SAAD SAOOD JAN, J.-The appellants Abdus Samad (aged, 29 years) his brother Abdul Hamad alias Hamad Ali (aged, 17 years) and cousin Younis (aged, 28 years), were convicted by an Additional Sessions Judge at Faisalabad of an offence under section 302 read with section 34 of the Pakistan Penal Code for causing the death of Muhammad Iqbal deceased For this offence Abdus Samad was sentenced to death while Hamad Ali and Younis were directed to suffer imprisonment for life. In addition all the three appellants were asked to pay fines of Rs. 5,000 each, or, in default thereof to undergo rigorous imprisonment for a period of two years. Together with them three other persons. Namely, Wajid Ali. Abdul Ghani and Abdul Ghafoor, were also tried on the same charge but they were acquitted by the learned Additional Sessions Judge. The appel--lants have filed a joint appeal against their convictions and sentences and the learned Additional Sessions Judge has also made a reference to this Court under section 374 of the Code of Criminal Procedure for the confirmation of the sentence of death imposed upon Abdus Samad. This judgment will dispose of both these matters.
2. The appellants as well as those acquitted by the learned trial Court were closely related inter se.
Thus, Abdus Samad and Hamad Ali appellants and Wajid Ali were real brothers, being the sons of Abdul Ghani, The father of Younis appellant and Abdul Ghafoor were sons of the real brothers of Abdul Ghent. They all resided in Chak No. 232/RB of Tehsil Faisalabad. The were of Abdul Ghani, Mst.
Habib Begum, seas allotted some land in Squares Nos. 32 and 38. The complainant party challenged the said allotment and sought the land covered by the allotment for themselves. This led to a litigation between the parties. On 1st July, 1975 the allotment made in favour of Mst. Habib Beg-um was set aside and the land in dispute was given to the complainant party by the Assistant Commissioner, Faisalabad, who also exercised the powers of Deputy Settle--ment Commissioner (Lands) in the area. In pursuance of the order of the said officer the complainant party obtained the actual physical possession of the land on 26th August, 1975. This was despite the fact that some part of the land was covered by the sugar-cane crop belonging to Mst. Habib Begum. 'to challenge the order of the Assistant Commissioner, Mst. Habib Begum fled a writ petition in the High Court. This writ peti--tion came up for hearing before Zakiuddin P.1, J, who on 23January, 1976 directed the maintenance of status quo.
3. According to the prosecution a day before the occurrence the appellants party including Abdus Samad cut away some portions of the sugar-cane crop and the stumps of trees front the land in dispute. On the day of occurrence, that is, on 8March, 1976, at about 5 p. m. Abdus Samad and Hamad Ali, appellants, once again visited the land in dispute w4t sickles to cut of some portion of the wheat crop standing there. The deceased and his cousin Abdul Latif (P. W. 9) were present in the land at that time. They stopped the said appellants from cutting away the crop. Upon this they went away after issuing threats to the deceased and Abdul Latif (P. W. 9). Half an hour later all the three appellants together with Abdul Ghani, Abdul Ghafoor and Wajid Ali came to the land )n dispute. At that time Abdus Samad, Hamad Ali, Muhammad Yunis and Abdul Ghafoor were armed with shot-guns, Wajid Ali had a rifle while Abdul Ghani was empty-handed. As soon as they arrived at the spot Abdul Ghani raised a lalkara. Immediately thereafter Hamad Ali and Muhammad Younis appellants fired at the deceased who was bit. As he turned back Abdus Samad also fired at him. He then fell down. Abdul Latif (P. W. 9) took shelter in the nearby water channel. Muhammad Yousaf (P. W. 10) and one Rashid who were present at the scene of occurrence implored the appellants and their companions to stop further firing. After that the appellants and their companions went away with their weapons.
4. Immediately after the occurrence the deceased was removed to the District Headquarter Hospital, Faisalabad which was about six miles away from the spot. He was examined by Dr. Younis Ali at 9-30 p. m. He died at 10 p m. Abdul Latif (P. W. 9) then went to Police Station Saddar, Faisalabad and lodged the F. I. R. (Exh. P. H.) at 10-30 p. m.
5. The post-mortem examination of the deceased was performed by Dr. A. A. Khalid of the District Headquarter Hospital, Faisalabad, He had 70 fire-arm wounds all over the back of the chest, abdomen and buttocks, 7 fire-arm wounds on the front of the right upper arm. 9 fire--arm wounds on the right fore-arm, -two fire-arm wounds on the forehead and one fire-arm wound each on the right chest and upper lip. As a result of these injuries the pancreas, small intestines, liver spleen and both kidneys were injured. According to the doctor the deceased had died within 6 hours of the receipt of the injuries,
6. The case was mainly investigated by S. I. Mukhtar Ahmad (P. W. 12). He arrested Abdus Samad appellant on 10March, 1976 from the District Headquarter Hospital, Faisalabad where he was lying in an injured condition. He too was examined by Dr. Yousaf Ali. He had six fire-arm wounds on various parts of his body. All his injuries, although originally kept under observation, were later declared to be of simple nature.
