastal space size 2 cm x 1 cm x 5 cm. (3) Incised wound on the left side of buttock size 1 cm x cm. (4) Incised wound 21 cm above the laternal to injury No.3 size cm x skin deep. Injuries of injured Alamdar Hussain (1) Incised wound on the back of left thigh in the middle size 3 cm x 1 cm x 3 cm. (2) Incised wound on the lateral side of left chest in the region of 10th intercastal space size 3/4 cm x cm x skin deep. The complainant and the witnesses have not stated anything about the injuries received by the accused persons. In the first information report as well as in their deposition at the trial they have not said that the accused persons have also received injuries. The medica5 certificates of the accused show that they have also received injuries. The nature of injuries are as under. Injuries of accused Abdul Rashid. (1) Incised wound on the 8th intercastal space on the front of chest 4 cm from mid line size 2 cm x 1 cm. Injuries of accused Islamuddin. (1) Incised wound on 7th intercastal space in the mid acillary line on the right side of chest size 3 cm x 1 cm. (2) Contusion on the left biceps region size 3 cm x 3 cm. Injuries on the person of Tayyeb. (1) Incised wound on left index finger near its base. Size 2 cm x cm x skin deep. No definite opinion was recorded by the doctor as the injuries were under observation and Islamuddin and Rashid were referred to M.S. Nawabshah fox further treatment but the final certificates of these injured nave not been brought on record. The plea of the defence has not been considered by the doctor. Counter F.I.R. was lodged without any delay. The injuries received by the accused persons have not been explained by the prosecution. It is admitted that the incident had occurred near the houses of some of the accused. The complainant party had come at the Vardat. Though their explanation is that they were going to Imam Bara but as the accused persons have received the injuries the complainant party must have been armed with some sharp-cutting weapon. If they were going to Imam Bara then why they had come to the place of incident armed with sharp-edged weapons. The incident had occurred suddenly. There is nothing to suggest that it was a pre-arranged incident. It has been stated that the accused persons knew that the cutaplainant party would be passing on their way to Imam Bars. There is nothing on record to come to this conclusion. The witnesses are related inter se. Karim Bux complainant is maternal uncle of deceased Jawed and related to Bashir who was maroot of Karim Bux. Incident had occurred all of a sudden and both the parties have received injuries and the injuries have not been explained by the complainant party then the case would not fall under section 302, P.P.C. as observed by the learned trial Court.

4. In the case of Sharman v. The State of Punjab reported in PLD 1957 S C (India) 277 it has been observed that when two such contending parties, each armed with sharp-edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner, and the case clearly falls within exception 4 of section 300 of the Penal Code.

5. In the result the conviction of appellants Tayyeb and Abdul Rashid is converted to section 304(I) and they are sentenced to suffer R.I. for five years and a fine of Rs.1,000/ each and in default to suffer R.I. for six months. As regards appellant Islamuddin he was convicted by the trial Court under section 307, P. P. C. for causing injury to Alamdar Hussain. Alamdar had received two injuries, one is on the left thigh and the other on the lateral side of left chest. As stated above the incident had occurred suddenly and it is difficult to establish in the present case as to who was the aggressor. The conviction was changed from under section 307 to one under section 308 P.P.C. which provides that whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. In my opinion the circumstances of the case show that the case of the appellant Islamuddin falls under section 324 and not under section

307. In the case of Taj Muhammad v. The State P L D 1963 (W.P.) Kar. 118 it has been observed that intention is a state of mind which is not ordinarily ascertainable. Intention is to be gathered or inferred only from external acts and therefore for this purpose it is very necessary to examine the act itself of the accused. The accused have also received the injuries. The case falls under section 324 P. P. C . because the injured had received injuries by means of sharp-edged weapon. The injuries on the person of Alamdar Hussain were simple in nature, as such accused Islamuddin is convicted under section 324 P.P.C. and sentenced to 1 years R.I. and fine Rs.500/-. The appeal was disposed of by short order dated 20-11-1986 and the above are the reasons for the same. M.Y.H./T-13/K Order accordingly.