ALAMGIR Versus STATE

1. USMAN ALI SHAH, J.- -This appeal, by leave of the Court, is directed against the judgment of the learned Single Judge of the Lahore High Court dated 16-7-1980, dismissing Criminal Appeal No.705 of 1978 of the appellant.

2. Muhammad Ikram deceased, P.W. Zafari Iqbal P.W. Muhammad Asghar, Muhammad Aslam acquitted accused are the real brothers.

3. Their father Muhammad Akbar had gifted some land, one bangalow and three houses to his sons Muhammad Ikram deceased. P. W . Zafar Iqbal and P.W. Muhammad Asghar. Appellants Alamgir and Jahangir sons of Abdul Salam were not reconciled with the above gift and used to demand their share in the property. They had instituted a suit in this behalf.

4. On 10-4-1977 at about 12 noon, Muhammad Ikram deceased and his brother P.W. Zafar Iqbal were busy in their flour mill situate at Chowk Haji Pura, Sialkot. Meanwhile, appellants Alamgir and Jahangir armed with Chhuris and Muhammad Aslam acquitted accused armed with hatchet came and asked the deceased party to give them their share in the property. But they told them that they should approach their father in this behalf. Upon this appellant Alamgir raised a lalkara and at the same time attacked P.W. Zafar Iqbal with Chhuri, hitting him on his left hand. Appellant Jahangir dealt Chhuri blows to Muhammad Ikram deceased, hitting him in his chest, belly and left armpit, as a result of which he fell down. While Muhammad Ikram deceased was lying, Muhammad Aslam acquitted accused dealt a Kulhara blow from its Danda side which hit his left arm. Meanwhile, P.W. Muhammad Asghar reached the spot and started hurling brickbats at the assailants, as a result of which they sustained injuries. The occurrence was also witnessed by P.W. Muhammad Siddiq. After the occurrence the accused decamped and Muhammad Ikram deceased and P.W. Zafar Iqbal were taken to the hospital in injured condition. On receiving a telephonic message about the occurrence from the hospital ASI/P.W. Muhammad Aslam went to the hospital. He recorded the report of Muhammad Ikram deceased (Ex.P.A.) at 2-30 p.m. after the doctor testified that the deceased was in a fit condition to make statement. The report was then sent to the police station where a regular F.I.R. was drawn. As mentioned above, appellants Alamgir and Jahangir had also sustained injuries, therefore, they also went to the same hospital on the same day.

5. Dr.Abdur Rauf examined the deceased, for his injuries while he was still alive. He found 6 injuries on his person. Injury No.4 was grievous and dangerous to life. In the opinion of the Dr. injury No.6 was caused by blunt weapon and the rest of the injuries by sharp-edged weapon. On 23-4-197 7 the deceased died. The same Dr. conducted autopsy on the dead body of the deceased and he found 4 more injuries on the dead body. In his opinion death was caused due to peritonitis resulting from injury No.4 which was sufficient to cause death in the ordinary course of nature.

6. P.W. Zafar Iqbal was examined by Dr. Muhammad Aslam Butt who found 3 simple injuries on his person. While appellants Alamgir and Jahangir were examined by Dr. Abdul Rauf. On the person of appellant Alamgir, he found 8 injuries out of which injury No.1 was grievous. Appellant Jahangir had 3 injuries on his person which were found simple.

