ZAFFAR HUSSAIN MIRZA, J.--This appeal by special leave is directed against the judgment and orders recorded by a Division Bench of the Lahore High Court, Lahore, dated 7-11-1979, whereby appellants were convicted and sentenced under sections 148/302/149 and 307/149 of the Pakistan Penal Code for committing rioting armed with deadly weapons and intentionally causing deaths of Muhammad Amin, Muhammad Yaqoob and Manzoor Ilahi, and for making murderous assault on Muhammad Iqbal. Aslam son of Shahzada, Saleem son of Munawar and Tufail son of Ghulam Rasool appellants have been awarded the death sentences among other sentences, whereas the remaining appellants, namely, Munawar son of Shahzada, Naeem son of Munawar and Muhammad Taj son of Karimullah have been, inter alia, sentenced to imprisonment for life.
2. The occurrence took place on 28-9-1975, shortly after sunrise in Khasra No. 1.201 (western) m the area of village Nurpur within the jurisdiction of Police Station, Hazro. As a result of this occurrence three persons, named hereinabove, were killed and one person, Muhammad Iqbal (P. W. 13) received serious injuries, from the side of the complainant. The medical evidence revealed that Muhammad Amin deceased had 2 fire-arm and one incised injury, whereas Yaqoob deceased had 9 sharp-edged injuries on various parts of his body and Manzoor Ilahi decease had one stab wound, one incised wound and one fire-arm injury. Muhammad Iqbal (P. W.) had four incised wounds and one fire-arm wound. Thus the complainant party had collectively sustained 20 injuries on their persons. From the side of the accused party also three persons received injuries during the course of the occurrence. Muhammad Taj appellant was found to have four lathi injuries and Muhammad Naseem appellant had two incised wounds on his person, while seven lathis injuries were found on the person of Munawar appellant. Thus, the total number of injuries received by the accused party were also twenty.
3. In all- seven persons were put to trial including the present six appellants but Muhammad Sadiq accused was given the benefit of doubt and acquitted of all charges by the trial Court. Out of the present appellants Munawar, Aslam, Naeem, Saleem and Tufail were, inter alias, awarded death sentence on each of the three counts for the reason that they were proved to have inflicted fatal injuries to the three deceased. However, Muhammad Tai appellant was shown leniency and awarded among other sentences, life imprisonment on the three counts, on the ground that he is an aged person and had caused only two simple injuries. The convicts preferred appeals from their convictions and the case was laid before the High Court for confirmation of death sentences as regards the five appellants. The High Court by the impugned judgment dismissed the appeals and confirmed the death sentences awarded to Aslam, Saleem and Tufail, maintaining the other sentences awarded to them for the rest of the offences charged. However, so far as Munawar and Naeem are concerned, the High Court did not confirm their death sentences, and altered their sentences from death to imprisonment for life and fine on each of the three counts maintaining their other sentences. The reason for awarding lesset sentences given by the High Court is that Munawar appellant had not inflicted any fatal blow to any of the accused and no part was attributed to Naeem appellant in the F. I. R. As well as in the statement of Abdul Razaq complainant.
4. The admitted position is that there existed a dispute between Muhammad Amin and his brother Muhammad Yaqoob deceased on the one hand and Munawar and Aslam appellants on the other, over agricultural land measuring 11 Kanals, 11 Marlas. The former had exchanged their land with the disputed land comprised in Khasra No. 1214 situated in the area of village Nurpur, with its owner one Noor Muhammad son of Mehar Muhammad Gojjar about 6/7 years prior to the present occurrence.
The disputed land was admittedly being cultivated by Munawar and Aslam appellants and, therefore, aforesaid deceased and others instituted a suit for Ejectment against them. A decree was passed in favour of the plaintiffs on 16-9-1975. The crucial question in this case is whether the actual possession continued to remain with the accused party on the date of occurrence, as according to the case of the prosecution the possession of the and was delivered to Muhammad Amin, decree-holder on 21-9-1975, at tae spot by ploughing it, in the presence of Saleem appellant.
