' FAZAL ILAHI KHAN, J.---Leave to appeal was granted in Criminal Appeal No,249 of 1994 to the convicts against the judgment of the learned High Court, whereby death sentence awarded to Akram Beg and Altaf Beg under section 302 P.P.C. Has been converted into life imprisonment and the sentence of life imprisonment awarded to other accused has been reduced to six years R.I.
Under section 307 P.P.C., to consider the contention of the learned counsel for the appellants that keeping in view the back ground of the enmity between the parties over plying buses on the particular route it was a sudden fight when both sides confronted with each other while plying their buses. As such when it was a case of sudden fight the conviction could have been recorded under section 304 P.P.C. And life imprisonment could not have been awarded to them and similarly the sentences awarded to the other petitioner and for re-appraisal of the evidence. Similarly leave to appeal was granted, in Criminal Appeal No,250 of 1994 to the complainant on the contention that lesser penalty was awarded to the convicts, to consider its legality. However, petition for leave to appeal against acquittal was disallowed.
2. The prosecution case in brief as reflected in the F.I.R. Lodged by Sharif Beg (P.W.11) is that Inayat Beg and Azhar Beg his brothers used to ply their bus on Gujrat Tanda Road route from Chak Bagha.
They used to pick up passengers from Saghar to Gujrat. About 3 months before the occurrence Azeem Baig accused who is brother-in-law of Iltaf Baig accused had started plying his bus on Gujrat Tanda Road and at night he used to park his bus at the residence of Iltaf Baig at Chak Bagha which led to a dispute between the two parties over the timing. That on the day of occurrence Azeem Baig accused left for Chak Bagha at about 4 p.m. While his brother left at about 4-30 p.m. He alongwith Azhar Beg, Anwar Beg and Muhammad Nawaz were also in the bus. When they reached at the place Dera Baba Totoo at about 5 p.m. In the area of Saghar they saw the bus driven by Azeem Beg. He turned his bus in front of their bus whereupon they applied its brakes and stopped the bus. Akram Beg armed with .12 shot gun, Iltaf Beg armed with .12 shot gun, Safdar Beg armed with 7 mm rifle, Maqsood Baig armed with .12 bore shot gun, Shabbir Beg, Sardar Beg, Ali Ahmed, Bashir Beg, Muhammad Sain, Anwar Beg and Muhammad Boota armed with Sotas when Azeem Beg challenged the complainant party that they would be taught a lesson for not giving proper time to their bus. First of all Azeem Beg fired at the right front of their bus as a result the bus stopped whereafter the shot fired hit his brother Inayat Beg on the left side of chest. After breaking the front screen the shot fired by Akram Beg accused hit Azhar Beg and Azeem Beg at his left front chest. Safdar Beg fired a shot from his rifle which hit Muhammad Nawaz son of Muhammad Beg on the wrist and left knee. Maqsood Beg fired from his gun which shot hit Muhammad Nawaz s/o Muhammad Beg on upper part of his right thigh (LW). The injured people fell on their seats inside the bus. Bashir Beg, Sardar Beg and Anwar Beg accused who were armed with Sotas gave injuries to Nawaz Beg son of the complainant who was standing in the door of the bus. And sustained injuries on his left arm and right wrist and d on his back. Thereafter Ali Ahmed, Shabbir Beg, Muhammad Sain and Muhammad Boota accused started breaking window panes of the bus with Sotas while rest of the accused continued firing in the air and were raising Lalkara.
3. Motive for the offence was given out that seven days prior to the occurrence a quarrel had taken place between the complainant party and the accused in which Inayat Beg had beaten Akram and had abused him. Because of this enmity all the 12 accused in furtherance of their common object after framing unlawful assembly deliberately committed the murder as caused injuries. This report was lodged by the complainant before Muhammad Anwar, S.I. (SHO) (P.W.17) who came across the complainant in a Van while the complainant was proceeding to the police station for lodging the report. The statement of the complainant was reduced into 'Murasala' which was read out who admitting it correct signed the same. The 'Muransala' was sent to police station through F.C. For registration of case under section 302/307/427/148/149, P.P.C. The 'Murasala' is incorporated in the F.I.R. No,31 dated 13-2-1983 at Police Station Karyanwala.