7. It may be mentioned that in respect of the injuries found on the person of Abdus Samad, his mother Mst. Habib Begum also got an F. I. R. Registered at Police Station Saddar, Faisalabad at 12-15 at night. The said F. I. R. Is Exh. P. L. On the record.
8. Younis appellant was arrested by the Police on 20th March, 1976. He had an injury on his right foot: However, it was nobody's case at the trial that he had received this injury during the course of occurrence. On the other hand it will appear from the statement of the Investigat--ing Officer that Younis had this injury about 4 days prior to the occur--occurrence.
9. The appellants pleaded not guilty to the charges against them. Except Abdus Samad they all denied their participation in the occurrence and alleged that they had been falsely implicated.rd th th Abdus Samad stated that on the day of occurrence he and his-mother Mst. Habib Begum went on a round of their fields. They found the deceased together with Abdul Latif (P. W. 9) and five or six persons, all armed with fire-arms, present in the land in dispute with the object of occupying it forcibly. When they saw him and his mother they started firing. He was injured and he fell down.
During this firing the deceased also got hurt. He that is Abdus Samad got himself admitted in the hospital and his mother went to the Police Station to lodge a report. However, the complainant party cooked up a false story and implicated him in this case. He also alleged that the land in dispute was in possession of his mother and the litigation was still going on. Of all the appellants only Younis examined two witnesses in his defence. The other appellants and their companions did not lead any evidence.
10. The case of the prosecution against the appellants rests entirely upon the testimony of two eye- witnesses, namely, Abdul Latif (P. W. 9) and Muhammad Yousaf (P. W. 10). One Rashid was also cited as an eye-witness in the F. I. R. But he was given up on the ground that he had been won over.
Abdul Latif (P. W. 9) deposed that he and the accused were present in the land in dispute when Abdus Samad and Hamad Ail appellants came there with sickles to cut the wheat crop. He and the deceased stopped them from doing so whereupon they left after issuing threats. About 10 to 15 minutes later .All the appellants and their com--panions returned. They were carrying fire-arms.
After some lalkara had been raised Younis and. Hamad Ali appellants fired at the deceased. As the deceased turned to run away he was fired at by Abdus Samad. The appellants and their companions then turned towards him to fire. He, how--ever, took shelter by lying in a water channel. He, too, in order to defend himself fired towards the assailants but he did not know if any one from among them was injured. Muhammad Yousaf (P. W. 10) fully supported the story of Abdul Latif (P. W. 9) but he added that apart from Abdul Latif (P. W. 9) the deceased had also fired once at his assailants.
11. Both Abdul Latif (P. W. 9) and Muhammad Yousaf (P. W. 10) are witnesses of partisan nature.
Abdul Latif (P. W. 9) was first cousin of the deceased. Apart from that he was personally involved in the litiga--tion with Mst. Habib Begum over the land in question. The elder brother of the deceased was a khaloo of Muhammad Yousaf (P. W. 10). Although he also claimed relationship with Abdul Ghafoor, an alleged companion of the appellants, but in cross-examination he gave most unsatisfactory replies in respect of this alleged relationship. Thus, in his examination---in-chief he said that Abdul Ghafoor's brother was married to the daughter of his parternal aunt. When in cross-examination he was asked to name the parents of the were of Abdul Ghafoor's brother he changed his stand and said it was the brother of Abdul Ghafoor's were who was married to his cousin. Even this statement was challenged by the defence. However that may be, he was a chance witness and at the relevant time he lived in a different abadi about 3 to 4 squares from the place of occur--occurrence:
12. The two eye-witnesses did not come out with the entire account of the occurrence at the earliest occasion but kept back the details of the role played by the complainant party therein.
Thus, while dictating the F. I. R. (Exh. P. H.) Abdul Latif (P. W. 9) did not mention that he also had fired at the opposite party. Similarly, Muhammad Yousaf (P. W. 10) while making his statement before the Police did not disclose that at the time of occurrence Abdul Latif (P. W. 9) and the deceased too had indulged in firing. From the testimony of Muhammad Yousaf (P. W. 10) it appears that at the relevant time both the deceased and Abdul Latif (P. W. 9) were carrying guns. This fact too was concealed by Abdul Latif (P. W. 9) when he lodged the F. I. R. It may also be men--tioned that neither Abdul Latif (P. W. 9) nor the deceased held any licence for a gun.
