MIAN SHAKIRULLAH JAN, J.--- Through the instant appeal by leave of the Court, arising out of the jail petition, the appellant is seeking setting aside of the judgment of the Lahore High Court whereby while maintaining his conviction recorded under section 302(c), P.P.C. And reducing the sentence from 25 years to 10 years with compensation of Rs,50,000 to he paid to the legal heirs of the deceased with benefit of section 382, Cr.P.C. His appeal was dismissed. However, the sentence recorded under section 148, P.P.C. Was set aside.
2. The relevant facts had already been given in para.2 of the leave granting order, which reads as under:-- ".... That Muhammad Ashraf, the complainant has lodged a report by stating therein that on the day of occurrence at about 12 noon, he along with his uncle Ghulam Rasool paternal-cousin Muhammad Younis and mother Mst Amna. Bibi were on their way to Dera to sow paddy crop, and when they reached near the land of Ghulam Rasool, all of a sudden Mukhtar Ahmed, Muhammad Nawaz sons of Shera, Saee son of Fazal Dad and Sarfraz son of Salehoon, armed with Sotas, Sher son of Fazal Dad armed with a hatchet arrived there. They raised Lalkara by saying that Muhammad Younis and others will not be spared today. Saee Muhammad petitioner gave a Sota blow to Muhammad Younis on his head who fell in a pond. Muhammad Nawaz gave a Sota blow on back of head of Muhammad Ashraf complainant, Sher gave a hatchet blow on the reverse end to Ghulam Rasool. Sarfraz also gave a Sota blow to Ghulam Rasool and similarly Mukhtar Ahmed delivered a Sota blow to Amna Bibi, Muhammad Arshad also sustained injuries at the hands of the accused. Motive was stated that about 25/30 years back Ghulam Rasool paternal-uncle of the complainant and others had killed Sardara son of Mouloo, first cousin of Saee Muhammad and Shera accused."
3. On the registration of the case, the appellant along with his other co-accused was arrested and the weapon of offences i,e, Sota and hatchet were recovered from them. They were put to trial and the learned trial Court convicted Saee Muhammad petitioner to 25 years' R.I. With a compensation of Rs,50,000 under section 302(c), P.P.C. And similarly the other four co-accused were convicted under different sections of law and different sentences. The appellant and Sarfraz co-accused have filed a common criminal appeal while the other three co-accused have filed separate appeal before the High Court against their conviction and sentences while the complainant has filed a criminal revision for the enhancement of the sentences of the petitioner and the other co-accused.
The High Court while dismissing the appeal of the appellant has modified his sentences as referred to in para. No,1 above. The conviction and sentence of Sarfraz Ahmad co-appellant under section 302(c), P.P.C. Was set aside. The other three co-convicts Mukhtar Ahmed, Muhammad Nawaz and Shera were stated, before the High Court, to have been released from jail and on a Court call they appeared and stated not to press the appeal, which was dismissed. The appellant still aggrieved of the judgment and order of the High Court has filed the instant petition.
4. The plea has been taken on behalf of the accused including the petitioner that it were the members of the complainant party who were aggressors and they attacked the accused party, as a result of which Muhammad Nawaz and Shera had sustained injuries and in this respect High Court while noting the submissions made by the learned counsel for the petitioner has observed:-- "In the counter-version raised by Muhammad Nawaz-appellant on 20-9-1995, the other side was also challaned to face their trial. They were found pilty and punished accordingly."
5. The petitioner and his co-accused have given a details about the occurrence in their statements recorded under section 342, Cr.P.C. And have also stated about 'the attack on them by the complainant party. Nawaz and Sher co-accused have also appeared as D.W.1 and D.W.2 and have given statements and support the counter-version on oath. P.W.17, Investigating Officer. Has also stated about the counter-case and the admission of Nawaz and Shera in the hospital on account of their injuries sustained by them and that the Medical Officer did not allow him to record their statements by stating that, according to the Doctor, "they were not fit to make their statements".
The motive as set up also by the prosecution not been believed by both the Courts rather the one set up by the accused party motivating the complainant party for aggression was stated to be true as per statement of the Investigating Officer. The learned trial Court has further observed as under:-- "Region of origin and point of ignition could not be discovered. The police did not ferret out real cause behind this episode. Involvement of both the sides in the occurrence is as clear as the daylight. Both the sides have not come with whole truth. The story of aggression is bereft of sound reasons. In sudden fight, there is no pre-planning and it is a chance encounter, where passions suddenly became volatile. In free fight both the sides come prepared for trial of their strength. No question of self-defence arises. I am of the view that it was a chance encounter, when both the sides came in front of each other suddenly. Something happened at the spur of moment resulting into outbreak of this incident. Saee Muhammad-appellant delivered a single blow, whereas others caused simple injuries to the prosecution witnesses. There is no material dispute with regard to date, time and place of occurrence. Place of occurrence is on the roadside and not in the fields of the accused."
6. In view of the observations made by the High Court in the impugned judgment, the extract of which have been reproduced above, we have examined the evidence and found the same borne out on the record of the case. In view of such circumstances, when the situation lead to a free fight between the parties, subsequently one cannot be definite that it was the petitioner side who either initiated the episode or they have exceeded their right of self-defence and particularly when the deceased has received only one Sota blow and who then fell in the pond. All the accused, who are five in numbers have been convicted and sentenced to different terms, some of whom have already undergone the sentences.
7. For what has been stated and observed above, it becomes clear that the prosecution has not been able to prove its case beyond reasonable doubt qua the mens rea or guilt of the petitioner and while giving benefit of doubt, he is entitled to acquittal. The appeal is allowed, the appellant Saee Muhammad is acquitted of the charges. He be released forthwith, if not required in any other case.