1. DORAB PATEL, J.-Murtaza and Muhammad Ahmad, brothers of the witness Yahya, who lodged the F. I. R., were killed in village Gohar, Chak No. 8, Lahore District, in a fight in the morning of 22-3-1967.
2. Rehmat Ali, Yahya's father and Rafiq, his brother, were also injured in this fight. The appellants with five other accused were therefore tried in the Sessions Court Lahore, under section 302/ 149, 307/ 149 and under section 148, P. P. C. The appellant, Abdul Rehman stated in his defence in the Sessions Court that there was a dispute about land between him and the party of the com-- plainant and that on Re day of the occurrence, he was present on his land, when the two deceased came armed with hatchets, whilst the witness Rehmat Ali had a spear and his son Rafiq had a dang. Muhammad Ahmad, Murtaza and the two witnesses attacked him, and although he was severely wounded, he managed to seize Rehmat Ali's spear and "used it to save my life." Mahanda co-accused on my alarm came to my rescue and was also injured by Murtaza and Ratiq . . ." The appellant, Mahanda, who had received a grievous injury in this fight, admitted his presence at the occurrence and adopted in his defence the same plea that was advanced by his uncle, Abdul Rehman. The other five accused, who were tried with these appellants, denied their presence at the occurrence and stated that they had been falsely implicated on account of enmity, because they were very closely related to Abdul Rehman.
3. Although the eye-witnesses implicated all the eight accused, and although all the witnesses had categorically asserted that eight accused had come armed with the intention of attacking Murtaza and Muhammad Ahmad, the Sessions Court convicted the appellants only under section 302/34, P.
4. P. C. And under section 307,134, P. P. C. And acquitted the other five accused. Further, although the three appellants were convicted for murder, Abdul Rehman was given the benefit of the lesser sentence, whilst Mahanda and Ahmad Ali were sentenced to death. The three appellants were also sentenced to seven years' R. I. Under section 307/34, P. P. C., and fines were also imposed on both counts.
5. The appellants challenged their conviction in an appeal in the Lahore High Court, which was heard with the reference from the Sessions Court and a Revision filed on behalf of the party of the complainant. And, by their judgment dated 10-7-74, the learned Judges of the Lahore High Court dismissed the appeal of the appellants and confirmed the sentence of death passed against the appellants, Mahanda and Ahmad Ali. Next, as to the Revision, filed by the party of the complainant, the learned Judges directed that compensation should be awarded to them presumably out of the fines recovered from the three appellant. Aggrieved by this judgment, the appel--lants filed a petition for leave in this Court and leave was granted, inter alia, because the evidence of two of the four eye-witnesses had escaped the attention of the learned Judges, and because of the glaring inconsistencies between the medical evidence and the ocular evidence and the divergent descriptions of the occurrence by the four eye-witnesses.
6. The motive for the occurrence was a dispute about inheritance between the parties, who acre descended from the two wives (Mst. Fatima and Rai Bibi) of one Khuda Bakhsh, who died many years ago and the facts leading to this enmity between the parties have been set out in an order of the learned Collector, Kasur dated 29-7-1965 by which the learned Collector, Kasur had allowed the appeal of Mst. Janet Bibi (the daughter of the said Mst. Fatima and the mother of the appellant, Abdul Rehman and Khalid one of the co---accused) against fist. Sairan and Mst. Rehmat Bibi, who claimed through the other widow of Khuda Bakhsh deceased. Now, Mst. Sairan and Rehmat Bibi are sisters, Mst. Sairan is the wife of Rehmat Ali, who was injured in the occurrence and Murtaza and Muhammad Ahmad, who were killed in the occurrence and Yahya (who lodged the F. I. R.) are the children of Rehmat Ali and Mst. Sairan. Turning now to the Collector's order, he observed :- "Khuda Bakhsh had two wives, Fatima and Raj Bibi. He had one daughter Mst. Jannat Bibi from Fatima and two daughters from Raj Bibi, namely Mst. Rehmat Bibi and Mst. Sairan. Fatima died before the death of Khuda Bakhsh and after the death of Khuda Bakhsh the entire property went into the hands of Mst. Raj Bibi as a limited owner. Subsequently Mst. Raj Bibi gifted the entire property to Mst. Rehmat Bibi and Mst. Sairan, against this gift the appellant Mst. Jannat Bibi went to the civil Court which passed a decree in favour of Mst. Jannat Bibi to effect that in view of the coming into force of the Shariat Act, Mst. Raj Bibi was not entitled to gift away her property, to Mst.
