1. JAVID IQBAL, J.--These two petitions for leave to appeal namely Criminal Petition No. 33 of 1983 and Criminal Petition No. 39 of 1983 are connected and, therefore, these are being taken up together.
2. Criminal Petition for Leave to Appeal No. 33 of 1983 has been filed by Muhammad Khan, Bashir and Saru petitioners against the judgment of a Division Bench of the Lahore High Court Lahore dated 18th December, 1982 whereby conviction of Saru petitioner under section 302/34, P.P.C. Was maintained and the sentence of death to him on two counts was confirmed along with sentences of fine as well as order of paying compensation, and while upholding the conviction of Muhammad Khan and Bashir petitioners under section 302/34, P.P.C. On two counts their sentences were reduced from death to imprisonment for life on two counts. The substantive sentences of Muhammad Khan and Bashir petitioners on two counts were ordered to run concurrently. Their sentences of fine were maintained alongwith the order with regard to the payment of compensation. They were given the benefit of section 382-B, Cr.P.C. Furthermore the conviction as well as the sentences awarded to the three petitioners under section 201/34, P.P.C. By the trial Court were set aside.
3. Criminal Petition for Leave to Appeal No. 39 of 1983, has been filed by Mst. Naziran Bibi petitioner daughter of Lal Khan deceased and niece of Sardar deceased in the instant case. It is against the acquittal of all the accused including the three petitioners under section 201/34, P.P.C. It is also directed against the acquittal under section 302/34, P.P.C. Of Hakam A.I and Mumtaz co-accused who were acquitted by the trial Court as well as Mian Muhammad Din co-accused who was acquitted by the Division Bench of the Lahore High Court, Lahore. Furthermore it is for enhancement of sentences of Muhammad Khan and Bashir petitioners to death. However, before us learned counsel for Mst. Naziran Bibi petitioner submitted that he would not press this petition against the acquittal of Hakam A.I and Mumtaz co-accused although he would press the petition against the acquittal of Mian Muhammad Din co-accused.
4. Briefly the facts are that six accused namely Muhammad Khan, Bashir, Saru, Mian Muhammad Din, and Hakam A.I and Mumtaz (whose names were not mentioned in the F.I.R. But instead was mentioned Bashir Tangawala who was not challaned) were tried for the double murder of Lal Khan and Sardar both brothers by the Sessions Judge Gujrat who acquitted Hakam A.I and Mumtaz co- accused but convicted the remaining four under sections 302/34 and 201/34, P.P.C. Under section 302/34, P.P.C. Each of them was sentenced to death plus fine on each of the two counts as well as to pay compensation. Under section 201/34, P.P.C. Each of them was sentenced to undergo one year's R.I. On each count. In appeal the Division Bench of the Lahore High Court, Lahore acquitted Mian Muhammad Din and convicted and sentenced the three petitioners as it has been stated above.
