1. ANWARUL HAQ, C. J.-This appeal, by the leave of the Court, is directed against the judgment dated the 19th of February; 1976, of the Lahore High Court, by which the convictions and sentences recorded against the four appellants under sections 302 and 307 read with section 34 of the Pakistan Penal Code by the learned Sessions Judge, Jhelum, were maintained with the modification that imprisonment for life awarded to them under section 307/34, P. P. C. Was reduced to three years rigorous imprisonment in each case.
2. The occurrence took place at 6 or 7 a. m. On the 10th of August, 1972, in the area of village Khai, in Tehsil Chakwal of the Jhelum District. The F. I. R. Was made at 1-30 p.m. The same day by Muhammad Zaman (P. W. 10) at Police Station Kallar Kahar at a distance of 11 miles. The allegations against the appellants were that they, along with the absconder Nazeer Husain Shah and the acquitted accused Muhammad Zubair, launched a premeditated attack on Muhammad Azeem and his nephew and son-in-law Ahmad Khan, as well as the injured witnesses, namely, Muhammad Zaman (P. W. 10), Muhammad Naseeb (P. W. 11). Muhammad Haleem (P. W. 12). Sher Khan (P. W. 13). Mazhar Hussain (P. W. 14) and one Fazal Hussain, when these persons were sitting at the Dhoke of witness Muhammad Haleem, situate in Khasra No. 328. Nazeer Hussain Shah and Muhammad Zubair were armed with .12 bore guns, whereas the remaining assailants were carry-- ing sotas. It was alleged in the F. I. R. That Nazeer Husain Shah fired the first shot. Which hit deceased Ahmad Khan on his chest ; then Muhammad Zubair fired a shot, which hit Ahmad Khan on his mouth. Nazeer Hussain Shah fired a second shot, which hit Muhammad Azeem on his abdomen ; followed by a shot by Muhammad Zubair, which also hit Muhammad Azeem in the abdominal region. Thereafter the other accused persons gave sota blows to the witnesses, and Nazeer Hussain Shah and Muhammad Zubair fired further shots, from which pellets hit witnesses Muhammad Naseeb and Mazhar Hussain. Both Ahmad Khan and Muhammad Azeem expired at the spot.
3. The motive for the assault was stated to be the grudge nursed by appellant Qasim Shah for the reason that the deceased and some of the witnesses had given a beating to Qasim Shah, in connection with which a case had been registered against them at the instance of appellant Amir Hussain under section 324/34, P. P. C. On the 17th of June, 1972. It may be stated that the absconder Nazeer Hussain Shah and appellants Amir Husain Shah and Qasim Shah are brothers, whereas Muhammad Zubair and Fazal Din are in some digree related to these three, and Ghulam Abbas simply belongs to their Bradari. The witnesses and the deceased are also closely related inter se.
4. Blood-stained earth was recovered by the Investigating Officer from Khasra No. 329, which adjoins the field on which the Dhoke of witness Muhammad Haleem is situated. No crime empties were recovered from the spot, although the appellants produced their sotas after they were arrested on the 15th of August, 1972.
5. Eye-witness account of the incident was given at the trial by the injured witnesses already mentioned. The accused persons except Qasim Husain Shah denied their participation in the incident. However, Qasim Husain Shah admitted that he and his absconder brother Nazeer Hussain Shah were involved in the affair, but he asserted that they had acted in self-defence, when he and his brother Nazeer Husain Shah were attacked by the com--plainant-party, when they were on their way to village Bhaon, and were proceeding on the path. Which runs along the boundary of Khasra No. 329, as Nazeer Hussain Shah had to take a Bus from the aforesaid village for the purpose of proceeding to resume duty in his army Unit ; from where he was on leave in the village.
6. He asserted that the complainant-party including the two deceased had attacked them with sofas and it was only then that Nazeer Hussain Shah fired with a gun hitting both the deceased persons.
7. The trial Court rejected the defence version, holding it to be improbable, and accepted the prosecution case in regard to the four appellants, while giving benefit of doubt to Muhammad Zubair. These findings of the trial Court have been upheld by the learned Judge in the High Court.
8. Leave to appeal was granted to examine mainly the contentions that the Witnesses being interested and inimical, their evidence could not be accepted without satisfactory corroboration, which was not forthcoming on the record; and that the Courts below had seriously erred in not properly appreciating the defence plea that the appellant Qasim Shah and his absconding brother Nazeer Hussain Shah had acted to save themselves from an attack launched on them by the complainant-party.
9. With the help of the learned counsel for the appellants, we have examined the entire evidence brought on the record in this case in the light of the submissions made by him, and we are satisfied that the appellants were rightly convicted and sentenced.
10. The fact that there had been an incident between the parties in which Appellant Qasim Shah was beaten anal injured, stands fully proved on the record by the F. I. R. Dated the 17th of June, 1972, made at the Police Station by appellant Amir Husain Shah. Both the Courts below were, therefore, right in thinking that Qasim Shah and his brothers and party-men had a grievance against the complainant-part; and the presence of Nazeer Hussain Shah, an army soldier, may have given the necessary initiative to launch attack. As all the eye-witnesses produced by the prosecution had sustained injuries during the course of the incident, their presence at the spot could not be denied.
