' MUHAMMAD FARRUKH MAHMUD, J.-The appellant Eisa Khan Muhammad Ali, Riaz Khan and Abbas Khan alias Abbasi were sent up to face trial in case F.I.R. No,223 registered at Police Station Ravi Road, Lahore, on 7-7-1997, for offences under sections 302/324/34 P.P.C. For causing triple murder of Muhammad Iqbal, Nasim Raza and Hamad Raza and injuries to Hassan Raza. Vide judgment dated 6-10-2001, the learned trial Court convicted and sentenced^ the appellants as follows:-
(i) Riaz Khan and Abbass Khan for offences under section 302(b)/34 P.P.C. Each for causing triple murder of Muhammad Iqbal, Nasim Raza and Hamad Raza to death each on each count plus payment of Rs, 1,00,000 each, on each count, as fine, which, in the event of realisation, was to be paid to the legal heirs of the deceased or in default in payment thereof to suffer further R.I. For two years;
(ii) Eisa Khan and Muhammad Ali for offences under section 302(b)/34 P.P.C. For causing triple murder of Muhammad Iqbal, Nasim Raza and Hamad Raza to imprisonment for life each on each count plus payment of Rs,50,000 each, on each count, as fine, which, if recovered', was to be paid to the legal heirs of the deceased, in default in payment whereof the convicts were to further undergo R.I. For two years. Benefit of section 382-B Cr.P.C. Was given to the convicts.
(iii) Riaz Khan and Abbas Khan for offences under section 324/34 P.P.C. For murderous assault on Hassan Raza to seven years' R.I. Each,
(iv) Eisa Khan Muhammad Ali for offences under sections 324/34, P.P.C. For murderous assault upon Hassan Raza to undergo R.I. For four years each.
2. Aggrieved by their above noted convictions and sentences, the appellants have brought Criminal Appeal No, 1571 of 2001, while Asad Raza, complainant/ petitioner has filed Criminal Revision No,782 of 2001 seeking enhancement of sentence of Eisa Khan and Muhammad Ali, convicts. Murder Reference No,877 of 2001 seeking confirmation or otherwise of death sentences inflicted upon Riaz Khan and Abbas Khan alias Abbasi has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. The brief facts of the case per F.I.R. Exh.PD/1 recorded on the basis of statement (Exh.PD) of Asad Raza, complainant/P.W.16, are that the complainant along with his brothers Hasan Raza, Hamad Raza, Nasim Raza and Waheed Raza lived in Street No,1 of Mohallah Qadirabad, Ravi Road, Lahore.
Eisa Khan and his sons also lived in the same street. Three months prior to the occurrence, an altercation took place between Hasan Raza and Hamad Raza, on the one side, and Abass Khan alias Abbasi and Muhammad Riaz Khan on the other side, due to winning and loosing of bet over cricket match but the matter was cooled down on account of intervention of the Mohalladars. On the day of occurrence at about 10-00 a.m. Abbas Khan and Riaz Khan demanded Rs,250 from Hamad Raza on account of loosing bet and stopped him at Maulana Ahmad Ali Road. They abused Hamad Raza and gave slaps to him. On receipt of information about the incident, the complainant, his brothers Hasan Raza and Nasim Raza reached there and gave beating to Abbas Khan and Riaz Khan and the neighbours got the matter patched up between the parties. At about noon time, Abdul Rasheed alias Baddu and Muhammad Fayyaz, paternal uncle of the complainant, visited the houses of the complainant and the accused so that the matter be patched up. Subsequently, aforesaid Abdul Rasheed and Muhammad Fayyaz told the complainant that sons of Eisa Khan were in rage and that he should forego. At about 5-00 p.m. The complainant, his brothers Hassan Raza, Hamad Raza, Nasim Raza and father Muhammad Iqbal, Abdul Rasheed alias Baddu and maternal uncle Naveed Abbas were sitting in front of their house and talking on the topic, when Hamad Raza stood up; proceeded towards Maulana Ahmad Ali Road and reached in front of the house of Eisa Khan, Abbas Khan/appellant, who was standing in the street in front of house, caught hold of Hamad Raza and started beating him. On seeing that, the complainant and his companions rushed towards the house of Eisa Khan, whereupon Abbas Khan alias Abbasi/appellant called his co-accused in a loud voice to come out, upon which Eisa Khan and his two sons Riaz Khan armed with pistol and Muhammad Ali armed with .222 rifle came in the street.
