ZAFAR ALI AND 8 OTHERS Versus THE STATE
MUHAMMAD MUNIR KHAN, J.- -This Criminal Appeal No.534/1984 and connected Murder Reference 100/1985 arise from the judgment of the learned Additional Sessions Judge, Gujranwala whereby he on 16-8-1984 convicted the appellants namely Zafar Ali, Qurban Ali, Muhammad Haneef, Muhammad Ali, Muhammad Ashraf, Mahmood Ahmad, Muhammad Afzal, Liaqat Ali, and Hanns Muhammad alias Hassan Muhammad, under sections 148/302/307/324 PPC and sentenced them as under:-
(i) Under section 148 PPC, all to two years' R.I. each;
(ii) Under section 302 PPC:
Zafar Ali to death and a fine of Rs.10,000 in default thereof five years` R.I. for the murder of Shameer Ali.
(b) Mohammad Ashraf to death and a fine of Rs.10,000 in default thereof to further R.I. for five years for the murder of Mohammad Ilvas;
(c) Muhammad Afzal to imprisonment for life and a fine of Rs.10,000 in default whereof further R.I. for five years for the murder of Mohammad Ilyas;
(iii) Under section 307 PPC:
Muhammad Ashraf, Muhammad Afzal and Hans Muhammad to ten years' R.I. and a fine of Rs.5,000 each in default thereof one year R.I. each for murderous assault on Dilshad, Ram Din and Wakil PWs.
(iv) Under section 324 PPC:
(a) Qurban Ali to two years' R.I. and a fine of Rs.1,000 in default where of six months' R.I. for causing injuries to Vakil Khan PW.
(b) Zafar Ali to two years' R.I. and a fine of Rs.500 or in default six months' R.I. for causing injuries to Munir, Riaz and Niamat PWs.
It was directed that the sentences shall run concurrently and the fine awarded under section 302, P . P. C . if recovered, will be paid to the legal heirs of the deceased.
2. The occurrence took plce on 11-10-1981 at 6 p.m. in the area of Machharala, Police Station Wandoo, District Gujranwala. FIR Ex.PK was lodged on the same day at 9-30 a.m. by Wazir Ali brother of Shamir deceased and uncle of Ilyas deceased and was recorded by Muhammad Saleem Butt S.I./SHO PW.13. The distance between the place of occurrence and the Police Station is five miles.
3. Zafar Ali, Qurban Ali, Muhammad Huneef, Muhamamd Ali and Muhammad Ashraf appellants are real brothers. Muhammad Afzal and Liaquat appellants are sons of Qurban Ali appellant. Mahmood Ahmad is son of Zafar Ali appellant. Hans Muhammad alias Hassan Muhammad is said to be a friend of the co-appellants.
4. The background of the occurrence was that two days before the occurrence, it was Eid-ul-Azha. There was a Kabbadi match in village Machharala Kalan. The villagers assembled there to witness the match. During the match, there was an altercation between Muhammad Ashraf and Qurban appellants on the one side and Riaz, Dilshad PWs and Ilyas deceased, on the other side. The altercation led to fight between the parties. Both the sides received injuries. On the intervention of the people present there, the matter was patched up. Muhammad Ashraf and Qurban Ali appellants while leaving the place declared that they will take the revenge of their insult, hence this occurrence.
5. As far the main occurrence, it has been stated that at the eventful day, Shamir Ali and Ilyas both deceased left village Machharala Khurd for their Dera. When they reached near the paddy field of Muhammad (qbal, all the nine appellants variously armed amerged from the crop. Mahmood and Muhammad Haneef appellants raised Lalkara shouting that they will take the revenge of their insult on Eid Day. Zafar Ali fired twice on Shamir Ali. Muhammad Ashraf gave Chhuri blow on the chest of Ilyas deceased. Muhammad Afzal inflicted hatchet blow on the head of Ilyas deceased. The alarm attracted Wakil Khan, Munir, Ilam Din, Riaz, Nisar, Wazir Ali and Roshan Ali P.Ws. to the spot. They tried to intervene. Zafar Ali fired 2/3 shots hitting Dilshad,
Riaz and Munir P.W.s. Qurban gave two spear blows to Wakil Khan P.W. Hans Muhammad gave spear blow on the flank of Wakil Khan P.W. Muhammad Ashraf appellant gave spear blow to Ilam Din P.W. near armpit. Muhammad Afzal caused hatchet injury on the head of I1am Din P.W. Muhammad Ali and Liaqat gave Sota blows to Wakil Khan, Dilshad, Riaz and Ham Din P.W.s. Muhammad Ashraf also caused two spear blows on the person of Dilshad P.W. Muhammad Afzal gave hatchet blow on the head of Dilshad P.W. The appellants then decamped taking weapons with them. Muhammad Ilyas and Shamir died on the spot. It may be noted that according to the FIR, Muhammad Munir, P.W. had fired 2/3 shots from his gun in self-defence.