The prosecution relied on the entry to this effect made by Muhammad Sadiq Patwari tip. W. 8) in Roznamacha Waqiati at Serial No. 424, dated 21-9-1975.
5. On 27-9-1975, shortly after sunrise Abdul Razaq complainant (P. W. 2), his father Muhammad Yaqoob deceased, his uncle Muhammad Amin deceased and his uncle Manzoor Ilahi deceased alongwith Muhammad Iqbal (P. W. 13) were busy in sowing garlic to the east of their well situated in the area of Nurpur. They saw the six appellants and the acquitted co-accused Muhammad Sadiq coming towards the field bearing Khasra No. 1214, leading a pair of bullocks with a plough. It is stated that Munawar and Aslam appellants were armed with 12 bore guns, Tufail appellant and Muhammad Sadiq acquitted co-accused with Churries, Naeem and Saleem appellants with spears while Taj was carrying a hatchet, Seeing the accused party approaching the land in dispute, Muhammad Amin deceased remonstrated with them advising them not to plough the land forcibly and to pursue the matter in the Court of law. But Aslam appellant did not relent and is said to have replied that they would plough the land. Muhammad Amin once again implored the accused party not to plough the land, whereupon Aslam appellant fired a gunshot which hit Muhammad Amin on the chest, Munawar appellant also fired a shot on Muhammad Amin deceased which hit him on the back side of the right shoulder. Then Taj inflicted hatchet blow to Muhammad Amin on the head, who fell down as a result of these injuries. Tufail appellant and Sadiq acquitted accused were attributed blows inflicted on Muhammad Yaqoob deceased with Churri in the abdomen. Aslam appellant then fired gunshot on Manzoor llahi deceased hitting him on the right side of the chest. Saleem appellant is said to have given spear blow to Manzoor Ilahi on the chest while Taj appellant inflicted hatchet blow to Manzoor ilahi on the head. Munawar appellant fired a gun shot at Muhammad Iqbal (P. W. 2) on the forehead and he also received injuries at the hands of Tufail appellant and Siddiq acquitted accused with Churri. This occurrence admittedly took place in the land. Of one A.I Bahadur in Khasra No. 1201 (western). In the F. I. R. Abdul Razaq complainant disclosed at the end of the narration describing the above-mentioned incident, that he, Manzoor deceased and Muhammad Iqbal (P. W.) had also inflicted injuries with lathi to Taj, Naeem and Munawar appellants in self-defence. The accused after causing these injuries decamped from the scene. Muhammad Amin died at the spot while Manzoor Ilahi and Muhammad Yaqoob succumbed to their injuries in the hospital at Hazro, on 27-2-1975 and 30-9- 1975, respectively.
6. The above is the version disclosed in the prosecution evidence before the trial Court as to tile occurrence, the defence version of the incident came on record mainly through the statement of Munawar appellant under section 342 of the Code of Criminal Procedure. In regard to the question whether the land bearing Khasra No. 1214 was taken out of their possession in execution of the decree on 12-9-1975, he denied this fact and stated; "The deceased did get the decree but we had filed appeal against it and obtained stay order from this Court and, therefore, we were never ejected nor any revenue official went to the spot to deliver possession. So the question of our taking back possession forcibly does not arise."
