1. SHAFIUR RAHMAN, J.- Leave to appeal was granted to the four convicts in two separate appeals from jail to reappraise the entire evidence with a view to ensure that principles governing the safe dispensation of criminal justice were duly observed.
2. ' Mst. Anar Khatoon (P. W. 12), a daughter of Gola Khan a co-accused of the appellants and their relative, was married to Ismail, a son of complainant Khan Mir (P. W. 10). Before rukhsati Ismail died.
3. Khan Mir (P. W. 10) whose sister was already married to Gola Khan, the aforesaid co-accused of the appellant, asked for the hand of Mst. Anar Khatoon (P. W. 12) for his other son Sultan Khan. He was refused. About four months before the occurrence Mst. Anar Khatoon eloped with Sultan Khan. This incensed Gola Khan and his other relatives including the four appellants. On the morning of 26th of June, 1972 the entire family of Khan Mir (P. W. 101, the males, the females and even the guest Ata Muhammad deceased were all going on the hilly terrain to fetch water from a stream about two furlongs from their house in village bazar police station Musa Khel district Mianwali. The four appellants alongwith eight others all armed with fire-arms except Zarif and Mehr Khan co-accused intercepted them and fired at them causing the death of Ata Muhammad, the guest, Alam Khatoon, a daughter of Khan Mir (P. W. 10) and fire-arm injuries to Mst. Amiran another daughter of Khan Mir (P. W. 10) and to his daughter-in-law, Anar Khatoon (P. W. 12). Khan Mir (P. W. 10) and Sultan (not produced) were also in the party but they miraculously escaped. Khan Mir lodged the first information report about the occurrence at 10 a. m., the police station being at a distance of five miles from there. Ch. Nasrullah Khan SA. (P. W. 14) recorded the F. I. R. The dead bodies and the injured had also been brought at the same time to the police station. The necessary formalities in respect of them were completed. He was able to arrest seven out of the twelve accused on 6th of July, 1972. Zarif Khan had obtained his bail and was arrested subsequently. Faiz Ullah, appellant, was arrested on 30th November, 1972. Ali Khan and Alam Khan, appellants, were arrested on 5th December, 1972. In respect of these three formal proceedings had been completed and they were declared proclaimed offenders and the challan against the others had been submitted in their absence but after their arrest a supplementary challan was submitted in Court.
4. ' The autopsy of Ata Muhammad and Alam Khatoon deceased showed that they had died of fire- arm injuries. The injured Mst. Amiran and Mst. Anar Khatoon (P. Ws. 11 and 12) were also found by the lady doctor to have received fire-arm injuries.
5. ' The appellants and their co-accused admitted the fact that Mst. Anar Khatoon, daughter of Gola Khan, was married to Ismail, a son of the complainant Khan Mir and after his death on refusal of her hand for Sultan Khan, she had eloped with him. However, all of them denied having participated in the occurrence which resulted in the death of two and fire-arm injuries to two others. They explained the case against them by saying that it was on account of relationship with Gola Khan and enmity with the complainant party. Gola Khan, however, stated that he had been falsely implicated in the case because Mst. Gullan, sister of Khan Mir (P. W. 10) contracted marriage with him against the wishes of her brother and family members.
6. ' The trial Court believed the motive and the ocular evidence. The relationship between the accused and the complainant party even in the background of the dispute over elopement was held to be such as not to make these witnesses interested witnesses in the case. The injuries to Mst.
7. Amiran (P. W. 11) and Mst. Anar Khatoon (P. W. 12) were found to have been caused in the occurrence itself and were found not self-suffered. As regards the two co-accused of the appellant, Zarif Khan and Mehr Khan, who were, according to the prosecution case itself, empty- handed and had only raised a Lalkara, the words of which none of the witnesses could reproduce, the trial Court held :-- "I can safely draw the conclusion that their names were falsely introduced as an afterthought otherwise such a discrepancy would not have arisen in the evidence of the three eve-witnesses."
8. ' Considering the prosecution case against them highly doubtful, the trial Court acquitted them by giving them the benefit of doubt. As regards Ghulam Haider and Muhammad Amir, co-accused of the appellants, it was found that the injuries ascribed to them to the prosecution witnesses were not found on the victims. The prosecution case was found highly doubtful against Ghulam Haider as well as Muhammad .Amir. Their acquittal was recorded. The remaining eight accused including the four appellants were all held guilty under sections 302/149, P. P. C. And 307/147 and 148, P. P. C.
9. Death sentence was imposed on the three appellants, Alam Khan, Faizullah Khan and Ali Khan because they were artributed the fatal injuries on the person of the two deceased. The other five were sentenced to life imprisonment. All of them were fined Rs, 1,(,00 each which on realization had to be paid to the heirs of the two deceased under section 544-A of the Cr. P. C. For their conviction under section 307/149 they were all sentenced to four years' R. I. And a fine of Rs, 500 or in default to undergo three months' R. I. Each. For offence under section 148/ 149, P. P. C. They were all sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs, 200 each or in default to undergo further simple imprisonment for.One month each.