Muhammad Ali handed over .222-rifle to Abbas. Eisa Khan and Muhammad Ali raised Lalkara that none should go alive. Abbas Khan and Riaz Khan started indiscriminate firing from their respective fire-arms, which caused injuries to Nasim Raza, Hassan and Hamad Raza, who fell down. The complainant, Naveed Abbas and Abdul Rasheeed Baddu ran away. Muhammad Ali chased the complainant and tried to apprehend him but in the meanwhile Muhammad Ali got injured due to the firing of his own brothers Abbas Khan and Riaz Khan. The complainant, Abdul Rasheed and Naveed Abbas saved their lives behind the wall of the house of Abdul Ghafoor. On hearing the firing reports, the Mohalladars came in the street. Then Eisa Khan, Abbas alias Abbasi and Riaz Khan, while firing, took Muhammad Ali in injured condition towards Maulana Ahmad Ali Road. The complainant, Naveed Abbas, Abdul Rasheed alias Baddu attended Muhammad Iqbal. Hassan Raza, Hamad Raza and Nasim Raza. Muhammad Iqbal sustained inuries on the side of his head, armpit and on the back of his right shoulder. Nasim Raza received injuries on the left side of his head towards back between the shoulders, right thigh on the front side, neck below right ear and on the left shoulder towards neck. Hassan Raza received injuries on the right buttock, left thigh, foot on the front side and on the left hand. Hamid Raza received injuries on the forehead. Hassan Raza and Hamad Raza were taken to Mayo Hosptial by the Mohalladars for treatment, while Muhammad Iqbal and Nasim Raza succumbed to the injuries on the spot.
' The motive behind the occurrence was the grievance with regard to the incident which took place three months prior to the occurrence and the beating given by Hassan Raza and Nasim Raza to Abbas Khan and Riaz Khan.
4. On receipt of information through wireless about firing in Colony Gunj Bakhsh at about 4-45 p.m.
At Chowk Lachhman Singh, Khadim Hussain, Inspector/P.W.20, along with other police officials, went to the spot where he saw in the main street in front of the house of Eisa Khan two dead bodies of Muhammad Iqbal and Nasim Raza and so many persons gathered around the dead bodies. He recorded the statement of the complainant (Exh.PD) and sent the same to the police station for registration of the formal F.I.R. He prepared injury statements (Exh.P.R. And P.S.) and inquest reports (Exh.P.T. And P.U.) respectively of the deceased Muhammad Iqbal and Nasim Raza and sent the dead bodies for post-mortem examination. On spot inspection, he prepared the rough site plan Exh.PN/1 of the place of occurrence and collected 7 empties of .30 bore P-7/1-7 and 13 empties of .222 bore P-6/1-13, which were taken into possession through memo. Exh.PK. He also collected blood-stained earth from underneath the dead bodies of Nasim Raza and Muhammad Iqbal through memos. Exh.PI and Exh.PF respectively. He also collected blood-stained earth of Hamad Raza/injured through memo.' Exh.PJ. Then the Investigating Officer (I.0.) went to Mayo Hospital, Lahore, and made three applications (Exh. PV to PX) for permission to record the statements of Hamad Raza, Hassan Raza and Muhammad Ali, injured person, and according to the opinion of the doctor, Hamad Raza and Hassan Raza were not fit to make statements. On receipt of information about the death of Hamad Raza, the Investigating 'Officer went to General Hospital and took into possession his dead body; prepared his injury statement Exh.PY and inquest report Exh.PZ and sent the dead body to the mortuary for post-mortem examination. Eisa. Khan/ appellant was arrested on 8-7-1997. On the same day, the Investigating Officer got prepared scaled site plan Exh.PQ and PQ/1 from Imran Bokhari, Draftsman/ P.W.
18. On 10-7-1997, the Investigating Officer recorded the statement of Muhammad Ali/appellant in the hospital with the permission of the doctor. Abbas/appellant was arrested on 13-7-1997 and on his personal search .30 bore pistol P-10 with six live bullets P-11/1-6 was recovered. The said articles were taken into possession vide memo. Exh.PM. On the same day, Riaz/appellant was arrested. On 17-7-1997, Muhammad Ali-appellant was arrested. On 7-1997, Abbas/appellant, while in custody, led to the recovery of .222 bore rifle P-12 with 9 live bullets of rifle .222 bore P-13/1-9 and a magazine P-14 which were taken into possession through memo. Exh.PN. After completion of investigation, all the accused/appellants were sent up to face trial. As they denied the charge and claimed to be tried, the trial commenced.
