MIAN BURHANUDDIN KHAN, J.-These two petitions arise out of the judgment of learned Sessions Judge, Lyallpur dated 24-5-1976 convicting the accused petitioners under section 304, Part I to imprisonment for life and a fine of Rs. 1,000 each or in default to six months' R.
1. For causing the death of Bashir Ahmad.
2. According to the prosecution Bashir Ahmad deceased had an altercation with the accused petitioners over the turn of irrigation -water some time prior to the occurrence. On the day of occurrence i,e. 18-7-1974 at 5 p.m, The petitioners attacked the deceased when he was coming from his field, carrying a bundle of fodder on his head. Akbar, petitioner was armed with a spear while lsmail had a stick with him, and after raising lalkara they dealt the deceased blows with their respective weapons, who started running after throwing the bundle of fodder but was overtaken near his - house. The spear blows by Akbar, accused caused injuries to the deceased on his abdomen who fell down and then Ismail, accused, gave him stick blows, Ghulam Nabi, P. W. 8, Rahmatullah P. W. 10 and Ismail, P. W. I1 were standing outside the Khata of cattle belonging to Ghulam Nabi, P. W. 8, reached the spot. Rahmatullah, P. W. 10 tried to intervene but he was also given stick blows by Ismail accused. The deceased was carried to the hospital in injured condition where his statement Exh. P. H. Was recorded by Talib Hussain, P. W. 12 who had reached the hospital on receiving intimation vide Exh. P. F./4. He recorded the dying declaration of Bashir Ahmad deceased on 19-7-1974 at 4 a.m. On the basis of which a case was registered vide F. I. R. Exh. P. H./1 at police station Toba Tek Singh at 4-15 a.m. The same day. Another dying declaration was recorded by Mr. Aslam Kalyan, Tehsildar P. W. 9 which is Exh. P. S. And Dr. Khurshid Ahmad P. W. 1 appended a certificate to it Exh. P. C./1 to the effect that the deceased, was in his proper senses when he made the statement.
3. Akbar accused was arrested 3n 23-7-1974 by Talib Hussain P. W. 12 and spear P. 3 was recovered at his instance by the Investigating Officer vide Memo. Exh. P. C. Bashir Ahmad died on 27-7-1974 at 11-55 p.m. In the Civil Hospital. On 30-7-1974 Muhammad Ismail alongwith Ghulam Muhammad acquitted accused was arrested by Talib Hussain, A. S. I. Ismail led to the recovery of a lath! P. 4 from his kotha which was taken into possession vide Memo. Exh. P. D.
4. Dr. Khurshid Ahmad examined Bashir Ahmad and performed the post-mortem examination and found the following injuries :- "(i) Lacerated wound 3" x 1/2" x scalp deep on right side of head.
(ii) Lacerated wound 2.1/2" x 1/2" x scalp deep on left side of head.
(iii) Lacerated wound 4" x 1" x scalp deep on back side head on his side.
(iv) Lacerated wound 3" x 1/2" x scalp deep on back of head mid-line.
(v) Stab wound 2" x 1" x probed on left iliac fossa, intestines were outside the wound.
(vi) Lacerated wound 1" x 1/2" x scalp deep on right eyebrow.
(vii) Abrasion 1/4" x 1/4" on back of little finger.
(viii) Multiple contusion in an area of 4" x 3" on right upper arm."
Rahmatullah, P. W. Was- also medically examined and the doctor found the following injuries on his person
(i) Contused swelling of right eye lid and left eye lid.
(ii) Contusion 2" x 1" on back of neck.
(iii) Contused swelling 1.1 /2" x 1" on the nose.
(iv) Contusion 2" x 1" on left lateral side of chest.
5. The Darned trial Court rejected the dying declaration Exh. P. H. Recorded by the A. S. I. Talib Hussain for the reason that at the time when the same was recorded the prosecution evidence shows that the deceased was unconscious. The Court, however, believed the ocular testimony and the second dying declaration recorded by the Tehsildar and also relied on the statement of Ghulam Nabi, P. W. 8 and Rahmatullah, P. W. 10 but observed in the judgment that there was no intention to cause the murder of the deceased. However, the injuries caused by Akbar accused were likely to cause the death of the deceased and the accused had the intention of causing such injuries. The learned trial Judge, therefore, convicted the accused under section 304, Part I and sentenced them accordingly.
6. On appeal, the learned High Court accepted the statements of the deceased as recorded by the A. S. 1. As well as the Tehsildar and also believed the ocular testimony. However, the learned Judges agreed that the offence was not committed in pre-meditation but it was a matter of sudden encounter when the accused dealt blows to the deceased with their respective weapons, and, therefore, dismissed the appeal and maintained the conviction vide the impugned judgment.
7. Learned counsel for the petitioners contended that the prosecution evidence is full of contradictions; that the dying declarations were recorded under the most suspicious circumstances ; that the statement of Rahmatullah, P. W. Regarding his injuries had been disbelieved and therefore no conviction was recorded under section 307, P. P. C. For attempting on his life ; and similarly the statement of Ghulam Nabi, P. W. Had been disbelieved regarding the injuries sustained by Rahmatullah, P. W. We have examined these contentions and find that there is no previous enmity between the deceased and the witnesses on the one hand and the accused/petitioners on the other. There was a minor incident regarding the irrigation water and for that reason there can be no motive for the witnesses to falsely implicate the, accused/petitioners.
8. Lastly, the learned counsel contended that as it was a sudden affair without pre-meditation, therefore, each one of the accused/petitioners would be liable for the damage or harm caused to the deceased ; that Ismail had been attributed a stick as his weapon and the deceased had all the simple injuries by blunt weapon, therefore, the offence would not fall under section 304, Part I nor would it be a case where the provisions of section 341 could be attracted.
9. Leave to appeal is refused to Akbar accused/petitioner who caused spear injuries to the deceased resulting in his death. As regards the case of Ismail accused /petitioner. We grant leave to consider the question of his liability in the commission of the offence.