5. Muhammad Khan and Bashir petitioners were armed with spears whereas Saru petitioner was armed with gun. Mian Muhammad Din acquitted co-accused was likewise armed with a spear. The two deceased in the instant case are Lal Khan and Sardar and both are brothers. The motive for crime is that son of Muhammad Khan petitioner namely Muhammad Ashraf had been murdered and in his murder case five persons namely Boota son of Sardar deceased, Shera brother of Lal Khan and Sardar deceased, and Aslam. Akram and Ashiq sister's sons of the two deceased were challaned. Lal Khan and Sardar the two deceased were not directly involved in that murder case but the prosecution version is that they had been done to death in order to avenge the murder of Muhammad Ashraf deceased. The present occurrence took place on 18th October, 1978 at Deegarwela on the Dera of the deceased in village Sandanwala, Police Station Paharrianwala at a distance of about 10 1/2miles from the place of occurrence. F.I.R. Was lodged by Mst. Naziran Bibi P.W.9 at 5 p.m. On 18th October, 1978. The date of arrest of Muhammad Khan and Bashir petitioners is 23rd October, 1978 and that of Saru petitioner is 23rd November, 1978. The prosecution witnesses are mostly women and these are Mst. Naziran Bibi P.W.9 daughter of Lal Khan deceased and niece of Sardar deceased, Mst. Zainab Bibi P.W.10 widow of Lal Khan deceased and sister-in-law of Sardar deceased and Mst. Sharfan Bibi P.W.11 widow of Sardar deceased. They all supported the prosecution version which is to the effect that they were present at the Dera of the two deceased while Lal Khan deceased at that time was sowing fodder seeds in the field close to the Dera whereas Sardar deceased was offering his prayers. Muhammad Khan and Bashir petitioners as well as Mian Muhammad Din acquitted' co-accused armed with spears, Saru petitioner armed with gun and Bashir Tangawala (not challaned) armed with gun came on the mares. Muhammad Khan and Bashir petitioners as well as Mian Muhammad Din acquitted co-accused tied the hands of the two deceased whereas Saru petitioner and Bashir Tangawala pointed their guns towards the two deceased. Thereafter, Muhammad Khan petitioner asked Saru petitioner and Bashir Tangawala to teach a lesson to the two deceased for committing the murder of Muhammad Ashraf deceased.
6. On this Saru petitioner and Bashir Tangawala fired at the two deceased through their respective fire-arms as a result of which the two deceased fell down and died on the spot. Thereafter the accused party threatened the ladies not to come near and thus, placing the two dead bodies on their mares they went away. The two dead bodies in the instant case were not recovered. But besides the eye-witnesses of the occurrence three independent Wajtakkar witnesses namely Sai P.W.12, Aslam P.W.13 and Shaikh Ahmad P.W.16 were produced who saw the accused party taking away the two dead bodies on the mares. The recovery evidence particularly in respect of Saru petitioner has been relied on by the trial Court. From the spot two crime empties were picked up and one of them subsequently matched with the gun P.12 recovered at the instance of Saru petitioner. On the other recoveries reliance has not been placed. The case of the prosecution is based on the ocular testimony of the three women eye-witnesses supported by the Wajtakkar witnesses as well as by the motive version.
7. Learned counsel for the petitioners argued that because of the inimical background the three eye- witnesses were interested witnesses and that corroboration of their testimony only comes forth in respect of Saru petitioner and not the others. Further according to the learned counsel Saru petitioner had no motive to commit the crime. The trial Court as well as the appellate Court convicted and sentenced Saru petitioner for numerous reasons which have been given in their judgment. The eye-witnesses account in respect of the part ascribed to him is corroborated by the recovery evidence, by his absconsion after the occurrence as well as by registration of another criminal case as against him. In respect of the other two petitioners it was contended that there was no corroboration of the statements of the eye-witnesses about the role ascribed to them, and that furthermore the ocular version had not been accepted by the learned Division Bench of the Lahore High Court, Lahore in respect of Mian Muhammad Din co-accused although he was ascribed the same part. It was, therefore, submitted that if Mian Muhammad Din co-accused could be acquitted, then they should have also been acquitted. The conviction as well as the sentences awarded to the two petitioners other than Saru petitioner was for the reason that the job could have not been performed by a single accused person like Saru petitioner and the Wajtakkar witnesses evidence was to the effect that the two dead bodies were being taken on the mares by the petitioners. Therefore, there was no doubt in the mind of the learned Division Bench of the Lahore High Court, Lahore that they had participated in the commission of crime.
8. We have carefully gone through the judgment of the learned Division Bench of the Lahore High Court, Lahore and also examined the statements of the eye-witnesses and Wajtakkar witnesses in the instant case. We have likewise heard the learned counsel for the parties. Our considered view is that the learned Division Bench of the Lahore High Court, Lahore has arrived at its conclusion after a very fair and proper appraisal of the evidence in this case and, therefore, no interference is called for.
9. The result is that both Criminal Petition No. 33 of 1983 and Criminal Petition No. 39 of 1983 are dismissed.