1. ' DORAB PATEL, J.-There was a fight on the 24-104973 in village Balo in Peshawar district in which seven persons were killed and several others were injured by firearms. On the side of the prosecution in this appeal, Ghulam Jan, his sons Muhammad Aslam Khan and Asghar Khan, his son-in-law Hafeezullah and his sister-in-law ,Mst. Rani were all killed by gunshot wounds. On the side of the appellants, one Nausherwan and one Mst. Zulekha were killed, whilst three of the appellants and two other persons were injured by fire-arms. The first report of this occurrence was made by the second appellant, and the Sub-Inspector, who recorded it was proceeding to village Balo to commence investigations, when he met Said Khan, who lodged the report on behalf of the prosecution side. In due course, the persons charged on both sides were committed to the Sessions Court, but the appellants were convicted for murder and sentenced to death, whilst the persons arrayed as the accused in the charge filed by the appellants were acquitted.
2. ' The relationship between the appellants has some relevance to the case against them, so I would explain here that the first three appellants, Abdul Rauf, Abdul Qayyum and Abdul Salam are the sons of one Abdul Rashid, whilst the fourth appellant Khushdil is the son of the second appellant.
3. These four appellants were tried with Azmatullah son of the first 'appellant by the Sessions Court for the murder of Ghulam Jan, and the other members of his family. And, for the purpose of this appeal, it is sufficient to state that the prosecution relied on the dying declaration of Muhammad Alsam and it examined Ibrahim, Muhammad Sher and Muhammad Ali as eye-witnesses of the occurrence. The three eye-witnesses supported the prosecution case and implicated the appellants, but I may point out here that as Muhammad All was an absconder his lower Court statement was brought on the record by the learned Sessions Judge, under section 288 of the Criminal Procedure Code and this statement supports the prosecution case. Mian Ziauddin submitted that there were discrepancies in the description of the occurrence given by the three eye-witnesses. That is correct, but all the three eye-witnesses support the prosecution case that it was the party of the appellants, who had come and attacked the sons and son-in-law of Ghulam Jan, as they were returning from Sargodha.
4. ' The motive for the occurrence, according to Ibrahim and Muhammad Sher, was that the first appellant had a rationshop and was a distributor of ghee for the village. And some days before the occurrence, there was a quarrel between him and Ghulam Jan and as Ghulam Jan had slapped the first appellant, he and his family got together to take revenge on the fateful day.
5. ' The appellants, however, denied the claim of the prosecution that Ghulam Jan had slapped the first appellant and I will presently examine their plea.
6. ' Apart from examining eye-witnesses to prove the occurrence, the prosecution relied on medical evidence and as strangely enough the Courts assumed that the investigations carried out by Qudratullah, Sub-Inspector supported the prosecution case, I have to refer here to a statement by this witness which was ignored by both the Courts. The witness said- "I have examined Dilbar, Allah Bakhsh, Raza Khan, Mir Akbar, etc. The houses of these persons are situated on this thoroughfare. I have not cited them as P. Ws. Because they did not support the prosecution case. No body in this case produced to me any fire-arm in spite of demand."
7. ' I will presently revert to this statement of the witness, and it would be sufficient to state here that the Police secured the first appellant's gun and three empties from the place of occurrence, but as the empties did not match the first appellant gun, they are of no corroborative value.
8. ' The appellants did not produce any evidence in their defence and submitted that they had been falsely implicated on account of enmity and in this connection they relied on the fact that the prosecution witnesses were facing a charge for the murder of the father of the first three appellants. As to, the motive for the occurrence, the appellants admitted that the first appellant had a shop in which he sold ghee and that there bad been a quarrel between this appellant and Ghulam. Jan, and because Ghulam Jan had wanted to purchase ghee on a bogus ration card, there was an altercation between him and the first appellant in which the first appellant had assaulted Ghulam Jan, and later on' in the course of the same day there was another quarrel between the first appellant and Ghulam Ian in the local moscints in which Ghulam Jan had been humiliated. Therefore, according to the appellants, Ghulam Jan had sent for his Sons and son-in- law from Sargodha so that he could avenge the humiliations suffered by him.
