QASIM KHAN AND Others vs THE STATE

KHALILUR RAHMAN, J.-Qasim (37) son of Jafar, his wife Mst. Bhagan (37), Matah Khan (32), Ata Khan (40), Muhammad Khan (62), Gehna Khan (82), sons of Ahmad Khan, Ali Khan (23) son of Muhammad Khan and Muhammad Khan (62) son of Gehna Khan, all residents of village Kiran, appellants in Criminal Appeal No. 1274 of 1976 ; Muhammad Nawaz (25) son of Shahbaz Khan, Habib Khan (42) son of Sardar Khan, Rehman alias Rehmatullah (32) son of Sardar Khan and Ata Khan (42) son of Sardar Khan (not father of Rehman) all residents of village Mazari, appellants in Criminal Appeal No. 1282 of 1976 ; and acquitted accused Mst. Sardaran (25) wife of Muhammad Khan, Mst. Sattan (25) daughter of Ahmad Khan, Mst. Kaneez (39) wife of Matab Khan, Mst. Kaneez

(28) wife of Gehna Khan (Gehna Khan son of Sher Khan, another accused died before the trial), were tried on charges under sections 148, 302/ 149, and 307/ 149, P. P. C. For, having formed themselves into an unlawful assembly while armed with lethal weapons and in execution of its common object, having committed the offence of rioting and the murders of Liaqat Ali, Ghulam Ali, Riaz Khan, Muhammad Khan, Mukhtar Khan and Mst. Iqbal Bibi and murderous assault on Zil-i- Hussain (P. W. 16), Murid Abbas (P. W. 22), Daim Khan, Muhammad Ashraf (P. W. 19), Mst. Kalsoom (P.

W. 20), Mst. Allah Wasai (P. W. 21), Mst. Amiran (P. W. 17) and Wali. Muhammad, by the learned Sessions Judge, Jhang ; who by judgment dated 30-11-1976, acquitted a set of last mentioned persons and convicted the appellants and sentenced them thus : Appellant Qasim Khan to death and a fine of Rs. 1,000 or in default further rigorous imprisonment for one year under section 302/149,, P. P. C. For the murder of Mst. Iqbal Bibi ; life imprisonment under section 302/149, P. P. C. On five counts for the remaining five murders and a fine of Rs. 1,000 on each count, or in default further one year's R. I. ; seven years' R. I. And a fine of Rs. 500 on seven counts or in default further one year's R. I. Under section 307/149, P. P. C. For making murderous assault on the P. Ws. ; and one year's R. I. Under section 148, P. P. C.

Appellant Mst. Bhagan to one year's R. I. Under section 323, P. P. C. For causing simple injury to Riaz Khan deceased; all the remaining appellants to life imprisonment under section 302/149, P. P. C. On each count for six murders, and a fine of Rs. 1,000 each on each count or in default further rigorous imprisonment for one year; under section 307/149, P. P. C. To seven years' R. I. And a fine of Rs. 500 or in default of payment of fine to suffer further one year's R.

1. Each on each of the seven counts ; and one year's R. I. Each under section 148, P. P. C.

The substantive sentences in each case were to run concurrently. The amount of fine or a part of it, if realised, was to be paid to the heirs of the deceased or injured P. Ws. As the case may be.

2. Murder Reference No. 7 of 1977 ; Criminal Appeal No. 1274 of 1976 by Qasim Khan etc., Criminal Appeal No. 1282 of 1976 by Habib Khan etc. And Criminal Revision No. 673 of 1977 by Dost Muhammad Khan are being disposed of together.

3. Revision petition was ordered to be heard along with the connected appeals. After hearing some arguments, we were of the view that the question of enhancement of the sentences awarded to the respondents in the revision petition might arise and therefore, we issued notices to the respondents in this regard. Kh. Sultan Ahmed, Advocate accepted service of the notices on behalf of Habib Khan, Rehman, Ata Khan and Muhammad Nawaz, respondents while Mr. Shamim Abbas Bokhary, Advocate accepted service on behalf of the remaining respondents. Both the learned Advocates represent the respondents in the connected appeals and had undertaken, after consulting the relatives of the respondents present in Court to file formal power of attorney on their behalf. We, have therefore, decided to dispose of this matter along with the other connected matters.

4. The occurrence allegedly took place on 28-7-1974 at 6-00 a. m. In the area of village Kiran. The F.

I. R. (Exh. PR) was lodged at Police Station Qadirpur, at a distance of eight miles, at 8-00 a.m. It was at the instance of Dost Muhammad P. W. 13 and recorded by S. 1. Ahmad Yar P. W. 26.

5. Prosecution case is that one Fateh Khan son of Lai, first cousin Q13 LsQ_,#6d) of the complainant Dost Muhammad owned land, comprised of Killa Nos. 11, 12, 13 of Square No. 43 in village Kiran.

During the consolidation in 1967, it had gone to Gehna Khan son of Sher Khan, who it may be noticed, had died before the trial. As Fateh Khan had also died and his widow was a niece of the complainant, an appeal on her behalf was preferred in the Court of the Additional Commissioner (Consolidation) Sargodha which succeeded and the area restored to her. The complainant party, allegedly, had even obtained possession of the same under the due process of law. The accused party, on the other hand, insisted that they would not permit them to till the land. This provided a background to the occurrence which proceeds on a narration that on the fateful morning at about 6-00 a.m. Deceased Riaz Khan, Ghulam Ali, Muhammad Khan sons of Budha Khan, brothers of the complainant ; Muhammad Mukhtar, Liaqat Ali sons of Muhammad Nawaz, grandsons of Budha Khan, started ploughing the land. Appellants Qasim Khan, Matah Khan, Ata Khan, Muhammad Khan son of Gehna Khan, Habib Khan, Rehman, Ata Khan and Muhammad Nawaz armed with guns ; appellants Muhammad Khan, Ali Khan armed with hatchets ; and Gehna Khan son of Sher Khan and appellant Gehna Khan son of Ahmad Khan, armed with sticks, who were hiding nearby, appeared suddenly and opened the attack. First fire came from appellant Matab Khan, hitting Ghulam Ali deceased close to the left armpit. He fell down. Second shot was fired by Qasim Khan appellant and this hit deceased Muhammad Mukhtar on his right arm and right leg. Appellant Muhammad Khan son of Gehna Khan. Also fired at Muhammad Mukhtar hitting him on his left leg.

He fell down, Muhammad Khan son of Abmad Khan, then gave a hatchet blow on his head.. Fourth shot bitting Liaqat Ali deceased on his nose and chest came from appellant Ata Khan son of Ahmad Khan. He (Ata Khan) repeated the fire hitting Liaqat Ali on his cheek, neck, right shoulder and left arm. He also fell down. Appellant Habib Khan fired two shots hitting Riaz Khan deceased on his chest and right arm. Riaz Khan deceased was also fired at by appellant Ata Khan son of Sardar Khan at his right thigh, buttock and left thigh. He (Riaz Khan) was also, given a sofa blow by Mst.

Bhagan appellant, after be had fallen down on the ground. Appellant Rehman fired two shots hitting Muhammad Khan deceased on his left flank and left arm. Appellant Muhammad Nawaz also fired two shots hitting Muhammad Khan deceased on the left wrist and both the right and left thighs. Appellants Gehna Khan son of Ahmad Khan, Gebea Khan son of Sher Khan, Mst. Sardaran, wife of Muhammad Khan, Mst Kaneez Fatima wife of Gehna Khan, Mst. Kaneez wife of Matah Khan and Mst. Sattan, daughter of Ahmad Khan, gave stick blows to all the five deceased after they had fallen down. Injured P. W. Daim Khan and Wali Muhammad (not examined) tried to intervene but they were also fired at by appellant Qasim Khan. Murid Abbas and Mst. Iqbal Bibi were, also injured by his firing. The remaining accused had, also fired at them and had injured them with their hatchets and sticks. The incident, besides the complainant and the injured persons is stated to have been witnessed by Ghulam Abbas P. W. 23, Langer Khan son of Sikandar Khan of village Joke (not examined) and Manzoor Ali Khan P. W.

14. The injured persons were sent to the hospital while the complainant himself went to the Police Station for lodging the report.

6. S. I. Ahmad Yar after recording the F. I. R. Proceeded to the spot. On the way at bridge Semwali, he met Mst. Iqbal Bibi deceased who was then alive and the injured P. Ws. Mst. Kalsoom, Mst. Amiran, Mst. Allah Wasai, Zil-i-Hussain, Murid Abbas, Daim Khan, Muhammad Ashraf and Wali Muhammad.

He prepared their injury statement, and recorded their statements under section 161, Cr. P. C. Exh.

PZ/6 is the statement of Mst. Iqbal Bibi deceased. This has been used as dying declaration. He then reached the spot and prepared injury statements Exhs. PZ/5, PZ/7, PZ/8, PZ/9 and PZ/10 of deceased Ghulam Ali, Liaqat Ali, Riaz Khan, Muhammad Khan and Muhammad Mukhtar. He also held inquest and drew reports Exhs. PZ/18, PZ/19, PZ/16, PZ/20 and PZ/17, respectively. The dead bodies were then despatched to the mortuary for post-mortem examination. He collected blood-stained earth from five different places underneath the dead bodies of the above-mentioned five deceased. The same was taken into possession vide memos. Exhs. PZ/21, PZ/22, PZ/23, PZ/24 and PZ/15. He collected fourteen (14) '12 bore empties from different places and sealed them into five different parcels vide memos Exhs. PZ/26, PZ/27, PZ/28, PZ/29 and PZ/30.

