MIAN BURHANUDDIN KHAN, J.-- This order shall dispose of the aforementioned Cr.P.L.As. Nos. 327 and 336 of 1982 and Jail Petition No. 80 of 1982 as all these three petitions are directed against the same impugned judgment of the learned Lahore High Court passed in Criminal Revision No. 977 of 1979, Criminal Appeals Nos.1255 and 1256/1979 and Murder Reference No. 91 of 1980.
2. By Cr.P.L.A. No. 327 of 1982 Muhammad Latif, petitioner seeks leave to appeal against the impugned judgment, praying for enhancement of sentence, awarded to respondents Muhammad Ayub, Muhammad Ilyas and Zahoor Ahmad from life imprisonment to death.
By Cr.P.L.A. No. 336 of 1982 Muhammad Ilyas, petitioner seeks leave to appeal against the same impugned judgment dated 17-5-1982 on the ground that the sentence awarded to him, is excessive.
By Jail Petition 80 of 1982 Muhammad Ayub, Muhammad Ilyas and Zahoor Ahmad pray for their acquittal.
3. Accused/ respondents (Cr.P.L.A. No. 327 of 1982) Muhammad Ayub, Muhammad Ilyas and Zahoor Ahmad were tried by the learned Additional Sessions Judge, Lahore under section 302 read with section 34, P.P.C. For committing the murders of Muhammad Ayub and Muhammad Yaqoob. The learned trial Judge convicted them on two counts and sentenced Muhammad Ayub to death and fine of Rs.4,000 while Muhammad Ilyas and Zahoor Ahmad were sentenced to imprisonment for life and fine of Rs.2,000 each. Appeal of the accused/ respondent was heard by the learned High Court Judges and vide the impugned judgment, their conviction was altered from 302/34, P.P.C. To section 304 (Part I), maintaining life imprisonment awarded to Muhammad Ilyas and Zahoor Ahmad, and converting death sentence, awarded to Muhammad Ayub, to life imprisonment
4. Case against the accused/ respondent is that some agricultural land, under the cultivation of the parties, situate in the area of village Harbanspura, is irrigated by an old common watercourse which leads to the land of the complainant party through the fields of Muhammad Ayub accused respondent. A day prior to the occurrence, the accused demolished a portion of the said watercourse. On the fateful day at about 4 p. m. Muhammad Ayub deceased and Muhammad Yaqub deceased were repairing the watercourse when Muhammad Ayub, Muhammad Ilyas and Zahoor Ahmad came there on a tractor. Muhammad Ayub accused warned the two deceased that they should not interfere with the watercourse and they should construct a new one on the common southern boundary line, to which the deceased replied that they were repairing the old watercourse as it was theirs since long. This developed into exchange of hot words between the parties. On hearing the noise Muhammad Latif, complainant P. W. And his father Nur Elahi who were present at their Dera, came to the spot and so did Muhammad Siddiq P.W. And in their presence Muhammad Ayub accused/ respondent dealt a dagger blow to Muhammad Ayub deceased who, in self-defence, gave a Kassi blow from the blunt side, to Muhammad Ayub accused which landed on the left shoulder of the later. Zahoor Ahmad gave dagger blow on the left arm of Muhammad Ayub deceased. When Muhammad Yaqoob deceased stepped forward to rescue his brother, Muhammad Ilyas accused gave a dagger blow on his abdomen The accused dealt more blows on the two deceased when they started running towards their Dera. Muhammad Ayub deceased fell down and breathed his last. The accused got on the tractor and sped it away. Muhammad Yaqoob was still alive, he was taken to the hospital leaving Muhammad Siddiq and Nur Elahi P.Ws. With the dead body of Muhammad Ayub deceased. Muhammad Latif proceeded to the Police Station, Mughalpura and lodged the report Exh. P. K. At about 5-30 p. m. Muhammad Yaqoob deceased also succumbed to his injuries late in the night.
5. Dr. Sabir A.I P.W.5 performed the post-mortem examination on the dead body of Muhammad Ayub deceased and found the following injuries on it:--
(i) Stab wound 2.3/4" x 3/4" going deep transversally on the right side of chest 4" below and outer to the nipple.
