1. SHAH NAWAZ KHAN, J.-Gul Jan and Rehmatullah Jan sons of Ajam Shah, residents of village Shinwa Gudi Khel, Police Station Thatti Nasaratti, Tehsil Karak of Kohat District and two others, namely, Shah Sarwar and Surat Meen were tried for offences under sections 302/34 P. P. C and 307/34 P. P. C for causing the murder of Hukam Din in furtherance of their common intention and also for making an attempt on the life of P. W. Noor Mali Khan by fire-arms and injuring him and also for firing at Sailab Din, Sardar Khan and Gul Janan, P. Ws. Ineffectively on 16-2-1976, in the limits of Algadah Shinwa Dagar-sar. Police Station Thatti Nasarati. All the accused denied the charge and claimed trial in the Court of Sessions Judge, Kohat.
2. F I R was lodged on 16-2-1976 at 9-30 p.m. At Police Station, Thatti Nasarati by P. W. Sailab Din son of Hukam Din, deceased aged about 18/19 years. He alleged that earlier at morning time he, Hukam Din deceased, Noor Mali Khan, injured person, Gul Janan and Sardar Khan had gone to Mauza Hindki Kalan in the Marwat area of district Bannu to see a Kahadi game. At the close of the play, at Peshi Wela time they left that place and started towards Algadah Shinwa near Dagar Sar. Hukam Din and Nut Mali Khan were going ahead of them, when all of a sudden from the side of Algadah Gul Jan, Rehmatullah Jan, sons of Ajam Shah and Surat Meen residents of Badragh-cum-Shinwa Gudi Khel armed with Topaks appeared. Gul Jan shouted to them and with that Gul Jan fired with a Topak as' a result thereof Hukam Din was hit and he fell down on the ground. The second shot was fired by Rehmatullah Jan with which Nur Mali Khan was hit and he fell down. Soon thereafter all the four accused opened further fires at them, but the rest escaped unhurt and the assailants ran away. On going, near Hukam Din and Nur Mali Khan they found Hukam Din dead and Nur Mali Khan was lying in an injured condition. The entire occurrence was witnessed by him, Gul Janan, Sardar Khan and Nur Mali Khan. The motive for the offence as given out by Sailab Din and his report was that about 3 months back Barat Bibi daughter of Gul Jan accused had come after him it his house, but his father (Hukam Din) returned Barat Bibi to her parents' house, whereafter the matter was compromised between the two families.
3. The dead body of Hukam Din and Nur Mali Khan in injured condition had also been taken to the Police Station. After recording the F. I. R, Exh. P. A. Bashir Khan, S: 1. (P. W. 12) prepared the injury statement Exh. P. F. Of P. W. Nur Mali Khan and Exh. P. F/1 deceased Hukam Din. He also prepared the inquest report of Hukam Din deceased, which is Exh. P. F/2. He then sent the dead body of Hukam Din to the mortuary for post-mortem examination. He also sent P. W. Nur Mali Khan to Kohat for medical treatment. He then left for the spot. Reaching there at 6-00 a.m. On 17-2-1976, he prepared the site plan Exh. P.F/3. At point No. 10 he recovered 7 big pellets. In the course of investigation while tracing out the accused he discovered that Shah Sarwar, one of the accused persons, was lying injured in the house of Gul Hayat Khan resident of village Shah Salim Banda, on an information, received by him. He then, went to Shah Salim Banda where he found Shah Sawar lying injured. Shah Sawar lodged a cross report on 17-2-1976 at about 3-30 p.m., which was recorded by the said Sub- Inspector and it is Exh. D. A/3, on the file.
4. Both the cross cases were tried together and the learned Sessions Judge of Kohat at the close of the trial came to the conclusion that venue of both the cases was admittedly the same. The parties on both sides had undoubtedly inimical background prior to the occurrence, The circumstances of the case and the factum of the fire-arm injuries received by Shah Sawar accused (complainant in the cross case) about which P. W. Sailab Din, Gul Janan and Nur Mali Khan are silent and the recording of cross report against which P. Ws. Sailab Din, Gul Janan and others, at the instance of accused. Shah Sawar, in which, accused Rehmatullah Jan is also mentioned as an eye-witness would show that there had been a wanton fight and indiscriminate use of fire-arms on both sides at the fateful hour. The learned trial Judge, however, expressed his doubt, as to which party had waylaid the other and who had acted in aggression. He was therefore of the view that no question of vicarious liability shall arise and each one of the accused shall be held guilty of his own individual act.
