1988 P Cr (PLP)

NAZIR AHMED BHATTI, J.-- This appeal against acquittal filed by the State under section 417, Cr.P.C. is directed against the judgment, dated 15-11-1979 of Sessions Judge, Mansehra whereby he acquitted all the three respondents of the offences under section 302/326/323/34, P.P.C.

2. On 31-10-1978 at 7-00 hours complainant Muhammad Ayub, his father Ahmed Ali and his brother Yusuf had gone to the house of the respondents accompanied by Makhan son of Habib, Hussain son of Habib Abdur Rehman son of Sain and Maulvi Fazal Elahi in connection with the settlement of the dispute which had arisen between the complainant party and the respondents over the goats of the complainant party having grazed the maize crop of the respondent party the previous night. During conversation about the settlement and altercation took place between complainant party and the respondent party as a result of which respondent Said Khan, who was armed with a sword, injured complainant Muhammad Ayub on the left shoulder and elbow and respondents Sadro and Ghulam Nabi, who were armed with sticks, injured Yusuf brother of the complainant on the head. There was no other previous enmity between the parties. Muhammad Ayub complainant was taking his injured brother Yusuf, who was out of senses at that time, to the police station for lodging the report but in the way he met Muhammad Iqbal Khan S.H.O. Police Station Shinkiari at village Sum to whom he reported the occurrence who recorded the same and sent Murasila to police station where F.I.R. No. 209 was recorded. Subsequently, injured Yusuf died as a result of the injuries. All the three respondents were sent up for trial in the Court of Sessions Judge, Mansehra, where they were charged under section 302/326N323/34, P.P.C. to which they pleaded not guilty and claimed trial. The State produced fourteen witnesses in proof of the prosecution case, out of whom P.W. 10 is complainant Muhammad Ayub and P.W. 11 is Ahmed Ali father of the deceased. These two witnesses and P.W.12 Abdur Rehman are eye-witnesses of the occurrence. P.W.5 Taj Muhammad was present with respondent Said Khan who, while in police custody, had brought out sword, EXh.P.l, the alleged weapon of offence from inside his house and handed over the same to P . W . 9 Sadiq Shah A . S . I . who had taken it into possession by memo. Exh.P.O.

3. P.W.12 Abdur Rehman is the person who had accompanied the complainant party to the house of the respondents for effecting a compromise between them. He is not related to any of the parties. He stated at the trial that the goats of P.W.11 Ahmed Ali had damaged the maize crop of the accused on the night preceding the day of occurrence and on the said day a Jirga had assembled in the house of the respondents to work out the compensation. The Jirga consisted, of this witness, Maulvi Fazal Elahi, Makhan, Hussain, Sain, Gh6lam Haider and complainant Muhammad Ayub, his father Ahmed Ali and Yusuf deceased. The Jirga decided that Yusuf deceased should pay eight Odhis of maize and Rs.50 as compensation to the respondents. Deceased Yusuf asked the respondents to accept one Odhi maize as compensation or else go the police station for the redress of their grievance. On this a fight ensued between them which resulted in the murder of Yusuf who was given stick blows by Sadru respondent. One of the respondents also injured P.W.10 Muhammad Ayub. The latter appearing as P.W.10 corroborated the contents of the F.I.R. lodged by him and stated that respondent Said Khan, who was armed with a sword, aimed sword blow on his head but he warded it off by raising his hand whereby his hand was injured. Then respondent Said Khan dealt another sword blow on his shoulder. He has further stated that respondents Sadru and Ghulam Nabi, who were armed with sticks (Sotas), both gave blows to Yusuf who was injured, lost consciousness and subsequently died. This witness remained in the hospital for 44 days. Similar is the testimony of P.W.11 Ahmed Ali. Ghulam Haider another son of Ahmed Ali of the complainant party had also received some injuries but he was not produced as a witness at the trial, although he was examined by P.W.3 Dr. Abdur Rauf Khan. The complainant Muhammad Ayub and his brother Yusuf were examined by P.W.14 Dr. Junaid Akhtar who had found two incised wounds one each on the left elbow and left shoulder of complainant Muhammad Ayub and blunt weapon injuries on the body of Yusuf deceased. The doctor was of the opinion that all the injuries on the person of Yusuf collectively and injury No. 3 individually were sufficient in the ordinary course of nature to cause death.

