1. HAMOJDUR RAHMAN, C. J.-These two petitions arise out of a judgment of a Division Bench of the Lahore High Court upholding the convictions of the six petitioners in Petition No. 195 of 1972 and confirming their sentences of death but allowing the appeals of respondents Nos. 7 to 12 in Petition No. 275 of 1972 and acquitting them of all charges.
2. It appears that all these 12 persons were tried and convicted under sections 302/149 and 307/149 of the Pakistan Penal Code for killing three persons and attempting to kill another. They were all sentenced to death under section 302/149, P. P. C. And to one year's R.
1. Each under section 307/149, P. P. C. By the Additional Sessions Judge, Multan. They appealed to the High Court to which their cases were also referred under section 374 of the Code of Criminal Procedure for the confirmation of their death sentences. The petitioners in Petition No. 275 of 1972 also filed a criminal revision in the High Court praying for the enhancement of the sentences under section 307/ 149, P. P. C. And for the award of adequate compensation to the heirs of the deceased persons under section 544- A of the Code of Criminal Procedure.
3. The incident which led to this prosecution took place on the 10th of July 1967 near the shrine of Pir Punnu in Chak No. 222/E. B. Close to the village situated x Tehsil Vehari, District Multan.
4. The motive alleged for the crime was that Mst. Nazran, wife of one Sultan son of Hayat, who was a cripple, was abducted by the convict Sultan 8/9 years ago but was later passed on to his brother Fazal with whom she lived as his wife and gave birth to two children. About a year prior to the present occurrence Fazal succeeded in inducing Sultan, the cripple, to divorce Mst. Nazran.
5. Thereupon the cripple Sultan, who held some landed properties apprehending that the illegitimate children born to Msi. Nazran might claim these properties after his death. Appointed one, Bahadur, as his Attorney in respect of the said lands. The latter, however, leased out the land to his brother and Muhammad Asbraf deceased, who took possession thereof from Qaim Din, Sultan (convict), Riaz, Ashiq and Muzaffar and started cultivating the same. The petitioners, therefore, having lost possession of the land sought to avenge themselves by killing the lessees with the assistance of the other accused persons.
6. An opportunity to do so, it is said, presented itself when Muhammad Ashraf was found attending the local kabaddi match at the village fair. The 12 accused accompanied by one, Qaim Din, who was killed in the course of this incident, came there variously armed with a pistol, spears and dangs. On seeing them Muhammad Ashraf, his tenant Shera and servant Rehmatullah left the place and started retreating towards the village abadi but were challenged on the way, encircled and killed. Before this, however, Muhammad Ashraf who was armed with a gun, fired in self- defence and killed Qaim. The others also in trying to defend themselves caused injuries to the accused Mian Khan, Ashiq; Muhammad Din and Rashid.
7. The hue and cry also attracted Mst. Khurshid Bibi, wife of the convict Sultan, who reached the spot and also received injuries in the, course of the incident. One, Muhammad Anwar, was also injured in this incident, which was reported at Vehari Police Station, 9 miles away, at 3-30 p.m., by one, Nur Muhammad.
8. Seven of the accused persons were arrested on the 13th of July 1967. This included the 6 petitioners in Cr. Petition No. 195 of 1972. Of these, petitioner Mian Khan led to the recovery of a barchi hidden behind a wooden rafter in one of the rooms of his house and a broken gun and the petitioner Sultan led to the recovery of a blood-stained spear from a sugarcane field. The petitioners Mian Khan, Mohabat and Rashid were also found to be injured and they were sent to the hospital for examination. All the accused except Mian Khan, Sultan and Rashid pleaded false implication. Mian Khan and Sultan set up the plea of alibi claiming that they were away from the place at the relevant time. On return, however, they heard that the complainant side raided the house of Sultan to abduct his wife Mst. Khurshid when several persons present at the fair of Pir Punnu intervened and caused injuries to the abductors. Rashid also pleaded that when he was returning home after saying his diger prayers he heard alarms coming from the house of Sultan, went there and found the three deceased and the injured Anwar forcibly carrying away Mst. Khurshid. He and Qaim Din attempted to intervene when Ashraf fired a shot at Qaim Din and killed him and the others gave a barchi blow to him. On hearing the report of the gun many other persons came from the mela and a fight took place between the abductors and these persons.
