1989 PLP 1839 (SCMR)

GHULAM MUJADDID, J.‑‑Petitioner Bashir Ahmad seeks leave to appeal against the judgment of the Lahore High Court dated 28‑4‑1986. On 20‑7‑1981 at about 3/4 p.m., Mohammad Asghar was murdered and Mohammad Latif, Bashir Ahmad and Monir injured to the area of village Gandhowal, at a distance of 13 miles from Police Station, Narang District, Sheikhupura. Bashir Ahmad lodged report about the incident. It was recorded by S.I./S.H.O Mushtaq Ahmad. Akbar, his mother Mst. Bashiran, Nazir Ahmad, Mohammad Monir, Sultan and lftikhar Hussain were hauled up. They were tried by the Additional Sessions Judge, Sheikhupura who by judgment dated 11‑6‑1983 acquitted Mst Bashiran. The rest were convicted under section 148 P.P.C. and sentenced to one year R.I. each. They were also convicted under section 302/149 P.P.C. Akbar was sentenced to death and Nazir Ahmad, Mohammad Montr, Sultan and Iftikhar Hussain to imprisonment for life and fine of Rs. 5,000 each or in default one year R.I. each. For causing injuries to Bashir Ahmad they were convicted under section 324/149 P.P.C. and sentenced to one year R.1. each plus fine of Rs.2,000 each. On appeal by the convicts, they were acquitted under sections 148 and 302/149 P.P.C Death sentences of Akbar's was not confirmed. Akbar was convicted under section 304 Part 11 P.P.C. for causing the death of Asghar and sentenced to ten years R.I. with fine Rs.5,

000. He was also directed to pay Rs.5,000 as compensation to the legal heirs of the deceased. The rest were convicted under section 324 P.P.C. for causing simple injuries to the deceased and sentenced to the period already undergone by them. Conviction and sentence under section 324 for causing injuries to Bashir Ahmad was maintained. However, their sentence except Akbar was reduced to the period already undergone. Akbar's sentences were ordered to run concurrently. The background of the incident is that one Mohammad Yaqub cousin of the petitioner, used to bring up sheep. He was of unsound mind. On 19‑7‑1981 while he was grazing sheep, Javed aged 13/14 and Parvez aged 11/12, sons of hIst. Bashiran (acquitted accused) and brothers of Akbar respondent joked with him Mohammad Yaqub protested about that with the mother of the boys. She instead of admonishing her sons gave blows. Javed and Parvez also joined their mother. Mohammad Yaqub went to Mohammad Latif, father of the deceased‑, and told him what happened; how he was insulted by Mst. Bashiran and her sons. Mohammad Latif alongwith Mohammad Yaqub came to the house of Mst. Bashiran and protested. He was rebuked by Mst. Bashiran and her sons. Latif did the same in return. Mst. Bashiran went on top of the roof of her house and started brick batting. Mohammad Latif escaped unhurt. The quarrel ended with the intervention of Ilyas, Bashir, Nazir and Afzal. Nevertheless, Mst. Bashiran sent message to her on Akbar and other relatives Nazir Ahmad and Mohammad Monir. They came to the village alongwith their friends Iftikhar Hussain and Sultan. They wanted to take revenge of Mst.Bashiran's insult. On 20‑7‑1981 Bashir Ahmad along with his younger brother Asghar Ali were returning from their well while their father Mohammad Latif and brother Monir were working at the yell. When Bashir Ahmad and Asghar reached near Rajbah Gulluke in front of Chah Mochianwala, respondents Akbar Nazir, Mohammad Momr, Iftikhar Hussain and Sultan came in front of them. Akbar, Nazir Ahmad and Mohammad Monir had daggers and Iftikhar Hussain and Sultan Sotas. Akbar opened the attack. He gave a dagger blow on the left side of abdomen of Asghar Ali. He gave another blow close to the first one. Asghar Ali fell down and became unconscious. He was then hit by Sultan and Iftikhar Hussain who gave him blows on the left elbow, waist and other parts of the body of Asghar. Bashir Ahmad tried to escape but he was encircled. Mohammad Momr and Nazir Ahmad tried to hit him in the abdomen but he received injuries on his left wrist and palm. lftikhar Hussain and Sultan gave him Sota blows on his head, left elbow, left thigh, knee and right calf. On the alarm raised by Bashir Ahmad, his father Latif and brother Monir came to save him. They were injured. Monir received 13 injuries while Latif 2 caused by dagger and Sota. Lot of people from the village gathered. They intervened and snatched the weapons from Monir and Akbar. Upon this Nazir and Iftikhar Hussain attacked Bashir Ahmad complainant and others who in self defence caused injuries to both of them. On 20‑7‑1981 Dr. Tahir Anis examined Iftikhar Hussain. He had twenty injuries. Two were caused by sharp‑edged weapon and the rest with blunt. All were simple in nature. On the same day Dr. Tahir Anis examined Nazir Ahmad. The doctor noticed 24 injuries on his person. Four of the injuries had been caused by sharp edged wcapon and the rest with blunt weapon. He was in shock. The injures were declared simple. Bashir Ahmad, father of the deceased, and Khadim Hussain, an independent person, were examined by the prosecution as eye‑witnesses. Akbar, Monir and Sultan respondents denied their participation. Nazrr Ahmad and Iftikhar Hussain respondents gave their own version which was that they were attacked by the complainant side and they acted in self defence. Learned counsel appearing in support of this petition submitted that the High Court erred in law in being influenced by the number of injuries suffered by the accused. According to the learned counsel that was not the criterion to determine the criminal liability of the parties. Learned counsel submitted that the prosecution case had been proved beyond doubt. The High Court after comparing the version of both sides, came to the conclusion that in view of the past strained relations of the parties when they came across each other they flared up and had a free fight. The High Court also took into consideration the number of injuries received by both the sides that is why it was observed, "Needless to say that in case of free fight the question of vicarious liability does not arise and each participant is liable for his individual act." The High Court also applied the dictum laid down by this Court in the case of Syed Ali Bepari v. Nibaran Mohallah and others (P L D 1962 S C 502). We don't find much force in the contentions of the learned‑counsel because the approach of the High Court was strictly in accordance with law and facts of the case. It was not mere number of injuries which influenced the High Court to come to a, different conclusion than the one arrived at by the trial Court. As a matter of fact, all the relevant facts were taken into consideration. Here we would like to observe that Mohammad Monir who according to the prosecution had thirteen injuries was never examined nor was his father Latif who too was injured. Reasons are better known to the prosecution and best to the defence. We are not inclined to interfere in the impugned judgment. Dismissed. M.A.K./B‑112/S Petition dismissed.