6. On 11-10-1981 Dr. Gulzar Ahmad medically examined Ilam Din P.W. He found seven injuries on his person, out of which two were caused by sharp-edged weapon. The injuries found on the upper part of chest and on the right side of head were grievous and rest were simple.
On the same day, he examined Wakil Khan P.W. and found 4 injuries on his person caused by sharp-edged and blunt weapon. Out of the four injuries one injury on the middle of chest was grievous and the others were simple.
On the same day, he examined Dilshad P.W. and found 8 injuries on his person. The injuries were caused by blunt weapon as well as sharp-edged weapon. The injury of right hand was grievous and the rest were simple.
On the same day, he examined Muhammad Munir P.W. and found simple multiple fire-arm injury on his right lower leg.
On the same day, he examined Muhammad Riaz P.W. He found three simple injuries on his person. One was caused by fire-arm, other by sharp-edged weapon and the third by blunt weapon.
On the same day, he examined Nemat P.W. and found one fire-arm wound on the back of his right hand which was simple in nature.
7. Dr. Anjam Javed P.W.14 conducted post-mortem examination on the dead body of Muhammad Ilyas. He found following injuries:----
"(i) An incised wound 5 cm x 11, cm x going deep on upper part of front of right chest alongwith tail 3 cm on the outer side of wound just near the anterior midline of the chest 5 cm from right areola of right mummary gland. The wound is in traverse direction.
(ii) An incised wound 5 cm x 11 cm x bone deep on left side of head 7 cm from left ear.
(iii) A contusion 6 cm x 11 cm on top pf right shoulder on internal examination. "
Injuries Nos.1 and 2 were caused by sharp-edged weapon. Injury No.3 was caused by blunt weapon. In his opinion the death was due to shock and heamorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The death was immediate. The time between death and post-mortem was 11 days.
On the same day he conducted post-mortem examination on the dead body of Shamir Ali and found following injuries:----
(i) Multiple fire-arms wounds in an area of 18 c. m . x 8 c. m . x going deep in the left illiac fossa total number 20 each wound of size x 2 c.m. x going deep circular in shape respectively.
(ii) Multiple fire-arm wounds in an area of 17 c.m. x 9 c.m. x going deep on left outer side of abdomen just above left interior superior illiac spine total number 16 each wound is 2 c.m. x 2 c. m . x going deep circular in face.
(iii) 4 fire-arms wounds in an area of 14 c.m. x 1 c.m. x going deep on front of left forearm each wound of size 2 c.m. x c.m. going deep circular in shape.
Two pellets were removed from underneath injuries Nos. 3 and 7 pellets were removed from underneath injuries Nos. 1 and 2. In his opinion the death was due to shock and haemorrhage as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature individually as well as collectively. All the injuries wege caused by sharp-edged weapons.
8. Dr. Zahir Ayub D.W.1 had examined four injured accused/ appellants on 12-10-1981. He found four fire-arms and one sharp-edged injury on the person of Liaquat Ali appellant. He found five fire-arm injuries on the person of Mahmood Ahmad appellant. He found one fire-arm injury on the person of Muhammad Afzal appellant. He found one fire-arm injury on the person of Muhammad Haneef appellant. All the injuries were simple.
