1987 PLP 2013 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed by Muhammad Lal complainant‑petitioner and is directed against judgment dated 5th May, 1980 passed by a Division Bench of the Lahore High Court Lahore. Briefly the facts are that Muhammad Ayub, Muhammad Tariq, Muhammad Khalid and Muhammad Fayyaz respondents were tried for offences under sections 302/34 and 307/34, P.P.C. by the Additional Sessions Judge Rawalpindi who vide his judgment dated 28th April, 1975 convicted Muhammad Ayub respondent under section 304, Part II, P. P. C. and sentenced him to five years' R I plus fine, and Muhammad Tariq respondent under section 307, P.P.C. to four years' R.I. plus fine. Muhammad Khalid and Muhammad Fayyaz respondents were however, acquitted. In appeal a Division Bench of the Lahore High Court Lahore maintained the conviction of Muhammad Ayub and Muhammad Tariq respondents reducing their sentences of imprisonment to that which they had already undergone, but enhanced the fine imposed .on each of them. The acquittal of Muhammad Khalid and Muhammad Fayyaz respondents was upheld. Hence the present petition for enhancement of sentence of Muhammad Ayub and Muhammad Tariq respondents and against acquittal of Muhammad Khalid and Muhammad Fayyaz respondents. The deceased in this case is Wilayat Hussain and the injured persons are two eye‑witnesses namely Karamat Hussain and Ashiq Hussain P.Ws., besides Muhammad Ayub and Muhammad Tariq respondents. The occurrence took place on 11th September, 1972 at 10 a. m. in front of the house of the deceased. Two human blood‑stained hatchets had been recovered from Muhammad Ayub and Muhammad Khalid respondents whereas human blood‑stained stick had been recovered from Muhammad Tariq respondent after their arrest. From Muhammad Fayyaz respondent nothing was recovered although he was stated to be armed with a stick. There are four eye‑witnesses of the occurrence namely Muhammad Lal, Ashiq Hussain, Karamat Hussain and Abdur Razaq P.Ws. As it has been stated, besides Ashiq Hussain and Karamat Hussain P.Ws. Muhammad Ayub and Muhammad Tariq respondents were also injured in the course of the occurrence. Both the Courts below i.e. the trial Court as well as the appellate Court had arrived at the conclusion that it was a sudden fight between the parties and that was the reason that each of the respondents who had participated in the occurrence was held liable for his own act. The motive was that six years before the occurrence daughter of Muhammad Ayub respondent namely Mst. Ghulam Zohra was married to Muhammad Lal P.W. and they had a two years old child. About 5/6 months before the occurrence Mst. Ghulam Zohra fell out with her husband and was residing in her father's (Muhammad Ayub respondent's) house. According to the prosecution version the occurrence took place because this child had been taken away from Mst. Ghulam Zohra by Muhammad Lal P.W. The accused party came to the house of Muhammad Lal P.W. and then it appears that a quarrel ensued between the accused and complainant parties which led to a fight. Muhammad Ayub and Muhammad Khalid respondents were said to be armed with hatchets whereas Muhammad Tariq and Muhammad Fayyaz respondents were armed with sticks. As a result of this fight Wilayat Hussain was killed whereas Karamat Hussain and Ashiq Hussain were injured on the complainant side while Muhammad Ayub and Muhammad Tariq were injured on the accused side. Learned counsel for the petitioner argued that it was not a sudden fight and that the respondents had pre‑planned the attack. It was also submitted that there was no justification on the part of the learned Division Bench of the Lahore High Court Lahore to reduce the sentences of imprisonment of the two convicts to that which they had already undergone. We have heard learned counsel at some length. Both the trial as well as the appellate Courts had correctly arrived at the conclusion that it was sudden fight which had commenced due to the child having been taken away by the complainant side. After maintaining the conviction of the two convicts if the learned Judges of the Lahore High Court have modified the sentences of imprisonment to that which the convicts had already undergone, we are of the opinion that they have rightly exercised their discretion, and we are not inclined to interfere in the exercise of this discretion. In any case in our view it is not a fit case for interference in the impugned judgment. The petition is, therefore, dismissed. S.Q./M‑199/S ‑‑‑‑‑ Petition dismissed.