' ALI HUSSAIN QAZILBASH, J.--This is a petition for leave to appeal from the judgment of a learned Division Bench of the Lahore High Court, dated 7-2-1987.
2. Muhammad Aslam petitioner and ten others were charged under section 148/447/302/307/149, P.P.C. For the murder of Mehr All and Munir Ahmad and injuries to Muhammad Aslam, Nazir Ahmad, Ahmad Yar and Noor Ahmad.
3. The occurrence in this case took place on 20-6-1982 at Maghrab prayers time in the area of village Goth Amin, Police Station Liaqatpur, District Rahimyar Khan. As per F.I.R. Filed by Nazir Ahmad it was alleged that he and his three brothers, namely, Munir Ahmad, Akbar Khan and Mehr Ali Khan, owned 15/16 Bighas of land in Basti Naw Abad of village Goth Amin. Khushi Muhammad Gujjar also owned one acre of land adjacent to their land. The complainant party had sown Jantar crop on the Banna which intervened the land of Khushi Muhammad and the complainant. On the morning of the day of occurrence Iqbal and Sultan sons of Khushi Muhammad Gujjar demolished the said Banna with their tractor. They were restrained by Mehr All and they left offended and the same evening at about Maghrab prayers time when Mehr Ali was irrigating his land, Khushi Muhammad armed with a Barchhi, Faiz Bismal carrying a Sota, Muhammad Iqbal with a gun, Sultan having a Barchhi, Imam Bakhsh alias Imamun Gopang and Nazir Ahmad armed with Sotis, Bashir Ahmad armed with a hatchet, Shabbir and Allah Ditta sons of Imam Bakhsh having Sotas, Aslam and Anwar sons of Faiz Bismal armed with Chhuras arrived and started ploughing their land with three tractors and also levelled the land including the Banna. Mehr Ali who was irrigating his lands restrained the accused party and in the meantime the complainant alongwith his brother Munir Ahmad also arrived and asked Khushi Muhammad and Faiz Bismal not to level the Banna but Khushi Muhammad and Faiz Bismal did not pay any heed to this and instead exhorted their co- accused to attack, whereupon lqbal fired at the complainant but it went amiss. Then Anwar stabbed the complainant at his right flank and Nazir gave a Soti blow on the head of the complainant. Iqbal tried to fire again but the gun was snatched from him by the complainant.
Aslam stabbed Mehr Ali, Sultan started giving Barchhi blows to Munir Ahmad and all the accused attacked the complainant party. The alarm attracted Noor Ahmad, Muhammad Aslam, Muhammad Yar and Abdur Rehman who tried to rescue the complainant and his brothers and they too were injured by the accused. On reaching the other persons at the spot, the accused party made their good escape on tractors.
4. The report was recorded by Qazi Najam-ud-Din S.I. Who started investigation in this case. He arrested Nazir Ahmad, lqbal Muhammad, Sultan Ahmad, Shabbir Ahmad and Khushi Muhammad on 20-6-1982 and the remaining accused were arrested on 22-6-1982. Blood-stained Chhuri was recovered on 22-6-1982 from Muhammad Anwar accused and another blood-stained Chhuri was recovered from Muhammad Aslam on 27-6-1982.
5. Mehr Ali deceased had two incised, two stab wounds and one abrasion on his dead body whereas Munir Ahmad deceased had four incised wounds, three stab wounds and one abrasion on his body. The injured P.Ws. Had injuries of various description on their persons which included incised wounds. Khushi Muhammad, Muhammad Nazir, Shabbir, Sultan Ahmad and Iqbal Ahmad accused were also examined the same day and a number of injuries were found on their persons.
An incised wound was found each on the person of Muhammad Nazir, Iqbal Ahmad, Shabbir Ahmad and Sultan Ahmad. The left ear of Sultan Ahmad was also found cut at the root. Allah Ditta accused who was examined on 22-6-1982 was found to have an incised wound besides a contusion and Bashir Ahmad accused had also three injuries on his person.
6. After recording the statements of the prosecution witnesses as well as the accused, the learned trial Court convicted Muhammad Aslam and Muhammad Anwar under section 302, P.P.C. For the murder of Mehr Ali and Munir Ahmad, respectively. Both of them were sentenced to death and a fine of Rs,3,000 or in default to one year's R.I. Both of them were also convicted under section 324, P.P.C. For injuries to Muhammad Aslam and Nazir Ahmad P.Ws. And were sentenced to six months'
R.I. They were also convicted and sentenced under section 148, P.P.C. To six months' R.I. Khushi Muhammad died during the trial. Sultan Ahmad was convicted under section 324, P.P.C. For causing injuries to Munir Ahmad with Barchhi and sentenced to six months' R.I. Imam Bakhsh was convicted under section 323, P.P.C. On two counts for causing injuries to Aslam and Ahmad Yar P.Ws. And sentenced to three months' R.I. Allah Ditta was convicted under section 323, P.P.C. On two counts for causing injuries to Mehr Ali and Munir Ahmad deceased with hatchet and sentenced to three months' R.I. Bashir Ahmad was convicted under section 324, P.P.C. And sentenced to five months' R.I. For causing injuries to the two deceased with hatchet. Nazir Ahmad was sentenced to three months' R.I. Under section 323, P.P.C. For causing injuries to Nazir P.W. They were also convicted under section 148, P.P.C. And sentenced to six months' R.I. Lqbal Muhammad, Faiz Bismal and Shabbir Ahmad were, however, acquitted, vide judgment dated 6-7-1986.
7. Of the convicted persons, Muhammad Aslam and Muhammad Anwar challenged their conviction and sentence by way of an appeal in the High Court, whereas the other convicts did not file any appeal. The learned Judges of the High Court, vide their impugned judgment, partly allowed the appeal of Muhammad Anwar inasmuch as his conviction and sentence under section 302, P.P.C. Was set aside and he was convicted under section 324, P.P.C. For causing simple injuries with sharp-edged weapon to Munir Ahmad deceased and sentenced him to six months' R.I. His other sentence under sections 324 and 148, P.P.C. Was, however, maintained. The appeal of Muhammad Aslam was, however, turned down and his sentence of death was confirmed.
8. We have heard the learned counsel for the petitioner. He took us through the evidence and submitted that out of the five eye-witnesses, four are injured P.Ws. But the Courts below have disbelieved them to a greater extent in that three accused were acquitted by the trial Court and the High Court while hearing the appeal of the petitioner and Muhammad Anwar converted the conviction of Muhammad Anwar one from under section 302, P.P.C. To section 324, P.P.C. He also submitted that the eye-witnesses suppressed the injuries on the person of some of the accused.
He further submitted that the recovery witnesses have not at all supported the version of the occurrence as put up by the prosecution. He also read to us the statement of Shabbir Beg (iirdawar who appeared at the trial as P.W.5 and submitted that it was the accused party who was in lawful possession of the land up to the disputed Banna and it was the accused party which was aggressed upon by the complainant party. He submitted that in view of the above the conviction and sentence of the petitioner under section 302, P.P.C. On such a discrepant evidence is uncalled for.
9. The submissions made by the learned counsel for the petitioner, as given above, merit consideration. We, therefore, grant leave in the matter.