KARAM ELAHEE CHAUHAN, J.-Three persons namely (1) Muhammad Hayat alias Hayato (2)
Muhammad Nawaz alias Nawaz and (3) Hussain alias Hussaina were tried by the learned Additional Sessions Judge, Sargodha, under sections 302/34 and 307/34, P. P. C. For causing the death of Khaliq Dad and for causing injuries to Jeran Dad (P. W. 11) Nazar Muhammad (P. W. 12) and Muhammad Hayat (P. W. 13). The learned Additional Sessions Judge by means of his judgment and order dated 23-9-1971, found all these accused guilty and convicted Muhammad Hayat alias Hayato under section 302; 34, P. P. C. And sentenced him to death. He was also- convicted under section 307/ 34, P. P. C. And sentenced to undergo rigorous imprison--ment for 5 years.
Muhammad Nawaz alias Nawaz and Hussain alias Hussaina were convicted under section 302/34, P. P. C. And were sentenced to transportation for life and also under section 307/34, P. P. C. And sentenced to rigorous imprisonment for 5 years each. The sentence for transportation for life and rigorous imprisonment of 5 years were to run concurrently.
2. The accused filed Criminal Appeal No. 706 of 1971 which was taken up by a Division Bench of the Lahore High Court along with Murder Reference No. 24 of 1972. Sher Muhammad (P. W. 10) (first informant) filed a private Criminal Revision 1203 of 1971 for enhancement of the sentences of Muhammad Nawaz alias Nawaz and Hussain alias Hussaina to death. All these matters were taken up together. The High Court accepted the appeal of Muhammad Nawaz alias Nawaz and giving him the benefit of doubt acquitted him. As regards Muhammad Hayat alias Hayato his appeal was accepted only qua sentence which was commutated from death to transpor--tation for life. The private criminal revision was consequently dismissed.
3. Sher Muhammad (first informant) has come up in an appeal through special leave which was granted by this Court on 12-11-1974 "to consider whether there was any legal ground to alter the sentence of death awarded to Muhammad Hayat to life imprisonment and whether acquittal of Muhammad Nawaz has not resulted in grave miscarriage of justice".
4. The facts of the prosecution case are that in the area of village Thatti Ghamera, there is a shrine of Syed Ghulam Qadir :)hah. In the month of Phagon, on each Sunday, lot of women come to visit the said shrine. It is alleged that on the fateful day i.e. On 23-2-1969, women were passing by the kutcha road near the baithak of Hayat and Nawaz accused who alongwith their co-accused Hussain and one A.I (absconder) were sitting on the road side and taunting and misbehaving with the visiting women. Khaliq Dad deceased did not approve of the misbehaviour of the accused and went towards them and rebuked them which resulted in altercation. It is alleged that Hayat and Hussain accused (alongwith A.I absconder) went into their baithak and brought out fire arms with them. Nawaz accused, however, remained on the spot. When the remaining accused came out of the baithak alongwith their fire arms, they challenged the deceased who started running and entered the courtyard of the dera of the first informant. The accused chased him and opened an attack. Muhammad Hayat, Muhammad Nawaz, Hussain and A.I (absconder) were armed with gun whereas Muhammad Nawaz had a pistol. They all fired on the deceased who fell down and died on the spot. In this expedition attack was made on Jehan Dad (P. W. 11), Nazar Muhammad (P. W. 12) and Muhammad Hayat (P. W. 13) who also suffered injuries. The accused then ran away by firing in the air. The prosecution produced three P. Ws. Alongwith Fateh Khan (P. W. 14) and Sher Muhammad (P. W. 10) who too were alleged to have seen the occurrence, The High Court in paragraphs 7 and 8 of their judgment dealt with the matter which has been challenged before us.
These paragraphs read as follows :- "Para. 7.-Out of the eye-witnesses three persons are injured and their presence at the spot cannot be doubted. Nazar Muhammad (P. W. 12) an injured person is not related to the complainant. We have gone through the evidence. Learned counsel for the appellants argued that Muhammad Nawaz appellant has been implicated on account of his relationship with Muhammad Hayat and that there is contradiction in the statements of Sher Muhammad (P. W. 10) and Nazar Muhammad (P. W. 12) about his going into the baithak and having come out along with the other appellants.