As to the main incident he made the following statement; "In order to acquire the rights of ownership, I and Aslam accused had deposited the required amount in the treasury under the rules of Land Reforms, because inadvertently we were recorded as non occupancy tenants in the revenue record. In 1971 the Martial Law Authorities had ordered for the correction of the entries, so the litigation started between us and Noor Muhammad and other Guars, who during the litigation, gave the disputed land to the complainant party in exchange and, therefore, the complainant party was also impleaded. The eastern half of Khasra No. 1201 is also under our cultivation since its sale to us by said Noor Muhammad, On 27-9-1975, before sunrise, I sent my son co-accused Navem and maternal uncle co-accused Taj with latter's plough and bullock to cultivate gram in land bearing Khasra No. 1201 (eastern) and No. 953, which is mortgaged with us. After their departure the ladies asked me as to why I had sent Naeem and Taj alone as previously Noor Muhammad aforesaid and his relatives had been resisting to our ploughing the land No. 1201 (eastern), so I picked up my brother and co-accused Aslam's licensed gun Ext. P. 23 and started towards the said land for the safeguard of Neem and Taj. When I reached there, I saw Muhammad Amin, Muhammad Yaqoob Manzoor Ilahi (deceased) and Muhammad Iqbal (P. W.) giving injuries to Naeem and Taj with hatchets and lathis. I tried to inter--vene but they gave injuries to me as well. So, in self-defence I fired shots. This happened in the land bearing No. 1201 (western)."
Naeem appellant in his statement before the trial Court supported the version of his father Munawar appellant and further stated.
"When we both reached its (Khasra No. 1201) western portion, Muhammad Amin deceased armed with hatchet and Muhammad Yaqoob deceased, Manzoor Ilahi deceased and Iqbal (P. W.), all armed with lathis attacked us. Muhammad Amin deceased gave me hatchet blow on the head. I had a knife in my pocket. So, in self-defence I injured them. They all had injured me and Taj co--- accused. Meanwhile my father Munawar reached there with a gun. He too was injured by the complainant party, so, in self-defence -he fired shots. Abdur Razaq (P. W.) was not present at the spot."
Thus, the case of the accused party was that they were attacked by the com--plainant party on the instigation of Noor Muhammad Gujar in order to prevent them from cultivating eastern side of Khasra No. 1201. Aslam appellant denied his participation in the occurrence and pleaded alibi.
7. At the hearing of this appeal the alleged fact of the delivery of physical possession of the disputed land to Muhammad Amin deceased, before the date of the occurrence, was seriously challenged. In this behalf the finding of the High Court was in favour of the prosecution case and reliance in this behalf was placed on the evidence of Muhammad Sadiq Patwari (P. W. 8), Hakam Khan (P. W. 11) in whose presence the posses--sion was said to have been delivered and Roznamcha Waqiati Exh. P. E., which is said to have been prepared on the site and bears the signatures of the two witnesses. Although the incident in this case did not take place on this land, but this fact has assumed significance because of the strong nexus, it has with the prosecution case, for, according to them the accused party were approaching with a pair of bullocks and plough in order to plough this land, which precipitated and gave rise to the immediate cause for launching of the attack by the accused. The High Court has, therefore, held that in view of this fact, Muhammad Amin deceased "had every right to ask the appellants not to plough the said land".
This finding was further made the basis for the consequential inference that the accused had firmly intended to plough the disputed land, by force, if necessary, as they had armed themselves with deadly weapons and carried out their wicked object, when obstructed, by launching the murderous assault.
8. It is established on the record that the civil Court had passed a decree for possession of this land in favour of Muhammad Amin and Muhammad Yaqoob both deceased and others against Muhammad Aslam and Munawar appellants on 16-9-1975. Mere passing of the decree, however, is by itself no proof that the said deceased had obtained possession of the land from the accused.
