1990 PLP 333 (SCMR)

Asif Saeed Khan Khosa, Advocate Supreme Court instructed by Sh. Salahuddin, Advocate‑on‑Record for Petitioners. Nemo for the State. Date of hearing: 25th September, 1989. JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court Multan Bench dated 7th March, 1988 whereby conviction and sentence awarded to Imam Bakhsh petitioner by the trial Court were maintained and the conviction of Hussain Bakhsh petitioner were altered from section 302, P.P.C. to section 304, Part 11, P.P.C., and his sentence of life imprisonment was reduced to 7 years' R.I. plus fine. However, his conviction and sentence under section 325, P.P.C. were maintained. There are two deceased in the instant case namely Ghulam Rasool and Abdul Aziz and three injured persons namely Abdul Rahman P.W.11, Muhammad Shari P.W.12 and Muhammad Hanif P.W.13. The occurrence took place at 6 a.m. on 6th July, 1983 on the roof of the residential house of the complainant party. The petitioners and the complainant party are related to each other and lived in adjoining houses. The finding of the Courts below is that a trivial matter i.e. teasing of a lady of the accused side by a member of the complainant party actually led to the occurrence which took the shape of a sudden fight. The part ascribed to Hussain Bakhsh petitioner is that he threw a brickbat which hit Abdul Aziz deceased and led to his death. The part ascribed to Imam Bakhsh petitioner is that he fired a shot which hit Ghulam Rasul deceased and led to ‑his death. This version is being supported by the medical evidence: Abdur Rehman P:W. had one injury attributed to Hussain Bakhsh petitioner caused with blunt weapon on the nose which was grievous. Muhammad Shafi and Muhammad Hanif PWs had received at the hands of Imam Bakhsh petitioner fire‑arm injuries in the form of pellet wounds simple in nature. The trial Court convicted Imam Bakhsh petitioner under section 302, P.P.C. for the murder of Ghulam Rasul deceased and sentenced him to life imprisonment plus fine. He was further convicted on two counts under section 307, P.P.C. for murderous assault on Muhammad Shafi and Muhammad Hanif P.Ws. and was sentenced to three years' R.I. plus fine. Hussain Bakhsh petitioner was convicted under section 302, P.P.C. for the murder of Abdul Aziz deceased and sentenced to life imprisonment plus fine. He was further convicted under section 325, P.P.C.. for causing grievous injury to Abdur Rahman P.W. and was sentenced to three years' R.I. plus fine. As stated above the High Court maintained the convictions and sentences awarded to Imam Bakhsh petitioner but altered the conviction of Hussain Bakhsh petitioner under section 302, P.P.C. to section 304, Part II, P.P.C. and reduced his sentence from life imprisonment to seven years' R.I. plus fine, maintaining his conviction and sentence under section 325, P.P.C. Learned counsel for the petitioners conceded before us that the occurrence took place in the form of a sudden flare‑up and that so far as Hussain Bakhsh petitioner is concerned he has already undergone his sentence. It was submitted that so far as Imam Bakhsh petitioner is concerned he fired the shot because he apprehended a danger to his life from the members of the complainant party and that the fire of the shot by Imam Bakhsh petitioner was with a view to deter the complainant side to take any action against the accused party. Therefore according to learned counsel he had acted in the exercise of his right of self‑defence or it could at the most be said that he might have exceeded that right. We do not find any substance in the arguments of the learned counsel. No one is injured on the accused side. Members of the complainant party came to .the roof when Abdul Aziz deceased was hit with a brickbat thrown by Hussain Bakhsh petitioner. Thereafter the finding is that Imam Bakhsh petitioner had fired the shot while as a result of brickbat of Hussain Bakhsh petitioner Abdur Rahman P.W. had also received a grievous injury. Since it was a sudden fight section 34, P.P.C. had rightly not been applied as the element of common intention was missing. Learned counsel indirectly wants us to reappraise the evidence which cannot be done at this stage. In the light of the above discussion no case is made out for interference. The petition is therefore dismissed. N.H.Q./I‑104/S Petition dismissed.