P L D 1993 Supreme Court 1 (PLP)

MUHAMMAD RAFIQ TARAR, J.‑‑‑Muhammad lqbal petitioner seeks leave to appeal from the judgment of a learned Single Judge of the Lahore High Court dated 5‑12‑1990 whereby his appeal challenging his conviction under section 304, Part 1, P.P.C. on two counts carrying a sentence of imprisonment for life and a fine of Rs.5,000 on each count, was dismissed.

2. The petitioner and rive others were tried on the allegation that on 1‑10‑1983 at 5‑00 p.m . they formed themselves into an unlawful assembly with the common object of committing the murders of Muhammad Afzal and his brother Muhammad Akram and for murderous assault on Muhammad Shafique and Muhammad Ishaq P.Ws. and in prosecution of that common object the aforesaid unlawful assembly actually committed the murders of Muhammad Afzal and Muhammad Akram'and made murdcrous assault on aforementioned P.Ws. The trial Court by its judgment, dated 23‑4‑1985 held that each accused was liable for his individual act and there being no premeditation and fight being sudden Exception 4 to section 300, P.P.C. would be attracted in the case of Muhammad lqbal and Muhammad Boota. Muhammad lqbal (petitioner herein) was convicted under section 304, Part 1, P.P.C. on two counts and sentenced to imprisonment for life and a fine of Rs.5,000 on each count with a further direction to pay Rs.5,000 as compensation to the legal heirs of Muhammad Akram deceased. Out of the remaining accused Muhammad Boota was convicted under section 304, Part 1, P.P.C. for causing the death of Muhammad Afzal deceased while Umar Hayat and Nasir Mahmood were convicted under section 308, P.P.C. and sentenced to R.I. for five years and a fine of Rs.2,000 each. Sultan Mehmood and Khalid Mehmood were, however, acquitted on the benefit of doubt. On appeal Muhammad Boota and Umar Havat convicts were acquitted, about Nasir Mahmood it was observed that "he seems to have already undergone his sentence." Regarding petitioner it was observed that he had "exceeded the right of self‑defence" and "was rightly convicted and sentenced by the Trial Court." His appeal was dismissed. Hence this petition for leave to appeal.

