1. MUHAMMAD AFZAL ZULLAH, J.--In these three petitions, leave to appeal has been sought from judgment, dated 24-1-1982 of the Lahore High Court; whereby in a case of murder and hurt the appeal filed by the convicts, was partly allowed. The death sentence awarded to Nawab Din petitioner, was reduced to life imprisonment. The convictions of the remaining accused with life imprisonment under section 302, P.P.C. As also other convictions and sentences, were maintained.
2. Criminal Petition No. 166 of 1982 has been filed by Nawab Din convict, while Cr. P. No. 278 of 1982 is by Abdul Rehman, Ahsan and Nek Muhammad convicts and Criminal Petition No. 152 of 1982 has been filed by Khushi Muhammad complainant for enhancement of sentence of Nawab Din convict.
3. Criminal Petition No. 278 of 1982 is barred by time. For the reasons mentioned in the application, in this behalf, we condone the delay.
4. The prosecution case was that on the morning of the date of occurrence which took place on 5-9- 1978 at 9 a.m., the buffalo of Allah Rakha deceased damaged the crop of the accused. An altercation then ensued between the deceased and Nawab Din accused. Shortly thereafter, the deceased, his father Khushi Muhammad (complainant) and his brother Abdul Sattar were returning from the Eid Gah after the Eid prayers when near a graveyard all the four accused, namely, Nawab Din, Abdul Rehman, Ahsan and Nek Muhammad armed with Lathis suddenly appeared from a sugarcane field and after uttering a Lalkara attacked Allah Rakha deceased, Abdul Sattar P.W. And Allah Ditta (not examined) were also given injuries. Muhammad Din and Yaqoob (not examined) also saw the occurrence. The defence plea as contained in the statement of Nawab Din was as follows: "On the morning of 5-9-1978 I and my brother Ishaq, had gone to bring fodder from our Chari field.
5. Muhammad Ishaq started cutting Chari, while I went on a round of my other fields. Suddenly I heard a row. I saw that Allah Rakha deceased had let loose his buffaloes in our Chari field and my brother Ishaq was quarreling with Allah Rakha as the former was insisting that he would take the buffaloes of Allah Rakha to the cattle pond since the buffaloes had extensively damaged the Chari crop. I was still on my way when I found that Allah Rakha and Ishaq had grappled with each other and Allah Rakha, being of a stronger built than Ishaq, succeeded in flooring Ishaq on the ground and started pressing the neck of Ishaq with his both hands. I shouted at Allah Rakha to release Ishaq. But he did not release him. At that time I was carrying an ordinary cattle driving stick with me. I dealt J stick blows on his arm and back, but Allah Rakha did not release Ishaq. I then fearing that Ishaq would be killed gave one blow on his head as a result of which he fell aside. In the meantime many persons of the village gathered. They removed Allah Rakha on a Charpai first to his house and then for treatment to the hospital but on the way near the graveyard he breathed his last. I myself reported the matter to the police, but the police in collaboration with the complainant party involved me and the co-accused in this case."
6. Muhammad Ishaq D.W. Was examined in defence.
7. Out of three eye-witnesses, Khushi Muhammad and Abdul Sattar the father and brother respectively of Allah Rakha were relied upon. The testimony of Muhammad Shafi another eye- witness whose name is not mentioned in the F.I.R. Was kept out of consideration. Sotis were recovered from all the accused but they were not connected with the crime. Accordingly, on the sole testimony of the father and brother of the deceased all the four accused were held guilty under sections 302/34 and 323/34, P.P.C. Nawab Din was awarded sentence of death and fine of Rs.2,000 under the charge of murder and for causing hurt he was awarded six months' R.I. The remaining accused were awarded life imprisonment and sentence of fine under the charge of murder and six months' R.I. For the charge of simple hurt. Except for the reduction of sentence of Nawab Din from death to imprisonment for life the High Court, on appeal, maintained all the convictions and sentences.
8. Learned counsel has taken us through the relevant pieces of evidence in order to show that the initial blame for the entire occurrence was admittedly on the deceased side. He has also tried to show that in order to make it a graver offence the two interested eye-witnesses Khushi Muhammad and Abdul Sattar who are father and brother respectively of the deceased, split up one occurrence into two. He has also contended that in the circumstances of this case conviction under section 302, P. P. C . Could not be maintained and in any case section 34, P.P.C. Would not be attracted because admittedly there was no previous enmity nor there was any pre-meditation or pre-concert. With regard to the next question as to who caused the fatal injuries to Allah Rakha deceased, learned counsel stated that the interested witnesses tried to improve the case at the trial by attributing the two fatal injuries to Nawab Din and Ahsan petitioners while in the F.I.R. No fatal injury was attributed to Ahsan.
9. Learned counsel for the complainant argued that Nawab Din acted with vengeance and caused very serious injuries to the deceased, then sentence of death awarded to him, therefore, should have been maintained.
10. The learned Judges of the High Court agreeing with the defence counsel on question of role attributed to Ahsan observed that even if he had not inflicted any injuries to the deceased still he was liable for the death by application of section 34, P . P. C . For the reason that he was also armed with a stick and caused injuries to the witnesses. On question of sentence they agreeing with the defence counsel observed that Nawab Din appellant's case was not of extreme penalty for the reason that the deceased had damaged the Chari crop of Nawab Din appellant and he also exchanged abuses when Nawab Din appellant took exception to it.
11. After hearing both the learned counsel we do not find any justification for granting leave to appeal to Nawab Din convict nor there is any justification to enhance his sentence as the reduction of sentence by the High Court is based on sound principle. His petition for leave to appeal (Cr. P. No. 166 of 1982) and the petition of the complainant (Cr. P. No. 152 of 1982) are accordingly dismissed.
12. Criminal Petition 278 of 1982, however, is allowed to re-appraise the evidence in so far as the culpability as also the sentence of Abdul Rehman, Ahsan and Nek Muhammad petitioners, is concerned. If ultimately it is found that section 34, P.P.C. Is not attracted in the circumstances of this case, these three petitioners in that eventuality now would have served more sentence than they deserved. We accordingly allow bail to them. They shall accordingly be released if not required in any matter, on furnishing of bail bonds in the sum of Rs.10,000 each with one surety each in the like amount to the satisfaction of the learned Ilaqa Magistrate.