' ALI HUSSAIN QAZILBASH, J.--These three petitions bearing Nos.18-R of 1987, 20-R of 1987 and 21-R of 1987 arise out of the same judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, dated 18th January, 1987.
2. The brief facts are that on 24-6-1983 at Degarwela Khanzada and his father Karam Elahi deceased had gone to Mohalla Baba Graveyard situate within the area of village Bolianwala, P.S. Sadar, District Attock, to say Janaza prayers. When they reached the graveyard, they found Karam Khan and his brother Hasham Khan, Sadiq and Ihadat sons of Nizam Din, residents of Dhok Aulia Dakhli Bolianwala, Tehsil and District Attock, also present there. During talk, Karam Khan shouted a Lalkara that the complainant and his father Karam Elahi should be taught lesson for land dispute.
Karam Khan and his brother Hasham Khan were armed with Chhuris, Sadiq had a knife while Ibadat was having a stick. All of them launched the attack on Karam Elahi, started giving him blows with Chhuris and knife. Khanzada complainant tried to save his father but was injured by all the accused with their respective weapons. The alarm attracted his two uncles Rukan Din and Darwesh Khan who also witnessed the occurrence and rescued the complainant and his father from the hands of the accused. The motive given in the F.I.R. Was dispute over land between the parties. The complainant and his father Karam Elahi, both injured, were taken to the hospital by Rukan Din and Darwesh Khan, where Karam Elahi died as a result of the injuries.
3. Muhammad Irshad who was on patrol duty learnt about the occurrence, went to the Civil Hospital Attock and recorded the statement of the complainant by way of a murasla, which is Exh.PB, at 9.45 p.m. And then sent the same to the police station where the formal F.I.R. Was drawn.
He then prepared the injury sheet and inquest report of the deceased and sent the dead body to the mortuary. He also got Khanzada medically examined. On 26-6-1983 he inspected the spot and collected blood-stained earth. On his transfer the investigation was handed over to Manzoor Hussain S.I. Who arrested the accused on 1-7-1983. On 9-7-1983 all the accused while in police custody led to the recovery of the weapons of offence assigned to each of them in the F.I.R. None was stained with blood.
4. After the completion of the investigation, all the accused were put to trial where the prosecution in support of its case has produced as many as eleven witnesses including Dr. Rehmat Elahi Chughtai who on 24-6-1983 at 7.55 p.m. Examined Karam Elahi and found three incised wounds of various dimensions on the upper and front of left side of neck, right side of chin going deep into the mouth and on the top of head upto bone. Karam Elahi was unconscious and in severe respiratory distress. After about half an hour he expired. The same doctor conducted the post-mortem examination on his dead body. He recorded the same injuries, found injury No,1 as grievous and injuries No,2 and 3 simple. On the same evening at 8.20 p.m. He also examined Khanzada P.W. And found four incised wounds of various dimensions and a lacerated wound 1-1/2 x 1/4 x upto bone on the right side of his head, two contusion marks and an abrasion. The doctor opined that injuries Nos.1, 3, 4 and 5 were caused with sharp-edged weapon while the others with blunt weapon. The three incised wounds and the lacerated wound were found to be simple. The doctor admitted that injuries 1 and 2 on the person of Karam Elahi were possible by spear, Chhuri and knife and injury No,4 by sharp-edged weapon including hatchet. He also admitted that injuries Nos.3 and 4 on the person of Khanzada could be caused with any sharp-edged weapon including hatchet.
5. Karam Khan petitioner in his statement under section 342, Cr.P.C. Deposed at the trial that on the day of the occurrence he had gone to the graveyard to attend a funeral of a child of one Hasham Ali; his co-accused were not present at that time; the funeral procession arrived at Degarwela when about 30/35 persons were present in the funeral prayer. He further stated that about 4/5 persons were coming from village Daurdar for attending the funeral; he asked to wait for those persons but Karam Elahi hurled abuse saying that people did not keep fast and they had come to attend the funeral prayers. On his objection to the remarks, all the people got infuriated and started beating Karam Elahi and on reaching the spot Khanzada started abusing people and he received the injuries at the hands of the people present there. The remaining accused denied their presence at the spot at the time of the occurrence.
