1987 PLP 1278 (SCMR)

Ch. Aitzaz Ahsan, Advocate Supreme Court and Manzoor Elahi, Advocate‑on‑Record for Appellant. M. Nawaz Abbasi, A.A.‑G. (Pb) and Rao M. Yousuf Khan, Advocate‑on‑Record for Respondent No.

3. Wahiduddin Virk, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondents Nos. 1 and

2. NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the order, dated 21‑9‑1986 passed by a Division Bench of the Lahore High Court suspending the sentence of Inayatullah son of Rehmatullah and Arshad Hussain Shah son of Muhammad Ghani Shah, who were convicted by the learned Additional Sessions Judge, Gujrat under section 302/34, P.P. C. for having committed the murder of Muhammad Ajmal deceased in furtherance of common intention of Muhammad Siddique (co‑accused‑‑who was sentenced to death) and sentenced, inter alia, to imprisonment for life as they had caused only simple injuries upon the deceased. Inayatullah (respondent No. 1) was armed with a knife while Arshad Hussain (respondent No. 2) was armed with a Chhuri. Both of them were found to have inflicted one simple injury, each on the right and left arms of the deceased. The said respondents also were injured in the incident. Inayatullah had two lacerated wounds on his head and face, while Arshad Hussain Shah had one lacerated wound on his head. These injuries were also simple. All the three convicts had questioned the judgment of the learned Additional Sessions Judge, Gujrat by filing an appeal before the Lahore High Court. Respondents Nos. 1 and 2 also prayed for suspension of their sentences pending the decision of the appeal. The High Court granted this prayer observing that prima facie it was a free fight between the parties. In all, there were five members of the accused party, out of which three were injured including the two respondents herein. On the complainant side too, there were five members and out of them three were injured including the deceased. Since the respondents were themselves injured and the injury attributed to each of them (on the deceased) is simple in nature, they were entitled to suspension of sentence pending the disposal of the appeal. Leave was granted to consider whether the opinion of the High Court that as there was a free fight between the parties, therefore, section 34 would not be applicable was justified on the evidence on record and whether this inference flew from the judgment of the learned trial Court which was impugned before it. We have heard learned counsel for the parties and observe that the learned Judges in the High Court have not referred to the evidence on the record and based their opinion merely on the circumstances that as the number of persons on the side of the complainant party was equal to that of the accused and the accused too had some lacerated wounds, a "free fight" between the parties could be assumed. Unfortunately, we cannot agree with this approach. Before any such assumption could be made the evidence on the record needed to be carefully considered and without doing so. the assumption made would only be an impression of what may have happened. To suspend the judgment of the Court below on such basis alone, cannot be upheld. In fact, the impression formed by the learned Judges doe: not at all flow from the judgment of the trial Court, which was impugned before the High Court. Before the trial Court the case o1 the accused was that the complainant party was the aggressor and that it had only acted in self‑defence. This plea was not accepted by the learned trial Court. The question of any free fight was neither raised nor considered by the learned trial Court. No doubt the Court can, in certain circumstances, reconstruct the incident and form its own conclusion by drawing proper inferences from the evidence and circumstances of the case, with regard to what actually must have happened. But, in such an eventuality, the entire evidence and al: the circumstances have carefully to be examined before the Court comes to a conclusion which is quite different from the stand taken up with regard to the occurrence, both by the prosecution and the defence. This was not at all the case here. The result is that this appeal is allowed and the impugned order of the High Court, dated 21‑9‑1986 is set aside. M.B.A./M‑98/5?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.