1. MUHAMMAD HALEEM, J.---'This appeal by Special Leave arises from the judgment of the Lahore High Court, Lahore, dated 9th of December, 1975, by which the convictions of the appellants and the capital punishment awarded therefore were confirmed.
2. According to the prosecution, the complainant party resided in Daur Khelanwala whereas the appellants lived in Kacha Mastiwala which is about 200/250 karams away. On 3rd of September, 1971 the appellants, Mustafa Khan, Ali Mad and Muhammad Nawaz caused injuries to Shahbaz Khan in the morning who was taken to Police Station, Mochh for lodging the report. However, the appellants did not like the idea of a case being registered against them. Therefore, Sultan Khan along with Jahangir Khan, Badi-uz-Zaman, Izzat Khan and Pehlwan Khan went to inform Habibullah Khan in his Dera but as he was not available, they returned for going towards the Police Station and on their way at 11 a.m. Near Dera Said Khelanwala, they saw the appellants sitting armed with guns.
3. Ali Mad, from amongst them, fired at Jahangir Khan who was hit on the chest and he fell down followed by Muhammad Nawaz and Mustafa Khan who fired at Badi-uz-Zaman; and in the course of this firing, not only Badi-uz-Zaman was injured but also one Khan Zaman who was ploughing his land. Both Jahangir Khan and Badi-uz-Zaman were armed with guns and it appears that before Badi-uz-Zaman was hit, be had also fired his gun injuring the appellant, Mustafa. Those accompanying the deceased fled from there out of fear. Later, they returned and found both of them dead.
4. The motive pre-empting the present earlier incident having happened about 12 months before in which one Budba Khan, the paternal cousin of Sultan Khan, was murdered. Sultan Khan along with Cbuhra Khan lodged the report in which they gave out the names of Ali Mad, Mustafa Khan, Abdul Aziz, Mehr Khan and Atai Khan as his assailants. In the investigation that followed only Atai Khan was challaned while the others were exonerated. Thereupon, Chubra Khan, the brother of Budha Khan filed a complaint in a criminal Court against Abdul Aziz, Mehr Khan, Ali Mad and Mustafa Khan and Sultan Khan, the two deceased, Shabbaz Khan and Noor Muhammad were cited as eye- witnesses. However, Ali Mad and Mustafa Khan were enlarged on bail while the others were in the judicial lock-up. It was because of this case that the appellants nursed a grudge which led to the killing of the two deceased who was closely related to Sultan Khan. It further transpires from the record that Shahbaz lodged the report at Police Station, Mochh at 11 a.m. In which Ali Mad, Mustafa and Muhammad Nawaz were shown as his assailants.
5. The spot where Shahbaz Khan was injured was about a mile away from the Dera of Habibullah; and the second incident in which the two deceased lost their lives occurred at a distance of three miles from the village of the complainant party. It is on the record that a regular pathway connects the Dera of the complainant party with Mochh and is at the south of Dera Said Khelanwala at a distance of about 200/250 karams.
6. Mustafa Khan was arrested on 2nd of October, 1971; Muhammad Nawaz on 22nd of April, 1972; and lastly, Ali Mad on 4th of February, 1973. Ali Mad and Muhammad Nawaz were declared as proclaimed offenders on 9th of December, 1971. Mustafa Khan and Ali Mad are brothers inter se while Muhammad Nawaz is their sister's husband.
7. Both the deceased died of fire-arm injuries. Khan 7aman also suffered fire-arm injuries. Appellant Mustafa Khan bad also gunshot injuries, five in number.