The crucial question of the actual delivery of possession depends upon whether the decree was put into execution prior to the occurrence. A civil Court decree for possession of immovable property is ordinarily executable by its own process in the mode prescribed by Order XXI, rule 35 of the Code of Civil Procedure on a proper written application for execution under rule 11 (2) of the same Order. However, there is nothing on the record to show that any such application for execution was submitted or indeed whether any order for execution of the decree was at all passed by the civil Court. The prosecution does not, however, even claim that the execution of the decree was in consequence of the orders passed by the civil Court. On the contrary the prosecution evidence, referred to above, shows that the revenue staff were instrumental in putting the decree to execution by allegedly going over to the land and by delivering possession at site by Fazal Hayat, Girdawar (not produced) and Muhammad Sadiq Patwari (P. W. 8) in presence of Manzoor Hussain Chowkidar (not produced) and Hakam Khan (P. W. 11)., Under section 68 of the Code of Civil Procedure the Provincial Government can declare, by notification in the official gazette, that in any local area the execution of the decrees in cases in which a Court has ordered an immovable property to be sold etc. To be transferred to the Collector for execution but this provision relates only to decrees directing the sale of immovable property or any interest therein. In the present case the decree was not of such a nature. Learned counsel appearing for the respondent was unable to satisfy us what authority the revenue staff possessed to take possession from the occupants and deliver it to the decree-holders in the circumstances of this case. The alleged proceedings for the delivery of possession in pursuance of the execution of the decree seem on the face of it open to serious doubt, particularly in view of the fact that no order of the civil Court or a competent Revenue Officer, which could be the best evidence in the circumstances, was produced. The perusal of the Roznamcha Wayiati Exh. P. E. And the evidence of the two witnesses on this point also leave no doubt whatsoever that the proceedings were entirely one-sided and notice seems to have been given to the judgment, debtors for taking of the possession from them and delivering it to the decree-holder. Exh. P. E. Only refers to oral intimation to the concerned parties but there is no reliable evidence that any such step was taken. In this connection Muhammad Sadiq Patwari (P. W. 8) stated "I do not Know if Chowkidar effected the service of the judgment-debtor". Further it has been stated that Saleem appellant was present at the time of the proceedings, who was not even one of the judgment-debtors in the decree passed by the civil Court. It is not understood in what capacity Saleem appellant is claimed to have been party to the proceedings but according to the statement of Hakam Khan (P. W. 11) he had attested the proceedings. This fact is belied by document Exh, P. E. And further the trial Court did not even put this fact to any of the accused in their 342, Cr. P. C. Examination including Saleem appellant. The accused were emphatic in their assertion that posses--sion was not taken from them on the alleged date in execution of the decree.
9. The next question to consider is as to what were the actual circumstances in which the parties came into armed clash with each other. As already pointed out the High Court has held that the possession of the disputed land comprised in Khasra No. 1214 was with the complainant side on the date of the occurrence and the appellants were heading towards this land iii body having armed themselves with deadly weapons, apparently with the object of trespassing on the land and to plough it with the show or use of force. On the other hand it has been asserted by the accused side that Naeem and Taj appellants were proceeding towards their land bearing Khasra No. 1201 (eastern) for the purpose of cultivation and when they reached Khasra No. 1201 (western), the deceased and injured witness 1qbal intercepted them, The complainant party is said to have made the aggression first and inflicted injuries to the aforesaid two appellants. Meanwhile Munawar appellant reached there with a gun and he too was injured by the complainant party and, therefore, in self-defence he fired shots at the deceased. Therefore, the version of the accused admits the presence and participation of three persons. Of course these persons could not have denied their presence since they were injured and the rest had received no injuries.
10. Before analysing the evidence on record in order to ascertain as to what really happened, it will be convenient to briefly state the topographical situation of the scene of occurrence and the locale of the various important places. The perusal of sketch on record Exh. D. G. And Exh. P.D. Read with the evidence of Muhammad Sadiq Patwari P. W. 8 shows that Khasra No. 1214 is to the south of Khasra No. 1201 which is divided into two parts, 1201 (eastern) and 1201 (western). There is a common passage running along the northern boundaries of Khasra No. 1201. - Village Lundi is toward the west of the place of occurrence at a distance pf one furlong and village Nurpur is located towards the north of village Lundi at a distance of 100 yards. The well of the complainant party is situated to the south-- west of the place of occurrence at a distance of about 120 Karams.
The High Court has held that nor ally a person going from Nurpur towards land bearing Khasra No. 1201 (eastern) will neither pass over Khasra No. 1214 nor Khasra No. 1201 (western). However, the sketch of the scene of occurrence shows that if the accused party . Came from their village towards Khasra No. 1201 (eastern) or Khasra No: 1214, they vvQW 44 be passing over Khasra No. 1201 (western).
