ASLAM RIAZ HUSSAIN, J.-This order shall dispose of Criminal Petition No. 31/80 filed by Salabat petitioner against the judgment of the High Court dated 22-12-1979, dismissing his appeal and maintaining his conviction under section 302, P. P. C. And Criminal Petition No. 36/80 filed by Khalid Mahmood complainant against the acquittal of Sanatta and Akbar co-accused and for enhancement of the sentences of Salabat, Varyam, Nazir, Sadiq, Hussain and Noora, respondents in the said petition.
2. The facts leading to the present petitions briefly, are that Salabat was tried alongwith 7 others (whose names have been mentioned above as respon--dents in Criminal Petition No. 36/80), for the murder of Jafar and murderous attack on Khalid Mahmood complainant (P. W. 8), Altaf Hussain (P. W. 9), Muhammad Asghar (P. W. 10) and Sukha (P. W. 11).
The learned trial Court convicted all of them under sections 302/307/149, and 148, P. P. C. Under sections 302/149 it sentenced each of them to imprisonment for life, while under sections 307/149, P. P. C. Each of them was sentenced to 5 years' R. I. And under section 148, P. P. C. Each of them was sentenced to undergo 6 months' R. I. All of them filed appeal before the High Court. It, vide its judgment dated 22-12-1979, acquitted Akbar and Sanatta accused but maintained the conviction and sentences of the remaining six accused (petitioners in Cr. P. No. 51/80).
The occurrence in this case took place at deegarwela on 11-7-1976 in Chak No. 585/GB., District Faisalabad. The F. I. R. Was based on the statement of Khalid Mahmood complainant (P. W. 8) made by him at the hospital at 2 a. m., which was recorded by Muhammad Bashir, S. I. (P. W. 13).
The motive for the offence as stated in the F. J. R. Is that Salabat petitioner was interested in getting 100 kanals of State land situated in Chak No. 586/G. B. He made repeated attempts to obtain the land but did not succeed. About 2J years prior to the occurrence Muhammad Shafi, the uncle of the complainant succeeded in getting that land on the Five Years Scheme. Salabat petitioner, however, continued making efforts to get the land and challenged the allotment made in favour of Muhammad Shafi both before the Civil as well as the Revenue Courts but the land remained with the aforementioned Muhammad Shall. This piece of land became the bone of contention between the parties and Salabat petitioner nourished grudge against him.
On 11-7-1976, at about Asar prayer time Khalid Mahmood (complainant and his maternal uncle Sukha (P. W. 11) were returning from their fields on a bullock cart. When they were still at some distance away from the village abadi they were stopped by Noora petitioner who is nephew of Salabat petitioner. He abused Khalid Mahmood and Sukha P. Ws. Who retaliated in the same manner. Noora petitioner then left the spot threatening them that he would get them fixed up.
Khalid Mabmood and Sukha P. Ws. Then proceeded towards the village on the bullock cart. But when they reached in front of the house of Akbar Kamhar they found all the eight accused persons present there variously armed with hatchets and dings, had encircled them. Apprehending danger to their lives Khalid Mahmood and Sukha P. Ws. Raised alarm which attracted Altaf (P. W. 9), Muhammad Asghar (P. W. 10) and Muhammad Shafi (P. W. 12), Amir and Jaafar (both deceased) rushed to the spot. Salabat petitioner opened the attack by firing which hit Jaafar deceased. This was followed by a shot fired by Hussain which hit Altaf F. W Varyam petitioner fired a shot hitting Muhammad Asghar (P. W. 10). Ghulam a co-accused (though not challaned or tried) fired a shot at Khalid Mahmood complainant. 'Thereafter the remaining accused attacked them with hatchets and sticks. During the incident two of the accused, namely, Salabat and Nazir also received minor injuries.
It may be mentioned that during the investigation, guns (P. 6) and hatchets (P. 5 to P. 11) were recovered from 7 accused persons but they could not be used to advance the prosecution case as none of the hatchets or the sticks were found to be stained with blood and since no empties were found the guns recovered from the accused could not be connected with the offence in ques-- petition. As such at the trial the prosecution relied on the testimony of 5 eye--witnesses, namely, Khalid Mahmood (P. W. 8), Altaf (P. W. 9), Muhammad Asghar (P. W. 10), Sukha (P. W. 11) and Muhammad Shafi (P. W. 12), out of whom the first four had been injured during the incident. Khalid Mahmood complainant suffered 3 injuries. Altaf Hussain two injuries while Muhammad Asghar and Sukha P, Ws. Received 5 injuries each.