On 29-7-1974 he arrested appellants Qasim Khan, Matah Khan, Gehna Khan, Rehman, Habib Khan, Ata Khan son of Sardar Khan, Muhammad Khan, Ali Khan, Muhammad Khan son of Gehna Khan and Mst. Bbagan and co-accused Mst. Sattan, Mst. Sardaran, Mst. Kaneez Fatima wife of Gehna Khan and Mst. Kaneez wife of Matah Khan. Appellant Ata Khan produced gun P. 25 before him which was taken into possession vide memo Exh. PZ/41. Appellants Qasim Khan, and Rehman produced guns P. 24, P.27 while Matah Khan rifle P.

26. These were taken into possession vide memos Exhs. PZ/40, PZ/43 and PZ/42 respectively. The gun of appellant Rehman was a licensed gun. He made certain other recoveries from the acquitted accused and also from Gehna Khan, on the same day including lathi P. 28 from appellant Gehna Khan and lathi P. 33 from appellant Mst.

Phagan. These were taken into possession vide memo. Exhs. PZ/44 and PZ/49.

On 6-8-1974 appellant Habib Khan while in police custody led to the recovery of gun P.5 from his residential house. This was taken into possession vide memo Exh. PX and made into a parcel. On the same day appellant Muhammad Nawaz led to the recovery of gun P. 6 which was taken into possession vide memo Exh. PY. Last of all appellant Ata Khan led to the recovery of gun P. 7 which was secured and sealed into a parcel vide memo Exh. PZ. Appellant Ali Khan on 8-8-1974 led to the recovery of blood-stained hatchet P. t from within the courtyard of his house which was taken into possession and sealed into a parcel vide memo. Exh. PT. Appellant Gehna Khan also led to the recovery of blood-stained sofa P. 2 which was taken into possession vide memo Exh. PU. Appellant Muhammad Khan son of Ahmad Khan got recovered blood-stained hatchet P. 3 which was secured and sealed into a parcel vide memo. Exh. PV. On the same day Muhammad Khan son of Gehna Khan led to the recovery of gun P. 4 which was taken into possession vide memo Exh. PW. He got site plans Exhs. PZ/57 and PZ/58, prepared by Ahmad Nawaz C. W.

7. Dr. Abdus Sattar P. W. 1, the then Medical Officer, D. H. Q. Hospital, Jhang, conducted post-mortem examinations on the dead bodies of the deceased on 29-7-1974. His observations are as follows: Liaqat Ali deceased : He bore five injuries ; a lacerated wound with inverted margins ----- x ----- brain deep on the right side of nose. Nasal Frontal bone of the skull was also fractured. Found injured. A pellet was found lodged entrance 1/4' x 1/4' with inverted margins on below lower jaw. The wound of exit was 1/2' X 1 /4" side of face. There was fracture of lower jaw. The from below to upwards ; a lacerated wound 1/3--- x ----- x ----- on the right upper arm, at its upper most part outer of the wound were burnt ; a lacerated wound 1/3--- x ----- x muscle deep on the right side of chest. There was It was 4" above the right nipple ; anda lacerated wound ----- x ----- x perforating to the back side of left arm. It had part of the left chest. There was fracture of upper lobe of left lung was found blasted. There was the chest cavity. On X-ray a bullet was found lodged in column (seventh dorsal vertebra). Left pleura of the found injured.

All the injuries bad been caused with fire-arm. Injuries Nos. 1 and 5 were individually fatal. Injury No. 2 was grievous and the rest were simple.

In the opinion of the doctor death occurred due to injuries Nos. 1 and 5 which caused haemorrhage and shock and were sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination about 24 to 30 hours.

Ghulam Ali Khan deceased The deceased sustained a gunshot wound on the lateral aspect of left chest in axillary region, 1--- x 1--- circular. It was under the pectoral major muscle. The margins of the wound were scorched. It had no wound of exit.

The third left rib was fractured in axillary region. Left pleura was found fractured. Trachea was found ruptured and also the right lung in the upper part. Left lung was also ruptured. Ascending aorta was also ruptured. Six pellets were recovered from the chest along with wads. Injury was fatal. In the opinion of the doctor, death occurred due to shock and haemorrhage. Time between injury and death was immediate and between death and postmortem was about 24 to 30 hours.

Mst. Iqbal Bibi deceased ; She sustained multiple gunshot wounds, fourteen in number, on front of the chest. They were scattered. Each wound was 1/8' in diameter. Multiple gunshot wounds, six in number, on the lateral and back side of left arm ; Three gunshot wounds on the back of right chest ; and two wounds on the right hip.

Pleura corresponding to the wounds of chest was found fractured at multiple places. Right lung was ruptured at multiple places. Peritonium at the level of ascending colon. Large intestines and liver were ruptured. All the injuries were caused with fire-arm. In the opinion of the doctor, the injuries were fatal in the ordinary course of nature. Death occurred due to shock and haemorrhage on account of rupture of lung and liver. Time between injuries and death was 12 hours and that between death, and post-mortem examination 12 to 24 hours.

Riaz Khan deceased Six injuries were noticed on his person, ten fire-arm wounds on the-front of right chest and on its lateral part, mostly on lower part. The dimension of each wound was 1/6' x 1/6' ; nine fire-arm wounds, each 1/6' x 1/6', on the right arm. The wounds were scattered ; fire-arm wounds on the right side of abdomen, 3----- below and lateral to umbilicus, 13 wounds each 1/6' x 1/6' on the right hip and thigh in upper part ; three fire-arm wounds on the inner side of the left thigh in its upper one third, and a contused wound on the left side of head on its back part, 1" x 1/3' x scalp deep, 2' from the left ear.

All the fire-arm wounds had scorched margins. The pleura 'was found injured on its right side. Right lung was ruptured on its lower lobe. Peritonium, large intestines and liver, were found injured. One pellet was removed from the liver. Injuries Nos. 1 to 5 had been caused with fire-arm while injury No. 6 was with blunt weapon. Injuries Nos. 1 and 3 were fatal. In the opinion of the doctor, death occurred as a result of injuries Nos. 1 and 3 which were individually as well as collectively, sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination was 24 to 30 hours.

Muhammad Khan deceased He sustained seven injuries on his person. A fire-arm wound 1----- ' X 1----- X skim deep on the left chest. The margins of the wound were scorched on its lateral aspect. It was 5----- from left nipple to lower and lateral aspect ; eight fire-arm wounds on the left side of the chest and on the left side of abdomen, each of the dimension of 1/6' x 1/6' X chest cavity deep. The margins of the wounds were scorched ; two fire-arm wounds, 1/6"X 1/6' each, on the left arm near elbow ; three fire-arm wounds on the left arm and wrist, 1 /6' x 1 /6' each ; Twelve fire-arm wounds, each 1/6' X 1 /6', on the front and lateral aspect of left thigh ; four fire-arm wounds with scorched margins on the left abdomen on its lower lateral part ; and three fire-arm wounds on the right thigh on its front upper part.

Pleura was found injured on its left side. Left lung was ruptured at two places, one in each lobe.

Pericardium was ruptured on its left side. Small intestines at many places, large intestines on left side, spleen at two places and urinary bladder were found ruptured. Injuries Nos. 2 and 6 were fatal while rest of the injuries were simple in nature. Four pellets were removed from the chest and abdomen. In the opinion of the doctor, death occurred due to injuries Nos. 2 and 6 which caused haemorrhage and shock. These were sufficient to cause death in the ordinary course of nature.

Time between injuries and death was immediate and that between death and post-mortem examination about 24 to 30 hours.

Muhammad Mukhtar Khan deceased He had, in all, sustained eight injuries, a lacerated wound 2--- x ----- x scalp deep on the back of head on its left side ; an abrasion 1" x ----- on the right forearm on the back in the lower part ; three gunshot wounds, ----- x ----- x muscle deep each, on the inner side of the right thigh just above knee. There was fracture of femur bone and blood vessels. One pellet was removed from this wound ; four gunshot wounds on the outer side of right knee muscle deep ; a fire-arm wound (wound of entrance) ----- x ----- x with inverted margins on the right leg in its middle part, outer aspect, with wound of exit 1/3' x ----- with inverted margins inner side of leg ; a fire-arm wound --- -- x ----- x muscle deep on the upper part of the right leg on its outer side ; a fire-arm wound on the left knee in its inner side, ----- x ----- x muscle deep; and wound of entrance on the left leg on its inner side and wound of exit on the left leg, outer side in middle part.

Injury No. 3 was grievous and the rest of the injuries were simple in nature. Injuries Nos. 1 and 2 were caused with blunt weapon and rest with fire-arms. In the opinion of the doctor, death occurred due to injury No. 3 which caused haemorrhage and shock. This injury was individually sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem about 24 to 30 hours.

8. The same doctor, examined the injured persons on the complainant side on 28-7-1974. His observations are as follows : Zil-e-Hussain (P. W. 16)

He bore five injuries, a contusion 2" x 1' on the head (top of head); a lacerated wound ----- x 1/6" X skin deep on right shoulder with some burning margins ; a lacerated wound ----- x 1/6--- X skin deep on right supra clavicle region ; a blackened area with abrasion ----- x ----- just medial to injury No. 2 ; and a contusion 5" X 1----- on the right forearm.