7. Rehmat Bibi and Mst. Sairan. In view of the fact that Mst. Raj Bibi was a limited owner. The Court further decided that after the death of Mst. Raj Bibi, the rights of various parties according to the Shariat Act will not be affected because to the gift made by Mst. Raj Bibi."
8. The learned Collector then explained that the decree obtained by the appellants mother had become final and therefore, she was entitled to a partition of land. But, although the occurrence took place a year and a half after this order, Mst. Jannat Bibi had not been successful in her efforts to enforce the Collector's order with the result that the party of the complainant had remained in cultivating possession of land which should have been handed over to Mst. Jannat Bibi and her son the appellant Abdul Rehman. Therefore, according to the prosecution, this appellant had a motive for killing Murtaza and Muhammad Ahmad, the sons of Mst. Sairan Bibi.
9. I now turn to the description of the occurrence (sic) and Yahya, the brother of Murtaza and Muhammad Ahmad, who lodged the F. I. R. Stated that he, his brothers and his mother were at their field at about 11-30 a.m. The presence of Mst. Sairan, the mother, was explained on the ground that she bad brought meals for her sons. Reverting however to the description of the occurrence, the witness then went on to say that the appellant suddenly appeared with his brother Khalid his nephew Mahanda and five other cousins and gave the usual lalkara before firing at Murtaza with his pistol. Next, as to the weapons with which this unlawful assembly was armed, Yahya said that Abdul Rehman and two of the other accused were armed with pistols, whilst the appellants, Mahanda and Ahmad Ali and one of the acquitted accused, Khalid were armed with spears. The acquitted accused Sharif and Siddique were armed with a hatchet and a dang respectively. Then, after the appellant Abdul Rehman had fired at Murtaza, the appellant, Mahanda had attacked both Murtaza and Muhammad Ahmad with his spears whilst the third appellant, Ahmad Ali and Khalid (Abdul Rehman's brother) had attacked the witness Rafiq and Muhammad Ahmad with spears.
10. Next, the acquitted accused Sharif had hit Murtaza on the head with a hatchet, Finally, according to the witness "then all the accused collectively belaboured Rafiq Murtaza and Muhammad Ahmad.
11. Murtaza died on the spot . . . . Then all the accused decamped''.
12. But, after saying all this, the witness was compelled to admit in his answer to the Court that when his brothers "saw the accused going towards them to make an attack on them, they first inflicted hatchet blows on Abdul Rehman and Mahanda."
13. The other eye-witnesses, denied that the deceased had "first inflicted hatchet blows" on the appellants. However, whilst they all implicated all the eight accused in the charges under sections 148 and 149, P. P. C., Mst. Sairan did not attribute any overt act to Yahya, the acquitted accused, whilst Rafiq (the son of Rehmat Ali) did not attribute any overt acts to Khalid and to the said Yahya.
14. However, Rafiq's father attributed overt acts only to the three appellants. Such glaring discrepancies in the description of the occurrence by the eye-witnesses do not inspire confidence.
15. Secondly, accord--ing to the prosecution, it was Abdul Rehman, who had a motive of killing his cousins, therefore, he had to be given a leading role in the occurrence, and all the eye-witnesses said that they had seen him fire at Murtaza and they even went to the length of specifying where the deceased had been hit by the shot fired by Abdul Rehman. But, as Murtaza did not have any fire-arm injury, this attempt by the four eye-witnesses to give the major role in the occurrence to Abdul Rehman was an obvious attempt at pre-concerted perjury, and, therefore, this appellant was given the benefit of the lesser sentence by the Sessions Court. But reverting to the infirmities in the ocular evidence, although, according to the eye-witnesses, all the eight assailants were heavily armed, the deceased had successfully inflicted injuries on their assailants, and Mahanda, for example, had an incised wound, but the injury was grievous. Abdul Rehman, on the other hand, who was the target of the venom of the party of the complainant, had eight incised wounds of which three were on the head, and the injuries were so severe, that according to the doctor, who examined this appellant, the injuries were collectively dangerous to life. The severity of the injuries thus inflicted by the party of the com--plainant is difficult to reconcile with the description of the occurrence by the eye-witnesses. In view of these and the many other discrepancies in the prosecution case, to which Mr. Saeed referred us, the task of the trial Court in sifting the grain from the chaff was to say the least, extremely difficult and I would now examine how the learned Additional Sessions Judge performed this very difficult task.
