JAGDEV AND 12 Others vs THE STATE-

1. MUHAMMAD AFZAL ZULLAH, J.-By his judgment, dated 28th May 1969, the learned Sessions Judge, Lyallpur, has convicted (1) Jagdev, aged 60 years, (2) Noor Akbar, aged 22 years, and (3) Mammi, aged 22 years, under section 302/34, P. P. C., for the murders of Sher Muhammad and Malik Khan and sentenced them to death. They together with, the following 12 persons have also been convicted: under sections 148 and 364/149, P. P.'C. For having formed an unlawful assembly and for having abducted the aforesaid to deceased in order to murder them, and sentenced to three years' R. I. Each under the former charge, and transportation for life and a fine of Rs. 1,000 each in default to undergo further R. I. For one year each under the latter charge:-

(1) Afzal, aged 20 years; (2) Zulfiqar son of Sohna, aged 32 years; (3) Gulzar, aged 28 years; (4)

2. Shamas, aged 18 years, (5) Riaz, aged 22 years; (6) Ahmad, aged 22 years; (7) Mumtaz, aged 22 years; (8) Sohna, aged 80 years; (9) Sahli, aged 40 years; (10) Maqsood, aged 15 years; (11) Zulfiqar son of Ahmad, aged 29 years; and (12) Muzaffar, aged 21 years.

3. The sentence under sections 148 and 364/149, P. P. C., have been ordered to run concurrently.

4. Though the aforementioned 12 persons were also charged under section 302/109, P. P. C. For the murder of aforesaid Sher Muhammad and Malik Khan but were acquitted of this charge. All the convicts have appealed and the case for the confirmation of sentences of death awarded to Jagdev, Noor Akbar and Mammi is also before us under section 374, Cr. P. C. It may be mentioned here that to of the convicts, namely, Zulfiqar son of Ahmad and Muzaffar, have filed a separate appeal (No. 461 of 1969) while the remaining 13 convicts have filed a joint appeal (No. 669 of 1969).

5. All these matters are being disposed of together.

2. The facts of the case, which involve several incidents in one continuous transaction, briefly stated are as follows:-- On account of long-standing enmity including blood-feud, the family of Jagdev appellant and that of the to deceased were at loggerheads for about one hundred years. About eight or nine months before the present occurrence, which took place or 31st May 1966 at about kana din the, Anwar son of Jagdev was murdered. Two sons of Sher Muhammad (deceased in the present case), Khan, a cousin of Malik Khan (deceased) and one Lal Khan were challaned it that case. There was a cross- case under section 307, P. P. C., also against the sons of Jagdev. Malik Khan deceased was one of the prosecution witnesses in this cross-case. 21st May 1966 was the date of hearing in these to cases before the Resident Magistrate, Chiniot. Three prosecution witnesses against the present com--plainant party were present, but Jagdev refused to examine them because, as he thought he did not expect justice from the Court and that he would take the revenge himself. The adjourned date in those cases was 31st May 1966 and, as usual, both the parties were to attend; but on that very day the present occurrence took place.

6. It was morning the. A bus No. JG. 724, which was proceeding towards Chiniot, stopped at bus stand Dorehatta. Sher Muhammad and Malik Khan deceased were in that bus. All the 15 appellants, who were variously armed with rifles, guns, ballam and sticks, came out of a garden near the bus stand and encircled the bus. Jagdev, Noor Akbar, Afzal, Muzaffar, Gulzar and Zulfiqar son of Sohna entered the bus, Malik Khan deceased was carrying a gun which was snatched by Gulzar appellant. The to deceased were pulled out of the bus. Mammi and aforesaid Zulfiqar appellants fired shots to threaten the people. The hands of the to deceased were tied down and they were taken to the graveyard of village Dorehatta (hereinafter mentioned as the first graveyard) at a distance of about to acres. This incident was seen by Zulfiqar (P. W. 4), the bus driver Rafi Ullah (P. W. 6) and Muhammad Anwar (P. W. 7): Some other persons also saw the occurrence. They are Dosa, Ghulam, Nazir, Safdar Hussain Shah, Farid and Ismail. They also made some effort to rescue the to deceased but did not succeed. In that effort Isma il was given butt blow by Mammi appellant. None of these persons has been produced as a witness. The explanation is that they have been won over.

7. In the first graveyard, three persons (who have throughout remained unidentified) were present with six mares. The to deceased were made to sit on the mares. Noor Akbar appellant sat behind Sher Muhammad deceased and Jagdev appellant sat behind Malik Khan deceased and the party proceeded towards Adslana. Except Muzaffar son of Sher and Zulfiqar son of Ahmad appellants, the other 13 appellants took the deceased to the graveyard of Thatta Fateh Ali (hereinafter called the second graveyard); at which place Jagdev appellant offered fatiah at the grave of his son Anwar (the deceased in the earlier murder case) and addressing his grave uttered certain words which meant that his murderers had been secured and that they would reach him (Anwar) the same evening. Najabat (P. W. 8) and Sanatta (P. W. 9), who have their dhari near this graveyard, saw this occurrence and pleaded with the culprits not to kill the deceased but they were told to mind their, own business and were directed to go away. According to these witnesses, the thirteen appellants took away the to deceased towards Khandakot. Out of these 13 appellants in ten other than Jagdev, Noor Akbar and Mammi, it appears, dispersed from some, place (after the second graveyard stage); because there is no evidence that after the party left this place, they were seen with the deceased or the aforesaid three appellant.

8. In the meanwhile, Zulfiqar (P. W. 4) who had seen the occurrence at the bus stand, went to Police Station Bhowana which is at a distance of seven miles from Dorehatta and lodged the F. I. R. (Exh, PB) which was recorded by Abdul Qadir, A. S. I. (P. W. 29) at 8 a.m. The occurrence, as it happened at the bus stand, is mentioned in detail in the F. I. R. It contains names of all the appellants and of the witnesses. The name of Rafi Ullah; Bus Driver is not mentioned, but the description of the bus as belonging to New Chiniot Bus Service and the fact that it was coming from Bhowana and going towards Chiniot, are mentioned. Apart from the appellants, one more person, namely, Ghulam Muhammad son of Murad, Balooch, resident of Asiwala, is also mentioned as one of the culprits but he not challaned by the police.

9. Abdul Qadir, A. S. I., after recording the F. I. R. Reached the bus stand at 8-30 a.m. He prepared a rough plan of the place of abduction (Exh. PN). Two .12 bore empties and to 303 empties were taken into possession by him from that spot. The Bus No. JG-724 was also taken into possession.

10. Muhammad Masood, S. H. O. (P. W. 30) who was away from the police station received the information about the occurrence at 8-45 a.m. In village Jamima Muhammadi. He reached bus stand Dorehatta at 9-30 a.m. A police party, as noted above, was already present at the bus stand.

11. The Sub-Inspector had a guard of about ten or twelve constables and to A. S. Is. With him. The guard had its own official transport and was in the area in connection with the recovery of illicit arms (cross-examination of P. W. 30), with considerable police force at his disposal, the Sub- Inspector constituted a search party. They first went to Gati Sayedan from where Ghulam Shabir (P.

12. W. 15), Sher (p. W. 16) and Thiraj (P. W. 17) joined this party. It reached Canal Bridge Bookhri at about 1-30 p.m. At bridge Bookhri, Sh. Kabir (P. W. 10) had seen Jagdev, Noor Akbar and Mammi appellants taking away the to deceased on mares. When the police party led by Masood, S. L, reached this place, Kabir P. W. And Sultan (not produced) gave the clue about the culprits and the deceased; whereupon this party proceeded towards another bridge named P.I Bathanwali.

13. In the meanwhile, Muhammad Ali Shah (P. W. 14), Chairman of District Council, Jhang, a friend of the complainant party, having learnt about the occurrence at Rang rushed to the spot on a car and joined the police party. Ghulam Shabir (P. W. 15) is a cousin of Sher deceased. He was on his way to Chiniot in connection with the hearing of the murder ease of son of Jagdev when he learnt about the occurrence. He also rushed towards the spot on a horse-back and having obtained some clue about the deceased and the culprits had joined the search party on the way. When he reached, Sher (P.W.16) and Thiraj (P. W. 17) had already formed a wahr party. This party, as noted earlier, then joined the police party.

14. At P.I Bathanwali, the search party divided itself into three smaller parties in order to scan the surrounding area. Muhammad Ali Shah (P. W. 14) and some police officials constituted one party.

15. Masood, S. I., Thiraj, Sher and Ghulam Shabir P. Ws. And some others constituted the other party and Ghulam Abbas, A. S. I., some police officials and others constituted the third party. Masood, S. I., himself stood at P.I Bathanwali and three parties proceeded in different directions to search the deceased and the culprit.

