1. WAHEEDUDDIN AHMAD, J.---This appeal by special leave is directed against the judgment of the High Court of West Pakistan, Lahore, in Criminal Appeal No. 454 of 1967, dated the 25th November 1968. By this judgment, Mail appellant was convicted under section 302/34, P. T, C. For the murder of Mushtaq Ali deceased and was sentenced to transportation for life.
2. Majid and Mafiz Khan and one Rafique were convicted under section 302/34, P. P. C. For the murder of Mushtaq Ali deceased by the learned Additional Sessions Judge, Lahore. Hafiz Khan was sentenced to death. Majid and Rafique were sentenced to transportation for life. All the three persons were also convicted under section 307/34, P. P. C. For murderous assault on Jhanda Khan and his son Inayat Ali. The matter was taken in appeal and reference before the West Pakistan High Court, Lahore and by judgment dated the 25th November 1968, the appeal of Majid and Hafiz Khan was dismissed. The appeal of Rafique was accepted and his conviction and sentence was set aside. Hafiz Khan and Majid filed petition for Special Leave to 1ippeal No. 16 of 1969 and challenged their conviction. Jhanda Khan filed petition for Special Leave to Appeal No. 17 of 1969and challenged the acquittal of Rafique. The petition for special leave to appeal filed by Hafiz Khan was dismissed by order dated the 9th October 1969. Special leave was granted to Majid to consider the question whether in the circumstances of the present case, Majid could be convicted under section 302/34, P. P. C. The petition of Jhanda Khan was dismissed.
3. The occurrence took place on the 14th of August 1965 at about degarwela in the village of Dullu Kalan at a distance of 3 miles from Police Station Kahna Kachha. The prosecution case is that Guftar Hussain P. W. 13, aged 7 years son of Inayat Ali was grazing some cattle in the land of P. W.
4. Lal Din which had been taken on lease by Jhanda Khan. The field of Rafique was adjacent to that land. Rafique asked Guftar Hussain to take away the animals because there was a likelihood of damaging the crop. Guffar Hussain P. W. 13 refused to do so and Rafique 4 gave him two or three slaps. Thereupon, Guftar Hussain went weeping to the dera of Jhanda Khan and complained about the misbehaviour of Rafique. On hearing this complaint, Mushtaq Ali deceased, Jhanda Khan with a sota in his hand and Inayat Ali P. W. Proceeded towards the land of Rafique. They saw Hafiz Khan, Majid and Rafique standing at a distance of about one acre. Hafiz Khan was armed with gun, Rafque with a pistol and Majid with a dang. On seeing them, Rafique shouted that they would take revenge of the dispute which had occurred over water on the preceding Thursday and they would not let the P. Ws. Escape. Soon after, Hafiz Khan fired a shot with his gun, which hit deceased Mushtaq Ali on his chest. He fell down and died immediately. Thereafter, Rafique fired a shot with his pistol which hit the index finger of Inayat Ali P. W. Jhanda Khan P. W. Retaliated and struck a sota blow to Rafique. There--upon, Majid struck a dang blow on the hand of Jhanda Khan with the result that his sota fell down from his hand. Jhanda Khan raised hue and cry on which Rafidue, Majid and Hafiz Khan ran away with their weapons.
5. The matter was reported to -the police at about 5-30 p. m, The police investigated the matter. The Sub-Inspector went to the place of occurrence and after preparing the inquest report, Exh. P. H. Of the dead body of Mushtaq Ali deceased sent it to the mortuary for post-mortem examination. He recovered one 12 bore empty cartridge, Exh. P. 3, blood-stained earth and a watch, Exh. P. 1, with strap from the place of occurrence, vide Memos. Exhs. P. B, P. D. And P. C. Respectively. These recoveries were witnessed by Karima Lambardar P. W. 8 and Inayat Ali P. W.