16. The learned Additional Sessions Judge solved the problem of reconciling the fundamental discrepancies between the medical evidence and the ocular evidence by the simple process of ignoring the medical evidence. But, despite this attempt to square the circle, he had to reconcile the glaring discrepancies in the description of the occurrence by the eye-witnesses. Did eight assailants attack the deceased and their cousins, as claimed by Yahya, the brother of the deceased or did only three assailants attack the deceased and their cousins as claimed by Rehmat Ali? The learned Additional Sessions Judge has preferred the evidence of Rehmat Ali, without giving any reasons for this preference, but presumably this was because the evidence of the other three eye-witnesses was completely falsified by the medical evidence. However, although Rehmat Ali did not resort to the absurd exaggerations of the occur--rence to which Yahya, his son had resorted, the further question which required examination was whether he was a witness of truth, but the learned Additional Sessions Judge assumed that Rehmat Ali was a witness of truth, presumably because the exaggerations in his evidence were not so gross. Be that as it may, as the learned Additional Sessions Judge relied on this witnesses evidence, I am not able to understand how he acquitted the five other accused, because on Rehmat Ali's evidence, their guilt under sections 148 and 149 of the Pakistan Penal Code had been proved beyond all doubt.
17. Perhaps, although this is far from clear, this was because the learned Additional Sessions Judge had misgivings about the evidence of Rehmat Ali too. I say this because after relying on Rehmat Ali's evidence, the learned Additional Sessions Judge has referred to the corroboratory evidence.
18. And according to the learned Additional Sessions Judge, the ocular evidence or at least Rehmat Ali's evidence was corroborated by evidence of motive and by the fact that the occurrence had taken place in the fields which were in the possession of Rehmat Ali. Further, according to the learned Additional Sessions Judge, the case against Mahanda was corroborated by the recovery of the blood-stained spear at his instance, whilst the case against Ahmad Ali was corroborated by his prolonged abscondenee. But, as them was obvious infirmities in this corroboratory evidence to which I will presently refer, it is not surprising that the appellants challenged their conviction in an appeal in the Lahore High Court.
19. The learned Judges of the High Court were impressed by the ocular evidence, even though the trial Court had entertained some misgivings about it, and is this connection, the learned Judges observed that "the defence has not been able to bring out any serious discrepancy" in the ocular evidence. The learned Judges, then observed that the ocular evidence was supported by the injuries to Abdul Rehman and Mahanda, because, according to the learned Judges, these injuries "stand fully explained as having been caused by the deceased or the P. Ws. In his defence". Finally, the learned Judges appear to have agreed with the view of the trial Court that the ocular evidence was corroborated by evidence of motive and by the fact that the occurrence had taken place in the field of Rehmat Ali.
20. Now, in cases in which the prosecution relies on circumstantial evidence and the prosecution does not, in the instant case, the primary question in every criminal case is of the veracity of the eye- witnesses, therefore, if the ocular evidence is reliable, as held by the learned Judges of the High Court, then this was clearly not a fit case for the grant of special leave. But, with all due respect to the learned Judges of the High Court, I am not able to, understand how they reached the conclusion that "the defence has not been able to bring out any serious discrepancy" in the ocular evidence. Thus, for example, as I indicated earlier, Yahya had said in his evidence that all the eight accused had participated in the attack on his brothers and on his father Rehmat Ali, but according to his brother Rafiq, six out of the eight accused had participated in the attack, whilst, according to his mother, seven of the eight accused had participated in the attack, Rehmat Ali however only implicated the appellants. Additionally, all the eye-witnesses had attributed the specific overt acts to the accused implicated by them, therefore, if Rehmat Ali was speaking the truth, then it is obvious that his wife and sons had committed wholesale perjury. Again, as I pointed out earlier, the claim of all the four eye-witnesses that Abdul Rehman had fired at Murtaza with a pistol was a case of pre-concerted perjury. Another glaring discrepancy, which stared the Courts in the face, was the inconsistency between the medical evidence and the ocular evidence, and even a casual perusal of the medical evidence was sufficient to prove that all the eye-witnesses had grossly exaggerated the number of injuries inflicted by the accused, and this exaggeration by Yahya and his mother bordered on the absurd. Secondly, the witnesses had resorted to these exaggerations in order to implicate all the male relations of Abdul Rehman. Therefore, the Sessions Court rightly acquitted five out of the eight accused, but this manifested the hostility of the eye-witnesses towards Mst. Janat Bibi's branch of the family. Thirdly, despite persistent cross---examination, none of the eye-witnesses were able to give a satisfactory explana--tion of the injuries inflicted on the appellants, and as this aspect of the case has been ignored by both the Courts it becomes our duty to go into it.