5. To substantiate its version at the trial, the prosecution produced twenty witnesses. Ocular account was furnished by Hassan Raza/P.W.14, Naveed Abbas/ P.W.15 and Asad Raza/P.W.16. In addition to that, P.Ws.14 and 16 also stated about the motive. Hassan Raza/P.W.14 also stated about the recovery of .222 rifle at the instance of Abbas Khan/appellant. Muhammad Fayyaz/P.W.10 stated about the recoveries effected from the spot. Muhammad Inayat/P.W. 11 stated about the recovery of pistol P-10 at the instance of. Abbas Khan/ appellants. Nasir Ahmad, S.-I./P.W.12, and Muhammad Riaz / P.W.13 stated about the recovery of .30 bore pistol P-10 with seven bullets at the time of personal search of Riaz/appellant. Dr Imran Jawad/P.W.l, who conducted post-mortem examination on the dead body of Nasim Raza on 8-7-1997, while observing eleven injuries (injuries Nos.l-A to 6) on the person of the deceased, opined that the injuries were caused buy fire-arms; that the cause of death was damage to brain along with profuse haemorrhage, shock and death and that the injuries were sufficient cause death in ordinary course of life. According to him, the time between injuries and death was immediate; while between death and post-mortem examination it was 12 to 24 hours. Dr Aamir Bashir/P.W.2 conducted post-mortem examination on the lead body of Hamad Raza on 8-7-1997.
He, while finding five injuries (injuries Nos.l to 5, i.e, on head, eyes, nose and lips) on the persons of the deceased, opined that injury No,l was surgical extension of injuries per MLC, while the remaining were caused by blunt weapon. According to him, the cause of death was injury to brain (vital organ) leading to coma and death which was sufficient to cause death in ordinary course of nature. According to the doctor, the time between death and postmortem examination was 6 hours and 40 minutes. He, however, could not tell about the time between injuries and death. On 8- 7-1997, Dr. Allah Bakhsh Metla/P.W.3 conducted autopsy on the dead body of Muhammad Iqbal.
The doctor, while observing eight fire-arm injuries (injuries Nos.l to 4-C) on the person of the deceased, opined that the injuries leading to, injury to brain and vital structures inclding thoracic aorta resulting in profuse bleeding, coma, shock and death. According to him, the injuries were sufficient to cause death in ordinary course of nature. The time between the injuries and death was immediate, while between death and postmortem was within eighteen hours. Dr Muhammad Idrees/P.W.19 medically examined Hamad Raza on 7-7-1997. He, while observing three injuries on his person, referred him to. Surgical North, Mayo Hospital Lahore. On the same date, the doctor medically examined Hassan Raza and while observing six lacerated wounds on his person referred Hassan Raza to North Surgical Ward for further treatment. According to him, injury No,6 was caused by blunt weapon, while the rest were caused by fire-arm weapon. On the same date, the doctor medically examined Muhammad Ali/accused and while observing one lacerated punctured wound on left chest of the patient, caused by firearm weapon, referred him to North. Surgical Ward, Mayo Hospital, Lahore. Khadim Hussain Inspector/P.W.20 stated about the recording of statement Exh.PD of the complainant, its dispatch to the police station and the investigation thereafter. The rest of the witnesses, being formal in nature, need not be discussed. After placing on record the reports of Chemical Examiner (Exh.PAA, PBB and PCC), Serologist (Exh.PDD, PEE and PFF) and Forensic Science Laboratory (Exh.PGG), the prosecution closed its side.
