SAAD SAOOD JAN, J.-The appellant, Muhammad Riaz (aged 26 years), Muhammad Ashfaq (aged 20 years), Hafiz Hamid (aged 20 years) and Mehraj Khalid alias Muhammad Sadiq (aged 20 years) were convicted by an Additional Sessions Judge at Lahore of offences under sections 302 and 324, read with section 34 of the Pakistan Penal Code for causing the death of Ata Muhammad and his son Asghar deceased, and for causing injuries to Arif (P. W. 11), Muhammad Ashraf (P. W. 10) and Muhammad Amin. In respect of each of the two counts under section 302 they were all sentenced to death and asked to pay fines of Rs. 1,000 each; or in default thereof to undergo rigorous imprison--ment for a period of one year. In respect of the offence under section 324 they were sentenced to suffer rigorous imprisonment for a period of one year. Together with them Ismail, father of Riaz and Ashfaq and adopted father of Hafiz Hamid, was also tried on the same charges but he was acquitted by the learned Additional Sessions Judge. The appel--lants have filed a joint appeal against their convictions and sentences and the learned Additional Sessions Judge has also made a reference to this Court for confirmation of the sentences of death imposed upon them. The judgment will dispose of both these matters.
2. Muhammad Ismail as well as the deceased resided in Sirajpura, a locality within the jurisdiction of Police Station Baghbanpura. Their houses were about 50 or 60 yards apart though in different lanes. Accord--ing to the prosecution, on 16th August, 1978 at about 4 or 5 p. m. Arif (P. W. 11), grandson of Ata Muhammad deceased, went to the bazar to make some purchases. He met Ashfaq appellant and apparently had some quarrel with him. Ashfaq abused and slapped him. Arif returned to his house and apprised Ata Muhammad of what had happened. Ata Muhammad deceased went to Muhammad Ismail and lodged a protest. Later, in the same evening, at 8.15 p. m--- Arif (P. W. 11) and Asghar deceased returned to their house in a rickshaw. As they were getting down all the appellants came therer Riaz and Mehraj Khalid were carrying chhuris while Ashfaq and Hafiz Hamid were holding sooas immediately on reaching the spot they attacked Asghar deceased. On hearing the noise Ata Muhammad deceased Ashraf (P. W. 10) and Amin came out of the house to rescue Asghar deceased. They too were attacked by the appellants. From the side of the appellants Ashfaq and Hafiz Hamid were also injured.
3. After the occurrence Asghar and Ata Muhammad deceased to--gether with the members of the complainant party who received injuries during the course of occurrence were taken to the Mayo Hospital in a wagon. Asghar died on the way while Ata Muhammad expired in the hospital on 25th August, 1978 at 1-30 p.m.
4. On learning about the occurrence A. S. I, Khalid Javid (P. W. 8) of Police Station Baghbanpura reached the Mayo Hospital on the same evening. He recorded the statement of Muhammad Naseer (P. W. 9) at 10.45 p. m. On the basis of this statement (Exh. PE) an F. I. R. Was registered at Police Station Baghbanpura at 11.20 p. m. On the same evening.
5. The investigations were mainly carried out by S. I Muhammad ...(P. W. 15). He arrested Riaz, Hafiz Hamid and Mehraj Khalid on 18th August, 1978 and Ashfaq on 11th September, 1978. On 24th August, 1978 Riaz. Hafiz Hamid and Mehraj Khalid helped the Investigating Officer in getting their respective weapons recovered. These weapons were stained with blood. Similarly on 11tb September, 1978 Ashfaq helped the Investigating Officer in getting a sooa recovered from his haveli. All these recoveries were witnessed by Muhammad Tufail (P. W. 7) and one Nazir who was not produced at the trial. The weapons recovered at the instance of the appellants were sent to the Chemical Examiner and Serologist. According to their reports the blood on these weapons was of human origin.