There were two corresponding cats on the, vest which was blood-stained. Injury No. 2 was kept under observation. Injuries Nos. 2 to 4 were advised to be X-rayed. They were later declared simple.

Injury No. 5 was also found simple. Injury No. 1 was caused with blunt weapon and rest with fire- arm. Injury No. 1 was also declared simple. Duration of the injuries was 12 to 18 hours.

Wali Muhammad (not examined) : He had an inlet wound 1/6' x 1/6" x muscle deep, on right leg on its upper part on the front side. It had an exit wound on the back of right leg, 1/4" x 1/6" with inverted margins. The injury was caused with fire-arm and was of the duration of 12 to 18 hours. There was a corresponding hole on the chaddar. On X-ray the injury was found simple.

Muhammad Ashraf (P. W. 19)

He had two injuries : A lacerated wound 1/8' x 1/8" X 1/8" on the right infra scapular region on the shoulder ; and a lacerated wound on right upper part 1/8" x 1/8" x skin deep with swelling around the wound. Margins of the wound were inverted and there was a hole on the shirt.

All the injuries were caused with fire-arm. On X-ray they were declared simple. The duration was 12 to 18 hours.

Murid Abbas (P. W. 22)

He had as many as 10 injuries : A lacerated wound 1----- x ----- scalp deep 5 above the right ear, on right side of head ; a contused wound 1" x ----- x- scalp deep on the top of the head ; a reddish contusion 3 x 1----- on right scapular region ; there was swelling on the right forearm in an area of 3" X 1----- ; a contused wound 1/2" x 1/4" x skin deep on the back of left forearm near elbow ; a lacerated wound with inverted margins 1/6--- x 1/6--- x skin deep on left forearm inner side ; a contusion 2" x 1/2" on the left forearm in the middle part ; swelling on, the left hand in an area of 3' x 2" ; a lacerated wound 1/6" x 1/6--- x skin deep with inverted margins. There was redness around the wound. It was on the left thigh, upper part on the back side ; and a lacerated wound with inverted margins 1----- x 1/6-- - x skin deep on the right ankle, inner side.

Injuries Nos. 6, 9 and 10 were caused with fire-arm while rest with blunt weapon, within the duration of 12 to 18 hours. All these injuries were found simple.

Daim Khan (not examined)

He was found to have sustained three injuries : A contusion 2----- X ----- on the right fore-arm near elbow; a reddish contusion on left thigh, on its back in the upper part, 3" x 1" ; and a lacerated wound with inverted margins, 1/6" x 1/6' x skin deep on the outer side of right leg lower part.

Injury No. 3 was caused with a fire-arm while rest had been caused with blunt weapon, within the duration of 12 to 18 hours. All the injuries were simple.

9. Dr. Muhammad Hasnain Naqvi, P. W. 2, examined Matah Khan and Ghulam Qasim Khan, appellants, on 30-7-1974. Matah Khan was found to have a contusion 1" x 1/4" x bone deep on the top of head. The injury was simple and caused with a blunt weapon. Probable duration of injury was three days.

Ghulam Qasim Khan appellant" had a lacerated wound 1--- x 1/5--- x skin deep on forehead ; an abrasion I/4' x 1/6' just on the left eye-brow. He complained of pain on the head. These injuries were simple and caused with a blunt weapon, within the duration of about three days.

10. Appellants at the trial, refuted the allegations and pleaded innocence. There are two different sets of appellants. Appellants in Criminal Appeal No. 1274 of 1976 are all residents of village Kiran, where the occurrence took place, whereas appellants in Criminal Appeal No. 1282 of 1976, are all residents of village Mazari. They have taken up the position that they are not related with the first set of appellants and had been implicated in the case due to enmity with Langar and Dost Muhammad P. Ws. They have however, admitted their relationship inter se. Habib Khan is the brother of Rehman appellant while Muhammad Nawaz and Ata Khan are their phuphair. Explaining their case, Matah Khan appellant made a detailed statement. He stated :- "I have been involved by Ikhtiar, Langar and ijost Muhammad P. Ws. Due to enmity. I have got no connection with the land in dispute nor am related to tire co-accused of village Kiran. Afzil, cousin of Ikhtiar Khan P. W. Had also involved me and Habib Khan and Rehman co-accused in a case under section 307/148/149, P.P.C. In which Langar Khan also appeared as a P. W. This case was also investigated by S. I. Rai Ahmad Yar P. W. Copy marked as Exh. D. R. Shows that all of us were discharged inthat case. Ikhtiar Khan is also inimical towards us because Habib Khan got a murder case registered against his relative in which Rehman co-accused and his mother also appeared as P. Ws. Copy of the Sessions Court's judgment is Exh. D. S. The prosecution has intentionally given up the said', Ikhtiar Khan and Langar Khan lest we should be able to establish the above- mentioned relationship as also our enmity with them. The police arrested me on 28-7-1974 and also searched my house but nothing incriminating was recovered."

The remaining three appellants, out of this set, have taken up almost the same position as adopted by Matah Khan appellant.

The first set of appellants have taken up somewhat different stand. They have admitted that they are related inter se. Muhammad Khan son of Gehna Khan appellant, in an answer to question No.

19. Has stated as follows :- "The occurrence took place during the night when I was present in my house situated in village abadi. My father was at his dera. He narrated the incident to the S. H. O. And showed him the northern wall of the said dera which bore the pellets and bullets marks, caused by the firing done by the deceased persons. He had also refuted the contention of the complainant party that the occurrence could be witnessed from point No. 11 of the site plan. Reference be kindly made to the inspection note recorded by the S. I. And marked as Exh. D. U. I also produce certified copy of Dost Muhammad---s application dated 13-3-1975, marked as Exh. D. V. Wherein he says that Ahmad P.

W. Had delivered the possession to them. I also produce certified copy of an application for the initiation of contempt of Court proceedings filed by Dost Muhammad in connection with his Rectification of Girdawari application pending before Collector, Jhang. I was arrested by the police on 28-7-1974. Nothing incriminating was recovered from my house.

My father remained in possession ever since and the consolidation proceedings were held in 1967.

Ahmad cultivated a part of Killa No. 11 for one crop only in 1970 under my father. Thereafter the land remained barren during the days of occurrence. Charri crop was sown by Yara in one kanal of Killa No. 11/1 and also Killas Nos. 8, 9, 12/ 1, and 13/ 1 belonging to my father were also cultivated by Yara.

He was tenant for the said land even during Kharif 1973. I was also falsely involved by the Dost Muhammad complainant along with Qasim Khan co-accused and certain other Dhalla Baloch Janwara in which Ghulam Ali deceased of this case and Langar Khan P. W. Had their legs fractured.

We both were acquitted in that case. Application for contempt of Court Exh. D. W. Is to come up for arguments after the learned Collector visits the site."

None of them has admitted his participation in the occurrence. They have generally taken up the stand that they have been involved in the case due to their relationship with Gehna Khan son of Sher (since dead).

From the trend of cross-examination and also as argued before us, their case is that they were in possession of the disputed land, the complainant party trespassed into it and they had therefore, the right of defence of their property and persons. They did not lead any evidence in defence, except documentary evidence.

The second set of appellants relied on copy of the judgment Exh. D. R. And D. S., to establish their enmity with Ikhtiar Khan and Langar Khan.

11. The prosecution at the trial, relied on the ocular testimony given by Dost Muhammad P. W. 13, Manzoor Ali Khan P. W. 14, Zil-e-Hussain P, W. 16, Mst. Amiran P. W. 17, Muhammad Ashraf P. W. 19, Mst.

Kalsoom P. W. 20, Mst. Allah Wasai P. W. 21, Murid Abbas P. W. 22 and Ghulam Abbas Khan P. W. 23, out of whom Zil-e-Hussain, Muhammad Ashraf and Murid Abbas, were injured in the occurrence ; the dying declaration of Mst. Iqbal Bibi Exh. P. W. 26/A ; the documentary as well as oral evidence in regard to the possession of the complainant party over the disputed land ; various recoveries ; the motive and finally the medical evidence.

12. The learned trial Judge, on the aspect of motive found that land measuring 2 kanals and 9 marlas in Killa No. 11 of Square No. 43, had been restored to Mst. Manzooran and Mst. Kanizan, heirs of Fateh Khan, in appeal. The accused party however, according to him, was in possession of the land during the days of occurrence and Mst. Manzooran and Mst. Kanizan had not been able to secure its possession from the accused. In regard to the ocular testimony, he has not accepted the part of the prosecution case that the accused were in a hiding before they opened the attack. He has, otherwise, found the ocular testimony as trustworthy with regard to the details of occurrence except that he has not relied on the evidence of Mst. Allah Wasai P. W. He has also accepted the dying declaration of Mst. Iqbal Bibi deceased and has found that "the dying declaration is quite consistent with the other ocular evidence". He has believed the recoveries except the recovery of rifle P. 26 from Matah Khan appellant. This rifle had not been sent to the Firearms Expert for the examination and opinion ; and moreover he was stated to be armed with a gun. Against Muhammad Nawaz appellant, he has used another circumstance to base his conviction.

