1981 PLP (2) (SCMR)

SHAFI-UR-REHMAN, J.-The two petitioners who are brothers seek leave to appeal against the judgment of the Lahore High Court dated 16-12-1980 whereby their conviction under section 302/34, P. P. C., and under sec tion 307/34, P. P. C., was upheld as also the sentences awarded.

2. The prosecution case was that Nawab deceased had obtained land from Abdur Razzaq on lease which expired in Rahi 1976. After Rabi 1976 Luqman Rajput was the lessee and had given it on cultivation to father of the petitioners. There was a dispute over the handing over of possession of a part of the land. There was an altercation in which Nawab and Mir Dad P. W. gave kick and fist blows to the two petitioners and their father and in retaliation on 26-6-1977 at about 6 a. m. the petitioners attacked them. Haq Nawaz had a "balam" while the other petitioner had a stick. There were others with them. They gave numerous blows to the deceased and when Mir Dad tried to intervene he was also given injuries. Mir Dad lodged the report. Haq N'awaz led to the recovery of blood-stained "balam" and Zafar petitioner to the Dang P.

7. Nawab had 11 injuries of which one was incised wound and the others all caused by blunt weapon. Mir Dad had eight injuries of which six were incised wounds four of which were grouped as Injury No. 4. .

3. The petitioner Zafar took up the plea that the deceased suspected their father of having committed theft and had on that account come to their house and wanted to take the wheat when he was resisted by his mother. It ` was there that he in his act of self-defence of person and property used the arm of a cot for inflicting injuries on them.

4. The trial Court believed the motive which was considered sufficient and also believed the ocular evidence of the injured witness Mir Dad. Abdul Jabbar (P. W. 7) and Murad (P. W. 9) were also believed. The defence version was found not to be reasonably consistent with what the prosecution had proved. He found all the accused facing trial guilty of the offence and sentenced them under sections 302 and 307, P. P. C.

5. On appeal, the learned Judge in the High Court found that though the witnesses were related but there was no enmity and the version put forward by the defence got no support from the record. All the same on the same evidence the learned Judge in the High Court gave benefit of doubt to two of the co-accused.

6. The learned counsel for the petitioners has taken up two grounds for maintaining this petition. Firstly, it is contended that whatever be the motive attributed or suggested the grievance would have been of the com plainant-party and not of the petitioners. In this context, according to the learned counsel, the plea of defence of person and property pleaded by the accused could acquire importance and could be reasonably sustained on the material brought forward by the prosecution itself. The other point empha sised by him is that if the evidence was not considered worthy enough for believing the role of Shafi and Mulazim it could not be made the basis for the conviction of the petitioners particularly so when with regard to the injuries inflicted by "balam" the role attributed to Haq Nawaz was not consistently established on the record.

7. The motive given out by the prosecution was with regard to the compensation to be paid to the deceased for handing over a part of the land. The grievance of the petitioners would be that they had to pay compensation after being inducted as a tenant by the new lessee. This was the basic cause of difference between the deceased and the petitioners. It aggravated when there was manifestly a dispute over it and kick and fist blows were given on the earlier occasion. In order to vindicate it is said that the attack was launched. There were three witnesses so far as the ocular account was con cerned, Mir Dad the injured himself, Abdul Jabbar and Murad. Both the Courts have believed their presence and their having witnessed the occurrence. We do not find any reason to interfere with that conclusion of fact. Apart from this in a case of this type the venue where the- occurrence took place is a important factor. In this case it was found to be a place different from the house, the threshing floor or the bheni of any of the petitioners. It was consis tent with the prosecution case and inconsistent with the defence version. The nature and number of the injuries on the person of Mir Dad and of the deceased clearly suggested that at least two different types of weapons were used in causing injuries and that a number of injuries were caused to them suggesting that there was little or no resistance and that they were over matched in weapon or number. The injuries are not consistent again wit the defence version. These factors could justify the two Courts dealing with the case in arriving at the conclusion at which they have arrived.

8. As regards the discrepancy with regard to the exact number and location of the injuries there could possibly be a discrepancy as a number of injuries were inflicted and this has not been considered to play a significant vital role. The absence of any injury to any of the petitioners would also suggest that the prosecution case is consistently made out and the defence version finds no support.

9. We do not find any merit in the petition and the leave to appeal is refused. Petition dismissed.