16. Ghulam Shabir, Sher and Thiraj P.Ws. Saw the three afore--said appellants taking away the deceased near the boundary of Chak Nos. 49 and 50. It is in evidence that Chak No. 49 is also called Bathan. That is why the bridge near it is known as P.I Bathanwali. On seeing Ghulam Shabir and his companions, Sher deceased started crying and having been encouraged by the sight of a near relation, he started grappling with Noor Akbar appellant. Both of them fell down from the mare. Thereupon Noor Akbar having got up fired a shot with his rifle at Sher deceased which hit him on his head and he fell down. Similarly, Malik Khan deceased jumped down from the mare. Jagdev appellant followed him and fired a shot which bit Malik Khan on his head and he fell down. The to mares of Noor Akbar and Jagdev appellants, ran away. Mammi appellant who was still in a riding position bent down and fired a shot at Malik Khan deceased which hit him in the middle. This accused party had only one mare left with them. Mammi rode away. Jagdev and Noor Akbar also ran along.

17. Ghulam Shabir was carrying a licensed gun. He fired three or four shots at the culprits who also fired back. The police party at Bathanwali P.I headed by Masood, S. L, heard these shots. They came towards the murder spot and tried to follow the culprits and fired some shot; at them who fired back, when they reached near a clump of trees, the culprits first took shelter behind the trees and there rode away on the one mare then available to them.

18. The police party and the aforesaid three eye-witnesses returned to the spot, which is in the area of Chak No. 50, because as the S. I. Explained he "got apprehensive that the accused might not take away the dead bodies". He prepared the injury statements and the inquest reports of the to deceased. They are Exhs. PR and P. W. 39/B (of Sher deceased) and Exhs. P: S. And P. W. 39/A (of Malik Khan deceased). The dead bodies were sent for post-mortem examination through Manzoor Hussain and Muhammad Sher constables as escorts. Blood--stained earth was taken into possession separately from near the to dead bodies and was sealed into to parcels. The taken from near the dead body of Malik Khan deceased was on chemical examination, found to have been stained with human blood. The blood on the other had disintegrated. Three .303 empties (P. 8 to P. 10) were taken into possession from near the dead bodies, vide memo. (Exh. PG). Three mere .3303 empties (Exh. PG/1-3) were taken into possession from distance of 2 or 2-- Killas from the dead bodies.

19. Ahmad Nawaz son of Sher (deceased) (P, W. 3) was to carry the meals for their party men who were to attend the Court at Chiniot in connection with the pending cases. He left his Chak Pipli Dakhli Thatta Fateh Ali) at about chahwela together with some other persons. One of them (Noor) carried a licensed gun. They were proceeding towards Dorehatta bus stand and were to board a bus for Chiniot. On the way, they learnt about the abduction and also the fact that the deceased had been taken away by the culprits towards Khanda Kot. These persons; went to Khanda Kot where they learnt that the deceased had been taken towards the eastern side. Thereafter, they followed the tracks in Bood (the old river bed). They again got some clue on the way and proceeded towards Gatti Sayedan where they learnt about the direction the culprits had taken.

20. Therefore this party reached Bookhri bridge. At that place they get further clue but that happened to be a false clue and they went astray for about a mile. Having learnt about the mistake, they turned towards Chak No. 49. When they were at about one and a half squares from the canal, they heard the fire shot4. They raced their horses towards, that side, but reached late. Sher Muhammad, the father of the witness (Ahmad Nawari and his maternal uncle Mailk Khan had already been murdered, He was told by Ghulam Shabir, Sher and Thiraj P. Ws. That Jagdev, Noor Akbar and Mammi had committed the murders and further that they had gone towards the western side Ahmad Nawaz took the gun from one of his companions. They went after the culprits. When this party reached the. Bookhri bridge, they saw the three culprits riding on one mare. The parties exchanged fire shots. Ahmad Nawaz explained that although he was within the range of the culprits because --they carried rifles, the latter were not within the range of his gun. Sadiq (P. W. 11) and Khadim Hussain (not produced) advised Ahmad Nawaz to get down from the horse. He, however, continued the chase up to village Chak Mona where he met another search party which.

21. Included Amir (P. W. 12), a maternal uncle of Ahmad Nawaz.

22. On the day of occurrence, Amir P. W. Was at Chiniot Tehsil Office where he had gone to attend the hearing of the pending cases. He learnt about the abduction. Therefore, he, after having gone to Dorehatta bus stand, also like many others went out in search of the culprits. Ahmad Nawaz And Amir P. Ws. Joined together and continued the chase till about to squares away from Chak Mona where the culprits got down from the mare and started firing. The witnesses also fired back.

23. Ultimately finding themselves helpless, to of the culprits Jagdev and Noor Akbar entered a dhari (which later turned out to be 'that of Shaman (P. W. 13), while Mammi rode away.

24. Abdul Qadir, A, S. I. (P. W. 29) who had made some investigation at bus stand Dorehatta, had also gone in search of the culprits and had joined the main police party at Canal --bridge Bookhri.

25. There he got into the car of Muhammad Ali Shah P. W. This party, i. e., of Muhammad Ali Shah, as noted earlier, had separated from the main police party at Bathanwali Put and had gone to the next bridge for naka bandi. There they heard some fire shots. When they wanted to take a diversion on katcha road, presumably for encircling the culprits whom, according to Muhammad Ali Shah, they had already seen, the car got stuck in mud. It took them some the to pull it out, but a little after that- they found that a wheel had been punctured. They came back to Bookhri bridge. The wheel was changed.

26. In the meanwhile, Muhammad Yousaf, D. S. P. (P. W. 32) reached thereon a police van. It is in the statement of the D: S. P. That he was going to Police Station, Chiniot in connection with the inspection of the Police Station and also for investigation of some case, when on his way he learnt about this occurrence at Police Station Bhowara. He had a Police van. He want to bus stand Dorehatta and followed the tracks of the culprits. Having found different clues at Adalana, Jaura Bangla, Aminpur, Kot Musa, Asiwala, he went along the canal bank (Jhang Branch) and ultimately reached Bookhri bridge. There he found Muhammad Ali Shah P. W. And the party including Abdul Qadir, A. S. I. P. W. The D. S. P. Sent Gut Akbar, A. S. I., from this place to bring more Police force and he himself, with the party he had earlier joined, proceeded towards the direction in which the culprits bad gone. They went on the car of Muhammad Ali Shah. At some distance they heard the reports of gun fire and then went to the place from where the shots had been fired. It was a roofless dhari of Shamman P. W.

27. According to the statement of the D. S. P. Be challenged Jagdev appellant that either he should face the Police or surrender. The appellant offered to surrender. There--after, Jagdev and Noor Akbar came out of the dhari. They were arrested at that very place. Rifle (Exh. P-15) containing five live cartridges (Exh. P-16/1-5) and a bandolier (Exh. P-17) containing some more cartridges were taken into possession from Jagdev appellant, vide memo. (Exh. P. E). Rifle (Exh. P-11) which contained three live cartridges (Exh. P-13/1-3 and a bandolier (Exh. P-12) with some more cartridges were taken into possession from Noor Akbar appellant, vide memo. (Exh. P. D). Both these appellants were injured. Their injury statements were prepared by the D. S. P. Which are Exhs. P. W.

28. 36/A and P. W. 36/B respectively. Seven empty cartridges were taken into possession from the dhari, vide memo. (Exh. P. C). They are Exh. P-1/1-7.

29. Mammi appellant who, as noted earlier, had escaped was arrested by Masood, S. I. P. W. After about four 'months, on 28th September 1966. He had remained an absconder all this the. Zulfiqar, F.

30. C: (P. W. 27) is the witness with regard. To the warrants of arrest and subsequent search for this appellant, When arrested, he was found in possession of rifle (Exh. P-19) and four live cartridges (Exh. P-20/1-4). They were taken into possession, vide memo. (Exh. P. K).

31. The other appellants were arrested on different dates, but no formal evidence has been recorded with regard to the abscondence. It is in the statement of Malik (P. W. 19 that after the arrest, the Police recovered a gun from Zulfiqar son of Ahmad and a rifle from Muzaffar appellants. Son) more weapons of offence were recovered, but the prosecution has not even attempted to connect them with the remaining appellants. The total number of arms, it is in cross-examina--tion of Shah Jehan Khar3P Ballistic Expert (P. W. 33), .Was seven rifles and four guns. They were available, in Court during the trial and were, shown to the Expert by the learned defence counsel. A reference to them is also found in the judgment of the learned trial Judge.

3. Dr. A. A. Khan (P. W. 2) performed the post-mortem examination on 1st June 1964 at 2-30 p.m. On the dead body of Sher Muhammad aged 45 years, and found the following injury on his person :--- "A bullet entry wound was in left ear. It had punctured the drum and the anterior part of the skull was broken and posterior bones of the eye were broken. The exit wound of this bullet was near the left eye-brew. The inlet wound Was, --" X --" and the exit wound of the bullet was --" x --"."

32. On opening the skull, the left temporal pariestal and occipital and left anterior cranial bones were broken. Other organs were healthy.