21. The number and nature of the injuries to the appellants rule out the possibility that the deceased and his branch of the family were unarmed. But, Mst. Sairan said in her examination-in-chief: "When the fight was going on, Murtaza and Muhammad Ahmad, deceased snatched the hatchet and dang from the accused and gave blows in self-defence to Abdul Rehman and Mahanda accused." The question is whether this story is even remotely probable because, Mst. Sairan had herself stated that Abdul Rehman had opened the attack on her sons by firing at Murtaza and that Mahanda had immediately given a spear blow on the chest to her son. Could any person, who had received such injuries, resist his assailants, snatch their weapons from them and inflict injuries on them? I would recall here what the witness's son, Yahya, was compelled to admit in cross- examination. Yahya said "Abdul Rehman fired a pistol shot at Murtaza. . . After receiving the bullet injury, he fell on the ground. He was lying on the ground when Mahanda inflicted a spear blow on him." This evidence is consistent with the medical evidence, and Mst. Sairan's evidence is false. But, even though Murtaza was not in a position to attack the assailants, could Muhammad Ahmad have inflicted all the injuries on the two appellants, which have been proved by the medical evidence. According to the medical evidence, the two appellants had between them nine incised wounds and except perhaps for two wounds on Abdul Rehman's forearm each one was the result of a separate blow. But, as according to all the eye-witnesses, three of the assailants were armed with spears, whilst three others were armed with pistols, it is absolutely impossible to believe that Muhammad Ahmad alone could have inflicted so many injuries on Abdul Rehman and Mahanda.
22. But, as the position would be different if the deceased brothers were armed, Mst. Sairan's son Yahya, who followed his mother in the witness-box, said "Murtaza was armed with a hatchet." As the witness also said that Murtaza had fallen on the ground after receiving the bullet injury, the fact that Murtaza was armed with hatchet does not improve the prosecution case, the moreso, as Rehmat Ali and his son had both been eliminated from the fight by comparatively minor injuries. In order to over-- come this difficulty, Rehmat Ali, who followed Yahya in the witness-box, said that both Murtaza and Muhammad Ahmad were armed with hatchets, but Rafiq, who followed his father in the witness-box said that Muhammad Ahmad and Murtaza only had sticks with them. As the sticks could not possibly have explained the injuries to the appellants, the witness later on attempted to bring his evidence into line with his father's and said that both the deceased were armed with hatchets. Now even if we assume that the two deceased were armed with hatchets, as Murta.Za had been eliminated from the fight as soon as it began, it is impossible to believe that Muhammad Ahmad could have inflicted single-handed mine incised wounds on the appellants.
23. However, the injuries to the appellants could perhaps be reconciled with the ocular evidence if the eye-witnesses had come to the rescue of Murtaza and Muhammad Ahmad, and this was the view taken by the High Court. But one of the four eye-witnesses was a lady, Mst. Sairan. She did not claim to have joined in the attack nor is it possible that she could have done so. As to the next witness, Yahya said in his evidence "when my brothers were being be laboured I was standing at a distance of six or seven Karams from them." I did not try to rescue (them) due to fear." This leaves only Rehmat Ali and Rafiq, but Rehmat Ali also said "when I tried to intervene I too was hit by Ahmad Ali with a spear . . . . ' I fell on the ground." This leaves only one witness, who could have come to the rescue of the deceased. That was Rafiq had although his father said that his son was armed with a kassi, and had come to the rescue of his brothers Rafiq said in his evidence: "I was empty-handed."
24. As the witness was empty-handed, whether or not, he came to the rescue of the deceased, he could not have inflicted any incised wounds on the appellants. But the appellants had nine incised wounds, therefore, with all respect to the learned Judges, they erred in holding that the prosecu-- tion witnesses had also inflicted injuries on the two appellants. And, this means that it was only the deceased, who had attacked the appellants. But, they could not possibly have inflicted nine incised wounds on the appellants, unless they had first attacked the appellants, as reluctantly admitted by Yaya. Now, this admission by Yahya is very damaging to the prosecution case and is fatal to the veracity of the eye-witnesses, but was ignored by both the Courts.