6. In their statements recorded under section 342 Cr.P.C. Riaz Khan and Abbas alias abbasi pleaded their innocence and false involvement due to previous enmity. They even denied their presence at the spot. However, Eisa Khan appellant, took up a specific plea of self-defence of person and honour in the following words ' "P.Ws. Are closely related to each other and they have deposed falsely to save their akin. Hasan Raza and his brothers had bad reputation and they were in habit' of teasing passerby'Women in the street. I had forbidden them in standing the street, which became cause of annoyance. On 7-7- 1997 at about 5-00 p.m. I, Muhammad Ali, my wife and grown-up daughter were with me at my residence. My sons co-accused Abbas and Riaz Khan were not present at that time. Hassan Raza armed with rifle .222 bore, Waheed Raza armed with Sota, Muhammad Riaz armed with hatchet, Muhammad Fayyaz armed with chhura, Naseem Raza armed with Toka, Iqbal armed with Chhuri, Hamad Raza armed with pistol .30 bore came to our house to kill me and to take revenge of an incident which took place on the same day between my sons Muhammad Ali and Hassan Raza and Hamad Raza over teasing of the girls by the complainant party. They raised a Lalkara and threatened to kill my entire family members. Naseem Raza gave Toka blow on the door of my house. Muhammad Ali co-accused opened the door, Hamad Raza and Hassan immediately started firing towards me and Muhammad Ali. Hassan Raza fired shots with rifle .222 bore which hit on the chest of Muhammad Ali. On seeing the intention of assailants, I started firing with my licensed rifle .222 bore in my self-defence and in order to save hour and life of the family members.
Had I not opened the fires, the assailants would humilitate the womenfolk and kill me and my son Muhammad Ali. The firing from both sides i.e, Hamad Raza and Hassan Raza are on one party and myself to the other, resulted in a confusion and panic among the assailants. My son Muhammad Ali was injured, Naseem Raza and Muhammad Iqbal died on the spot, while Hamad Raza succumbed to the injuries in the Hospital. "
' A somewhat similar statement was made by Muhammad Ali/appellant. Muhammad Ali also appeared as his own witness under section 340 (2) ,Cr.P.C. And made the following statement:- ' "I along with my father Eisa Khan, brothers Riaz Khan, Abbas Khan Alias Basi, sisters and parents used to live in the house of my father at the address given above. Hassan Raza alias Bhola, Waheed Raza, Muhammad Riaz and Muhammad Fayyaz, etc., were also resident of the same street. Hassan Raza and his brothers used to tease the passersby womenfolk. Their honour was at a stake in the hands of Hassan Raza and his brothers. .They used to deal in the illegal trade intoxicant and were lawbreakers. I and my father at many a time forbade them in standing in the street and they became enemies of their strength. They threatened that we will have to pay the price for our "Sharafat".
(2) On 7-7-1997 at about 10-00 a.m. Hassan Raza and his brother Hamad Raza were making objectionable gestures in front of the house of my father. I objected them. On this, they started beating me. We were separated by Mohallahdars. On the same day at about 2-00 p.m. Hassan Raza and his brothers came to our house for quarrel. The Mohallahdars and my father Eisa Khan pacified them and they went back, extending threats to take revenge. It was threatened that I would not see the sun of following day. The local police was immediately informed but they had not taken any action. On the same day at about 5-00 p.m. Hassan Raza armed with rifle .222 bore, Waheed Raza armed with Sota, Muhammad Riaz with hatchet, Muhammad Fayyaz armed with Chhura, Naseem Raza armed with Toka, Iqbal armed with Chhuri, Hamad Raza- armed with pistol .30 bore, came to our house to kill me and to take revenge of above said incident which took place on the same day. They raised Lalkara and threatened to kill the entire family. Naseem Raza gave Toka blow on the main door of my house. At the moment, I opened the door. Hamad Raza and Hassan Raza started firing towards me and my father Eisa Khan. Hassan Raza fired shots with rifle .222 bore which hit me at the chest. On seeing the intention of assailants, my father Eisa Khan started firing with his licensed rifle .222 bore in his self-defence in order to save honour and life of the family members. The firing from both sides resulted in a confusion and panic among the assailants.' On account of firing made by Eisa Khan Hassan Raea, I sustained injuries. Nassem Raza and Muhammad Iqbal died at the spot while Hamad Raza succumbed to the injuries in the hospital.
(3) I was seriously injured. Mohallahdars took me to the Hospital and got me admitted in Surgical Ward of Mayo hospital for emergency treatment. I was not able to make my statement for many days. I narrated the incident to the police but police did not bring on record my version and failed to get registered a case of Qatl-e-Amd and attempt to commit murder against Hassan Raza,etc. My two brothers Abbas and Riaz Khan were not present at the place of occurrence but the police challaned them along with my father Eisa Khan and me, maliciously and my version was not brought on the record. I filed private complaint before this Honourable Court. My statement on oath was recorded and the matter was referred to learned Judicial Magistrate for proceeding/ enquiry.