4. On completion of the investigation the accused were put on trial who denied the charge and wanted to face the trial. The prosecution in support of its case examined as many as 17 witnesses in all whereafter the accused were examined under section 342, Cr.P.C. Akram Beg accused/appellant after denying the recovery effected from him in reply to a question as to why the 'charge against him stated as under:-- "Azim Beg accused is the brother in law of my brother Altaf. He was living in my village and was plying his bus from Mandi Bahauddin to Tanda and from Tanda to Chak Bugga. He was running this transport by the name of Mughal Flying Coach. Similarly the bus of the complainant party was also plying with the same name on Tanda, on the same route. The complainant party did not want to ply his bus on this route and they wanted that he should stop the bus from this route. On 52-1987 the complainant party to attacked on me and a case was registered on the same day. The complainant party got interim bail, in that case and they felt offended over the registration of case against them. On 13-2-1987, the complainant party exherted Lalkara in the morning to Azim Beg that they will kill him. On the same day at 4 p.m. I also accompanied Azim with my licenced gun with me for the purposes of his security. When the bus was full of passengers, we left for Chak Bugga. When the bus reached near dera Baba Totoo we heard a fire shot report. I saw that our bus was being following by the bus of complainant party and when it came parallel to our bus Azhar Beg deceased raised a Lalkara that Azim should be got down from the bus and the firing should be made and after that caught hold Azim Beg accused from his collar and started pushing him down.
While sitting in his bus. Apprehanding danger to the life of Azim Beg and I fired in bus of the complainant party bus, fire three shots from the complainant party and then ran away. Only I and Azim accused were present at the place of occurrence and none of participated in the occurrence."
' He also pleaded self-defence. According to him the complainant party had proclaimed offenders with them at the time of occurrence. He also made a statement under section 340(2) Cr.P.C, in rebuttal of the prosecution case and gave different version of the occurrence However, in cross- examination he denied all the questions put to him. Similar was the statement of the accused/appellant. Two of the accused stated that they have been found innocent during the investigation while rest of the accused stated that they have been falsely implicated in the case because of relationship with the main accused.
5. The learned Court for Speedy Trial No,IX Gujranwala found the motive alleged by the prosecution fully proved through ocular testimony furnished by Sharif Beg (P.W.11), Nawaz Beg sto Muhammad Beg (P.W.12) and Nawaz Beg s/o Sharif Beg (P.W.13). It was observed that though these witnesses are related and interested but they were found reliable and their presence at the spot was further found established as they had stamp of injuries on their persons. Further corroboration was sought from medical evidence. The report being promptly lodged on the facts and circumstances of the case there was little chance of consultation and manipulation for false charge. The learned trial Judge, therefore, found the charge brought against the accused Akrm Beg, Iltaf Beg, Sardar Beg, Bashir Beg, Anwar Beg, Azeem Beg and Maqsood Beg proved beyond any reasonable doubt. All of them were, accordingly, found to have committed the offence under sections 302/307/148/149 and 427, P.P.C. Rest of the accused were given the benefit of doubt and acquitted. On the question of sentence Akram Beg accused was found to have murdered Azhar Beg while Iltaf Beg was held responsible for the murder of Inayat Beg, they having been attributed the fatal injuries. Both of them were awarded the normal penalty of death under section 302/149 P.P.C. On 2 counts. The remaining 5 accused were held to be the members of the unlawful assembly formed in prosecution of their common object on conviction under section 148/149 P.P.C. They were awarded life imprisonment on 2 counts as they had caused no injury to the deceased. All the accused were further to pay a fine of Rs,20,000 each or in default thereof 2 years R.I. Each. The fine if realised was ordered to be paid to the heirs of the deceased as compensation. All the accused were also convicted under section 307/149 P.P.C. For having caused injuries to Nawaz Beg son of Muhammad Beg and Nawaz Beg son of Sharif Beg. They were also convicted and sentenced under section 307/149, P.P.C. To imprisonment for 10 years on 2 counts and a fine of Rs,5,000 each or in default one year R.I. All the accused were convicted under section 427 P.P.C. For mischief and causing damage to the bus belonging to Muhammad Beg and on conviction sentenced to one year R.I. They were further convicted and sentenced under section 148 P.P.C. To undergo one year R.I. Per judgment dated 21-1-1988.
6. The judgment of the Special Court for Speedy Trial was challenged by the convicts in Criminal Appeal No,480 of 1988 while the State challenged the acquittal of the co-accused and prayed for enhancement in the sentence of the convicts in Criminal Appeal No,145 of 1988. The complainant filed Criminal Revision No,103 of 1988 with the same prayer as made in the State appeal. All these 3 matters were heard together and disposed of by the learned High Court by judgment dated 17-10- 1993.
7. The learned High Court while considering the question; whether, all the appellants/convicts were members of the unlawful assembly acting in prosecution of their common object formed its view that there being ill-feeling existing between the parties when they confronted with each other it resulted in sudden fight. It was held that the prosecution failed to prove in which manner the occurrence took place, therefore, the possibility of raising Lalkara or throwing challenge after such confrontation cannot be ruled out. However, it was clearly held that the accused party did form an unlawful assembly.