25. Additionally, Mr. Saeed referred us to the many discrepancies between the evidence of the eye- witnesses in the Sessions Court and their earlier state--ments which had escaped the attention of both Courts. It is, however, not necessary to dilate on these discrepancies because it is clear that the ocular evidence is not fit to be accepted without strong corroboration by independent evidence of au absolutely reliable nature. And, as both the Courts were of the view that the ocular evidence was so corroborated by evidence of motive, and by circumstantial evidence and against Mahanda by the recoveries of the spear at his instance and against Ahmad Ali by his abscondence, it is necessary to examine this evidence.
26. The prosecution case for motive is based on the evidence of the eye--witnesses and on the documentary evidence about the litigation between the two branches of Khuda Bakhsh's family.
27. As, it is elementary that a witness cannot corroborate himself, I will not examine the evidence of the eye-witnesses about motive and I will turn to the documentary evidence. This documentary evidence proves that Mst. Jannat Bibi was successful in her litigation against Mst. Sairan's branch of the family both in the civil Courts and in the revenue Courts, and all that remained to be done was to effect the partition of the property of which she was a co-owner with her cousins. Could this success in litigation, which had become final give Mst. Jannat Bibi's sons a motive to kill their cousins? According to the prosecution, as Rehmat Ali and his sons were resisting the steps taken by Mst. Jannat Bibi for the partition of the ancestral property, the appellants had a motive for killing them. But, on the position taken by the prosecution, the question which required examination was why Rehmat Ali was obstructing Mst. Jannat Bibi in her attempts to obtain the fruits of the decrees in her favour. The answer is obvious. Rehmat Ali wanted to retain the benefits of land which did not belong to him. Therefore, if Mst. Jannat Bibi's sons had a motive for murdering their cousins, because of the dilatory tactics of those cousins, then it follows that those cousins had a far stronger motive for killing the appellants, because of the decrees obtained by Mst. Jannat Bibi. And, further whilst, the prosecution case of motive against the appellants is based on speculation, the enmity of Mst. Sairan's branch of the family has been proved by the fact that Mst. Sairan, her husband and sons had deliberately and falsely implicated five members of Mst. Jannat Bibi's branch of the family. But, this means that the evidence produced by the prosecution about motive lends greater support to the plea of the appellants than to the prosecution case, and, on the other hand, the ocular evidence requires strong corroboration, because of the enmity of the eye- witnesses against the appellants.
28. I now turn to the circumstantial evidence, and both the Courts were of the view that the occurrence took place in the field of Rehmat Ali and that this furnished very strong corroboration of the ocular evidence. Now, if the occurrence took place in the field of Rehmat Ali as claimed by the eye-- witnesses, it would mean that the appellants had come armed to make a wanton attack on Rehmat Ali and his sons and this would furnish extremely strong corroboration of the ocular evidence. But the prosecution has to prove its claim that the occurrence took place in the fields occupied by Rehmat Ali and according to the Tapedar, Khasra Nos. 615, 627, 638 and 639 were in Rehmat Ali's occupation, whilst Khasra No. 592 belonged to Mahanda. But, blood was found neither in the field of Mahanda nor in the fields occupied by Rehmat Ali, but in Khasra No. 620 which belonged to a stranger. Prima facie, this evidence is inconsistent with the ocular evidence but the Sessions Court ignored this discrepancy. The learned Judges of the High Court however noted the discrepancy and explained it with the observation that it was not the prosecution case "that Murtaza fell in the very field that he was irrigating." With due respect to the learned Judges, their observation is not supported by the evidence, because all the eye--witnesses were emphatic that the deceased were attacked in the field occupied by their branch of the family. But presumably what the learned Judges had in mind was the obvious consideration that the victims of an attack do not always remain stationary when they see assailants coming towards them, therefore, I will examine the matter from this angle.
