1984 P Cr (PLP)

He examined Nazar Muhammad P. W. and found an incised wound on left parietal region 12 c. m. x 1 c. m. x bone deep with suspected fracture underlined wound; a contusion on the back right shoulder 5 c. m. x 3 c. m. with swelling around and suspected fracture underlined wound. Both the injuries were kept under observation. Injury No. 1 was caused with a sharp-edged weapon whereas injury No. 2 with a blunt weapon.

6. At the trial the prosecution relied upon the following pieces of evidence :- (i) Ocular evidence given by Muhammad Yousaf P. W. 8 and Nazar Muhammad P. W. 9, the injured witness. (ii) The evidence as to motive furnished by Kaila P. W. 7 and Muhammad. Yousaf and Nazar Muhammad P. W. 8 and P. W. 9, respectively.- (iii) The recoveries, supported by the testimony of Muhammad Shafi S. I. P. W. 5, Ali Nasir S. H. O. P. W. 10. and Muhammad Hayat P. W. 6. (iv) The medical evidence given by doctor Muhammad Khan Malik P. W. 11.

7. The appellants and the co-accused when examined at the trial admitted their relation inter se. Alam Sher appellant and Yousaf co- accused denied all the allegations and professed innocence. They stated that they had been falsely involved in the case due to their relation with Dosa appellant. Dosa appellant stated that due to enmity over relations with the wife of Muhammad Yousaf complainant he had been falsely involved. He further stated that he was injured by Salehoon deceased and Nazar Muhammad P. W. during the occurrence but the police intentionally avoided to examine his injuries so as to change the complexion of the case. Nawaz appellant stated :- "I am innocent, Yousaf complainant suspected me of having illicit relations with his wife. Salehoon deceased, Nazar P. W. attacked me on the day of occurrence which attracted certain persons from nearby `jhugis'. They attacked and caused injuries to Salehoon and Nazra P. W. I had not given any injury to anybody I also received injuries during this occurrence but the police intentionally did not get me examined so as to change the complexion of this case." No evidence was led in defence.

8. The learned trial Judge dealt with the evidence of motive in para graphs Nos. 35, 36 and 37 and came to the conclusion :- "So in view of the matter, Yousaf and Nazra are independent P. Ws. having no ill-will against the accused. Both of them have deposed as to the motive asserting that 25 days prior to the occurrence, Mst. Bakhtan was divorced by Yousaf complainant. The relation of Yousaf with Salehoon is admitted. The relation of Mst. Bakhtan with the accused is admitted, and definitely the factum of divorce must have offended the accused and it is so proved on record that a day before the present occurrence, the women-folk of the parties exchanged abuses over this account which led to alter cation and the same was followed by the men of both the sides, wherein, the accused were on the one side and the parties were separated which has been fully deposed by Kaila P. W. This altercation between the parties is an immediate motive and it has been proved on record that the accused had the motive against the deceased for whom it is deposed that the accused suspected that Mst. Bakhtan has been divorced at his instance, which seems natural according to the prevalent set up of our society." He rejected the suggestions of the defence that since the occurrence took place near the jhughi of Dosa appellant as such the appellant acted in self-defence. As to the injuries alleged to have been suffered by Dosa and Nawaz appellants he observed that there was no proof of i.e. injuries caused to these appellants by the complainant-party since both the appellants remained free for three days, but neither they went to the hospital nor got themselves examined. Even at the time they appeared before the police they did not wish their examination. He believed the ocular testimony discussing the same in paragraphs Nos. 40, 41 and

42. However, he did not believe the recovery of dang P. 4 and dang P. 5 allegedly recovered from Yousaf co-accused and Dosa appellant since both were not stained with blood. He accepted the evidence as to the recovery of wahola P. 7 and hatchet P. 6 (blood-stained) recovered at the instance of Alam Sher and Muhammad Nawaz appel lants, respectively. Consequently giving the benefit of doubt to Yousaf co-accused he acquitted him. However, he convicted and sentenced the appellants as mentioned above.