8. Regarding the sentences imposed upon the convicts it was held that in absence of any evidence regarding immediate cause of the occurrence the normal penalty of death was not called for. The sentences of death imposed upon Akram Beg and Iltaf Beg were, therefore, altered to life imprisonment under section 302/34 P.P.C. With a fine of Rs,20,000 each or in default 2 years R.I. As given therein. The remaining five co-accused were convicted under section 307/34 P.P.C. And their sentence from 10 years R.I. Was reduced to 6 years R.I. Each on 2 counts. Fine of Rs,5,000 each or in default of payment of fine one year R.I. Was ordered. The benefit of section 382-B of the Cr.P.C. Was also extended to them. Their sentences were ordered to run concurrently. The conviction and sentence of the five co-accused under section 302/149/148 of the Pakistan Penal Code was set aside. Leave to appeal was granted in both these appeals as stated earlier.
9. As already pointed out on proper appraisal of evidence both the Courts below have found the prosecution evidence in conformity with the case set up in the F.I.R and such evidence was also found reliable and confidence inspiring. However, leave was granted to consider the nature of the offence emerging from such evidence; and secondly, for re-appraisal of evidence as to whether the learned High Court was correct in its observation resulting in the alteration of the sentence of death into that of imprisonment for life in the case of main culprits.
10. We have heard the learned counsel for the parties and have gone through the entire evidence in the light of the contentions raised. The report of the occurrence in this case was promptly lodged on 13-2-1989 at about 4 p.m. Both the parties were plying their buses on the same route which was the bone of contention and which has resulted in exchange of abuses on previous occasions and they nursed grudge against each other. However, on the eventful day Sharif Beg P.W.11 alongwith Inayat Beg and Asad deceased, Muhamamd Nawaz s/o Muhammad Beg and Muhammad Nawaz s/o Sharif Beg left for their village from the bus stand. When the bus reached near the Dera of Baba Totoo the accused arrived to the spot in their bus from Chak Bagha and applied brake blocking the passage of the complainant's bus and thereafter Akram Beg and Iltaf Beg both armed with .12 bore guns and Safdar Beg armed with 7 mm rifle, Mawsood Beg armed with .12 bore gun, Shabbir Beg, Safdar Beg, Ali Ahmad, Bashir Beg, Muhammad Shah, Anwar Beg and Muhamamd Boota all armed with Sotas and Azeem Beg armed with 7 mm rifle came out and challenged the complainant party for not giving them proper time for plying of their bus on the route. Azeem Beg fired at the right front tyre of the complainant's bus so that they may not escape. Thereafter Iltaf Beg fired a shot from .12 bore gun at Inayat Beg which hit on his left chest after the screen glass was shattered. With fire shot of Akram Beg the deceased Azhar Beg was hit and with the rifle fire of Safdar Beg, Muhammad Nawaz son of Muhammad Beg was hit. Muhammad Nawaz son of Muhammad Beg was hit by the fire of Maqsood Beg. The aforementioned injuries caused to the deceased and injured as reported are fully supported by the medical evidence. The evidence of the prosecution witnesses is consistent and found reliable and trustworthy in spite of lengthy cross-examination.
No infirmity was pointed out by the learned counsel for the accused/appellants in appraisal of such evidence. Recoveries effected from the spot and from inside the bus and the damage caused further was rightly relied upon as strong pieces of corroborative evidence. Similarly motive for commission of offence is also not being denied. No doubt the learned High Court has observed that it was a sudden fight but it has been ignored that the parties had even previously exchanged hot words and were annoyed over the timing of plying of their buses on the same route. However, it cannot be denied that on facts and circumstances of the case it was the accused party who had after proper preparation and consultation duly armed had made up their mind for the scuffle and invited trouble when they blocked the passage of the bus plying by the complainant party and fired at the tyre so that it may be made incapable for proceeding further and also not to allow any opportunity to the complainant and his companions to escape from the scene of occurrence when confronted with the accused party. The possibility, that there may have been before resorting to fire altercation between the parties, cannot be ruled out but that in the facts and circumstances of the present case, by itself, would not make the nature of the offence doubtful than that for which they were found guilty by both the Courts below. The learned High Court, therefore, keeping in view the narration of facts given by the prosecution witnesses rightly found the nature of the offence to be that of section 302/148/149 P.P.C. The conviction recorded as such is, therefore, well founded and needs no interference.
11. As far as the sentence of death is concerned, admittedly there were existing ill-feeling between the parties over t!'e plying of their buses on the route, therefore, the possibility of their being ensued altercation and abuses could not be ruled out and for that reason the extreme penalty of death was not considered proper by the learned High Court to be imposed upon the main culprits. The sentence being legal we are not inclined to interfere with it which is imp8sed by the learned High Court on its view of the matter. We, therefore, find no substance in the appeal of the appellants/accused as well as that of the complainant/appellant and dismiss both of them.