29. A brief reference to the Tapedar's site plan is, however, necessary in order to appreciate the view taken by the High Court. Khasra No. 620, on which blood was found in large quantities is adjacent to and north of Khasra No. 615 whilst Mahanda's field is adjacent to and to the North-- West of Khasra No. 615. The three other Khasra numbers in Rehmat Ali's occupation are to the East and North-East of Khasra No. 665, but they are more than a quarter of a mile from Khasra No. 615. Now, none of the witnesses have specified whether the occurrence took place in Khasra No. 615 or in the other Khasra Nos. 627, 628 and 629. But, reading the site plan with the evidence and in view of the distance between the other Khasra numbers and Khasra No. 620, it is clear that the eye--witnesses meant to say that they were in Khasra No. 615 when the appellants suddenly appeared. I commented adversely earlier on the descrip--tion of the occurrence by the eye-witnesses and I pointed out that Rehmat Ali's description of the occurrence did not contain as many exaggerations and falsehoods as that of the other eye-witnesses, therefore, I will turn to what he said in his examination-in-chief. Rehmat Ali said: "I was on my land at a distance of about 2 or 3 squares from the village abadi . . ." The witness also stated that the other eye-witnesses and the deceased were near him then he described the weapons with which the appellants and the acquitted accused were armed and said "when (the appellants. And the acquitted accused) reached near us Abdul Rehman made a lalkara that they would get possession of the land and would irrigate the land by themselves. Then, he fired a pistol shot at Murtaza which hit him in the abdomen. Then Mahanda gave a spear blow in the chest of Murtaza. Then Mahanda gave a spear blow to Muhammad Ahmad which hit him in the abdomen. . ." According to this evidence Murtaza and Muhammad Ahmad stood their ground and confronted their assailants, whilst the witness and his son came to their rescue. Thus this evidence is totally inconsistent with the hypothesis that the deceased had run for safety to a stranger's field, and, on this aspect of the case, there is no discrepancy between Rehmat Ali's evidence and that of the other eye-witnesses. No doubt, this evidence does not mean that the deceased could not have moved a few paces in one direction or another.That may happen n a light, 'but it must be remembered that the fight was between two small groups of people, and so even if Murtaza and Muhammad Ahmad were on the northern boundary of Khasra No. 615 at the time of the occurrence, they could have moved a few paces into Khasra No. 620 in the course of the fight. But, a few paces is one thing, and 20 or 25 paces is quite another matter, and, according to the site plan, blood was found about 20 or 25 paces inside Khasra No. 620. But, none of the eye-witnesses have said that they or the deceased had crossed into their neighbour's field, much less that they had moved 20 or 25 paces into it, and on the other band, this could have happened only if the deceased had tried to run away on seeing the appellants. But, as this is contrary to the evidence on the record, in my humble opinion, the evidence on the learned Judges is based on a misreading of the evidence arid far from supporting, the prosecution case, the circum--stantial evidence goes against it.
30. I now turn to the concurrent finding of the two 'Courts that the ocular evidence was corroborated by the recovery of a blood-stained spear at Mahanda's instance. In order to prove the recovery the prosecution examined Muhammad Safdar, S. I., who arrested Mahanda and one of the recovers witnesses Sardar Ali. Muhammad Safddar supported the prosecution case, but Sardar Ali did not, therefore, he was declared hostile, and his lower Court statement which supported the prosecution, was brought on the record, and the Sessions Curt held that thr2 recovery had been proved by the evidence of Muhammad Safdar and the lower Court statement of Sardar Ali and that the examination of the other recovery witness was not necessary. But, although Muhammad Safdar had also supported the prosecution case of the recovery of a blood-stained spear at the instance of Khalid, Abdul Rehman's brother, the Sessions Court had rejected this part of Muhammad Safdar's evidence and acquitted Khalid. As the Sessions Court rejected Muhammad Safdar's evidence against Khalid, I am not able to understand how it accepted his evidence against Mahanda when one of the recovery witnesses was not even examined and the other had turned hostile.
31. Additionally, in reaching the conclusion which it did, the Sessions Court has ignored the serologist's report according to which the blood on the spears recovered from Mahanda and Khalid had disintegrated. But, as according to Muhammad Safdar, Khalid bad produced his spear from a dung-keep, there was an explanation for the disintegration of blood on this spear, and the recovery might therefore have had some corroborative value. But, Muhammad Safdar merely said that Mahanda had produced his spear from his house arid as the spear was sent very promptly to the serologist, it is difficult to believe that the blood would have disintegrated so quickly. Additionally, as the prosecution sought to corroborate the ocular evidence against Mahanda by this recovery, it was unfortunate that the attention of the learned Judges was not drawn to the discrepancies in the ocular evidence about Mahanda's role in the occurrence. Thus, as I pointed out Mst. Sairan had said in her evidence that Abdul Rehman and Mahanda were armed with a hatchet and a sota which her sons had snatched from them. It is true that her son Yahya did say that Mahanda was armed with a spear. But whilst the witness was a natural witness, his conduct is so unnatural that it casts doubt on his presence at the occurrence. HT saw his brothers being killed and leis fatter attacked, yet he did not come to their rescue, Even, his mother's presence did not shame him into going to his father's rescue. Therefore, in view of the discrepancies in his evidence, which were completely ignored by both the Courts, I am not able believe the witness's claim that he was present at the occurrence. But, even if he was, it would not be safe to prefer his evidence to his mother's, because his mother's evidence received support from that of her husband Rehmat Ali and her other son Rafiq. And, taking first Rehmat Ali's evidence, although he had said in the Sessions Court that Mahanda was armed with a spear with which he had hit him, and his sons, Muhammad Ahmad and Rafiq, the witness's statement had been recorded twice in the committal Court because of a remand of the case but on no occasion had he said in his earlier statements that Mahanda was armed with a spear. On the contrary the position taken by him consistently in all his earlier statements was that Mahanda was armed with a dang. Similarly, as to his other son Rafiq, he had also nowhere stated in his earlier statements that Mahanda had given any blows with a spear and on the contrary he had attributed the spear blows to Khalid, the brother of Abdul Rehman, who was acquitted by the trial Court. But, unfortunately, for the appellants, these discrepancies in the evidence of the eye-witnesses escaped the attention of both the Courts, and in the circumstances discussed, I am satisfied that the prosecution has failed to prove that Mahanda was armed with a spear and, therefore, no reliance can be placed on the evidence of the alleged recovery. But, there is no other corroboration of the ocular evidence against the appellant, and the ocular evidence is not fit to be accepted without strong corroboration.
