1. JAVID IQBAL, J.-- In this petition for leave to appeal seven persons namely Mushtaq Ahmad, Nazar Muhammad, Mazhar Hussain, Shabbir Hussain, Muhammad Sharif, Mukhtar Ahmad and Zulfiqar were tried and vide judgment of the Sessions Judge, Sialkot dated . 18th December, 1980 Muhammad Sharif, Mukhtar Ahmad and Zulfiqar were acquitted whereas the remaining four were convicted and sentenced as follows: All the four of them were convicted under section 302/34, P.P.C. For the murder of Muhammad Rafiq, and Mushtaq Ahmad petitioner was sentenced to death plus fine whereas the other three namely Nazar Muhammad, Mazhar Hussain and Shabbir Hussain petitioners were each sentenced to imprisonment for life plus fine. All the four were likewise convicted under section 307/34, P.P.C. For murderous assault on Muhammad Malik P.W.9, Muhammad Nawaz P.W.10, Muhammad Aslam P.W.11 and Muhammad Khaliq P.W.12 and each of them was sentenced to seven years' R.I. Plus fine on each count. In appeal a Division Bench of the Lahore High Court, Lahore maintained their convictions as well as sentences awarded to them.
2. It may be noted at this stage that two of the members of the accused party namely Mushtaq Ahmad and Nazar Muhammad petitioners have both sustained injuries in the present case.
3. Mushtaq Ahmad petitioner had five blunt weapon injuries on his person and one incised wound whereas Nazar Muhammad petitioner had five blunt weapon injuries on his person. In other words both these petitioners have in all sustained eleven injuries in the course of the occurrence which have been suppressed in the F.I.R..
4. The occurrence took place at 6 p.m. On 23rd August, 1979 partly at Puli Khannewali and partly at Puli Umar Shaheed within the area of Chak Samanwali at a distance of 8 miles from Police Station Saddar District Sialkot. The F.I.R. Was lodged by Muhammad Malik P.W.9 brother of the deceased at 10 p.m. On the same day and it was recorded by Tahir Mahmood Sub-Inspector P.W.15. Mushtaq Ahmad petitioner was arrested on 30th August, 1979 whereas the other three petitioners were arrested on 26th August, 1979. The recoveries in this case have been disbelieved. The prosecution in this case has produced five eye-witnesses of the occurrence namely Muhammad Malik P.W.9 brother of the deceased, Muhammad Khaliq P.W.12 another brother of the deceased, Muhammad Nawaz P.W.10, Muhammad Aslam P.W.11 and Muhammad Ahmad P.W.13. The last mentioned three eye-witnesses are not related to the deceased. Anyway Muhammad Malik, Muhammad Nawaz, Muhammad Aslam and Muhammad Khaliq P.Ws. Have all sustained injuries in the course of the occurrence besides the deceased in the instant case. The motive advanced by the prosecution is that Nazar Muhammad petitioner had asked for a Shikari hound from Muhammad Malik P.W. Who had delivered the same to him with the promise that it would be returned in 2/3 days time. The said Shikari hound belonged to one Suleman. On repeated demands Nazar Muhammad petitioner refused to give the dog back to Muhammad Malik P.W. Who informed Suleman accordingly.
5. Thereupon Suleman is stated to have himself gone to Nazar Muhammad petitioner and took the dog away. It was due to this insult that Nazar Muhammad petitioner nourished a grudge in his mind and this led to the occurrence. But the defence version respecting cause of the occurrence as stated by the petitioners in their statements before the trial Court is that Muhammad Malik P.W.
6. Was a bad character of the area and indulged in dog fights. Muhammad Aslam and Muhammad Nawaz P.Ws. Were his friends. They had belaboured three Machhis a day before the occurrence. On the day of occurrence these Machhis had come down to the shop of Muhammad Nawaz P.W. And picked up a quarrel with Muhammad Nawaz, Muhammad Malik and Muhammad Aslam P.Ws.
