1973 P Cr (PLP)

Ahmed: "(1) One oblique lacerated oval wound (wound of entrance) 1 "x " in die on the right side of the soymphasis pubis. (2) Seventy lacerated oval wounds " in die above and to, the left of the injury No. 1 scattered in area 9" in diameter. (3) Two lacerated oval wounds " in diameter on the front penis. (4) Four lacerated oval wounds " in die on the upper part; in front of the right thigh. (5) Five oval-apertures " in diameter on the left side of the scrotum." According to the medical officer the injuries had been caused by gunshot. The death was due to shock and haemorrhage as a result of the gunshot wounds. He was of the opinion that injury No. I was sufficient in the ordinary course of nature to cause death. Two pieces of wads and 12 pellets were found in the urinary bladder and 8 pellets were found in the large intestine. Minhoon (Appellant) "(1) Swelling on the left side of the scalp but no superficial injuries are seen. (2) One oblique lacerated wound " x 1/8" x skin deep on the left side in front of the head." When Minhoon injured was taken in the hospital he was in semi coma condition and was therefore referred to the Civil Hospital. Dadu, X-ray and treatment. X-ray report did - not disclose any fracture but one side of the body of the injured had gone partially paralysed as a result of the head injury. He remained in the hospital up to 26th December 1965 when he was discharged -cured. However, no question was put to the medical officer as to She weapon with which the injury was caused. Kundho (Appellant) "(1) One oblique incised wound 2 " x " x scalp deep on the right side of the head, on the parietal bone. (2) One longitudinal lacerated wound 1" x " x scalp deep on the right side of the frontal bone. (3) One longitudinal lacerated wound 1 " x " x scalp deep on the left side of the frontal bone. (4) One oblique lacerated wound " x " x scalp deep on the upper part of the occipital bone. (5) One oblique incised wound " x " x scalp deep on the lower part of the right side of the occipital bone. (6) One oblique bruise 2" x " on the back of left shoulder." According to the medical officer injuries Nos. 1 and 5 had been caused by a sharp cutting weapon such as hatchet and the rest by blunt weapon such as laths or head of the hatchet. On X-ray examination fracture of right parietal bone at the side of injury No. 1 was detected. Mohib All (Appellant). "(1) One oblique incised wound 2" x " x scalp deep on the -middle of the frontal bone. (2) One oblique incised wound 2" x " x. scalp deep on the posterior part of the left parietal bone. (3) One oblique incised wound 1" x 1/6" x skin deep on the .right side of the nose. (4) One oblique incised wound 4" x " x " on the left side .of the chest extending 1 " lateral to the left nipple up to the posterior fold of the left axila. (5) One oblique incised wound 1" x " x " on the back of the middle of the left arm. According to the medical officer the injuries had been caused by sharp weapon and were simple in nature. In view of the injuries on both the parties the main question to be determined in this case is which of the parties was the aggressor and whether it is a case of free fight. On the assessment o the evidence I am of the view that it is a case of sudden fight ensued on the spur of the moment and both the parties simultaneously attacked each other. So neither party had the right of private defence. In the first place there is the dying declaration Exh. 28 of Ahmed deceased recorded by the S. H. O. at the police station before he was sent to the hospital. Then, there are four eye-witnesses, namely, Allahwarayo Muhammad, Allahdino and Dost Muhammad. According to their evidence Ahmed deceased was grazing cattle in the land of Muhammad Siddiq which was objected to by the appellants who came armed with different weapons and on his refusal to take away the cattle he was attacked. Allahwarayo and Muhammad who were m their field nearby intervened but injuries were also inflicted upon them. It is further in evidence that gunshots were fired by Dadan (since dead) at Ahmed deceased while Mohib appellant gave hatchet blows to him. So far the injuries upon Allahwarayo are concerned it is said that Minhoon appellant felled him on the ground and then the appellants inflicted injuries upon him. On the other hand the case of the appellants is that Ahmed appellant was grazing buffaloes in their field where there was loosan crop and the buffaloes were being taken to the cattle pound when Ahmed and others asked them to release the buffaloes and on their refusal injuries were inflicted upon them. The presence of the appellants at the scene of offence can hardly be disputed. Appellants Kuniho, Mohib and Minhoon had not only injuries but they admitted their presence. So far Buxal is con cerned his presence was denied but it is proved by the fact that the gun borne on his licence was snatched by Allahwarayo and was produced before the police. The appellants had admitted that the gun produced by Allahwarayo before the police belonged to Buxal but it was claimed that his gun was taken away by Minhoon appellant but this cannot be accepted. The first question in this case necessarily arises as to the exact spot where the incident had taken place. According to the prosecution the incident had taken place in the land of Muhammad Siddiq, while according to the appellants the incident had taken place in the land of Pathan which was cultivated by them. The contention of the appellants is supported by the material on record. In the first place there is the evidence of Hidayatullah tapedar that there was no land of Siddiq but the land belonged to Mst. Asiat wife of Warial Shah. Two survey Nos. 163 and 164 belonged to Pathan. According to the evidence of the tapedar in Kharif and Rabi of 1965-66 some portions of 163 and 164 were under cultivation and some were lying uncultivated. According to the appellants the incident took place in Survey No.