11. The prosecution case mainly hinges on the testimony of the two witnesses Abdul Razaq (P. W. 12) and Muhammad Iqbal (P. W. 13). The presence of the latter cannot be denied as he was also injured in the transac--petition The High Court rejected the evidence of recoveries and there is no other corroborative evidence to support the ocular testimony except the medical evidence which shows that three of the appellants were also inured. It has been urged that the testimony of the aforesaid two eye-witness can--not be relied upon without corroboration in view of the admitted animosity existing between the parties at the time of occurrence over the dispute on land.
12. There, are certain features of the case appearing in the evidence that require to be noticed.
According to the ocular version the gunshots were fired by Aslam and Munawar appellants, while Muhammad Amin and Yaqoob deceased were standing face to face talking with the accused party. Aslam appellant is said to have fired first effectively injuring Amin deceased on chest and then Munawar appellant fired on him. While he was falling down Taj appellant gave him a hatchet blow. Aslam appellant is also said to have fired an effective shot at Manzoor Ilahi on the chest. The close examination of the medical evidence, however, shows that the incised injury on Muhammad Amin measuring 1--- x 1 ----- x 1/3--- x ----- does not appear to have been caused with a hatchet. Another circumstance worthy of notice is that blackening was found in the area of injury No. 1 which was a gunshot wound, whereas there was no such blackening present around the second gunshot wound. Also no blackening was found on the body of the two other persons who received two gun shot injuries i.e., Manzoor deceased and Iqbal (P. W.). Finally no gunshot wound was found on the body of Yaqoob, who had 9 sharp-edged weapon injuries. The nature of injuries on the deceased and the injured witness also shows that no hatchet was used. If Aslam appellant fired the first shot felling down Muhammad Amin deceased it is highly improbable for the complainant party to have inflicted injuries on the accused party as normally human response in a situation like that; where a party consisting of 7 persons armed with deadly weapons like hatchet, knife, spears and guns apparently determined to achieve their object by force, would be to retreat, out of the instinct of self-preservation. This would be specially so if the victims are armed only with sticks. It is, therefore, difficult to accept the prosecution account of the manner in which three of the complainant side caused injuries to the accused. Another glaring discrepancy is the fact that Naeem appellant had an incised wound 2 ----- x ----- x bone deep on the scalp and an incised wound on the left side elbow joint. The eye-witnesses have disclosed no sharp-edged weapon used by the complainant side, as according to them they inflicted stick injuries to three accused.
13, On an overall consideration of the prosecution evidence in the light of these circumstances, it appears that Muhammad Amin deceased was shot at very close range, whereas Manzoor and Iqbal (P. W.) were shot at from a distance, although the prosecution asserts that Muhammad Amin and Yaqoob deceased were standing together when the shots were fired. Also the probabilities of the case suggest that there were two incidents, the first one in which both parties used weapons other than guns and the second in which guns were used by the assailants. This would also be consistent with the circumstance that Munawar appellant who is said to be armed with a gun had received as many as 7 injuries with blunt weapon. Normally a person armed with a gun will not suffer injuries with a blunt weapon while holding a gun on such parts of his body as the eyebrow, nose, index finger, chest and arm.