It also relied on the evidence of motive and the medical evidence.
3. The accused pleaded innocence and stated that they had been falsely involved in the case. The occurrence was* however, admitted by Salabat who gave a different version, saying that on the day of occurrence he and his son Nazir co-accused were returning after offering their Asar prayers, when they came across Muhammad Shafi P. W. 12 and his relatives Khalid Mahmood (complainant) Sukha and Asghar P. Ws. As well as their friend Altaf Hussain taunted cut jokes on them (i. e. Salabat and Nazir) with regard to their failure to get the Government land on lease. The accused reprimanded them but they assaulted them causing injuries with blunt weapons. He alleged that the P. Ws. Tied their hands and dragged them towards the dera of Muhammad Shall P.
W. In order to teach them a lesson for the litigation. When they were being dragged in front of the house of Akbar Kamhar then were raising alarm, and Bashir (Salabat s son) and his nephew Muhammad Aslam were attracted to the scene. Muhammad Aslam was armed with a licensed gun. While Bashir carried a stick. They tried to rescue Salabat and Nazir but they met with resistance. Feeling apprehension to their lives Muhammad Aslam aforesaid fired indiscriminately with his gun injuring the P. Ws. And the deceased.
As already mentioned above, the learned trial Court believed the pro--secution version and convicted all the 8 accused, but the High Court acquitted Akbar and Sanatta giving them the benefit of doubt. They have now challenged their conviction and sentences in this Court through Criminal Petition No. 51/80.
4. The only contention raised by the learned counsel for the petitioners (in Cr. P. 51/80) was that while the High Court Judge, who had disbelieved the prosecution evidence with regard to Akbar and Sanatta (acquitted accused and acquitted them, had erred in believing the same evidence with regard to the remaining 6 accused (i.e.) the petitioners in Cr. P 51/80) without there being any independent corroboration to support it qua them.
5. We have gone through the relevant portion (Paragraph 9) of the impugned judgment of the High Court wherein the learned Judges have given the reasons for acquitting Sanatta and Akbar, which may be usefully reproduced here :- "It was last contended that the case of Sanatta and Akbar appellants was distinguishable from that of others. The contention merits con--sideration. Sanatta was an old man of 80 years. Akbar was resident of another village though serving as a School Teacher in the chak. He was not related to the parties not even their case-fellow. Though both of them were stated to have been armed with hatchets and also used them in causing injuries to the complainant party, yet no one suffered as injury with a sharp-edged weapon. The witnesses tried to explain at the trial that the hatchets were used from their wrong sides but that may be an afterthought. In these circumstances their participation in the occurrence becomes doubtful. Thus, they are entitled to its benefit. Accordingly, giving the benefit of doubt, I set aside the convictions and sentences of Sanatta and Akbar appel-- lants and acquit them. They shall be released forthwith if not required in any other case."
6. We are of the view that the High Court distinguished the case o Akbar and Sanatta from that of the petitioners (in Cr. P. No. 51 /80) on the ground that Akbar lacked the motive to join in the attack and moreover the nature of injuries attributed to them was not supported by the medical evidence.
It is, therefore, obvious that the fact that the petitioners had the motive for the assault and the injuries attributed to them were supported by the medical evidence, was taken by the learned Judges of the High Court as a circumstance supporting the ocular testimony .Qua them. It may also be mentioned here that both the parties (i.e. The deceased and the eye-witnesses; on one side and all the accused petitioners on the other) are very close related to each other and it is admitted that no serious enmity or blood feud existed between them. It is, therefore, not conceivable that they would falsely involve their own kith and kin. If, as stated by Salabat it was Aslam who had in fact fired at the P. Ws. And it was Bashir who had caused the blunt weapon injuries. It does not stand to reason that they (i.e. The eye--witnesses) would spare Aslam and Bashir not mentioning their names at al 'l amongst the. Assailants and substitute the petitioners in their place.
7. In view of what has been observed above we are of the view that the learned High Court was justified in distinguishing the case of Akbarand Sanatta and acquitting them of the change against them. Criminal Petition No. 51/80 is, therefore, dismissed. g. For the reasons recorded in paragraph No. 6 above, we are of the view that Criminal Petition (No. 36/80) filed by the complainant against the acquittal of Athar and Soni, too, has no merit.
Consequently, the same is dismissed.