MIAN BURHANUDDIN KHAN, J.-This order will dispose of Jail Petitions Nos. 40/11/82 and 49/11182 filed by Abdur Razzaq and Hakim Khan, peti--tioners respectively which have been converted into appeal with notice to the State.
2. Appellants Abdur Razzaq and Hakim Khan were tried and convicted under section 302/307 read with section 34, P. P. C. For committing the murder of Ghulam Sarwar and his son Muhammad Asif.
Abdur Razzaq was sentenced to death under section 302, P. P. C. And a fine of Rs. 500 on two counts, in default of payment of fine, he was to undergo further R. I. For one month. Out of the fine, if realised, Rs. 1,500 was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. While Hakim Khan was sentenced to life imprisonment and a fine of Rs.
2,000 on two counts, in default, six months' R. I. Both were further sentenced to six months' R. I. And to a fine of Rs. 200 each under section 324 for causing simple injuries to Abdul Wahid, P. W. And in default, they were ordered to undergo further R. I. For one month each. Amount of fine, if recovered, was ordered to be paid to Abdul Wahid, injured P. W. Vide judgment dated 18-6-1979.
3. Appeals were filed by both the convicts, and death sentence was also placed before the High Court, and a criminal revision was also filed by Muhammad Daud, complainant praying for enhancement of sentence of Hakim Khan. Both the appeals were dismissed, revision was rejected and death sentence of Abdur Razzaq was confirmed vide judgment dated 18-4-1982. The two convicts then filed Jail Petitions Nos. 40/R and 49/11 of 1982 by Abdur Razzaq and Hakim Khan respectively. Jail Petition by Hakim Khan (49/11) was dismissed while that (40/R) filed by Abdur Razzaq was converted into appeal with notice to the State.
4. According to the prosecution case, on 4-5-1979 Ghulam Sarwar (deceased) and his three sons namely Muhammad Asif (deceased) Abdur Wahid P. W. 10 and Muhammad Daud, P. W. 11 were working at about 7 a.m. At their flour-mill in village Tajak. Ghulam Sarwar went out of the mill and shortly thereafter his sons including Asif (deceased) heard an uproar from outside. On coming out of the mill they saw Hakim Khan alias Khaney, armed with a dagger and Abdur Razzaq, armed with a knife, stabbing Ghulam Sarwar while Fazal Khan alias Kodey was exhorting the accused to kill Ghulam Sarwar. Hakim Khan dealt a dagger blow to the deceased on the left side of abdomen while Abdur Razzaq, appellant, gave a blow injuring Ghulam Sarwar on the right side of his ribs.
Fazal Khan, the acquitted accused, dealt a blow with a wooden hammer on the head of Ghulam Sarwar (deceased). Asif (deceased) came to the rescue of his father whereupon Hakim Khan and Abdur Razzaq attacked him too and gave him repeated blows. Abdul Wahid, P. W. 10 had an axe (kulhari) in his hand, therefore, he, in order to save the victims Ghulam Sarwar and Asif, dealt a blow with it on the head of Abdur Razzaq and a blow to Hakim Khan. Both Hakim Khan and Abdur Razzaq turned round and attacked and injured Abdul Wabid, and then the accused decamped.
Injured persons were taken inside the Mill of which Ghulam Sarwar succumbed to his injuries, the other two were taken to hospital where F. I. R. Exh. P. E. 2 was recorded by the Investigating Officer, Fazal Dad, S. I. S. H. O. Attock.
5. According to the prosecution, a day earlier, hens of the accused party came to the mill of the deceased, these hens, later on, died. The accused suspected that the deceased, who were running the flour mill, had poisoned their hens because the hens caused damage to the grains in the mill.
6. Dr. Mehboob Rabbani, P. W. 7 had examined on 4-5-77 at 9-15 a.m. Muhammad Asif and found 7 injuries i.e. Incised and stab wounds of various dimensions. Muhammad Asif, later on, died and the same doctor performed post-mortem examination on his dead body. In his opinion death of Muhammad Asif (deceased) resulted from injuries 5, 6 and 7 which . Were sufficient to cause death in ordinary course of nature.
7. On 4-5-1977 same doctor (P. W. 7) performed post-mortem examina--petition on the dead body of Ghulam Sarwar and found 9 stabs, incised and lacerated wounds. Injuries 1 to 8 were caused with sharp-edged weapon while injury No. 9 was caused by blunt weapon.
8. Dr.- Mehboob (P. W. 7) had also medically examined Abdul Wahid P. W. 10 on 4-5-1977 and found an incised wound on the left palm, extending over to the pronative surface, and an incised wound on the crown of head. Both injuries were simple in nature and were caused with sharp weapons.
9. Hakim Khan appellant was medically examined on 16-5-1977 and the doctor had found a healing lacerated bone on the occupied covered with crust and a laceration on the right side of Hakim Khan's head 3 -----' above the right car.
10. Abdur Razzaq, appellant, was medically examined by Dr. F. M. Khan 9P. W. 4) on 6-5-1977. The Doctor found a contused lacerated wound 1-- x ----- x 1/6--- on the top of head, caused by a blunt weapon.
11. Learned counsel was heard. His only point, which was considered, was that death sentence to Abdur Razzaq was not called for in this case as he alone has not caused all the injuries but Hakim Khan shared the responsibility of causing injuries to the two deceased with a knife ; and that the prosecution case has not made any distinction between the role played by the two assailants. We have considered this argument and it appears that the matter was not preplanned but all that happened was in consequence of the fact that hens -f the accused party had died and they suspected the deceased having poisoned the hens, and on this the accused/appellant attacked the deceased. We, therefore, consider that this point is quite substantial and in view of the fact that Hakim Khan has been awarded lesser penalty, we convert the death sentence of Abdur Razzaq, appellant, to imprisonment for life and a fine of Rupees two thousand on each count payable to the heirs of the deceased as compensation or in default, R. I. For one yeas.