1. ' WALI MUHAMMAD KHAN, J.---Manzoor Hussain son of Inayat Muhammad, Mumtaz Hussain, Mulazim Hussain, Zahoor Hussain and Abdul Ghafoor sons of Noor Muhammad, appellants herein, through leave of the Court, have challenged the judgment dated 14-10-1992 passed by a learned Single Judge of the Lahore High Court, whereby their Appeal No, 306/92 against their conviction and sentences under sections 148, P.P.C., 302 (c) as amended by Qisas and Diyat Ordinance, 1991 read with section 149, P.P.C. And the order of payment of compensation amounting to Rs,57,330 under section 337 (d), P.P.C. Read with section 149, P.P.C. To Muhammad Hussain P.W.8 as "Arsh" passed against them by the Additional Sessions Judge, Sargodha vide judgment dated 25-2-1992, was dismissed. The leave granting order is as follows:-- "Referring to para. 12 of the judgment of the learned Additional Sessions Judge the learned counsel states that one of the Walis of the deceased having waived her right of Qisas under section 309 of the P.P.C., a legal beneficial consequence had arisen in favour of the convicts which was not taken into consideration by the Courts below. It is submitted that at best the Court could proceed under section 311 of the P.P.C. The maximum punishment provided whereunder is imprisonment for a term which may extend to 10 years as Tazir. This contention and other related questions require examination. Leave to appeal is, therefore, granted. "
2. ' The background of the case leading to the instant tragedy between the close relations, briefly stated, is that Mst. Sakina wife of Muhammad Siddique deceased had gone to the house of her parents on account of some family differences and Muhammad Sher complainant P.W.7, father of the deceased, had tried to bring her back but in vain. Muhammad Siddique was in the Army and was on leave during the days of occurrence. On 6-2-1991, he brought back his sister Mst. Kausar Bibi who had been given in marriage to Zahoor Hussain accused/appellant. On the same day at 6- 30 p.m. All the appellants armed with knives went to the house of complainant party where Muhammad Siddique deceased, his brother Inayat Hussain, Muhammad Hussain P.W. 8 their uncle, and Zulfiqar P.W.9 their cousin were busy taking their meals. Reaching there they raised Lalkara that the complainant party would not be spared for having insulted Mst. Sakina and Abdul Ghafoor accused/appellant who happens to be the son-in-law of Muhammad Sher P.W.7 being married to Mst. Irshad Fatima his daughter, delivered knife blow on the chest of Muhammad Siddique, his own brother-in-law followed by Zahoor Hussain, his brother, stabbing him on his right and Muhammad Hussain P.W.8 brother of Muhammad Sher complainant P.W.7 tried to separate them but the other three accused/appellants gave him blows with their respective knives on different parts of his body. The other P.Ws. Also tried to intervene but the appellants also belaboured them and thereafter ran away. The people from the locality were attracted to the spot and the injured persons were taken to the Civil Hospital, Sahiwal on cots where Muhammad Siddique succumbed to the injuries. Muhammad Sher P.W. 7 father of the deceased lodged the report which was recorded by Taj Muhammad SI P.W.
11. The accused/appellants were arrested on 19-2-1991 and on 28-2-1991 and at their instance recoveries of knives and daggers were effected in the presence of Haji Ahmed brother of Muhammad Sher complainant. After the completion of usual investigation in the case, the accused were put on trial before the learned Additional Sessions Judge, who framed the unnecessary charge-sheet against them to which they pleaded not guilty. On the appraisal of the prosecution evidence produced in the case, the statements of the accused/appellants under section 342, Cr.P.C., the learned Additional Sessions Judge found all the accused/appellants guilty for the murder of Muhammad Siddique deceased and causing hurt to Muhammad Hussain P.W.8 and convicted and sentenced them as detailed in the introductory part of this judgment. Their appeal before the High Court having failed, the instant appeal through leave of the Court has been submitted.
3. ' We have heard Qazi Muhammad Saleem, Advocate for the appellants; Shaikh Muhammad Naeem, Advocate for the State; and have perused the record of the case.