9. The learned counsel for the appellants has contended that the deceased Salehoon and his son Nazra P. W. were not residents of the village. The deceased and his son had come to create mischief because Muhammad Yousaf complainant had suspected that his wife had illicit relation with Muhammad Nawaz appellant, so they wanted to punish him. The place of occurrence is in front of the house of Muhammad Nawaz, the reason given by the P.Ws. for coming near to the house of Muhammad Nawaz is false. The motive is false. It strikes quite unnatural because Muhammad Nawaz appellant was a distant relation of Mst. Bakhtan the wife of the complainant, being her khalazad. Muhammad Nawaz received injuries in the occurrence. Dosa appellant also received injuries but the prosecution suppressed the injuries as to both of them. Muhammad Yousaf P. W. 8 in his statement had admitted that Salehoon deceased was holding a small stick at the time of occurrence. Nazra P. W. 9 was confronted with his statement Exh. D. B. wherein it was recorded that Salehoon deceased was having a dangori. He was also confronted .with Exh. D. B. Wherein it was stated that Muhammad Nawaz and Dosa appellants received injuries at the hands of his father Salehoon deceased. Mst. Fateh Bibi died 25 days ago in village hadali therefore, to say that they had gone to condole the death of Mst. Fateh Bibi to the house of Chaenan whose wife's niece she was in Chak No. 55/N. B. is false. Alam Sher appellant was not present. Had he been present he would have also received injuries like Dosa and Muhammad Nawaz appellants. It is a case of self-defence as to Muhammad Nawaz appellant because the occurrence took place in front of the house of Muhammad Nawaz. The injuries as to Muhammad Nawaz and Dosa appellants were admitted but concealed by the prosecution. In the alternative the case is that of a sudden flare up, as such not of culpable homicide amounting to murder, therefore, it is to be measured accord ing to the individual liability. The case falls under section 304-II, P.P.C. where at the worst the appellants are liable either to five years' R. I. or seven years' R. I. except Dosa appellant.

10. The learned counsel for the State has in his reply submitted that no case of self-defence has been made out. The motive has been be lieved by the learned Additional Sessions Judge in para. No. 37 of his judgment and the plea of self-defence has been dealt with, in paragraph No. 44 of his judgment. However, it is admitted that the deceased was carrying a small stick but it is nowhere in the record that the deceased opened the attack first. It is also not there that he wielded his stick. It has already been held by the learned Additional Sessions Judge that if the deceased used his stick then he used that when he was attacked. The case against the appellants is fully proved. They are, therefore, not entitled to the benefit of Exception IV to section 300, P.P.C.

11. In view of the facts on the record it cannot be believed that the deceased and the P. Ws. were waylaid by the appellants because it ,could not be known before hand that the complainant-party would be returning by that time after condoling the death of Mst. Fateh Bibi and also it does not strike as probable that the complainant-party for the purpose of condoling the death of Mst. Fateh Bibi instead of her parents would go to a distant relation. It can also be not conceived that Alam Sher appellant who is son-in-law of Dosa appellant and is alleged to have challenged at the opening that he would avenge the divorce and then simultaneously inflicted wahola blows to Salehoon deceased, was in any way an aggrieved person and same wise Muhammad Nawaz appellant who only happened to be a khalazad of Mst. Bakhtan, was aggrieved, so also his father. The divorce had taken place 25 days before the day of occurrence, so the motive as set out is not forceful.