5. According to the eye-witnesses of the occurrence, accused Gul Jan had fired a fatal fire shot, as a result whereof Hukam Din died. P. W. Nur Mali Khan received fire-arm injuries at the hands of accused Rehmat Ullah Jan. There was no cogent evidence against Shah Sawar and Surat Meen.
6. The learned Sessions Judge, therefore, found them no guilty and acquitted them. As it was a sudden fight Gul Jan accused was convicted under section 302, P. P. C. And sentenced to undergo life imprisonment while Rehamatullah Jan was held guilty of offence under section 307, P. P. C. For making attempt at the life ofW. Nur Mali Khan and he was sentenced to undergo R. I. For seven years. Gul Jan accused was also sentenced to pay a fine of Rs. 5,000, which amount was payable to the heirs of Hukam Din deceased by way of compensation sunder section 544-A, Cr. P. C. And Rebmatullah Jan was also sentenced to pay a fine of Rs. 3,000, which, was payable to Nur Mali Khan P. W. By way of compensation.
7. In the cross case conviction was also recorded, but that case is not before us.
8. From the side of the prosecution the following witnesses were examined. P. W. I Gul Master Jan, F. C.
9. He could not execute the warrants of arrest under section 204, Cr. P. C. On Surat Meen and Gul Jan accused, who had absconded and were not traceable after the occurrence. He was also entrusted with the proclamation, but with no success. Hassan Gul, A. S. I. (P. W. 2) is a marginal witness of recovery memo. Exh. P. B. He arrested accused Rehmatullah Jan on 19-2-1976. Jamal Khan (P. W. 3) is a marginal witness p)' recovery memo. Exh. P. B./1. In his presence 8 empties were recovered from the scene of occurrence. From point 10, the place shown by the S. I. In the site plan, nothing was recovered by the Investigating Officer in his presence. According to him 4 empties were of '12 bore shot-gun and 4 were of rifle. The empties were found in the Algadah, which is sandy. Accord--ing to Akramullah, A. S. I. (P. W. 4) Gul Jan accused was arrested on 5-11-1976. Zamurad Khan, S. I. (P. W.
10. 5) had submitted the complete challan against the accused under section 302, Cr. P. C. He had initiated proceedings under section 204 and sections 87/88, Cr. P. C. He also submitted a supplementary challan against accused Gut Jan. Sailab Din (P. W. 6), Gul Janan (P. W. 7) and Nur Mali Khan (P. W. 11) are the eye-witnesses of the occurrence. Nur Mali Khan had received injuries at the spot at the time of occurrence, and Sailab Din, who lodged the report Exh. P. A. At Police Station, Thatti Nasrati, had been named as accused person in the cross case and his presence on the spot is, therefore, rather admitted. Aslam Khan (P. W. 8) had identified the dead body of Hukam Din at the mortuary at the time of his post-mortem examination and Guldad Khan (P. W. 10), F. C. Had accompanied by dead body of Hukam Din from police station to the mortuary. According to him nobody had tampered with it, as long as, it remained in his custody. Bashir Khan, S. I. (P. W. 12) is the main Investigation Ofcer, who prepared the site plan on the spot and he approved all the notes given therein. Yaseen Khan A. S.I. (P. W. 13) had arrested Surat Meen accused.
11. The three eye-witnesses are consistent in their allegations and all of them have stated that Gul Jan accused had fired at Hukam Din as a result whereof he was killed and that Rehmatullah Jan had fired at Mali Khan as a result whereof he was injured.
12. On appeal, the Peshawar High Court declined to rely on the testimony of the interested and inimical witnesses and they thought that the conviction and sentence of the accused appellants could not be sustained merely on the question of abscondence for sometime. Their conviction was therefore set aside and they were acquitted.
13. Sailab Din son of the deceased moved a petition under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973, for leave to appeal against the said order of the Peshawar High Court dated 15-10-1938 in Criminal Appeal No. 184 of 1977 and Criminal Revision No. 2 of 1978. Leave to appeal was granted by this Court on 21-10-1979 on the ground that them existed enmity between the parties and it had a long history. The immediate motive was the elopement of Mst.
14. Barat Bibi and there was no dispute about the venue and the involvement of the parties, which bad been fully established from the report of Shah Sawar in the cross-case and of Sailab Din in the present case. There were injuries on both sides and the sole question would be as to who caused the death of Hukam Din and who effectively fired at Nur Mali Khan. The delay in lodging the report was not considered material. Further that the occurrence took place in the Algadah where the complainant party was proceeding and one view was that the assailants had appeared on the bank of it, which must be at a higher level giving the direction, which was inferred from the injuries.