According to Khan Zaman P. W. 18, Muhammad Nawaz had proceeded on leave on 4-6-1974 for sixty days and joined again on 28-7-1974, five, days before his leave had expired. The learned trial Judge found corroboration to the coular testimony from the medical evidence. Injuries on the person of Ghulam Qasim Khan and Matah Khan were of minor measurement and insignificant. The Medical Offcer pointed out that the injuries on the person of Matah Khan could be suffered in the ordinary pursuit of agriculture ; he rejected the defence of the second set of appellants that they had been involved in the case on account of enmity with Langar Khan and Dost Muhammad. He gave benefit of doubt to Mst. Sattan, Mst. Sardaran, Mst. Kaniz Fatima wife of Matah Khan and Mst.

Kanizan wife of Gehne Khan as the ocular testimony has material contradictions about the injuries attributed to each of them". In awarding lesser sentence to the appellants other than Ghulam Qasim Khan, -he was influenced by the fact that the appellants had been, somewhat provoked in view of the criminal trespass committed by the deceased over the land in their possession.

Ghulam Qasim Khan has been given death sentence in regard to the murder of Mst. Iqbal Begum as she had not committed trespass over the land and had come there to rescue the other P. Ws.

Even this appellant, in regard to the remaining five murders, has been awarded life imprisonment on five counts. His precise observations in this regard can be quoted with advantage : "Lesser sentence under section 302/149, P.P.C. Has been imposed on them because of trespass committed by the deceased on the land. The accused had, however, acted beyond all proportions.

The deceased were not armed nor they had fired at the accused party. The accused could not take up arms and right away kill the trespassers. The right of private defence of property has not been claimed by the accused. Even if it is considered here law does not allow a person to kill a man outright under pretext of private defence of property. The same view had been upheld in PLD 1970 SC 212 wherein the culprits were convicted under section 302/34, P. P. C. But the sentence of death imposed was reduced to life imprisonment. In this case as well I find that the sentence for life imprisonment imposed on the accused would meet the ends of justice."

13. Kh. Sultan Ahmad, learned counsel for the appellants in Criminal Appeal No. 1282 of 1976 has raised three fold contentions : firstly that the prosecution story on the whole, suffers from inherent defects and therefore, all the appellants (including his own clients) are entitled to the benefit of doubt ; secondly that appellants in Criminal Appeal No. 1274 of 1976, were in possession of the land.

The complainant party committed an act of trespass. The appellants, therefore, had a right to defend their possession and could justifiably cause the murders of the intruders in the exercise of the right of defence of property and their person. They could, foreseeing any danger from the complainant party, muster strength and collect people to their aid. This right would equally be available to the second set of appellants belonging to village Mizari, At the worst, it was a case where the appellants had exceeded this right. Their conviction, therefore, under section 302/149, P.

P. C., in any case, was not called for ; and thirdly, the second set of appellants had no community of interest with the first set of appellants. It having been established that they had enmity with Ikhtiar Khan and Langar Khan (who were cited as witnesses in this case) and Dost Muhammad P. W. Their implication is at the instance of these persons. Their participation in the occurrence is very doubtful and in any event, case of each individual out of this set of appellants, need independent scrutiny and it would be unsafe to convict them without due corroboration coming from an unimpeachable source. He criticised the recoveries made from this set of appellants.

14. Learned counsel appearing for the appellants in Criminal Appeal No. 1274 of 1976, generally adopted the arguments of Kh. Sultan Ahmad, Advocate. He however, emphasised the aspect that motive alleged in the case is so meagre that it would be difficult to infer that for this motive the accused party bad resorted to wreckless killing of so many persons. In his submissions the prosecution has concealed some material facts and in particular, in regard to the start of the fight.

He argued that the complainant party in the earlier hours of the day, without anticipating any serious resistence, had gone fully prepared to take forcible possession of the land and had even launched an attack on the accused party. It was in fact in the exercise of the defence of their persons that the accused party retaliated. Resulting in so many casualties. In his submissions the case is fully covered by general exception contained in section 100, P. P. C.

15. Learned State counsel, on the other hand, argued that the appellants had no right of self- defence either of property or person. He questioned the finding of the learned trial Judge that the accused party was in possession of the disputed land and the complainant party bad committed an act of trespass. According to -him the prosecution has been able to establish guilt of the accused/appellants to a hilt and no exception can be taken to their conviction. He joined the learned counsel for the petitioner in Criminal Revision No. 673 of 1977 in submitting that it is a fit case where, in exercise of the revisional jurisdiction of this Court, sentence of life imprisonment awarded to the appellants, should be suitably enhanced. In the circumstances of this case, normal penalty of death was the only sentence that should have been awarded to the appellants. The manner in which six human lives have been destroyed and many other injured, leads one to feel that the assailants had no regard for human lives and they had behaved as if they had gone for duck shooting. These were not only well-planned and fully calculated murders, but a macabre of lawful nature. Both sides referred to a number of cases in support of their respective contentions ; we intend to take note of them in the sequal.

16. We have considered the arguments raised before us and have gone through the record of the case, carefully. We are alive to the very sentimental and appalling arguments advanced before us by the learned counsel for the petitioner in the revision petition and also to the fact that many human lives have been lost in the occurrence. However, we wish to observe at the very outset that Courts should always subordinate their sense of delicacy to their sense of duty. Facts before the Courts should invariably be put in the pail of law and measured by scale of justice.

17. We feel that in this case the aspect of the case as to which of the two parties was in possession of the disputed land, will be of a paramount significance. Proper decision on this shall have, no doubt, a great bearing on the ultimate decision in this case. We have considered both the documentary and oral evidence in this regard very minutely. We are afraid, we cannot concur with the view taken by the learned trial Judge that on the day of occurrence, the accused party was in possession and the complainant party had committed an act of trespass which provided some element of provocation to the accused party. In this regard, it may be noticed at the outset, he has even misread Khasra Girdawari Exh. D. Q. To hold the view that in Kharif 1974, Yara son of Haider is entered as tenant under Gehna Khan accused in Killas Nos. 8. 9, 11/1, 12/1 and 13/1 of Square No. 43.

The disputed piece of land between the parties measures 2 kanals and 19 marlas and is comprised of Khasra No. 11/1 min of Square No. 43. Reference to Exh. P. W./12/A, shows that out of Killa No. 11, area measuring 2 kanah and 19 marlas and comprised of Khasra No. I l/1, was allotted to Gehna Khan son of Sher Khan and the remaining area measuring 5 kanals and I1 marlas comprised of Khasra No. I1/1 to one Boote Khan son of Sardar Khan. On appeal by Mst. Manzooran widow and Mst.

Kanizan daughter of Fateh Khan, vide Exh. PZ/70, order 9f the Consolidation Officer dated 16-4-1974, on the basis of a compromise between the parties, area measuring 2 kanals 9 marlas, out of Khasra No. 11/1 was restored to the two ladies. Killa No. 11/2 which had been allotted to Boote Khan son of Sardar Khan was also restored to these ladies through an exchange between them and said Boote Khan. Mutation No. 680 for giving effect to the order of the Consolidation Officer dated 16-4- 1974, was entered on 21-4-1974. Resultantly, Gehna Khan accused was left only with ten (10) marlas of land in Killa No. 11. However, before the order of the Consolidation Officer dated 16-4-1974, Gehna Khan vide Mutation No. 674 dated 12-3-1974 had made gift of Killa No. 11/1 (2 kanals 19 marlas along with Killas Nos. 6/2 and 10 of Square No. 42) in favour of his own son Muhammad Khan appellant. It may also be noticed (vide entry against Killa No. 11/1 in Exh. PZ/71), after the present occurrence, ultimately Killa No. 11/1 has been further bifurcated vide Mutation No. 680 dated 17-2-1974 between Mg. Manzooran etc. And appellant Muhammad Khan. Killa No. 11/1/( measuring 11 marlas had gone to Muhammad Khan and 11/I/2 measuring 2 kanals 9 marlas to Mst. Manzooran etc. Prosecution case is that Killa No. 11/1 was under the cultivation of Ahmad son of Lal P. W.

24. After the order of the Consolidation Officer dated 16-4-1974, he had handed over possession to the complainant party and therefore, on the day of occurrence complainant party was in possession.

Case of first set of the appellants however, is that after consolidation Gehna Khan son of Sher Khan had been entered as owner of Killa No. 11/1 in Kharif 1968. In Rabi 1970, Ahmad son of Lal was entered as tenant for one kanal, out of Killa No. 11/1. During the years 1971 to Rabi 1973, entire Killa_No. 11/1 remained in possession of Gehna Khan. The land was however, not cultivated by any one as it remained barren. After its gift in favour of Muhammad Khan appellant, Yara son of Hadider was the tenant of this land under Muhammad Khan appellant. We have seen entries of Khasra Girdawaris in Exh. D. Q. Ahmad son of Lal is shown as tenant of the entire area of 2 kanals 19 marlas of Killa No. 11/1 from Kharif 1970 to Rabi 1974. Entries of Rabi 1974 are shown to have been made on 27-3-1974.