33. On the same day at 3-30 p.m., the autopsy on the dead body of Malik Khan, aged 40 years, was performed and the following injuries were found:- "(1) A bullet entry wound --" x --" x peritoneum cavity deep on the left side of abdomen just below the last rib. Edges of the wound were inturned and showed blackening of skin all round. A bullet wound of exit --" x --" x peritoneum cavity deep on the right side just below the last ribs, edges gapping and out-turned.

(2) A bullet entry wound --" x --" brain deep edges inturned and skin around showing blackening, 2" behind the right ear. There is exit wound of the bullet 1-- x -- x brain cavity deep edges out- turned."

34. On opening the skull, whole of the brain meninges and the brain were blackened, fracturing the right temporal parietal occipital and left occipital bones and the left frontal bone was fractured.

35. The peritoneum was cut at many places. Stomach in both the cases contained only small amount of fluid. Bladers were empty. Death in both the cases was due to excessive shock and internal haemorrhage caused by the injuries noted above which were sufficient in the ordinary course of nature to cause death. The death was instantaneous after the injuries, but the the that elapsed between deaths and the post-mortem examination was about 24 hours. This fits in with the prosecution version.

36. Dr. Fazal Ahmad (P. W. 1) had examined Mammi appellant on 6th October 1966 (the date 10th June 1-966 mentioned in the statement appears to be due to a typing mistake). He found the following injuries on his person :-

(1) Oblique scabbed abrasion 1-- " x 1" on the left chest above the mamma.

(2) Horizontal abrasion 1--" x --" on the left chest below the mamma.

(3) 2 oblique scabbed linear abrasions --" long each, one on the left lower chest and the other on the abdomen.

(4) Oblique scabbed abrasion --' x 1/6" x --" outer and below left mamma.

(5) 2 oblique scabbed abrasions --" x --" and -- x --" on the back of right elbow.

(6) Scabbed and almost healed abrasion --" x 1/6" on the back of right hand.

(7) Two scabbed abrasion --" circular and 1/3" x 1/3" on the upper part of left buttock.

(8) A scabbed abrasion 1/3" x 1/3" on the left mid back near the mid line.

(9) Dark blue contused nail of right middle finger.

(10) Almost healed horizontal abrasion --" x 1/10" on the r1ront and distal part of right index finger.

(11) Healed scabbed abrasion --" x --" on the outer side of right knee.

37. All the injuries were simple and of about a week's duration. They were caused by blunt weapon.

38. As noted earlier when Jagdev and Noor Akbar appellants were arrested, some injuries were found by the D. S. P. On their persons and their injury statements were prepared. It is noted on the injury statements that they were medically examined by A. M. O., Lalian on 1st June 1966. The medico- legal reports (Nos. 19 and 20) were sent to the police. The doctor has not been examined by the prosecution. Therefore, the medico-legal reports could not be proved. The D. S. P. Gave the following description of the injuries on these to appellants :- --Jagdev. (Exh. P. W. 36/A):

(1) An abrasion on the inner side of the left calf, a little above the ankle.

(2) An abrasion on the inner side of the left calf above the ankle.

(3) An abrasion on the inner side of the right calf.

(4) An abrasion on the right calf above the ankle.

(5) An abrasion with blood around on the back.

(6) An abrasion on the left side of the back.

39. Noor Akbar. (Exh. P. W. 36/B):

(1) AR abrasion in front of the right calf above the ankle,

(2) An abrasion on the inner side of the right calf.

4. At the, trial, all the witnesses of the abduction, the search and the murders, whose names and particulars have been noted in the narrative given above, have fully supported the prosecution case. Some of these witnesses have also made statements with regard to recovery of rifles from Jagdev, Noor Akbar and Mammi appellants and the recovery of crime empties from several spots.

40. But all the recovery memos have not been proved nor, excepting a few, the empty cartridges have been identified as having been recovered from particular spots. Above all, one of the very important witnesses, i. e., Muhammad Baksh, M. H. C., Police Station Chiniot, who kept the parcels in the Malkhana, has not been examined. Therefore, one of the links in so far as the transmission of the weapon, and the crime empties is concerned, is missing. Two Ballistic Experts have appeared.

41. Anwarul Haq Bajwa (P. W. 21) is one of them. He examined the rifle recovered from Mammi appellant and three crime cartridges. The points of identification were inter--mingled. Therefore, he could not give any definite opinion about one of the empties, while the other to, he stated, were not fired from that rifle. Shah Jahan Khan (P. W. 31; examined the to rifles recovered from Jagdev and Noor Akbar and compared them with several crime empties said to have been recovered from various spots. According to him, six of the empties were found to have been fired from the rifle recover--ed from Jagdev appellant. He gave reasons for his opinion. Two of the .12 bore crime empties, according to him, were sired from .12 single-barrelled shot gun; which, it appears from the combined, reading of the statements of the expert and Malik (P. W. 19), was recovered from Zulfiqar son of Ahmad appellant, but there is some confusion about the number of the gun barrel given by these witnesses.

42. As noted earlier, the doctor who medically examined Jagdev and Noor Akbar appellants was not examined as a witness. Dr. Fazal Ahmad who examined Mammi appellant and found injuries on his person was, however, examined. The statements of Dr. Fazal Ahmad, who examined Mammi appellant, and Dr. A. A. Khan, who' performed the post-mortem examinations, were duly transferred to the Sessions file.

43. When examined, all the appellants denied the material allegations. The recoveries were not admitted. Jagdev and Noor Akbar .Denied that they had received any injuries.

44. Mammi appellant was not asked as to how he received the injuries. Jagdev appellant admitted the material facts about the motive, but denied that Malik Khan deceased v. Is a witness against his sons in the cross-case under section 307, P. P. C., which was pending before a Magistrate during the days of occur--rence. According to his version, the complainant party had enmity with Chadhars also. He denied that he was arrested, as alleged by the, prosecution. On the other hand, he stated that he and his son were arrested from near his house. The state--ment of Noor Akbar is consistent with that of his father, except that he admitted that Malik Khan deceased was a prosecution witness in the cross-case. Mammi appellant denied all the allegations including that of abscondence. He explained that a case was registered against him at the instance of Noor Akbar appellant; that he did not appear in that case, that he was arrested from Mangata ; and that he did not know about this case till very late. According to him, Jagdev and the other appellants were his enemies and, therefore, he could not accom--pany them. In this regard, it may be mentioned that Jagdev, in his statement, admitted that Mammi, Salli, Zulfiqar son of Ahmad and Muzaffar appellants belonged to his party. All other appellants, who are related to Jagdev, pleaded false implication due to previous enmity. Salli explained that be was married to the daughter of the maternal uncle of Sher deceased and, therefore, he belonged to the complainant party, and that he was reported against because of the expectation that he would become an approver for which an effort was made by offering Elm Rs. 16,000 which he rejected. Zulfiqar son of Ahmad, who is Chadhar by caste and is not related to Jagdev's family, explained that he had a dispute with Ghulam Shabbir P. W. On the question of elections and consolidation of land; therefore, he had been falsely implicated. He denied that he belonged to the party of Jagdev. Muzaffar, who is also a Chadhar by caste, similarly explained that he had been falsely implicated on account of the dispute with the complainant party on consolidation proceedings. He denied that he belonged to the party. Of Jagdev. No evidence in defence was produced; except that copies (Exhs. DD and DE) of Goshwara No. 102, dated 21st September 1951 relating to village Thatta Fateh Ali, Tehsil Chiniot, copies (Exhs. DF, DG, DH and DJ) of register Haqdaran (1959-60) of village Thatta Fateh Ali Khan and copies (Exhs. DH/ 1, DK/1 and DJ/ 1) of Khasara Girdawari of the year 1967-68 of the, same village, were produced to show that Najabat, Sanatta and Thiraj P. Ws. Were connected with the complainant party and were inimi--cal to the appellants on account of relationship of tenancy.

45. Exh. DK, a certificate from Superintendent Jail, Gujrat, was also produced to show that one Ghulam Muhammad son of Murad, caste Baloch, resident of Jani Chak, Police. Station Dinga, District Gujrat, was admitted into district jail as an under-trial prisoner at serial No. 4051 on 30th May 1966.

46. The learned Sessions Judge believed the entire ocular evidence. He did not reject the evidence of the Ballistic Expert Shah Jahan Khan (P. W. 31), but at the same the he did not use the recovery of the weapons or the crime empties because he thought that the crime empties were not duly connected with the specific spots and also because the M. H. C., who kept the parcels at one stage, was not examined as a witness. The injuries found on the persons of Jagdev and Noor Akbar were similarly excluded' from consideration because the doctor was not examined. Relying on the ocular evidence, as supported by motive and mass of other circumstances, he convicted and sentenced all the appellants as noted earlier.

5. The appellants are connected with each other as follows :- Noor Akbar, Muhammad Afzal, Shamas sand Maqsood are sons of Jagdev. Sohna is married to his sister. Zulfiqar, Gulzar and Ahmad are the sons of Sohn a. Riaz and Mumtaz are the nephews of Sohna. Mammi, Salli, Zulfiqar son of Ahmad anti Muzaffar, who belong to different caste and are not related to the other appellants, according to the admission of Jagdev belong to his party.