6. The post-mortem examination on the dead body of Asghar de--ceased was performed by Dr. Tahir Anees (P. W. 1). Asghar deceased had four stab and five incised wounds on his body which were located on his chest, back and arms. On dissection he found that peritoneum and left kidney had been cut under one of the stab wounds which was sufficient in the ordinary course of nature to cause death. He opined that the deceased had died within a few minutes after the receipt of the injuries.
7. On arrival in the hospital Ata Muhammad deceased was examin--ed by Dr. Atif Hameed Khan (P.
W. 14). He had two incised wounds on the forehead and abdomen and a contused swelling on the abdomen. After his death Dr. Imtiaz Ahmad Bhatti (P. W. 12) performed autopsy on his body. In his opinion the stab wound on the abdomen which had led to the perforation of the illeum was sufficient in the ordinary course of nature to cause death.
8. Ashraf (P. W. 10) and Amin were examined by Dr. Arif Hameed Khan (P. W. 14). Ashraf (P. W. 10) had an incised wound on the chest. It had been caused by a sharp-edged weapon and was simple in nature. Amin had three lacerated wounds on the face, forehead and abdomen. They were simple in nature and had been inflicted by a blunt weapon.
9. Within a few hours of the occurrence Hafiz Hamid and Ashfaq, appellants, were examined by Dr. Tahir Anees (P. W. 1). Hafiz Hamid had a lacerated wound near the left eye-brew, two punctured wounds on the abdomen and lumbar region, multiple abraided contusion on the back of the chest and two abrasions on the left shoulder and left knee. The punctured wound had been caused by blunt pointed weapon and the other injuries by weapon. Ashfaq had a punctured wound on the right chest. If had been caused by an irregularly pointed snare-edged weapon. There was no corresponding holes In the clothes to the injuries.
10. The appellants pleaded not guilty to the charges against them. Riaz and Mehraj Khalid denied that they had anything to do with the occurrence. Mehraj Khalid further stated that his name was Muhammad Sadiq and not Mehraj Khalid. Hafiz Hamid and Ashfaq admitted their participation in the occurrence. They alleged that Ata Muhammad deceased was a homosexual. On the morning of the occurrence which fell in the month of Ramzan they had admonished him and asked him not to indulge in his nefarious activities during the holy month. He felt insulted and in the evening he together with Asghar deceased, Ashraf (P. W. 10), Arif (P. W. 11) and Amin launched an attack upon them with chhuris and sooas as they were returning from their shop. As it was dark some of the assailants got injured at the hands of their companions. They, that is Hafiz Hamid and Ashfaq, were able to snatch the chhuris from their assailants and in the exercise of the right of self-defence hit back at them. None of the appellants led any evidence in his defence.
11. The case of the prosecution against the appellants rests mainly on the testimony of four eye- witnesses, namely, Muhammad Naseer (P. W. 9), Ashraf (P. W. 10), Arif (P. W. I () and Abdul Hameed (P. W. 13). Two persons, namely, Amin and Mst. Maqsoodan, who were also cited as eye-witnesses in the F.I.R. Were given up as unnecessary. It may be mentioned that Amin was also allegedly injured during the course of occurrence. All the eye-witnesses examined by the prosecution claimed, that they were present at the place of occurrence at the relevant time and had seen the appellants attacking the members of the com--plainant party with chhuris and sooas. It is to be noticed that of these eye-witnesses Ashraf (P. W. 10) and Arif (P. W. 11) bore injuries on their persons soon after the occurrence and the defence did not seriously challenge their presence at the spot at the relevant time.
12. So far as Abdul Hameed (P. W. 13) is concerned we are not sure if he was really present at the spot and had witnessed the occurrence. He was stated by the prosecution to be the rickshaw driver who had brought Asghar deceased and Atif (P. W. 11) to their house just before the occurrence. His name was not given in the F. I. R. Even though he claimed that he lived at a distance of five or six furlongs from the spot, he used to roam in the entire locality and that at least two of the sons of Ata Muhammad deceased knew his name. 1x is also to be noticed that from the statement he made before the police it appears that he had stayed on at the spot till the injured were taken on a wagon to the hospital. Although Muhammad Naseer (P. W. 9) knew the number of the rickshaw of Abdul Hameed (P. W. 13) he did not mention it in the F. I. R. In the circumstances we will keep the testimony of this witness out of consideration.
