2011 SCMR 1524 (PLP)

ASIF SAEED KHAN KHOSA, J.

As one of the accused persons in the cross-version of case of F.I.R. No. 286 registered at Police Station Sillanwali, District Sargodha on 7-9-2001 in respect of offences under sections 302/341/148/149, P.P.C. Ansar Mahmood appellant was tried along with his co-accused by the learned Additional Sessions Judge, Sargodha and vide judgment dated 31-5-2005 he and his co-accused were convicted and sentenced as follows-- (i) under section 148/149, P.P.C. to undergo two years' R.I. with fine of Rs. 2,000 each and in default thereof three months' S.I. each. (ii) under section 302(b)/149, P.P.C. to undergo imprisonment for life and to pay Rs. 5,000 each as compensation to the legal heirs of the deceased and in default thereof six months' S.I. each. (iii) under section 324/149, P.P.C. to undergo seven years R.I. each with fine of Rs. 3,000 each and in default thereof six months' S.I. each. They were also directed to pay Rs. 5,000 each as compensation to injured Rizwan Nadeem. (iv) under section 337-A(iii), P.P.C. to undergo two years' R.I. each with Daman of Rs. 2,000 each to be paid to Aslam injured P.W. (v) under section 337-L(2), P.P.C. to undergo one year R.I. each and to pay Rs. 1,000 each as Daman to Aslam injured P.W." The appellant and his co-convicts preferred Criminal Appeals Nos. 1012 and 688 of 2005 before the Lahore High Court, Lahore which appeals were partly allowed by the then honourable Chief Justice of the Lahore High Court, Lahore vide judgment dated 24-11-2009 and the appellant's conviction and sentence for an offence under section 302(h), P.P.C. read with section 149, P.P.C. were set aside but his remaining convictions and sentences recorded by the learned trial Court were upheld and maintained. Hence, the present appeal by leave of this Court.

2. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

3. As this appeal can be decided on a pure question of law, therefore, we have felt no occasion for going into the facts of this case. In the concluding paragraphs of his lordship's impugned judgment the then honourable Chief Justice of the Lahore High Court, Lahore had categorically found that the case in hand was a case of a free fight entailing individual liability of every accused person but before upholding and maintaining the appellant's convictions and sentences in respect of the offences under sections 148/149, P.P.C., 324/149, P.P.C., 337-A(ii), P.P.C. and 337-L(2), P.P.C. his lordship had failed to appreciate that the individual liability of the petitioner could not be ascertained or determined in this case with any-exactitude. According to the prosecution the appellant and three of his co-accused had collectively given sota blows to the injured victim namely Muhammad Aslam (P.W.15) and in support of that allegation the prosecution had produced before the learned trial Court two eye-witnesses namely Mushtaq Ahmad (P.W.14) and the injured victim himself, i.e. Muhammad Aslam (P.W.15). Mushtaq Ahmad (P.W.14) had stated before the learned trial Court in black and white that he had not witnessed the incident wherein Muhammad Aslam (P.W.15) had received injuries and Muhammad Aslam (P.W.15) had levelled only a general and collective allegation regarding sota blows having been given to him collectively by the present appellant and his three co-accused. It is not disputed that the said injured victim had never specified any particular blow or injury having been given or caused to him by the present appellant. It is settled law that in a case of a free fight every accused person is liable only for the part played or the injury caused by him. In the present case no particular injury found on the body of Muhammad Aslam (P.W.15) had ever been attributed to the present appellant. In this view of the matter the then honourable Chief Justice of the Lahore High Court, Lahore has been found by us to be unjustified in upholding and maintaining the appellant's convictions and sentences on any head of the charge framed against him. After holding the case in hand to be a one of a free fight the appellant could not have been convicted for an offence under section 148, P.P.C. read with section 149, P.P.C. because there was no common object between the culprits. A charge: in, respect of an offence under section 324, P.P.C. read with section 149, P.P.C. could not stick against the appellant because he had not been attributed any specific injury in such a case of a free fight and for the same reason the appellant could also not have been convicted for offences under sections 337-A(ii) and 337-L(2), P.P.C. because it was never determined as to which particular injury, if ally, had actually been caused by the appellant to the injured victim namely Muhammad Aslam (P.W.15). When confronted with this legal position the learned Additional Prosecutor-General, Punjab and the learned counsel for the complainant had no answer to the same and they could not defend the impugned judgment upholding and maintaining the appellant's convictions and sentences for the above mentioned offences.

4. For what has been discussed above this appeal is allowed, the convictions and sentences of the appellant recorded and upheld by the learned courts below are set aside and he is acquitted of the charge. He shall be released from the jail forthwith if not required to be detained in connection with any other case. M.H./A-34/SC Appeal allowed.