1989 PLP 1494 (SCMR)

JAVID IQBAL, J.‑‑These three criminal petitions namely Criminal Petitions for Leave to Appeal Nos. 21, 22 and 28 of 1987 are connected in the sense that they are against the same judgment of the Lahore High Court, Lahore, dated 23rd December, 1986, and are therefore, being taken up together. Criminal Petition No.21 of 1987 has been filed by Muhammad Afzal complainant‑petitioner and is against the acquittal of Tariq Majeed and Imdad Ali respondents of the charge under section 302, P.P.C. and alternately for enhancement of their sentence awarded to them under section 307, P.P.C. Criminal Petition No.22 of 1987 has been filed by the same petitioner and it is for enhancement of sentence of Shahid Majeed respondent from life imprisonment to death under section 302, P.P.C. Criminal Petition No.28 of 1987 has been filed by Shahid Majeed petitioner against his conviction under section 30‑2, P.P.C. and sentence of life imprisonment plus fine. Briefly the facts are that Shahid Majeed and his brother Tariq Majeed alongwith their friend Imdad Ali and one Abdul Majeed were charged for offences under section 302/307/34, P.P.C. But vide judgment of the trial Court Abdul Majeed was acquitted. Shahid Majeed was convicted under section 302, P.P.C. and sentenced to death plus fine. Tariq Majeed and Imdad Ali were each convicted only under section 307, P.P.C. and sentenced to five years' R.I. plush fine. On appeal the High Court maintained the conviction and sentence of Tariq Majeed and Imdad Ali. It also maintained the conviction under section 302, P.P.C. of Shahid Majeed but altered his sentence to death to that of impirsonment for life and increased the fine from Rs.10,000 to Rs.20,

000. The deceased in this case is Arshad Mahmood. The occurrence took place at 12‑45 p.m. on 13th October, 1982 within the area of Police Station Shalamar, Lahore. The F.I.R. was lodged by Muhammad Afzal petitioner (in Criminal Petitions Nos. 21 of 1987 and 22 of 1987) brother of the deceased at 3‑15 p.m. on the same day‑. From Shahid Majeed was recovered human blood‑stained Chhuri. From Tariq Majeed no recovery was effected and from lmdad Ali a Khanjar was recovered but not blood‑stained. There are two eye‑witnesses of the occurrence namely Muhammad Afzal petitioner brother of the deceased and Abdul Latif brother‑in law of the deceased. According to the medical evidence the deceased received two incised injuries on his thigh and the one which proved fatal had cut femoral artery. There was also a stab wound on the right chest. Criminal litigation was going on between the parties and there was enmity between them. According to the prosecution version when the eye‑witnesses appeared on the scene they saw that the accused party had encircled the deceased. The accused party were armed with knives. Shahid Majeed gave Chhuri blow on the right side of the belly. Tariq Majeed gave Chhuri blow on his thigh and Imdad Ali gave a dagger blow. The deceased tried to run away but fell down. Thereafter the assailants ran away from the place of occurrence. After the perusal of the evidence the findings of the High Court are that so far as the origin of the occurrence is concerned the eye‑witnesses did not know as to what had happened between the accused party and the deceased. In the background of previous criminal litigation between the parties the only inference which possibly could be drawn was that it was a chance encounter and in the course of a brawl. The respondents without any premeditation inflicted one injury each on the deceased. Out of three injuries received by the deceased only one proved fatal while the other two were simple in nature. The fatal injury was not on vital part but had cut femoral artery resulting in the death of the deceased due to heavy bleeding. The other two injuries attributed to Tariq Majeed and Imdad Ali were skin deep and simple. The Court arrived at the conclusion that common intention among the members of the accused party could not be proved and thus they were individually liable for their acts. Since Tariq Majeed and Imdad Ali had caused simple sharp‑edged weapon injuries to the deceased their conviction under section 307, P.P.C. and sentence were accordingly maintained. However, the sentence awarded to Shahid Majeed under section 302, P.P.C. was altered from death to imprisonment for life firstly because of his youth being 16/17 years of age, secondly because he had himself been injured by the deceased in the earlier incident which took place about two and a half months before, and thirdly he had inflicted only one injury cutting femoral artery and he did not repeat the blow although there was nothing to prevent him from doing so. Learned counsel for the petitioner in Criminal Petitions Nos. 21 and 22 of 1987 attempted to argue before us that it was a premeditated affair in which the accused party with common intention and armed with Chhuris had attacked the deceased, and therefore, it was not a sudden fight or brawl where under each of the members of the accused party should have been held liable for his own act. But this reasoning of the learend counsel has no force, because according to the eye‑witnesses they did not know as to what was the immediate cause of the occurrence. Therefore, there was justification on the part of the High Court as well as the trial Court to arrive at the conclusion that it was a brawl. Learned counsel for Shahid Majeed petitioner in Criminal Petition No.28 of 1987 attempted to argue that the conviction and sentence of the petitioner under section 302, P.P.C. were not proper because he did not cause injury on ‑vital part and therefore did not intend to murder the deceased. According to the learned counsel he could have at the most be convicted under section 326, P.P.C. or under section 304, Part II, P.P.C. But agreeing with the High Court we do not find any substance in these arguments. In the circumstances of the case his conviction under section 302,P.P.C.was proper and well‑deserved. In the fight of the above discussion we do not find any substance in all these petitions namely criminal petitions Nos. 21, 22 and 28 of 1987, which are accordingly dismissed. ?/M‑875/S Petitions dismissed.