13. This leaves us with the evidence of the remaining three eye--witnesses, namely, Muhammad Naseer (P. W. 9), Ashraf (P. W. 10) and Arif (P. W. 11). They were closely related to Ata Muhammad and Asghar deceased. Thus, Muhammad Naseer (P. W. 9) was a nephew, Ashraf (P. W. 10) was a son and Arif (P. W. 11) was a grandson of Ata Muhammad deceased. Of these Ashraf (P. W. 10) and Arif (P. W. 11) lived with Ata Muhammad deceased and the occurrence took place just outside their house. They were found to be bearing injuries immedi--ately after the occurrence. As such there can be little doubt with regard to their presence at the spot. Muhammad Naseer (P. W. 9) lived at a distance of one furlong from the house of At Muhammad deceased. He stated that he had come to the house of his uncle after hearing about the quarrel which had earlier taken place between Ashfaq appellant and Arif (P. W. Dl). He also stated that he had reached the house of his uncle at 5.30 p. m. In the month of Ramazan. According to his own version, as given in the F. I. R. The quarrel was not very serious and had come to an end when Ata Muhammad lodged a protest with Ismail.
The actual words used by him were It is somewhat unusual that this witness should stay on in the house of Ata Muhammad deceased for almost three hours when the dispute stood settled. It may also be observed that all the members of the com--plainant party were hurt during the course of occurrence except this witness. There is no explanation why he should have been spared by the assailants. His presence at the spot at the relevant time is, therefore, not entirely free from doubt.
14. From the side of the complainant party two persons were killed and three were hurt. From the side of the appellants two persons were hurt. The injuries received by the members of the complainant party were far more serious than those suffered by the two members of the appellants' party. This indicates numerical equality, if not superiority of the appellants' party at the relevant time and for that reason we are prepared to accept the testimony of Ashraf (P. W. 10) and Arif (P. W. 11) on the point that all the four appellants had taken part in the occurrence. It is to be noticed that prior to the day of occurrence there was no enmity between the parties. In fact they were close neighbours. There was thus hardly any motive on the part of the complainant party to unnecessarily exaggerate the number of those who took part in the attack upon them.
15. Mehraj Khalid appellant produced some documents to sup--port his assertion that his name was Muhammad Sadiq and not Mehraj Khalid. These consisted of his identity card and his certificates of birth and domicile. He also alleged that he had nothing to do with his co--- appellants and that be lived in another loality. It is to be noticed that it is not unusual for a person to have two different names. Admittedly, there was no enmity between him and the eye-witnesses, and there is no reason why they should have chosen to falsely implicate him. It was not his case that there was another person bearing the name Mehraj Khalid son of Faqir Muhammad living in the locality. We are unable to accept his contention that he has wrongly been involved in the case after giving him a different name.
16. The prosecution sought to support the participation of the appellants in the occurrence through the recovery of blood-stained weapons at their instance. 1n this context it examined Muhammad Tufail (P. W. 7) who stated that he was present on the various occasions when the appellants helped the Investigating Officer in getting their respective weapons recovered. It is to be noticed that Muhammad Tufail (P. W. 7) was related though distantly to a nephew of Ata Muhammad deceased. He had been showing extraordinary interest in the case. He reached the spot at 7.00 a. m. On the day following the occurrence. He stayed there till 6.00 p. m. In between he also visited the hospital for fiver hours. He was associated with all the enquiries even though he did not occupy any position of importance in the locality. The recove--ries at the instance of Riaz, Hafiz Hamid and Mehraj Khalid were made about six days after their arrest. Before their arrest the appellants had enough time and opportunity to destroy their weapons. Apart from that as will be seen later in the judgment that the medical evidence did not indicate that any sooas were used by the assailants yet Muhammad Tufail (P. W. 7) and the Investigating Officer would have us believe that the blood- stained sooas were recovered at the instance of two of the appellants. We are, therefore, not prepared to place any reliance upon those recoveries.
