CH. MUHAMMAD ARIF, .J. - Asad Ullah Khan-complainant in this murder case has sought leave to appeal against the judgment, dated 24.9.1997 of the Lahore High Court, Lahore passed in Criminal Revision No. 472 of 1991 titled Asad Ullah Khan v. Bakhtiar Ahmed and 5 others decided alongwith Criminal Appeal No. 829 of 1991, titled Ikram-ul-Haq and another v. The State, Criminal Appeal No. 832 of 1991 titled Altaf Hussain v. The State and Murder Reference No. 430 of 1991 vide its judgment, dated 15.8.1991.
2. Brief facts leading to the present petition are that the occurrence in this case took place on 29.5.1987 at about 4.00 p.m. In the house of Arshad father of accused-Bakhtiar Ahmed within the Abadi of village Raja Jang District Kasur. Asad Ullah Khan lodged a report Exh. P.J. At 5.00 p.m. In Police Post Raja Jang to Muhammad Haroon, A.S.I. (PW-16) who, after reducing the same into writing, despatched it for registration of formal F.I.R, at Police Station, Mustafabad, Kasur and the F.I.R, was registered at 5.30 p.m. By A.S.I. Muhammad Bashir. It was stated by Asad Ullah Khan that he was a Police employee and resident of Raja Jang. On 27.4.1987, there was a dispute between the parties in relation to match-making, which resulted in an assault regarding which a case under Sections 307/324/34, P.P.C, was registered at Police Station, Mustafabad, District Kasur vide F.I.R. No. 94 of 1987 against Subahat Anjum, Mazhar, Azam and Yaqub. With the intervention of the respectables of the area, the matter was patched up and the accused were released on bail. Asad Ullah Khan came home to celebrate Eid-ul-Fitr on 29.5.1987. He learnt about the tension between the parties. He alongwith Fazil his brother Nasir apprised Muhammad Arshad and Haji Muhammad Zaman of the same. They, in turn, asked them to collect all concerned so that a patch up may be negotiated. Afterwards, Bukhtiar Ahmed son of Muhammad Arshad came to call him at which he alongwith Azhar Javed (deceased-brother) Wajahat Anjum (deceased-son), Sher Muhammad (PW-9) and Khadim Siddique (PW-10) went over to the house of Muhammad Arshad at about 4.00 p.m. On entering the outer door of the house they saw that Ikram-ul-Haq, Ehsan-ul-Haq, Manzoor Ahmed, all armed with 12 bore guns and Altaf Hussain armed with a Carbine were present on the roof of the Baithak of Muhammad Arshad. Bakhtiar Ahmed said that he had brought Asad Ullah Khan and others over and it was not for them to deal with them. At this, Ikram-uk-Haq fired at Wajahat Anjum at the chest resulting in his fall in the courtyard of the house. Thereafter, Ehsan-ul- Haq fired with his gun at Azher Javed on his right side while the fire shot by Manzoor Ahmed hit him on his left hand, resulting in his fall in the same courtyard. Asad Ullah Khan stepped forward to pick up his son and was himself fired at by Altaf but, except for a pellet hitting at his right wrist, he remained unhurt. In addition to the complainant Asad Ullah Khan (PW-8), the occurrence was witnessed by Muhammad Fazil, Sher Muhammad (PW-9) and Khadim Siddique (PW-10), his companions and, at their noise, the accused mentioned above then concealed themselves in their residential house.
3. The prosecution sought to establish its case against the accused by furnishing eye-witnesses account through PWs 8, 9 and 10. The testimony of Dr. Muhammad Sohail Ahmed (PW-12), and that of Dr. Sadiq Hussain Naqvi (PW-14), proved the injuries suffered by the deceased as also Asad Ullah Khan (PW-8). The Trial Court acquitted accused-Bakhtiar Ahmed and Manzoor Ahmed; sentenced accused Altaf Hussain under Section 307, P.P.C, and awarded two years' R.I. With a fine of Rs.5,000/- or in default to undergo 3 months' R.I. Ikram-ul-Haq and Ehsan-ul-Haq were convicted under Section 302, P.P.C, and sentenced to death with a fine of Rs.2,000/- or in default to undergo 2 years R.I. They were further directed to deposit a sum of Rs.25,000/- to be given as compensation on single count for the murders of Wajahat Anjum and Azhar Javed respectively. Charge under Section 148, P.P.C, was dropped as the case was considered that of individual liability.