9. On 11-10-1981 Muhammad Saleem Butt, S.H.O. P.W.13 lifted three crime empties P.3/1 to 3 from the spot vide memo. Exh.P.D. attested by Muhammad Ashraf and Muhammad Iqbal (both not produced). On 22-10-1981 Liaquat Ali appellant led to the recovery of Dang P.13 from his cattle shed which was taken into possession vide memo. P.S. attested by Ali Muhammad (not produced) and Muhammad Anwar P.W.13. On the same day Muhammad Afzal, Mahmood, Hans Muhammad, Muhammad Haneef and Muhammad Ali appellant got recovered blood-stained hatchet P.16, Dang P.15, Berchhi P.14, Sota P.17 and Dang P.18 which were taken in possession vide memoranda P.T., P.U., P.V., P.X. and P.Y. respectively attested by the same witnesses. On 26-10-1981 Zafar Ali got recovered gun P 11 from his residential house which was taken into possession vide memo. P.H. attested by Suleman P.W.7 and Farzand Ali (not produced). On the same day Qurban Ali led to the recovery of blood-stained spear P.12 from his house which was taken into possession vide memo. P.J. attested by the same witnesses. The Serologist report Exh.P.00 shows that hatchet recovered from Muhammad Afzal and Berchhi recovered from Qurban Ali were stained with human blood. Forensic Science Laboratory report Exh.P.NN reveals that the three empties lifted from the spot were fired from gun recovered from Zafar Ali appellant.
When examined under section 342, Cr.P.C. the appellants Mahmood Ahmad, Liaquat Ali, Muhammad Hanif and Muhammad Afzal raised plea of self-defence. In reply to the question:-
"Have you anything else to say' Muhammad Haneef stated:---
On the day of occurrence in the morning I alongwith Liaquat, Afzal and Mehmood accused was coming from the Dera with the milk to my house. When we reached near the peddy field of Iqbal on the way Shamir Ali deceased, Ilyas deceased, Munir P.W. Dilshad P.W., Wakil Khan, Elim Din and Riaz armed with guns waylaid and attacked us. We received fire-arm injuries and fell down. On our hue and cry many persons from the village armed with various weapons were attracted to the spot and in order to rescue us they inflicted injuries to the deceased and the P.Ws. There was indiscriminate firing by Munir P.W. which hit Shamir Ali deceased. Zafar Ali accused, Qurban accused, Hans Mohammad accused and Mohammad Ali accused were not present at the spot."
Mahmood Ahmad, Liaquat Ali and Muhammad Afzal made almost similar statements. The rest of the appellants denied all the incriminating circumstances. In defence Dr. Zahid Ayub was produced to prove the injuries of the four appellants.
11. The trial Court believing the motive, and the version of the occurrence given by the eye-witnesses and disbelieving the defence version told by the four injured appellants, came to the following conclusion:-
"That in fact there was a free fight between the complainant and the accused party and they have to be dealt with according to their participation and' contributions in. the fight and role played by them and they would be responsible to the extent of their individual act in the occurrence."
12. Dr. Khalid Ranjha, learned counsel for the appellants did not question the finding of the learned trial Court that there was a free fight between the complainant party and the accused party in which two persons lost lives, 6 P.Ws. as well as 4 accused received injuries and each accused was responsible for his individual act. He submitted that since Shamir Ali and Muhammad Ilyas had died in a free fight, therefore, Zafar Ali and Muhammad Ashraf who had caused their death, had not committed murder punishable under section 302, P.P.C. but were guilty of culpable homicide not amounting to murder, punishable under section 304, Part I, P.P.C.; that Muhammad Afzal could' not have been convicted under section 302, P.P.C. and conviction of appellants namely Muhammad Afzal, Muhammad Ashraf and Hans Muhammad under section 307, P.P.C. for grievous ,injuries to P.Ws. Wakil, Ram Din and Dilshad P.Ws. was not justified. In the alternative the learned counsel requested for reduction in the sentences of the appellants. Conversely, the learned counsel for the State supported the judgment of the trial Court. He was of the view that by causing the death of Shamir Ali and Muhammad Ilyas, the three appellants namely Zafar Ali and Ashraf committed murder punishable under section 302, P.P.C.