47. Some of the witnesses who have deposed to the abduction and the murders are related inter .Se and are also related to the deceased. The to deceased are related to each other. Malik Khan deceased was a cousin of the wife of Sher deceased and thus was a maternal uncle of Ahmad Nawaz (P.. W. 3). He is the son of Sher Muhammad deceased. Zulfiqar (P. W. 4) made an attempt to deny the relationship with the deceased, but admit--ted that they belonged to his brotherhood and that he had to go to. Chiniot on the day of occurrence in connection with the previous murder case as a party man of the deceased. He showed ignorance about close relationships. We cannot believe that lie did not know the name of the grand-father (Mohla) of his mother, nor that Amir and Dad were the brothers of said Mohla. He also showed ignorance whether one Mutalli was the brother of his maternal grand-father. He stated that be did not know that Waryam was the father of Sher deceased and that Mutalli was his grand-father. We are of the view that this witness is related to the complainant party ; though he has not admitted the exact relationship which may not be very close. But we are certain that he is a partisan. Of the complainant party because according to his own admission he was one of the accused in the murder case of, Malik, sister's son of Jagdev appellant. Because of his evasive answers (in this behalf), the learned Sessions Judge was constrained to make the remark that according to his impression the witness was "evading to answer the questions intentionally." Muhammad Anwar (P. W. 7) is also closely relat--ed to one deceased, in that Shahadat father of Sher deceased was the brother of Raja, the grand-father of this witness. He, however, denied that Malik Khan deceased was closely related to him. On the contrary, he volunteered the statement that Malik khan deceased and Jagdev appellant were equally related to him. According to him, Jagdev ,joined him as collateral in the sixth degree. He had, earlier, admitted before the committing Magis--trate that Malik Khan deceased was his close relative. To a Court question, he explained that before the committing Magis--trate also he had made the statement that Malik Khan deceased and Jagdev appellant were both equally related to him. His statement to the effect that his relationship with Malik Khan deceased was remote does not appear to be wrong. Even accord--ing to Ahmad Nawaz (P. W. 3) who is the son of Sher deceased, "Malik Khan deceased was a distant cousin of (his) mother". The statement of Anwar P.

48. W. With regard to his remote relation--ship with Jagdev appellant does not appear to have been seriously questioned because no more questions were put to him. Though the suggestion put to him in cross-examination that both the parties were related to each other was denied by him, but it appears that his denial is due to some misunderstanding. Both the parties are Jappas by caste and, presumably, belong to the proprietary body of the same village Thatta Fateh Ali Khan; and it is in evidence that there has been some disputes between them on account of lands including charagah. Therefore, it is not unlikely that as suggested by the defence to this P. W. (Anwar) both the main parties maybe remotely inter-related. Amir son of Bahadur (P. W. 12) is the first cousin of Sher deceased. He denied that the mother of Malik Khan deceased was the sister's daughter of his father. It was explained by Ahmad Nawaz P, W. (in cross-examination) that Malik Khan deceased was a distant cousin of his mother. Therefore, the above denial of Amir P. W. Does not appear to be wrong. It needs to be mentioned that he was challaned along with Zulfiqar P. W. For the murder of Malik the sister's son of Jagdev. His real brother Mir was convicted, sentenced to death and executed for the murder of Sher son of Raja, a close -relation of the wife of Jagdev. His other brother Lal was challaned in the murder case of the son of Jagdev which, was pending during the days of occurrence. Ghulam Shabir (P. W. 15) is the first cousin of Sher deceased and Malik Khan deceased was his wife's brother. He admitted that there was "bitter enmity between him and the accused party." He admitted that Fateh Sher Chadhar contested election for the membership of District Council against his father and that in the B. D. Elections he himself was a rival candidate of Muhammad Khan son of said Fateh Sher, He also admitted that his other rival candidate was Muhammad Hayat an uncle of Muzaffar appellant. He showed ignorance whether the mother of Zulfiqar son of Ahmad appellant and the wife of aforesaid Fateh Sher Chadhar were sisters inter se.

49. He also showed ignorance about the relationship between Zulfiqar and Muzaffar, the to Chadhar appellants. He, however, denied that there was enmity between the aforesaid Chadhars on the one side and the witness on the-- other. Sher (P. W. 16) admitted that one Mehr Salabat was from his brotherhood and that he joined him in third or fourth degree. Said Salabat is at uncle of Sher deceased. Therefore this witness is also related to the deceased. He has anther relationship. Anwar (P. W: 7) has admitted in cross-examination that Mst: Janatan was his father's sister and Sher P. W.

50. Was her son. Therefore, this witness, i. e., Sher P. W. Is closely related to. Anwar P. W.

51. From the above facts, it becomes clear that Ahmad Nawaz (P. W. 3), Zulfiqar (P. W. 4), Anwar (P. W.

52. 7), Amir (P. W. 12), Ghulam Shabbir (P. W. 15) and Sher (P. W. 16) are related to the deceased and belong to the complainant party. The enmity between the to parties, i. e., the to deceased and their relations on the one hand and Jagdev and the other appellants who are his, relations on the other, is established and admitted. The remaining appellants, namely, Mammi, Salli, Zulfiqar son on Ahmad and Muzaffar, are not related to either of the to parties. They belong, it appears from the evidence, to the party of Jagdev. The aforesaid witnesses had no direct enmity against these appel--lants. The argument that Ghulam Shabir had, due to the elec--tion contest with the relations of the to Chadhar appellants, falsely implicated them; is far fetched and cannot be accepted. The conclusion which can be reached, therefore, is that-the afore--mentioned witnesses do fall within the definition of `interested witnesses' so far as the appellants other than Mammi, Salli, Zulfiqar son of Ahmad and Muzaffar appellants are concerned.

53. Out of these witnesses, Zulfiqar and Anwar deposed about the abduction from the bus stand and also about what happened in the first graveyard. Ghulam Shabir and Sher P. Ws. Are the eye-- witnesses of the murders while Ahmad Nawaz and Amir are the witnesses of search of and pursuit of the culprits and the final encounter with Jagdev, Noor Akbar and Mammi alter the murders and before the arrest of the former to appellants.

6. Rafi Ullah (P. W. 6), Najabat (P. W. 8) and Sanatta (P. W. 9) have deposed about the abduction from the bus stand. They are independent witnesses. Similarly, Sheikh Kabir (P. W. 10), Sadiq (P. W.

54. 11) and Shamman (P. W. 13) and the three Police Officers i. e., Abdul Qadir, A. S. 1. (P. W. 29), Muhammad Masood, S.I., (P. W 30) and Muhammad Yousaf, D. S. P. (P. W. 32), who saw Jagdev, Nobr Akbar and Mammi appellants before and after the murders and some of them had also exchanged fire shots with them, are independent witnesses. Out of the three eye-witnesses of the murders. Thiraj (P. W. 17) is an independent witness. Muhammad Ali Shah (P. W. 14) who also saw the aforesaid culprits and is an important witness about "the Police encounter with the appellants and their arrest at the dhari of Shamman P. W., cannot be described as an entirely neutral witness because according to his own admission Mir Bahawal, the grand-father of one of the deceased, had brotherly relations with his grand--father and they had exchanged their turbans which means that they had become brothers". He stated in the examination-in--chief that he had family relations with the accused party as well, but this fact is neutralised by the circumstance (admitted by him in cross-examination) that "the accused were annoyed with him over some affair." His explanation. That on that account, he was not annoyed with them and, therefore, he continued to have relations with them does not sound to be plausible. Therefore, even though he may not be a witness interested against the appellants so as to falsely implicate them, yet he cannot be described as an entirely independent witness. But the learned trial Judge has given other reasons for believing him, with which we do not differ.

7. Before critically examining the evidentiary value of the statements of the witnesses who directly implicate the appellants, it is necessary to mention that all these witnesses were cross--- examined at great length. Ch. Nazir Ahmad Khan, the learned counsel; himself was of the view that most of the cross---examination is irrelevant. That is probably why he did not read the entire cross-examination and felt satisfied with pointing out three, things in the cross-examination. Firstly that some of the witnesses are related to the complainant party; secondly that others are inimical to the appellants; and thirdly, that there are some discrepancies between the statements of the witnesses inter se and their statements before the Committing Magistrate and the police. We, however, have for our own satisfaction, read the entire statements of these witnesses and must say that the learned counsel was not wrong. The learned Sessions Judge also while dealing with the discrepancies, remarked in para. 23; sub para. (xvi) of the judgment: "I cannot help observing that the' prosecution witnesses were cross-examined at length and it was quite natural that some minor discrepancies should have come on the record. The minor discrepancies did not reflect on the authenticity of the statements of the witnesses". The learned Judge cited some case-law in support of his observation relating to the discrepancies. We have no reason to differ with him. The discrepancies pointed out by both the learned counsel for the appellants during the arguments before us are, inconsequential and are explainable on the basis of the reasoning of the learned trial Judge. We have noticed that to Foot Constables (P. Ws. 24 and 25) made some concessions to the accused in their earlier statements with which they welt confronted. We are satisfied that they tried to create confusion with a view to help the accused. No importance, therefore, can be given to the discrepancies in their statements. We, have also noticed that the entire occurrence in this case consists, of several inter-connected incidents which form a continuous chain. There is some over- lapping element in the statements of, the witnesses qua different incidents. There was a large number of police officials headed by different officers and, as noted earlier, there were so many persons to see the various incidents. An area of about 20 miles on one direction from Dorehatta was being scanned by these persons. All the search parties ultimately converged at and near .Put Bakhanwali (Chaks Nos. 49 and 50). In these circumstances and in view of the lengthy cross- examination particularly when the witnesses were being examined after about three years of the occurrence, discrepancies were bound to occur.

