1. NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment of the Lahore High Court passed in Criminal Appeal No.249 of 1978 on 1-4-1980.
2. The relevant facts are that Nawab Din appellant alongwith his three sons, namely, Zafar Iqbal, Muhammad Anwar and Muhammad Aslam were tried by the Additional Sessions Judge, Sialkot, for the murder of Abdul Aziz and for murderous assault on Abdul Hamid P.W. The learned Additional Sessions Judge acquitted Muhammad Anwar but found the remaining three accused guilty of offences under sections 302/34, P.P.C. And 307/34, P.P.C. For the former offence he sentenced each one of them to imprisonment for life with a fine of Rs.1,000 (one year R.I. In case of default); for the later offence he sentenced each one of them to 7 years' R.I. And a fine of Rs.500 or 6 months' R.I. In dfault). On appeal to the High Court, Muhammad Aslam was acquitted but the conviction and sentences of Nawab Din and Zafar Iqbal appellants were upheld.
3. The background, in which the tragic incident resulting in the death of Abdul Aziz and grievous hurt to Abdul Hamid P.W. Took place, was that the deceased and his brother Abdul Hamid (P.W.7) were occupying some lands of Nawab Din appellant as tenants. Nawab Din was desirous of ousting Abdul Hamid (P.W.7) and had told him to vacate the land. However, Abdul Hamid (P.W.7) refused to do so and in order to protect his possession obtained an ex parte injunction from a Civil Court on 2-9-1975 to restrain Nawab Din appellant from evicting him from the land. He had even deposited Nawab Din's share of produce with the local Tehsildar in this connection.
4. This matter was still simmering when on 4-10-1975 at 2 p.m. Nawab Din appellant and his three sons Zafar Iqbal appellant. Muhammad Aslam and Muhammad Anwar (acquitted co-accused) allegedly let loose their cattles in the fields of the complainant. The complainant (Abdul Hamid P.W.7) objected to this whereupon Nawab Din appellant raised a Lalkara asking his sons to teach him (Abdul Hamid P.W.7) a lesson. On this, the three sons of Nawab Din attacked the complainant with Sotas and caused serious injuries upon him. His alarm attracted his brother Abdul Aziz (deceased) who was also given Sota blows by Zafar Iqbal (appellant) and Muhammad Aslam (acquitted co-accused) whereupon Abdul Aziz fell down and became unconscious. The occurrence was seen by Ghulam Qamaish, Ghulam Mohammad and Habibullah, who were present nearby.
5. The complainant and his brother Abdul Aziz were taken to the Civil Hospital at Pasrur where Abdul Aziz succumbed to the injuries on 6-10-1975. The F.I.R. In this case was based on the statement of Abdul Hamid (P.W.7) brother of the deceased made in the Civil Hospital, Pasrur, which was recorded by Amanat A.I, A.S.I. (P.W.11).
6. The Investigating Officer arrested the four accused on 10-10-1975 and recovered the Sotas from Zafar lqbal (appellant), Muhammad Aslam and Muhammad Anwar (acquitted co-accused) but these were not found to be stained with human blood; hence did not militate against them.
7. The case of the prosecution therefore rested entirely on the ocular testimony of Abdul Hamid (P.W.7), brother of the deceased, Ghulam Muhammad (P.W.8) and Habibullah (P.W.9). Ghulam Qamaish and Din Muhammad, who were mentioned in the F.I.R. As eye--witnesses, were given up.
8. Reliance was also placed on the medical evidence to corroborate the ocular testimony that the injuries suffered by the deceased and his brother Abdul Hamid (P.W.7) were blunt weapon injuries which could be caused by Sotas.
9. It may be mentioned, however, that Nawab Din appellant had also received some injuries during the incident about which no reference was made in the F.I.R. Nor any explanation given by the P.Ws.
10. The trial Court acquitted the third son of Nawab Din appellant, namely, Muhammad Anwar; while convicting Nawab Din and his two other sons. But on appeal, the High Court considering that the case of Muhammad Aslam (one of other sons of Nawab Din appellant) was not distinguishable from that of Muhammad Anwar also acquitted him. Thus, in this appeal it is only Nawab Din and his son Zafar Iqbal who are before us.