11. The only question is whether the complainant-party were, indeed the aggressors, as asserted by Qasim Shah.
12. It is significant that in the commitment proceedings, Qasim Shah did not put forward any plea of self-defence, and simply asserted that he had been falsely implicated due to enmity. It was only at the trial that he came out with the alternative version that he and his brother Nazeer Hussain Shah were attacked when they were peacefully proceeding on the path leading to village Bhaon The Courts below have rightly rejected this plea for the reason that, according, to the evidence of Patwari Ahmad Nur (P. W.
13. 5), the thoroughfare leading to village Bhaon from the Abadi of village Khai passed towards the south of Khasra Nos. 328 and 329, being separated from these two fields by the village pound ; whereas the incident took place in Khasra No. 329 on the eastern boundary of which the alternative route to village Bhaon was situated. If the appellants and their companions were not spoiling for a fight and had not made preparation for launching on attack on the complainant-party, then there was no justification or need for them to take the alternative route passing by the boundary of Khasra. No. 329. Accordingly, it stands fully established on the record that the appellants and their companions had deliberately armed themselves and proceeded by a route, which would take them to the Dhoke of witness Muhammad Haleem. We are thus satisfied that the appellants and their companions were the aggressors, and no question of the exercise of the right of private- defence could arise in their favour.
14. The learned counsel pointed out certain features of the medical evidence, which created a confusion at the trial as to whether the fire-arm injuries had been caused by a rifle or a '12 bore gun, but it is not necessary for us to dwell on this aspect at any length for the reason that the incident is admitted by both sides and, therefore, the question of the guilt or innocence of the appel--lants does not depend on determining whether the weapons employed were rifles or guns.
15. The medical evidence is far from conclusive on this aspect, and we would, therefore, prefer to rely upon the ocular account given by the eye-witnesses, as well as the admission made by appellant Qasim Shah that '12 bore shots were fired.
16. The next question is about the identity of the persons, who participated in the assault. Brothers Amir Husain Shah and Qasim Shah having a direct motive to assault the deceased persons and their companions, there could be no doubt of their participation in the incident, and the learned counsel for the appellants was also not in a position to urge any serious flaw in the appraisal of evidence in so far as these two appellants are concerned. Hell however, contended that Fazal Din and Ghulam Abbas had no reason to join the brothers Nazeer Hussain Shah. Amir Hussain Shah and Qasim Shlah, and that, in any case, they should also be given the same benefit of doubt as has been extended to Muhammad Subair by the trial Court. In this behalf the learned counsel referred us to Muhammad Afsar v. The Crown (PLD1954FC170) ; Sher Bahadur v. The State (1972SCMR651) and Muhammad Khan v. Khizar Hayat (1977SCMR7) and sub--mitted that the case being one based on the evidence of interested and inimical witnesses, and a serious doubt having been cast on their credibility by the acquittal of Muhammad Zubair at least Fazal Din and Ghulam Abbas were entitled to be acquitted.
17. After giving our anxious consideration to these submissions we regret we see no merit in them. The number of persons injured, and the number or injuries sustained by them leave no doubt in our mind that the number of assailants mentioned by the prosecution was such as could reasonably be' involved in the incident. The prosecution witnesses had no motive whatso--ever to falsely implicate Ghulam Abbas and Fazal Din. As regards Fazal Din, Mr. Abdul Aziz Qureshi frankly conceded that he could not point out to anything on the record, which, could show that the prosecution witnesses had a motive for his false implication. This being the case, we do not see how Fazal Din can be benefited simply from the fact that the learned trial Judge chose to give benefit of doubt to Muhammad Zubair. We have perused the reasons given by the learned trial Judge for acquitting Muhammad Zubair, and we are not at all impressed by them. However, it is not necessary to say anything more in this behalf as Muhammad Zubair's case is not before us.
18. As regards appellant Ghulam Abbas, it was submitted by the learned counsel that his maternal uncle Arif Husain had appeared as a witness against the complainant-party in the criminal case instituted against them by appellant Amir Husain Shah on the 17th of June, 1.972, and the witnesses were, there. Fore, motivated by this enmity. The contention is misconceived. We find that in the F. I.
19. R. Dated the 17th of June. 1972, Ghulam Abbas's maternal uncle Arif Hussain was not at all mentioned as a witness, and it was only more than 18 months after the present incident that Arif Hussain appeared as a witness in that trial on the 22nd of March, 1974, possibly as a retaliatory measure against the involvement of Ghulam Abbas in the present case. In other words, before the present incident, Ghulam Abbas or his uncle Arif Hussain were not involved, in any manner, in any litigation or enmity with the complainant-party, and, therefore, the witnesses had no motive to falsely implicate him in this incident, unless he was actually present at the time of the assault. We are, therefore, satisfied that this is not a case where Ghulam Abbas has been falsely implicated due to any previous enmity.
20. One last submission, made by Mr. Abdul Aziz Qureshi was that even if Ghulam Abbas and Fazal Din are proved to be present at the time of the incident, it is not necessary that they shared the common intention with the other two appellants for causing the death of Muhammad Azeem and his nephew Ahmad Khan. This contention has no substance for the reason that the evidence clearly shows that all the assailants had proceeded to the place of the occurrence after making preparations for the assult in furtherance of their common-object, as otherwise there was no reason at all for them to proceed to the boundary of Khasra No. 329.
21. For all these reasons, we find that the appellants have been rightly convicted and sentenced. The appeal, accordingly, fails and is hereby dismissed.