1987 PLP 802 (SCMR)

Ch. Ghulam Bari Saleemi, Advocate Supreme Court (absent) and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner (in Cr. P. No.96 of 1982) Nemo for the State (in Cr.P. No. 96 of 1982). Date of hearing: 10th February, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought in these two petitions from judgment dated 22‑11‑1981 of the Lahore High Court; whereby criminal appeals and revision arising out of a murder case, were partly allowed. Learned counsel for Talib Qureshi one of the convicts (petitioner in Cr. P. No.96 of 1982) stated that he has no instructions to press the petition. The same is accordingly dismissed. Criminal Petition No.91 of 1982 has been filed by Talib Hussain complainant seeking reversal of the judgments of the trial and appellate Courts regarding the culpability, offence committed and the sentence awarded to the accused persons. The accused/ respondents who were tried for the murder of Muhammad Yahya and injuries to Shaukat Saeed, Zafar Hussain, Nazir Ahmad and Fazal Ahmad of the complainant's party, were convicted and sentenced variously under section 304, Part‑I, P. P. C. on the finding that they acted under grave and sudden provocation: They were also accordingly convicted for the injuries to the witnesses, under section 308, P.P. C. and sentenced. They were further convicted under section 148, P. P. C. On appeal and revision, the sentence of life imprisonment awarded to Talib Qureshi, was upheld. His sentence of fine was enhanced from Rs.5,000 to Rs 10,

000. The entire amount was ordered to be paid as compensation. The conviction of Bashir accused was converted to one under section 325, P.P.C. and sentence already undergone by him was considered adequate. His sentence of fine was, however, maintained. Muhammad Younis, Muhammad Siddique, Farzand Ali, Maluka and Inayat Masih, were acquitted. Two accused, it is stated, died during the pendency of the appeal. It is an admitted position that both sides caused injuries to each other. As against five persons injured on the deceased‑side, four were injured on the accused‑side. The number of injuries on the latter side is substantial. It is not necessary to give the details of all the facts. According to the prosecution case, shortly, before the main occurrence, the tractor of Talib Qureshi accused was stopped by the deceased‑party because according to them he was driving at an unnecessarily fast speed. There was exchange of abuses and beating to Talib Hussain which invoked immediate retaliation by the accused party in which 9 persons from both the sides got injured. The defence version was that Talib Hussain in the company of others was passing in front of the Dhari of Talib complainant when the deceased‑party stopped them and then attacked them causing them injuries and those injured on the complainant‑side were hit by their own companions. The learned trial Court was of the view that even if the prosecution version is believed the act of the deceased‑side had provoked the accused‑side gravely and suddenly. Therefore, the case fell under sections 304, Part‑I and 308, P.P.C. The High Court has without specifically upsetting the finding of the learned trial Court assumed that each accused was responsible for his own act. After hearing the learned counsel in support of the petition against acquittal in so far as the charge under section 302, P. P. C. is concerned we are satisfied that in the circumstances of the case the rule laid down by this Court in the case of Syed Ali Bepari v. Nibaran Mollah P L D 1962 SC 502 is fully attracted to this case. Both the parties were interested in withholding the truth. A reasonable possibility cannot be excluded that the clash between the two parties flared up all of a sudden without pre‑meditation. All the conditions in Exception IV to section 300, P.P. C. would be attracted. Therefore, as held in that case each accused would be responsible for his own act and there is no question of self‑defence by either side. Substantial justice having been done, no justification has been made out for grant of leave to appeal in the petition against acquittal. The same' (Cr. P. No. 91 of 1982) is also dismissed. S. Q. /T‑5/S. Petition dismissed.