' KARAM ELAHEE CHAUHAN, J.-Eight persons, namely (i) Muhammad Ashraf, (ii) Abid Hussain, (iii)
Muhammad Banaras, (iv) Shaukat Ali, (v) Muhammd Asghar alias Askar, (vi) Abdul Farooq, (vii)
Mahboob Hussain and (viii) Muhammad Iqbal were tried by the learned Additional Sessions Judge, Rawalpindi, under section 302/148, 149/307, P. P. C, for the murder of Muhammad Shafi and for causing injuries to Muhammad Sabir Hussain (P. W. 10) (first informant). The learned Additional Sessions Judge found Muhammad Ashraf guilty for causing the death of Muhammad Shafi and convicted him under section 302, P. P. C. And sentenced him to death and a fine of Rs, 2,000 which was to be paid to the heirs of the deceased. Hew as also convicted under section 148, P, P. C. And sentenced to one year's rigorous imprisonment. The rest of the seven accused were found guilty for causing injuries to Muhammad Sabir Hussain (P. W. 10) and were convicted under section 302/149, P. P. C. And were sentenced to seven years' rigorous imprisonment each. They were also convicted under section 148 P. P. C. And sentenced to rigorous imprisonment for one year each. At this place, it may be mentioned that the later set of accused were acquitted from offence under section 302, P. P. C. The State filed an appeal against those accused who were acquitted from offence under section 302, P. P. C. But the same was dismissed by the High Court though the date of the judgment and order of the High Court was not provided to us by the learned counsel for the parties.
2. Muhammad Ashraf and the other accused had also filed their independent appeal against their respective conviction which was decided by a division bench of the Lahore High Court on 26th June, 1979. The High Court held that though the parties were related but there was a party faction within them and they were inimical to one another being divided in two groups.As the eye- witnesses were related and also inimical therefore the High Court proceeded with care in not accepting their bare statements and looked for independent corroboration in the case. Proceeding in this way they found that though Muhammad Ashraf had been attributed the sole role of inflicting the injuries on Muhammad Shafi deceased, but as there was no corroboration of his role aforesaid, therefore, giving him the benefit of doubt he was acquitted. From among the remaining set of the accused in the similar manner they acquitted Abid Hussain, Muhammad Iqbal and Mahboob Hussain. However, finding corroboration against Muhammad Banaras, Shaukat Ali, Muhammad Asghar alias Askar, and Abdul Farooq, they convicted them under section 307, P. P. C. But recorded no conviction under sections 148 and 149, P. P. C. In this way they dismissed the appeal of the aforesaid four persons.
3. The convicted accused namely Muhammad Banaras, Muhammad Asghar alias Askar, Shaukat All and Abdul Farooq have come up in appeal (bearing No, Criminal Appeal 73/79) through special weave which was granted on 20th October, 1979, to examine whether on the facts and in the circumstances of this case section 307, P. P. C. Could be applied to them, especially when they were convicted either under sections 148 and 149, P. P. C. Muhammad Sabir Hussain injured (P. W.
10) has filed an independent Criminal Petition for Special Leave to Appeal bearing No, 66-R/79 in which he has challenged the acquittal of Muhammad Ashraf, Abid Hussain, Mahboob Hussain and Muhammad Iqbal. The present judgment will dispose of both these matters.
4. The facts of the prosecution case are that Muhammad Sabir Hussain (P. W. 10) had collected, earth at the back wall of his house for his protection which was removed by Muhammad Ashraf accused and his father Muhammad Ismail about 22123 days before the present occurrence. In this connection there took place an altercation between the parties, and as a result, at the instance of Muhammad Ashraf appellant proceedings were taken under section 107/151, Cr. P. C. On 5th October, 1973, against the parties namely Muhammad Ashraf on one side and Muhammad Sabir Hussain (P. W. 10) deceased Muhammad Shafi Noor Elahi (P. W. 13) Muhammad Elahi, Abdul Ghaffar as well as Muhammad Yamin on the other. The relations got further strained when a private complaint under section 427, P. P. C. Was instituted by Muhammad Sabir Hussain against Muhammed Ismail father of Muhammad Ashraf appellant, and his son Muhammad Ashraf, Mahboob Hussain and Muhammad Asghar accused on 11th October, 1973.