12. Dosa and Muhammad Nawaz appellants received injuries during the same incident the likelihood of which is very much there in view of the confrontation of Nazra P. W. with his statement before the police Exh. D. B. wherein it was stated that Salehoon deceased was holding a dangori and he caused injuries to Dosa and Muhammad Nawaz appellants, Muhammad Hayat P. W. also deposed the same though he was declared as hostile witness but nevertheless his statement remained a part of the record, so it can be inferred that the prosecution deliberately suppressed the injuries perhaps to strengthen its own version. It is within the evidence that a day before the occurrence complainant's mother and mother of Muhammad Nawaz appellants altercated with an exchange of abuses which was witnessed by Ramzan and Kaila P. Ws. It was also followed by an altercation between the men who were separated by Ramzan and Katla P. Ws. This is sufficient to indicate that the men on both the sides had become emotional not due to the divorc6 but due to the exchange of abuses between the two ladies. The occurrence took place in front of the house of Muhammad Nawaz appellant and as it has been said above that this was not a case of waylaying, then it comes to be a case wherein the parties per chance met on the thorough fare near the house of Muhammad Nawaz appellant and as they had a day earlier altercated, they once again entered into that on the day of occurrence. The appearance of both the parties at the scene amply shows that the complainant-party was not armed except that Salehoon deceased was carrying a dangori, therefore, there is no substance in the submission of the learned counsel for the appellants that the complain anti-party had come to attack either Muhammad Nawaz or all of them, the submission of the learned counsel that the appellants had a right of self-defence is not maintainable. Salehoon deceased cannot be said to have armed himself with a dangori because towards the waning age it is used as a support. In the absence of the medical examination as to the injuries which appellants Dosa and Muhammad Nawaz received, the injuries will be presumed as simple. Had the injuries been grievous, the appellants who were arrested three days after the occurrence, would have got themselves medically examined. As to the weapons with which the appellants were said to have been armed, no exclusive inference can be made that they had come prepared because in villages these are the weapons which are usually carried towards the process of husbandry. It was peshiwela and they could be taken to have come out with their instruments just to resume their ordinary pursuit, when the possession of weapons can be explained on any other line as well then no inference as necessarily is to be drawn from that fact so as to indicate the intention of the persons who carry such instruments. The prosecution cannot belie the infliction of injuries by Salehoon deceased upon Dosa and Muhammad Nawaz appellants. Most of the contentions. of the learned counsel have been met by the learned Additional Sessions Judge and there is no reason to differ with his findings in that behalf. There is much substance in the plea in the alternative raised by the learned counsel.

13. It appears as viewed from both the sides a case of sudden fight without premeditation in an altercation in which both the parties suffered injuries which aspect of the case has not been viewed by the learned trial Judge. Each of the appellants is said to have given one blow to the deceased though Muhammad Nawaz appellant repeated his blow but at a different person i. e. Nazra P. W. The appellants cannot be said to have acted in a cruel or unusual manner since there was no repeti tion of the blows either on the deceased or the P. W. One blow as to each can be said to have been given in the heat of passion upon a sudden development. The measure of liability in such a situation is individualistic. The injury attributed to Dosa appellant has been returned as simple having been caused with a blunt weapon. Therefore, he can only be regarded as guilty of causing simple hurt to the deceased. The injury attributed to Alam Sher appellant is with a wahola on the head of the deceased which caused the death of the deceased though it can be said as without any intention to cause death yet from the seat of the injury with the weapon used, knowledge can be attributed to Alam Sher appellant that the injury inflicted by him was likely to cause death. The injury attributed to Muhammad Nawaz appellant qua the deceased has not been said as contributing towards the death of the deceased. It has been on the other hand declared as simple. As to Nazra P.W. Muhammad Nawaz appellant is attributed a hatchet blow on his head causing fracture.

14. For the foregoing reasons this appeal is partly accepted. Tit conviction and sentences of the appellants under section 302/307/34, P.P.C. are set aside. The case as falling under Exception IV to section 300, P.P.C. is covered by section 304-II, P.P.C. so far as is concerned Alam Sher appel lant. He is, therefore, convicted under section 304-II, P.P.C. and sentenced to 10 years' R. I. with a fine of Rs. 2,000, or in default to undergo six 4 months' R. I. Dosa appellant is convicted under section 323, P. P. C. and is awarded six months' R. I. for causing simple injury to the deceased. Muhammad Nawaz appellant is convicted and sentenced under section 324, P.P.C. and is awarded two years' R. I. and a fine of Rs. 500 or in default thereof to undergo four months' R. I. for having given simple injury with the hatchet to the deceased. Muhammad Nawaz is further convicted and sentenced under section 326, P.P.C. to five years' R. I. and a fine of Rs. 500 or in default thereof to undergo further four months' R. I. for causing grievous injury with a hatchet to Nazra P. W. Both the sentences shall run concurrently. The fine if realized from Alam Sher and Muhammad Nawaz appellants shall be paid to the legal heirs of the deceased. Similarly the fine if recovered from Muhammad Nawaz appellant (under section 326, P.P.C.) will be paid to Nazra P. W. The learned trial Judge has failed to give the benefit of section 382-B, Cr. P.C. to the appellants. The Jail Authorities are directed to extend the benefit of section 382-B, Cr. P. C. to the appellants. M. Y. H. Appeal partly accepted.