Copy of the private complaint and my statement Exh. PD. I tender copies of F.I.Rs, registered against the complainant party which are marked Mark-A to M. The private complaint is pending before the learned Judicial Magistrate and the same is likely to be submitted before this Honourable Court for trial."
' None of the rest of the accused/appellants appeared as witness under section 340 (2) Cr.P.C. The accused/ appellant did not produce any witness in their defence.
7. Learned counsel for the appellants submits that it was a sudden affair and the complainant party was aggressor; that undeniably, the occurrence took place in front of the house of Eisa- appellant; that according to prosecution itself, Eisa Khan and Muhammad Ali were empty-handed and had not caused any injury; that in order to implicate the sons of Eisa Khan, the prosecution deliberately attributed fires to them and not to Eisa Khan, who, in order to defend himself and family members, caused firing; that the injured in the case were taken to the hospital by Mohalladars; that the defence plea is proved by the fact that Muhammad Ali received fire-arm injury on his chest, which belies the prosecution story that he received injury while he-"*was following the complainant party.
8. Conversely, learned counsel appearing on behalf of the complainant submits that the complainant party had gone to save their near and dear Hamad Raza and not to cause injury to anyone but the accused chose to cause indiscriminate firing which resulted into death of three persons and injuries to Hassan Raza/P.W.14; that the presence of Hassan Raza is admitted and also proved by the fact that he received fire-arm injury during the occurrence; that though it was alleged that two of the members of the complainant party were armed with fire-arms and only one fire-arm injury was received by Muhammad Ali and that could be caused by the indiscriminate firing made by the accused; that the ocular account is supported by the medical evidence and corroborated by the recovery of weapons and their tallying with the empties recovered from the spot; that the plea of self-defence is not proved by the circumstances of the case, as four persons received injuries on the side of the complainant party and just one injury was received by Muhammad Ali on the side of the accused; that at the last stages of the trial, Riaz Khan, Abbas Khan ,and Muhammad Ali deliberately tried to show them younger by giving wrong ages; that they did not produce any birth certificate or school leaving certificate in proof of their ages nor there is any medical evidence that they were juvenile at the time of occurrence; that they did not take this plea right from the beginning; that the provisions of Junenile justice System Ordinance were not available in the year 1997 when the occurrence took place.
9. The learned Additional Prosecutor General for the State, while adopting the line of arguments of the learned counsel for the complainant, has supported the impugned judgment.
10. We have heard the learned counsel for the parties at a great length and have also gone through the record.
11. Out of the accused, Eisa Khan father of the rest of the accused took specific plea of self-defence of person and honour. According to him, it was the complainant party which was aggressor and launched criminal assault while armed with deadly weapons. They caused fire-arm injury to his son Muhammad Ali. So sensing danger he acted in self-defence. According to him, Riaz and Abbas appellants were not present at the time of occurrence. His detailed statement has been reproduced in para 6 ante, It is a case of two versions. So both are to be put in juxtaposition to ascertain which of the versions - was true or nearer to the truth.
12. According to prosecution case, the complainant and the accused lived in the same street. Three months prior to the occurrence, an altercation took place between Hassah Raza and Hamad Raza, brothers of the complainant, and Abbas alias Abbasi and Raiz Khan, accused, over loosjng a bet on cricket match. That matter was settled down by the neighbourers. On the fateful day, at 10-00 a.m.
Abbas and Riaz, appellants stopped Hamad Raza deceased, when the later was at Maulana Ahmad Ali Road and demanded Rs,250, the loosing amount of bet. On this pretext, Hamad Raza was abused and manhandled. On receipt of information, complainant, his brothers Hassan Raza and Nasim Raza reached and gave beating to Abbas and Riaz accused. The matter was settled down by the intervention of the inmates of the Mohallah. In the after non Abdul Rasheed alias Baddu (not produced during trial) and Muhammad Fayyaz, uncle of the complainant, tried to cool down the parties.
