' ABDUR REHMAN KHAN, J.---This appeal with leave of the Court impugns the legality of the judgment, dated 31-10-1994 of a Division Bench of Lahore High Court; whereby, the appeal preferred by the appellants against the judgment of the learned Trial Court passed on 18th December, 1991 was modified to the extent that the sentence of Javaid Iqbal appellant No,1 was reduced from death to life imprisonment while the conviction and sentences of the other appellants imposed upon them by the Trial Court under sections 302/34 and 307/34, P.P.C. Were kept intact.
2. The learned Trial Court had found all the appellants guilty .Under sections 302/34, P.P.C. And 307/34, P.P.C. And on conviction under the former had sentenced Javaid Iqbal appellant to death and a fine of Rs,50,000 or to undergo 4 years' S.I. The other three appellants were awarded life imprisonment and a fine of Rs,30,000 each or in default each one to suffer 3 years' R.I. All the four appellants were imprisoned under section 307/34, P.P.C., to six years' R.I. Each with a fine of Rs,20,000 each or in default to spend one year S.I. Each. The fine imposed for murder, if realised was ordered to be given to the heirs of the deceased and in case of attempted murder to the injured.
3. Faqir Hussain (P.W.9) reported the murder of his son Javaid Iqbal and attempted murder of his other three sons Muhammad Afzal, Waris Ali and Shamas Pervaiz in police station at 7-30 p.m. On 14-7-1990 which had happened the same day at 5-30 p.m. It was stated in this report that he was Zamindar' by profession and his three sons helped him in this job. While the 4th son Javaid Iqbal (deceased of the case) was in army, posted in Gilgit, and had come on leave. At 5-30 in the evening the informant alongwith Ijaz Maqsood were sitting in the cattle-shed of Haji Irshad Iqbal while his mentioned four sons were busy in husbandry work in the nearby field when the 4 appellants alongwith the acquitted accused came there. Ihsan who was armed with dagger raised Lalkara that he had come to avenge his insult and at that Javaid (appellant) came forward and stabbed Javaid Iqbal (deceased) in his chest and the second blow with Chhuri was given by Ihsan on his forehead who fell down on the spot. Waris was given knife blow by Muhammad Yasin on his back and by Abdul .Sattar (appellant) on his chest and by Abdul Ghaffar (appellant) on his leg.
Muhammad Afzal beseeched the accused not to beat his brothers then he was given blows by all the four accused on various parts of his body who fell and became unconscious. Shamas Pervaiz was stabbed by Riaz. Haji Irshad Iqbal and Ijaz Maqsood are stated to be eye-witnesses while the motive for the crime was described an altercation the same day at 11-12 a.m. Between his brother Talib Hussain and Ihsan (appellant) over an amount of Rs,6,000 which was paid by the former to the latter for obtaining visa and on its demand for return Ihsan was annoyed and declared at that time that he would avenge his insult.
4. Leave to appeal was granted to consider, inter alia, the following contentions raised at hearing by the counsel for the appellants/petitioners:---
(i) Whether it was a case of two versions and the High Court and the Trial Court failed to consider the defence version? This defence version was shown at that time by the learned Advocate to be, "The defence version, according to the learned counsel, was that Ehsanullah without the consent of the complainant had married Mst. Nighat for which the Punchayat had decided that Ehsanullah should leave the village. He did so but on the day of the incident had come to attend the marriage of his brother Abdul Sattar and while he was going back he was abducted by the complainant and the petitioners had gone to rescue him."
(ii) F.I.R. Was not lodged at the time indicated therein.
(iii) P.W.8 Talib Hussain did not say anything about the motive.
(iv) There was conflict between the ocular and medical evidence and the recovery of weapon of offence from the appellants was doubtful.
5. At the very outset it was made clear by the learned Advocate appearing for the appellants that he would not challenge the conviction and sentence of the appellants under any other section except section 302/34, P.P.C., as according to him the appellants had already served the terms of imprisonment on those counts. It was submitted that section 34, P.P.C. Would not apply and the guilt of every appellant should be judged on the basis of the part he played in the murder of Javaid Iqbal deceased. It was clarified that the deceased had only two injuries on his body out of which one was lacerated with blunt means and the other incised injury with sharp-edged weapon and that in the F.I.R. Javaid Iqbal and Ihsan are attributed to have caused these injuries with sharp weapons but in Court statement the blunt injury was attributed to Ihsan with a closed Chhuri while the stab to Javaid Iqbal with Chhuri. It was, therefore, submitted that Ihsan cannot be held responsible for the murder of Javaid Iqbal as in absence of any overt act on his part in the commission of offence section 34, P.P.C., would hardly be attracted. It was in this context submitted that in case of Javaid Iqbal appellant he was entitled to acquittal having acted in self-defence or at the most could be convicted under section 304, P.P.C., as the deceased was murdered without premeditation in a sudden fight upon a sudden quarrel. In case of the other appellants it was pointed out that they have not been attributed any blow to the deceased, therefore, they cannot be burdened with any responsibility in the charge under section 302, P.P.C. Because the circumstances of the case do not justify the application of section 34, P.P.C. Many cases were cited in support of the proposition that right of self-defence, even if not pleaded, but if it is available from the materials on record then it could not be denied. Learned counsel appearing for the State vehemently made efforts to negate, each submission advanced from appellants' side and supported the impugned judgment.