7. Because of the previous incident. Both the parties had dealt blows to each other. Further the deceased in the instant case had cut an indecent end dirty joke with the sister of the petitioners namely Mst. Kubra D.W. While she was going towards her house from the Dera and the fields lying adjacent to Puli Umar Shaheed. She raised an alarm. Mushtao Ahmad petitioner was the first to reach the spot and protested against the misbehavior of the deceased with the virgin girl. They quarreled with each other and also exchanged abuses. Thereafter the deceased brought a Chhuri and inflicted an incised injury therewith on the buttock of Mushtaq Ahmad petitioner. While he was about to give the second blow Nazar Muhammad petitioner intervened and caused an injury to the deceased. Thereafter Muhammad Khaliq P.W. And Muhammad Yusuf, not produced, come armed with Sotas and then both Mushtaq Ahmad and Nazar Muhammad petitioners as well as their servant Muhammad Yusuf while acting in the exercise of their right of self-defence as well as under grave and sudden provocation caused injuries to them.
8. According to the prosecution version the occurrence took place in the following manner: On the fateful day Muhammad Malik P.W. Along with Muhammad Aslam P.W. Was sitting at the shop of Muhammad Nawaz P.W. Near Ravi Link Puli Khannewali when the petitioners along with their companions came there armed with Chhuris and Sotas. Nazar Muhammad petitioner raised Lalkara that they would teach a lesson to them for taking back the dog and causing insult.
9. Thereupon Mushtaq Ahmad petitioner caused injury to Muhammad Malik P.W., his two companions caused injuries with their respective weapons to Muhammad Aslam, Muhammad Nawaz P.Ws. Etc. Nazar Muhammad petitioner gave injury with Chhuri to Muhammad Nawaz P.W. Muhammad Malik P.W. Then ran away from the place but the members of the accused party chased him until they arrived at Puli Umar Shaheed where Muhammad Malik P.W. Fell down. According to the prosecution version Muhammad Malik P.W. Was given blows by the petitioners and their companions with their respective weapons. Further when the deceased along with others came to rescue him Mushtaq Ahmad petitioner gave a blow with his Chhuri which fell on the left flank of the deceased. The other members of the accused party caused injuries with their respective weapons to the members of the complainant party. It may be noted here that in the prosecution version as given in the F . I . R .
10. Or as stated in the statements under section 161 f the Code of Criminal Procedure of the eye- witnesses the injuries received by Mushtaq Ahmad and Nazar Muhammad petitioners have been suppressed as they find no mention therein.
11. It was argued by the learned counsel or the petitioners that material improvements were made by the eye-witnesses in their statements at the trial stage when it was stated in the cross- examination by Muhammad Malik P.W. That Muhammad Khaliq P. . Had inflicted injuries with a Sota to Mushtaq Ahmad and Nazar Muhammad petitioners. He was confronted with his statement in the F.I.R where it was not so mentioned but he stated that he had so stated in his statement under section 154 Cr.P.C. Learned counsel took us through Exh, P.X. At p.99 of the High Court paper book which was originally a statement under section 161, Cr.P.C. Made by the deceased' himself while he was still alive. This statement was considered as dying, declaration after his death. But even in this statement no mention is male as to how Mushtaq Ahmad and Nazar Muhammad petitioners have received injuries in the instant case. It was then argued that the deference version had not been properly attended to by the trial Court or even the appellate Court although four D.Ws. Including Mst. Kubra had been produced by the defence. It is argued that Mushtaq Ahmad and Nazar Muhammad petitioners did not deny their participation in the occurrence but their version of the occurrence has not been properly app raised particularly when the injuries sustained by two aforementioned petitioners had been suppressed.
12. We have carefully considered the arguments of the learned counsel and grant leave to consider as to whether the defence a version in the instant case was the correct version particularly hen the injuries caused to Mushtaq Ahmad and Nazar Muhammad petitioners had been suppressed in the F.I.R. And had no mention in the statements of the eye-witnesses under section 161 of the Code of Criminal Procedure.