1. JAVID IQBAL, J.--Jail Petition for Leave to Appeal No.77-R of 1983 and Criminal Petition for Leave to Appeal No.271 of 1983 are connected and, therefore, they are being taken up together. Jail petition for leave to appeal has been filed by Muhammad Sarwar and Muhammad Nazir convict petitioners against their conviction and sentence whereas Criminal Petition for Leave to appeal No.271 of 1983 has been filed by Ghulam Muhammad complainant for enhancement of sentence awarded to the petitioners Muhammad Sarwar and Muhammad Nazir as well as against acquittal of their co- accused namely Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid under section 302/149, P.P.C.
2. Briefly the facts are that Muhammad Sarwar and Muhammad Nazir petitioners along with Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid acquitted co-accused were tried under section 302/149/148, P.P.C for the murder of Ghulam Rasul and vide judgment, dated 28th March 1981 of the trial Court Muhammad Sarwar and Muhammad Nazir petitioners were awarded death sentence plus fine whereas the remaining four were awarded life imprisonment plus fine each under section 302/149, P.P.C. They were also awarded one year's R.I each under section 148, P.P.C. In appeal the Lahore High Court Lahore while maintaining the conviction of Muhammad Sarwar and Muhammad Nazir petitioners under section 302, P.P.C each, altered their sentence from death to imprisonment for life plus fine. So far as the remaining four of the co- accused were concerned their conviction under section 302/149, P.P.C as well as sentence awarded to them thereunder were set aside but instead were convicted under section 323, P.P.C. And each of them was sentenced to undergo the period of imprisonment which they had already undergone.
3. Thus, they were set at liberty. The conviction and sentence recorded under section 148, P.P.C.
4. Against all of them was likewise set aside.
5. The occurrence took place on 21st May, 1976 at sunrise time in a field of village Nawan Lok at a distance of 4 miles from Police Station Sadar, Gujrat. The F.I.R. Was lodged by Ghulam Muhammad brother of the deceased at about 7 a.m. On the same day and it was recorded by Syed Altaf Hussain S.I. After the arrest of the members of the accused party, Sotas were recovered from Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid and revolvers from Muhammad Sarwar and Muhammad Nazir petitioners. But the Sotas were not found to be bloodstained and fire-arms were not sent to the forensic science laboratory. These recoveries, therefore, are of no corroborative value. There are three eye-witnesses of the occurrence namely, Ghulam Muhammad P.W. Brother of the deceased, Allah Ditta P.W. Brother-in-law of the deceased and Mst. Bibi sister of the deceased. The motive is that Javid a depot-holder in the village had refused to give sugar to the complainant party 5/6 months before the present occurrence. The nephew of Ghulam Muhammad P.W. (first informant and brother of the deceased) asked for sugar but instead he got abuses from Javid. Therefore, the parties ceased to be on speaking terms. The other motive was that about a month or so before the present occurrence Muhammad Sarwar petitioner brought his cattle to the tube-well of Ghulam Muhammad P.W. For drinking water. The deceased objected to that and this led to a quarrel. Muhammad Sarwar petitioner is stated to have abused the deceased who in retaliation slapped him. Thus, Muhammad Sarwar petitioner and his companions were offended.
6. The prosecution version is that on the day of occurrence Ghulam Muhammad P.W. Came out of his house for toilet and at that time the deceased and Mst. Bibi were on their way to Dera. When they reached near the field of one Kazim A.I Shah, from behind tree came out all the members of the accused party out of whom Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid were armed with Sotas whereas petitioners Muhammad Sarwar and Muhammad Nazir were armed with revolvers. They all emerged out raising Lalkaras and attacked the deceased. The deceased ran and covered some distance but was encircled by the accused party. Muhammad Nazir and Muhammad Sarwar petitioners both fired at the deceased through their fire-arms whereas the other four attacked him with their respective Sotas. The deceased received 12 injuries at thehands of the accused party including two injuries caused by fire-arms whereas the other injuries had been caused by blunt weapon. The occurrence was witnessed by Ghulam Muhammad and Mst. Bibi who raised alram. In the meantime Allah Ditta also arrived at the scene of crime and witnessed the same. The accused party after murdering the deceased ran away.
7. It was contended by the learned counsel for Ghulam Muhammad complainant that in the impugned judgment at page 27 (Cr.P.No.271 of 1983) the finding of the Lahore High Court was that the eye-witnsses werepresent at the spot and that their evidence inspired confidence and the same could not be ruled out, but despite the same the learned Judges proceeded to acquit the four co-accused of the charge under section 302/149, P.P.C. For the reason that the injuries noticed by the doctor on the person of the deceased caused with blunt weapon were mere contusions and were simple in nature and that this was considered as a ground that each of the members of the accusedparty was only individually liable. It was submitted that in' this background there was no justification in setting aside the convictions, and sentences recorded by the trial Court under sections 148 and302/149,P.P.C. Against Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid and to hold them guilty only under section 323, P.P.C. Or to sentence them thereunder for the period already undergone by each of them. It was next submitted that while maintaining the conviction of Muhammad Sarwar and Muhammad Nazir petitioners under section 302, P.P.C. There was likewise no justification in altering their sentence of death to imprisonment for life merely on the ground that the immediate cause of the commission of offence was not proved.
8. We have heard the learned counsel and we grant leave to appeal in Petition for Leave to Appeal No. 271 of 1983 to consider the contentions raised by the learned counsel for the petitioner-- complainant for re-appraisal of the evidence in the instant case for safe dispensation of criminal justice. Leave is also granted in Jail Petition for Leave to Appeal No.77-R of 1983 to Muhammad Sarwar and Muhammad Nazir petitioners.
9. Bailable warrants of arrest to issue against Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid respondents returnable to the District Magistrate, Gujrat in the sum of Rs.30,000 each, with two sureties each in the like amount.