11. The learned Judge of the High Court while disposing of the appeal was of the view that the version of the prosecution was unsatisfactory inasmuch as it was completely silent on the point how Nawab Din received the injuries. On the other hand, the defence version that a fight took place between the parties over the cattle---s' trespass into the fields owned by Nawab Din but possessed by the complainant party seemed to be more plausible. However, the defence plea that the appellants beat up the complainant party in self-defence could not be accepted as the evidence on record did not establish any such right in them. According to the learned Judge, the occurrence appeared to be the result of a sudden fight which flared up when the cattles owned by Nawab Din trespassed into the fields in possession of Abdul Hamid (P.W.7). During the course of this fight Nawab Din was injured from the side of the accused party and the deceased and Abdul Hamid (P.W.7) were hurt on the side of the complainant party. He was further of the opinion that the assertion of Nawab Din appellant that Abdul Hamid (P.W.7) was armed with a Parani at the relevant time also appeared to be correct, in the light of the nature of injuries received by him.
12. However, taking into account the number and gravity of the injuries suffered by Abdul Aziz (deceased) and Abdul Hamid (P.W.7) the appellants had acted in a cruel manner; hence the provisions of exception (4) to section 300 of the Pakistan Penal Code were attracted. On this view of the matter while the conviction and sentence of Muhammad Aslam (whose case was found to be similar to that of Muhammad Anwar) set aside, the conviction and sentence recorded against Nawab Din and Zafar Iqbal appellants under sections 302 and 307 read with section 34, P.P.C. Were upheld and their appeal was dismissed.
13. Ch. Muhammad Anwar Bhinder, learned Counsel for the appellants in support of this appeal, pointed out that the learned Judge in Chamber had himself observed that:- "It will thus appear that the eye-witnesses have not given a full account of the occurrence." and that the learned Judge had also observed on paragraph 16 of his judgment .That the occurrence appeared to be the result of a sudden fight. Consequently, every one was responsible for his own acts. On these findings Nawab Din, who was attributed any part in causing injuries to either the deceased or to Abdul Hamid (P.W.7) could not be convicted under sections 302 and 307 read with section 34, P.P.C. It was further submitted that the case of Zafar Iqbal appellant and his two acquitted brothers was also indistinguishable inasmuch as the P.Ws. Had attributed sota blows to Zafar Iqbal appellant as well as to Muhammad Aslam and Muhammad Anwar (acquitted co- accused). However, while Muhammad Aslam and Muhammad Anwar were acquitted the conviction of Zafar Iqbal was maintained despite there being no additional evidence qua . Him and no reason had been given for not treating him at par with the acquitted co-accused.
14. We find weight in the submission of the learned counsel in so far as the case of Nawab Din appellant is concerned namely that on the findings recorded by the learned Judge in the High Court himself he could not be held to be liable for the injuries caused to Abdul Aziz (deceased) and Abdul Hamid P.W. Hence, his conviction under section 302/34, P.P.C. And section 307/34, P.P.C. Was not sustainable. However, there is not much force in the other submission of the learned counsel for the appellant that Zafar Iqbal appellant was also entitled to acquittal as his case was not distinguishable from the case of Muhammad Aslam and Muhammad Anwar (acquitted co- accused).
15. We observe that Muhammad Aslam and Muhammad Anwar have been given the benefit of doubt and it may well be that they were indeed present and had participated in the occurrence but were allowed the benefit of doubt as a measure of abundant caution. So far as Zafar Iqbal is concerned, he himself admitted his presence and participation in the occurrence in which Abdul Aziz and Abdul Hamid P.W.7 were brutally dealt with; the former losing his life while the latter suffered serious injuries, whereas only minor injuries were sustained by the father of Zafar Iqbal and he himself remained unscathed. He has already been given the concession of lesser sentence, which was the maximum benefit that could possibly be accorded to him. His convictions under section 302, P.P.C.
16. And section 307, P.P.C. Do not, therefore, require any interference. His appeal must, therefore, be rejected. However, the benefit of provision of Section 382-B Cr.P.C. May be given in computing the sentences that he has yet to undergo.
17. The result is that this appeal is partly allowed. The convictions and sentence passed against Nawab Din appellant are set aside and he shall be set at liberty, unless required in any other case.
18. However the appeal of Zafar Iqbal appellant is dismissed, subject to the' modification that he will be given the benefit of section 382-B, Cr..P.C. In the matter of computation of sentence and the sentences passed against him under section 302, P.P.C. And section 307, P.P.C. Will run concurrently.,