However, in Column No. 18, there is a red ink note which is to the following effect :-- There is no mention of Yara son of Haider as tenant under Muhammad Khan. However, against Khasra No. 13/1 Yara son of Haider, has been shown as tenant in Column No. 18. In this column also there is a red ink note which reads :-- This obviously relates to the change of ownership under the gift from Gehna Khan to his son Muhammad Khan appellant. It cannot therefore, be accepted that in Rabi 1974, Yara son of Haider was a tenant under Muhammad Khan appellant. Learned trial Judge has, therefore, misread the entries in Exh. D. Q It may be noticed that even in the printed record before us, Part-11 (Documentary Exhibits), these entries have not been correctly shown in Exh. D. Q Against Khasra No. I1/1 vide Exh. P.Z./ 71, in March, 1975 Muhammad Khan appellant has been shown in possession through Yara son of Haider. Even in this document in Column No. 3 Ahmad P. W. Is shown as tenant in possession. It is therefore, obvious that attempt was made to alter the entries in the Khasra Girdawari in favour of Muhammad Khan, after the occurrence.

18. We find that both the parties, under the impression that much will depend on the entries in the revenue record, have been trying to have these tries altered to suit them. Ahmad Khan P. W. 24 who was cultivating killa No. 11 as non-occupancy tenant, had allegedly handed over the possession of the disputed land to Mst. Kanizan and Mst. Manzooran. He had executed a document (Exh. P. W.

24/A), in their favour. At the trial he denied the suggestion that Yara bad been cultivating the land during the days of occurrence. Dost Muhammad P. W. On 13-3-1975 had submitted an application Exh. D. V. Before the Collector (hang, for correction of the entries in the Khasra Girdawaris. He had taken up the position in this application that Ahmad Khan P. W. Was cultivating the land as tenant and had handed over the possession to the complainant party. The Patwari notwithstanding this, had made wrong entries in the Khasra Girdawaris. It appears he took the note in red ink in Exh. D. Q.

As adverse to their interest and wanted its correction. Naib-Tehsildar Mumtaz Ahmad P. W. Held inquiry into the matter. He submitted report Exh. P. W. 12/A. He ordered correction of the Khasra Girdawaris. He has stated that photostat copy of the agreement Exh. P. W. 24/A, was shown to him.

Ahmad Nawaz Patwari has been examined as C. W.

1. He admits that in Khasra Girdawari for Kharif 1968, Gehna Khan son of Sher Khan has been entered as owner in possession of Killa No. 11/1. This Khasra Girdawari has not been plaeed on record. He admitted that pursuant to the decision of the Consolidation officers dated 16-4-1974 Mutation No. 681 was entered on 21-5-1974. Mst. Manzooran etc. Got 2 kanals 9 marlas of land out of Killa No. 11/1 which was later divided into 11/1/2 and 11/1/1.

Mst. Manzooran had been given killa No. I1/1/1 measuring 2 kanals 9 marlas. Mutation No. 681 had been sanctioned on 17-2-1976. He stated that in 1973 Killa No. 11/1 is entered as banjar and was not under cultivation. According to him in Rabi 1970, Ahmad son of Lal is entered as tenant for 1 kanal out of Killa No. 11/l. Khasra Girdawari for Kharif 1974 was carried out on 2-11-1974. Decision dated 16- 4-74 had been received by then. He did not record any note in the girdawari of Kharif 1974 regarding decision dated 16-4-1974. He denied that before mutation No. 681 had been entered, possession between the parties had changed. In cross-examination on behalf of the accused, he stated that Ahmad son of Lal was entered as tenant of one kanal in Rabi 1970 in killa No. 11/1. He had not been put into possession of the same thereafter. He stated that Ahmad had been shown as tenant under Gehna Khan son of sher Khan. He deposed that possession of Killa No. 11/I had not been transferred to Mst. Manzooran etc. By the Revenue Staff before the sanctioning of the mutation. He admitted that Yara son of Haider was a tenant under Gehne Khan son of Sher Khan for Kharif 1974 including Killa No. 11/1. He was tenant even during Kharif 1973.

19. The learned trial Judge while discussing this evidence has placed reliance on the statement of Ahmad Nawaz Patwari C. W.

1. He has found that in Kharif 1974 Yara son of Haider was a tenant of this land under Gehna Khan son of Sher Khan. He was also tenant under said Gehna Khan in Kharif 1974. Learned trial Judge has also discussed the agreement Exh. P. W. 24/A. He took the view that the document is not "clearly dated" as the date has been overwritten. He has noticed that document originally bore 8-8-1974 as the date which was later overwritten and corrected to read 6-7-1974. The document had been produced by the Public Prosecutor and not from the custody of the ladies in whose favour the same had been executed. He has taken note of certain admissions made by Ahmad P. W. Regarding execution of this document and has observed that there was no proof that said Yara son of Haider had surrendered his tenancy. He, therefore, found "strong reasons", "to believe that Ahmad P. W. Was not in possession of the land. Nor he executed the document Exh. P. W. 24/A for the surrender of his alleged "possession". Discussing application Exh. D.

V. Filed by Dost Muhammad for the correction of Khasra Girdawaris, learned trial Judge has taken note of the discrepancy in the statement of Ahmad P. W. In regard to the date he surrendered the possession. In application Exh. D. V. Reference is made to 16-4-1974 as the date on which the possession had been surrendered by Ahmad P. W. But at the trial be (Dost Muhammad) has given "6-7-1974" as the date when the possession was delivered back by Ahmad P. W. He has also considered the report of the Revenue Officer Exh. P. W. 12/A. It has been rejected for more than one reasons. Firstly that while submitting the report the opposite-party had not been summoned, the same is therefore, in violation of the principle of natural justice ; and secondly that the same had not been acted upon by the superior revenue officers. For all this, be has finally concluded that the disputed land was in possession of the compliant party.

20. As noticed above, both the parties, after the occurrence, had been trying to have the entries in the revenue record, altered. We have seen agreement Exh. P. W. 24/A. This document is shown to have been executed on 6-7-1974. There is some overwriting on one of such dates. However, the date of execution finds mention at more than one places. This document contains two sheets, each of the value of Rs.

2. On the back of each sheet date of sale of this stamp paper is shown as 3-7-1974. On the first page again there is a stamp bearing the date as 6-7-1974. This is by the attesting Officer. Again at page 2, there is a stamp by the attesting officer mentioning the date as 6-7-1974. On the back of the last page, the executant has put in his thumb mark under 6-7-1,974 as its date, we do not, therefore, find any doubt as regards the date of execution of this document. The date at one place might have beers mutilated through some interested person. However, for the reasons presently follow, we are not going to base our conclusion on this document. Ahmad Nawaz Patwari C. W. 1 again does not seem to have deposed in accordance with the entries in the record.

He has attempted to give tainted version of the record, presumably with a view to protect his own conduct as notwithstanding the decision dated 16-4-1974, he did not bring the record in line with that decision. We having already discussed that the learned trial Judge has misread the entries in the Khasra Girdawaris, in our view, the evidence of Naib-Tehsildar Mumtaz Ahmad P. W., Ahmad Nawaz Patwari C. W. 1 and even Ahmad P. W. 24, does not advance any party's case. We are inclined to conclude, keeping in view the entries in Exh. D.Q. That Ahmad P. W. Was a tenant in cultivating possession of the land in dispute and Yara had not been in possession of the same at any point of time before the occurrence. The story that Ahmad P. W., surrendered back possession to the complainant party before the occurrence, can similarly be accepted but with a grain of salt.

There was thus no basis for the learned trial Judge to come to the conclusion that the accused party was in possession and the complainant party had trespassed into the land in dispute.

21. There is yet another aspect of the case, section 97, P. P. C. Lays down the rule regarding the right of private defence of the body and property. It provides firstly, that every person has a right, subject to the restrictions contained in section 9J, to defend his own body and the body of any other person, against any offence affecting the human body and secondly, the property whether movable or immovable of himself or any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit any of these offences. Criminal trespass has been defined in section 441. It embodies that whosoever enters into or upon the property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any such person in possession of such property or having lawfully entered into or upon such property unlawfully, remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence is said to have committed criminal trespass. The right of private defence against criminal tresspass, therefore entitles the person in actual physical possession to use such force as is necessary to maintain his possession and to turn away the intruders. In the first place, however, there must be at least peaceful possession with the party employing force, for where there is no possession, there is no legal protection to use of violence. This right cannot be extended in a case of premeditated riot where the primary object of the opposing faction is to fight, the complaint about trespass being merely a pretence.

In the instant case having found that Ahmad P. W. Was in possession of the land during the days of occurrence, the accused party, in the circumstances, could not claim benefit of section 97, P. P. C.

For argument sake, even if it be assumed that the complainant party could not enter upon the land to plough until mutation giving effect to the order dated 16-4-1974 had been sanctioned, the assailants in that event too, were not entitled to the benefit of section 97, P. P. C. The right given under section 97 is subject to the restrictions contained in section 99 which inter alia, provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. It was at best an attempt to disturb the possession of Ahmad P.

W. It cannot be said that the aggrieved party could not have availed of the protection of the public authorities. We have therefore, no hesitation in arriving at the conclusion that the appellants did not have a semblance of the right of private defence of property.