32. Next, as to Ahmad Ali, both the Courts have held that the ocular evidence against this appellant was corroborated by his abscondence. The abscondence was for an extremely long period, and further it is difficult to believe that only two persons would have been able to kill the two deceased and inflict injuries on their father and brother, therefore, the prosecution has proved this appellant's participation in the occurrence, but as the ocular evidence is unreliable and because of the many discrepancies in the evidence of the eye-witnesses about the role of this appellant in the occurrence, the prosecution has failed to prove that this appellant was armed with a spear and this is very damaging to its case, because of the plea of self-defence raised by the other appellants.
33. Finally, as to Abdul Rehman both the Courts were of the view that the ocular evidence against him was corroborated by evidence of motive and by the circumstantial evidence. But for the reasons which I have given this view is contrary to the evidence and this means that there is no corroboration of the ocular evidence against Abdul Rehman.
34. It is true that Abdul Rehman and Mahanda admitted their participation in the occurrence, but this does not help the prosecution case because the plea of self-defence raised by them received support from the medical evidence. And. Further in view of this evidence and because the ocular evidence is unreliable and is not corroborated by independent evidence, the prosecution has failed to prove the guilt of the appellants for murder. But, as we are setting aside the concurrent findings of the Courts below, it falls on us to examine the further question whether the appellants are guilty of any other offence or whether plea of self-defence is fit to be accepted.
35. The proved facts are firstly that there was a land dispute between the parties, secondly that the injuries on both parties had been caused by a sharp---edged weapon, thirdly, that the injuries inflicted by the appellants proved fatal, and fourthly that the fight took place in Khasra No. 620 which did not belong to either party, but was adjacent to the fields occupied by the rival parties.
36. Now, although there was a land dispute between the two parties, Rehmat Ali and his sons had a far stronger motive for taking the law into their hands than the appellants because the appellants had been successful both in civil and in the revenue Courts. Next, as to the weapons used, it is clear from the medical evidence, that both parties had used sharp-edged weapons which means that they were armed: with spears or hatchets. And, as a spear is a weapon of offence, the prosecution had alleged that three of the appellants were armed with spears, but it failed to prove its case, because the eye--witnesses had no regard for truth. And, as the benefit of doubt must go to the accused, we can only hold 1 that no appellant had come to the place of occurrence armed with a spear. " Whether any of the appellants snatched the spear from Rehmat Ali as claimed by them is another matter which is not free from doubt. However, there is no doubt that Rehmat Ali or his sons were armed with sharp-edged weapons which must have been blood-stained because of the many incised wounds on Abdul Rehman and Mahanda. But, as the police did not attempt to secure the weapons used in the occurrence by the party of the complainant, this lends support to the claim of the appellants that they had snatched Rehmat Ali's spear and used it in self-defence.
37. It is true that unlike the injuries inflicted on the appellants, the injuries inflicted by them proved to be fatal, but it must be borne in mind that Abdul Rehman was lucky to have survived and he had two incised wounds on his head. In these circumstances, the case falls under the dictum laid down by Hamoodur Rehman, C. J., in Hakim Ali v. The State (1971 SCMR 432), that merely because the complainant side "got the worst of the fight, it could not be inferred that the accused were the aggressors." Finally, as to the circumstantial evidence it is clear that the occurrence took place in what might be described as no man's land, and the claim of both the parties that the occurrence had taken place in the fields in their own occupation was false. But, as Khasra No. 620 is adjacent both the field as cultivated by Mahanda anti by Rehmat Ali, no adverse inference can be drawn against either party for having been present in Khasra No. 620 on the fateful morning, therefore, the only possible inference from these facts a is that the parties met by chance.