164. Then there is the evidence of Dilawar mashir of the scene of offence which was said to have been situated in Survey No. 164 as revealed in the Mashirnama Exh.

13. There was also blood and marks of fight. It was also mentioned in the-Mashirnama that there were plants of rapeseed at certain places. Of course the mashir denied this but he was confronted with the: Mashirnama. The Mashirnama also shows that the grass and paddy stumps were found trampled. Alimardan who acted as mashir in the counter-case clearly stated in his evidence that the scene of offence was situated in survey No. 164 belonging to, Pathan and there was rapeseed cultivation and loosan crop in the other part of the same survey number. Mr. Fazal Hussain. Shah, S. H. O. also supported the presence of blood in the field of Pathan. He further stated that there were a few plants of rapeseed in that land. According to him there were also stumps which had been found trampled. He also stated that both the scenes of offence were situated in the land of Pathan. Furthermore, it is said that the complainant was carrying a wooden fork and he inflicted injuries upon the appellants in self-defence. The statement is equally false as the medical evidence shows number of incised wounds on two of the appellants. The prosecution has failed to explain such injuries on the appellants. In the circumstances there is no manner of doubt that Ahmed4 deceased was grazing the buffaloes in the field of the appellants, and it was objected to. It further appears that there was somealtercation between the deceased and on commotion the witnesses as well as some of the appellants arrived there from their village and they attacked each other. In case the appellants had con prepared to fight there is no reason why Buxal who was armed with a gun did not fire a single shot and on the contrary allow the gun to be snatched by the witnesses. It is not unusual when there is commotion of such type the people from the villages run to that spot and carry whatever weapon they can lay hands upon. So mere carrying of weapon does not necessarily mean that the bad already made up their mind to fight and inflict injuries upon other side. Having come to the conclusion that it is a case of sudden fight as a result of the altercation between the deceased and, soma of the appellants on account of the fact that Ahmed deceased was grazing cattle in the land of the appellants, the criminal liability, of the persons taking part in the fight is not covered by section 141, P. P. C. and so there was no common object of committing murder. It therefore follows that the criminal liability of the appellants will be confined to the part played by every one of them. According to the evidence the fatal gunshots were fired at Ahmed deceased by Dadan who died during the pendency of this appeal. So far Buxal appellant is concerned be did not fire any t hot and no part has been assigned to him. He, therefore, is not guilty of any offence. Out of the remaining three appellants. Mohib appellant is said to have given hatchet blow to Muhammad so he will be guilty of an offence under section 324, P. P. C. The remaining two appellants viz. Kundho and Minhoon are said to have given lathi blows to Allahwarayo and, therefore, they will be guilty of an offence under section 323, P. P. C. In the result, I set aside the conviction and sentence passed against Buxal appellant and acquit him, while I alter the conviction of appellant and Mohib from an offence under section 148, 364/ 149. 326/ 149 and 313/ 149 to one under section 324, P. P. C. and that of appellant Kundho and Minhoon from under sections 148, 304/149, 326/149 and 323/149 to section 323, P. P. C. -So far the sentences is concerned the appellants were convicted on 15th June 1968 and they were released on bail on 28th January 1969. Since the injuries on Allahwarayo and Muhammad were simple the sentence already undergone would meet the ends of justice. The sentence is, therefore, reduced accordingly. With this modification the appeal of appellants Kundho, Mohib and Minhoon is dismissed while the appeal of .appellant Buxal is allowed. Order accordingly.