1987 PLP 863 (SCMR)

Shana 5 years' R.I. under section 326, P.P.C. and fine of Rs.2,000 in default to undergo R.I. for one year. Akbar, 3 years' R.I. under section 324, P.P. C. and, fine of, Rs.1,000 each in Ashraf default to undergo R.I. for 3 Muhammad Ishaq months. Riasat Umar Hayat 3 years' R.I. under section 324, P.P.C. and a fine of Rs.1,000 in default to undergo 3 months' R.I. Jahana 1 years' R.I. under section 324, P.P. C. and a fine of Rs.1,000 in default to undergo R.I. for 3 months. Muhammad, 1 year R.I. under section 323, P.P. C. and a fine of Rs.1,000 each or in Mughla default to under go R.I. for 3 months each. Malla (Died) Their appeal was dismissed by the High Court and sentences of death awarded to Altaf and Khizar Hayat were confirmed. Malla petitioner has since died. Hence, the present petition for leave to appeal by the surviving 11 accused‑petitioners.

2. Learned counsel for the petitioners submitted that Courts below noticed that the complainant party had suffered a total number of 46 injuries out of which a large number of injuries were grievous, caused by sharp‑edged and blunt weapons while the accused party had suffered a total number of 23 injuries out of which only one injury was found grievous and that each party has tried to suppress its own part in the incident. As such relying on Syed Ali Bepari v . Niberan Mollha and others, P L D 1962 S C 502, it held that there was in fact, a free fight between the parties who held a test of strength between them and, as such, each of the accused be convicted only for the offence committed by him. Therefore, the accused‑petitioners were convicted and sentenced as mentioned in paragraph 1 above.

3. Learned counsel for the petitioners contended that the dictum in Syed Ali Bepari's case recorded at page 508 (E) of the reported judgment had not been correctly followed and further that in view of the circumstances of this case Altaf and Khizar Hayat (petitioners) are entitled to lesser penalty under section 302, P.P.C.

4. We have gone through the impugned judgment and the relevant portions of the evidence with the help of the learned counsel for the petitioners. We feel that the facts of Syed Ali Bepari's case were distinguishable and the particular portion of the said judgment mentioned by learned counsel is not applicable to the present case.

5. However, there is weight in the contention that keeping in view all the circumstances of this particular case and the injuries suffered by the accused party in a case under section 302, P.P.C. the petitioners did not merit the maximum penalty. Leave is, therefore, granted only on the question of sentence of Altaf and Khizar Hayat (petitioners Nos.l and 2) to consider whether the same, in the circumstances of this case, be reduced from death to imprisonment for life.

6. The petition with regard to the remaining petitioners stand dismissed. M.I. /A‑23/S Order accordingly.