17. However that may be, we have already found that on the basis of the ocular testimony we can safely hold that all the appellants did take part in the occurrence. The next question for consideration is whether the attack upon the complainant party took place in the manner alleged by the prosecution. According to the prosecution, as already mentioned, just before the occurrence Asghar deceased and Arif returned to their house on a rickshaw. As they were getting down the appellants came there while armed with chhuris and sooas and launched an attack upon Asghar deceased. There are some good reasons why we cannot accept this version. It is to be noticed that before the occurrence there was no enmity between the parties. The case of the prosecution was that the attack on the complainant party was a sequal to an incident which had taken place a few hours earlier. It was stated that Ashfaq appellant had given a slaps to Arif (P. W. 11) and that Ata Muhammad deceased had lodged a protest with Ismail, father of Ashfaq appellant. But then it was the case of the prosecution itself that with the lodging of the protest (see the F. I. R.). In the circumstances it seems implausible that a few hours later the four appellants should arm themselves with chhuris and hours later the complainant party. If as a result of the above incident any one felt aggrieved it should have been the complainant party and not the appellants. It is also to be noticed that according to the pro--secution on arrival at the spot the immediate target of the appellants was Asghar deceased and not Arif (P. W. 11) even though both had together got down from the rickshaw. Asghar deceased had nothing to do with the earlier incident whereas Arif (P. W. 11) was involved in it. A Admittedly two of the appellants were also injured during the course of the occurrence. The doctor who examined them kept their injuries under observation and the Investigating Officer (P. W. 15) who prepared their injury statements described them to be of a serious nature. The eye--witnesses did not care to explain how those two appellants received their injuries.
18. The ocular testimony is not entirely consistent with the medical evidence. All the eye-witnesses unanimously stated that of the appellants, namely, Ashfaq and Hafiz Hamid, were armed with soon and that had used them in attacking Ata Muhammad deceased and Amin Now according to Dr. Atif Hameed Khan (P. W. 14) who examined At Muhammad deceased on arrival in the hospital and Dr. Imtiaz Ahma Bhatti (P. W. 12) who performed the autopsy on his body, he had received only three injuries during the course of occurrence. Of these two were incised wounds caused by a sharp-edged weapon and the third was a swelling caused by a blunt weapon. A sooa is not a sharp-edged weapon but is a sharp-pointed weapon. In any case, when considering the dimension of the injuries received by him it is clear that they were caused by chhuri and not sooa by sooa blow. Amin who was not pro--duced at the trial had three lacerated wounds on his body and accord--ing to Dr. Atif Hameed Khan (P. W. 14) these had been inflicted by a blunt weapon. It did thus appear that either Ata Muhammad deceased or Amin had been attacked by sooas as alleged by the eye--witnesses. Apparently, the eye-witnesses have given an exaggerated account of the occurrence.
19. This being the state of evidence it is difficult to describe as to which of the two parties was the aggressor. If we go by the probabilities then in view of the incident which took place earlier in the afternoon in which beaten the likelihood of the complainant party being the aggressor is greater.
The possibility cannot be ruled out that the members of the complainant party attacked Ashfaq and Hafiz Hamid appellants to take revenge. As already mentioned both parties lived close to the scene of occurrence. It is not improbable that as the news of the attack upon. Ashfaq and Hafiz Hamid reached the house of the appellants they came out to defend their relatives. As already mentioned both Ashfaq and Hafiz Hamid were found to be bearing serious injuries on their persons.
Therefore, the possibility cannot be ruled out) that the appellants attacked the members of the complainant party in exercise of the right of private defence of person.
20. For the reasons stated above we are unable to support the convictions and sentences of the appellants as recorded by the learned Additional Sessions Judge. Accordingly, we set aside their convictions and sentences and acquit them of the charges against them. They shall be set at liberty forthwith if not required in any other case.