' FAZAL ILAHI KHAN, J.---In this jail petition leave to appeal is prayed for against the judgment of the learned Lahoie High . Court, Lahore, dated 11-8-1992 passed in Criminal Appeal No, 29 of 1990 and Murder Reference No, 82 of 1990.
2. The accused/petitioners along with acquitted co-accused were tried under section 302/307/148/149, P.P.C. For the murder of Muhammad Iqbal and murderous assault on Wakeel Khan (P.W. 8), Ghulam Mohyud Din (P.W.9) and Agar Khan P.W. (who died during the trial) and per judgment dated 19-3-1990 Shah Nawaz, Haq Nawaz and Muhammad Iqbal petitioners/accused were found guilty and convicted under section 302/34, P.P.C. All the three petitioners/accused were sentenced to death and fine of Rs,20,000. In default to undergo 2 years' R.I. Each. They were further convicted and sentenced to 7 years' R.I. And fine of Rs,7,000 each under section 307/34, P.P.C. In default of payment of fine to undergo one year R.I. All the other co-accused were acquitted. The convicts' appeal was heard by the learned High Court alongwith the murder reference and per the impugned judgment, while maintaining the conviction of Haqnawaz and Muhammad Iqbal their sentence was reduced to imprisonment for life. However, the sentence awarded under section 307/34, P.P.C. To the petitioners was maintained. The sentence of death awarded to Shah Nawaz accused/petitioner under section 302/34, P.P.C. Was maintained and confirmed.
3. The occurrence in this case took place on 21-6-1985 at 8 a.m. And its report was lodged by Misar Khan (P.W.7) at the Police Station Tamman, District Attock.
4. The prosecution case in brief is that the complainant resides in Safial Dakhli with his Baradari while Ghulam Muhammad son of Hayat resides in Dhoke Laloo Khail with his Baradari. That there is spring of water in Laloo Khail wherefrom the water is utilised for cattle and the womenfolk fetch water for drinking purposes. That 10-12 days before the occurrence the accused/petitioners Muhammad Iqbal and others sons of Ghulam Muhammad were present on the bank of the spring and they were prohibited by one Wakil Khan Chowkidar P.W. 8 to stay away so that womenfolk may have an easy approach and have privacy. Muhammad Iqbal petitioner felt annoyance and refused while Ghulam Mohyuddin slapped. He protested against it to Ghulam Ahmad accused.
Iqbal petitioner also threatened to deal with anyone who come to the spring. For some time they abstained from taking water and used to take their cattle to Nullah Mag. However, subsequently their womenfolk used to take water from the spring at night at their instance. When Muhammad Iqbal and others accused/petitioners came to know of the fact they threatened them that if they dare to come to the spring they would not be spared Kot Gula for offering their Eid prayer when they were fired at by Muhammad Iqbal and others near about the spring. When the members of their 'Baradari' came to know of the fact as usual they in evening came to the Dhoke to enquire about the occurrence. The petitioners, however, apprehended as if these persons had gathered to revenge the firing.
6. On the following day the complainant alongwith his brother Muhammad Iqbal deceased, Sardar son of Bahadur Khan and Agar Khan son of Fateh Khan, Ghulam Mohyuddin son of Peer Bakhsh after offering Fateha at Dhoke Laloo Khail while returning to their Dhoke on reaching the place of occurrence saw Shah Nawaz accused armed with rifle, Haqnawaz accused armed with gun, Dilasa Khan accused armed with gun appeared from the southern side while Muhammad Iqbal accused armed with a gun, Muhammad Nawaz accused armed with a pistol, Sher Muhammad accused armed with a hatchet and Ghulam Muhammad son of Hayat armed with a stick appeared from the western side and challetiged the complainant party and simultaneously started firing. The complainant and his companions started running for safety towards their Dhoke. When they reached near their Dhoke they saw Muhammad Iqbal deceased present at the place of occurrence who was fired at by Shah Nawaz accused/petitioner which hit on his chest. With the firing of Haq Nawaz petitioner Agar Khan was hit on his face, Agar Khan was also fired at by Dilasa Khan accused which hit him on his left arm, Muhammad Iqbal accused/petitioner fired at Ghulam Mohyuddin P.W. Who was hit on the back side of his head. The firing attracted the residents of the Dhoke whereafter the accused decamped from the spot. Ghulam Muhammad and Sher Muhammad were also charged for having instigated the accused for the offence.
7. After completion of the investigation the accused/petitioners as well as the acquitted accused were formally charged under section 302/307/ 148/149 of the Pakistan Penal Code to which all of them pleaded not guilty and wanted to face the trial.