9. The incident was sought to be proved at the trial by the ocular testimony of four eye-witnesses, of whom one, Muhammad Anwar, was actually injured. The trial Court discarded the defence version and placed full reliance on the ocular testimony which was found to be supported by the medical evidence as well as the recoveries.
10. On appeal before the High Court the following points were urged, namely, (1) that the motive alleged was neither established nor convincing; (2) that in all probability the initial report was prepared at the spot after preliminary investigation ; (3) that no disinterested witness had been examined, although admittedly a large number of them were present at the kabaddi match ; (4) that the evidence of the recoveries was wholly unworthy of credence ; (5) that the ocular testimony was discrepant and materially inconsistent; and (6) that the presence of Mst. Khurshid Bibi at the spot and the injuries upon her had not been satisfactorily explained by the prosecution.
11. The High Court did not wholly accept the motive alleged by the prosecution but found another immediate motive arising from the dismantling of a watercourse belonging to the accused party which passed through the land in the possession of the deceased Ashraf.
12. The other defence contentions were rejected but the High Court did accept that Qaim Din had died as a result of a shot fired by Ashraf deceased.
13. The defence story about the alleged abduction of Mst. Khurshid Bibi was disbelieved, even though it was felt that the non-explanation of these injuries was a serious flaw in the prosecution case.
14. The presence of the injuries on some of the accused persons was also held to be unexplained by the prosecution, but this was not considered sufficient for rejecting the prosecution in toto.
15. It is for these reasons that corroboration of the ocular testimony was sought and only those accused against whom such corroboration was found, were convicted. The rest were given the benefit of doubt and acquitted.
16. The criminal revision of Mahmood Akhtar and another was allowed and compensation was awarded under section 544-A of the Code of Criminal Procedure on the basis of the decision of this Court in the case of Muhammad Sharif v. Sadar Din and 2 others (1972SCMR419), although the High Court itself was inclined to take the view that "such an order, at the appellate stage, would be beyond the legitimate scope of the inherent jurisdiction of this Court under section 561-A of the Criminal Procedure Code".
17. Learned counsel appearing in support of Petition No. 195 of 1972 has contended that the High Court after finding the prosecution story doubtful in respect of a material aspect of the case, namely, the death of Qaim Din and the injuries on Mst. Khurshid Bibi and some other persons on the side of the accused, was not justified in accepting that story against the convicted accused.
18. We have examined the judgment of the High Court but are unable to agree that the High Court doubted the prosecution story in any material respect. All that it said was that the pro--secution had tried to suppress that Mst. Khurshid Bibi and some of the accused persons had received injuries at the hands of the complainant party even though such injuries were caused purely in self-defence when encircled by the accused persons. The death of Qaim Din at the hands of Ashraf was also due to the same fact. It cannot, therefore, be said that the prosecution story was wholly discredited by the suppression of these injuries on the accused party.
19. The High Court has after carefully and elaborately discussing the evidence and all the points urged before it believed the prosecution version. The points raised by the learned counsel therefore, related only to appreciation of evidence which is not a sufficient ground by itself for granting leave.
20. Learned counsel has not been able to draw our attention to any serious disregard 4 of any rule or principle relating to the appreciation of evidence. His contention is that the ocular testimony should not have been believed in view of the flaws found by the High Court itself. This was a matter for the final Court of facts.
21. Learned counsel has next urged that leave should be granted to consider the question of the legality of the compensations awarded under section 544-A in pursuance of a decision of this Court, although the High Court itself was of the view that: perhaps this decision needed reconsideration.
22. This is not a fit case in which this question should be recon--sidered. This might be done in some other appropriate case. The Petition No. 195 of 1972 is, accordingly, dismissed.
23. Learned counsel appearing in support of Petition No. 275 of 1972 does not press the same. It is, accordingly, also dismissed as withdrawn.