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Criminal Appeal No. 39 of 1983 in Criminal Petition No. 265 of 1980, decided on 3rd April, 1983.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 17th March, 1980, passed in Criminal Appeal No. 368 of 1977).

‑‑‑‑ Ss. 302/34 & 325/34‑Murder‑‑Grievous hurt‑Evidence‑Facts of case showing that accused had not attacked complainant party with pre‑conceived plan to commit murder but during sudden fight between parties each side inflicting sofa blows on each other and one of such blows inflicted by one of accused resulting in death of one of complai nants Causing grievous hurt with blunt weapons, only common intention attributable to accused‑Person who caused fatal blow being not discoverable, each of accused to be given benefit of doubt and an offence under S. 302 not made out against any one of them‑Conviction under S. 362/34 altered to that under S. 325/34 in circumstances of case.‑[Benefit of doubt].

Waheeduddin Virk, Advocate Supreme Court with Sh. Abdul Karim, Advocate‑on‑Record for Petitioners/Appellants.

Muhammad Abdullah Bajwa, Advocate Supreme Court for the State.

Date of hearing : 3rd April, 1983.

Muhammad Latif and Jan Muhammad have applied for leave to appeal against the judgment of the Lahore High Court dated 17‑3‑1980, dismissing their appeal.

2. We issued notice to the State and after granting leave we proceed to dispose of the matter as appeal.

3. The occurrence in this case, took place at 1‑00 p. m. on 28 9‑1975, within the area of Police Station Rayya, District Sialkot.

4. The facts of the prosecution case; briefly, are that after the Settlement Operation of the Village, the accused and the complainant party both laid claim to 9 Marlas of vacant land on the well Phuliwala in Kot Ruldoo, where both the parties bad their Deras. The complainant party started raising walls around the plot. Latif, Jan Muhammad and Ashiq accused came to the spot armed with sticks. Jan Muhammad and Latif inflicted one sofa blow each on the head of the deceased. One injury was simple but the other proved fatal. Shaukat, Ejat and Bashir P. Ws. and one Munir (not produced) on the com plainant side also received stick blows which too resulted in simple injuries, except that one injury on the leg of Bashir P. W. was grievous. Muhammad Latif petitioner received three simple sofa injuries on his head, nose and arm, while Jan Muhammad, petitioner received two injuries on his head at the hands of the complainant party. Liaqat Ali subsequently died in the hospital.

The F. I. R. was lodged by Shaukat Ali (P. W. 4) a real brother of Liaqat Ali (deceased) at the police Station Rayya at 10‑30 p. m. which was recorded by Allah Dad Khan A. S. I. (P. W. 12). After recording the F. 1. R. he went to the spot and took into possession some blood‑stained earth. He arrested all the three accused on 30‑9‑1975 and recovered Sotas (P. 6, 7 and 8) from them. But these were not sent to the chemical examiner. As such they do not advance the prosecution case.

At the trial the prosecution case rested mainly on the testimony of Shaukat Ali (P. W. 4), Ejaz (P. W. 5) and Babir (P. W. 10). These eye witnesses are closely related to the deceased. But since they had also sustained injuries during the incident, their presence at the spot could not be denied. The trial Court consequently relied on their testimony and convicted the 3 accused as follows.

Under section 302/34, P. P. C. each one of them was sentenced to imprisonment for life with fine of Rs. 1,000 (one year's R. I. in default of payment of fine) under section 325/34, P. P. C. 3 years' R. I. each and under section 323/34, P. P. C. for causing simple injuries with blunt weapon to other witnesses, to 6 months' R. I. each.

The convicts/accused filed an appeal before the High Court. The High Court acquitted Ashiq Hussain but maintained the conviction of the present appellants and uphled their sentence.

We have heard the counsel for the parties.

Learned counsel for the appellants urged that the nature of the motive, the kind of weapons used (i.e. Sofas) and the manner in which the incident took place clearly show that the accused had not attacked the complainant party with a pre‑conceived plan to commit the murder in question. He submits that it was a sudden fight between the parties, during which each side inflicted Sota belows on each other and as such each person was responsible for his own individual acts. During this fight one Sota blow was inflicted by one of the accused with more force than was intended and resulted in the death of Liaqat Ali. But it is not clear from the record as to who had caused the fatal blow. He submitted that the only common 'intention' which can be attributed to the accused on the facts and in the circumstances of this case is that of causing grievous hurt with blunt weapons. Since it cannot be discovered as to who caused the fatal blow, each of them has to be given the benefit of doubt and as such an offence under section 302, P. P. C cannot be said to have been made out against any one of them.

5. Keeping in view the facts of the case and the evidence on the record, we are inclined to agree with this view. The appellant's conviction under section 30:/34, P. P. C. is, therefore, altered to one under section 326/34, P. P. C. for having caused grievous injury to Liaqat Ail (deceased), for which they are sentenced to 7 years' R. I. each.

The remaining convictions and sentences are, however, maintained.

This disposes of the appeal.

S. Q. Order accordingly.

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