SHER MUHAMMAD Versus THE STATE

1. Sher Muhammad and his brother Jan Muhammad were tried and convicted for offences under sections 302, 337-E read with section 34, P.P.C. by the learned IInd Additional Sessions Judge, Badin. Allegation against them was that they killed Soomar and caused injuries to Vikio and Zulekhan in furtherance of their common intention, on 8-4-1991 in front of their house. They were sentenced to imprisonment for life for murder and imprisonment for one year each for causing injuries to prosecution witnesses.

2. The case of prosecution is that deceased Soomar, P.Ws. Vikio, Meer Muhammad and Muhammad alongwith Noor Ali had their houses within same surrounding hedge. Appellant Sher Muhammad and his brother Jan Muhammad were residing in their own land near that enclosure, 5/6 months before the incident, Sher Muhammad (appellant; was proved in a private Faisla, to be carrying on affair with Amul wife of Noor Ali and was asked to leave the village. He then started residing al some distance from the village. His brother Jan Muhammad and father Sulleman were however, residing in the village. On 8-4-1991, Sher Muhammad in violation of Brother verdict, came to the house of his father and brother. At about 6-00 p.m. he and his brother Jan Muhammad both armed with hatchets were passing by the side of houses of Noor Ali, Soomar and others. At that time Soomar, Vikio and Meer Muhammad were available in front of their houses. On seeing Sher Muhammad, deceased Soomar protested and altercation started. It is said that Sher Muhammad inflicted sharp-sided hatchet blow on the head of Soomar. Vikio and Meer Muhammad went near and Jan Muhammad delivered blows to Vikio. By that time Zulekhan wife of Ibrahim came to rescue Vikio and was given blows by Jan Muhammad. In the armed scuffle Sher Muhammad also sustained hatchet injuries. Soomar died at the spot. His brother Muhammad went at Police Post Seerani and reported the incident. A.S.-I. Muhammad Ameen Incharge of the police post. entered the report in Roznamcha and sent it to Police Station Badin for incorporation under section 154, Cr.P.C. He proceeded to the place of incident and inspected it. He dispatched the dead body for post-mortem after preparing inquest report thereof. He also referred injured Vikio and Zulekhan to hospital. Doctor Hashmat Ali conducted post-mortem upon the dead body of Soomar and examined injured.

3. The accused were tried and convicted by the learned IInd Additional Sessions Judge, Badin to whom the case was assigned by the Sessions Judge.

4. It will be relevant to mention here that no case was registered by police in respect of the injuries on the person of appellant Sher Muhammad. After some time a direct complaint was filed by appellant Jan Muhammad which was brought on regular file and then tried together with the murder case. In the result of trial the appellants were convicted as mentioned above. They have appealed against the conviction, and sentence.

5. Heard the learned counsel and re-appraised the entire evident with their assistance:

6. Appellants' learned Advocate contended that the facts and circumstances of the case show that appellant Sher Muhammad had shifted from the village under the Brothery verdict and had come to the house of his brother and father on the day of incident whereupon the deceased, Vikio and Mir Muhammad got infuriated. They all duly armed with hatchets were waiting outside their houses and had attacked Sher Muhammad when he was going back. It was next argued that appellant had no motive against the deceased. On the contrary deceased and P.Ws. had motive against the appellants, as they had grievance against' them on account of connections with Mst. Amul and then entry of appellant Sher Muhammad in the village.

7. According to the learned Advocate the prosecution evidence does not prove the sole fatal injury on the person of deceased to have been caused by Sher Muhammad. He referred to the evidence of P.Ws. Mir Muhammad and Vikio who, while answering questions in cross examination, stated that the injuries to Sher Muhammad were caused by Soomar. Saying that if it was so then it was impossible for Sher Muhammad to inflict a heavy hatchet blow to Soomar as his one arm must have lost strength due to compound fracture of elbow in the result of hatchet injury. With one hand he could never cause the injury which resulted in death of Soomar. According to the learned Advocate, in the circumstances, it is proved that, when Soomar and Sher Muhammad were grappling, Vikio aimed hatchet blow upon Sher Muhammad but due to movements it hit Soomar.

8. In the alternative, the learned Advocate argued that if it is assumed that Sher Muhammad had caused fatal injury to Soomar, then also it was certainly while expecting and/or after receiving the injuries at the hands of deceased and, as such, his act of giving blow to Soomar was definitely in exercise of right of self-defence. According to the learned Advocate, it is settled law that even if the accused does not take plea of self-defence specifically, then also he is entitled to benefit of doubt if from the evidence on record right of self-defence appears to be reasonably possible. He referred to-1999 PCr.LJ 439 re: Aijaz Ahmed alias Gandhi and another v. The State and 1987 PCr.LJ 2164 re: Sardar Khan v. The State, in support of his contention.

9. Learned State Counsel contended that the evidence on prosecution side does establish that the deceased had received hatchet blow at the hands of Sher Muhammad, and Zulekhan and Vikio were given blows by Jan Muhammad. According to him, Sher Muhammad appellant was the troubleshooter, as, firstly he involved himself in illicit connections and then, not only came to the village in violation of the Brothery verdict, but also deliberately tried to pass by the side of the houses of deceased and others.

10. Present is the case where three persons including deceased Soomar sustained injuries on prosecution side and on accused/appellant side Sher Muhammad received three hatchet injuries. The prosecution witnesses unanimously attributed the single and fatal hatchet blow received by Soomar to appellant Sher Muhammad and the injuries on the person of P. Ws. Vikio and Zulekhan to Jan Muhammad.

