' WALI MUHAMMAD KHAN, J.--Amir Ali, petitioner herein, calls in question the judgment dated 13-10- 1993 passed by a learned Single Judge of the Lahore High Court, whereby Criminal Appeal No,350/90 filed by him against his conviction and sentence under section 302, P.P.C. Was dismissed.
2. The facts of the case, as disclosed in the F.I.R. Lodged by Muhammad complainant P.W.6, are that there was a dispute between Sharif and others and Mansur and others over landed property for the last 1 year and that on the day of occurrence Mansur and others tethered their cattle in Killa No,16, Square No,37, the subject of dispute between them. At about 8-30 a.m. Mansur Ahmed Ali and Muhammad Ali sons of Mali, and Mst. Bakhtan wife of Sharif were present in the said Killa with their said cattle, when Amir Ali accused/petitioner armed with rifle along with Sharif acquitted accused armed with Sota, Bagh Ali acquitted accused armed with hatchet, Azmat acquitted accused armed with Sota, Waris acquitted accused armed with Sota and Mansha accused armed with Sota came there raising Lalkara that they were going to teach a lesson to the complainant party for tethering the cattle in the land in dispute. Simultaneously, the petitioner fired a shot with his rifle, Muhammad complainant P.W.6, along with his sons Muhammad Bashir and Nazir reached there from the nearby Dhari for separating them. Reaching there, Sharif accused inflicted two Sota blows one after the other on the head of Muhammad Ali P.W., and when Mst. Bakhtan P.W. Wanted to rescue him, she was also given hatchet blow by Bagh Ali accused on her right hand Azman accused gave a Sota blow on the head of Muhammad Ali P.W. Felling him on the ground where after Azmat accused gave him 2/3 blows with his Sota followed by Sharif accused delivering a Sota blow on the head of Ahmad P.W. Who also fell on the ground and Waris accused delivered him 3/4 blows with Sota on different parts of his body. Mansha accused inflicted Sota blows to Mansur P.W., injuring him on different parts of the body. Muhammad Bashir deceased son of the complainant in the process of rescuing the injured persons was shot at with rifle by the petitioner which hit him on his left Koolha and as a result of the injury he died on the spot. The motive for the occurrence given by the complainant in the F.I.R. Is that Dossa P.W., son of Shah Muhammad, the maternal uncle of Muhammad Bashir deceased, used to help Sharif etc. Accused. Muhammad Bashir deceased refrained Dossa from helping them and on the night of occurrence had taken away Dossa from Sharif etc. Which was resented by the accused party. After recording of the F.I.R., necessary investigation was carried out in the case and on the completion thereof, the accused were put on trial before the learned Additional Sessions Judge, Faisalabad, who, after recording the prosecution evidence, statement of the accused under section 342, Cr.P.C., found the petitioner guilty for the murder of the deceased, convicted him under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,10,000 payable as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default six months' R.I. Mansha accused was also found guilty under section 323, P.P.C. For causing simple injuries to Ghulam Mansur P.W., and sentenced to one year R.I. And was extended the benefit of section 382-B, Cr.P.C. The other accused were given the benefit of doubt and acquitted. Only Amir Ali petitioner preferred appeal before the High Court which was dismissed through the impugned order.
3. We have heard Mr.Ashiq Hussain Malik, Advocate, for the petitioner, and have perused the record of the case with his assistance.
4. In their statement under section 342, Cr.P.C. All the accused except Amir Ali petitioner denied the prosecution evidence against them and pleaded innocence. Amir Ali petitioner, however, in his statement under section 342, Cr:P.C. Raised the plea of private defence of person and property, his reply to question No,7, in this respect is reproduced hereunder:-- "I have been falsely implicated in this case. Actually on the day, and time of the occurrence, myself, my co-accused Muhammad Sharif, Muhammad Mansha, Azmat and Waris were present in Killa No,16, Square No,37, and were busy in collecting the bundles of wheat crop when Ghulam Mansoor, Ahmed Ali, Muhammad Ali P. Ws. Alongwith Falak Sher and Mukhtar co-accused of Ghulam Mansoor etc. In the cross case all armed with Sotas and their co-accused in the cross-case Allah Ditta with a hatchet came there in order to take forcible possession of Killa No,15, and other disputed landed property of Bahlak (since dead) and to the bundles of wheat crop sown by us and they attacked and injured myself and Sharif my co-accused with their respective weapons and when we resisted, my co-accused took my licensed gun from the tractor trolley which was parked nearby and fired in the air in order to frighten the abovementioned assailants and in order to save myself and Sharif from their attack but that fire per chance hit Bashir Ahmed deceased, who was walking on a path nearby, resulting in his death, during that occurrence some persons of the complainant party were also injured and those injuries were inflicted by us but they were injured by us in the exercise of right of our self-defense and that of our property. The disputed land was in our possession since long time before the occurrence and the same was mutated in the name of father of Ghulam Mansoor P.W. Etc., upon the death of Bahlak in inheritance and later on, the father of Ghulam Mansoor etc. And Mst. Muradan gifted away the land in favour of Ghulam Mansoor P.W.
And Mukhtar co-accused in the cross-case respectively. They had been trying to take the possession but we filed a suit and they failed to get the possession, for which they were annoyed and bore grudge against us. The P.Ws. Have deposed against me due to enmity."
4. In view of the plea of the petitioner, the learned trial Court considered the prosecution and the defense version in juxtaposition and arrived at the conclusion that the occurrence happened all of a sudden without premeditation and a free fight took place between the parties resulting in injuries to both sides and excluded the charge of vicariously liable and held each accused for his individual act.
5. As stated earlier, the petitioner only challenged his conviction before the High Court through Criminal Appeal No,350/90. Criminal Revision No,430/90 was also filed and both of them were dismissed by the High Court through the impugned judgment. The learned counsel for the petitioner vehemently argued that the petitioner was entitled to acquittal as he has acted in the exercise of right of private defense of person and property. We are afraid, the contention has no force. The learned trial Court as well the High Court, for substantial reasons, held it to be a free fight and has already acquitted the co- A accused of the petitioner. The petitioner was attributed the role of firing at the deceased which took away his precious life. He was rightly held guilty for the murder of the deceased and sentenced accordingly. In view of the peculiar circumstances of the case, the lesser penalty provided by law was awarded to him and finding no error in the impugned judgment of the High Court, we refuse leave to appeal.
6. The instant petition is accordingly dismissed.