' However, the witnesses informed the complainant party that sons of Eisa Khan felt aggrieved and they should be careful. At about 5-00 p.m. Complainant, his brothers Hassan Raza, Hamad Raza, Nasim Raza, father Muhammad Iqbal, Abdul Rasheed alias Baddu and maternal uncle Naveed Abbas were gossiping in front of their house. Hamad Raza got up and started towards Maulana Ahmad Ali Road. When he reached near the house of Eisa, Abbas accused was standing in front of the house. He caught hold of Hamad Raza and started beating. Seeing that, the remaining six persons of the complainant party rushed towards the house of Eisa Khan. On the call of Abbas Khan Eisa Khan, his two sons Riaz Khan and Muhammad Ali armed with .222 rifle emerged in the street. Muhammad Ali gave his rifle to Abbas. Thereafter Abbas and Riaz started indiscriminate firing Which caused injuries to Muhammad Iqbal, Nasim Raza, Hassan Raza and Hamad Raza, who fell down. Complainant, Naveed Abbas, Abdul Rasheed receded. They were followed by Muhammad Ali who received fire at he hands of his own brothers. Thereafter the accused left the scene of occurrence. Muhammad Iqbal and Nasim Raza died on the spot, while Hassan Raza and Hamad Raza were taken to Mayo Hospital. Hamad Raza lost his life at 5-00 a.m. In the morning.
According to the prosecution case itself, the occurrence took place in front of the house of Eisa accused and neither Eisa nor Muhammad Ali, both of whom were empty-handed, caused any injury to any member of the complainant party. It also reveals that at about 10.00 a.m. Hamad Raza was allegedly beaten by Abbas Khan and Riaz Khan and thereafter the complainant along with his brothers Hassan Raza and Nasim Raza reached the spot and gave beating to the two Despite these two incidents which happened earlier, Hamad Raza without any reason left the company of his relatives and started towards Maulana Ahmad Ali Road and adopted the route which was running in front of the house of Eisa Khan. It is also in evidence that three other routes also led to Maulana-Ahmad Ali Road but Hamad Raza adopted the one which lay in front of the house of the accused. It has not been disclosed by the prosecution as to what was the urgency for Hamad Raza to go to Maulana- Ahmad Ali Road. Obviously, he himself invited the trouble. Similarly, according to prosecution case, when Hamad Raza reached in front of the house of the accused at that time Abbas Khan was empty-handed and he started beating Hamad Raza. Hamad Raza was not an infant that he could not have re-acted but this has not been mentioned by the P.Ws. Now, admittedly, six of the remaining members of the complainant party rushed towards the house of Eisa Khan to help his brother. In the -circumstances, it was very natural that the accused felt threatened and they re-acted. The injuries on the person of Muhammad Iqbal and Nasim Raza are from close range, which supported the fact that the complainant party had gone very close to the accused, who were four in number and two of them were empty-handed. The P.Ws. Have attributed the injury on the person of Muhammad Ali deceased to the accused but it is not borne out from the circumstances of the case, as, according to prosecution version, Muhammad Ali received fire-arm injury while he was chasing the members of the complainant party who were receding. In that case, the injury should have been on his back, while the injury on the person of Muhammad Ali is on the left side of his chest.
13. The upshot of the whole discussion is that it appears nearer to the truth that while the complainant party was rushing towards the house of the accused, the accused sensing danger re- acted.
14. The perusal of the injuries on the person of Nasim Raza deceased reveals that the injuries were caused from the front. Injuries on the person of Hamad Raza deceased also indicate that those were caused from the front. Most of the injuries on the person of Muhammad Iqbal deceased were also caused from the front and close range. Injury No,3 on the person of Hassan Raza was also caused from the front and from a close range. Injury on the person of Muhammad Ali accused was on the left side of chest caused by a fire-arm. He was referred to the North Surgical Ward by C P.
W.19 Dr Muhammad Idrees, who had attended to him, Hamad Raza and Hassan Raza while they were injured. So the medical evidence also supports the fact that the complainant party was fired upon when they had reached very close to the accused.
15. According to prosecution, the motive behind the occurrence was loosing of bet of Rs,250 over a cricket match three months prior to the occurrence which led to an altercation between Hassan Raza and Hamad Raza of the complainant side and Abbas and Riaz of the accused side. However, no independent evidence was D produced on record in proof of the motive. It is not available on record as to when the cricket match was played and between which team: Hassan Raza the injured witness on the point of motive stated that Hamad Raza and Riaz accused used to bet on the cricket match and the dispute related to these bets. He further stated that he did not bet as any cricket match with Riaz accused and that it was correct that previously he wrongly stated that he had a dispute over bet of cricket match. He conceded during cross-examination that he did not know on which match and between which team the dispute of betting match had arisen and to top it off he further conceded that he was not present when the deceased and Riaz had a bet on some match and that he had learned about the same and had no personal knowledge about that.
