' SAAD SAOOD JAN, J.---The respondents, Muhammad Habib, Muhammad Zarif, and Muhammad.
Hanif, real brothers, were tried by the Additional Sessions Judge, Sargodha, on charges under sections 302 and 342, read with section 34, Pakistan Penal Code, for causing the death of Sher Muhammad, deceased, and wrongfully confining his brother Sultan Ahmad (P.W.4) in their Baithak.
It acquitted Muhammad Hanif of both charges and the other two respondents on the charge under section 342. It convicted Muhammad Habib and Muhammad Zarif of the offence under section 302, It sentenced Muhammad Habib to death and Muhammad Zarif to imprisonment for life. It also directed them to pay fine and compensation to the family of the deceased. On appeal and reference, the High Court altered the convictions of Muhammad Habib and Muhammad Zarif under section 302 to one under section 304, Part II, read with section 34, of the same Code. It sentenced Muhammad Habib to rigorous imprisonment for a period of 10 years and Muhammad Zarif to rigorous imprisonment for a period of 5 years. It also directed them to pay fine and compensation.
From the judgment of the High Court Sultan Ahmad (P.W.4) seeks leave to appeal.
2. According to the prosecution, on 19-2-1988 at about noon time, the deceased was attacked by the respondents near the Chowk Bazar in Chak No,46 (Janubi) within the area of Police Station Sillanwali. Muhammad Habib was carrying a carbine, Muhammad Zarif was armed with dagger and Muhammad Hanif was empty-handed. Muhammad Zarif struck a dagger blow on the left shoulder of the deceased while Muhammad Habib fired at his chest. Muhammad Hanif held the deceased in his Jhapha. The deceased died at the spot. The occurrence was witnessed, amongst others, by Sultan Ahmad (P.W.4) and Muhammad Akram (P.W.5). Sultan Ahmad (P.W.4) went to Police Post in Chak No,58/Janubi and made a report about the attack at 1-00 p.m.
3. The occurrence was stated to be the sequel to a tight which took place an hour earlier between Muhammad Azeem, brother of the deceased, and Najeeb, brother of the respondents. A year earlier too the parties had quarrelled.
4. The respondents pleaded not guilty at the trial. Muhammad Zarif stated that at the relevant time the deceased had come to his house alongwith his brother, Muhammad Azeem. Both were armed.
They attacked him and his brother Najeeb. The other two respondents denied that they were present at the spot. The respondent examined two doctors in their defence. According to the defence witnesses, Muhammad Zarif and his brother Najeeb had injuries on their persons, the duration of which corresponded to the time of the present occurrence.
5. The case of the prosecution against the respondents was based mainly upon the testimony of two eye-witnesses, namely, Sultan Ahmad (P.W.4) and Muhammad Akram (P.W.5.) As stated earlier, Sultan Ahmad P.W.4 was a brother of the deceased. Muhammad Akram (P.W.5) was also related to them in the sense that he belonged to their brotherhood. The trial Court accepted their testimony as substantially true and convicted Muhammad Habib and Muhammad Zarif on the charge of culpable homicide amounting to murder. On the other hand, the High Court observed that their accounts were not entirely reliable as no satisfactory explanation was forthcoming from them as to how Muhammad Zarif and Najeeb received their injuries; apart from that, the occurrence did not appear to have taken place at the place indicated by the eye-witness account.
It also held if the versions offered by the prosecution and the defence, respectively, were placed in juxtaposition the one advanced by the defence seem would to be more probable. Nevertheless, it found Muhammad Habib and Muhammad Zarif guilty of the offence under section 304, Part II, read with section 34.
6. After hearing the learned counsel for the parties we consider that there was sufficient justification with the High Court for not upholding the convictions of Muhammad Habib and Muhammad Zarif on the charge of culpable homicide amounting to murder. It is somewhat wastable if on the facts found the provisions of section 34 were attracted to this case and if the respondents had been rightly convicted under Part II of section 304. However, that may be, it is certainly not a case where we should allow the complainant party to challenge the acquittal of the respondents on the charge under section 302. Leave is refused.