9. ' The learned Sessions Judge was impressed by the evidence of Muhammad Ali, Muhammad Sher and Ibrahim, and he was also of the view that this ocular evidence was supported by Muhammad Aslam's dying declaration, by evidence of motive and by the circumstantial evidence. Therefore, by his judgment dated 4-8-1975, he acquitted Azmatullah, but convicted the appellants under section 302/149, P. P. C. On five counts for murder and sentenced them to death. He also convicted the appellants under section 148, P. P. C. Fines were also imposed.
10. ' The appellants, challenged their conviction in an appeal in the Peshawar High Court which was heard with the reference from the Sessions Court. By their judgment dated 5-5-1976, the learned Judges of the Peshawar High Court dismissed the appeal of the appellants, confirmed the sentence of death passed by the Sessions Court and increased the fines imposed by the Sessions Court on the appellants. Therefore, the appellants filed a petition for leave in this Court and leave was granted in order to examine whether the conviction of the appellants "was based on a proper application of the well-settled principles of administration of justice."
11. ' As the appellants admitted their participation in the occurrence, the real question before the Courts was how the occurrence began and the three eye-witnesses examined by the prosecution all stated in their evidence that it was the party of the appellants who had come and attacked Ghulam Jan and other members of his family. Therefore, Mian Ziauddin submitted that Muhammad Ali and Muhammad Sher had falsely claimed to have seen the occurrence, whilst Ibrahim's evidence was so full of discrepancies that it was not fit to be accepted on this ground.
12. I have examined the ocular evidence and find that there are material improvements between the evidence of Muhammad Ali in the committal Court and his statement under section 164 of the Criminal Procedure Code. Secondly, it is not disputed that Muhammad All and Said Khan could not be examined in the Sessions Court, because they were charged for the murder of the father of the first three appellants and as they were absconded, they could not be summoned to give evidence.
13. Thirdly, as sumbitted by Mian Ziauddin, even the Police statement of Muhammad Ali was recorded after a delay of three days, therefore, learned counsel submitted that no reliance had been placed on Muhammad Ali's evidence by the High Court and that the Sessions Court had erred in relying on it.
14. ' As far as we can see, although this is not clear, the learned Judges of the High Court have not placed reliance on Muhammad Ali's evidence, and if so the view taken by them was correct. In any event, I would clarify that in the circumstances discussed no reliance can be placed on Muhammad Ali's evidence and the Sessions Court had erred in relying on it.
15. I now turn to Muhammad Sher's evidence and I would re-call here that the High Court has placed great reliance on the evidence of this witness, although he was an interested witness, because in the words of the learned Judges, he was a natural witness. First as to the relationship of the witness with the party of the complainant, Muhammad Sher admitted "Ghulam Jan was the son of my paternal aunt", The witness also admitted that Ghulam Jan's daughter was married to his (Muhammad Sher's) brother. Now, as this witness lived near the place of occurrence, the learned Judges held that he was a natural witness and no exception can be taken to this view. But, the question before the Courts was not whether the witness was a natural witness or a chance witness, but whether he was a witness of truth. And, if a witness is not a witness of truth, nothing turns on the fact that he was a natural witness.Therefore, Mian Ziauddin referred us to the fact that the prosecution had in the instant case relied on two F. I. Rs, One of these F. I. Rs, was lodged by Nisar Khan and the other by Said Khan and to say the least, it does not improve the prosecution case that neither Nisar Khan nor Said Khan were examined. Be that as it may, according to Nisar Khan's F. I. R., the only persons who witnessed the occurrence were Muhammad Ali, Ibrahim, Said Khan and Mustafa Khan. Next, according to Said Khan's F. I. R. There were only two witnesses of the occurrence, namely Ibrahim and Nisar Khan. Thus neither of the informants have in their complaints referred to Muhammad Sher as an eye-witness of the occurrence, but as he was so closely connected with the deceased, it is impossible to believe that Nisar Khan or Said Khan would have omitted to mention. Muhammad Sher's name as an eye-witness in their F. I. Rs,, if Muhammad Sher had really witnesse the occurrence. Additionally, as submitted by learned counsel, there wa unexplained delay in recording the witness's statement to the Police. Therefore, in granting leave, this Court had expressed its anxiety at th reliance placed by the Courts below on Muhammad Sher's evidence an having examined the evidence with the assistance of both the learne counsel, I am satisfied that Muhammad Sher's name would have been mentioned in the F. I. Rs, lodged on behalf of the party of the complainant, if he had really been present at the place of occurrence.
