1. MUHAMMAD GUL J.--- This judgment deals with the above two leave petitions by two sets of convicts, five in all, in the same case for offences under sections 148, 302, 325, 323, read with section 149, P.P.C and arising out of an incident happening on 30-3-1969 at peshiwela in village Paharipur, P.S. Strah, District Sialkot. As a result of the incident one Bhagmal and his four brothers, Yasin Khan P.W.11, Chao Khan P. W. 12, Muhammad Hussain P.W.14, Sami P.W.15, a nephew Jumma Khan son of Chao Khan, P.W. 13and Maqsoodi wife of Muhammad Hussain aforesaid, received injuries with blunt weapons. Bhagmal was carried in an injured condition to the Civil Dispensary at Wadala but the Doctor not being available was taken in taxi to the Tehsil Hospital at Daska reaching there after sun-set. Bhagmal and other injured were exclaimed on the morning of 31-3-1969 at 10-00 a. m. And a report of the incident was lodged by Yasin Khan, injured P. W. After the medical certificated were obtained.Bhagmal who received previous injury at the head attributed to Ishaque died in the hospital 7 days later on 6-4-1969.
2. According to the prosecution six persons namely Ishaque, Hurmat, Raju, Ismail, Idris and Sansmal, all of whom were armed with dangs assaulted and injured Bhagmal and the above-mentioned P.
3. W.sThe dispute arose over the possession of phulahi tree growing on the edge of the pound near the dera of the deceased and his brother Yasin, where they used to tether their cattle.Accused Ishaque wanted to cut the tree three days prior to the occurrence and to appropriate the timber but was prevented by the deceased.On 30-3-1969 at peshiwela however, the accused succeeded in cutting the tree and wanted to carry the timber.Bhagmal objected to their carrying the cut-tree whereupon Ishaque gave him a lathi blow on the head on the head which was by another blow by Muhammad Ismail which hit the deceased on his arm.As a result of the uproar, Chao Khan and Jumma Khan reached the spot and also received injuries at the hands of Muhammad Ismail and Ishaque, Raju and Idris. They too were belaboured by the assailants.Mst. Maqsoodi who had in the meantime and tried to save her husband Muhammad Hussain was also given beating by the accused.
4. Of the six accused, Ishaque, Hurmat and Raju admitted the incident as having given lathi blows to the deceased and P. Ws. But pleaded right of private defence of their property and persons.Muhammad Ismail, Idris and Sansmal pleaded alibi.
5. The learned trial Judge accepted the evidence of the injured P.-Ws. Namely Yasin, Chao Khan, his son Jumma Khan, Muhammad Hussain, his wife Mst. Maqsoodi and Sami as corroborated by the medical evidence and the recovery of stocks wielded in the course of the transaction though none of these was found to be blood stained. The trial Judge also accepted the evidence of motive, which led to the incident. Sansmal, the 6th accused was given benefit of doubt and acquitted because no overt act was attributed to him nor any stock was recovered at his instance. However, in the opinion of the trial Judge the fatal injury to Bhagmal by Ishaque was his individual act there being no evidence of any pre-concert. Accordingly, the learned trial Judge convicted only Ishaque under section 302 and sentenced him to transportation for life. He convicted the remaining four accused namely Muhammad Ismail, Hurmat, Idris and Raju under section 148, 325/323 read with 149, P. P. C. And sentenced each of then to one year, four years and six months rigorous imprisonment respectively on the said counts. The appeal of the five convicts before the High Court having failed, they now seek leave to appeal.
6. The petitioners' learned counsel mainly confined his argument to the following two points namely
(a) that the conviction of the petitioners in both leave petitions rests entirely on ocular evidence which was highly interested, all eye--witnesses in the case being close relatives of the deceased ; and
(b) that there was inordinate delay in lodging the F. I. R. Which led to various improvements in the prosecution version and also to the increase in the number of accused in the case.
7. Both these contentions were raised in the High Court but rejected, if we may say so, for found reasons. It is not suggested that there was any, previous enmity between the parties except the dispute over the possession of the phulahi tree. The parties, otherwise belong to the same brotherhood and are inter-related. This eliminates any probability of false implication of any of the accused. Rather we are satisfied that the trial Court had carefully sifted evidence and given benefit of doubt where it was due.
8. As to the delay it been sufficiently explained. As pointed out it the beginning, Bhagmal had to be carried in an injured condition first to Wadala and then to Daska where the parties reached after sun-set. It appears that Doctor delayed the examination of the injured until the next morning and the cat had to go back to P.S. With the medical certificates to lodge the F.I.R. And the fact that the injured were first taken to the hospital is but a natural impulse of any thoughtful person, to save the life of Bhagmal who was seriously injured on the head.
9. However, that may be the argument of the learned counsel seeks re-appraisal of the prosecution evidence which in the absence of any grave error by the Courts cannot be undertaken in this Court.
10. The petition is dismissed.