11. Hafiz Khan and Rafique were arrested on the 15th August 1965. Hafiz Khan led the Sub-Inspector to his dera and from there produced single barrel * 12 bore gun. Exh. P. 2 with three live cartridges. These were taken into possession, vide Memo. Exh. P. E. This recovery was also witnessed by Karima Lambardar, P. W.
6. 8 and Babu Khan P. W.
7. Babu Khan P. W. 7 did not support the prosecution case and he appeared as a defence witness. Majid was arrested on the 20th August 1965. On the 31st August 1965, the parcels containing the gun and the empty cartridges were sent to the Central Forensic Laboratory, Lahore, where Shahjahan Khan, Firearms Expert P. W. 17, after making tests, gave the opinion that the empty cartridge P. 3, was fired through gun Exh. P.
2. The appellant was then challaned, Majid appellant denied his guilt. Rafique and Hafiz Khan also denied their guilt. Rafique admitted that he had slapped Guftar Hussain because his cattle trespassed his field. He further stated that immediately after driving away the cattle from his held he went away to his village and did not know what happened afterwards.
7. The prosecution case against the appellant rests on the testimony of Jhanda Khan, Faqir Hussain an, Ghuftar Hussain, coupled with the recovery of Exh. P. 2 a t the instance of Hafiz Khan, which was found to have been used in the commission of offence as the Ballistics Expert Shahjahan Khan P. W.
8. 17 found that '12 bore empty Exh. P 3 recovered from the scene of occurrence, was fired through that gun.
9. The learned Judges of the High Court did not accept the presence of Faqir Hussain at the scene of occurrence. They considered it doubtful. They further found that the First Information Report was recorded at the place of occurrence and was not recorded at the police station. They further observed that the evidence of Guftar Hussain P. W. Regarding the actual occurrence did not inspire confidence. Therefore, reliance was not placed on the evidence of Faqir Hussain and Guftar Hussain. The learned Judges of the High Court only placed reliance on the testimony of Jhanda Khan and Inayat Ali P. Ws. About them also it was observed that they had exaggerated the incident by implicating Rafique. They came to the conclusion that only one gun-shot was fired which hit the deceased on his chest and a stray pellet of the same cartridge hit Inayat Ali on his finger. After going through the evidence on the record they found that the occurrence must have taken place in the following manner :- "Rafique appellant slapped Guftar Hussain P. W. Who went away weeping to the dera of Jhanda Khan P. W. And complained to him about the highhandedness of Rafique appellant. Jhanda Khan P.
10. W. Picked up a stick and went to the place of occurrence, accompanied by Mushtaq Ali and Inayat Ali, in order to remonstrate with Rafique appellant about his misbe--haviour. On reaching there they found Rafique appellant present and Jhanda Khan in order to chastise him, gave him a stick blow and he raised a hue and cry, which brought Hafiz Khan and Majid appellants to the spot. Hafiz Khan appellant who was carrying a gun, fired a shot which bit Mushtaq Ali deceased on his chest and a stray pellet also hit the index finger of Inayat Ali P. W. Majid appellant who was armed with a dang first gave a blow to Jhanda Khan P. W. And thereby disarmed him and then gave some blows to Inayat Ali P. W."
11. On these conclusions, the learned Judges of the High Court upheld the conviction of Majid appellant.
12. Ch. Nazir Ahmad Khan, the learned counsel for the appellant, has contended that the firing was the individual act of Hafiz Khan. It was sudden affair and, therefore, the appellant Majid had no common intention to kill the deceased. According to the learned counsel, he could only be convicted for the part played by him and could not be convicted under section 302/34, P. P. C. He further contended that there was no pre-concert. The contention of the learned counsel has not impressed us. It will be noticed that Hafiz Khan was armed with a gun and Majid appellant was armed with a lathi. Both of them came with the intention of taking revenge on the water dispute and attacked the complainant party. In these circumstances, he shared the common intention of his companion who killed the deceased and was rightly convicted under section 302/34, P. P. C.
13. There is, therefore, no force in his appeal which is dismissed.