(ii) Stab wound 2-- x 3/4" on the outer lower left arm communicating with wound 3/4" x --in the lower half of left arm apart from each other.
6. The same doctor medically examined Muhammad Ayub accused/ respondent and found a contused swelling 5" x 4" on the back of left shoulder and incised wound 2" x 1/3" vertically oblique on the back inner lower and left forearm extending to the wrist.
7. The learned trial Court held the accused/ respondent Muhammad Ayub responsible for the fatal blow caused to Muhammad Ayub deceased, and being elder of the two co-accused to the initiative and gave first fatal injury with dagger to Ayub deceased and, he, therefore, deserves no leniency and awarded his death sentence on two counts under section 302 read with section 34, P.P.C. As regards the other two accused/ respondent the finding is that Zahoor had not caused any fatal injury on the persons of the two deceased and he seems to have acted under the influence of his father during the occurrence, and, therefore, he was awarded life imprisonment, and held that Muhammad Ilyas accused had no motive to commit the murder of the two deceased, and he too acted under the influence of his co-accused, and was awarded life imprisonment on two counts.
Regarding the ocular evidence the learned trial Court held that Muhammad Latif P.W.1, Muhammad Siddiq P.W.2 and Noor Elahi P.W.3 were present at the spot and had witnessed the occurrence and valuable corroboration in the shape of recoveries, motive and medical evidence was available against all the three accused and the discrepancies and contradictions pointed out by the learned counsel were considered of no consequence. The plea of self-defence was also rejected by the learned trial Court holding that it was an after thought.
8.On appeal the learned High Court Judges observed in paragraph 13 of the impugned judgment as under: "The circumstances rather suggest that the occurrence happened all of a sudden when the deceased persons were repairing/ clearing the water-course. Nur Elahi P.W. Stated that his deceased sons told the accused persons that 'they will construct the Khal because they had to irrigate their land during the night' upon which the accused persons replied that they would not allow them to construct the Khal but the deceased persons insisted that they will construct the same. In his statement, before the Committing Court with which he was duly confronted, he had stated that there was an exchange of abuses between the parties. He admitted that an altercation took place between his deceased sons and the accused persons at the time of occurrence. It is also in his statement that at the time of 'the start of the fight there were Kassis in the hands of Ayub and Yaqoob deceased persons'. The facts and circumstances of the case thus lead to the conclusion that there was no pre-meditation and a sudden quarrel resulted in a fight between the parties in which both the deceased persons on one side, and Muhammad Ayub appellant from the accused side, suffered injuries ...."
The learned Judge in the same course of discussion further observed as follows: - "Muhammad Ayub appellant had two injuries on his person. In the circumstances, the appellants cannot be held to have been any undue advantage of the situation or acted in a cruel or unusual manner. We are, therefore, of the view that Exception 4 to section 300, P. P. C. Is attracted to the facts of this case and the offence committed by the appellants falls within the ambit of section 304 (Part 1) P.P.C. We, therefore, alter their conviction from section 302/34, P.P.C. To section 304 (Part I) read with section 34 of the same Code."
These observations are based on correct appraisal of the evidence anus we find no reason to interfere with the same. Therefore, we refuse to grant leave in Cr. P.L. A. No.327 of 1982, and, the same is, consequently, dismissed.
9. As regards Cr.P.L.A. No. 336 of 1982 the learned counsel stated at the Bar that the petitioner Muhammad Ilyas has died in jail. This petition has become infructuous. Accordingly, the petition is dismissed.
10 Jail Petition No. 80 of 1982 arise out of the facts of the same case, also stands dismissed for the reason that the learned High Court Judges have considered the question of sentence, awarded to petitioners Muhammad Ayub, Muhammad Ilyas and Zahoor Ahmad, and have altered the conviction of the accused /petitioner from section 302, P.P.C. To section 304 (Part I), P.P.C. Giving them maximum benefit. Petition dismissed.