4. All the three respondents in their statements under section 342, Cr.P.C. denied the commission of the offence. Respondents Sadru and Ghulam Nabi denied that some sticks had been recovered from them at their instance. Similarly respondent Said Khan denied that the sword, EXh.P.1, had been recovered from him at his instance. Respondent Sadro made the following further statement:

"I am innocent and falsely charged. Actually Yousaf deceased was a desperate and man of short tamper. He broke off the negotiations of the Jirga and when requested to cool down he got infuriated. The parties and the witnesses started walking in the field of Mehmood when we were close to each other. Ayub (P.W.) suddenly gave me a stick blow from behind, when Yousaf deceased was standing just in front of me carrying an axe. I was in a fix and apprehended death if I did not react in the situation in which I was placed I had no choice but to strike the deceased in order to disable him. The deceased had given me an axe blow and was about to give me another blow when I hit him." Respondent Said Khan also made the following further statement:

"I am innocent and falsely charged. Yousaf deceased was a desparado with short tamper. He sabotaged the negotiations of the Jirga and when requested to cool down got infuriated. The parties and the witnesses started waiting in the field of Mehmood. When we were close to each other Ayub P.W. all of a sudden gave a stick blow from behind to my brother Sadro accused. Yousaf deceased was standing in front of Sadro armed with an axe with which he gave a blow to Sadro and was about to inflict another blow when Sadro gave him a stick blow to save his life. Muhammad Ayub P.W. who was standing behind Sadro had aimed another stick blow at Sadro so I was compelled to disable him by using an axe which I had picked up from the roof of my house. Our women folks also pelted stones on the complainant party when we were under attack by them."

5. It shall thus be seen from the above that the goats belonging to the complainant party had actually damaged the maize crop of the respondents on the night previous to the day of occurrence that on the said day the complainant party had taken a Jirga to the house of the respondents and P.W.12 Abdur Rehman was a member of that Jirga, that during the negotiations tampers went high and fight toox place between the parties and that as a result of that fight P.W.10 complainant Muhammad Ayub received two injuries on his left elbow and left shoulder with a sharp-edged weapon and Yusuf brother of the complainant received injuries on different parts of his body by a blunt weapon and subsequently expired as a result of those injuries. Respondent Sadro also received a lacerated wound on scalp and two bruises on the right deltoid region and right elbow.

6. It is to be borne in mind that the occurrence had taken place near about the house of the respondent party. It has also come in evidence that the complainant party were not in possession of any kind of weapon at the time of occurrence. Moreover the injuries sustained by respondent Sadro are very minor and of superficial nature and could be caused by grappling. The prime question for determination, therefore, is as who initiated the occurrence and who were the aggressors. It has been established that the complainant party accompanied with other persons of the village had gone to the house of the respondent party to effect a compromise with the latter, The negotiations for the compromise took place inside the house of the respondents. The testimony of the complainant party about the respondents being in possession of weapons has been fully corroborated by the testimony of P.W.12 Abdur Rehman, who was a member of the Jirga and who is not related to any of the parties. The prosecution evidence in this regard is that respondent Said Khan had brought out a sword and had inflicted two injuries on the body of complainant Muhammad Ayub whereas respondent Sadro was armed with a stick and he gave stick blows to deceased Yusuf. Although the complainant and his father P.W. 11 Ahmed Ali have both deposed that respondent Ghulam Nabi was also armed with a stick and he had also given stick blows to deceased Yusuf but this part of the complainant's story has not been supported and corroborated by P.W.12 Abdur Rehman according to whom only respondent Sadro was armed with a stick anti he had given stick blows to deceased Yusuf. It is also a fact that the crop damaged by the goats of the complainant party belonged to the accused party and they were aggrieved by that circumstance. Although the Jirga has fixed compensation to be paid by deceased Yusuf to the accused party but he had refused to make payment of the entire compensation and hence an altercation had ensued. Bearing all these circumstances in mind it should not be difficult to determine that the respondents were the aggrieved party and they were annoyed by the meagre amount of compensation and the refusal of deceased Yusuf to even pay that. They were annoyed and actually it were the respondents who were the first to initiate the occurrence and they were the aggressors. They were also present inside their own house and it was very easy for them to procure weapons. On the contrary it has been proved that the complainant party were unarmed. As such more than sufficient evidence had come on the record to prove that the occurrence was initiated by the accused party and respondent Sadro had given stick blows to deceased Yusuf and respondent Said Khan had given sword blows to P.W.10 Muhammad Ayub complainant. 6-A. The next question requiring determination is whether the offence had been committed by the respondent by their common intention. In this respect it is to be borne in mind that the fight flared up suddenly without any premeditation. The tampers rose high after oral altercation between the parties. The respondents in the heat of passion brought out weapons from inside their house and respondent Sadro attacked deceased Yusuf and respondent Said Khan attacked complainant Muhammad Ayub. There was neither any premeditation in this affair nor any common intention. The nature of the injuries sustained by the deceased and the complainant would also show that they both were attacked by different persons. This circumstance would also show that there was no pre-concert between the respondents, about the offence. From the evidence recorded during the trial it' has been proved beyond any doubt whatsoever that Yusuf was injured by respondent Sadro by stick blows and as a result of which he succumbed to the injuries. The doctor has clearly stated that the injuries sustained by Yusuf were collectively and especially injury No. 3 individually was sufficient to cause the death of Yusuf. Complainant Muhammad Ayub was injured by a sword by respondent Said Khan. Although respondent Sadro denied that the stick, the alleged weapon of offence, was recovered at his instance but there is sufficient evidence on the record to prove that this weapon was recovered from his house and at his instance. Similarly respondent Said Khan had denied that the sword, the alleged weapon of offence, was recovered at his instance from inside his house but this circumstance has been clearly proved from the prosecution evidence. Moreover, P.W.12 Abdur Rehman has clearly stated that respondent Sadro had given stick blows to deceased Yusuf and respondent Said Khan had given sword blows to complainant Muhammad Ayub. The testimony of this P.W.12 Abdur Rehman would clearly establish that respondent Sadro was armed with a stick and respondent Said Khan was armed with a sword and both these weapons were recovered from inside their house at their instance.