16. And, as hi name is not so mentioned, in my opinion, both the Courts below erred I relying on Muhammad Sher's evidence.
17. ' I now turn to Ibrahim's evidence. It I s true that the witness full supported the prosecution case.
18. And, in this connection, he said that as h was returning from his fields at about 4-30 p.m., on the day of the occurrence he saw Muhammad Aslam with his brother and brother-in-law going to Ghulam Jan's house followed by Said Khan, Muhammad Nazir and Babu Nazir. Further, according to the witness., as these persons were turning into the lane towards their house, the appellants came armed with guns and tamachas and when they were three or four paces from Muhammad Aslam and the members of his party, the second appellant started abusing them "and simultaneously Abdul Rauf started firing at Aslam, Asghar and Hafiz. With the fire shots of Abdul Qayum and Abdur Rauf, Aslam and Asghar were hit and injured. Hafiz Khan rushed towards his lane in order to take shelter. He took his pistol started firing at the accused. Thereafter Ghulam Jan and Mst. Rani also came out of their house. Ghulam Jan (dead) was armed with a D. B. Shotgun. Ghulam Jan also joined Hafiz and they both started firing at the accused and the accused party were also firing shots at the dead party." Whilst this evidence explains the casualties on the side of the appellants, Mian Ziauddin rightly stressed the fact that the witness had been charged with Muhammad Ali and others for the murder of the father of the first three appellants, therefore, the witness had been produced in handcuffs before the Courts. In these circumstances, the witness was obviously not a disinterested witness. Again, whilst the witness had a very clear recollection of how the members of his party had been hit, some how by a strange lapse of memory, he could not explain how the party of the appellants had D received their injuries except for Nausherwan and Mat. Zulekha. But a submitted by Mian Ziauddin, his evidence in the Smions Court about aside this obvious difficulty with the observation that the declarant became unconscious before he could complete his statement. Thus, they appear to have assumed that Muhammad Aslam would have implicated all the appellants and supported Ibrahim's evidence if he had not become unconscious. With respect, as we have no means of knowing what Muhammad Aslam would have said if lie had lived to complete his statement, no reliance can be placed on this dying declaration. I would also repeat here that the question in this appeal is not whether Muhammad Aslam or his brother or his father were killed by the shots fired by the appellants, but the question is how an occurrence, which led to casualties on both sides, had begun, and 'as the dying declaration does not throw any light on this crucial question, it is of no corroborative value, and, on this ground also the Courts below erred in relying on it.
19. The result of this discussion is that the prosecution case against the appellants rests on Ibrahim's evidence, and as it would not be safe to base any conviction on Ibrahim's evidence the prosecution has failed to prove that the appellants had made a pre-meditated attack on Ghulam Jan and his family. On the other hand, in the circumstances discussed, the only inference possible from the evidence is that the appellants happened to be in "the village thoroughfare" when the sons of Ghulam Jan returned home by car from Sargodha, and this chance encounter led to a sudden fight, therefore, although the consequences of the sudden fight wore catastrophic to both the parties, it cannot be said in these circumstances that the appellants were guilty of murder, and I would set aside the convictions and sentences passed against them.
20. ' The only question which remains for consideration is whether the appellants are guilty of any other offence and Mr. Ibne All drew out attention to the medical evidence and submitted that the appellants had behaved in a callous manner in killing five persons. But, there were fatal casualities on the side of the appellants also, and as the question is not merely of counting the number of the dead on the two sides, in the peculiar circumstances of the case, I would convict the appellants under the First Part of section 304 of the Pakistan Penal Code and sentence them to the sentence undergone. They shall, therefore,' be released forthwith if not required on any other charge.
21. Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.