22. Right of defence of person in the case has not even been pleaded. According to section 105 of the Evidence Act, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions of the Pakistan Penal Code or within any special exception or proviso contained in any other part of the same Code or in any law defining an offence, is upon him and the Court shall presume the absence of such circumstances. When confronted with this, learned counsel for the appellants referred to Safdar Ali v. Crown PLD 1953 P C 93 to contend that the Court should give benefit of an exception to the accused even if the same is not expressly pleaded if it is satisfied from the circumstances appearing in the prosecution evidence about the existence of the facts bringing the case within any of the exceptions. There may not be a dispute with the proposition that if from the circumstances brought out by the prosecution it can reasonably be inferred that the accused person is entitled to benefit of any exception, the Court should give him such a benefit. Safdar Ali's case cannot be stretched too far so as to hold that in no circumstances onus of proving shifts to the accused while claiming benefit of any exception. In this regard we can do no better than to refer to a passage from the Division Bench judgment of the Court in Ghulam Yusuf v. Crown PLD 1953 Lah. 213 wherein Kayani, J. Observed: "I should not hesitate to admit that the first impression which I had of the judgments in Safdar Ali's case was that they bad overruled the decision in Lai Khan v. Crown, but the more I have tried to understand them-and I confess I was slow to understand-the more I have become convinced that the only point their Lordships wish to emphasize is that you must have the entire evidence in your mind, the evidence for the accused and the evidence for the prosecution, and allow the one to face the other squarely, that you should not be too pedantic about the burden of proof. In my original belief I had a vague feeling that these learned judgments would have the effect of repealing section 105 pro tanto, but that feeling has ceased to harass me, as I now believe that apart from their main theme, incidental pronoun cements therein may be classed with the "generality of expression--- of which Lord Halsbury spoke in Qainn v. Leathem ; and which ---are not intended to be expositions of the whole law."

I, therefore, do no find it possible to accept Mr. Manzur Qadir's argument that Safdar Ali v. Crown has altered the burden of proof. The Federal Court is not a legislative body, and it could not have intended to lay down a principle repugnant to section 105. Further the learned Judges have made no reference to Lai Khan v. Crown, a circumstance which indicates either that they do not disapprove the views contained therein or that they regard that case as distinguishable on the ground of insanity. Then it is to be noticed that their Lordships have fully approved of the principles involved in Woolmington's case, and in that case itself it has been recognized that "golden-thread" rule of English law is not applicable to "insanity--- and to "statutory exceptions". Now since under our own law the plea of self-defence is no less a statutory exception than the plea of insanity. Their Lordships must be understood to approve of Woolmington's case subject to a mental reservation.

And the principle laid down in that case was limited to a single sentence : "If at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to acquittal". The doubt that arises should thus relate to the question "whether the prisoner killed the deceased with a malicious intention", and malice being an ingredient of the offence the doubt refers to an ingredient, not to the defence. This is the meaning of Woolmington's case and this the meaning of Safdar Ali v. Crown The burden of proof therefore remains where the Evidence Act intended it to be, where Lai Khan v.

Crown has left it now, and since 1872 the Judges have applied it with such balance that there has perhaps been only one occasion when anybody has groaned under its heaviness."

We have already noticed that two of the appellants namely Matah Khan and Ghulam Qasim Khan were found injured. The injuries were simple in nature. The appellants did not claim that they were attacked by the complainant party. The Medical Officer pointed out that the injuries suffered by Matah Khan could be received by him in his ordinary pursuit of agriculture. The other circumstance pointed out in this regard is the statement of Muhammad Khan appellant. He took up the position that his father Gehne Khan was at his dera and had narrated the incident to the S. H. O. And showed him the northern wall of the said dera which bore pellets and bullets marks caused by the firing done by the deceased persons. The witnesses, however, were not cross-examined on these lines. Nor had it been expressly pleaded by the appellants that they were attacked by the complainant party armed with firearms. No fire-arm was recovered from the complainant party.

From these circumstances alone; therefore, it cannot be inferred that the appellants had acted in the defence of their persons. We cannot lose sight of the fact that plea of self-defence has not been expressly pleaded. Nor has the defence taken upon itself to lead any evidence, in terms of section 105 of the Evidence Act in discharging the burden of proving the existence of circumstances, for getting the benefit of self-defence of person. This brings us to the merits of the actual occurrence.

23. Prosecution has examined Dost Muhammad P. W. 13, Manzoor Ali P. W. 14, Zil-e-Hussain P. W. 16, Mst. Amiran P. W. 17, Muhammad Ashraf P. W. 19, Mst. Kalsoom P. W. 20, Mst. Allah Wasai P. W. 21,, Murid Abbas P. W. 22 and Ghulam Abbas P. W. 23, as the witnesses of the spot. Except Dost Muhammad, Manzoor Ali and Ghulam Abbas, all were injured in the occurrence. Their presence, therefore, at the spot, cannot be doubted. Their evidence is consistent and does not admit of any serious contradiction. They have given details of the occurrence meticulously. Muhammad Ashraf P. W. 19 is only a boy of 6/7 years. Even he has given full account of the incident Dost Muhammad, Manzoor Ali-and Ghulam Abbas P. Ws. Reside in village Kiran. Ghulam Abbas had gone to the fields when he was attracted to the spot. Manzoor Ali P. W. Was present in the village and on hearing the firing he went to the spot. It was suggested that Dost Muhammad P. W. Had been residing at Chah Kassianwala and not in the village but he had denied this suggestion. It can safely be concluded that even they are natural witnesses of the occurrence. Their evidence inspires confidence and, rings true. Nothing has been pointed out from the record to discredit their testimony generally.

24. Three of the deceased persons namely Muhammad Khan, Ghulam Ali and Riaz Khan were the real brothers, of Dost Muhammad P. W. Mst. Iqbal Bibi deceased was the daughter of Ghulam Abbas P. W. Who is also real brother of Dost Muhammad P. W. Deceased Muhammad Mukhtar and Liaqat Ali were the sons of Muhammad Nawaz, another brother of Dost Muhammad complainant.

All the deceased, therefore, were close relations of Dost Muhammad P. W. Zil-e-Hussain P. W. Is a nephew of Dost Muhammad. Daim Khan and Ghulam Abbas P. Ws. Are brothers of Dost Muhammad. Mst. Kalsoom and Mst. Amiran P. Ws. Are nieces of Dost Muhammad. Mst. Allah Wasai is the wife of Muhammad Nawaz; and mother of Muhammad Mukhtar deceased. Muhammad Ashraf P. W. Is a son of Dost Muhammad, Murid Abbas P. W. Is the son of Ghulam Ali deceased. It is thus established that all the witnesses of the spot are not only related to the deceased in different degrees but are also related inter se.

As noticed earlier, there are two sets of appellants. Matah Khan, Muhammad Khan, Gehna Khan and Ata Khan are the sons of Ahmad Khan. Mst. Sattan, acquitted accused, is his daughter. Ali Khan appellant is son of Muhammad Khan. Mst. Sardaran is the wife of Muhammad Khan. Said Muhammad Khan is the son of Gehna Khan. Mst. Kaniz Fatima (acquitted accused) is the wife of Gehna Khan. Similarly, Mst. Kanizan (acquitted accused) is the wife of Matah Khan. Gehney Khan (since dead) was the father of Muhammad Khan. Mst. Bhagan appellant is the wife of Qasim Khan.

Mst. Sattan (acquitted accused) is the sister of Gehney Khan and so also appellant Mst. Bhagan. All the appellants from village Kiran and acquitted accused are thus related inter se. The second set of appellants who are all residents of village Mizari are not related to the other set of appellants.

They are, however, related inter se. Habib Khan and Rehman alias Rehmatullah are the sons of Sardar Khan. Muhammad Nawaz is married to the niece of Ata Khan son of Sardar Khan. It is in evidence that this set of appellants is friendly with the other set of accused persons from village Kiran.

PLD 1977 SC 557 In this state of the ocular evidence and in view of the fact that quite a good number of persons have been killed on the complainant side with equally a large number injured and quite a large number of persons involved as accused who, as noticed above, can distinctly be grouped into two sets with no relationship among each of the sets, question, which has engaged our attention quite seriously is whether the ocular evidence in this case. Should be accepted unreservedly or should we look for further corroboration before assessing the guilt of each individual. We are fully alive to the observations made in this regard in the case of Roshan and others v. The State cited by the learned counsel for the complainant. It has been observed : "As regards the testimony of Mehdi and Raju, P. Ws. There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness.

Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where this Court has upheld the conviction of the accused based entirely on the testimony of the `interested' witness."

It would be seen that even in this judgment, their Lordships have not laid down any absolute rule and, in fact, is is difficult to make a rule of universal application. Each criminal case proceeds on its own facts. We are, therefore, of the view that, keeping all the circumstances of this case in view, it would not be safe to rely on the ocular evidence unless corroborated by some other supporting evidence. While forming this view, we are fully aware that even the learned trial Judge has given benefit of doubt to co-accused Mst. Sardaran, Mst. Kaniz Fatima and Mst. Kanizan though they were equally implicated by the witnesses.

25. According to the ocular evidence appellants Qasim Khan, Mata Khan, Ata Khan son of Ahmad Khan, Muhammad Khan son of Gehne Khan, Habib Khan, Rehman, Ata Khan son of Sardar Khan and Muhammad Nawaz, were armed with guns. Muhammad Khan son of Ahmad Khan and Ali Khan were armed with hatchets. Appellant Gehne Khan had a sots and so also Gehne Khan (since dead) had a sota, They attacked the five deceased when they were ploughing the land. Appellant Mata Khan is stated to have fired at Ghulam Ali ; Qasim Khan fired at Muhammad Mukhtar ; Muhammad Khan son of Gehne Khan and Muhammad Khan son of Ahmad Khan, had attacked and injured Muhammad Mukhtar deceased. Muhammad Khan son of Ahmad Khan bad given a hatchet blow on the head of Muhammad Mukhtar from its wrong side. Ata Khan had fired twice at Liaqat Ali and Habib Khan fired twice at Riaz Khan deceased. Ata Khan son of Sardar Khan also fired at Riaz Khan. When Riaz Khan had fallen down, Mst. Bhagan had given a sota blow to him.