7. The learned Sessions Judge failed to appreciate the aforesaid circumstance of the case. On the contrary he laid emphasis on the place of occurrence and disbelieving the statement of the complainant' and his father he also disbelieved the entire prosecution story. We are of the considered opinion that the learned Sessions Judge placed undue emphasis on the place of occurrence in this case. In view of the direct, independent and strong prosecution evidence about the commission of offence by respondents Sadro and Said Khan the place where the occurrence took place was hardly of any significance. In so far as respondent Ghulam Nabi is concerned he has not been charged for any offence by the independent and uninterested eye-witness, P.W.12 Abdur Rehman.

8. The respondents have taken up the plea of self-defence. They have stated that the fight was initiated by the complainant party and they had inflicted injuries to them in defence of their person. However, this plea has not only been not substantiated by them but has also been belied by the aforesaid prosecution evidence. Since the respondents had themselves initiated the fight and they were the aggressors, the question of right of self-defence in their favour does not arise.

9. It has been proved from the prosecution evidence that the occurrence took place without any premeditation. There was no intention on the part of respondent Sadro to cause the death of Yusuf or to inflict such injuries on him as would cause his death. He had, therefore, no intention to kill Yusuf but he was aware of the fact that he had caused such injuries to deceased Yusuf which resulted in his death. Similarly respondent Said Khan had caused injuries to complainant Muhammad Ayub by a sharp-edged weapon. Since the occurrence took place all of a sudden without any premeditation, therefore, each of the aforesaid two respondents is responsible for only his part in the offence. As such respondent Sadro is guilty under section 304, Part I, P.P.C. and respondent Said Khan is guilty under section 326, P . P . C .

10. We would, therefore, accept this appeal, set aside the impugned judgment of the learned Sessions Judge, Mansehra and would convict respondent Said Khan under section 326, P.P.C. and would sentence him to undergo R.I. for five years and to pay a fine of Rs.2,

000. In default of payment of fine he shall undergo further R.I. for one year. We would also convict respondent Sadro under section 304, Part I, P.P.C. and would sentence him to undergo R.I. for 10 years and to pay a fine of Rs.3,

000. In default of payment of fine he shall undergo further R.I. for two years. We have refrained from imposing the penalty of imprisonment for life on respondent Sadro for the reason that he had the initial benefit of acquittal in his favour. We would further direct that respondent Said Khan shall pay a compensation of Rs.3,000 to the complainant Muhammad Ayub under section 544-A, Cr.P.C. failing which he shall further undergo R.I. for three months and respondent Sadro shall pay a compensation of Rs.5,000 to the heirs of deceased Yusuf failing which he shall undergo R.I. for six months. Both the aforesaid respondents are on bail, their bails are cancelled and they shall be taken into custody in order to undergo the sentences. Both the aforesaid respondents shall, however, be entitled to the benefit under section 382-B, Cr.P.C. Finding respondent Ghulam Nabi not guilty we would dismiss the appeal with regard to him. M. B. A./581/P??????????????????????????????????????????????????????????????????????????????????? Order accordingly.