P L D 1965 Supreme Court 196 (PLP)

CORNELIUS, C. J.‑This appeal by special leave is brought by four appellants, Ghulam Haider, Gul Rang, Nur Elahi and Mehr Khan, whose convictions under sections 302, 307 and 325 read with section 149 as well as section 148, P. P. C., were confirmed on appeal by the High Court, a death sentence awarded to Ghulam Haider being confirmed at the same time. The other three appellants had been awarded transportation for life for the major offence. Three other persons, Allah Wasaya, Chan and Karam Elahi who had been similarly convicted at the same trial by the Sessions Judge were acquitted. The order granting leave to appeal reads as follows "The argument advanced is that the physical facts clearly indicate that there was a clash between two fully‑armed groups of men. There was a death on each side, and the tally of injuries on the accused side is higher than that on the prosecution side. There was a cross‑case, for the death and injuries on the accused side, which failed, and the judgment in the present case shows that there was lack of diligence by the investigating police A in relation to the allegations made to them in the cross‑case, which were contemporaneous with those in the present case. In these circumstances, it is urged, the High Court should have examined the evidence as to the manner in which' the clash came about with greater care, since the question has a direct bearing upon the nature of the offence." We have been taken through the record with the aid of Mr. Mahmud Ali for the appellants, and Mr. Iftikhar‑ul‑Huq Khan has presented the case for the State. Although in the judgment of the High Court, the immediate cause for the outbreak of violence is traced to two incidents, which had taken place between the parties on the 15th and the 16th October, 1961, exclusively, it seems clear enough that the cause of bad blood between them must be traced to a much earlier occurrence, namely, the fact that the accused persons being Awans, one of their women, a sister of Mst. Bakhat Bano, mother of the appellant Gul Rang, married a member of the opposite‑party, namely, the complainants in the present case, who are Mochis. The learned Judges in the High Court have concluded that the aggression was on the side of the accused persons, basing on a single fact, namely, that on the day before the occurrence, i.e., the 16th October 1961, there had been grappling between Gul Rang appellant and Ghulam Muhammad, an injured person in the case, in the course of which Gul Rang was slapped. This conclusion in our opinion does not take sufficiently into account a number of important circumstances appearing clearly on the record. It is true that the clash took place in front of the shop of Khaki Jan, a brother of the aforesaid Ghulam Muhammad, both being sons of Ghulam Habib who was killed in the fight, and that the accused persons were living at the time of the incident in Dhoks situated about two miles outside the village. The time of the occurrence was 7 a.m., and the accused persons gave the reason for their presence that they had come to the shop of one Neka Lohar, which adjoins that of Khaki Jan, for their own purposes. There is evidence, however, that Neka is a labourer, and does not work at the shop, which belongs to a relation of his named Wali Muhammad who was not in the village at the time. This circumstance alone, however, is not sufficient to overcome certain clear facts which, in our opinion, establish, that there was at least an equal fight between the parties, with equally heavy weapons. On the side of the complainant, besides Ghulam Habib, who was killed, two men, namely, Khaki Jan and Ghulam Muhammad were injured as well as one woman, Mst. Mulkhan. Ghulam Habib received three blows on the head, one with a sharp‑edged weapon, which was fatal and four other minor injuries. Khaki Jan received two blows on the head, one being a contused wound, and had four contusions elsewhere, there being a fractured bone on the left arm there was also one minor injury. Mst. Mulkhan had a contused wound on the head showing a lathi blow, and two contusions, one being on the right hand, where a bone was broken. Ghulam Muhammad received 14 injuries in all, six being on the head of which three were contused wounds. The case was that these four persons being unarmed were subjected to a concentrated and planned attack by eight men, who were armed with two hatchets, a khunda and five dangs. If that version were true, it would be difficult to find more than a few stray injuries on the persons of the assailants. In fact, however, their injuries were so numerous that it is impossible to accept this story. One of their number, Haitam by name, brother to the accused Gul Rang, was killed, as a result of at least four blows, one being with a hatchet on the head which was necessarily fatal. Gul Rang himself received ten blows, two of them apparently with a hatchet. Ghulam Haider had an incised wound, clearly the result of a hatchet blow, as well as four minor injuries. Nur Elahi had a contused wound on the head, and another blow mark on the right shoulder. One woman was injured on their side as well, namely, Mst. Bakhat Bano, whose body showed no less than 10 injuries, four being wounds on the head, one of which was a cut wound, in addition to which she had a number of contusions and abrasions. The sister of this woman had married a Mochi and this had given offence to her Awan baradri. The last injury to be mentioned on the two sides is a very minor one found on the person of Mehr Khan appellant. If proper weight had been given to the tally of injuries on each side, it was in our opinion, scarcely possible to come to the conclusion reached by the learned Judges that the three men and a