1988 PLP 110 (SCMR)

JAVID IQBAL, J.--This petition for leave to appeal has been put up before us for rehearing. The background is that the present petitioner alongwith nine others was tried on charges under section 302/307/148/149, P.P.C. by the Additional Sessions Judge, Gujrat who vide his judgment, dated 11th April, 1984 acquitted three co-accused namely Bahawal Bakhsh, Mushtaq and Mohammad Zaman, but besides the petitioner convicted Lai Khan son of Maula Dad, Nadar Khan son of Rehmat Khan, Mohammad Anwar son of Lai Khan, Mian Khan son of Lai Khan, Mohammad Malak son of Ghulam Hussain and Mehdi Khan son of Bahawal under section 302/149, P.P.C. and sentenced each of them to life imprisonment plus fine. But the learned Single Judge of the Lahore High Court, Lahore vide judgment, dated 12 August, 1984 maintained the conviction as well as sentence awarded thereunder only of Mohammad Sharif petitioner, whereas Lai Khan, Nadar Khan, Mohammad Anwar, Mian Khan, Mohammad Malak and Mehdi Khan co-accused were all acquitted of the charge under section 302/149, P . P . C . as well as under section

148. P . P . C . but were separately convicted for their individual acts as follows: Mohammad Malak and Mehdi Khan were convicted under section

307. P.P.C. and each of them was sentenced to five years' R.I. plus fine, and Lai Khan, Mian Khan, Nadar Khan and Mohammad Anwar were all convicted under section 323, P.P.C. and each of them was sentenced to one year's R.I. plus fine. All of them were granted the benefit of the provisions under section 382-B, Cr.P.C. at the time of the computation of their sentences. The petition for leave to appeal has only been filed by Mohammad Sharif petitioner and not the aforesaid six co-accused, who we are told after undergoing their sentences may have already been released from jail. It may be noted that in this case two persons had been killed namely Bahadar Khan and Mst. Manzur Begum whereas five P.Ws. were injured namely Ghulam Haider son of Shah Mohammad, Ghulam Haider son of Taja, Mohammad Aslam son of Taja, Lai Khan son of Taja and Mehdi Khan son of Bahawal Bakhsh. The occurrence took place on 18th July, 1981 at Peshiwela in village Subhan. F.I.R. was lodged on the same day after an hour or two. The motive for the crime is that the accused party did not allow the drain water to pass near their houses. Briefly the prosecution case is that Jewan had a house on the eastern side of the village and near it passed a track of water. This track of water posed danger to his house. On the day of occurrence the said Jewan came to Ghulam Haider complainant and told him of his apprehension of danger. Thereupon, Ghulam Haider complainant, the deceased and other injured eye-witnesses accompanied the said Jewan to his house and helped him in demolishing the wall so as to allow the rain water to pass. They started constructing a Khal so that the rain water is led to the Saim Nala. The houses of the accused party were on the west side of the channel. When they noticed the aforesaid persons digging the Khal, eleven persons from the accused side including the present petitioner, the aforementioned six co-accused, three acquitted co-accused by the trial Court and Farman All absconder (proclaimed offender) reached the spot raising Lalkaras. They emerged from the house of Bahawal. Mohammad Sharif petitioner, Mohammad Malak co-accused and Farman Ali absconder were armed with guns, Mohammad Anwar, co-accused was armed with a pistol whereas the rest were armed with Sotas. They attacked the deceased and injured the P.Ws. resulting in the death of two persons and injuries to the others. Learned counsel for Mohammad Sharif petitioner argues that if the injured eye-witnesses in respect of the other co-accused had been disbelieved for having committed offences under section 302/149/148, P.P.C. by the learned Single Judge of the Lahore High Court then they should have also not been relied upon in respect of the part which they ascribed to Mohammad Sharif petitioner. It may be pointed out that the part ascribed to Mohammad Sharif petitioner is that he had fired at Mst. Manzur Begum deceased and thus caused her death. Farman Ali absconder is stated to have fired at Bahadar Khan deceased which led to his death, but he was not tried and his case is not before us. After a careful perusal of the record we note that although the trial Court believing the ocular testimony of the injured P.Ws., had arrived at the conclusion that the members of the accused party had formed an unlawful assembly and thus arming themselves with deadly weapons like fire-arms, had attacked the complainant side, the appellate Court on the basis of the same evidence appears to have arrived at the conclusion that it was a sudden fight and that the complainant party might have thrown brickbats at the accused side. The finding is that the parties fell out and some brick bating took place. Thereafter, additional members of the accused party who were living nearby in order to help them turned up with fire-arms and used the same carelessly in order to defend their companions. It is on the basis of this reasoning that the learned Single Judge arrived at the conclusion that the affair was sudden and that, therefore, section 148/149, P.P.C. were not applicable. However, while drawing this conclusion the learned Single Judge opined that the prosecution had tried to suppress the place from the site plan from where Mohammad Malak and Mehdi Khan co-accused are said to have fired at Lai Khan and Ghulam Haider P.Ws. The learned Judge further noted that the P.Ws. even suppressed the exact location from where the dispute actually originated. From a careful perusal of the record we are of the view that in this case the question which requires determination is as to whether it was a sudden fight, which would make the case of the petitioner and other members of the accused party covered by Exception IV to section 300, P.P.C., and thus make each of them liable for his own act, or it was a case in which the members of the accused party including the petitioner had formed an unlawful assembly and armed themselves with deadly weapons with a common intention to attack the complainant side. This question requires examination.' Therefore, leave to appeal is granted not only to Mohammad Sharif petitioner, but we also give notice to Lai Khan son of Maula Dad, Nadar Khan son of Rehmat Khan, Mohammad Anwar son of Lai Khan, Mian Khan son of Lai Khan, Mohammad Malak son of Ghulam Hussain and Mehdi Khan son of Bahawal co-accused who were acquitted of offences under section 302/149/148, P.P.C. by the learned Single Judge of the Lahore High Court, Lahore. The notice given to the aforesaid six co-accused be also converted into an appeal to be heard alongwith the appeal of Mohammad Sharif petitioner-appellant. Let these connected matters be fixed in the third week of November, 1987 after notice to the aforenamed six co-accused. M.I./M-226/S Order accordingly.