8. The interested witnesses whose names are mentioned in para 5 above, belong to and have such connections with the complainant party that they were most likely persons to have been concerned in the previous pending case of which the date of hearing was 31st May, 1966 at Chiniot.

55. Therefore, the claim of the prosecution that they were present at the relevant places in connection with the previous murder case is in accord with the natural circumstances. The, presence of Zulfiqar and Anwar P. Ws. At the Bus Stand Dorehatta from where, they were to catch, a bus to go to Chiniot could not, be successfully assailed. The name of' Anwar P. W. Is mentioned in the F. I. R.

56. Which was, admittedly, lodged by Zulfiqar P. W. In our view, the F. I. R. Was prompt. Learned counsel, in this connection, argued that the sunrise on the day 'of occurrence being at about 5 a.m. The F.I.

57. R., at 8 a.m,, at a distance of seven miles was delayed. We do not agree with him. The occurrence) at the bus stand is said to have started, at about "kana din wela." Such like description by the villagers, of the is always with some margin. This Court commented on the expression 'chahwela' 'in Darghahi and others v. The State (PLD 1958 Lah. 300) and observed that it cannot be defined with any amount of exactness, Same applies to kana din wela. Depending upon the comprehension of the person concerned, it can be a the within one to 1-- hours after the sunrise. The occurrence at the bus stand and up to the first graveyard; which included encircling the bus effectively, dissuading the bus driver and the passengers from resisting, physically taking out of the to deceased from the bus after snatching the gun from Malik Khan deceased, tying their hands, removing them to a distance of about to and half acres in the first graveyard where three unknown persons were waiting for this party, forcibly making the deceased to sit on the mares and then taking them away towards Thatta Fateh Ali Khan; must have taken some the. Thereafter Zulfiqar explained that he started for the police station on foot and had gone about five killas when he was able to board a bus to go to the police station. In all these circumstances, we are unable to agree with the learned counsel that the F. I. R. Was delayed. According to the F. I. R.; Zulfiqar himself is an eye-witness. We are in no doubt that Zulfiqar and Anwar P. Ws. Did witness the occurrence at the bus stand.

58. Another objection of the learned counsel is that other witnesses mentioned in the F. I. R., particularly Ismail who was said to have been caused an injury by Mammi appellant, have not been examined by the prosecution. It is true that, at least, Ismail was an important witness. But the explanation given by the learned counsel appearing for the State is plausible. According to him, the prosecution could not risk producing these people because, according to their information, they had been won over. In the background as in the present case, it is quite possible that some disinterested witnesses may be avoiding to appear due to fear of reprisal from the accused party who, if the allegations are true, had undoubtedly committed a very daring at.

59. The next question arises whether the number of the accused persons named by the prosecution is exaggerated or unlikely. There is no evidence on the file that the accused party expected Sher and Malik Khan deceased only to have come in the bus they raided. It is quite possible that if there would have been somebody else closely related to the deceased in the bus, he might also have been abducted because the object of the assembly was the abduction of some members of the opposite Party, with no particular restriction qua their number. The purpose of this abduction would be discussed later. The above supposition finds support from the fact that six mares were kept waiting in the garden near the first graveyard for abducting the victims. As the number was only to, therefore only three of the mares mere subsequently used. Keeping in view the purpose of the assembly of the accused and also the fact that they must leave known that the complainant party could also be armed (in fact Malik Khan deceased was found armed with a gun) and may be in sufficient number, it can be legitimately assumed that the number of the culprits, must have been large. The total number given in the F. I. R is 16. This, in our view, does not at all appear to be exaggerated. The same conclusion is reached by another reasoning. Zulfiqar and Anwar P. Ws.

60. Have no direct enmity against four, of the appellants. Najabat and Sanatta P. Ws., who have no motive to falsely implicate any of the appellants, have specifically named all the appellants excepting to, i.e. Zulfiqar son of Ahmad and Muzaffar considering together the statements made by these four witnesses, it is not possible to conclude that the number of the culprits may he less than alleged by the prosecution.

61. It needs to be mentioned that the learned counsel raised as argument that Zulfiqar P. W. Tried to falsely implicate Ghulam Muhammad son of Murad in the F..I. R., therefore he should not be believed. It is true that Ghulam Muhammad has not been challaned by the police. There is no finding by the learned Trial Judge that any innocent person was involved. Reliance has been placed on a certificate (Exh. D. K.) tendered in evidence by the appellants at the trial stage, according to which one Ghulam Muhammad was admitted in District Jail, Gujrat as an under-trial prisoner on 30th May 1966 and that he was released on 28th June 1966. Apart from the technical' objection that legal evidence has not been produced to prove that the person admitted in jail was the same person who is mentioned in the F. I. R., there are other circumstances to show that the argument has no basis. According to the F. I. R., the said Ghulam Muhammad belonged to Asiwala while it is mentioned in the certificate that Ghulam Muhammad, who was admitted in jail, belonged to Jani Chak. Moreover, according to the application on which the certificate was granted. Ghulam Muhammad, the applicant. Therein, was admitted in jail on 31st May 1966, while according to the certificate he was admitted on 30th May 1966. It is not clear from the evidence as to why the police did not challan Ghulam Muhammad mentioned in the F. I. R. Therefore, it will not be possible to assume that Zulfiqar P. W. Tried to falsely implicate an innocent person in the F. I. R. At the trial, he stuck to the original position in the F. I. R. And explained that he did not know Ghulam Muhammad personally and that his name was disclosed to him at the spot. This explanation does not appear to have been seriously challenged at the trial. The learned counsel, however, argued that Zulfiqar had given the tame of the father of Ghulam Muhammad in the F. I. R.; therefore, he must have known him. It was explained by Zulfiqar that he did not know the name of the father of Ghulam Muhammad either. As noted earlier, it is quite possible that someone at the spot might have given the particulars of Ghulam Muhammad. In these circumstances, it is impossible to hold that Zulfiqar falsely implicated an innocent person.

62. Looked at from whatever angle, the position that emerges is that the to deceased were abducted from Dorehatta by a large number of culprits and there is no reason for us. To presume that the number was less than 15 or 16.

63. The next question that arises is whether there is a possibility of Zulfiqar and Anwar P. Ws. Who were interested, having substituted the names of some of their enemies for the real culprits. Several factors go against such a supposition Firstly, they have specifically implicated, at least, four persons against whom they had no personal enmity. If they wanted to falsely implicate other members of the families of Jagdev and Sohna, it was not impossible for them to do so. Instead of implicating four outsiders, they could have easily named four more persons from the family of enemies and it is not the case of the defence that there were no other adult members in the family of Jagdev and Sohna. Learned counsel, in this connection, pointed out that Sohna, a very old man of 80 years, and Maqsood son of Jagdev, a by of 15 years; have been implicated; therefore, not only that it should be held that they have been falsely implicated but, he claimed, that the benefit of this supposition should be given to the other appellants also. As will be discussed later, we do not agree with the learned counsel either that Sohna was 80 years old, at the the of I occurrence or that Maqsood was not likely to participate in this occurrence. Therefore, there is no force in this contention.

64. Secondly, Najabat and Sanatta P. Ws. Who, as noted earlier, have no motive to falsely implicate any of the appellants have not mentioned the names of Zulfiqar son of Ahmad and Muzaffar appellants. According to Zulfiqar and Anwar P. Ws. All the appellants had left the first graveyard and had proceeded towards Thatta Fateh Ali. Therefore, according to the case as made out by the complainant, it would not have been unlikely if the to afore-mentioned appellants would have been shown to reach the second graveyard. But Najabat and Sanatta did not mention their names as culprits. This would show that these to witnesses were not out to tow the line of the complainant in all events. The persons they did not. See at the second graveyard have not been mentioned by them. Dr. Tassaddaque Hussain, learned counsel for the to Chadhar appellants, built an argument on the above facts that the statements .Of Zulfiqar and Anwar P. Ws. Have been contradicted by Najabat and Sanatta P.Ws. In so far as the participation of these appellants is concerned. In fact, it is not a discrepancy in the statements of to sets of the witnesses. ' What it appears is that some of the culprits' separated in between the to stages, i. e., the first and the second graveyards. These to appellants, as they did not reach the second graveyard, must be those persons. The others who separated were the three persons-who were keeping six mares ready in the garden near the first graveyard. These three persons remained unidentified throughout. That is how only 13 persons are named by Najabat and Sanatta as having been seen by them at that place.