6. We studied the record in the light of the arguments advanced from both sides.
7. It was argued before the High Court by the learned counsel appearing for the appellants that "the occurrence took place due to abduction of Javaid Iqbal appellant by Ijaz Maqsood (given up P.W.), who with the help of other P.Ws. Shaved his half head and moustaches and due to this incident at wagon stand, a quarrel took place between the parties and being a free fight each accused would be responsible for the individual act. The appellants caused injuries to the injured P.Ws. And the deceased in self-defence". Similarly the same position was advanced before the learned Sessions Judge as is clear from (page 88 of the printed book) "It is admitted that Ihsan, Abdul Sattar and Abdul Ghaffar were present and they injured Javed, Shamas, Muhammad Afzal and Waris. The only question for determination is now who had the motive to open this aggression or whether the accused gave these injuries in self-defence or under sudden provocation. The presence of Javed Iqbal accused is also not denied. He was present on the venue with his uncles and father". In this background when the presence of eye-witnesses, the accused and the injuries caused to eye-witnesses and the deceased stand admitted the next question to be determined is whether the incident occurred in the manner as alleged by the prosecution and admitted by both the learned Trial Court and the Appellate Court or as shown by the defence. It is to be noted that none of the appellants had taken any plea of self-defence or sudden fight in their statements .
Under section 342, Cr.P.C. Nor they have appeared in terms of section 340, Cr.P.C. To. Have explained their position. However, the learned Advocate at the time of arguing the petition at leave stage gave the defence version to be "The defence version, according to the learned counsel was that Ehsanullah without the consent of the complainant had married Mst. Nighat for which the Punchayat had decided that Ehsanullah should leave the village. He did so but on the day of the incident had come to attend the marriage of his brother Abdul Sattar and while he was going back he was abducted by the complainant and the petitioners had gone to rescue him". But before the Trial Court this plea of the defence was put in this manner in the arguments advanced at that time "In fact Ihsan Ullah accused developed illicit relations with Neghat, d/o Talib Hussain when she was under training in nursing school at Sargodha and used to go daily in the Wagon of Ihsan from Chak No,3 N.B. Ihsan married Neghat clandestinely. The tribe-men exerted social pressure and forced Ihsan Ullah to leave the village. He respected the said ban and migrated to Jaranwala. On the day of occurrence he came to attend the marriage of his brother. The complainant party did not welcome him. Two members of the complainant party captured Javed accused and half-shaved his head and moustaches. When Ihsan Ullah and Abdul Ghaffar came to know they arrived. The matter was hushed up. No sooner did they board the Wagon than the injured P.Ws. And the deceased grappled with them and in exercise of the right of self-defence, the P.Ws. Received injuries and Javed also died on the spot". It is also in the judgment of the Trial Court that "Ihsan sent his son Javed Iqbal accused alongwith his brother Abdul Ghaffar to Sargodha for fetching a Wagon. When they reached the turning of Chak No,104 N.B. On Sillanwali Road, Muhammad Ijaz met them and he took both of them fdrcibly to the Dera of Master Nazir while on the way to the said Dera he released Abdul Ghaffar who went to Chak No,104 N.B. Muhammad Ijaz gave beating to Javed at the Dera of Nazir and there shaved of the left moustache and some hairs from the head of Javed"
8. This analysis of the record shows that the appellants never remained consistent in, their plea of self-defence or for that matter of sudden provocation etc. At some stage their case was that Ihsan was abducted and the other went to rescue him while at some stage Javaid was shown abducted and the others went to save him. At the trial it was stated that Ihsan sent Javed and Abdul Ghaffar to fetch a Wegon and Muhammad Ijaz met and took both of them and there shaved the head and moustaches of Javed, therefore, such an Unreasonable and ridiculous plea hardly need any weight. The evidence further shows that from the complainant side one brother was murdered while 3 received injuries with the sharp-edged weapon. Out of them Shamas Pervaz had received 2 injuries with sharp-edged weapon on the mid of neck and one abrasion, Muhammad Afzal had received 7 injuries with knife/dagger, Waris Ali suffered 3 sharp-edged injuries while the deceased had received 2 injuries; one stab wound and the other lacerated. It is curious to note that none from the defence side even received a scratch or abrasion. It is so obvious that does not require any emphasis that if the deceased and his 4 brothers had to attack the accused party either to avenge family honour or to show resentment over the visit of Ihsan or as the defence put it that they had abducted Javaid and had shaved his head and moustaches then they must have armed themselves if not with.Knife or fire-arms then at least with sticks. The defence version, therefore, seems to be entirely illogical and unreasonable. Moreover, the motive allegedly arising from the marriage of Mst. Nighat daughter of Altaf has also not been proved as it could not be established that the said lady had ever remained the wife of Ihsan. Therefore, such an inconsistent, vacillating and unproved plea would not benefit the defence. The argument that the appellants at the most can be held individually liable and not constructively responsible for the crime has also no basis. It is established on record that each of the appellant was armed with lethal weapon like dagger or knife and it is also proved that they all along went from village to the spot which lies in the fields to avenge the insult which shows unmistakably that their common intention was to harm the complainant party by every one of them. It is clear that all had joined in the assault which was pre- planned and pre-concerted, therefore, it can justifiably be inferred that they intended the natural consequences of their concerted attack. The offenders who armed themselves with deadly weapons and pre-planned an attack on their opponents should realise and know that such an attack can result in murder and injuries to the rivals and the Courts should be justified to draw an inference that the offence so committed was in furtherance of common intention of each one irrespective of the role played by each of them. The principle of law enunciated in the judgments relied on from the appellants' side that even if the accused had not taken the plea of self-defence or sudden fight but it could be inferred from the record then its benefit would be given to them stands fully established and therefore, is no need to refer in detail to the judgments relied on.
9. In this state of record the High Court and the Trial Court had drawn correct inferences from the evidence on record that the appellants acted in furtherance of common intention in the commission of the offence and that their so-called version was neither proved nor confidence- inspiring. The appeal is, therefore, without merit and accordingly dismissed.