10. ' The High Court while seized of the question of confirmation of death sentences and the appeal of the convicts re-examined the entire case and reappraised the entire evidence. It considered the case of Masood Khan, Gola Khan and Haq Nawaz to be distinguishable from Ghulam Haider and Muhammad Amir, the two acquitted accused. Nevertheless each convict was held responsible for the specific fire-arm injury which had been consistently attributed to him. Making allowance for 'honest mistake' in the narration of facts the High Court held that the eye-witnesses account did not suffer from any infirmity or material contradiction and the ocular testimony could not be rejected. As regards Gola Khan, Adam Khan, Jahan Khan and Haq Nawaz, it was found that they did not inflict any injury to the deceased. They fired at the injured. It was held that they had possibly no intention to kill the injured witnesses "because if they wanted to do so there was nothing to prevent them". They had just caused simple injuries with fire-arms. The conviction of these four under sections 302/149 and 307/149, P. P. C. Was set aside and substituted by one under section 324/34, P.
11. P. C. And sentence already undergone was held to be sufficient for this offence. As regards the four appellants, it was found that they had fired at the two deceased and killed them. They were all, therefore, found guilty of the offence under section 302/34, P. P. C. And under section 307/34, P. P. C.
12. On two counts and the sentence of death of Ali Khan, Faizullah and Alam was not confirmed. They were sentenced to life imprisonment. Their conviction .Under section 148 was set aside. The sentence of fine was left undisturbed.
13. ' The learned counsel for the four appellants has rested his arguments on the grounds noted in the leave granting order, namely, that the entire family including the guest could not possibly be going to fetch water at that hour, that the first information report was lodged after examining the dead bodies, the injured and the witnesses, that there were no pitchers found to corroborate the prosecution case, and that in such an occurrence individual shots fired by the.Culprits could not be identified by reference to the victims who were injured by it. As regards Masood Khan, it was urged that there was no independent corroboration which had become necessary if the witnesses who were found to be related and inimical had also been disbelieved with regard to some of the accused. The question of abscondence or non-availability of Masood Khan till 6-7-1972 was not put to him while examining him under section 342, Cr. P. C. And he was not given any opportunity to explain it.
14. ' We have attended to all aspects of the case and also examined the statements of the witnesses and the evidence collected during the investigation. We find that the motive was not, in fact, disputed. The relationship between the appellants is also not in dispute. It may be not so close in the case of some as in the case of the other but where family honour is involved participation of relatives not so close is nothing surprising. The elopement of Mst. Anar Khatoon (P. W. 12) could justifially flare up the accused party and give them a feeling of a continuing wrong because Mst.
15. Anar Khatoon and Sultan Khan were living in the same village. The scene of occurrence, the hilly terrain, and the path leading to the source of water was well established and never seriously disputed. After examining the injuries Mst. Amiran and Anar Khatoon the two Courts formed the opinion that they could not be self-inflicted. These were received during the course of the occurrence itself. That made them natural witnesses of the occurrence. It is true that ordinarily a guest like Ata Muhammad should not have been the victim nor should Sultan and Anar Khatoon have been allowed to escape so easily or for that matter Khan Mir (P. W. 10). But it depended in the circumstances of the case so on the agility and capability, apart from the distance these persons happened to be from the group of the accused. The hilly terrain afforded them greater opportunity of getting cover, of escaping the attack and avoiding it. Such escape itself would not be a reason to discredit the prosecution evidence. As the complainant had accompanied the dead bodies and the injured to the police station, even if the Investigating Officer had an opportunity of looking at them that was not something which would cast any serious doubt. It would not be against normal human conduct or deviate from the consistency of the prosecution case as such. Everything was before the police officer who was recording the F. I. R. As regards the pitchers or the vessels used by the complainant party for fetching water, we find that only the Investigating Officer was questioned about it and he stated "I had found broken pitchers at the spot which were allegedly being carried by the witnesses for, fetching water". He had not taken them into possession. That may be an act of omission. It does not discredit the eye-witnesses account of the offence. In an area where water is scarce and has to be brought from a distance and the terrain is unhelpful it is not unusual to find the whole family even in augmented strength going to fetch water to meet the requirements of men and animal for the day and beyond. Before doubting this narration or rejecting it there must have been found something in the evidence or on the record to make it unlikely. We find that no such question was put to any of the witnesses as to whether it was normal for them to go in such a group or was it an exceptional day. They could have given a very satisfactory explanation for it. In the absence of such a question, off-hand their presence particularly of the eye-witnesses could not be doubted.
16. ' It is true that the firing at the deceased and the injured has been described with lucid details and it is not cent per cent consistent. In view of the variation and inconsistency which has been termed by the High Court as 'honest mistake' full benefit of doubt had been given to the acquitted accused and there is no scope for further benefit to those in respect of whom a consistent case has been made out at all stages. It is correct that, also pointed out, the ocular testimony has not been given full - effect or _in its! " entirety to convict all the persons against whom it was directed. It was not given effect insofar as the three accused who were acquitted by the trial Court and it was not given full effect to by the High Court insofar as the four other accused were concerned in respect of whom intention to cause death and firing with that end was held not proved. This made it necessary and desirable that there should have been some corroboration to their testimony for sustaining the conviction of the appellants. In the case of three of them, that is, Alam Khan, Ali Khan and Faizullah, corroboration was forthcoming in their prolonged abscondence which remained unex plained. The case of Masood Khan, appellant, was clearly distinguishable, for the fact of his abscondence was not fully brought out on record. It was treated to be a factor against him and there was no question put to him about it at the trial. In the absence of corroboration we consider it unsafe to maintain the conviction and sentence of Masood Khan, appellant.
17. ' In the circumstances and for the reasons already given the criminal appeal of Alam Khan, Ali.
18. Khan and Faizullah against their conviction and sentence is dismissed. The appeal of Masood Khan against his conviction and sentence is allowed. He shall be released forthwith unless his detention is required in some other matter.