Even otherwise it does not appeal to reason why the parties kept on fighting with each other over a meager amount of Rs,250. According to P.W.16, the acused and the complainant party lived in the same street and there were round about twenty houses in between the house of the complainant party and the house of the accused. The P.Ws. Also admitted that earlier quarrels between the parties were settled by the inmates of the street. They could also settle the dispute over payment of Rs,250. The motive set out in the defence plea appears to be closer to the truth that Eisa Khan did E not like the presence of accused in front of his house, as he had young daughter and due to previous cases, the complainant party did not enjoy good reputation.
16. According to report of Forensic Science Laboratory (Exh.PGG), it received two jackets of bullets, which, were marked as P-1 and P-2, thirteen crime empties of .222 bore marked as C-1 to C-13, seven crime empties of .30 bore marked as C-14 to C-20. According to the said report, thereafter if received one pistol of .30 bore marked as 'A' to have been recovered from Riaz Khan, one pistol of .30 bore marked as 'B' to have been recovered from Abbas Khan and one rifle of .222 bore. The crime empties of .222 bore C-1 to C-13 were found to have been fired from the recovered rifle. The crime empties of .30 bore C-14 to C-20 had been fired from the pistol of .30 bore belonging to Riaz Khan. The other pistol marked as 'B' was also found to be in working order. The pieces of jackets of bullets P-1 and P-2 were not identifiable. The report corroborates the prosecution case relating to firing caused by Riaz and Abbas accused.
17. Now coming to the defence; Eisa was shown to be empty-handed by the complainant party including Hassan Raza/P.W.14 whose presence stood admitted and was also proved by the physical evidence of his being injured during the occurrence. Eisa was an old man, above sixty years of age. It appears that he took the blame of firing upon himself in order to save his sons Abbas and Riaz. However, according to him, it was he alone, who caused fire by .222 rifle. His plea is not supported by the factum of recovery of seven empties of .30 bore pistol, which tallied with the pistol recovered at the instance of Riaz. Except for Muhammad Ali, nobody received any injury at the hands of the complainant party, who, according to defence plea, were armed with deadly weapons including firearms, hatchet and Toka. The story that the complainant party after reaching in front of the house of Eisa gave Toka blow on the door of his house is also not borne out. It is a case of one injured against four, three of whom died because of multiple injuries. However, as noted above, according to the facts of the case, the occurrence took place in front of the house of Eisa accused and F the complainant party rushed towards his house. It also cannot be denied that Muhammad Ali on the accused side received a fire-arm injury. However, a close scrutiny of the whole evidence reveals that the accused exceeded their right of private defence of person by taking life of three persons.
18. In the above noted circumstances, we alter the convictions of Abbas alias Abbasi and Riaz Khan, appellants, from offences under section 302 (b)/34 P.P.C. To offences under section 302 (c)/34 P.P.C. On each count. Their sentence is reduced to twenty five years' R.I. Each on each count. G The sentences passed by the learned trial Court for offence under section 324/34 P.P.C. Against Riaz Khan and Abbas Khan are set aside. The sentence of fine inflicted upon Riaz and Abbas is also set aside in view of the dictum laid down by the Honourable Supreme Court in the case of Mairaj Begum v. Ejaz Anwar and others (PLD 1982 SC 294). Benefit of section 382-B Cr.P.C. Is given to Riaz Khan and Abbas Khan.
19. With the above modification in conviction and reduction in sentence of Riaz Khan and Abbas alias Abbasi, this appeal to their extent stands disposed of.
20. As far as Eisa Khan and Muhammad Ali are concerned, as already noted above, according to the P.Ws., they were empty handed and did not cause any injury to any of the deceased. Thus, the H appeal to their extent is allowed and the judgment passed by the learned trial Court qua them is set aside. They are acquitted of all the charges. Eisa Khan appellant is on bail. His bail bonds are cancelled and the sureties are discharged. Muhammad Ali appellant would be released forthwith if not required in any other case.
21. The death sentence inflicted upon Riaz Khan and Abbas is NOT confirmed. The Murder Reference is answered in the negative.
22. With the acquittal of Eisa Khan and Muhammad Ali, convicts, Criminal Revision No,782 of 2001 seeking enhancement of their sentence is dismissed.