2000SCMR746 (PLP)

SH. IJAZ NISAR, J.

This appeal by leave of the Court is directed against the judgment, dated 2-5-1993, passed by the Lahore High Court, Multan Bench, in Criminal Appeal No.229 of 1989 and Murder Reference No.282 of 1989.

2. The facts, in brief, are that on 11-12-1987 at 11-30. a.m. Pehlwan son of Ahmad Bakhsh complainant (P.W.6) lodged F.I.R. No.191 (Exh.P.F.1) with Police Station Sadar, Muzaffargarh, against Allah Wasaya and Allah Dawaya, appellants herein, alleging therein that Fazal Amad deceased had planned to marry Mst. Sughran, daughter of Allah Dawaya appellant with one Nazir Ahmad. The marriage was to take place at the Dera of the appellants. Fazal Ahmad deceased was also present at the Dera in connection with the marriage ceremony. Before the arrival of Baraat, Allah Dawaya appellant demanded Rs.5,000 from Fazal Ahmad deceased as consideration for the said marriage which led to a quarrel between them. Allah Dawaya picked up a Waholla and Allah Wasaya appellant a Kafgeer belonging to Sajawal Nai which were lying on a cot near the place where the said Nai was cooking food for the guests. The appellants attacked Fazal Ahmad deceased and after causing him injuries with their respective weapons ran away from the place of occurrence. Fazal Ahamd was admitted to the Nishtar Hospital, Multan, in an injured condition where he died on 17-12-1987.

3. After completing the investigation, the police challaned the appellants. The prosecution produced 12 witnesses to prove its case. Pehlwan P.W.6, Ghulam Sarwar P.W.7 and Sajawal P.W.8 appeared as eye witnesses. Allah Ditta P.W.11 proved the recovery of Waholla P.2 and Kafgeer P.3. at the instance of Allah Dawaya and Allah Wasaya appellants, respectively.

4. The appellants denied the prosecution allegations. Explaining the occurrence Allah Dayawa appellant made the following statement:

"I had refused to marry my daughter Mst. Sughran with the said Nazir which was being performed by the deceased Fazal Ahmad. He nursed a grudge against me. Fazal Ahmad deceased had taken a sum of Rs.5,000 or more from Nazir which the latter demanded. When I refused to this marriage, a dispute arose between Fazal Ahmad and Nazir. As a result of which Fatal Ahmad deceased was injured by Nazir and others. Since Nazir Ahmad is a son of the sister of Fazal Ahmad deceased, they have compromised and this occurrence has been placed at my shoulders by the brother of the deceased, due to that grievance. "

5. Learned Additional Sessions Judge, Muzaffargarh, vide judgment, dated 3-10-1989 convicted the appellant under section 302/34, P.P.C. and sentenced them to death with a fine of Rs.5,000 each or in default thereof to undergo further R.I. for two years.

6. The convicted accused filed an appeal in the High Court. By judgment, dated 2-5-1993 the learned High Court taking a lenient view in the matter altered the death sentence awarded to the appellants to imprisonment for life under section 302/34, P.P.C. with benefit of section 382-B-, Cr.P.C., but the fine as imposed on them by the trial Court was maintained.

7. Leave to appeal was granted to consider whether the offence committed by the appellants fell under section 302, P.P.C. or 304-Part(I), P. P. C.

8. Pehlwan P.W.6, Ghulam Sarwar P.W.7 and Sajawal P.W.8 had' furnished the ocular account. Their presence at the spot was quite natural and the defence could not shatter their testimony despite lengthy cross-examination. Being related to both the parties they could, not be expected to falsely involve the appellants. Their testimony stands corroborated by the medical evidence.

9. Learned counsel for the appellant contends that the learned High Court had rightly arrived at the conclusion that there was no premeditation and the occurrence was the result of sudden flare up of tempers.

10. The events which led to the occurrence were that Fazal Ahmad deceased had to obtain the hand of Mst. Sughran, daughter of Allah Dawaya appellant, for Nazir Ahmad and the deceased was to pay Rs.5,000 to Allah Dawaya as consideration for, the said marriage. On the day of occurrence the marriage between Mst. Sughran and Nazir was to take place and before the arrival of the Baraat Allah Dawaya appellant demanded Rs.5,000 from the deceased for giving the hand of his daughter to Nazir Ahmad which led to a quarrel between them. Allah Dawaya picked up Waholla and Allah Wasaya a Kafgeer from the cot lying at the spot and caused injuries to the deceased, resulting in his death.

11. It appears from the sequence of events that the occurrence was the result of sudden flare up of tempers without any premeditation. Both the appellants had not come armed at the spot and picked up the weapons of offence from there without sharing any common intention to kill the deceased, nor can, from the above circumstances, it be inferred that common intention had developed between them at the spur of the moment, hence the question of vicarious liability would not arise.

12. Having held that the occurrence was the result of a sudden flare up of tempers without any premeditation the question of vicarious liability would not arise. The appellants would, therefore, be liable under section 304, Part I, P.P.C. instead of section 302/34, P.P.C. We order, accordingly and sentence of Allah Wasaya appellant, who inflicted the fatal injury with a Kafgeer on the deceased to 10 years' R.I. plus a fine of Rs.5,000, or in default to further undergo 2 years' R.I., while Allah Dawaya appellant, who caused simple injuries to the deceased with Waholla is sentenced to 5 years' R.I. plus a fine of Rs.5,000 or in default to further undergo 2 years' R.I. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. They shall also be entitled to the benefit of section 382-B, Cr.P.C.

13. The appeal is partly allowed and disposed of in the above terms. N.H.Q./A-4/S Order accordingly.