8. The prosecution case rested on the ocular testimony of Sultan, P. W. 7, Izzat Khan, his cousin, P. W. 8, Pehlwan Khan, P. W. 19 an independent witness, and Khan Zaman, C. W. 1, who was examined as Court witness at the request of the appellants. Ali Mad and Muhammad Nawaz denied their involvement in the crime while Mustafa Khan pleaded self-defence in the following words :- "The fact of the matter is that Shahbaz aforesaid fired at me while I was outside in my land and I fired in self-defence, and Shahbaz was injured. I was going to Wandba Sultan Wala Gharbi to inform the Lambardar of the attack on me by Shahbaz and also to go with me to the Police Station for the registration of a case. When I reached near Dera Sadda Khelanwala the two deceased, Jahangir and Badi-uz-Zaman came in my pursuit armed with guns. They started firing at me and I also in order to save my life, started firing at them. Khan Zaman C. W. Was then ploughing his land near the said Dera at a distance of about 30/40 karams. He was injured at the hands of one of the two deceased and he loudly called for help upon which the father and other relatives of Khan Zairian came out of their houses armed with guns and started firing at the two deceased who were injured and killed by their firing. I was of course, injured with a shot fired by one of the two deceased. The relatives of Khan Zaman removed the fire-arms of the two deceased as also my gun. I and Khan Zaman were present and injured at the place of occurrence. The police came at about digerwela. Despite my efforts the police did not record my statement nor was any case registered for the injury caused to me in the attack. I and Khan Zaman were sent from the local hospital to the District Headquarter Hospital, Mianwali for medical examination where we reached sometime in the evening."
9. Mustafa Khan further stated that Khan Zamin, C. W. 1, bad refused to subscribe to the false version and, therefore, he was not examined in the committal Court on the pretext that he had been won over but at the trial he was paid Rs. 10,000 and the complainant party also promised to give the hands of two girls for marriage to his family members. As to the happening of the incident at the stated place, the trial Court held that the evidence of Sultan Khan, Izzat Khan and Pehlwan Khan received enough support from Khan Zaman who himself was injured and resided in the Dera near the place of occurrence. In regard to the objection that the witnesses were interested because of their relationship with the two deceased and the admitted enmity and, therefore, their evidence should not be relied upon, the trial Court held that as for Sultan Khan and Izzat Khan, their relationship with the deceased was admitted and so was their enmity towards the appellants but as Sultan Khan had admitted that one of his cousins namely, Mst. Sardaran, was married to Saifullah, a nephew of the wife of Pehlwan Khan, the trial Court held his relationship to be remote to be taken into consideration and apart from this there was nothing to attribute to this witness any independent motive to brand him as an inimical witness. Accordingly, he was held to be an independent and a disinterested witness. The trial Court also repelled the defence objection that these witnesses were chance witnesses as they were held to be accompanying the two-deceased .On a joint mission. Further, they were named in the F. I R. Which was recorded promptly at the Police Station which was 3 -- miles away; and if, for argument sake, they had not been there, then it would not have been possible to lodge the F. I. R. Without any loss of time. The reason being that time would have been spent in contacting the witnesses who lived in different localities to persuade them to figure as witnesses which feature is obviated in the instant case.
10. In accepting the ocular testimony, the trial Court concluded thus :- "As a result of my aforesaid discussion, I come to the conclusion that all these witnesses were not chance witnesses and further although Sultan Khan and Izzat Khan P. Ws. Are interested witnesses yet Pehlwan Khan is not. Thus, the evidence of Pehlwan Khan, P. W. 19, can safely be taken into consideration as a sufficient corroboration of the testimony of Sultan Khan and Izzat Khan."
11. In regard to Khan Zaman, C. W. 1, the trial Court held that his presence was established from the injuries sustained by him while ploughing the land. He was, therefore, a natural witness not only for this reason but because he also resided in the Dera close to the spot. He was described by the trial Court "as the most independent and disinterested witness inas--much as he is neither related to the deceased nor has any enmity what--soever with the accused." His credibility received further support from the fact that he was examined at the behest of the appellants and yet he supported the prosecution case. Lastly, the trial Court held that the testimony of Pehlwan Khan, Sultan Khan and Izzat Khan got support from the evidence of this witness.
