' RUSTAM S. SIDHWA, J.---This is an appeal by Muhammad Latif appellant against the judgment of a learned Division Bench of the Lahore High Court dated 11-7-1989 accepting the joint appeal of Bahawal Bakhsh and others, respondents Nos. 1 to 5, and giving the benefit of doubt to Ghulam Qadir respondent No. 5 and acquitting him and converting the convictions and sentences of the remaining respondents from one under section 302/149, P.P.C. To that under section 304-1, P.P.C.
And sentencing them to five years' R.I. Each with a fine of Rs.6,000 each or in default thereof to undergo one year R.I. Each and maintaining their convictions and sentences under sections 365 and 148, P.P.C. And dismissing the revision petition filed by the petitioner for the enhancement of the sentences of the respondents under section 302/149, P.P.C.
2. The prosecution story in brief as disclosed in Exh. PH is that on 3-4-1986, at about 4-00 p.m.
Muhammad Latif first informant with Muhammad Yousuf was coming back from Gujrat after attending the Court. When they reached near the village, Muhammad Latif sat in the fields to ease himself and his nephew Muhammad Yousuf continued towards the village. When Muhammad Yousuf reached near the house of Ghulam Rasool, suddenly all the accused mentioned above armed with Sotas, except Ghulam Qadir who was -armed with .12 bore gun, came out of the said house. Rehmat Khan accused raised a Lalkara, whereupon Lal Khan accused gave a Sota blow on the right leg of Muhammad Yousuf who fell down. Second blow was given by Ghulam Rasool accused, which landed on the left leg of Muhammad Yousuf, Bahawal Bakhsh accused also gave Sota blow on the left leg of Muhammad Yousuf, which was followed by Ramat Khan accused whose blow landed on the right leg. Thereafter, the accused persons started giving him indiscriminate beating. Ghulam Qadir accused kept on firing with his gun in the air. Muhammad Latif first informant raised alarm, which attracted Abdur Razzaq and Abdus Sattar P.Ws. Who also witnessed the occurrence. Thereafter the accused persons dragged Muhammad Yousuf in injured condition inside the house of Ghulam Rasool accused and started beating him there. The eye- witnesses could not go near the said house because of fear. Muhammad Latif first informant sent his nephew Abdus Sattar to Gujrat to inform his uncle Muhammad Alam about the incident. The first informant and Abdur Razzaq remained at the spot. The accused persons after giving beating to Muhammad Yousuf started guarding the house where Muhammad Yousuf was confined. The motive for the occurrence was a history of criminal litigation between the parties spread over a period of 10/11 years.
3. The dead body of Muhammad Yousuf deceased was recovered from the Ahata of the accused respondents by Muhammad Bashir A.S.Y. When he reached the spot.
4. Muhammad Yousuf deceased received one abrasion, 11 bruises, 13 superficial abrasions and 3 lacerated wounds on various parts of his body. All the injuries were caused with blunt weapon. Four of the said injuries were found sufficient to cause death. Death was due to excessive bleeding leading to irreversible shock.
5. All the accused persons at the conclusion of the prosecution evidence denied the accusations that were levelled against them and pleaded innocence. Ghulam Qadir accused, in answer to a question, stated that litigation of the deceased was going on with one Fazal Ahmad, in which two of his co-accused had appeared as prosecution witnesses. He further stated that the accused persons and some others were, declared innocent by the police, therefore, Abdur Razzaq filed a complaint which was still pending. He also alleged false involvement because of enmity and the witnesses being interrelated.
6. Whilst the learned trial Judge convicted the respondents under section 302/149, P.P.C. For the murder of Muhammad Yousuf deceased, the learned Judges of the High Court found that the origin of the fight was shrouded in mystery, but since the dead body of Muhammad Yousuf deceased was admittedly recovered from the courtyard of the respondents, therefore, the application of section 302, P.P.C. Was doubtful. The learned Judges further held that as the medical evidence indicated that the injuries caused to the deceased were on his non-vital parts excepting injury No.24, which was not noticed by the doctor earlier, but surprisingly noted at the time of post- mort examination, therefore, they held that the respondents were liable under section 304-I, P.P.C..
7. On behalf of the appellant it is submitted that the number and nature of injuries on Muhammad Yousuf deceased are such that the intention of the respondents was to maim him to death and since all respondents had been assigned the role of having inflicted injuries on the said deceased each one is liable under section 302/149 P.P.C. And that they should be convicted and sentenced accordingly.
8. On behalf of the convicted respondents it is submitted that the evidence of the eye-witnesses is so unnatural and contradictory that it appears that they did not witness the incident at all and that, but for the fact that the respondents have not appealed, they are actually entitled to an acquittal.
9. We have heard the arguments of the learned counsel for the appellant, the respondents and the State and have perused the record.
10. The evidence of the eye-witnesses indicates extremely unnatural behaviour. Muhammad Latif P.W.8 is an uncle of. Muhammad Yousuf deceased. He saw his nephew being mercilessly beaten by the respondents, yet he did not do anything to rescue him from their clutches, when the respondents took his nephew inside their house, he just kept standing outside for an hour and a half as a silent spectator. He neither went to the village to seek assistance to rescue his nephew nor to the police station for securing help. To crown it all he sent Abdus Sattar P.W. To Gujrat to inform his uncle regarding the incident. It has come on the record that though his deceased nephew had a licensed gun at home, he did not make an effort to secure that gun in order to rescue his nephew. The statement of Muhammad Latif P.W.8 also does not inspire confidence. At the trial he stated that Muhammad Yousuf injured was lifted and taken inside the house of the respondents, but in his F.I.R. He had stated that after injuring Muhammad Yousuf, the respondents had dragged him into their house and gave further beating to him. The statement at the trial was apparently made to bring his evidence in conformity with the medical testimony. He also stated that after injuring Muhammad Yousuf deceased, all the respondents remained inside the house and kept on raising Lalkara till the police arrived at the spot, but according to the statement of the police officer, the respondents had already left when he came to the spot. Muhammad Latif P.W.8 also stated at the trial that Ghulam Qadir respondent had kept firing in the air to scare away the witnesses, but not a single empty was recovered from near about the place where he was alleged to have fired.
The statement of Abdur Razzaq P.W. Is no less equivocal. Apart from the fact that there is clear evidence which indicates that the dead body of Muhammad Yousuf deceased was recovered from the courtyard of the house of the respondents, the ocular account is not strongly natural which places us in some doubt as to whether they were actually present and did see the occurrence, which has been so found by the learned Judges. In these circumstances, we cannot safely rely on the ocular account to enhance the conviction of the respondents.
11. For the foregoing reasons, there being no merit in this appeal, the same is dismissed.