' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment, dated 16- 5-2001 passed by a Division Bench of the Lahore High Court, Lahore in two connected Criminal Appeals bearing No,800 and 803 along with Murder Reference No,46 of 1996 sent by the Additional District and Sessions Judge, Pattoki to the High Court for confirmation of sentence of death awarded to the petitioners in the present petition.
2. The petitioners along with 9 others were tried under sections 302/324/148/149, Pakistan Penal Code for the charge that they while armed with deadly weapon in furtherance of their common object committed murder of Khadim Hussain, Chanan Din and Amanat Ali and caused injuries to Muhammad Din and Farzand Ali at 9/10 a.m. On 21-3-1993 in Mouza Jhuggiana Dhanasingh in the area of Police Station, Phoolnagar, District Kasur. The learned trial Judge on the conclusion of the trial acquitted Haji Muhammad Hussain, Khushi Muhammad, Ashiq and Akbar and having found Muhammad Ashraf, Sardar, Aslam, Muhammad Anwar, Amanat, Rehmat Ali and Fazal Din guilty of the charge convicted and sentenced them as under:---
(a) Muhammad Aslam and Amanat under section 302, Pakistan Penal Code death on three counts for committing murder of Chanan Din, Amanat Ali and Khadim Hussain with direction to pay a sum of Rs,50,000 each as compensation to the legal heirs of each deceased under section 544-A, Cr.P.C. And in default of the payment of compensation to undergo R.I. For 6 months each.
(b) Under section 324, Pakistan Penal Code rigorous imprisonment for 7 years to each with fine of Rs,25,000 each on two counts and in default of the payment of fine to undergo R.I. For one year each. In addition they were directed to pay Rs,5,000 each as compensation to Muhammad Din and Farzand Ali injured witnesses and in default of the payment of compensation to undergo R.I. For 3 months, each.
(c) Under section 148 Pakistan Penal Code two years' R.I. Each. Ashraf, Sardar, Anwar, Rehmat Ali and Fazal Din were convicted and sentenced as under:---
(a) Rigorous imprisonment for 25 years each on three counts with direction to pay Rs,50,000 each as compensation to the legal heirs of each deceased and in default of the payment of compensation to undergo R.I. For 6 months each.
(b) Under section 324, Pakistan Penal Code Rigorous Imprisonment for a term of 7 years each on two counts with fine of Rs,25,000 each on each count and in default to the payment of fine to suffer R.I. For 6 months each on each count. In addition they were directed to pay compensation of Rs,5,000 each to the injured witnesses and in default to the payment of compensation to undergo R.I. For 3 months each.
(c) Under section 148, Pakistan Penal Code rigorous imprisonment for two years each.
3. In appeal the High Court while maintaining the conviction of petitioners on all the charges, converted the sentence of 25 years' R.I. Awarded to Ashraf, Sardar, Anwar, Rehmat Ali and Fazal Din into life imprisonment under section 302(b), Pakistan Penal Code. The sentence of death awarded to Muhammad Aslam and Amanat was maintained and while dismissing the criminal appeal answered the murder reference in affirmative vide impugned judgment.
4. The relevant facts as contained in the statement of Karamat Ali on the basis of which case was registered are that on the day of occurrence at about 9/10 a.m. He and his three brothers namely Chanan Din, Amanat Ali, Farzand Ali along with Khadim Hussain and Muhammad Din were busy in the cultivation of vegetable in the land of Muhammad Din when all of a sudden the accused namely Amanat, Rehmat Ali, Sardar armed with .12 bore gun appeared from the eastern side whereas Fazal Din, Anwar, Ashraf, Sarwar armed with .12 bore gun appeared from the western side and the accused namely Akbar, Aslam, Khushi Muhammad, Ashiq, Haji Muhammad Hussain and Jamal Din empty-handed while raising Lalkara to kill appeared at the scene of occurrence. The shot fired by Amanat hit Khadim Hussain and the shot fired by Sardar Ali hit Chanan Din, Liaquat Ali sustained fire-arm injuries as a result of firing of Anwar and Sardar, Chanan Din was also caused injuries as a result of firing of Akbar, Aslam and Ashraf on different parts of his body. Farzand Ali and Muhammad Din sustained injuries at the hands of Rehmat and Fazal Din respectively whereas Khushi Muhammad and Jamal Din made ineffective firing. Khadim Hussain, Chanan Din and Amanat Ali succumbed to the injuries and lost their lives, Muhammad Din and Farzand All also sustained injuries in the occurrence. In addition to the complainant, Muhammad Rasheed, Shahadat Ali and Hasan Din, a number of persons on hearing the firing attracted to the place of occurrence and witnessed the occurrence.
5. The motive for the fateful occurrence was the dispute of parties regarding partition and possession of land owned by them jointly. During the course of investigation the S.H.O. Of the concerned police station secured twelve empties of the 12 bore gun but none was found matched with the weapons recovered from the accused.
6. The prosecution, examined 18 witnesses in all in proof of the charge including the eye-witness namely Din Muhammad (P.W.6), Muhammad Rasheed (P.W.7) and Karamat Ali (P.W.8), the medical officer who conducted the post-mortem of the dead bodies of the deceased and medical examination of injured witness and Investigating Officer. However, the prosecution case mainly rests upon the ocular account, the medical evidence and motive. The eye-witnesses having deposed in line to the statement of Karamat Ali, complainant have categorically supported the prosecution version and further the evidence of motive and medical provided ample support to the ocular account. The accused in their statement under section 342, Cr.P.C. Denied the charge and without opting to make the statements on oath, produced two defence witnesses namely Sardar Ali (D.W.1) and Maula Bakhsh (D.W.2) who deposed that occurrence did not take place in the manner as stated by the prosecution. Saeed Ahmed, D.S.P. Partly investigated the case and having found Akbar, Jamal Din and Sardar not involved in the occurrence declared them innocent. The D.S.P. Was examined as C.W. And deposed that except Anwar, Rehmat and Sarwar the remaining accused were empty-handed.