4. In their statements under Section 342, Cr.P.C., all the accused denied the occurrence and pleaded false implication. However, they opted not to be examined under Section 340 (2), Cr.P.C.
5. The learned Division Bench of the High Court considered all the matters as detailed in the above and came to the conclusion as below:- "(I6) In view of the parties relationship and the fact that both the factions were getting together to sort out family bitterness, it is difficult to imagine that Bakhtiar Ahmed had rounded one set of cousins to his house by deceit and entrench the other set of the cousins on his roof top to fire at them. The issue under negotiations was of sensitive nature. It related to the previous occurrence that had taken place over emotional involvement of cousins from different sexes. In the course of discussion, annoyance must have occurred resulting in shoot out without prior concert. The prosecution apparently has withheld the actual origin of the occurrence.
(17) In this view of-the matter, we feel that this is not a case of maximum sentence as the occurrence had taken place without prior concert and each accused deserves to be punished for his own at. Needless to add that the learned Trial Court too has awarded sentence on single count.
(18) Resultantly, the conviction of the appellants is maintained and their Death Sentence is not confirmed. The death sentence awarded to Ikram-ul-Haq and Ehsan-ul-Haq is converted into life imprisonment. The fine is enhanced to 118.50,000/- after accepting of notice in this behalf by the learned counsel. In default of payment of fine, each will undergo four years R.I. The the, if realized, shall be paid to the legal heirs of each of the deceased. The appellants are also directed to pay compensation of Rs.25,000/- each or to undergo six months R.I. In default. The conviction of Altaf Hussain is maintained and his sentence is reduced to one already undergone by him. The imposition of fine is also maintained. If the same is not paid, he will undergo three months S.I. He is on bail. He is discharged of his bail bonds. One month is given to Altaf Hussain to deposit the fine.
The convicts/appellants shall be entitled to the benefit of the provisions of Section 382-B, Cr.P.C."
6. Mr. Asghar Ali, learned Advocate Supreme Court appearing in support of this petition, was content with arguing that the private- respondents herein were guilty of pre-planned and callous double murder with the result that holding the same to he the individual liability of some of them, does not find support from the material-on the record. According to him, all the accused deserve to he convicted under Sections 302/149, P.P.C, on two counts as well as under Sections 307/149, P.P.C, and Section 148, P.P.C. He concluded his submissions with the plea that commutation of death sentences awarded to respondents Ikram-ul-Haq and Ehsan-ul-Haq does over look the elements of brutality and callousness with which Wajahat Anjum (13/14) and Azhar Javed (32) done to death.
7. There is no need for a detailed reference to the facts which found favour with the learned Division Bench of the High Court to , maintain the conviction of respondents Ikram-ul-Haq and Ehsan-ul- Haq under Section 302, P.P.C, and to reduce their sentence to imprisonment for life. Suffice it to say that the acquittal of Bakhtiar Ahmed and Manzoor Ahmed by. The learned Trial Court and conviction of Altaf Hussain under 1 Section 307, P.P.C. and sentence of 2 years' R.I. With fine of Rs.5,000/- were not interfered with by the learned Division Bench of the High Court on correct appreciation of the evidence on record.
8. As regards the reduction of sentence of respondents Ikram-ul- Haq and Ehsan-ul-Haq, the discussion in that behalf in paras I6, 17 and 18 of the impugned judgment has already been reproduced to in para 5 above. The learned Judges of the High Court were quite right in holding that this is not a case of maximum sentence. As the occurrence had taken place without prior concert, therefore, each one of the accused deserved to be punished for his own at. Even the withholding of the information regarding the origin of the occurrence by the prosecution was duly noticed in para I6 and the sentences of death on one count each to respondents Nos. 4 and 5 was altered to imprisonment tor life. We find that the alteration of sentences in case of respondents Nos. 4 and 5 has proceeded on correct appreciation of the material on the record which clearly brings it to the fore that this is not a case of maximum sentence.
9. Resultantly, this petition fails and is hereby dismissed.