11. All the four eye-witnesses including two injured namely Vido and Zulekhan are the natural witnesses of the incident being residents of the houses within same enclosure by the side whereof the incident happened. Also defence has not denied their presence at the time of incident. Obviously they could not deny the presence of injured witnesses Vikio and Zulekhan but they even did not dispute the presence of remaining two namely Muhammad and Mir Muhammad. All the four witnesses were cross-examined at length but nothing such was extracted which could render their substantial evidence on the question of injuries received by the deceased and two of them unbelievable and doubtful. No doubt it was suggested to them that deceased Soomar received hatchet blow at the hands of Vikio when he was grappling with Sher Muhammad, appellant and Vikio wanted to inflict blow upon Sher Muhammad. Further that Vikio and Zulekhan also received injuries at the hands of their own people but those suggestions were denied categorically. Even otherwise attributed of all the injuries i.e. one injury to deceased, three to Vikio and two to Zulekhan to their own companions is totally ridiculous and unconvincing. Same is the position of the evidence of Jan Muhammad. He deposed under. section 240, Cr.P.C. that he was not there and had heard about the incident from his father Sulleman and brother Sher Muhammad in his support in order to confirm his evidence. His evidence, therefore, cannot carry any weight against huge/direct evidence on prosecution side about his presence and participation in the event. Thus, the evidence on prosecution side has proved the participation of both the appellants in the incident and causing of hatchet injuries to deceased Soomar and P.Ws. Vikio and Zulekhan. Solitary injury received by deceased Soomar was inflicted by Sher Muhammad whereas multiple injuries on the person of above-named prosecution witnesses were delivered by Jan Muhammad.

12. As concerns three sharp-sided hatchet injuries received by appellant Sher Muhammad, the defence did not strict to one position. While cross-examining the witnesses appellants' learned Advocate suggested to them 'that all the three injuries on the person of Sher Muhammad appellant were caused by deceased Soomar. At the same time he also suggested to Vikio that injury on the arm of Sher Muhammad was caused by him i.e. Vikio. Prosecution witnesses Vikio, Mir Muhammad and Muhammad had however, stated in cross-examination that injuries to Sher Muhammad were caused by deceased Soomar. The statements of P.Ws. and the position taken by defence leads to the conclusion that attempts have been made to suppress the truth partly in respect of those injuries., In such a situation the Court can draw inferences in the light of evidence and highest probabilities. In view of the fact that deceased and P.Ws. except Zulekhan were available near the entrance of their surrounding enclosure and Soomar moved towards Sher Muhammad and Jan Muhammad when they were passing. near their houses and entrances and protested with them leads to legitimate inference that he used the hatchet. In view of the nature of his injury and the fact that he fell down after receiving the solitary wound, it can also be rightly inferred that Soomar had inflicted blow or blows upon Sher Muhammad before receiving injury at his hands. Therefore, despite statement of P.Ws. that all injuries to Sher Muhammad were caused by Soomar correct conclusion will be that the injuries to Sher Muhammad except one on the arm were caused by Soomar. The injury on the arm of Sher Muhammad cannot be assigned to Soomar for the reason that due to that injury the elbow of Sher Muhammad was fractured and the fracture was compound and complicated one. Obviously after such a damage to the arm forceful blow received by Soomar could not be inflicted.

13. In the light of above conclusions the question of self-defence becomes very important. It is to be seen whether the appellants especially Sher Muhammad had right of defence. It is admitted position that he (Sher Muhammad) had shifted from the village under the verdict of Brothery after the allegation of carrying illicit affair with Amul a lady of complainant side. It is also admitted that he entered the village for the first time on the day of incident in violation: of the verdict. The evidence also shows that deceased Soomar and male prosecution witnesses got annoyed over Sher Muhammad's entry in the village and were standing neat the entrance of the enclosure of their houses. Although Soomar deceased was carrying hatchet still they did not go to the house where Sher Muhammad was available. It is also in the evidence that it were the appellants who, after, coming out from their house, were passing by the side of the enclosure of complainant party, the evidence of Tappedar Haji Ghazi Khan Exh.34 and sketch produced by him as Exh.34/A also indicate that the appellants came out of the house situate in Survey No.213 and were passing by the side of the enclosure of the houses of deceased and P.Ws. In fact their house was in the agricultural land and they could very conveniently keep themselves much away from the houses of complainant party but they chose to pass from there. The evidence discussed above also proves both of the appellants to be armed with hatchets. When they were near the enclosure of complainant's house Soomar moved towards them and protested saying that why .they were passing by the side of their houses where after the hatchets were used.

14. Thus, it is clear that both the parties anticipated the fight ands were not only prepared for that but were determined to have a trial of strength. However, it can safely be said that appellants were the provoking party. When the two parties met each other the encounter took place. Such type of incidents are always a free fight and each participant is responsible of his own individual act and the parties cannot claim right of defence against each other. In such cases question of giving first blow is not of much significance. The view gets support from principle delivered in Ahmed Ali and 2 others v. The State PLD 19&6 Lah. 154.

15. In the result of above discussion and conclusions it is held that Sher Muhammad has rightly been convicted under section 302, P.P.C. for murder of deceased Soomar. The sentence of imprisonment for life awarded to him is hereby maintained. However, his conviction and sentence under section 337-F(ii), P.P.C. for injuries to Vikio and Zulekhan are set aside and he is acquitted of that charge. Jan Muhammad is proved to have caused injuries to Vikio and Zulekhan, therefore, his conviction and sentence under section 337-F(ii), P.P.C. are maintained.. The sentence awarded to him for offence under section 302, P.P.C. is set aside and he is acquitted of the charge of murder of deceased Soomar. He is in jail and, obviously, has served out the sentence awarded to him for injuries to Zulekhan and Vikio, therefore, shall be released forthwith if not required in any other case. With this order both of the appeals are disposed of.

16. H.B.T./S-280/K Order accordingly