1994 PLP 1201 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑Appellants Muhammad Sharif and Muhammad Munir alongwith their father Muhammad Boota and their four brothers Muhammad Siddique, Muhammad Rafique, Muhammad Bashir and Nek Alam were tried under sections 302 and 307 read with section 34, P.P.C. for causing the death of Muhammad Hussain deceased and making murderous assault on Abbas Ali P.W., by the learned Sessions Judge, Sialkot who vide his judgment dated 25‑4‑1981 found the. appellants guilty and sentenced Muhammad Sharif appellant to death and a fine of rupees five thousand, in default to undergo six months' R.I. under sections 302/34, P.P.C. and for five years R.I and fine of rupees two thousand, in default to undergo R.I. for three months under sections 307/34, P.P.C.. It was ordered that the sentence of appellant Muhammad Sharif under sections 307/34, P.P.C. shall take effect if the death sentence was not confirmed. Muhammad Munir appellant was sentenced to imprisonment for fife and a fine of rupees five thousand, in default to undergo for six months' R.I. under sections 302/34, P.P.C.. He was also sentenced to five years' R.I. and a fine of rupees two thousand, in default to undergo for three months' R.I. under Ss. 307/34 P.P.C.. Half of the fine imposed under section 302/34, P.P.C., if recovered, was to be paid to the heirs of Muhammad Hussain deceased. Half of the fine, imposed under section 307/34, P.P.C., if recovered, was to be paid to Abbas Ali, the injured P.W. The other co‑accused of the appellants were acquitted of the charges. The appellants' appeal and murder reference were taken up by a learned Division Bench of the Lahore High Court. It vide order dated 13‑2‑1985 upheld the convictions and sentences except that the sentence of death awarded to Muhammad Sharif appellant was reduced to imprisonment for life Hence this appeal by leave.

2. Relevant facts are that Abbas Ali P.W.10 had taken some agricultural land on lease from two brothers namely Muhammad Shari and Khuda Bakhsh. After the death of Muhammad Shari, Muhammad Boota, father of the appellants claimed that he had obtained the lease of the said land from Khuda Bakhsh. A fortnight prior to the occurrence Muhammad Boota asked Abbas Ali P.W. to hand over possession of the land to him. On this Abbas Ali P.W. filed a suit and obtained an order for the maintenance of status quo pendente lite from a civil Court at Daska. This was the background in which the present occurrence took place on 26‑6‑1979. According to the prosecution in the morning of the said date Abbas Ali P.W.10 and Muhammad Tufail P.W.11 went to the land in question with a tractor and ploughed it. Muhammad Tufail P.W.11 was the driver of the tractor. While the land was being ploughed, Muhammad Hussain deceased, brother of Muhammad Tufail P.W.11, also came there. Muhammad Boota had his cattle shed near the land and he was present there while the land was being ploughed. Suddenly he raised a Lalkara whereupon the appellants alongwith their acquitted co‑accused emerged from a nearby Charri field. They were carrying different arms. The appellants had .12 bore guns with them. Muhammad Sharif appellant fired and hit Muhammad Hussain deceased. Abbas Ali P.W.10 raised his hands to stop the assailants from firing. Muhammad Munir fired at him and he was hit on the left hand. After the departure of the appellants and their co‑accused, Muhammad Hussain (deceased) was carried to the Civil Hospital at Sialkot, where he succumbed to his injuries. The occurrence was reported at P.S. Sambrial on the same day at 2‑50 p.m. Immediately after the occurrence the appellants and their co‑accused absconded. Muhammad Sharif appellant was arrested on 13‑10‑1980 and Muhammad Munir on 23‑8‑1979. From Muhammad Sharif appellant gun P/4 was recovered on 24‑10‑1980 vide memo Exh. PK attested by Muhammad Tufail P.W.11 and Ghulam Hussain ASI, P.W.13. From Muhammad Munir appellant gun P/5 was recovered on 23‑8‑1979 vide memo Exh.PL attested by Muhammad Tufail P.W.11 and Hadayat Ali ASI, P.W.15. At the trial the appellants and their co‑accused pleaded not guilty to the charges against them. They alleged that they had been falsely implicated on account of enmity. They denied that they had absconded after the occurrence and explained that they had left the village and shifted to Hafizabad out of fear of the local police which was inimical towards them and had concocted a false case against them. They also stated that they had no reason at all to kill Muhammad Hussain who had previously supported their cause. They produced two witnesses and number of documents in their defence. The two Courts below, however, found them guilty and sentenced as stated above.

3. It is contended by the learned counsel for the appellants that there was a serious enmity between the parties and the occular testimony without corroboration was not sufficient to warrant the appellants' conviction especially when the same evidence has not been believed against the acquitted co‑accused.

4. Learned counsel for the State has supported the judgment under appeal.

5. After hearing learned counsel .for the appellants and perusing the evidence referred by him, we do not find that there is any justification to interfere in the finding of guilt recorded by the two Courts below against the. appellants. The contention that, the. same evidence has not been believed against the co‑accused loses sight of the fact that the acquitted co‑accused had caused no injury either to the deceased or to the injured P.W. Abbas Ali. They were given the benefit of doubt by the learned trial Court, and their acquittal was not challenged' any further. As regards the appellants, nothing substantial has been pointed out to warrant interference by this Court in the finding of the two Courts below. In this view of the matter, their appeal is dismissed. However, while reckoning the sentences of imprisonment to be undergone by the appellants, they shall be given the benefit of section 382, Cr.P.C. N.H.Q./M‑1956/S ????????????????????????????????????????????????????????????????????????????? Appeal dismissed.