1. JAVID IQBAL, J.--Criminal Petition for Leave to Appeal No.62 of 1983 filed by Sarwar and three other convicts and Criminal Petition for Leave to Appeal No.60 of 1983 filed by Muhammad Fazal complainant against Sarwar etc. Respondents are connected as the first is against the conviction and sentence whereas the second is for enhancement of the sentence awarded to the convicts as well as against acquittal of two co-accused namely Suleman and Arshad. These are, therefore, being taken up and disposed of together.
2. Briefly the facts are that Sarwar, Nur Alam, Muhammad Arif and Ahmad convicts along with Suleman and Arshad acquitted co-accused were tried under section 302/149/148, P. P. C for the murder of Muhammad Alam son of Nek Alam and vide judgment, dated 22nd April 1981 of the Additional Sessions Judge Gujrat, Sarwar and Nur Alam were awarded death sentence plus fine each whereas the remaining four were awarded life imprisonment plus fine each, under section 302/149, P.P.C. They were also convicted under section 148. P.P.C and each of them was sentenced to one year's R.I. With the direction that the sentence of imprisonment shall run concurrently. In appeal the Lahore High Court Lahore vide judgment, dated 21st December 1982 acquitted Suleman and Arshad and maintaining the sentence of life imprisonment plus fine each to Muhammad Arif and Ahmad altered the sentence of Nur Alam and Sarwar from death to imprisonment for life to each plus fine.
3. The occurrence took place on 8th April, 1980 at Chahwela within the area of village Poranwala, Tehsil Kharian, District Gujrat. F.I.R. Was lodged by Muhammad Fazal brother-in-law of the deceased at 12 noon on the same day, and it was recorded by Muhammad Rashid M.H.C. P.W.3. All the members of the accused party were arrested on 14th April 1980. The recoveries in this case are not relevant as these were in the form of Sotas which were not bloodstained and, therefore, have no corroborative value. According to the medical evidence the deceased had 14 injuries on his person in the form of lacerated wounds and bruises. Out of these 2/3 bruises on the left side of back of chest measuring 6" x 2" (injury No.10) were declared grievous injury and dangerous to life.
4. All the injuries had been caused with blunt weapon. Death was due to haemorrhage and shock as a result of three injuries which had been declared sufficient to cause death in the ordinary course of nature. The motive has been disbelieved in this case by the Court. The case of the prosecution is based on the ocular testimony of three eye-witnesses namely Muhammad Fazal P.W.6 brother-in- law of the deceased, Fazal Hussain P.W.7 son-in-law of the deceased and Khalid Hussain P.W.8 who is an unconnected and independent witness. According to the prosecution version the deceased was proceeding towards the village with a bundle of fodder on his head. When he reached near the pond Muhammad Arif convict armed with a Sota held him from his back and threw him in the nearby pond. In the meantime the other members of the accused party all armed with Sotas came out from the house of one Ibrahim where they were sitting and attacked the deceased with their respective Sotas. Thus, while the deceased was in the fallen condition all of them gave him a merciless beating causing injuries to him on different parts of the body. The occurrence was witnessed by the three eye-witnesses on whose alarm the accused party ran away leaving behind the deceased who subsequently died in the hospital on 10th April, 1980.
5. The four convicts in this case have filed a petition for leave to appeal against their conviction and sentence (Cr.P.62/83) whereas Muhammad Fazal complainant has filed petition for leave to appeal (Cr.P.60/83) for enhancement of their sentence as well as against the acquittal of the two co-accused namely Suleman and Arshad. It is contended on behalf of the petitioners in Cr.P.62/83 that according to the medical evidence there was only one dangerous injury which was also grievous on the person of the deceased and that, therefore it was not proper on the part of the Courts below to apply section 34, P.P.C. To the instant case. The contention is that only that person out of the members of the accused party should have been held liable who was attributed injury No.10. It was also contended that if the ocular testimony had been disbelieved in the case of two acquitted co-accused it should also have not been relied upon in respect of the petitioners.
6. Learned counsel for the complainant on the other hand contended that the nature and number of injuries on the person of the deceased clearly indicated that the beating was sustained and merciless and consequently a common intention had developed among the members of the accused party while they were mercilessly belabouring the deceased, as rightly observed by the appellate Court. It was, therefore, argued that since all the members of the accused party had intentionally given blows with their respective Sotas to the deceased there was no justification for acquitting Suleman and Arshad and that the sentence of the present petitioners should also be enhanced to death.
7. We have carefully examined the arguments of the learned counsel for both the sides. According to the medical evidence death had resulted due to three injuries namely 7, 8 and 10, and even injury No.10 is not single injury but a group of injuries. Then we note that the ocular testimony is consistent about the part ascribed to the petitioners by the eye-witnesses and one of them Khalid Hussain P.
8. W. Was a disinterested eye-witness. Therefore, there is no reason why they should have not been relied upon so far as the part ascribed to the petitioners was concerned. All the eye-witnesses attributed specific parts to the four petitioners but Suleman and Arshad acquitted co-accused were included in the general beating alleged to have been given by all of them to the deceased.
9. However specific injuries were caused by Sarwar, Nur Alam, Muhammad Arif and Ahmad petitioners, and it was in this background that the aforesaid two were given the benefit of doubt and acquitted. The appellate Court was correct tol arrive at the conclusion that it was not a case where the benefit of doubt should have been extended to all the members of the accused party on the ground that the actual assailants could not be differentiated from those who might have been falsely implicated.