' The defence plea was that only the above named three persons had arms with them and that complainant party was aggressor. The occurrence is admitted and the material facts relating to the time and place of occurrence and also the dispute of land between the parties were not controversial, therefore, the first question requiring determination would be that which party was aggressor and which was victim and the second question would relate to the liability of the petitioners and the quantum of sentence. According to the defence version the complainant party with a view to get the possession of land having engaged hired assassinators from village Madhar District, Sheikhupura attacked on the accused party whereas according to the prosecution version the accused party in order to dispossess the complainant party armed with lethal weapon appeared at the scene of occurrence and opened firing as a result of which three persons of complainant party lost their lives and two were injured.
7. The learned counsel has argued that all the three eye-witnesses were interested, inimical and being closely related to the deceased were not independent, therefore, it was not safe to place reliance on their evidence for conviction on the capital charge without independent corroboration.
The learned counsel vehemently argued that the close scrutiny of the evidence of the eye- witnesses would negate their claim of witnessing the occurrence and in any case their evidence being not of unimpeachable character would not be trusted without strong independent corroboration to maintain the conviction and major penalty of death. It was added by the learned counsel that the medical evidence was not in consonance with the ocular account and the injuries attributed to Sardar Ali being not traceable on the person of deceased, the ocular account of the eye-witnesses being in conflict to the material evidence would not be trustworthy. The learned counsel submitted that if defence version is put in juxta-position to the prosecution case, the defence version would be more near to the truth and confidence-inspiring, therefore, the petitioners could not be saddled with the liability of committing intentional murder to award the capital punishment and that in any case in the circumstances in which the occurrence took place, both parties would be equally responsible for the fateful incident and consequently there would be sufficient mitigation in favor of lessor penalty. The learned counsel in the light of rule of falsus in uno falsus in omnibus, submitted that the evidence which was not believed qua acquitted accused could not be used against the petitioners. The learned counsel argued that the trial Court as well as the appellate Court omitted to take notice of the fact that if the deceased and witnesses were surrounded by the accused when the firing was opened at them then there was every possibility of sustaining the injuries by the accused at the hands of their own companions but the fact that accused remained out of the range of firing would suggest that the occurrence did not take place in the manner as was narrated by the prosecution.
8. We have heard the learned counsel for the petitioners at length and gone through the record with his assistance. The dispute relating to the partition and possession of the land and taking place of the occurrence in the land in question in the broad-daylight and the presence of the witnesses and the three accused armed with guns was not denied. The defence with admission of the motive part of the prosecution story and quarrel between the parties had admitted the occurrence in different manner. The prosecution story to the extent of sustaining the injuries by the deceased and the witnesses in the occurrence is also admitted, therefore, the only question left for determination would be that which party committed the aggression. The factual position on the record is that none of the accused sustained even a minor injury on his person whereas three persons from the complainant side lost their lives as a result of firing of the accused party and two persons sustained fire-arm injuries. The prosecution version while putting in juxta-position to the defence version it would reveal that the complainant party was attacked and being empty- handed could not even put a slight resistance in their protection. The scrutiny of evidence would not show that the accused party acted to resist the threat of forcible dispossession and in any case notwithstanding the fact that which party was in possession of land at the relevant time, there was no justification for such a brutal action. There is ample evidence on record, direct and circumstantial to show that accused party was aggressor and the petitioners armed with lethal weapons attacked at the complainant party and caused injuries to the deceased and witnesses in the premeditated and preplanned occurrence. The circumstances and the manner in which the incident happened would not suggest even a remote possibility of correctness of the defense version and we find that the learned Judges in the High Court have taken a lot of pain in sifting the evidence to draw the conclusion that the occurrence was the result of petty dispute over a piece of land and there being no background of any other enmity, between the parties there was no reason for the eyewitnesses who were also the victim of the occurrence to suppress the true facts and thus the testimony of the eye-witnesses being free from any exaggeration and doubt would be confidence inspiring to be believed without looking for any other corroboration. The size and the nature of injuries on the person of deceased and injured witnesses traced by doctor would indicate that same were cause with pellets and that .12 bore guns were used in the occurrence and consequently the medical evidence to this extent would also provide corroboration to the ocular evidence. The admission of the accused regarding the existence of dispute of land between the parties and in the struggle being made by them to get possession of land would be another evidence in support of the correctness of the prosecution version and consequently we taking no exception to the finding of guilt of petitioners arrived at by the High Court maintain their conviction.
The contention of the learned counsel that it being not possible to identify that who was responsible for causing fatal injuries to the deceased, the petitioners would stand at par to their co-accused who have been awarded life imprisonment by the High Court and they would deserve the same treatment, is without any substance. The perusal of the evidence would show that the eye-witnesses have attributed fatal shots to the petitioners, and this fact stand confirmed by the medical evidence, therefore, the petitioners would not stand at par to their co-accused who were awarded life imprisonment for not causing specific injury to the deceased. The petitioners were found responsible for causing murder of all the three deceased who being empty-handed were not even in a position either to defend themselves or take shelter to save their lives. The act of committing murder of three persons in a brutal manner would not permit to take a lenient view in the matter of sentence. We, therefore, in the light of foregoing discussion, while maintaining the conviction and sentence awarded to the petitioners, dismiss this petition. Leave is accordingly refused.