12. As to the motive, the trial Court held that as the earlier F. I, R. Of Shahbaz Khan was recorded at 9 a.m. About two hours before the present incident implicating all the three appellants, the subsequent F. I. R. In this case not only fortified the motive but also established the complicity of all the three appellants who bad acted in furtherance of the common cause. The trial Court, after rejecting the explanations of Ali Mad and Muhammad Nawaz accepted their abscondence as corroborating their participation. Lastly, while dealing with the defence plea of Mustafa, the trial Court held that he did not lead any evidence to support his right of self-defence and the moreso it found no support from the evidence of Khan Zaman. In holding that his version was improbable, the trial Court was of the opinion that if the two deceased had come armed with guns to take revenge then Mustafa Khan could not have escaped death. In this context the five fire-arm injuries on the non-vital parts of the body of the accused by a single shot do not speak about the two deceased as being the aggressors. Accordingly, this plea was also, rejected on the premise of being sighly improbable. The trial Court, therefore, convicted the appellants under section 302 read with section 34, P. P. C. On two counts for the murders of Jahangir and Badi-uz-Zaman and sentenced the appellants to death on these counts. They were also ordered to pay a fine of Rs.
13. 1,000 each on the above counts. Further, the trial Court convicted them under section 307 read with section 34, P. P. C. For the attempted murder of Khan Zaman and sentenced them to suffer 7 years'
14. R. I. And to pay a fine of Rs. 5,000 each or in default to undergo R. I. For six months.
15. On appeal and reference the High Court re-evaluated the evidence and accepted the conclusion of the trial Court in regard to the motiveabscondence of the appellants, Ali Mad and Muhammad Nawaz; Pehlwan Khan and Khan Zaman being independent and disinterested witnessesand the presence of all the eye-witnesses at the spot at that crucial moment. In rejecting the plea of self- defence, the High Court held :- We do not agree with the argument of the learned counsel for the appellants that the motive was for the complainant party to attack Mustafa Khan appellant and the complainant party falsely implicated Ali Mad and Muhammad Nawaz in order to take revenge of Shahbaz Khan. The defence plea of Mustafa Khan was rightly rejected by the learned trial Judge. The absconsion of Ali Mad and Muhammad Nawaz appellants was established by the prosecution and corroborated the ocular evidence. We are satisfied from the evidence on record that both the deceased having been cited as prosecution witnesses in the murder case of Budha Khan were made target by the appellants and it was the appellants who had the motive to cause their murder while Khan Zaman C. W.
16. Suffered fire-arm injuries at their hands."
17. Accordingly, the High Court maintained their convictions and sentences.
18. Leave to appeal was granted to re-appraise the evidence in the context of the defence plea of the appellant, the material discrepancies in the prosecution evidence, the injuries sustained by Mustafa and the deceased having gone to a place where they bad no business to go after arming themselves with unlicensed fire-arms. The further question posed for consideration was also the quantum of punishment.
19. On behalf of the appellants, Mr. M. Sadiq Abbasi, vehemently urged that it were the two deceased who had fired at Mustafa Khan and in order to save himself, he also fired and killed them. The Courts below have rejected this plea. In assessing its worth it has to be considered in the entire background of the facts and circumstances of the case. The case of the prosecution as set out at the trial is that the earlier incident in which Shahbaz Khan, their partyman, was injured, occurred at about 7 a.m. And it were the appellants who had accosted him and from amongst them, Ali Mad, after giving a lalkara had fired at. Him causing fire-arm injuries on his left elbow to avenge their grievance as Shahbaz Khan was cited as an eye-witness in the complaint filed by Chhuray Khan against Aziz Khan, Mehar Khan and the two appellants, Mustafa Khan and Ali Mad. Further, this Shahbaz Khan is the paternal cousin of deceased Badi-uz-Zaman as their fathers were real brothers. The place where he was shot at was about a mile from the Dera of Habibullah Khan and it is natural to expect that the emotions of the complainant party would be roused to take revenge from the appellants. But the prosecution case appears to be that Sultan went to inform Habibullah Khan at his Dera and not finding him there they went in a body towards Police Station, Mochh to join Shahbaz Khan but at what point they had to meet is not apparent from the record. It is further in the evidence of Sultan Khan that they did not go along the pathway but "adopted irregular course sometimes treading the pathways and sometimes passing through the fields in order to join Shahbaz Khan and his party". It is also relevant to state here that the two deceased had also armed themselves with unlicensed fire-arms and the present incident occurred at 11 a.m., two hours after the report of Shahbaz Khan was lodged. Further, in this background, the intervening time is out four hours and the distance traversed is not more than three miles. A question then arises as to whether the complainant party proceeded to Shahbaz Khan or had gone in pursuit of the appellants after arming themselves with guns to retaliate for the fire-arm injuries caused to Shahbaz Khan. The four hour time consumed in-between the two incidents cannot be reconciled if the complainant party was so earnest to join Shahbaz Khan and others in the wake of their, belief that the appealers would obstruct them from going to the Police Station. Equally there is no satisfactory explanation as to how it took four hours for them to traverse only a distance of three miles; and if they had no pre-arranged meeting point, then there is no further explanation, in case their object was to assist Shahbaz Khan in getting the report lodged as to where they would meet him for it is difficult to comprehend the route which Shahbaz Khan would have adopted in proceedings towards the Police Station. The prosecution case, as set out at the trial, is that Sultan Khan came to the Dera of Habibullah Khan to inform the two deceased and Izzat Khan to join Shahbaz Khan on his way to the Police Station but when he reached there, he also found Pehlwan Khan who had come to enquire about the health of Habibullah from his brother Muhammad Khan.