4. ' The learned counsel for the appellants strenuously argued that Mst. Sakina, the wife of the deceased, is admittedly his heir and in view of her statement in Court waiving her right of Qisas under section 309, P.P.C., the appellants could only be convicted under section 311, P.P.C. For which the maximum punishment provided is imprisonment which may extend to ten years as Ta'zir, and that conviction of the appellants under section 302/324, P.P.C. Was not warranted by law. He further argued that the prosecution evidence consists of the family members of the deceased and being interested could not be expected to advance true version of the occurrence and apparently they have involved the entire family and the possibility that innocent persons were roped in cannot be excluded; that at any rate, as held by the trial Court as well as by the High Court, the occurrence was the result of sudden flare up and section 149, P.P.C. Was not attracted and that each accused/appellant could only be held responsible for their individual acts attributed to them; and finally, that the complainant party as well as the accused party is one and the same family, inasmuch as, Mst. Sardar Bibi, sister of the complainant, is the mother of the accused/appellants and that two sisters of the accused, namely, Mst. Sakina and Mst Kaniz Fatima were married respectively to Muhammad Siddique and Inayat Hussain, his brother, and in order to keep the doors of compromise open for further good relations, a lenient view is called for. The learned counsel for the State, on the other hand, argued that Abdul Ghafoor and Zahoor Hussain accused/appellants to whom effective role of stabbing the deceased is attributed, are not only the sister's sons of Muhammad Sher complainant but are his sons-in-law as well and that he could not be expected to level a false charge against them. He also submitted that the place of occurrence is lane adjacent to the house of complainant party and the time of occurrence is such that the presence of P.Ws. At the spot at the relevant time cannot be doubted. According to him, section 149, P.P.C. Was fully attracted in the facts and circumstances of the case and that all the accused/appellants have rightly been convicted and sentenced and that already leniency had been shown towards them in the award of sentence. Regarding the waiver of part of Diyat by one of the heirs, he explained that the appellants have been tried under Ta'zir and that, therefore, the factum of waiver could not legally benefit the appellants in any way and the conviction and sentences imposed upon the appellants are proper and legal.
5. ' We have anxiously considered the arguments of the learned counsel for the parties and have minutely gone through the record of the case. Admittedly, Mst. Sakina is the wife of Muhammad Siddique deceased and being his Shari heir falls within the definition of "Walli" and entitled to "Afw" under section 309, P.P.C. And to compound the Qisas under section 310, P.P.C. According to her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the appellants in any way as all the appellants were tried, convicted and sentenced under Ta'zir and not Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be their sister cannot come to their rescue in any way. The trial Court has fairly dealt with this aspect of the case and we have no reasons to differ with it.
6. ' As stated earlier, the parties are closely knit through inter-marriages and the occurrence having taken place adjacent to the house of Muhammad Sher complainant, the possibility that there could be mistake in the identification or that the accused/appellants were implicated falsely and the real culprits allowed to go scot free is out of question. The question requiring consideration, however, still remains whether all the appellants had formed themselves into an unlawful assembly with the object of killing and injuring the complainant party and with that intent had left their house for the house of complainant and in the prosecution of common object of that assembly killed Muhammad Siddique deceased and 'caused injuries to Muhammad Hussain P.W.8, Muhammad Sher P.W. 7 and Zulfiqar P.W. 9 or the occurrence was the result of flare up at the spur of the moment leading to scuffle between the parties resulting in the unfortunate death of Muhammad Siddique. The P.Ws., no doubt, stated in their statements that all the accused/appellants duly armed with knives before embarking on the attack raised Lalkara that they had come to avenge the insult of their sister Mst. Sakina and thereafter started delivering blows to the deceased and the injured P.Ws., thereby trying to establish that there was preplanning and premeditation between the accused/appellants for the commission of offence. However, this allegation is to be considered in the light of the facts and surrounding circumstances of the case.
7. All the P.Ws. Have stated that they (the appellants) entered the house of the complainant where they were busy taking their meals but the actual stabbing did not take place inside the house but admittedly in the lane close to the house. This will imply that either altercation preceded' the actual delivery of blows and in the process thereof the parties came out of the house to the lane or that the assailants were in the lane from where they called out the complainant party which is not the case of the prosecution itself. Muhammad Siddique deceased was enrolled personnel of the Army and in his absence his wife Mst. Sakina is alleged to have left the house of the complainant and was in the house of her brothers, the appellants, when the deceased came on leave, which will show that whatever happened on account of which Mst. Sakina had to go to her brothers' house was not on account of direct conduct of her husband Muhammad Siddique deceased but due to some ill-feeling with her father-in-law and other members of the complainant family. In this view of the matter, the forming of unlawful assembly by the accused party to kill their own brother-in- law does not stand to reason. Abdul Ghafoor and Zahoor Hussain are respectively married to Mst.