65. Thirdly, the enmity between the to parties is so grave and long standing that all the relations of Jagdev including Sohna and his family were the most likely persons to have participated. About the remaining four appellants, i. e., Mammi, Salli, Zulfiqar son of Ahmad and Muzaffar, the prosecution that out of they belong to the party of Jagdev. It is not unnatural that out of fifteen, four may have joined from outside the family of Jagdev. And as there is no direct enmity with any of these four appellants of any of the- witnesses, therefore, it cannot be said that someone of these appellants might have been falsely implicated by some witness -to wreak vengeance.

66. Fourthly, the names of all, the culprits are mentioned in the F. I. R. Which, as already held, was prompt. It was very unlikely that within the short period Zulfiqar, who was then unaided by other members of his party and family, would have substituted innocent persons.

67. Fifthly, no attempt has been made by P. Ws. To falsely implicate their enemies by introducing fake identification of the three unknown persons.

68. Sixthly, appears from the reading of the entire evidence that the occurrence of abduction' was seen by many persons including those who were in the bus and/or at the bus stand. It is also clear that the occurrence was known in the entire Ilaqa almost instantaneously and the higher police authorities .Were either informed about it or participated in the investigation. In these circumstances, it was unlikely for Zulfiqar to have substituted wrong persons for the real culprits.

69. And seventhly, the names of the 13 appellants are not only mentioned by to interested witnesses but also by other witness (Najabat and Sanatta) who belong to a different caste. The cultivation of land belonging to different persons appears to be their occupation. It is almost an admitted position that the dhari of. These, to witnesses, is near the second graveyard and they are most natural witnesses of the incidents that took place there. We are not ready to believe that these witnesses have tried to falsely implicate any of the appellants. Some effort was made in cross- examination of these witnesses to show that they were the tenants of the complainant party and that they, having once remained tenants of Jagdev appellant were ejected. By him through Court proceedings. Their statements do not support this argument. It was suggested to Sanatta P. W.

70. That some land cultivated by him belonged jointly to several persons including Anwar P .W., his uncles, father of Amir and Ghulam Shabdir P. Ws. And Sher deceased. He did not admit this suggestion and explained that none of these persons ever obtained the share of produce from him. Even if he was the tenant on land which was jointly owned by several persons the tails of which he did not know, we are not, ready to believe that for that reason, he would falsely implicate any of the appellants, against whom he had no personal or direct grievance. Similar argument was raised before the learned trial Judge who rejected the same. There is no reason for us to differ with him on this point. We, therefore, hold that all the appellants did participate in abducting the to deceased.

71. In reaching the above conclusion, we have kept out of consideration the statement of Rafi Ullah P.

72. W., the bus driver. Undoubtedly, he is an independent witness. But both the learned-counsel for the appellants advanced seathing criticism on his statement to show that he is not a truthful witness.

73. We are in no doubt that he was the driver of the bus concerned and he did see the occurrence. But his claim at the trial and that to in cross-examination that- he was able to identify the culprits six of whom he named, does not appear to be true. He admitted that he had not given the names of the accused persons in his statement before the police. The only explanation offered by him is that the names were not enquired. We cannot believe that the police would not have enquired .The names.

74. His statement is not supported by the investigating officers. Therefore, we are of the opinion that though he did see all the culprits, but he did not know their names and that is why he failed to mention them before the police. This, by itself, is sufficient to discard his statement. But there are certain other infirmities also. Before the committing Magistrate, he stated that the accused had covered their faces and, therefore, he could not identify them. At the trial he explained that his statement before the C: M.; was due to fear of the accused party. He did not explain further as to what change qua fear had taken place at the trial stage. We have further gained an impression that even at the trial he had obliquely tried to help the accused by conceding that he did not see anybody going to police station and further that the police arrived on its own within about 45 minutes of the occurrence. He admitted that he had been convicted and had to undergo imprisonment of one year for the smuggling of rice. He, in our view, is an undependable witness. If it is assumed that he did not give the names of the accused persons before the police, it will have further to be assumed that he did not know them and if he did not know them personally it was necessary for the police to have put him through an identification test parade. Nothing was done in that direction. Learned counsel also pointed out certain discrepancies in his statement, but the in our view are inconsequential. The other circumstances mentioned above are, however, enough to discard his statement, Agreeing with both the learned counsel on this point, we have kept the statement of the witness out of consideration.

9. Only Jagdev, Noor Akbar and Mammi appellants caused injuries to the to deceased and they have been convicted under section 302/34, P. P. C. Other appellants were charged for abetment under section 302/149, P. P. C., but the learned trial Judge acquitted them of that charge because, as he put it, "that would be stretching the matter to far." The view adopted by the learned trial Judge in this behalf is in accord with the safe dispensation of criminal justice. We, therefore, uphold the same.

10. The evidence against Jagdev, Noor Akbar and Mammi appellants, in so far as the actual murder of the to deceased is concerned, is overwhelming. It is the prosecution case that after the three culprits took the to deceased from the second graveyard, so many search (wahr) parties tried to find out the deceased and/or these appellants. The total number of persons of the wahr party, of which Amir P. W. Was a. Member, was about 40/50 and all of them were scattered (cross- examination of Amir P. W.). Another witness has given the number a little less. But due to the fact that all the parties were not going together, this discrepancy is immaterial. It is in cross examination of Sadiq P. W. That the wahr party, in' which he was included, had at least 10 horses. It is also in evidence that some members of these wahr parties were carrying firearms. Muhammad Yousaf, D. S. P., stated in cross-examination that there were many persons going in pursuit of the accused and that he also saw some trackers. According to him, some of these persons were on horses. Muhammad, Ali Shah P. W. Stated that the members of the wahr party had blocked all the paths to which the culprits could possibly take the deceased. If one imagines the picture that develops from all the circum--stances disclosed in the evidence of the search witnesses, it appears to have been a big effort. It is normal to assume that these people, while going about in search of the deceased, about whom the imminent danger was that they might be killed, must have been raising alarms, warnings and kooks (about in the local dialect). This supposition has the support of, at least, one witness, i. e., Sadiq P. W. (in cross-examination) who stated that his wahr party "went on raising noise and enquiring about the deceased". It is due to all these reason and effective, timely and keen search and pursuit that the culprits were ultimately cornered; though the search parties could not save the lives of the to deceased. After carefully considering the statements of the witnesses, who saw the three appellants taking away the deceased or who had one or more encounters with them and also those of the eye-witnesses; we are satisfied that it was a hot pursuit by persons who were interested in the deceased in order to save them, by the police with a view to saving to lives and also apprehending the culprits, and by independent persons who on such occasions do help the victims. Two of the appellants, i. e. Jadgev and Noor Akbar were arrested with their respective weapons soon after they has fired shots at the to deceased. There is overwhelming evidence to support the fact that they were arrested from the dhari of Shamman P.

75. W. The entire res gestae from the second graveyard up to the arrest of the to culprits in the dhari of Shamman, is supported by independent witnesses in addition to the interested witnesses. The considerations which weighed with us for riot discarding the statements of the interested witnesses in respect of the incident of abduction, apply also to the interested witnesses in respect of the subsequent events. Moreover, their statements are fully supported by disinterested witnesses who provide circums antial and direct evidence. We are of the view that the police officials in this case are also independent witnesses. They had no grievance against Jagdev and his party. Rather the police was prosecuting the complainant- party for the murder of the son of Jagdev and the case was pending during the days of occurrence. A high responsible officer of toe rank of D. S. P. Himself was the member of the search party which ultimately interested the to culprits almost red-handed.

76. Learned counsel for these appellants was unable to point out anything substantial to show that they had not killed the to deceased ill the manner alleged by the prosecution. His stress a throughout has been on the fact that assumed that they commit the murder, there was no proof of the;' having as put it, a `primary intention' to do so. This aspect of the will be discussed later. On the factual side, we are that Jagdev and Noor Akbar and Mammi appellants have correctly identified by the witnesses as the culprits who the deceased. In this respect, certain other circumstances also be noticed.

(i) Only to of the eye-witnesses are interested while the third one, i. e. Thiraj P. W. Appears to be a neutral witness. He admitted that his forefathers has been cultivating toe land of Jagdev, but he denied the suggestion that due to lad reforms there was any dispute over the possession of that land. He claimed that even during the days of occurrence, he cultivated one kills of land of Jagdev as tenant near the graveyard, and emphatically stated that he could produce a copy of Khasra Girdawari if so required. He admitted that he is tenant on a land owned by S/10 persons and that Malik Khan deceased "may be as one of the owners of that land".