7. In support of its case regarding the guilt of the accused, the prosecution relied on the ocular account of P.W. Zafar Iqbal, Muhammad Asghar and Sadiq and on the recovery of Chhuri (P.3) and Chhuri (P.6) respectively, recovered from Alamgir and Jahangir appellants. It also relied on the dying declaration of the deceased. The appellants pleaded not guilty of the charges. Appellant Alamgir denied the recovery of Chhuri from him. He stated that while he was passing in front of the flour mill, P.Ws. Zafar Iqbal and Muhammad Asghar attacked him. He ran into the house of Mst.Razia and from there he was taken to the hospital by one Mansha, where he was admitted. Appellant Jahangir also denied the recovery of Chhuri from him and stated that on the day of occurrence he was informed by D.W. Arif that his brother was injured by P.Ws. Zafar Iqbal and Muhammad Asghar in the house of N1st.Razia. While he was going to that house, he was attacked by P.W. Zafar Iqbal and Muhammad Ikram deceased. Muhammad Ikram deceased had a Chhuri. He snatched the Chhuri from him. The deceased tried to snatch it again from appellant Jahangir. In the course of this scuffle, the deceased threw him on the ground and meanwhile he (appellant Jahangir) inflicted injury to him in self-defence.

8. The learned trial Judge on examination of the evidence recorded by him at the trial found the appellant guilty of the charge and accordingly convicted them under section 302/34, P.P.C. and sentenced each one of them to life imprisonment. They were further convicted under section 324/34, P.P.C. and sentenced each one of them to 3 years R.I., with direction that the sentences shall run concurrently, vide his judgment dated 17-5-1978. He however, acquitted Muhammad Aslam accused by giving him the benefit of doubt. The appellants filed appeal in the High Court of Lahore. The complainant party also filed Criminal Revision No.546 of 1979, against the acquittal of Muhammad Aslam and criminal revision No.547 of 1979 for the enhancement of the sentences of appellants. A learned Single Judge of the High Court dismissed the appeal and revisions both and maintained the convictions and sentences of the appellants, vide his judgment date 16-7-1980.

9. We have heard the learned counsel for the parties and gone, through the evidence on record. We have come to the conclusion that it was a fight ensued between the parties at the spur of moment. The parties are closely related, in that the deceased and the eye witnesses are the real uncles of the appellants. Their relations had, however, grown strained on account of some property gifted to the deceased and the 2 witnesses by their father. But no security, proceedings had been taken against the parties. This would show that there was no breach of peace between the parties on account oft the above gift. The parties were living in the same locality. Their meeting, however, now and then was, therefore, natural. We have formed the opinion that they had gathered at the flour mill and the appellants demanded their share from the deceased party. As very naturally, the deceased party declined to accede to their demand, it offended the appellants and there ensued a fight between them. Both the parties dealt blows to each other. It is cleared that the appellants too had sustained injuries in the scuffle. The medical evidence bears testimony in this behalf. We, therefore, hold that it was a sudden fight between the parties without premeditation. Now, appellant Jahangir in his statement admits that he had dealt Chhuri blows to the deceased. Injury No on the person of the deceased was found to be dangerous to life and as this was an injury caused by a sharp-edged weapon, it is clear that it was dealt by appellant Jahangir to the deceased. We, therefore, hold him guilty under section', 304-I, P.P.C. instead of section 302/34, P.P.C. As regards appellant. Alamgir, though he participated in the occurrence but his role can, be described lesser as against appellant Jahangir, we, therefore, hold him guilty under section 308, P.P.C. The conviction and sentence awarded to the appellants under section 324/34, P.P. C. is set aside.

10. The result is that we convert the conviction of appellant Jahangir from section 302/34, P.P.C. to that under section 304-I, P. P. C and sentence him 10 years' R.I. and a fine of Rs.5,000 or in default six months R.I . The fine if recovered from him shall bet paid to the heirs of the deceased by way of compensation.

11. As regards appellant Alamgir, his conviction is altered from section 302/34, P.P.C. to that under section 308, P.P.C. and he is sentenced to 2 years R.I. and a fine of Rs.1,000 or in default 6 months R.I. The fine if recovered shall be paid as compensation to the heirs of the deceased. The sentences of the appellants shall run concurrently. Benefit under section 382-B, Cr.P.C. is also allowed to the appellants.

12. This appeal, with the above modification in convictions and sentences, is dismissed.

13. M.Y.H./A-179/S Appeal dismissed.