Jehan Dad (P. W. 11) stated that all the four accused persons went inside the baithak (printed on page 39, line 38). Nazar Muhammad (P. W. 12) in his examination- in-chief (printed on page 43, line 5) stated that Hayat, Hussaina and A.I absconder accused then went inside the kotha while Muhammad Nawaz accused remained there. The. Three accused brought out the guns from the baithak while Nawaz brought out pistol from his dab. Sher Muhammad (P. W. 10) deposed that. The three accused Muhammad Hayat, Hussaina and A.I absconder took out the guns from inside the kotha while Nawaz took out a pistol from his dab. In the F. I. R. Sher Muhammad has mentioned that Nawaz appellant had a pistol. He has not described it as 12 bore country-made pistol. The recovered pistol having not been connected with the crime it cannot be safely relied that Muhammad Nawaz who was armed with pistol had participated in the crime, since there is no bullet injury on the person of the deceased. We are inclined to give benefit of doubt to this man for his participation in the crime, we accept his appeal, set aside his convictions and sentence and acquit him.
Para. 8.-The affair being sudden and there being no previous enmity and exchange of abuses before the occurrence by the parties, we are of the view that Muhammad Hayat deserves lesser penalty under section 302, P. P. C. . We alter his sentence of death to that of life imprisonment. The sentence of death is not confirmed. Otherwise appeal of Hayat and Hussain is dismissed. Their conviction and sentence under section 307/34; P. P. C. Is also maintained, and shall run concurrently."
5. Taking up the case of Muhammad Nawaz acquitted accused, learned counsel for the petitioner submitted that the point made out by the High Court qua the aforesaid accused was not borne out from the record and that even otherwise it was only a trivial point which did not warrant his acquittal. We have gone through and checked up the record with the help of the learned counsel for the parties. It is borne out from the record that Jehan Dad (P. W. 11) had deposed that when altercation took place, all the four accused went inside the baithak and brought out their respective weapons whereas the tenor of the statements of Sher Muhammad (P. W. 10) and Muhammad Nawaz (P. W. 12) is that the acquitted accused did not go inside the kotha but remained outside on the spot, with a pistol which he was keeping in his dab. On factual plane, therefore, the aforesaid variation in the statements of the eye-witnesses does exist and to say that the record did) not indicate any such thing is not correct. Similarly the next plea that this is a trivial variation of which benefit should not have been given to the accused and that it should have been ignored in favour of the prosecution is not correct. The movements of the accused at the time when the attack was launched and the question as to from where they collected their arms, and how they came out and with what weapons and who fired in what circumstances are not trivial matters. If Muhammad Nawaz acquitted accused was already armed with a pistol and even though the others may have gone to their baithak to fetch arms, but so far as he was concerned if he had the intention to kill anybody, he could have used his pistol, and there was nothing to stop him in that respect because he would have been equally annoyed from abuses and altercation which preceded the attack. The fact that on the point above mentioned the eye-witnesses are not unanimous obviously creates a doubt about his presence at the time of arid participation in the occurrence, especially when the matter is such on which there was no possibility of making any mistake. Coupled with this is the fact that even though the pistol Exh. P/1 was allegedly taken into custody by the police, no crime empties were found on the spot to match the pistol or establish its use in the occurrence. The question of appreciation and evaluation of evidence qua the participation of Muhammad Nawaz accused Was within the province of the High Court and if in the circumstances above explained; they extended the benefit of doubt to him, the order of the High Court cannot be said to suffer from any such legal or factual infirmity as to warrant interference by this Court. In Noora and another v. The State (PLD 1973 SC 469) at page 493, this Court has laid down that "as an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below ; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at." Applying the said principles we must say that we have not been able to discover any such defect which may be said to have led to miscarriage of justice. A doubt was there regarding the participation of Muhammad Nawaz in the occurrence and if the High Court has given benefit of that doubt to him, we do not think that High Court has made any factual or legal mistake in that respect.
6. Taking up the case of Muhammad Hayat alias Hayato accused learned counsel argued that he deserved the extreme penalty of death and the High Court has erred in commuting it to life imprisonment without any just cause. The contention has no merit. The High Court has observed that there was no previous enmity between the parties and, the matter flared up due to the exchange of abuses, and if we can add, after some altercation which preceded the occurrence.
The accused were sitting outside their own baithak which unfortunately happened to be near a public passage leading to the shrine. It was Khaliq Dad deceased who went to that place and the quarrel. The accused were blamed for molesting women folk of other village or villages which was in its own nature a very humiliating accusation especially when it was coupled with abuses and, naturally led to an obvious altercation. The learned Sessions Judge about this aspect of the matter observed in para. 18 of his judgment that "it is common that when one sits in company he feels annoyed even on petty and insignificant words uttered by the other person and when the passions rise then sky is the limit". In the circumstances the possibility of mishandling the situation by Khaliq Dad deceased and some heat of passions cannot be ruled out. If the High Court in this context considered that extreme penalty of death was not called for the view of the High Court cannot be said to be arbitrary or baseless and does not warrant any interference by this Court.
7. The result is that this appeal has no merit and is dismissed.