1982 PLP 940 (SCMR)

WAHEEDUDDIN AHMAD, J.‑This petition is directed against the judgment of the Lahore High Court in Criminal Appeal No. 458 of 1976. By this judgment the State's appeal against the acquittal of the aforementioned four petitioners has been allowed, and they have been convicted for various terms of imprisonment. Briefly the facts leading to the present petition are that the four petitioners alongwith three others were tried by the learned Additional Sessions Judge, Lyallpur, under sections 148, 302, 149, 326/149, P. P. C. It was alleged against them that they murdered one Muhammad Ashraf by inflicting a single chhuri blow and causing injuries to three others at Isha wela on 12‑6‑1970 in Chak No. 180 G. B. Police Station, Rajana, District Lyallpur. The learned Additional Sessions Judge, Lyallpur, by his judgment and order dated 16‑12‑1971 held that the prosecution case was not proved beyond reasonable doubt and as a result, he acquitted all the seven accused in the case. The State filed Criminal Appeal No. 4.58 of 1972 in the Lahore High Court against the acquittal of the accused persons. A Division Bench of the High Court, by judgment dated 27‑7‑1976, dismissed the appeal against the three co‑accused, and allowed the State's appeal against the aforementioned four petitioners. The High Court held that the injuries were caused in a sudden and unpremeditated fight, and each of the accused was responsible for his own individual act. Petitioners Pir Bakhsh, Akram and Sharif have accordingly been convicted under section 326, P. P. C. and each of them has been sentenced to four years' R. I. and a fine of Rs. 1,000 or in default thereof to undergo further R. I. for one year. Petitioner Hanif has been found to have inflicted the fatal injury on the deceased and consequently he has been convicted under section 304, Part II, P. P. C. and sentenced to undergo R. I. for seven years, and to pay a fine of Rs. 3,000 or in default thereof; to undergo further R. I. for two years. The prosecution case is that Ishaq, owned land in Chak No. 180‑GB District Lyallpur, P. S. Rajana. He also had an Ehata which was given to Ata Muhammad P. W. 14 for use, who, in turn, gave it to his Munshi Miraj Din P. W.

15. Miraj Din restored its possession to Ata Muhammad on 12‑6‑1970. Umar Din, brother of the aforementioned owner Ishaq co‑accused since acquitted, demanded from Ata Muhammad that the possession of Ahata be given to him. Ata Muhammad agreed to do so provided the cost incurred by him on constructing a wall is repaid to him. Umar Din suggested that this matter may be got settled by the village Panchayat. This proposal was accepted by Ata Muhammad. A Panchayat was held and was conducted in the dark hours on 12‑6‑1970 after Isha. But during the Panchayat, the fight took place in which three persons of the accused side and four on the complainant side got injured, out of which one person died having received an incised, wound which proved fatal. The prosecution case is supported by P. W. 13 Jan Muhammad, P. W. 14 Ata Muhammad, P. W. 15 Suleman injured, P. W. 16 Yasin, injured and P. W. 17 Mustaqeem injured. According to the allegations made by the prosecution Pir Bakhsh and Akram were armed with swords while Hanif and Sharif were armed with chhuris. Mr. M. G. Cheema, the learned counsel for the petitioners has urged the following points (1) That in a case where acquittal is converted in conviction, one right of appeal should be given to the aggrieved party. (2) That investigation in the case was bogus and fake. (3) That the fight was sudden and there was no motive. (4) That the eye‑witnesses are inter‑related and independent evidence has been given up. Mr. Cheema further contended that the parties were on inimical terms. No independent witnesses were examined, and the recoveries were made four days after the occurrence, and they cannot corroborate the statement of eye‑witnesses. The contention of the learned counsel require consideration. Leave is granted. Bail is also granted to the petitioners in the sum of Rs. 5,000 (Rupees five thousand only) each with one surety to the satisfaction of the S. D. M., Toba Tek Singh. MOHAMMAD AKRAM, J.‑In continuation of the above order, I would like to add that while signing the same, it had escaped my notice that out of the four petitioners Nos. 3 and 4 had not yet surrendered and consequently their petition could not be entertained by us. In the circumstances the above order granting leave to appeal and bail should be construed as applicable to the remaining two petitioners, namely, Pir Bakhsh and Muhammad Akram petitioners Nos. 1 and

2. In this connection I have already spoken to my learned brother Wahidud din Ahmad, J. at Karachi on telephone and he agrees with me. NASIM HASAN SHAH, J.‑I agree with my learned brother Muhammad Akram, that this order granting leave to appeal and bail is confined only to petitioners Nos. 1 and 2 namely, Pir Bakhsh, son of Ismail and Muhammad Akram, son of Ata Muhammad, and that the petition on behalf of petitioners Nos. 3 and 4 namely, Muhammad Sharif and Muhammad Hanif, sons of Pir Bakhsh stands dismissed. Order accordingly.