1. JAVID IQBAL, J.-- This petition for leave to appeal is directed against the judgment of a Division Bench of the Lahore High Court Lahore, dated 22nd February, 1982. The petitioners Allah Wasaya and Muhammad Sadiq are both brothers. They were tried by the Additional Sessions Judge, Lahore under section 302/34, P.P.C. For the murder of Muhammad Younis and vide his judgment, dated 7th May, 1979 Allah Wasaya petitioner was sentenced to death plus fine whereas Muhammad Sadiq petitioner was sentenced to life imprisonment plus fine. In appeal before the High Court the conviction of both the petitioners was maintained but the sentence of Allah Wasaya petitioner was altered from death to that of imprisonment for life.
2. The facts are that on 2nd September, 1978 (27th of Ramzan) Ghulam Muhammad P.W. 10 who resided in Misri Shah Lahore cooked some Degs of rice. He distributed some rice amongst the residents of his Mohallah and then his son Khadim Hussain P.W. 11 took one Deg to the Darbar of Hazrat Data Ganj Bakhsh. Half of the Deg was distributed there and the remaining half Khadim Hussain P.W. Took to the house of the petitioners who were his maternal-uncles. The petitioners refused to accept the rice and abused Khadim Hussain P.W. Khadim Hussain P. W. Brought back the rice to his house and informed his father Ghulam Muhammad P.W. As well as his mother Mst.
3. Khurshid Begum about the treatment meted out to him by the petitioners. On this Mst. Khurshid Begum who was sister of the petitioners suggested that they should go to the petitioners for a compromise. Consequently she alongwith her husband Ghulam Muhammad P.W., her son Khadim Hussain P.W., Jehangir Hussain P.W.13 and Muhammad Younis deceased left for the house of the petitioners against alongwith the Deg of rice. Jehangir Hussain P.W. While Muhammad Younis deceased was their step-brother as his mother was Mst. Mir Bibi by name. On reaching the house of the petitioners they called them but Allah Wasaya petitioner shouted from the first floor of his house that they should go away. Ghulam Muhammad P.W. Entreated them to come down and to disclose as to what had annoyed them The prosecution version is that both the petitioners then came dowry in the street armed with Chhuris. They scattered the rice and then Muhammad Sadiq petitioner attacked Muhammad Younis deceased with his Chhuri followed by Allah Wasaya petitioner who stabbed him in the abdomen. As a result Muhammad Younis fell down and the petitioners ran away. Muhammad Younis deceased was moved to the Mayo Hospital, Lahore in an injured condition but soon after he died, The motive for crime is that the deceased used to instigate Mst. Khurshid Begum to demand her share in the property from the petitioners and that, therefore, they killed him.
4. According to the medical evidence the deceased had a stab wound over right lower chest, an incised wound on the right index finger and an incised wound on the right middle finger.
5. Allah Wasaya petitioner was arrested on 3rd September, 1978 and on his pointation was recovered human blood-stained Chhuri. Muhammad Sadiq petitioner had absconded and eventually was arrested on 4th November, 1978. At his instance also human blood-stained Chhuri was recovered.
6. The Investigating Officer also took into possession human blood-stained rice scattered in the street where the occurrence had taken place. The eye-witnesses of the occurrence are Ghulam Muhammad, Khadim Hussain and Jehangir Hussain P.Ws. The defence version was that Mst.
7. Khurshid Begum the sister of the petitioners had married Ghulam Muhammad P.W. On account of illicit intimacy and, therefore, both her brothers had severed their connections with her.
8. Consequently they were not on speaking terms with her or her sons. One of their sisters who was widow living in the same house. Mst. Khurshid Begum started visiting her and they had told her not to visit their house. On the day of occurrence Khadim Hussain P.W. Had brought rice for their widowed sister and also offered them to the petitioners. The petitioners refused to receive the same which led to the exchange of hot words. Khadim Hussain P. W. Left with a threat and returned after sometime accompanied by the deceased as well as Mst. Khurshid Begum. Both Khadim Hussain and Muhammad Younis deceased were armed with Chhuris and Mst. Khurshid Begum exhorted them to teach the petitioners a lesson. Thus, the defence version in brief is that the deceased had attacked Muhammad Sadiq petitioner with a Chhuri who warded it off and in that process the deceased had received the injury. In other words the defence raised the plea that the complainant party had come armed with Chhuris and they were the aggressors. The defence version had rightly been rejected by both the trial Court as well as the appellate Court for the reason that human blood-stained rice were picked up from the spot which indicated that the complainant party had not gone there as aggressors but had taken the Deg of rice for conciliatory purposes as it was 27th of Ramzan. It may also be pointed out that none of the petitioners had sustained any injury in the occurrence. The prosecution case is based on the ocular testimony corroborated by the recovery evidence and supported by the motive version particularly as provided by the defence and finally by the medical evidence. The learned Judges of the Division Bench of the Lahore High Court Lahore altered the sentence of Allah Wasaya petitioner from death to imprisonment for life and thus gave him the benefit of doubt only for the reason that members of the complainant party who had gone to the house .^.f the petitioners at the time of the occurrence had not made unanimous statements as to the precise roles of each of the two petitioners. Ghulam Muhammad, Khadim Hussain and Jehangir Hussain P.Ws. Attributed the fatal injury in the abdomen of the deceased to Allah Wasaya petitioner but Mst Khurshid Begum in her statement Exh.D.D. Under section 164, Cr.P.C. Had deposed that Muhammad Sadiq petitioner was responsible for the infliction of that injury. This cast doubt as to who had caused the fatal injury to the deceased. Therefore, the appellate Court made the aforesaid alteration in the sentence awarded to Allah Wasaya petitioner.
9. Learned counsel for the petitioners attempted to argue before us that apart from the one fatal injury in the abdomen of the deceased the other two injuries were only on right index and middle fingers and that, therefore, there could be no common intention between the two petitioners to commit the murder of the deceased and hence section 34, P. P. C should not have been applied in the present case. We have carefully considered this argument of the learned counsel, but it is without any force. Admittedly the complainant party had gone with a Deg of rice on 27th of Ramzan with a compromising frame of mind to the house of the petitioners. According to the prosecution version the petitioners first refused to accept the rice then came down from the first floor of their house in the street both armed with Chhuris and caused injuries with their respective weapons to the deceased. The defence version to the effect that the complainant side was the aggressor had been rightly rejected as improbable. It is, therefore, evident that when both the brothers i.e , petitioners came down in the street armed with Chhuris and had attacked the deceased they had common intention,1 therefore, the application of section 34, P.P.C. Was properly made to` the instant case. In our considered opinion the case for reappraisal of` evidence on that account is not made out.