15. There was three eye-witnesses and one of them was injured in that very occurrence. It was, therefore considered that the question of the guilt or otherwise of the accused had not received the full attention of the High Court, which should have been given to it, on the facts proved on the record.
16. We have beard the arguments addressed before us by the learned counsel for the parties.
17. The enmity between the parties is fully proved on the record. The three eye-witnesses have candidly charged Gul Jan for effectively firing at Hukam Din with his rifle as a result whereof the latter fell down and died. They have consistently charged Rehmatullah Jan for firing at Nur Mali Khan and injuring him seriously. Nur Mali Khan (P. W. 11) has also appeared in the witness box and he has testified this fact. Four empties, three of '303 bore and one of 30.6 bore, were recovered from the place from which these two accused respondents had opened fire. Bashir Khan S. I. (P. W. 12), who prepared the site plan on the spot has stated that the houses of the com--plainant party are situated to the north of the Algadah while those of the accused are to the south of Algadah and point No. 1 is nearer the southern bank of the Algadah, as compared to its northern bank. He further stated that Algadah is plain and on point No. 3, there is a small mount of sand. He stated that the venue of occurrence in both the cases was the same. From point No. 3 he recovered four empties of the crime which are Exh. P/3, one empty of '12 bore Exh. P/4 from point No. 4 and 7 big pellets Exh.
18. P/5 and cardboard Exh. P/6, from point No. 10.
19. Out of the three eye-witnesses Nur Mali Khan is not related to any one of the parties. He had gone to see the Kabadi match in village Mindki Kili with Hukam Din deceased, Gul Janan and Sailab Din P.
20. Ws. He specifically charged accused Gul Jan for firing at Hukam Din and injuring him and he also saw Rehmatullah Jan firing at him and injuring him.
21. The learned High Court has given great significance to the delay in lodg--ing the report, but it was forgotten that Nur Mali Khan, who had been taken to the Police Station was in an injured condition and there should have been no delay for rendering to him proper medical care as soon as possible. The l delay of about 6/ 7 hours was explainable, because it is not a regular bus route and there is no Pacca road. The bus comes at its own timing and it is obvious that in such a critical situation and with such an enmity in the back, ground, no risk could be taken to take the deceased or the injured person to the police station on foot which is at a distance of 14/15 miles from the scene of occurrence. It is obvious that the bus could not pass through the Algadah and definitely the dead body of the deceased or of the injured person should have been taken to the house first situated close by and there from in the bus to the Police Station, was not exceptional.
22. Post-mortem examination on the dead body of Hukam Din was conducted by Dr. Zaffar Latif (P. W.
23. 9) on 17-2-1976 at 9-00 a.m. He found one fire--arm inlet wound on back of left ear; size 1/4', one outlet injury of the same below the chin, size J' and a firearm inlet wound on left side cheek size 1/4".
24. In cross-examination, he stated that inlet injury No. 1 in case of the deceased was from back to front and direction of injury No. 1 was from above downward. Injury No. 2 entrance wound was caused from front and this injury was also from above downward. According to the site plan the complainant party was in the bed of the Algadah and they were fired at from point No. 3. S. I. Bashir Khan (P. W. 12) the author of the site plan has stated that at point No. 3, there is a small mount of sand which could give shelter to a lying man. It is the same place wherefrom the empties of the riflles had been recovered and at which place Gul Jan and Rehmatullah Jan were shown to be present at the time of occurrence. At point No. 4 Shah Sawar is mentioned to be present and on this point also there was a small mount of sand. The eye-witnesses were at point Nos. 7 to 9. Therefore, if the accused had been lying, having taken Morcha, at point No. 3 and they fired at Hukam Din deceased, and P. W. Nur Mali Khan, who were traveling at a lower level of the ground down in the bed of Algadah, then the injuries found on the deceased and P. W. Nur Mali Khan caused from a place at a higher level would have been natural. Moreover, when the firing started the other witnesses, must have tried to take shelter and thus run away. They could not therefore be specific about the position of the victims, as they were, after the first shots were fired at them. Nur Mali Khan (P. W. 111 also suffered one entrance wound on face caused with fire-arm, size 1/4' x 1/4" and an exit would 1' below and behind the left ear pina; size ----- x -----. This injury was also found to be grievous.