8. The prosecution in support of its case relied on the ocular testimony of Misar Khan, Wakil Khan and Ghulam Mohyuddin P.W.s. Sardar Khan and Bahadur Khan P.Ws. Were given up while Agar Khan their brother died during the trial. Muharinnad Gulzar Khan, Inspector (investigating officer) also could not be produced because of his death. Recoveries of the crime empties and the crime weapons were made in the presence of Ghulam Yasin and Aslam Khan P.Ws. Aslam Khan was produced while Ghulam Yasin was given up. Aslam Khan P.W. Was, however, subsequently declared hostile. The medical evidence was furnished by Dr. Fayyaz Muhammad Farooqi (P.W.1) who conducted the post-mortem examination on the dead body of Muhammad Iqbal deceased on 22-6-1985 at 7 a.m. Dr. Syed Mehboob P.W. Medically examined Agar Khan and Ghulam Mohyuddin the injured P.Ws.
9. Accused in their statements under section 342, Cr.P.C. Denied the gharge and raised the plea of false substitution in the case of cross-firing which took place between the complainant party and some others; namely, Ghaffar etc. That deceased Muhammad Iqbal, Agar Khan and Ghulam Mohyuddin had got injuries in such firing. That they were falsely implicated for the reason of the incident in which Muhammad Iqbal petitioner/accused had slapped Wakil Khan sometime before the occurrence. Dilasa Khan accused (acquitted), however, raised the plea of alibi and produced Subedar Zamir-ur-Rehman as D.W.1 who deposed that Dilasa Khan an army person was marked present in the daily diary. He also produced the Register in Court. Motive for the offence was denied by the accused as it was stated to be a motive for false charge.
10. The learned trial Court on appraisal of the prosecution evidence came to the conclusion that the ocular account of the occurrence, in so far as it pertains to Shah Nawaz, Haq Nawaz and Muhammad Iqbal is concerned, is fortified by the medical evidence, motive and the recoveries effected from the spot and the recoveries of the weapons of offence at the instance of the accused. Accordingly, Haq Nawaz, Shah Nawaz and Muhammad Iqbal accused/petitioners were found guilty of the death of Muhammad Iqbal deceased and they were held to have acted in furtherance of their common intention, therefore, each of them was held responsible for the intentional murder. Accordingly, they were convicted and sentenced to death, imprisonment and fine as stated above under sections 302/307/34, P.P.C. The death sentence was subject to the confirmation by the High Court vide judgment dated 19-3-1990. Conviction and sentence was challenged by the appellants before the learned High Court.
11. It was contended that the eye-witnesses are interested and inimical; that the witnesses had charged 6 acquitted accused in their evidence, therefore, such evidence cannot be relied upon qua the appellants; that the ocular evidence is not supported by the medical evidence; that Ghulam Mohy-ud-Din P.W. Does not reside in the vicinity, therefore, he is a chance witness. It has been further contended that independent corroboration was not available to the ocular evidence; that the appellants' defence version has been disbelieved without any cogent reason and lastly it was contended that even if the prosecution version of the occurrence is accepted then it was a sudden fight and common intention cannot be spelt out, therefore, each accused will be liable for the injury attributed to him.
12. These contentions were duly considered by the learned High Court in detail after due appraisal of the entire evidence. The learned High Court rightly held that it being a broad daylight occurrence and there being no previous enmity the report having promptly lodged by the complainant there is no possibility of false implication or substitution of the real culprits. The stamp of injury found on the person of Ghulam Mohyuddin establishes beyond any reasonable doubt his presence at the spot and his having witnessed the occurrence. The acquittal of the co-accused charged in the FIR was because of extra precaution in administration of criminal justice by extending benefit of doubt in their case on sound and cogent reasons after differentiating their case from that of the petitioners/accused. We, therefore, are of the view that both the Courts below have correctly arrived at the conclusion, after appraisal of the evidence, that the prosecution was successful in proving its case against the accused/appellants beyond any reasonable doubt. The learned High Court has also correctly come to the conclusion that as no specific injury was attributed to Haq Nawaz and Muhammad Iqbal resulting in the murder of Muhammad Iqbal deceased and on its finding that they did share common intention their sentence of death was reduced to one under section 302/34, P.P.C. To one for imprisonment for life while maintaining their conviction under section 307/34, P.P.C. We, therefore, find no material to differ with the conclusion reached by the learned High Court and refuse to grant leave to appeal in their case. Leave is, however, granted to consider; whether, the accused/petitioner No,1 Shah Nawaz's case stands on different footing than that of the aforementioned 2 petitioners; namely, Haq Nawaz and Muhammad Iqbal and the High Court was correct in maintaining the sentence of death.