1. JAVID IQBAL J.-- Criminal Petition for Leave to Appeal No.301 of 1983 and Criminal Petition for Leave to Appeal No.324 of 1983 are connected as these challenge the same judgment of the Lahore High Court Lahore dated 11th July 1983. These are therefore being taken up and disposed of together.
2. Criminal Petition for Leave to Appeal No.324 of 1983 has been filed by Akbar petitioner as against Noori and 15 other respondents for enhancement of their sentence and against acquittal of those who had been granted the benefit of doubt. But the learned counsel for Akbar petitioner- complainant submitted, that he had been instructed to withdraw this petition as there had been a compromise between the parties. On the basis of the statement of the learned counsel Criminal Petition for Leave to Appeal No.324 of 1983 is hereby dismissed as withdrawn.
3. Now there remains Criminal Petition for Leave to Appeal No.301 of 1983 which is being taken up. This has been filed by Noori, Ahmad, Yara, Anara son of Shera, Ghulam Rasul, Umra, Anwar and Yaqub petitioners who along with seven others namely Ahara son of Ghulam Rasul, Pathani, Dosa, Shera son of Sardara, Shera son of Sardara alias Bhagi, Bati and Chakri were tried under sectipn 302/307/ 149/148, P.P. C. By the Additional Sessions Judge Gujrat who vide his judgment dated 9th February 1980 convicted the eight petitioners plus Anara son of Ghulam Rasul and Pathani under section 302/149, P.P.C. And sentenced each of them to life imprisonment plus fine. They all were convicted under section.325/149, P.P.C. And sentenced to two years' R.I. Each. They were likewise convicted under sections 323/149, P.P.C. And sentenced to six months' R.I. Each. They were also convicted under section 148, P.P.C. And sentenced to two years' R.I. Each. The sentences were ordered to run concurrently. The remaining five co-accused namely Dosa, Shera son of Sarclara, Shera son of Sardara alias Bhagi, Bati and Chakri were however acquitted. In appeal before the Lahore High Court Lahore Anara son of Ghulam Rasul and Pathani were acquitted for the reason that no confirmatory circumstance or corroborative evidence was available as against them. The acquittal of Dosa, Shera son of Sardara, Shera son of Sardara alias Bhagi, Bati and Chakri was maintained.
4. Furthermore, the conviction as well as sentences awarded to the petitioners Were upheld only for the reason that the head injury on the person of the deceased had proved fatal which was not specifically attributed to any of the members of the accused party. The judgment of the Lahore High Court Lahore is dated 11th July 1983. So this is the reason given by the Lahore High Court Lahore for awarding lesser penalty to the petitioners.
5. The deceased in this case is Anar Khan and the injured persons are Mohammad Akbar complainant-PW and Bahadar PW. The occurrence took place at 9/10 a.m. On 18th April 1979 in Chowk Bazat., Kuthiala Sheikhan, Tehsil Phalia, District Gujrat. A statement was recorded at 10.40 a. m. On the same day at the instance of Mohammad Akbar complainant by Mohammad Zar SI. The members of the accused party were arrested on different dates and three dangs, one hockey, two guns and one revolver were recovered from Noori, Ahmad, Umra, Yaqub, Pathani, Bati and Chakri.
6. According to the medical evidence Mohammad Akbar PW had four injuries on his person caused with blunt weapon and Bahadar PW had 31 injuries caused with blunt weapon. The deceased had 23 injuries on his person out of which the first injury on the head was grievous and dangerous to life and the rest were declared simple in nature. One injury was caused by fire-farm and the rest with blunt weapon.
7. The case of the prosecution is based on the ocular testimony of three eye-witnesses out of whom two are injured. These are Mohammad Akbar and Bahadar injured PWs and Moonda PW. The motive for crime is that Javid son of Noori petitioner was engaged to the daughter of Shera son of Sardara-alias Bhagi accused. The deceased had objected thereto and thus caused annoyance to the accused party who thereafter fired at him in order to brew-beat him. Two days before the present occurrence also firing was done at the Dera of the deceased by the accused side.
8. Consequently cross criminal cases had been registered between the parties. The prosecution version is that on the fateful day the complainant party went to the Police Station Kuthiala Sheikhan in connection with the investigation of the cross cases under section 307/149/148, P.P.C. At the fateful time when they were proceeding to the bazar the present petitioners along with their other companions variously armed waylaid them in the Chowk Bazar. In the attack the deceased, Mohammad Akbar and Bahadar P.Ws. Were injured. The deceased died as a result of the injuries sustained by him and therefore section 302, P.P. C. Was added.
9. It was argued by the learned counsel for the petitioner (in Petition for Leave to Appeal No.301 of 1983) that there was background of enmity between the parties and therefore the ocular testimony should have not been relied upon as against the petitioners without corroboration when it had not been relied upon in respect of those accused persons who had been acquitted. It was also submitted that the fatal injury was only on the head of the deceased which was not specifically attributed to any member of the accused party and that in a fight of this nature since the action was not pre-planned it was not proper to apply section 149, P.P.C. To the present case. It was next submitted that there was no corroboration forthcoming of the ocular testimony.
10. We have carefully considered the arguments of the learned counsel. The statement of the learned counsel for the complainant side who has withdrawn connected Criminal Petition No.324 of 1983 indicates that the parties had compromised and it was on that basis that the petition for enhancement had been withdrawn by the complainant side. However learned counsel for the petitioners in Criminal Petition for Leave to Appeal No.301 of 1983 wants us to consider the case of his clients on merits but in our view section 149 PPC was applicable to the facts and circumstances of the present case as it was a concerted attack on the person of the deceased and the two eye- witnesses. The number of the injuries on the person of the injured PWs and the deceased also indicate that it was a job done by a number of persons. We have carefully considered the arguments of the learned counsel but in our view no case is made out on merits for interference with the impugned judgment of the Lahore High Court Lahore. However at the prayer of the learned counsel we direct that the jail authorities may grant the benefit of the provisions of section 382-B, Cr.P.C. To the petitioners at the time of computation of their sentences of imprisonment. With this observation Criminal Petition for Leave to Appeal No.301 of 1983 is hereby dismissed.