(ii) None of the witnesses is shown to have any interest against Mammi appellant. He has been named by all the three eyewitnesses and also ' by the other vajtaker search witnesses. The fact that he was not arrested at the spot does not make any difference because his escape has been sufficiently explained: His bare statement 'at the trial that he was reported against by the son of Jagdev therefore it should be presumed that he was not involved in the to murders, has neither any support nor can be accepted as sufficient to rebut the entire .Prosecution case against him. He absconded for about four months without any reasonable explanation. Najabat and Sanatta whom We have believed in respect of the first incident, also named Mammi, Noor and Jadgev appellants as the culprits who took away the deceased from the second graveyard. The evidence against these appellants is overwhelming: (i.e) Jagdev and Noor Akbar appellants were found try have been injured and the D. S.. P. Prepared their injury statements. Though a doctor did examine their injuries but he was not examined as a witness. The learned trial Judge discarded this item of evidence on the technical ground that the doctor had not been examined. The presence of injuries of whatever type or nature, unless explained-by the person con--cerned, is by itself a circumstance which could be taken against.

77. The appellants. The details as to what were the dimensions of the injuries including as to what weapon may have been used, become relevant only if the accused person gives an explanation in that behalf. Both these appellants denied that they had any injury. We, however, do not accept their bare denial. There is no reason to disbelieve the D. S. P., who stated that the to appellants had injuries and that ha had prepared the to injury statements and further that for that reason he had got them medically examined. This is sufficient evidence to ho that. The appellants did bear some injuries at the the the were arrested, which remained unexplained. This circumstance also is a supporting evidence against them.

(iv) It is true that clear and convincing evidence about all the links connecting the, crime empties with the weapons of offence recovered from the appellants has not been produced and we do not differ with the learned trial Judge on this score. Be that as it may, the circumstance that soon after the murders, Jadgev and Noor Akbar who were arrested as a result of hot pursuit, were found in possession of to weapons of offence which could have caused the injuries on the persons of the deceased is, by itself, a' corroboratory circumstance. Similarly, the recovery of a rifle along with some cartridges from Mammi, appellant, in so far as it goes, can be considered as a circumstance against him because. He was also alleged to have caused injuries to Malik Khan deceased with a similar weapon.

(v) The circumstances that Jagdev appellant had refused to produce some witnesses before the committing Magistrate in the case relating to the murder of his son with the claim that he did not expect justice from law Courts; and that he would himself take revenge; and the further circumstance that in the second graveyard in the presence of so many persons he offered fatiha at the grave of his son and while addressing his son's soul stated that his to murderers would be done away with, as an at of revenge; together with the circumstance that Noor Akbar and Mammi appellants remained with and acted in concert with Jagdev appellant in fulfilling the aforementioned desire; are such that they cannot be ignored while considering the question whether or not these appellants committed the murder of the to deceased.

78. Having considered every aspect of the evidence produced by the prosecution and also the statements made by the appellants, we are satisfied that the prosecution has been able to prove beyond any doubt whatsoever that these three appellants, namely, Jagdev, Noor Akbar and Mammi, murdered Sher and Malik Khan deceased at the the, place and in the manner alleged by the prosecution.

11. Next is the question as to what offences the appellants have committed. There is no scope for any argument in so far as the offences committed by Jagdev, Noor Akbar and Mammi appellants are concerned. They have been rightly convicted under section 302/34, P, P. C. Ch. Nazir Ahmad Khan tried to argue that it was not the `primary intention' of the appellants to murder the to deceased and it was only when the latter tried to escape that they were killed. Though the case of the appellants "is not, in any way, advanced so far as the offence of murder is concerned, yet we do not think there is any force in the contention even on the factual plan. We have believed the statements of Najabat and Sapatta P. Ws. It was in their presence that Jagdev appellant had announced that the to victims were going to be killed. As to why they did not commit the murder in the to graveyards or soon after the departure there from, depends upon the design of theaforesaid three appellants and their mental attitude. It is the evidence that near about the place where they were arrested, there are clumps of trees known as zakheera (a jungle). It is also in evidence that there is a canal nearby. It is not unlikely that the plan might have been to commit the murders under the cover of the zakheera and then to dispose of the dead bodies in the canal. In any case, it was a hot pursuit which frustrated the design of the culprits and when the victims, on having seen some possibility of help, tied to escape, the culprits there and then decided not to wait any more and accomplished the object. The location of the injuries and the description of the incident given by the eye-witnesses is such that the shots were fired with no other intention but to kill. We, therefore uphold the finding by the learned trial Judge that these three appellants, i. e. Jagdev, Noor Akbar and Marrmi, are guilty under section 302/34, P. P. C., on to counts.

79. All the appellants have been convicted under section 148, P. P. C. This conviction has not been seriously challenged. In fact, the learned counsel for the appellants (other than Zulfiqar son of Ahmad and Muzaffar Chadhars) at one stage argued that, if at all, any offence was committed by the appellants, it was under sections 148 and 342; P. P. C. We are satisfied that the conviction under section 148, P. P. C., of all the appellants is fully justified.

80. The question of conviction under section 364/149, P. P. C. Was the subject of lengthy arguments and has also, considerably engaged our attention. The main argument of Ch. Nazir Ahmad Khan was that the simple fact that all the appellants were together at the the of the abduction and the fact that they did abduct the to deceased, do not necessarily mean that the abduction was in order to murder them. In support of this argument, he pointed out that 12 appellants (other than Jagdev, Noor Akbar and Mammi) did not accompany the main culprits after the second graveyard and that in any case when Jagdev appellant declared his intention to kill the to deceased in the second graveyard, the remaining appellants separated there and then. Learned counsel claimed that it should be presumed that their separation was on account of their disapproval of the design of Jagdev appellant. Dr. Tassaddaque Hussain, learned counsel for Zulfiqar and Muzaffar (Chadhars) further contended that these to appellants had separated even before the party reached the second graveyard; therefore, according to him, their case is on stronger footing. When asked as to what could be the object and purpose of this abduction, Ch. Nazir Ahmad Khan tried to suggest that it could only be with a view to put pressure on Malik Khan deceased not to depose against the party of Jagdev in the cross-case (under section 307, P. P. C.) then pending before the Magistrate.

81. It is an established fact that the object of the appellants, who constituted the unlawful assembly, was not only to take revenge for the murder of Anwar son of Jagdev appellant, but also the satisfaction of their ego by killing the adversaries. This must have been triggered to extensive proportions by long-standing enmity' Such facts cannot be ignored while considering the quest-on the object of the unlawful assembly. Most of the appellants are closely related to Jagdev appellant who, as already noted, had the declared object of killing the to deceased. The four appellants who are not related, if they went fully armed to help Jagdev and his relations as his supports and party men, must have known what was the object of the assembly. It is in the statements of Niajabat and Sanatta P. Ws. That all the appellants excepting the to Chadhars, went towards Khanda Kot (together) with the to accused, even after the declaration by Jagdev in the second graveyard. Not only this, the way in which the bus was encircled and the manner in which the deceased were forcibly taken out of the .Bus and the by-slanders were not permitted to help the victim, is another pointer towards the sinister object of the unlawful assembly. The fact that three unidentified persons were made to stand at a place nearby with six mares whose services were utilised by all the appellants, further shows that the deceased were, to be talon away to a long distance which, in the circumstances could not be with any other purpose than killing them. Both the Chadhar-- appellants did go with the entire party beyond this stage. In their presence, the to deceased were made to sit on the mares in front of Jagdev and Noor Akbar appellants. They had the same, rather common, knowledge as that of Jagdev and others. It is not in evidence that as soon as Jagdev openly declared his intention to kill the victims, the other set of appellants either resented this design of Jagdev or that at that very moment they separated. It is after that, that Najabat and Sanatta P. Ws. Begged all the appellants then present in the graveyard to spare the lives of the victims. But both the witnesses are consistent on the point that "the accused told us that we had no business. They told us to go away". At this stage, all the appellants excepting the to Chadhars were present. Thereafter, the to sets of appellants separated; but when the to deceased were being taken away by the three appellants on mares, the other set of appellants must have known, keeping in view the antecedents of the entire occurrence and the fact that the aforesaid three appellants were armed with deadly weapons, that the victims were being taken away with the sole object of being killed. And in any case giving the maximum benefit of all possibilities to-them (the 12 appellants), they must have at least known that the victims "may be so disposed of as to be put in danger of being murdered". They were, in fact, in the hands of their deadly enemies and any reasonable person would have immediately known that they were in danger of being murdered.

82. Giving them the benefit only of this alternative pos--sibility, we hold that the case of the appellants other than Jagdev, Noor Akbar and Mammi appellants, falls, under the second part of section 364 P. P. C., which makes abduction punishable, if it is "in order that the victim may be so disposed of as to be put in danger of being murdered. The first at of section 364, P. P. C., deals with abduction "in order that the victim may be murdered". That part undoubtedly applies to' Jagdev, Noor Akbar and Mammi appellants. We, therefore, hold that the last mentioned three appellants' are guilty under the first part of section 364, P. P. C., and have been rightly convicted under section 364/109 and that the case of the remaining appellants falls under the second part of section 364 and they have also been rightly convicted under section 364,. P. P C.

