1988 PLP 380 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--The respondents were tried by the learned Additional Sessions Judge, Sahiwal, for the murder of one Parvez. The learned trial Judge, on appraising the evidence produced before him came to the conclusion that the occurrence was a free fight in which besides Parvez deceased one person, namely, Khalid on the side of the accused was also killed. In this view of the evidence the learned trial Court convicted Liaqat Ali respondent under section 304, Part I, P.P.C. and sentenced him to imprisonment for life and fine whereas rest of the respondents were acquitted. The state appeal against the judgment of the trial court, seeking conviction of Liaqat Ali respondent under section 302 P.P.C. and calling in question the acquittal of the rest of the respondents has been dismissed in limine vide order of a Division Bench of the Lahore High Court, dated 14th September, 1981.

2. The version of the prosecution that Khalid deceased on the side of the accused was killed by a shot fired by Liaqat Ali respondent, was disbelieved, as the said deceased not only sustained a fire-arm injury but a stab injury as well. Additionally even Liaqat Ali respondent sustained a stab injury during the occurrence. On the complainant side Parvez deceased and Muhammad Amin (PW) were injured with sharp-cutting weapon. Under the circumstances it has been held by the courts below that since sharp-edged weapons were used by both sides and the evidence also revealed that the probabilities of a fire-arm being used by the complainant side cannot be excluded, it was a case of free fight, with the result that each accused would be individually liable for his own acts. Upon examination of the evidence the courts below have come to the conclusion that the case of Liaqat Ali respondent fell under Exception 4 to section 300 P.P.C. as he was found to have inflicted injuries to Parvez deceased.

3. So far as the acquitted respondents are concerned the evidence revealed that their participation in the commission of the crime was doubtful as none of them received any injury.

4. We have examined the impugned judgment and the evidence o record. We are satisfied that the courts below have come to proper conclusions on scanning the evidence on record in giving benefit o doubt, and acquitting respondents and there has been no violation of any principle of appraisal of evidence. Similarly the criminal liability of Liaqat Ali respondent has been correctly determined on the view of evidence taken by the Courts below which seems unexceptionable. The motive alleged by the prosecution that the occurrence was the result of a trivial quarrel over the price of a shoe between Khali and Liaqat Ali from the accused side and Parvez deceased, who was the owner of the shoe shop, was disbelieved for cogent reasons. Muhammad Amin (PW) admitted in his evidence that Parvez deceased had inflicted injury to Khalid deceased from the accused side but his assertion that Parvez was empty handed was palpably unbelievable in view of the medical evidence. Also his version that it was Liaqat Ali respondent whose shot hit Khalid deceased was rightly disbelieved. Similarly the accused version that a pre-planned attack was launched against them with deadly weapons while they were empty handed does not find support from the circumstances of the case. This was, therefore, a case of free fight in which both parties came armed to settle scores with each other over a matter which has romaine undisclosed. However, in such a scuffle the acquitted accused could not have escaped unhurt and consequently the benefit of doubt wag rightly extended to them.

5. For the foregoing reasons we find no merit in this petition and accordingly dismiss the same. It appears from the judgment of the High Court that respondent Liaqat Ali had filed an appeal against his conviction which was pending. If that appeal has not been disposed of the observations made in this judgment shall not prejudice hi case. M.I./S-891S Petition dismissed.