25. The learned Sessions Judge had concluded that there was wanton fight and there was indiscriminate use of fire-arms on both sides at the fateful hour. The High Court has not disagreed so far as the fight is concerned, but the witnesses produced by the prosecution were not relied upon and the delay in lodging the report was given exception.
26. P. W. 7 Gul Janan is closely related to Shah Sawar accused. His real sister is married to accused Gul Jan. Shah Sawar accused is son of his real sister. Being so closely related, he could not charge Gul Jan or Rehmat--ullah Jan falsely for the murder of Hukam Din or for making attempt on the life of Nur Mali Khan. Moreover, Sailab Din (P. W. 6) in his cross-examina--tion stated that the place wherefrom accused had fired is 4/5 feet higher from the other level of Algadah. This supports the medical evidence because accordingly to him the accused had fired from that higher place. In the same statement he further said, that, "accused Gul Jan and Rehmatullah were on the raised place, while accused Shah Sawar was present at a distance of 4/5 feet from them and Surat Meen was behind them at a distance of 2/3 feet. This means that the assailants were at the time of occurrence at a place higher in level than that place at which the complainant party was.
27. Therefore, the injuries received by Hukam Din deceased and Nor Mali Khan P. W. Were in no way in contradiction of the medical evidence.
28. What actually happened clearly signifies a calculated move and a deter--mination on the part of the respondents. The prosecution evidence is con--sistent throughout as to how the trouble started. Certain propositions bearing on the question are well settled. There was clear and outstanding enmity between the parties and the witnesses are consistent that the accused party struck first. It was neither spontaneous nor committed in the heat of passion upon a sudden quarrel. The intention to kill or injuries was there. The eye-witnesses are definite that Gul Jan fired at Hukam Din and Rehmat--ullah Jan fired at Nur Mali Khan. Both of them received rifle injuries and empties of .303 bore had been found at the place wherefrom these two accused persons fired at the deceased and Nur Mali Khan. Hukam Din died of bullet injury and Nur Mali Khan also sustained a bullet injury. In the instant case it has been held by the Sessions Judge and has also been con-- firmed by the High Court that there was a free fight. Judging from their acts and conduct it could safely be said that each party anticipated resistance from the other and were, therefore, determined to have a trial of strength. From the state of relations between the parties, it was also clear that both the parties were prepared to fight. Having found that there was a mutual fight, the learned Judges of the High Court felt doubts regarding the genesis as well as the manner of the occurrence. They criticized the evidence of the eye--witnesses on the ground of their partnership and their inability to explain the injuries received by Shah Sawar, one of the accused persons. We think it is reasonable to, infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of encounter. Hence in the circum--stances such as those of the present case no question of right of private defence would arise and, the common object stated in the charge having failed, each person will be held responsible for his individual acts.
29. The learned counsel for the respondents places reliance on an authority of the Supreme Court of Pakistan reported as Muhammad v. Ghaus and 4 others (1972 SCMR 264). He submitted that on the principle that when there was fight between two parties and there were two opposite versions, each side claiming other to be aggressor, then the mere fact that the complainant party suffered greater number of injuries would not relieve it of the initial act of aggression. But in the instant case it does not so happen and the principle laid down in this case as also in the case reported as Muhammad Khan v. Dost Muhammad and 17 others (PLD 1975 SC 607) will not be applicable to the facts of the instant case. We are, consequently, of the view that the finding of the High Court appears to be misconceived and in such a case the Supreme Court could have to go by its own judgment
30. We, therefore, accept this appeal, set aside the judgment of the Peshawar High Court dated the 15th October, 1978, and restore and maintain the judgment passed by the Sessions Judge, Kohat on 7-12-1977. The result is that Gul Jan accused who had absconded after the occurrence is found guilty of offence punishable under section 302, P. P. C. And is sentenced to undergo imprisonment for life and to pay Rs. 5,000, to be given to Hukam Din, deceased's heirs by way of compensation under section 544-A, Cr. P. C. Or in default to undergo R. 1 for six months. Accused Rehmatullah Jan is convicted under section 307, P. P. C. For making attempt on the life of Nur Mali Khan. He is sentenced to suffer R. I. For seven years. He shall also pay Rs. 3,000, to P. W. Nur Mali Khan by way of compensation under sec--tion 544-A, Cr. P. C. Or in default to undergo further R. I for six months.
31. The appeal is, accordingly, disposed of.