' RIAZ AHMED, J.---The petitioners Noor Ahmed, Haji Ahmed and Lal along with Azamt, Zahoor Ahmed, Ghulam Farid, Ghulam Abbas, Khushhal and Mopal as well as Muhammad Anwar who has filed petition through jail were tried by an Additional Sessions Judge at Jhang on charges under sections 302/337-A (i) & (ii), 337-F (iv) and 337-L (ii) read with sections 148 and 149, P.P.C. For having committed Qatl-I-Amd of Allah Ditta and Mst. Sattan deceased and for causing Shajjah-I- Madihah and Shajjah-IKhafifah to Allah Ditta and for causing Shajjah -I-Khafifah to Jehangir P.W.
And for causing injuries to Ahmed and Rajab Ali P.Ws. Vide judgment dated 15-3-1992 delivered by the learned trial Judge, the petitioners and the co convicts were found guilty under section 148, P.P.C. And were convicted and sentenced to undergo R.I. For a term of two years each and to pay a fine of Rs,2,000 each and in default of the payment of tine, to suffer further S.I for a term of 3 months each. On the charge under section 302/149 for committing Qatl-l-Aind of Allah Ditta and Mst.
Sattan deceased, petitioner Noor Ahmed and Azmat co-convict were sentenced' to death.
Muhammad Anwar co-convict was _sentenced to death for causing death of-Nist. Satan deceased. Petitioner Noor - Ahmed and co-convict Azmat were also convicted and sentenced to suffer life imprisonment each for being vicariously responsible for the death of Mst. Sattan deceased. Similarly, Muhammad Anwar petitioner was also convicted and sentenced to undergo imprisonment for life for causing death of Allah Ditta deceased. Petitioners Haji Ahmed and Lal were also convicted and sentenced to undergo life imprisonment each on each count for causing the death of Allah Dina and Mg. Sattan deceased. They were also sentenced to pay fine amounting to Rs,10,000 each as compensation to the legal heirs of the deceased or in default thereof to suffer S.I. For a term of 6 months each. On the charge under section 337-A (ii) read with section 149, P.P.C.
For injuring Allah Dina, the petitioners were also made liable to pay Arsh to the extent of 5 per cent of the amount of Diyyat amounting to Rs,8,800 to be paid to the victim. For causing Shajjah-I- Khafifah to Allah Ditta, Jehangir, Ahmed and Rajab Ali P.Ws., under section 337-A (i) read with section 149, P.P.C., all the convicts were made liable to pay Daman amounting to Rs,500 each. The petitioners were also made liable to pay Daman to be paid to Allah Ditta P.W. Similarly, for causing Shajjah-I-Khafifah to Jehangir P.W., all the petitioners were made liable to pay Daman amounting to Rs,500 each to be paid -to the victim. Similarly, the petitioners were also made to pay fine amounting to Rs,500 each to be paid to each of the aforesaid P. Ws. It was further directed that in default of the payment of Daman and Arsh, the petitioners shall remain in jail to undergo simple imprisonment until the whole of the amount was paid to the victims. The sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also given to the petitioners.
2. On appeal, a Division Bench of the Lahore High. Court placing reliance upon the judgment delivered by this Court reported as Ali Muhammad v. Ali Muhammad and others (PLD 1996 SC 274) held that it was not a case of vicarious liability and, thus, each of the accused participating in the attack was liable for his own act. Thus, holding it to be a case of individual liability, petitioner Neer Ahmed was held responsible for causing fatal below to Allah Ditta deceased. Petitioners Haji Ahmed and Lai were found guilty for causing injuries Nos.2 to 4 to. Allah Ditta deceased and, thus, their convictions were maintained, but the death sentence was not confirmed and the same was altered to imprisonment for life. However, the amount of compensation was enhanced to Rs,50,000 each on each of the respective counts. Petitioners now seek leave to appeal against the aforesaid judgment delivered in appeal by the Division Bench of the High Court.
3. The prosecution case in brief, as stated in the F.I.R., by Haq Nawaz complainant is that on 10-9- 1991 at about 5.00 a.m., he accompanied by his wife's brother Allah Ditta and Ahmed P.W.14 were engaged in irrigating their crop in square No,45 when Azmat armed with a Phaura, Noor Mimed, Haji Ahmed and Zahoor Ahmed armed with Dangs, Lal petitioner armed with a hatchet, Jalal armed with a Dang (not challaned), Hasnana armed with Dang, Riaz armed with a Dang, Riaz armed with Dang (not challaned), Ghulam Abbas armed with a Sota, Anwar armed with a Dang, and Khashhal and Mopal, suddenly emerged at the scene and resorted to launch an attack on the complainant side. Azmat respondent raised Lalkara whereupon Haji Ahmed inflicted Dang blow on Allah Ditta deceased on his left eye. Petitioner Lai inflicted a Dang blow on his right shoulder.
Petitioner Noor Ahmed also inflicted Dang blow on his head while, Azmat inflicted a Phaura blow on his head. Consequently Allah Ditta collapsed on the ground, Rajab Ali, Allah Ditta, Jehangir and Mst.
Sattan were attracted to the scene of occurrence after hearing hue and cry and they tried to save Allah Ditta, but Zahoor Ahmed caused a hatchet plow- to Ahmed injured P.W., Mopal inflicted a Sota blow to Jehangir P.W. While petitioners Anwar and Lal and Khushhal gave Sota blow to Mst.
Sattan. Allah Ditta was assaulted by. Riaz, Azmat, Lal, Jalal and Zahoor. Muhammad Anwar, Riaz and Ghulam Abbas gave injuries to Rajab Ali P.W., who also fell on the ground. On hue and cry, Aslam Shahamand, Talib Hussain and Ismail were attracted to the spot. Allah Ditta died at the spot while Mst. Sattan died in the hospital.
4. In support of this petition, the learned counsel has contended that although the Division Bench of the Lahore High Court placed reliance upon the judgment of this Court referred hereinabove, but while doing so, the High Court had erred by failing to consider that the case fell within the purview of Exceptions to old section 300, P.P.C. And was covered by the provisions-of old section 304, P.P.C..
Itwas further argued that in a fight like this in which the commonality of intention was absent, conviction cannot be recorded under section 302, P.P.C.. The learned counsel further argued that at the time of occurrence, it was the turn of water of the petitioners and not that of the complainant side and in fact it was the complainant side which had launched an attack and had caused as many as 20 injuries on the person of Muhammad Anwar, Ghulam Farid, Azmat and Noor Ahmed and, therefore, were justified to cause injuries to the complainant side in their self-defence. It was further contended that injuries received by the accused side had been suppressed and were not explained by the complainant side and therefore the complainant side was the aggressor.
5. The crucial question failing for determination is that if it was a free fight, then question of acting in exercise of self-defence is totally irrelevant, but considering the case from all angles, it is a fit case for re-appraisal of evidence to determine as to whether the right of self-defence, if any, was available to the petitioners. Furthermore, whether in fact it was a free fight or the petitioners' side had acted in self-defence to save their life and property, i.e,, the turn of water. Resultantly, we grant leave to appeal to consider the questions raised above.