' SH. RIAZ AHMED, J.---Leave to appeal is sought against the judgment and order dated 17-9-1997 delivered by a Division Bench of the Lahore High Court at Multan whereby the murder reference made by the Additional Sessions Judge at Sahiwal was answered in the negative and the death sentence awarded to Bashir Ahmed respondent was converted into rigorous imprisonment for 10 years and the sentence awarded to the respondents Nos.2 to 5 was reduced and they were discharged from their bail bonds.
2. The facts in brief giving rise to the institution of this petition by the complainant assailing the judgment of the Division Bench of the Lahore High Court at Multan are that the respondents Nos. 1 to 5 were tried by an Additional Sessions Judge at Sahiwal on charges under section 148/302/149, P.P.C. For having committed the murder of Ghulam Rasool deceased and on the charge under sections 324/149, P.P.C. For causing injuries to Maqsood Ahmed P.W and Tauheed Iqbal. At the conclusion of the trial vide judgment dated 27-1-1993 the learned Additional Sessions Judge found all the respondents guilty on the charges under sections 148 and 302/149, P.P.C. For the murder of Ghulam Rasool deceased. Under section 148, P.P.C. All the respondents were sentenced to undergo R.I. For a term of two years each an I under sections 302/149, P.P.C. The respondent Bashir Ahmed, who had caused fatal blow was sentenced to death while the other respondents were sentenced to undergo imprisonment for life by way of Ta'zir. The respondents other than Bashir Ahmed were sentenced on this charge on account of their vicarious liability. On the charge under section 324/149, P.P.C. For causing injuries to Tauheed Iqbal, all the respondents were acquitted because the injured witness did not enter the witness-box. As far as charge under section 324/149, P.P:C. Qua injured Maqsood Ahmed P.W. Was concerned, the learned trial Judge concluded that since he had received five injuries and none of them was fatal to life and had been declared simple, therefore, the learned Additional Sessions Judge dropped the charge, but convicted the respondents under section 337-A(1), P.P.C. For causing injury No,1 to Maqsood P.W. And sentenced them each to Daman amounting to Rs,1,000 and also sentenced them to R.I. For 2 years each by way of Ta'zir. The learned trial Judge also convicted the respondent under section 337-A(1) for causing injury No,2 to Maqsood Ahmed P.W. And sentenced them to Daman amounting to Rs,1,000 each and R.I. For two years each by way of Ta'zir. The respondents were further convicted under section 337-L(2) for causing injury No,3 to Maqsood Ahmed P.W. And sentenced to one year R.I. Each. The respondents for causing injury No,4 to Maqsood Ahmed P.W. Were awarded one year R.I. Each and for injury No,5 to Maqsood Ahmed P.W. To Daman amounting to Rs,2,000 each and R. I. For two years each. The amount of Daman was ordered to be paid to Maqsood Ahmed injured P.W. And that till payment the respondents shall be kept in jail. The sentences except that of Daman were directed to run concurrently.
3. Aggrieved by the aforesaid conviction, an appeal was taken by the convicts and the case was also referred by the Additional Sessions Judge to the High Court. Vide judgment impugned, the conviction under section 148, P.P.C. Was set aside because the learned Judge of the Division Bench came to the conclusion that the respondents had not formed themselves into an unlawful assembly and had not acted in prosecution of its common object for causing death of Ghulam Rasool and for injuring Maqsood P.W. The learned Judges of the High Court vide judgment impugned came to the conclusion that it was a case of individual liability. The learned Division Bench came to the conclusion that only a single blow of Phowra was inflicted by Bashir Ahmed respondent on the head of Ghulam Rasool deceased and the cause of death as indicated by the doctor was injury No,2. Which had caused inflammation of brain, which took place due to the operational injury? Since the blow had not been repeated and it was a sudden affair and the cause of death was due to an operational injury, therefore, the learned Judges declined to confirm the death sentence imposed upon Bashir Ahmed respondent by the learned trial Judge. The learned Judges of the High Court came to the conclusion that the offence committed by the respondent Bashir Ahmed fell within the purview of section 302(c), P.P.C. The death sentence of Bashir respondent, as stated before, was set aside and he was convicted and sentenced to undergo R.I.
For a term of 10 years.
4. As regards the other respondents, the learned Judges came to the conclusion that it was a case of individual liability, therefore, Maqsood son of Anwar respondent, who had caused two Dang blows on the person of Maqsood P.W.7 on his hand and left shoulder was found guilty under section 337-F(1) because the injuries were declared simple and the offence was punishable to Daman and R.I. For a term of one year. The case of Anwar respondent, who had inflicted three simple injuries with Dang on the person of Maqsood P.W. On the forehead, left eye and right shoulder, was covered under section 337-A(1) and 337-F(1) and the offence was punishable up to two years' R.I. With Daman. Zafar respondent, who had inflicted a hatchet blow on the head of Tauheed Iqbal and his case was covered under section 337-A(1).