8. Irshad Fatima and Mst. Kausar Bibi sisters of the deceased Muhammad Siddique and in the presence of these matrimonial ties, the joining of heads together of all the appellants to plan the murder of Muhammad Siddique is beyond imagination.
9. ' According to the medical evidence, Muhammad Sher P.W.7 and Zulfiqar P.W.9 had abrasions and pain in different parts of their body which were opined to be simple in nature and caused by blunt means. The learned trial Court in its impugned judgment came to the conclusion that the injuries on the person of Muhammad Sher and Zulfiqar were caused by grappling and falling on the ground and were not the result of direct blow by any of the appellants. This clearly indicates that grappling and altercation preceded, the actual delivery of blows with sharp-edged weapons. The finding of the trial Court in this respect contained in para. 14 is very much relevant which is reproduced as under:-- "No doubt the accused are guilty of 'Qatl-i-Amd' of Muhammad Siddique deceased but they did it out of anguish and under sudden provocation. Muhammad Hussain P.W. 8 has admitted during the cross-examination that the parties had very cordial relations inter se prior to the occurrence but because of the quarrel between the daughter-in-law of the complainant and wife of the complainant the incident took place. According to Taj Muhammad P.W. 11 i,e. I.O. He arranged confrontation meetings between the parties. He has further admitted that he came to the conclusion that the present occurrence was the outcome of sudden provocation in the heat of passions. I, therefore, intend to take a lenient view and I am not inclined to award the maximum punishment prescribed for the offence under section 302 (a) of the Ordinance. No doubt the accused did not care to solve the dispute amicably and chose barrel of gun to set the controversy at rest but even then there was no deep seated enmity between the parties and the situation was aggravated all of a sudden due to the quarrel of the women-folk. If the doors of rapprochement or retreat are closed once for all the marital career of three families will go to dogs. The parties are closely knit together and I see a ray of hope of reunion."
10. We are, therefore, of the opinion that the occurrence is not the result of pre-concert and premeditation but occurred on account of sudden flare up. In the case of Bashir Ahmad v. The State (PLD 1988 SC 86), this Court observed that wherever there is doubt about application of sections 34, 107 and 149, P.P.C. It is always necessary not to apply either of these provisions which seek conviction on vicarious liability only. In another case Misbahuddin v. The State PLD 1983 SC 79 it was held that in case of sudden quarrel question of furtherance of common intention would not arise. Consequently, the provision of section 149, P.P.C. Was not attracted to the facts of the present case or at least its application was not free from doubt. We are, therefore, not inclined to maintain conviction and sentence of Mumtaz Hussain., Mulazim Hussain and Manzoor Hussain under section 302/149, P.P.C., however, they are responsible for their individual acts for causing injuries to Muhammad Hussain P.W. 8 with their respective weapons of knives and daggers.
11. ' The next result of the above discussion' is that we partly allow this appeal, set, aside the conviction and sentence of the appellants under section 148, P.P.C.. We also set aside conviction and sentence imposed upon. Mumtaz Hussain, Mulazim Hussain and Manzoor Hussain under section 302/149, P.P.C.. However, the sentence awarded to them viz., Mumtaz Hussain, Mulazim Hussain and Manzoor Hussain under section 337 (d), P.P.C. Is maintained and the order of the trial Court for payment of Rs,57,330 each as Arsh to Muhammad Hussain P W. By Mumtaz Hussain, Mulazim Hussain and Manzoor Hussain is maintained. They shall not be released till its payment as per direction of the trial Court. The conviction and sentence under section 302 (c), P.P.C. Passed against Zahoor Hussain and Abdul Ghafoor appellants is maintained. However, the punishment imposed upon them under section 337(d), P.P.C. Is set aside, as they have not been attributed any injury to Muhammad Hussain P.W.
12. 8.