13. Taking into account the facts that there was prolonged litigation between the parties over the land where the occurrence took place, that both the eye-witnesses were related to the deceased, that one of them was personally involved in the litigation and the other was a chance witness, and that in their earliest statements they withheld details relating to their own role in the occurrence, it will not be safe to accept their testimony without serious reservation either with regard to what actually happened during the course of occurrence or in respect of the persons who parti-- cipated therein.
14. Despite the fact that the eye-witnesses had fully implicated Wajid Ali, Abdul Ghani and Abdul Ghafoor also in the occurrence, the learned Additional Sessions Judge thought that their participation in the occurrence was doubtful and on that ground he acquitted them. Neither the State nor the complainant party has elected to challenge the order of acquittal. Of the three appellants reliable corroboration is available only in respect of Abdus Samad who was found to be bearing fire-arm injuries on his body after the occurrence. The learned Additional Sessions Judge thought that the medical evidence furnished the necessary corroboration in respect of the three appellants. It seems difficult to agree with him for the said evidence does not indicate that more than one gun was used for filing upon the deceased.
15. In the F. I. R. (Exh. P. L.) lodged by Mst. Habib Begum the, presence of Younis at the spot was admitted but if that document is read carefully it will appear that Younis reached the scene of occurrence after it was all over. Therefore, it can hardly be treated as an admission on the part of Mst. Habib Begum, that Younis was present when the occur--occurrence took place. It will thus be seen that except in the case of Abdus Samad there is no corroboration available in respect of the other appellants.
16. According to the prosecution about half an hour prior to the occurrence Abdus Samad and Abdul Hamad appellants came to the land in dispute in order to cut of the wheat crop grown by the complainant party. In support of this part of its case it relied entirely upon the testi--mony of Abdul Latif (P. W, 9). It has already been stated above that the testimony of this witness cannot be accepted without reservations. It is to be observed that although Abdul Latif (P. W. 9) claimed that before leaving Abdus Samad and Abdul Hamad had cut of a handful of the crop yet he did not show the cut of portion to the Investigating Officer (P. W. 12).
17. The allotment standing in the name of Mst. Habib Begum was cancelled by the Assistant Commissioner on 1July, 1975. The complai--nant party was put in possession of the land on 26August, 1975 by the local revenue staff. The report (Exh. P. E.) of the Girdawar prepared on. The occasion indicates that at the relevant time the sugar-cane crop was standing in half of Killa No. 9 of Square No. 32 and in half of Killa No. 9 of Square No. 38. In respect of the area covered by the sugar--cane crop the possession was delivered to the complainant party only through `nishandahi', which means that the standing crop of Mst. Habib Begum was not handed over to the new allottees. It was admitted by Abdul Latif (P. W. 9) that they had neither paid any compensation to Mst. Habib Begum nor deposited them with the authorities in respect of her sugar-cane crop. It does appear from the record that this crop was still standing in the land in question on the day of occurrence. It was not alleged by the prosecution that Mst. Habib Begum was not entitled to remove her sugar-cane crop. In the circumstances the visit of her son Abdus Samad or any other member of her family to the land in dispute with sickles could hardly be considered as unjustified or inexplicable. It certainly did not lead just one inference, as the learned Additional Sessions Judge seems to think that by visiting the land in dispute with sickles the appellants wanted to take back its possession forcibly.
18. The story of Abdus Samad that the occurrence took place when he together with his mother Mst.
Habib Begum went on a round of his land does not appear to be very convincing. Considering that the deceased died of gunshot wound there can be no doubt that at the relevant time Abdus Samad was armed with gun. If he was really on an innocent visit of his land with his mother he would hardly be carrying a gun with him.st th
19. Be that as it may, the fact remains that at the relevant time both parties were armed with guns.
During the course of occurrence both fired at each other. As a result of the firing one person froth each side was hurt. Thus, from the side of the complainant party the deceased was killed while from the opposite side Abdus Samad was seriously wounded. Apart from the ocular testimony which as already stated is of a partisan nature there is nothing on the record which may indicate as to which party was the first one to open fire. If the fire was opened by the complainant party the opposite side would be justified in shooting back in self-defence. We have also considered the possibility whether it is a case where both parties had come to the scene of occurrence with the preset intention of shooting at each other but we find that the evidence on the record is not sufficient to support any such theory.
20. For the reasons stated above we are unable to support the convictions and sentences of the appellants. Accordingly, we set aside their convictions and sentences and acquit them of the charge against them. They shall be set at liberty forthwith if not required in any other case.