5. Respondents Anwar and Zafar were convicted under section 337-A(1) and sentenced to undergo R.I. For a term of two years with Daman of Rs,2,000 each. Respondents Maqsood son of Anwar and Maqsood son of Inayat were found guilty under section 337-F(1) and were sentenced to undergo R.I. For a term of one year with Daman of Rs,1,000 each. The learned Judges of the High Court also rightly concluded that the method of awarding punishment by the trial Judge in this case was violative of section 71, P.P.C. Under which anything which is an offence made up of parts, any of which parts is itself an offence, the offender shall not be punished for more than one of such offences and the learned trial Judge wrongly convicted and sentenced the respondents to various terms of imprisonment with Daman for each and every injury inflicted by them on the person of Maqsood P.W. In this view of the matter, the sentence of imprisonment for life awarded to the four respondents was set aside and also their conviction for causing each injury was set aside.
6. To sum up, the learned Judges of the Lahore High Court thus convicted Maqsood son of Anwar under section 337-F(1), who was directed to pay Daman and to undergo R.I. For a term of one year as Ta'zir. Anwar respondent was sentenced to undergo R.I. For a term of two years' R.I. Under section 337-A(1) and for another term of one year and Daman under section 337-F(1) for causing injuries with Dang on the forehead, left eye and right shoulder of Maqsood P.W. Respondent Zafar, who had caused injuries to Tauheed Iqbal, was sentenced to undergo R.I. For a term of two years and to pay Daman. The respondent Maqsood son of Inayat, who had caused four Dang blows on the right shoulder, left elbow, palm of left hand and left knee of Maqsood P.W. Was convicted under section 337-F(1) and was sentenced to undergo R.I. For a term of one year and to pay Daman. Daman was made payable to Maqsood and Tauheed Iqbal P.Ws. And till its payment direction was issued that the respondents will be kept in jail. The respondents were convicted by the trial Judge on 27-1-1993 and their sentence was suspended by the High Court on 10-7-1995. In this view of the matter, the learned Judges came to the conclusion that they had undergone the sentence awarded to them and thus they were discharged from their bail bonds.
7. Having heard the learned counsel for the appellant and the State at length, we are of the view that the acquittal of Bashir respondent for causing death of Ghulam Rasool deceased and instead convicting him under section 302 (c), P.P.C. Is justifiable on the record and is not open to any exception. The injury was caused with a Phowra, which usually agriculturists in the village keep in their hands. It is not formidable weapon. In the background of the fight which took place in this case, it cannot be said that it was premeditated attack. The conclusions arrived at by the learned Judges of the High Court to hold it as a sudden affair is borne out on the record. The facts also disclose that it was not an unlawful assembly, which had prosecuted its common object and, therefore, it was rightly held that it was a sudden affair.
8. The motive for the occurrence as narrated by the prosecution is not worthy of belief because according to the prosecution Maqsood son of the complainant was going on his motorcycle and when he reached the road, he saw Bashir standing on the bridge Kamianwali. Bashir asked Maqsood to give him a ride to the village, but Maqsood refused to do so as he was in a hurry.
According to the prosecution case, the refusal on the part of Maqsood erupted in exchange of abuses and hot words and respondent Bashir threatened that he will teach him a lesson. On the same day at about 2/3 p.m. Maqsood was returning to the village and when he reached near the house of Ahmed, respondent Maqsood son of Inayat armed with a Dang obstructed him and immediately thereafter the respondent Bashir armed with Phowra (wooden club meant for collecting cows' dung), Anwar son of Garha armed with Dang, Zafar armed with hatchet and Maqsood son of Anwar encircled Maqsood and then the attack commenced. Analyzing the motive, it would be obvious that Maqsood son of the complainant refused to give a ride to Bashir as he was in a hurry and he would not have waited at the bridge to hear the abuses of Bashir and it was such a trivial affair, which would not have led the respondent to cause such an attack. The prosecution does not take us into confidence as to what immediately preceded the occurrence. It is thus obvious that in a sudden affair a fight had taken place. In this view of the matter, it cannot be believed that the respondents had formed themselves into an unlawful assembly and, therefore, we are also of the view that the learned Judges of the High Court rightly treated it as a case of individual liability.
9. Unfortunately, Ghulam Rasool deceased, father of the complainant aged 75 years, succumbed to the injuries in the hospital on 22-7-1992 i,e, 10 days after the occurrence. The doctor while giving his opinion declared the cause of death on account of injury No,2., an operational injury/incision, which was obviously caused by the Surgeon while treating injury No,1 According to the doctor, injury No,2 along with injury No,1 has been declared to be cause of death. It is obvious that during the operation some complication arose causing inflammation of the brain, which contributed towards the death of Ghulam Rasool deceased. Phowra not being a weapon of offence, which is used in routine by the villagers and the case not being premeditated murder, the learned Judges of the High Court rightly set aside the death sentence awarded to Bashir respondent. Since the blow was not repeated, therefore, the learned Judges rightly held, that the case fell within the purview of section 302(c), P.P.C. Having considered all the circumstances of the case and reasons advanced by the learned Judges of the Lahore High Court, we are of the view that no failure of justice has occurred so as to justify interference by this Court. The respondents other than Bashir could not have been convicted for each injury caused by them. The learned Judges of the Lahore High Court rightly relied upon section 71, P.P.C. And convicted them for single offence. The view taken by the learned Judges of the High Court is in consonance with law and their acquittal is justified on the record and their conviction is also not open to exception. Consequently, this petition fails and is hereby dismissed.