6. The learned trial Court after a careful consideration of the case, disbelieved the motive put forth by the prosecution, the evidence of recovery of the crime weapons and the evidence of Rukan Din, placed explicit reliance on the ocular evidence furnished by Khanzada (P.W.7) and vide its order, dated 30-4-1984 convicted Karam Khan and Hasham Khan under section 302/34, P.P.C. And sentenced each of them to imprisonment for life and a fine of Rs.10,000 or in default to one year's R.I. They were also convicted under section 307/34, P.P.C. And each was sentenced to three years'
R.I. And a fine of Rs.2,000 or in default to three months' R.I. Half of the fine on realization was ordered to be paid as compensation to Khanzada and other legal heir of the deceased. The sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. Was also given. Sadiq and Ibadat (respondents in Criminal Petition No,21-R of 1987) were, however, acquitted by giving them the benefit of doubt.
7. Karam Khan and Hasham Khan petitioners challenged their convictions and sentences in the High Court and a revision petition was filed by Khanzada against the acquittal of Sadiq and Ibadat and for the enhancement of the sentence of Karam Khan and Hasham Khan. Both the matters came up for hearing before a learned Single Judge of the High Court, who vide his judgment, dated 18-1-1987, set aside the conviction of Karam Khan and Hasham Khan under section 302/34, P.P.C.
And instead convicted them under section 304(1), P.P.C. And sentenced each of them to ten years'
R.I. And a fine of Rs.5,000 or in default to one year's R.I. The conviction of both the petitioners under section 307/34, P.P.C. Was set aside and they were convicted under section 324/34, P.P.C. And both were sentenced to one year's R.I. And a fine of Rs.1,000 or in default to three months' R.I. Each. It was further ordered that the entire fine on recovery shall be paid as compensation to the heirs of Karam Elahi and Khanzada P.W. The revision petition filed by Khanzada was, however, dismissed.
8. The above order has been challenged by three criminal petitions. As per Criminal Petition No,18-R of 1987, Karam Khan and Hasham Khan have questioned their convictions and sentences by the High Court. Through Criminal Petition No,20-R of 1987, Khanzada has prayed for enhancement of the sentence of Karam Khan and Hasham Khan and by Criminal Petition No,21-R of 1987 Khanazada has questioned the acquittal of Sadiq and Ibadat.
9. We have heard the learned counsel for the parties. The learned counsel for the Petitioner in Criminal Petition No,21-R of 1987 has prayed for withdrawal of the petition. The same is, therefore, dismissed as withdrawn.
10. Mr. Ahmad Raza Khan Qasuri, the learned counsel for the petitioner in Criminal Petition No,20-R of 1987, has vehemently described the findings of the learned Single Judge of the High Court in convicting Karam Khan and Hasham Khan respondents under section 304/(1)/34, P.P.C. He pointedly invited our attention to the following observations made by the learned Single Judge.
"In view of this situation I am of the view that Karam Elahi was not given injuries with intention to murder though the accused knew that he could die as a result of injuries. I, therefore, set aside the conviction of the accused-appellants under section 302/34, P.P.C. And instead hold them guilty under section 304(1), P.P.C. ' and submitted that while holding so the learned Judge has erred in law in convicting the respondents under section 304(1), P.P.C. And thus reducing their sentence. The case, he submitted, is fully covered by clauses Secondly and Thirdly of section 300, P.P.C. He further submitted that even Exception IV to section 300, P.P.C. Would not be attracted to the case in hand in that the occurrence might have taken place all of a sudden but the type of weapons with which the respondents were armed with and the manner in which the same had been used by them in inflicting injuries to the deceased clearly suggests that it was brutal murder and had been perpetrated with premeditation. He further suggested that the complainant party was absolutely unarmed. After hearing the learned counsel we feel that the arguments advanced in support of the petition raise substantial question for re-appraisal of the evidence in order to determine whether the case has been decided in accordance with the principles laid down by this Court for safe dispensation of justice. Leave is thus granted. Karam Khan and Hasham Khan respondents shall not be released during the pendency of the matter in this Court.
11. Since leave has been granted in Criminal Petition No,20-R of 1987, leave is also granted in Criminal Petition No,18-R of 1987.