1988 PLP 863 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed by Aziz Latif petitioner in the following circumstances: Sarfraz Masih and Ifrahim Masih respondents were tried for an offence under section 302/34, P.P.C. for the murder of Fazal Umar and vide judgment of the trial Court dated 19th February, 1983 they were convicted under the aforesaid section and each of them was sentenced to imprisonment for life plus fine. Their third companion namely Finhas Masih was acquitted. On appeal Lahore High Court, Lahore altered their conviction from section 302/34, P.P.C. to section 304, Part I, P.P.C. and reduced the sentence of each from life imprisonment to a sentence of ten years' R.I. This petition has been filed for enhancement of their sentence under section 302/34, P.P.C. The brief facts which can be gathered from the record are that Hidayat Ghauri P.W. who was a friend of Fazal Umar deceased had abducted Mst.Nancy sister of the respondents about 11/2 years before the present occurrence. At the time of occurrence she was living with her brothers as she had been restored. It further appears that Hidayat Ghauri had written to her that his silence in the matter should not be considered that he had lost his interest in her. The prosecution story is that Hidayat Ghauri had married Mst. Nancy and after some months their relations became strained due to the interference of the brothers of Mst.Nancy i.e. the respondents and her parents. The prosecution story further is that Fazal Umar deceased alongwith his nephew the present petitioner and the said Hidayat Ghauri went on a motorcycle to the Mohallah of the respondents in order to condole the death of the mother of one Sharif Masih. When they passed by the house of the respondents, Sarfraz Masih respondent was standing in front of the door of his house. On seeing Hidayat Ghauri he shouted that why he and others had come to their Mohallah. He dragged them from the motorcycle and they exchanged abuses with each other. Thereafter, Hidayat Ghauri, Fazal Umar deceased and Aziz Latif petitioner‑complainant went to the house of Sharif Masih. After sometime when the deceased and his companions left the house of Sharif Masih and again passed from in front of the house of the respondents, they were attacked by them while Sarfraz Masih respondent was armed with chhuri and Ifrahim Masih respondent was armed with dang, whereas Finhas Masih was empty handed. They caused injuries to Fazal Umar deceased with chhuri and dang who fell down on the ground. He was removed to the UCH Hospital but died on reaching. there. Hidayat Ghauri ran away in order to save his life. It may be noted that in the instant case apart from Fazal Umar deceased who had received injuries and died, Ifrahim Masih respondent had also received serious injuries, for according to the medical evidence he had contused swelling on the left parietal region of the skull and there was bleeding from the left ear. He had also contused swelling on the left cheek as well as on the back of middle of right forearm. The deceased in this case had a stab wound on the left shoulder which penetrated deep and was attributed to Sarfraz Masih respondent whereas he died of the head injury. The defence story was that Hidayat Ghauri had abducted Mst.Nancy their sister who returned after sometime by securing release from his clutches, but Hidayat Ghauri alongwith the deceased hatched a conspiracy for her re‑abduction. They came to the lane of the respondents with this intention. Ifrahim Masih respondent was at that time standing in front of his house and he was abused by them. Thereafter, Hidayat Ghauri secured him in a Japha while the deceased at his behest made murderous assault on Ifrahim Masih respondent with a Danda which he was carrying and caused injuries to him. In the meantime Sarfraz Masih respondent came to his rescue and picking up a chhuri caused injury to the deceased in the exercise of the right of self‑defence. Then the deceased picked up a brick bat and attempted to hit him but Ifrahim Masih respondent gave Sota blow on the head of the deceased in his self‑defence. The main argument of the learned counsel for the petitioner/ complainant is that if the occurrence had been considered by the High Court as a sudden fight between the parties and if this had been the reason for alteration of the conviction and sentence, then the High Court should have also considered as to whether the respondents had not acted in a cruel manner and had not taken any undue advantage over the complainant side. According to the learned counsel in the instant case the respondents had taken undue advantage as well as had acted in a cruel manner. We have carefully considered the arguments of the learned counsel. In the instant case the head injury sustained by Ifrahim Masih respondent was serious enough and in our considered view it is not a case in which the accused party had taken an undue advantage over the other side or had acted in a cruel manner. In that view of the matter we are of the opinion that no ground has been made out for interference in the impugned judgment of the High Court. As a result this petition is dismissed. S.Q. /A‑183/S Petition dismissed.