83. Dr. Tassaddaque Hussain also contended that if the victims an abduction covered by section 364, P. P. C., are in fact murdered, then section 364 does not apply. In support of this contention, he cited Upendra Nath Ghose v. Emperor (AIR 1940 Cal. 561) and Mazharul Hague v. Crown (PLD 1950 Dacca 4). We do not agree with the general proposition canvassed by the learned counsel. It all depends upon the circumstances of each case as to whether or not after the proof of murder, section 364, P. P. C., applied. The facts in Ahmad and others v. Emperor (AIR 1933 Lah. 1035), are almost similar as are in the present case. It was held by Cold-stream and Abdul Qadir, JJ., that in spite of the finding that the murder had, in fact, been committed, the accused were liable to be convicted under section 364, Penal Code. The question was considered in detail by their Lordships S. M. Murshed and A. S. Choudhary, JJ., in Nur Muhammad and another v. The State (PLD 1964 Dacca 697). While distinguishing the case of Sher Ali v. The State (PLD 1958 Dacca 499), their Lordships observed as follows :-- "That case cannot, however, be treated as an authority for a wide and general proposition that whenever abduction is followed by murder no charge under section 364 of the Penal Code can be framed against the accused and that the charge must, of necessity, be one under section 302/109 of the Penal Code. It is true that there can be cases where, in the event of a person being abducted and subsequently found to be dead, the offence committed will come within the mischief of sec-- tion 302/109 of the Penal Code. Similarly it may well-be-said that where persons are taken away by force and subsequently found to be murdered, the offence will come more appropriately under section 364 of the Penal Code. In the former case, the proper charge would be under section 302/109 of the Penal Code, whereas in the latter case the proper charge would be under section 364 of the Penal Code. Each case must be tried and decided on its own facts and circumstances.

84. The proximity of the between the abduction. And the killing as also the. Proximity of place where the murder and the abduction have taken place, are important factors in determining the question whether the offence falls within the mischief of section 302/109 or of sec--tion 364 of the Code. No fixed yardstick can be forged which right be of universal application."

85. We agree with the above observations. In the circumstances of this case, we are of the opinion that the safe course adopted by the learned trial Judge in acquitting one set of 12 appellants of charge tinder section 302,1109, P. P. C., and convicting their under section 364/149, P. P. C., is not only legal but also proper. The convic--tion of the remaining three appellants, i.e. Jagdev, Noor Akbar and Mammi appellants under section 364/109 also, in the circumstances of the case, cannot be considered to be illegal. We, therefore, repel the contention of the learned counsel.

86. Ch. Nazir Ahmad Khan also raised a legal contention in respect of application of section 364, P. P. C.

87. According to him, it is necessary for the prosecution to prove by evidence, it the accused had "at the the of abduction the intention that the victim be murdered or be so disposed of as to be put danger of being murdered. He further stressed that wincing proof of "pre-conceived plan" for committing murder necessary for a conviction under section 364, P. P. C. He cited Goloke Behari Takal and others v. Emperor (AIR 1938 Cal. 51) and the case Upendra Nath Ghose already referred to above. The observa--tions made in these cases proceed on the basis of the peculiar facts involved therein which are entirely different from those of present case. Section 364, P. P. C. Reads as following:- "364. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with transportation for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

88. The expressions used in this section "in order that such person may be" are to be understood in their ordinary simple sense. It needs to be mentioned that the Legislature particulary avoided the of the word "intention" in this section and left the expression order" undefined. Therefore it will not be legitimate to read all the technical connotations of the word "intention" in expression "in order".

89. Intention in our view has, by passage of the and precedent, required a different meaning front object". The expression "in order" is more in accord with meaning of the word "object" than with intention. The use of the expression "may be" in section 364, P. P. C., in this context becomes very significant. When read together, both the expressions "in order" and "may be" convey also the meaning that even if the culprit had the knowledge of the likelihood of the victim being murdered, the offence would fall under sec--tion 364, P. P. C. This, however, does not mean that one who intends to commit murder would riot be liable. What we have to emphasise is that the expression "in order" is a want and would include the intention to do a certain the object to do that thing and the knowledge that it old be likely to be done. This interpretation of the to Sessions used in section 364, P. P. C. Finds support directly from the to illustrations to the provision, in illustration (a), intention and knowledge of the likelihood, lave both been include in the expression 'in order" and in illustration (h) expression "in order" has itself teen repeated. It is clear in the illustration (b) that the words in order" were used convey the meaning with the object of" We are of the view that it will be in violation .Of the intention underlying, and the language used in section 364, P. P. C., to give a restricted interpretation of the expression "in order" and to hold that it only means intention. If their "Lordships" of the Calcutta High Court in the to cases cited by the learned counsel and noted above, by the use of the expressions "intention" "pre-conceived plan" wanted to restrict the meaning of the expressions "in order and "may be" used in section 364, P. P. C., we with respect would disagree with this interpretation. As explained above, there is no justification for such a restricted interpretation. We have already held, after having noticed all the relevant circumstances, that Jagdev, Noor Akbar and Mammi appellants not only had a clear object of murdering the to deceased but also intended to do so. In respect of the remaining appellants, the least that can be said is that they abducted the to deceased with the object that they may be so disposed of as to be put in danger of being murdered. They may well have intended to murder them. But they definitely knew that the to deceased were likely to be murdered. Therefore, the contention raised by the learned counsel has no force and is repelled.

12. The last question to be examined is that of sentence. Learned counsel for Jadgev, Noor Akbar and Mammi appellants argued that they, as he put it, did not have the `primary intention' of committing the to murders and it was only at the spur of the moment on something done by the to deceased that they acted in the manner alleged by the prosecution. We have already discussed the question of the object of this unlawful assembly at some length. We do not agree with the learned counsel in this behalf. It may be correct that but for the attempt of the to victims to escape, the aforesaid ` three appellants might have allowed them a few moments of life, i. e. Till they were able to accomplish the object according to their planned design. But the at of the-victims in trying to save their lives cannot at all be considered as something wrong. The crime committed by these appellants is, in our view, heinous. There are no extenuating circumstances and they do not deserve any leniency. We, therefore, maintain the sentence of death awarded to each one of them.

90. The sentence under section 148, P. P. C. Is also appropriate and the same is maintained.

91. The sentence of Jagdev, Noor Akbar and Mammi appellants under section 364/109, P. P. C., is not excessive and the same is, therefore, maintained.

92. The sentence awarded to the remaining twelve appellants, i.e., those other than Jagdev, Noor Akbar and Mammi, in view of our finding that their case can possibly fall under the second part of section 364,. P. P. C., deserves some consideration. The learned trial Judge awarded the sentence of transportation for life and a fine of Rs. 1,000 to each one of them with, of course, the finding that their case fell under the first part of section 364, P. P. C. In our view, the first part relates to an aggravated crime as compared to the second part which punishes the abduction in order that the victim may be so disposed of as to be put in danger of being murdered. We, of the case of these appellants falling under: the second part of section 364, P. P. C., the are entitled to reduction in sentence In our view, a sentence of seven years R. I. Will meet the ends of justice. Except that of Maqsood, their (i. e. Afzal, Zulfiqar son of Sohna, Gulzar, Shamas, Riaz, Ahmad, Mumtaz, Sohna, Salli, Zulfiqar son of Ahmad and Muzaffar) sentence under section 364/149, P. P. C., is, therefore, modified and substituted by seven years' R. I. Each. There is no need for a sentence of fine in their case. The same is set aside.

93. Maqsood gave his age as 15 years at the trial which would mean that he was 12 years of age at the the of occurrence. The learned trial Judge, however, did not accept this to be the correct position.

94. According to his estimate, Maqsood was 18 years of age at the trial which would mean that at the the of occurrence his age would be about 15 years. We have no doubt in our mind about his participation in the crime. He is a young lad and there is nothing unlikely in his joining the other culprit for avenging the murder of his elder brother. But in doing so, he might have been influenced by what his elders were doing. Therefore, due to his tender age we are inclined to award a lesser sentence of four years' R. I. To him under section 364/149, P. P. C: His sentence of fine also is set aside.

95. The sentences of imprisonment are to run concurrently.

96. Learned counsel had contended that Sohna appellant was 80 years of age and was not likely to participate in the occurrence and, in any case, he deserved a lesser sentence. There is no factual basis for this argument. No doubt Sohna appellant gave his age before the committing Magistrate as 80 years and at the trial as 90 years. But, according to the observation of the learned trial Judge (that he was 60 years of age) it means that at the the of occurrence he was about 57 years of age.

97. The fact that he was of about that age (57 years) is no ground to suppose that he would not have participated, and it is no ground for the award of a lessor sentence either. Therefore, we find no force in the contention of the learned counsel.

13. The result is that except for the modification in the sentence of the twelve appellants other than Jagdev, Noor Akbar and Mammi, under section 364/149, P. P. C., the to appeals preferred by all the appellants are dismissed. The sentences of death awarded to Jagdev, Noor Akbar and Mammi appellants are confirmed.