woman on the complainant side were subjected to a planned surprise attack by the accused party numbering 8 persons. The approximate equality of injuries indicates clearly a clash between two equally armed and prepared parties, between whom there was deep‑seated resentment, which had been quickened by an incident on the previous day. Although the Awan party resides in Dhoks outside the village, yet as they belong to the village, their presence in the neighbourhood is not necessarily to be related to any criminal motive. They might well have been there on an innocent occasion, and that view is clearly supported by the presence with them of the old woman, Mst. Bakht Bano. The learned Judges in the High Court appear to have considered the latter circumstance as proving an intention to attack. They have expressed themselves in the following words:‑ "The presence of these four appellants along with Haitam deceased armed with weapons described in the beginning of the judgment along with their women‑folk soon after sunrise in the Mohalla of the deceased would show that they had come armed with a view to attack the complainant party on account of the B previous day incident." In our view, the presence of women in the company of the accused persons by itself shows that they were in the village on an innocent occasion, rather than the contrary. Relations between the parties were such that a mere word out of place would have led to a clash such as took place, and the results themselves prove that it was by no means an unequal fight. It should be mentioned that the cross‑case against a number of the witnesses in the present case, for the murder of Haitam, and injuries to his companions, ended in acquittal. Where there are such cross‑cases, it is usual to find each party representing itself as being innocent of responsibility for the clash and even denying all responsibility for causing injuries. It is necessary therefore in reaching a conclusion as to the true nature of the incident, to bear in mind all the surrounding circumstances, and in particular to observe the balance of injuries received and injuries inflicted.. In the present case, these material circumstances are sufficient to satisfy us that the incident is to be regarded as a sudden fight following a flare‑up between two parties which were highly inimical towards each other. The confrontation does not appear to have been designed on either side. The consequence in law is that the offence of each participant would fall to be punished on proof as to the individual injuries caused by him, there being absence of constructive liability. It would not necessarily follow however that in a case where death has been caused, no offence more serious than one of culpable homicide not amounting to murder can be thought to have been committed. In this view of the matter we find on examination of the record that in the first information report, the fatal blow to Ghulam Habib on the head with a hatchet was attributed exclusively to Ghulam Haider. This was also the opening blow in the fight. In evidence, however the witnesses said that Gul Rang and Mehr Khan also hit Ghulam Habib on the head, but that is clearly an improvement. The first information report was not lodged in any haste. The conclusion must therefore be that, since it was made by a person who himself was involved in the attack, his failure to mention any other blow by an individual accused person on the head of Ghulam Habib indicates uncertainty on the point. We would prefer to hold that the death of Ghulam Habib is to be laid at the door of Ghulam Haider alone. As to Gul Rang, all the witnesses are agreed and it is stated also in the first information report that he caused the blow to Khaki Jan which broke his arm. The evidence is that Haitam and Khaki Jan engaged in an equal fight with hatchets and it was then that Gul Rang hit Khaki Jan on the arm with a Khunda breaking his bone. There being consistency on this point, the most serious offence of which Gul Rang can be held guilty is one punishable under section 325, P. P. C. As to the other two, namely, Nur Elahi and Mehr Khan, the consistent evidence is that they beat Ghulam Muhammad and Mst. Mulkhan with lathis. There was a small fracture of a finger bone to Mst. Mulkhan, but it is by no means clear who caused it, and two of the persons who were said to have beaten her, namely, Allah Wassaya and Chan have been acquitted. Accordingly, Nur Elahi and Mehr Khan cannot be held guilty of any offence more serious than simple hurt. As a result of this analysis, we allow the appeal of Gul Rang to this extent, that we maintain his conviction only under section 325, P. P. C., setting aside the other convictions and reduce the sentence under section 325, P. P. C., to two years' rigorous imprisonment. In the case of Nur Elahi and Mehr Khan, we set aside all the convictions recorded by the Courts below, and in their place we convict each of them under section 323, P. P. C., and award a sentence of one year's rigorous imprisonment. But in the case of Ghulam Haider, we find 'it established on the evidence, that he commenced the fight with a hatchet blow on Ghulam Habib's head, which fractured the skull and was necessarily fatal, and we consider that he has been rightly convicted under section 302, P. P. C., which conviction we accordingly maintain, but in view of our finding as to the absence of planned aggression, and the fact that there was thereafter an equal fight between the parties, we consider that justice would be sufficiently done in this case by imposition of the lesser sentence, namely, transportation for life, and we direct accordingly. His other convictions and sentences recorded by the Courts below are set aside. A. H. Order accordingly.