14. The explanation of the appellants as reproduced above, has been rejected by the High Court as the dispute between the parties was not over Khasra No. 1201 (eastern) which according to the accused they wanted to plough. There is no doubt that Munawar and Aslam appellants were in possession of the land for a considerable period and in the view that I have taken, there is no reliable evidence on the record that possession was taken from them in accordance with law in execution of the decree and at any rate there is no proof that they were given notice of the delivery of posses--sion. There would, therefore, be no justification for Muhammad Amin and Yaqoob deceased to assert their right to prevent them from going upon the land. In all probability as the circumstances of the case show the fight between the parties had taken place over this land. A copy of the order passed by the District Judge, Campbellpur, on 24-9-1975 shows that stay of execution was granted by the appellate Court in favour of Aslam and Munawar appellants. On the other hand Muhammad Amin and Yaqoob deceased had obtained decree for eviction of these appellants. Both parties were, therefore, interested to establish their claim of actual physical possession. In a situation like that it is possible that the smallest incident could ignite a conflict between them. But, as discussed above, both parties have suppressed the true facts and, therefore, it is not possible to satis--factorily determine the question as to who was the aggressor and who the victim of the aggression. As held by this Court in the case of Syed A.I Bepari v. Nibaran Mollah (PLD 1962 SC 502) in such cases parties do not generally come out with the true story but that should not deter the Court from drawing the inferences that properly flow from the evidence and circumstances. The circumstances in the present case are that the resultant damage caused by the complainant side as compared with the injuries received by the deceased and the injured witness, shows that a shortlived attack was delivered by the deceased party without the aid of lethal weapons. On the other band the accused party used guns and sharp-edged weapons resulting in grievous injuries causing death of three persons. As held in the case of Ibrahim v.
State(PLD 1961 SC 200) this indicated that the attack launched by the accused was "sustained and carried out with great determination and without regard to the consequences". The plea of self-defence set up by the appellants is, therefore, not available to them in the circumstances of this case.
15. The question still remains to be considered, whether all the appellants participated in the occurrence. So far as Muhammad Taj, Munawar and Muhammad Naeem appellants are concerned, they had admittedly received injuries in the transaction. There can be no doubt about their presence during the occurrence. However, since the common object attributed to the alleged unlawful assembly constituted by the appellant has failed, the rest of the appellants can be convicted only if there is independent corroboration establishing their participation, as there is no reliable evidence of recovery against them, without which the usual B exaggeration made by the complainant to rope in as many members of the accused party as possible cannot be excluded satisfactorily. Since there is no reliable evidence as to how the fight started, the only course is to make each of the appellant who participated in the occurrence to be responsible for his own acts.
Aslam, Saleem and Tufail appellants are, therefore, entitled to the benefit of doubt.
16. The injuries found on the persons of the deceased and the injured could be the work of three assailants one of them being armed with a gun. However, none of the injured accused has been attributed the fatal injurie therefore, the conviction under section 302 of the Pakistan Penal Code o C T any of .The remaining appellants is not sustainable. Gunshot injurie attributed to Munawar appellant which hit Muhammad Amin deceased were simple. He is also said to have fired at Muhammad Iqbal (P. W.) which was located on the scalp and some metalic foreign bodies seen in the scalp but ultimately the injuries were found to be simple. However, since he use the gun at two persons one of which was on the vital part of the body and the other on the back side of right shoulder covering an area of 6 ----- X 5--- leaving some pellets under the injury, his criminal liability would fall under section 307 of the Pakistan Penal Code on two counts.
17. No part was attributed to Naeem appellant in the F. I. R. a well as in the statement of Abdul Razaq complainant. His participation in the crime cannot, therefore, be free from doubt and accordingly he is entitled to the benefit of doubt. So far as Taj appellant is concerned, he has been attributed one simple injury each with hatchet to Muhammad Amin deceased and Manzoor Ilahi deceased on their heads, he is also liable under section 307, P. P. C. On each count. Munawar and Muhammad Ta' appellants are, therefore, convicted under section 307 of the Pakistan Penal Code each and sentenced to five years' rigorous imprisonment and a fine of Rs. 200 on each count and in case of default in payment of fine they shall further undergo rigorous imprisonment for six months on each count. The amount of fine, if recovered, shall be paid to the heirs of the concerned deceased or injured as the case may be.
18: In the result the appeal of Aslam, Naeem, Saleem and Tufail succeeds and is accordingly allowed. The appeal of the remaining appel--lants, namely, Munawar and Muhammad Taj is disposed of as stated above.
M. Z. M.