3. The view taken by the learned Single Judge was that the petitioner had .,some right to save his father and brother in the free fight but he had no justification to kill one person on the spot and fatally injure the other when neither of them had caused any injury to his father and brother. He, therefore, exceeded the right of self‑defence .. It is well‑settled that in a free fight between the parties no right of private defence can be claimed and each person engaged in the right is liable for his individual act. Abdul Rehman's case 1972 SCMR 767 may be referred. After hearing the learned counsel for the petitioner and having gone through the record we find that the findings recorded by the learned trial Judge have the support of evidence and he had for valid reasons to come to the conclusion that Exception 4 to section 300 of the P.P.C. was attracted to the facts of this case. In the circumstances we do not consider it a fit case for the grant of leave. The petition is dismissed. MUHAMMAD AFZAL ZULLAH, CJ.‑‑While dismissing this petition for leave to appeal I would like to make some remarks regarding the application of Exception 4 to section 300, P.P.C. and the resulting conviction under section 304, Part 1, P.P.C. In the case of Abdur Rehman v. Gadai Khan 1972 SCMR 676 no doubt reliance was placed for some conclusions on the case of Sayed Ali Bepari v. Nibaran Mollah PLD 1962 SC 502; but the conviction by this Court on appeal against acquittal in the former case was under section 302, P.P.C. In the latter it was under section 304, Part I, P.P.C. In the former case the trial Court had recorded conviction under section 302, P.P.C. with the sentence of death, the High Court rendered judgment of acquittal and the Supreme Court restored the conviction under section 302, P.P.C. though with lesser sentence of life imprisonment. In the other case (of Ali Bepari) the trial Court had recorded conviction under section 304, Part 1, P.P.C. with 7 years' rigorous imprisonment. The appeal in the High Court resulted in acquittal and the Supreme Court while setting aside acquittal restored conviction under section 304, Part 1, P.P.C. as well as the sentence awarded by the Trial Court. There were other offences and convictions but they are not relevant for this note. In both the judgments certain rules and principles were laid down. One, that in a case of "free fight" the question of self‑defence would it arise. It was also held that in such like cases normally each party tries to minimize its role and also introduce some falsehood but it is the duty of the Court to try to discover the truth. "Free right" was also defined as one: wherein the parties are hostile to each other and each is determined to have trial of strength after having anticipated the resistance from the other side. And thus it would be reasonable to infer that in entering upon the conflict each party knowingly and deliberately takes upon itself the risk of the encounter. It was also held that each participant "in a free fight" would be liable for his individual act. Here it may be noted that in Syed Ali Bepari's case it was also mentioned that vicarious liability had not been established and the prosecution had also made concession on this point. In the light of what has been stated above a question arises: as to why two different results in somewhat similar circumstances in appeals against acquittals emerged in the two cases of Abdur Rehman and Syed Ali Bepari. One straight answer is that although in both the cases there were rmdings of free fight (and keeping in view the well entrenched/accepted rule) in the case of Abdur Rehman except for mitigation in sentence, peculiar to that case, the conviction under section 302, P.P.C. was restored. But in the case of Syed Ali Bepari notwithstanding the fact that it was also held to be one of free fight the trial Court had recorded the conviction under section 304, Part 1, P.P.C. by application of Exception 4 which relates to "sudden fighe' and lack of premeditation. It being an appeal against acquittal another normal principle, it appears, was followed that the Supreme Court ordinarily where there is only a difference of opinion regarding one or the other shade in the extent of criminality, would go by the assessment made by the convicting (trial) Court. If in the case of Syed Ali Bepari like that of Abdur Rehman the trial Court would have recorded the conviction under section 302, P.P.C., on the above reasoning a possibility cannot be excluded that the Supreme Court might have restored the conviction for the same offence. However, that case (of Syed Ali Bepari) the learned Judges in the Supreme Court did find an element relatable to Exception 4 to section 300, P.P.C., namely, that no unfair advantage was taken in that case in the course of the fighting which was described as deliberate. That being so, it will have to be observed that although in a case of "free fight" as distinguished from "sudden fight" dealt under Exception 4 to section 300, P.P.C., the conviction ordinarily will be, under section 302, P.P.C. there might be extremely rare cases in which even on finding of "free right" the conditions laid down therein might be satisfied though marginally; and thus, on extension of benefit of doubt as to the applicability of Exception 4 or otherwise a safer course might be adopted of conviction under section 304, Part I, P.P.C. by way of abundant caution. It might also be observed that if the absence of unfair advantage had not been found in Syed Ali Bepari's case and it would have been found as one of miscarriage of justice, instead of restoring the conviction under section 304, Part I, P.P.C. there might be nothing to prevent the Supreme Court to record conviction under section 302, P.P.C. Thus, the foregoing discussion can be summarised under two broad principles: (i) that ordinarily a case of "free fight" is distinguishable from a case of sudden right falling under Exception 4 to section 300, P.P.6. and (ii) while the conviction ordinarily in the former case is under section 302, in the latter it is under section 304, Part I, P.P.C. Applying the above principle to the present case, although the learned Judge in the High Court did use the words "free right" yet the reading of the discussion on all the elements of the right between the parties involved herein, the findings on the other hand by the learned Judge were of a "sudden right" i is visualised by Exception 4 to section 300, P.P.C. The word "free" was either on account of typing or other clerical error or inadvertent as the learned judge, it appears, was not consciously discussing the questions relatable to free fight" as it is normally understood. It might be explained here that whether it is a right of the one or other category it remains no doubt a mutual fight. Therefore, the use of the word mutual would not make any difference. in the light of the foregoing observations, the findings in this case no doubt rightly fell within the scope of Exception 4 to section 300, P.P.C. Thus, the conviction under section 304, Part 1, P.P.C. was fully justified and that being so the petition for leave to appeal merited dismissal. ‑ /M‑1686/S Petition dismissed.