Appellants Rehman and Muhammad Nawaz fired at Muhammad Khan. While all the deceased had fallen, they were inflicted blows by the persons armed with sotas. Acquitted accused. And appellant Mst. Bhagan were attracted to the spot. P. Ws. Zil-e-Hussain, Murid Abbas, Mst. Allah Wasai, Muhammad Ashraf, Me. Kalsoom, Mst. Amiran, Mst. Iqbal Begum deceased Daim Khan and Wali Muhammad (given up) also came to the spot. They were also attacked. Mst. Iqbal Begum was fired at by appellant Qasim Khan. Appellant Ali Khan inflicted blows to Zil-e-Hussain and Murid Abbas P. Ws. Appellant Ata Khan son of Sardar Khan and Qasim Khan fired at Mst. Kalsoom.

Muhammad Khan son of Gehne Khan fired at Wali Muhammad. Zil-e-Hussain had also received fire-arm injuries at the hands of Mata Khan. Qasim Khan and Matah Khan appellants had fired at Murid Abbas P. W. Rehman had attacked Muhammad Ashraf P. W. And injured him. Appellant Ata Khan son of Sardar Khan injured Mst. Amiran P. W. Appellant Habib Khan fired at Daim Khan. Each of the injured P. Ws. Deposed as to the manner, he/she received injuries.

26. The remaining pieces of evidence, i.e. The motive ; the recoveries ; the dying declaration ; medical evidence and conduct of Muhammad Nawaz appellant for remaining absent from the place of his duty, will be considered keeping in view the formulation that we have to look for corroboration before assessing the guilt of each individual.

27. The motive, i.e. Dispute over the land is not such in dispute. It has been fully established. We need not reiterate the evidence in this regard as the same has been taken note of in the preceding paragraphs. Suffice it to say that motive cannot be used against second set of appellants belonging to village Mizari. Motive alone may not be sufficient to corroborate the interested testimony, yet, in the whole body of proof it is an important piece of evidence. It may not be a sine qua non for bringing the offence home to the accused, yet it is relevant and important on the question of intention. C Generally the voluntary acts of sane persons have an impelling emotion of motive ; the existence of motive, therefore, has a great significance in a criminal trial. We therefore, conclude that motive set up does provide some corroboration against the first set of appellants residents of village Kiran.

28. Mst. Iqbal Begum deceased was allegedly examined under section 161, Cr. P. C. By Ahmad Yar S. I., P. W.

26. Her statement had been recorded at the Semwali bridge while she was being carried to the hospital along with other injured P. Ws. This has been exhibited as P. W. 26/A. We have gone through this statement. It reveals full details of the occurrence. According to the post-mortem report she had sustained multiple gunshot wounds, 14 in number on the front of chest. They were scattered. Each wound was 1/8" in diameter ; Multiple gunshot wounds, six is number on the lateral and back side of left arm : three gunshot wounds on the back of right chest and two wounds on the right hip. Pleura corresponding to the wounds of chest was found fractured at multiple places.

Peritonium at the level of ascending colon was ruptured. Large intestines and liver were ruptured.

Death in the opinion of the doctor had occurred on account of rupture of lung and liver. This statement has been criticised on a number of reasons. It was argued that all the injured persons were sent to the hospital before the complainant left for the Police Station. The S. I. Proceeded to the spot after recording the F. I. R. And had met Mst. Iqbal Begum and other injured P. Ws. At the Semwali bridge where he, allegedly, recorded the dying declaration. 'There is no mention of the injured P. Ws. In the inquest report. It was contended that the statements of the injured persons were not recorded, as alleged, before drawing up the inquest otherwise this fact would have found mention in the inquest report. This throws doubt on the veracity of the dying declaration. The Investigating Officer was questioned on this aspect. He has taken up the position that he was not required to give the names of the injured P. Ws. Or the fact that they had been injured or other facts or details of the occurrence, in the inquest report. It could well be on a mistaken assumption that he was to draw inquest report in regard to the deceased persons only and was not required to give other details of the occurrence. On this alone, therefore, it would be difficult to discard the dying declaration. Perusal of the dying declaration however, would show that it gives the details of the occurrence. It is spread almost over two pages of the printed Paper Book, Part II (pages 232 and 233). Keeping in view the injuries suffered by her, it cannot be safely presumed that she was able to make such a consistent and lengthy statement. In the circumstances, therefore, it would be safe not to rely on this statement.

29. The next item of evidence in the case is the medical evidence. Considering the importance of medical evidence, Muhammad Monir in his Principles And Digest of the Law of Evidence (Pakistan Edition) observes at page 612 : "The medical evidence does not itself prove the prosecution case. Its value is only corroborative. It can prove that the injuries could or could not have been caused in the manner alleged and the death could or could not have been caused by the injuries. Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. The Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that witnesses have merely exaggerated the incident, or rely upon the medical evidence and approach the oral testimony with caution testing it with medical evidence. The first method can be applied only in those cases, where the oral evidence is above reproach and creates confidence. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method."

Since we are looking for corroboration to the ocular evidence, the medical evidence in the instant case will have to be considered in the light of the above principle. According to the eye-witnesses five male deceased were done to death at the spot whereas the P. Ws. And Mst. Iqbal Bibi deceased were injured when they came to the spot on hearing the gun reports. Liaqat Ali deceased had suffered all fire-arm injuries and some wounds had burnt margins. Ghulam Ali had also sustained a gunshot wound. The margins of the wound were scorched. The fire-arm injuries suffered by Riaz Khan deceased bad also scorched margins and so also in the case of Muhammad Khan deceased. This shows that all the five deceased were fired at from a close range. Gunshot injuries on the person of Mst. Iqbal Bibi bad a good deal of dispersal. She appears to have been fired at from some distance. Firearm injuries on the persons of Zil-e-Hussain P. W. 16 bad also blackened area. He bad also a blunt weapon injury on the top of his head. This shows that he too, had gone in the thick of the fight, when be was fired at. Wali Muhammad received an inlet wound on the right leg with an exit wound on the back. Muhammad Ashraf had all firearm injuries. Murid Abbas P. W. Received firearm as well as blunt weapon injuries. Daim Khan suffered a firearm and blunt weapon injuries. The number of the deceased persons and the nature of the injuries on their persons, fully supports the ocular version of the occurrence. The damage done is also suggestive of the fact, though not with an accurate precision, that a large number of assailants bad participated in the occurrence. To our mind, therefore, the medical evidence in the case can be used as supporting evidence to the ocular version.

29-A. We now advert to the various recoveries made in this case. Appellants Ali Khan and Muhammad Khan led to the recoveries of bloodstained hatchets P. 1 and P. 3 respectively.

Appellant Gehney Khan led to the recovery of blood-stained sota P.

2. Muhammad Khan son of Gehney Khan to the recovery of gun P.

4. Gehna Khan P. W. 9 is the witness of these recoveries. It was suggested that he was a tenant of Dost Muhammad P. W. He denied this suggestion. He also refuted the allegations that he had instituted a pre-emption suit with respect to a piece of land purchased by Gehney Khan accused and others. Nothing has been brought on record to show that he had any motive to falsely implicate these persons. We have, therefore, no hesitation in accepting these recoveries against these appellants.

Appellants Habib Khan, Muhammad Nawaz and Ata Khan son of Sardar Khan led to the recoveries of guns P. 5, P. 6 and P. 7, respectively. Taj P. W. 1 I is a witness of these recoveries. He admitted that one Muhammad Sipra had been murdered. He however, denied having any knowledge if Muhammad and Matah Khan were challaned in that case. He disputed if said Muhammad Sipra was his tenant. He denied if his brother Maghra and collateral Siddiq were eye-witnesses in that case. The witnesses have been subjected to a lengthy cross-examination but nothing substantial has been brought on record to discredit him. We have, therefore, again no difficulty in accepting the recoveries against these appellants.

Appellant Qasim Khan led to the recovery of gun P. 24 while appellants Ata Khan son of Ahmad Khan, Matah Khan and appellant Rehman produced guns P. 25, P. 26 and P. 27, respectively. Mst.

Bhagan appellant produced sota P.

33. Ghulam Abbas P. W. 23, is the witness of these recoveries.

He is also the witness of the spot. The defence, in the cross-examination has not been able to bring anything against this witness. These recoveries, therefore, too stand proved against the appellants.

Fourteen (14) cartridges were found from the spot. These cartridges and the guns recovered from various appellants were sent to the Fire Arm Expert for opinion. His report is Exh. PX/69. The Fire Arm Expert had marked the relevant guns at the time of examination. From his analysis 13 crime, empties have been found wedded with the guns recovered from Qasim Khan Ata Khan and Rehman accused as the gun numbers have been mentioned in the report and with the guns recovered from Habib Khan, Ata Khan son of Sardar Khan, Muhammad Nawaz and Muhammad Khan with reference to the Butts signed by the Expert at the time of the examination. The seven guns recovered at the instance of the appellants have thus been found involved in the occurrence.

Rifle P. 26 had been secured from appellant Matah Khan. It was however, not sent to the Expert for his opinion. The witnesses, moreover stated that Matah Khan was armed with a gun. Recovery of rifle P. 26 from Matah Khan, therefore, cannot be used against him.