38. However, a chance encounter does not become a murderous encounter, unless someone resorts to violence, and so the real question before us is whether the plea of self-defence raised by the appellants, Mahanda and Abdul Rehman, is true or whether the occurrence was the result of a sudden and unpremeditated fight.
39. The hypothesis that there was a sudden fight between the two branches of Khuda Bakhsh's family is supported by the fact that the occurrence took place in Khasra No. 620. Secondly, whilst it is not unusual for a cultivator to have a hatchet with him, on the footing that Rehmat Ali or his sons had hatchets with them at the time of f the occurrence, it would mean that members of both parties were armed with hatchets at this chance encounter, and as this seems too strange a coincidence to be true, it is perhaps a circumstance in support of the hypothesis that the ere was a sudden and unpremeditated fight between the parties when they happened to meet by chance.
40. I now return to the circumstances which lend support to the plea of self-defence raised by the appellants. In the first place, at the risk of being tedious, I would repeat that Rehmat Ali and his sons had a stronger motive for taking the law into their own hands than the appellants. Secondly, it is very difficult to ascertain how the clash between the rival branches of Khuda Bakhsh's descendants began, because the eye-witnesses were not witnesses of truth. And, they resorted to falsehood, because they were hostile witnesses. But, even according to them, one Yaqub, who was a disinterested witness, had seen the occurrence, therefore, the failure of the prosecution to examine this witness militates against the hypothesis of a sudden and unpremeditated fight. Similarly, the investigation of the case does not inspire confidence, because no attempt was made to recover the blood-stained weapons used by Rehmat Ali's and as the prosecution has suppressed the evidence about these weapons, the possibility that one of Rehmat Ali's sons was armed with a spear, which had been snatched from him by the appellants, cannot be ruled out. Finally, the medical evidence cannot be reconciled with the claim of the eye-witnesses that it was the appellants, who had first attacked Murtaza and Muhammad Ahmad, and when the learned Additional Sessions Judge was recording evidence, he was conscious of the difficulty of reconciling the medical evidence with the description of the occurrence by the eye-Witnesses, and so he put specific questions to them, to explain how "Murtaza and Muhammad Ahmad were in a position to give hatchet blows to (Abdul Rehman and Mahanda), whilst they were lying on the ground? And, although he bad throughout in his examination-in-chief and cross-examination tried to support the prosecu--tion version of the occurrence, Yahya was compelled to say in answer to this question by the Court :- "When Murtaza and Muhammad Ahmad saw the accused coming towards them to make an attack on them, they first inflicted hatchet blows on Abdul Rehman and Mahanda and it was thereafter that Abdul Rehman accused fired a pistol shot at Murtaza and Mahanda inflicted a spear blow on the person of Muhammad Ahmad."
41. By this admission that it was his brothers, who had inflicted the first hatchet blow, the witness not only repudiated the prosecution case but also his own evidence about how his brothers had been killed. It is true that he qualified this admission by the plea that his brothers had attacked the appellants because they "were coming towards them to make an attack on them". But, as this part of the witnesse's answer to the Court is uncorroborated, it is not fit to be accepted. On the other hand, as I explained earlier, the injuries to the appellants are consistent only with the hypothesis that the appellants had been attacked first by their cousins and that they had thereafter attacked their cousins, therefore, this witnesse's admission to the Court also lends some support to the plea of appellants, and on the whole this plea is more consistent with the proved facts than the hypothesis of a sudden fight.
42. In any event, as the appellants were the accused, unlike the prosecution, they do not have. To prove their plea of self-defence. As observed by Abdul Rashid, C. J., in Safdar Ali v. The Crown (PLD 1935FC93) :- "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence. The Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case."
43. This view was reaffirmed try this Court in Syed Ali Bepari v. Nibaran Mollah and others (PLD1962SC502), and in the wards of Abdul Rashid, C. J., "after an examination of the whole evidence," I am "of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true."
44. Therefore, the only question which remains for examination is whether the appellants have brought their case within the ambit of section 100 of the Penal Code, and in view of the injuries to the appellant, Abdul Rehman, it is clear that they have.
45. In the result, the prosecution has failed to prove its case and as the benefit of doubt must go to the accused, we have allowed this appeal and set aside the convictions of the appellants.