20. Then all of them went to join Shahbaz Khan and his party. Sultan Khan further gives out that he was told by Shah Wali Khan to convey the message to the others but Shah Wali Khan has not been produced at the trial to confirm what he stated to Sultan Khan nor is this version disclosed in the F.
21. I. R. If at all the prosecution was earnest to support it then it should have at least examined Shahbaz Khan but not having done so, all this cumulatively leads me to infer that this version is false. Additionally, if the appellants were so keen as all that then being armed they could have in fact obstructed Shahbaz Khan and the others from proceeding towards the Police Station but I find that Shahbaz Khan was able to lodge the report promptly at 9 a.m. Which again militates against the truthfulness of this version. In the circumstances it is reasonable to infer that after Shahbaz Khan was injured, the information travelled to the complainant party who, after arming themselves, went in pursuit of the appellants and it was at about 11 a.m. That there was a contact between them.
22. It transpires from the evidence of Etbar Khan, P. W. 8, that the places from where the blood-stained earth was secured is in the bed of the river Indus about a 100 yards away from the Dera of Said Khelanwala which is at lower level than the cultivable land and is surrounded by a "host of trees and Sarkanda bushes". According to the site plan, there was a field of Gowara crop from where the appellants a legedly emerged and fired at the two deceased. A bare consideration of the relative positions of the two parties would show that the appellants were in advantageous position. The field of Khan Zaman is situate in-between these points. Now as to the actual incident the prosecution case is that Ali Mad gave a lalkara and then fired a shot which struck Jahangir Khan on his chest and he fell down followed by simultaneous firing of guns by Badi-uz-Zaman and the two other appellants at each other as a result of which Badi-uz-Zaman was hit and so was appellant Mustafa Khan. Badi-uz-Zaman died at the spot. Khan Zaman, who happened to be in the line of fine, as he was ploughing the field, was also hit. As the complainant party was taken by surprise, it was therefore that they suffered more harm than the appellants as two of their members suffered death. The injuries sustained by Khan Zaman also shows that the firing was sudden and he had no time to run away. In the aforementioned background there is no escape from the conclusion that having regard to the number of the shots fired, the advantageous position e in which they were and the harm done to the complainant party, it were the appellants who were the aggressors. However, the fact also remains that both the sides wanted to have a free fight which could not materialise for the reason above-stated. Having held so I find no substance in the plea of Mustafa Khan for there is no justifiable reason of his presence at the spot four hours after the incident if he intended to go to Wandha Sultan Wala Gharbi to inform the Lambardar of the attack made on him by Shahbaz Khan and to take him for the purpose of lodging the report.
23. Further, if the two deceased were first to detect and fire at him then it is not possible to believe that he would have escaped death. What is more probable is that the appellants after injuring Shahbaz Khan had apprehended reprisal, therefore, they went and hid themselves in the Gowara field, three miles away; and as they saw the complainant party duly armed, they themselves initiated the attack. On this premise, there is no scope for pleading the right of self-defence.