29-B. Muhammad Nawaz appellant was employed in the Army and was posted as a Cook in a Mess at Sialkot Cantt. Khan Zaman Subedar (P. W. 18) was examined in this regard. He stated that the said appellant was on leave from 4th June, 1974, for sixty (60) days. He however, resumed duty on 28th July, 1974 at about 2/3 p.m. The witness had been in his office for the whole day. He did not refute the suggestion that the appellant might have reached there between 9;10 a.m. The fact remains that the appellant had contacted him between 2/3 p.m. The occurrence had taken place at 6-00 a.m. On 28-7-1974. If the appellant had been present at the place of his duty, he, in all probabilities, would have reported to the witness who was his supervising officer. The absence of the appellant from the place of his duty at the time of occurrence, is a relevant factor which can be used against him.

30. Appellant Mst. Bhagan was not member of the unlawful assembly. She cannot be said to have shared the common intention with the other members. She has been attributed only a dang blow to Riaz Khan deceased. She has been convicted under section 323, P. P. C. And sentenced to one year's R.

1. When so many male persons fully armed were there to deal with the opponents, the allegation that Mst. Bhagan had given a dang blow to Riaz Khan deceased, does not appear to be very convincing. We give her benefit of doubt and acquit her.

31. We have doubts regarding the participation of appellants Matah Khan, Muhammad Khan and Gehna Khan sons of Ahmad Khan and Ali Khan son of Muhammad Khan. Rifle recovered from Matah Khan has not been found involved in the occurrence. Medical evidence alone is not sufficient corroboration to implicate him. Hatchets have been recovered from appellants Muhammad Khan and Ali Khan. However, it is significant to note that none of the deceased or the P.

Ws. Bad sustained any sharp-edged injury. It would be difficult to believe that the type of occurrence in which the assailants had resorted to wreckless killing, these appellants would not use their respective weapons. Therefore, these recoveries cannot be used as corroborative pieces of evidence against them. Gehna Khan appellant is aged 82. He is stated to be armed with a sota.

No doubt some of the victims of the assault sustained injuries with blunt weapons, yet the presence of this old man does not fit in with the circumstances of the type of incident where, at least, six persons armed with guns were there to deal with the situation. In the case of appellants Muhammad Khan, Gehna Khan, Matah Khan sons of Ahmad Khan and Ali Khan son of Muhammad Khan, we are inclined to give them benefit of doubt also and acquit them.

32. The participation of appellants Qasim Khan, Ata Khan son of Ahmad Khan, Muhammad Khan son of Gehna Khan, Muhammad Nawaz, Habib Khan, Rebman alias Rehmatullab, Ata Khan son of Sardar Khan, is established beyond doubt. We are not prepared to accept the contention of the learned counsel for the appellants who are residents of village Mizari that as they had no direct motive, their participation in the occurrence is doubtful. It is in evidence that they are friendly with the other co-accused from village Kiran So long as the motive for the occurrence is there and it is established that they have participated in the occurrence, the question if they had any direct motive is not of very great importance. Instances are not lacking in this part of the world were people have participated in very heinous crimes for the sake of their friends. As to the adequacy of motive the classical observations of Lord Chief Justice Campbell in his address to the Jury in Reg. v.

Palmer, had been quoted by Muhammad Monir, in his Lair of Evidence (Pakistan Edition), page 57.

The observations go "With respect to the alleged motive, it is of great importance to see whether there was a motive for committing such a crime or whether there was not ; or whether there is an improbability of its having been committed so strong as not to be overpowered by positive evidence ; but if there be any motive which can be assigned, I am bound to tell you that the adequacy of motive is of little importance. We know from the experience of criminal Courts that atrocious crimes of this sort have been committed from very slight motives, not merely from impulse or revenge but to drive off for a time pressing difficulties."

33. Before coming to the question of sentence, we may advert to another aspect of the case.

Learned trial Judge has doubted if Mst. Allah Wasai P. W. 21 was injured in the occurrence. She has been disbelieved: None of the appellants has been convicted for having caused injuries to her. That part of the case is not before us. Though we have some doubts in regard to the finding of the learned trial Judge in this regard, yet as it has no bearing on the decision of the appeals before us, we do not propose to make any further observations in this regard.

34. This brings us to the question of sentence. As noticed earlier, only appellant Qasim Khan has been sentenced to death on one count for causing the murder of Mst. Iqbal Bibi. She, according to the learned trial Judge, was not one of the other deceased persons who had initially committed the act of trespass. Maximum sentence of death for committing her murder, therefore, has been given to appellant Qasim Khan. As noticed above, we are satisfied as to the participation of appellant Qasim Khan in the crime. His appeal, therefore, so far as he has been awarded sentence of death for the murder of Mst. Iqbal Bibi has no merit and is dismissed accordingly. His conviction and sentences on this count are maintained. The sentence of death is confirmed.

35. As to the conviction of all the appellants except Mst. Bhagan, Matah Khan, Muhammad Khan and Gehna Khan son of Ahmad Khan and Ali Khan son of Muhammad Khan, under section 307/149, P. P. C. For making murderous assault on Zil-e-Hasnain, Murid Abbas, Wali Muhammad, Mst.

Amiran, Mst. Kalsoom, Daim Khan and Muhammad Ashraf, we are inclined to sustain the same. The conviction and sentences of these appellants under section 307/ 149, P. P. C. Are therefore, upheld.

Similarly. Conviction and sentences awarded to these appellants under section 148, P. P. C. Are also maintained.

36. This brings us to the question of enhancement of sentences awarded for the murders of Liaqat Ali, Ghulam Ali, Riaz Khan, Muhammad Khan and Mukhtar Khan. We have no hesitation in concurring with the view of the learned trial Judge that each of the appellants except these who have been acquitted by us, is guilty of an offence under section 302/149, P. P. C. This aspect of the case does not detain us any more. Learned trial Judge while awarding lesser of the two sentences provided for this offence, has taken into consideration the aspect that the deceased persons had committed an act of trespass and this provided some provocation to the assailants which can be used as a mitigating circumstance for awarding lesser sentence. We have already differed with this view of the learned trial Judge. The question of sentence, therefore, shall be considered independently.

Two sentences are provided for offence of murder. Under section 367 (5), Cr. P. C. If an accused is convicted of an offence punishable with death, the Court sentencing him to any sentence other than death, shall, in its judgment state the reasons as to why the sentence of death was not passed against the accused. For the offence of murder, therefore; while awarding normal sentence of death, the Courts need not record reasons. In this case, therefore, if we were to award sentences as a trial Court, we would have felt no difficulty in awarding the normal sentence of death to all the appellants. We have however, given our considered thought to the aspect ; should we, acting as a revisional Court, enhance the sentence of imprisonment for life to death. There is no denying the fact that there is no legal bar to enhance the sentence in the revisional jurisdiction of this Court.

This is with the only limitation, as the trend of the authorities goes, that this Court should not enhance the sentence unless it is satisfied that the sentence of death is the only sentence which could have been passed by the Sessions Judge. Reference can be made to some of the older decisions, Le, Local Government v. Sitrya Arjuna Mahar AIR. 1933 Nag. 307 and Gunduthalayan's case. AIR 1930 Mad. 446. We may also refer to the observations of the Supreme Court in Muhammad Sharif v.. Muhammad Javed PLD 1976 SC 452. It has been observed : "It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the Rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, .If warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer. But is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F. I. Rs. The reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trial of appeals all combine to help out the murderers of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crimes of which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P. P. C. In a case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P. P. C. Does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made on that score in the matter of sentence------------Here again accepting the revision petition, the learned Judges enhanced to death the sentences of transportation for life awarded to three convicts in a case of double murder--------------------- ----------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------- ---------------------------------------------------------------------..--- We are therefore, of the considered view that it is one of those cases where the sentence of death was the only sentence that should have been awarded to the appellants. We therefore, accept the revision petition and enhance the sentence of life imprisonment awarded to Ata Khan son of Ahmad Khan, Muhammad Khan son of Genha Khan, Muhammad Nawaz, Habib Khan, Rehman alias Rehmatullah and Ata Khan son of Sardar Khan, to death and a fine of Rs. 1,000 each or in default thereof, to undergo further one year's .R. I. Each, on six counts, for the murders of Liaqat Ali, Ghulam Ali, Riaz Khan, Muhammad Khan, Mukhtar Khan and Mst. Iqbal Bibi. They shall be hanged by the neck till they are dead. The sentence of life imprisonment awarded to Qasim Khan on five counts for the remaining five murders, is also enhanced to death in each case in the exercise of revisional jurisdiction under section 437/439, Cr. P . C. Their conviction and sentences under sections 148 and 307/149, P. P. C. Are maintained.

Appellants Mst. Bhagan, Matah Khan, Muhammad Khan and Gehna Khan sons of Ahmad Khan and Ali Khan son of Muhammad Khan, as noticed above, are acquitted of all the charges. Their conviction and sentences are set aside. Mst. Bhagan is already on bail, she is discharged of her bail bonds. Matah Khan, Muhammad Khan and Gehna Khan sons of Ahmad Khan and Ali Khan, shall be set at liberty forthwith if not required in any other case.

With the above result, while partly accepting Criminal Appeal No. 1274 of 1976 and- Criminal Revision No. 673 of 1977, we dismiss Criminal Appeal No. 1282/76.