1972 PLP 218 (SCMR)

WAHEEDUDDIN AHMAD, J.‑The petitioners, along with five others, namely, Ishaq, Fazal Muhammad, Anwar Ali, Allah Rakha and Sajjad, were tried by the Additional Sessions Judge, Lahore, for committing murder of Asghar Ali and making murderous assault on Nazir Hussain and Nawazish Ali. The petitioners were sentenced to transportation for life under section 302/34, P. P. C. for causing murder of Asghar Ali and a concurrent sentence of seven years' R. I. each under section 307/34, P. P. C. was awarded for murderous assault on Nazir Hussain. The five co‑accused mentioned above were acquitted. The petitioners challenged this judgment in Criminal Appeal No. 879 of 1969 which was dismissed by a Division Bench of the Lahore High Court on the 21st October 1971. The petitioners seek permission to file an appeal against the said judgment. The prosecution case is that on the 9th June 1968, Nazir Hussain took his buffalo for watering to the watercourse when it was the turn of water of Arshad Ali petitioner. The buffalo sat in the watercourse obstructing the flow of water to the field of Arshad Ali. Liaqat son of Arshad Ali turned up soon there after and abused Nazir Hussain for bringing his buffalo in the watercourse. There was an altercation and exchange of abuses between them. Nazir Hussain then brought his buffalo from the watercourse to his haveli. Liaqat left for his own haveli, one square away from the spot threatening him with dire consequences. At about 1 p.m. when Nazir Hussain and his cousin Asghar Ali deceased were plastering haystake inside the haveli in the presence of Nazir's father Nawazish Ali, the four petitioners of whom Asad Ullah, Liaqat and Jaffar were armed with spears, Arshad Ali had a stick, along with five acquitted co‑accused of whom Ishaq had a spear, Fazal Muhammad and Sajjad were armed with takwas and Allah Rakha with a stick, appeared in the haveli of the complainant. Ishaq gave a lalkara and opened attack on the deceased with spear hitting him on his chest followed by Liaqat who also speared him in the chest. Asad Ullah petitioner gave the third spear blow to Asghar Ali deceased who fell on the ground. Nazir Hussain was attacked by Jaffar petitioner with a spear near the left elbow followed by Allah Rakba who gave him a dang blow on his left shoulder. Fazal Muhammad gave him` a takwa blow on the left side of the head due to which he fell down.` More blows were showered at him by the assailants as he fell. Asad Ullah petitioner gave a spear blow to his father on the right side of the abdomen which felled him. More blows were given as he lay on the ground. In the F. I. R. it is also mentioned that Sajjad, Asad Ullah, Jaffar and other accused persons also received injuries during the fight which was witnessed by Muhammad Siddiq, brother of Asghar Ali and Bhag Ali. Asghar Ali died at the spot. The prosecution case is supported by Nazir Hussain P. W., Bhag Ali P. W. 10 and Jaffar Ali P. W. 11 who are the three eye witnesses. The defence has produced three witnesses, D. W. 1 Mr. Muhammad Majid, an Advocate of Kasur, who has attested the affidavits of Jaffar Ali, Siddiq and Bhag Ali, which are Exhs. D. E., D. F. and D. G., respectively. D. W. 2 Tajuddin supported him in this regard. Ihsanul Haq D. W. 3 produced a birth entry relating to Bashir son of Bhag dated the 5th April 1968. The learned trial Judge has come to the conclusion that the fight between the parties took place near the watercourse. The High Court has come to a different conclusion. It has held that fight took place near the haveli of the complainant party. After going through the evidence of the prosecution we are satisfied that the attack on the complainant party was made near the haveli of the deceased and the petitioners were the aggressors. There is no right of private defence available to the petitioners. There is overwhelming evidence to support the conviction of the petitioners. Some of the petitioners are injured persons. The High Court has carefully considered the evidence of the prosecu tion and has come to the conclusion that the petitioners are guilty of the murder of Asghar Ali and of murderous assault on Nazir Hussain. No exception can be taken to its finding. The petition is dismissed. Leave refused.