ABDUL GHANI Versus STATE
ORDER
1. JAVID IQBAL, J. --Leave to appeal is being sought against the judgment of a learned Single Judge of the Lahore High Court Bahawalpur Bench Bahawalpur passed on 24th March, 1981 in Criminal Appeal No. 74 of 1978/BWP.
2. The facts are that the petitioners who are brothers along with their third brother namely Abdur Rahman were tried for offences under section 302/307/34, P.P.C. by the Sessions Judge, Bahawalpur who vide his judgment, dated 13th September, 1978 convicted the petitioners under section 302/34, P.P.C. for the murder of Fateh Din deceased and sentenced each of them to imprisonment for life plus fine. They were also convicted under section 307/34, P.P.C. for murderous assault on Ali Mohammad P.W.9 and each of them was sentenced to 3 years' R.I. plus fine. The sentences were ordered to run concurrently. However, Abdur Rahman was given the benefit of doubt and acquitted. In appeal a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur upheld the conviction and maintained the sentences awarded to the petitioners.
3. Abdul Ghani petitioner was armed with a Barchha and Abdul Hafiz petitioner was armed with a hatchet. Abdur Rahman acquitted co-accused was also stated to be armed with a hatchet but he had four injuries on his person and his left forearm had been fractured. Fateh Din deceased had only one injury in his abdomen region caused with Barchha which was attributed to Abdul Ghani petitioner. Ali Mohammad petitioner had five injuries on his person out of which one was caused with a blunt weapon and four with a sharp-edged weapon. One injury on his person was grievous in nature. Injuries caused to Ali Mohammad P.W. were exclusively attributed to Abdul Hafiz petitioner arid Abdur Rahman acquitted co-accused. There are three eye-witnesses of the occurrence out of which two are unconnected. These are Ali Mohammad P.W. who was injured in the course of occurrence and Shahab Din P.W.10. Third eye-witnesses is Khan Mohammad P.W.8 who is complainant in the instant case and he is maternal-uncle of the deceased. The ocular testimony has been relied upon by the trial Court as well as the appellate Court. Similarly recoveries have been relied upon. Abdur Rahman co-accused was acquitted under the principle of abundant caution as he was lame, his both legs being very feeble and furthermore injuries on his person had not been explained by the prosecution. The motive for the crime is that Khan Mohammad P.W. owned some land which, five years before the present occurrence, he had leased out to Abdul Ghani petitioner for one year. Abdul Ghani petitioner somehow or the other got the said land transferred in his own name. On this Khan Mohammad P.W. filed a civil suit which was decreed in his favour. Abdul Ghani petitioner then filed an appeal which was dismissed. Khan Mohammad P.W. put in an application for the execution of the decree and warrant for possession was issued by the executing Court. In pursuance of that warrant Girdawar Halqa, Abdul Ghafur P.W.4 and Mahmood Bakhsh, Patwari P.W.5 got the possession delivered to Khan Mohammad P.W. on 1st April, 1977 and report in this regard was accordingly recorded. The prosecution version is that Khan Mohammad P.W. ploughed the disputed land and cultivated maize crop on a portion thereof. On the fateful day i.e. 28th April, 1977 at about sunrise time Khan Mohammad P.W. went to the disputed land with a pair of bullocks alongwith the deceased, Ali Mohammad and Shahab Din P.Ws. The deceased started ploughing the land. In the meantime Abdul Ghani petitioner armed with a Barchha, Abdul Hafiz petitioner and Ajidur Rahman acquitted co-accused armed with hatchets came there. Abdul Ghani petitioner stopped the deceased from ploughing the land for the reason that litigation pertaining to the same was still pending. The deceased refused to do so whereupon Abdul Ghani petitioner thrust the Barchha in the abdomen of the deceased who fell down. When the P.Ws. tried to rescue the deceased Abdul Hafiz petitioner and Abdur Rahman acquitted co-accused started inflicting hatchet blows to Ali Mohammad P.W. The occurrence was witnessed by the aforesaid three P.Ws. The deceased was removed from there to be taken to the hospital but he expired at the bus stand. The case was registered at the instance of Khan Mohammad P.W. the same day at 11 a.m. at Police Station Khairpur which was at a distance of twelve miles.
4. Learned counsel for the petitioners submitted that since there was litigation going on between the parties pertaining to the disputed land possession of which was being claimed by both the sides and furthermore since the injuries sustained by Abdur Rahman acquitted co-accused had not been explained, the petitioners could be considered to have either acted in the exercise of their right of private defence of person and property or it was a case of sudden fight. It was next submitted that the deceased had only one injury on his person which was clearly attributed to only Abdul Ghani petitioner. So far as Abdul Hafiz petitioner is concerned he did not cause any injury to the deceased. Therefore, he did not have common intention of causing the murder of the deceased with Abdul Ghani petitioner. So far as Ali Mohammad P.W. was concerned he only had one grievous injury on his person which was on the little finger; the other injuries were simple in nature and these were attributed to Abdul Hafiz petitioner besides Abdul Rahman acquitted co-accused. It was submitted that the evidence on record indicated that the case of the petitioners was covered under one of the exceptions of section 300, P.P.C. andj therefore, Abdul Ghani petitioner could have at the most been convicted and sentenced under section 304, Part I, P.P.C. and that Abdul Hafiz petitioner could have been convicted and sentenced only under) section 324 or 325, P.P.C.
5. We grant leave in this case to examine the aforesaid points raised by the learned counsel.
6. M.I./A-111/S ?????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.