MUHAMMAD SHARIF Versus STATE

ORDER

ABDUL KADIR SHAIKH, J‑ This is a petition for special leave to appeal from the judgment of Lahore High Court dated 28th January, 1980 by which petitioner's appeal was dismissed with the modification that the sentence of death imposed on him under section 302, P. P. C. was reduced to life imprisonment:

2. The petitioner was tried alongwith seven co‑accused by the Additional Sessions Judge, Sialkot for having caused the murder of Nazir Ahmad and made murderous assault on Qamar Shabbaz and Maqbool Ahmad. The trial Judge held all the accused guilty under sections 302, 324/149 and 148, P. P. C., and except for the petitioner who was awarded death sentence under section 302/149, P. P. C., the others were sentenced to life imprisonment and, various terms of jail sentences. On appeal, learned Judges of the Division Bench of the Lahore High Court held that the occurrence was the result of a sudden quarrel and the mischief of section 149 was not attracted, and on this view of the case they reached the conclusion that each accused was responsible only for his own act. As regards the co‑accused it is not necessary to make any reference in this judgment since the petitioner alone has filed this petition to seek special leave from the judgment of the High Court.

3. The occurrence took place between 11‑00 a.m. and 12 noon on 19th August, 1976 near Diara Mosque in village Sathiala. According to the prosecution, Nazir Ahmad (deceased), his son Qamar Shahbaz and his cousin Muhammad Ali were going towards their field, and while they passed by the Mosque, they saw the petitioner and the seven co‑accused sitting under shadow of a tree in front of their Baithak. Nazir Ahmad asked the petitioner and his companions not to sit on the thoroughfare as there were complaints against them that they indulge in making indescent remarks against the girls of the village. The petitioner and his companions remonstrated against this charge and during the fight that ensued consequently, all the accused persons except Yaqoob and Maqool Ahmad, went to the adjoining house and returned armed with weapons and attacked Nazir Ahmad and his com panions. The petitioner was armed with a hatchet, the co‑accused Muhammad Anwar with a chhuri and the rest had sticks. Maqbool Ahmad accused caught hold of Nazir Ahmad, while the petitioner and Muhammad Hussain attacked him with their respective weapons. P. W. Qamar Shahbaz was injured when he tried to rescue his father. P. W., Maqbool Ahmad also received knife blows. On cries of Muhammad Ali for help certain persons were attracted to the scene, whereupon the assailants ran away. The injured Nazir Ahmad, Maqbool Ahmad and Qamar Shahbaz were then taken to the Civil Hospital, Shakargarh for medical treatment but died before any medical assistance could be administered to him. On receipt of telephone message from the Civil Hospital, Muhammad Nazir A. S. I. attached to Police Post `C' Division, Sialkot reached the hospital, where he registered report of the crime on the statement of Muhammad Ali at about 10‑00 P.M.

4. At the trial, the prosecution case rested on the ocular testimony of three witnesses, Muhammad Ali, Qamar Shahbaz and Maqbool Ahmad. The defence plea raised by the accused was that the prosecution party‑men were the aggressors, and they had opened attack on them. The trial Judge believed the prosecution case, and convicted the accused persons as stated earlier. On appeal, learned Judge in the High Court, however, while believing the case of the prosecution took the following view

"It is the case of the prosecution that when the quarrel started between the deceased and the accused, six out of eight accused went to their houses and brought the weapons at the spot. It would clearly show that there was no premeditation and it was a sudden affair. The accused party flared up when the deceased told them that they used to crack indecent jokes with the girls who passed that way. Before the arrival of the complainant party, the accused party was sitting on cots on the thoroughfare in front of their kotha. The accused were not members of an unlawful assembly before the arrival of the complainant party. Since the occurrence was without premeditation that the accused constituted an unlawful assembly and the offences had been committed in the prosecution of the common object of the unlawful assembly. Section 149, P. P. C., had no application to the facts and circumstances of this case and had been wrongly applied by the learned Additional Sessions Judge. Since the criminal act was not committed by the accused party in furtherance of the common intention of all, section 34, P. P. C., could not be legally applied. Each was responsible for his own act. After having carefully examined the record, we hold that the case was fully proved against Sharif, Anwar, Bashir and Muhammad Hussain appellants. Muhammad Sharif had inflicted fatal blow to the deceased. His conviction under section 302, P. P. C., is maintained but his sentence is altered to, imprisonment for life and a fine of Rs. 5,000 or in default in payment of fine, be shall suffer rigorous imprisonment for one year."

5. Mr. Ijaz Hussain Batalvi, learned counsel for the petitioner submits that on the view that prevailed with the learned Judges of the High Court that the incident was "a sudden affair", and that, "there was no premedita tion" on the part of the accused persons, and also that, "it cannot be said that the accused constituted an unlawful assembly and the offences had been committed in the prosecution of the common object of the unlawful assembly", the offence committed by the petitioner, if any is not covered under section 302, P. P. C., but at the most, would fall under section 304, Part II, P. P. C.

6. It would be seen from the relevant portion of the judgment of the High Court reproduced above that the learned Judges believed the prosecution version that during the quarrel six out of eight accused went to their house and after arming themselves with knives and other weapons came back to the spur and attacked the prosecution party. Even if the fight started as a sudden affair, the conduct of the accused persons clearly attracted the vicarious liability under section 149, P. P. C., and it is difficult to agree with the view that prevailed with the learned Judges in the High Court. However, so far as the part played by the petitioner in the crime is concerned, the High Court has rightly held him guilty under section 302, P. P. C., and we, there fore, see no reason to make any further observations as these might affect the' case of the other convicts who are not before us.

7. The rest of the arguments advanced by the learned counsel in support of the petition do not deserve mention, for, all these pertain to the merits of the case, and have already been dealt with by the Courts below and rightly rejected.

8. For these reasons this petition has no merit and is accordingly dismissed in limine.

Petition dismissed.