5. The occurrence which gave rise to the present case took place on the fateful day of the Eid on 28th October, 1973 when Muhammad Sabir Hussain and the deceased Muhammad Shafi were attending to their bajra crop in the field. According to the prosecution case Muhammad Ashraf, Muhammad Asghar, Mahboob Hussain, Muhammad Banaras accused were armed with knives, Abid Hussain accused was armed with a revolver and Barkat accused (now dead) Shaukat Ali and Abdul Farooq were armed with sticks. Muhammad Ashraf attacked Muhammad Shafi with his knife who succumbed to his injuries. Muhammad Asghar, Mahhoob Hussain, and Muhammad Banaras attacked Muhammad Sabir Hussain with their knives and similarly the rest of the accused gave him sticks blows. The F. I. R. Of this occurrence was lodged by Sabir Hussain the same day at Police Station, Gujar Khan. The prosecution evidence was given by three eye-witnesses, namely Muhammad Sabir Hussain, brother of the deceased, Shiraz (P. W. 11), son of the deceased and Noor Ellahi (P. W. 12) khalazad of Shiraz. According to the prosecution, Shaukat Ali, Abid Hussain, Asghar Ali and Abdul Farooq were also injured but not in the occurrence, as according to the prosecution they had actually fled away and were apprehended at a long distance away from the place of occurrence by Fazal Muhammad and Muhammad Salas and received injuries at that place from stones hurled on them by the persons present at that place. The High Court referred to the relationship and the enmity of parties in detail in their judgment and since the same were well established on the record we need not reproduce the same in detail in this judgment and it will be sufficient for our purpose to mention that it was in view of this enmity, relationship, and interestedness of the P. Ws. That the High Court looked for corroboration of the prosecution case especially when it involved a large number of accused. We have gone through the record and the judgment of the High Court which is well-reasoned and find no mistake therein in the matter of appreciation of evidence or otherwise subject to the point herinafter following.
6. Taking up Criminal Appeal No, 73 of 1979 it will be evident that the appellants therein have been convicted under section 307, P.P.C. For causing injuries to Muhammad Sabir Hussain (P. W. 10). It may be mentioned that Muhammad Banaras and Muhammad Asghar alias Askar were armed with knives but the injuries caused by them to Muhammad Sabir Hussain are all simple in nature.
The same is the position of Shaukat All and Abdul Farooq appellants who similarly caused simple injuries to Muhammad Sabir Hussain with sticks. Since the nature of all the injuries is simple therefore it is clear that the intention of the accused was not to cause death of Muhammad Sabir Hussain. Sections 148/149, P. P. C. Having not been made applicable, the result will be that each accused will have to A be responsible for his own independent act. Proceeding in this way we find that none of the appellant could have been convicted under section 307, P. P. C. because they caused only simple injury or injuries to the P. W. Concerned. Accepting their appeal, we would, therefore, convert the conviction of Shaukat Ali and Abdul Farooq from section 307 to section 323, P.
P. C. Similarly keeping in view the injuries attributed to Muhammad Banaras and Muhammad Asghar alias Askar we would convert their conviction from section 307 to section 324, P. P. C.
However, according to the overall facts and circumstances of the case, in our opinion the sentence already undergone by all these four appellants will meet the ends of justice. The appeal is accepted in the above manner and we order accordingly.
7. As regards the Criminal Petition for Special Leave to Appeal No, 68-R/79 against the acquittal of Abid Hussain, Mahboob Hussain and Muhammad Iqbal, learned counsel for the complainant/petitioner submitted that the aforesaid accused were also involved in inflicting blows on Muhammad Sabir Hussain (P. W. 10) therefore their acquittal was not justified. The contention has no merit. Due to the enmity and the interestedness of the various P. Ws., the High Court picked up only those accused who were injured/and or against whom there was some independent corroboration. The accused in the Criminal Appeal No, 73/79 wese injured therefore they were considered to have participated in the occurrence Here it may be mentioned that mere injuries again were not considered enough because they were not caused to the accused at the place of occurrence but at a distance of about 1 or 2 miles away where they were allegedly apprehended and stones were hurled on them which story was however not believed and the High Court did not accept the prosecution case regarding the venue where those injuries were caused and held that they were caused during the fight between the parties. In this respect though Abid Hussain was also injured but as he did not admit his presence on the spot therefore he was acquitted. It may be mentioned that as regards the present respondents whose conviction under 307, P. P. C. Is now being sought from this Court, there was no corroboration of the kind above mentioned and as such the High Court gave them the benefit of doubt. We find nothing wrong with the manner in which the High Court appreciated the evidence in this case which involved a large number of accused.
Learned counsel could not point out any omission or misreading of evidence in this respect so as to warrant interference by this Court. The case against them depends merely on appreciation of evidence and is not fit to be taken up in appeal before this Court.
8. As regards Muhammad Ashraf respondent it was argued that he was the arch culprit, and as he was only one accused who according to the prosecution caused injuries to and the death of Muhammad Shafi therefore his acquittal was in no way justified. We have examined this matter carefully. Once the principle applied by the High Court is accepted namely that the case should not be decided on the bare statements of the hostile witnesses without any corroboration, then we must say that there did not exist any such corroboration in his case as held by the High Court. He was not apprehended like others and he bears no injury on his person which makes his participation in the occurrence doubtful. The learned counsel could not point out any mistake in the order of the High Court in this respect. The result is that the petition against him must also fail.
9. Criminal petition for special leave to appeal is consequently dismissed.