24. It was next urged that the two appellants, Ali Mad and Muhammad Nawaz were not there as none of them had sustained any injury but c this contention also appears to be without any substance having regard to the number of the shots fired and also for the reason that they would make themselves scarce for the fear of reprisal as both of them were mentioned as the assailants of Shahbaz Khan along with Mustafa Khan in the F. I. R. Earlier lodged. Moreover, Ali Mad and Mehar Khan, the brother of Muhammad Nawaz, were mentioned as the assailants of Budha Khan in the complaint filed by Chuhra Khan; and this also provided the motive to them to join Mustafa Khan.
25. There is also the evidence of abscondence against them for which there is no satisfactory explanation and this incriminating circumstance corroborates their presence.
26. It will not be necessary for me to examine the contentions of the learned counsel for the appellants in regard to the inconsistency in the prosecution version or the individual infirmities in the evidence of the prosecution witnesses for the conclusion that I have drawn flows out from the over all consideration of the entire evidence after taking those into consideration; and this rests on the strong probabilities of the case.
27. Lastly, as to the nature of the offence committed I hold that it was murder simpliciter for the combat was premeditated In this connection would refer to the classical dictum of Ainslie, J., in The Empress Rahimuddin (1), in regard to the applicability of Exception IV to section 300 of the Pakistan Penal Code in a similar situation: ---- "I cannot concur in the view taken by the Judge that when persons of full age voluntarily engage in a fight with deadly weapons they take the risk of death with their own consent, and that, as a consequence culpable homicide occurring in such a fight is not murder. If `this view is correct, the 4th exception would be superfluous. If culpable homicide in a premeditated fight with deadly weapons were not murder, a fortiori unpremeditated culpable homicide in a sudden fight in the heat of passion upon a sudden quarrel would not be murder. I seems to me that the 4th Exception clearly indicates that culpable indicates that culpable homicide in a fight is murder unless they fight is unpremeditated, and is such as is therein described, sudden in the heat of passion and on a sudden quarrel; a fight is not per se a palliating circumstance, only an unpremeditated fight can be such. Where persons engage in a fight under circumstances which warrant the inference that culpable homicide is premeditated, they are responsible for the consequences to their full extent."
28. Accordingly, the prosecution has proved its case against the appellants; and as it is a case of bloodfeud, the appellants do not deserve any leniency in the matter of sentence.
29. The appeal fails and is hereby dismissed.
30. ANWARUL HAQ, C. J.-I agree.
31. MUHAMMAD AFZAL ZULLAH, J. -I am in respectful agreement that the explanation from the complainant party regarding their presence at the spot is false. I also agree that "it is reasonable to infer that after Shahbaz Khan was injured, information travelled to the complainant party, who after arming themselves, went in pursuit of the appellants and it was at about I1-00 a.m. That there was a contract with them and further that at the relevant moment the appellants were in a position of advantage in so far as the locale of the fight is concerned. And as there was some element of surprise for the complainant party, "they suffered more harm than the appellants". With this background if the further finding is that "both sides wanted to have a free fight", (ILR5Ca1.31) with profound respect, am unable to agree that the offence committed in this case would be section 302, P. P. C. It is true that in such a case as held by this Court in Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962SC502), no question of exercise of right of private defence would arise for either party. But on account of the intentions and acts of both the parties, each party knowingly and deliberately took upon itself the risk o the encounter. It was held in the case of Syed Ali Bepari that the offence committed in circumstances like these would be culpable homicide not amounting to murder as the death occurred "in the course of a fight between two bodies of men who were deliberately fighting together, both sides being armed and no unfair advantage" having beets taken by appellants in the course of the fight in which both parties were not only armed G with fire-arms but also used them effectively. I would, therefore, following the law and principle laid down in the said case while finding the appellants guilty convert the offences from under sections 302 to 304, Part I, P. P. C. And reduce the sentence to transportation for life and a fine of Rs.25,000 each, in default whereof 4 years' R. I. For each count. Out of the fine Rs. 40,000 (Forty thousand) would be paid as compensation to the heirs of the two deceased in 50 % shares. Likewise Rs. 10,000 would be paid as compensation to Khan Zaman, C. W. 1 and if he has in the meanwhile died to his heirs, as compensation for injuries suffered by him. The conviction and sentence under section 307, P. P. C. Is maintained with direction that the sentence of R. I. Under this charge would run concurrently with the sentence of transportation for life.