13. We have anxiously attended to the arguments of the learned counsel for the parties. We have reviewed the-evidence produced by the prosecution; statements made by the appellants under section 342, Cr.P.C.; statement of defence witness Dr. Zahid Ayub D.W. and the circumstances appearing in case, carefully. On our independent assessment of the evidence and the circumstances surrounding the guilt of the appellants, we are also of the view that Shamir Ali and Muhammad Ilyas lost lives and P.Ws. namely Ham Din, Wakil Khan, Dilshad. Muhammad Munir, Riaz and Nemat as well as four injured appellants namely Liaquat Ali, Mahmood Ahmad, Muhammad Haneef and Muhammad Afzal received injuries in a free fight which took place between the parties on the morning of 11-10-1981 in the area of Machharala. The time of occurrence, place of occurrence, presencai of the two deceased and six injured prosecution wit nesses,presence of the four injured appellants Liaquat Ali, Mahmood Ahmad, Muhammad Haneef and Muhammad Afzal at the time and place of occurrence and the fact that Shamir Ali and Muhammad Ryas lost lives and six P.Ws. and the four accused appellants received injuries in one and the same occurrence are the admitted facts of the case. The parties as usual have blamed each other of the aggression and have tried to minimise the part played by them in the occurrence. For example, the complainant party has not satisfactorily explained the injuries of the four accused and the four injured accused have also not accepted the liability of the death of Shamir Ali and Muhammad Ilyas and injuries to the six prosecution witnesses. According to the defence versions, unnamed persons had attacked the complainant party anti Shamir Ali died as a result of indiscrimiante firing by Mohammad Munir P.W. It is thus obvious that parties have told incomplete tale of occurrence. This will not deter this Court from drawing proper inference from evidence and circumstances of the case. From the circumstances that on account of the incident of fight between the parties at the time of Kabaddi match in the village, the motive lay with the complainant party as well as the accused party to attack each other; that the occurrence took place in an open place away from the houses of the parties in which large number of injuries were caused by various weapons to the two deceased, injured P.Ws and the four appellants; it can be legitimately inferred that the parties had armed themselves before the occurrence; expecting resistance from the other and were, therefore, determined to have a trial of strength and as such it was a case of free fight wherein the question of exercise of right of self-defence by either party does nor arise. Resultantly each accused would be held responsible for his individual act.
14. This brings us to the question of the criminal liability of each appellant. We do not agree with the learned counsel for the appellant that the offence committed by Zafar Ali and Ashraf was a culpable homicide not amounting to murder. We propose to rely on case Abdur Rehman v. Gadai Khan and 3 others reported as 1972 S C M R 676 to hold that act of causing death although in a free fight amounts to a murder punishable under section 302, P.P.C. It may be noted that in case Abdur Rehman v. Gadai Khan and 3 others, the Supreme Court had convicted Gadai Khan who had caused death of Muhammad Khan in a free fight, under section 302, P.P.C. and sentenced him to imprisonment for life. Furthermore, since the appellants had done two persons to death and caused as many as 24 injuries including five grievous injuries with various weapons to six prosecution witnesses, therefore, it cannot be said that they had not acted cruelly or that they had not taken undue advantage of the situation, so as to bring their case within exception 4 to section 300, P.P.C. Since, Muhammad Afzal had not caused fatal injury to Muhammad ' Ilyas deceased, therefore,' his conviction under section 302, P.P.C. is not sustainable. He caused simple injury to Muhammad Ilyas for which he is liable to punishment under section 324, P.P.C. Qurban Ali and Zafar Ali appellants had caused simple injuries with sharp-edged and fire-arm weapons to Wakil Khan, Munir Riaz and Nemat P.Ws., therefore, no exception can be taken to their conviction by the trial Court under section 324, P.P.C. Muhammad Afzal, Hans Muhammad y and Muhammad Ashraf had caused one grievous injury each to Ilam Din, Dilshad and Wakil P.Ws. They had not repeated the blow although they could do so. The injuries caused by them have also not been declared dangerous to life, so their convictions under section 307, P . P. C . are not maintainable, instead they are convicted under section 326, P. P. C . Muhammad Afzal is acquitted of the charge under section 302, P.P.C. All the appellants are acquitted of the charge under section 148, P.P.C.
15. This brings us to the question of sentences of the appellants. We have considered this question with utmost care on our part. We find that there are mitigating circumstances for lesser penalty in favour of Zafar Ali and Muhammad Ashraf appellant, inasmuch as, they had caused the death of Shameer Ali and Muhammad Ilyas in a free fight in which their companions had also received injuries caused by fire-arm and sharp-edged weapons. The sentences of death awarded to them are, therefore, altered to imprisonment for life. Muhammad Afzal is sentenced to 2 years' R.I. and a fine of Rs.1,000 in default thereof six months' R.I. for causing simple injury with sharp-edged weapon to Muhammad Ilyas deceased. The sentences awarded to Qurban Ali and Zafar Ali appellants under section 324, P.P.C. being not excessive are maintained. Muhammad Ashraf, Muhammad Afzal and Hans Muhammad are sentenced to 4 years' R.I. each and a fine of Rs.5,000 each, in default thereof one year's R.I. each. The sentences will run concurrently.
M.Y.H./Z-53/L Appeal partly allowed.