' JAVID IQBAL, J,-Juma Khan son of Amir Khan, aged 58, armed with revolver, and his son Jamaid Khan, aged 32, armed with revolver, have been convicted under section 302/34, P. P. C. For the murders of Mian Noor, aged 65, and Baz Gul aged 55, both brothers inter se and vide judgment of the Sessions Judge, Campbellpur dated 29th January, 1978 both of them were sentenced to death on each count plus fine of Rs, 10,000 each on each count or in default to undergo one year rigorous imprisonment with a direction that if the fine was realized from them, it should be paid as compensation to the heirs of the deceased. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. The occurrence took place at 5-00 p.m. On the 20th of August, 1975 in the fields of Dhoke Bazidkhel Dakhli at a distance of nine miles from Police Station Makhad, District Campbellpur.
Statement Exh. P. F. Was made by Noorullah P. W. 10, brother of the two deceased, at 8-30 p.m. On the same day and it was recorded by Mahboob Ali A. S.-I. P. W. 12 at Dhoke Kukkarwali at a distance of two miles from the spot when the police officer happened to be present there and chanced to meet the complainant. On the basis of the aforesaid statement formal F. L. R. Exh. P. F./1 was registered at the police station at 12-30 a.m. On 21st August, 1975 by Ghulam Muhammad M. H. C. P.
W.
9. It may be pointed out at this stage that Noorullah P. W. Complainant is not eyewitness of the occurrence.
3. The motive for crime, as stated in the F: I. R. Is that the accused-party and the complainant-party had adjacent lands. It is stated that the accused-party started throwing stones from their land on the land of the complainant-party. This was objected to by the two deceased and shortly thereafter the occurrence followed.
4. There is only one eye-witness of the occurrence produced by the prosecution, namely, Yusuf Khan P. W.
11. He is not related to the complainant-party. It is stated that his sister was married to Juma Khan appellant who had divorced her in 1945. The other two eye-witnesses cited in the F. I. R. Are Char Gul and Ghulam Habib but they were given up as won-over.
5. Both the appellants were arrested on 25th August, 1975 by Ghulam Muhammad S. I. P. W.
9. From the spot one crime empty of 32 bore P. 9 and one live cartridge of .32 bore P. 10 were picked up and taken into possession vide memo. Exh. P. L. Dated 21st August, 1975. The attesting witnesses are Yusuf Khan P. W. 11, Mahboob Ali A. S.-1. P. W. 12 and Char Gul (not produced). From the dead bodies of the two deceased one led bullet each B. 1 and B. 2 were taken out by the Medical Officer at the time of the post-mortem examination and handed-over to the police vide memo. Exh. P. E.
Dated 22nd August, 1975. The attesting witnesses are Khuda Yar Head Constable P. W. 2, Shah Muhammad F. C. (not produced) and Mahboob Ali A. S.-1. P. W.
12. From Juma Khan appellant was recovered unlicensed revolver P. 7 plus three live cartridges P.
8/1-3 from his residence and taken into possession vide memo. Exh. P. J. Dated 30th August, 1975.
From Jamaid Khan appellant was likewise recovered unlicensed revolver P. 5 and five live cartridges P. 6/1-5 and taken into possession vide memo. Exh. P. H. Dated 30th August, 1975. The attesting witnesses in both the cases are Khan Gul P. W. 8 and Ghulam Muhammad S P. W. 9 as well as Saidan Gul (not produced). According to the report of the Fire-arms Expert Exh. P. U. At page 20 of the Paper Book there was no identifiable data to connect the two lead bullets B. 1 and B. 2 taken out from the dead bodies with the recovered revolvers P. 7 and P.
5. However the report is to the effect that the sole crime-empty E. 9 picked up from the spot matched with revolver P. 5 which is stated to have been recovered at the instance of Jamaid Khan appellant. There was no other crime -empty to match with revolver P. 7 recovered at the instance of Juma Khan appellant. {{BLURR}}
6. The appellants, in their statements before the trial Court, denied having participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated due to enmity with Yusuf Khan P. W. It was stated by Jamaid Khan appellant that he had been falsely involved by Yusuf Khan P, W. Whose sister was divorced by his father and thereafter he married his mother M.St. Bano. In February, 1975 he had given beating ,to Noor Hassan son of Yusuf ,Khan P. W.
Thus, the case of the defencelis.111At the, tole:eye-witnesci'of the occurrence produced by the proiecutt ti4e,:nainely4, '`i,(t4Sillidian P. W. Was {{BLURR}} inimical towards the a/41e! Int.': '4 .:>.141 1,4e:i 3 ' It may be pointed out it this stage that at theY time of arrest of both the appellants they were found .Injured and were medically examined at the instant of the police thetrial stage when,both of them were asked at to how Would theexplain the injuries On: their persons, both of theiti'replied that they had nothing to say. In other words, both the appellants were unable, to explain the Injuries on their persons.
7. In the F. I. R. The Occurrence is reported to haver,:taken,, pjacin the following manner : Noorullah P.
W. 10, after figishing,,blirldilkw in the Railway Department, was returning to his Pttoke when was informed by Char Gul (not produced) who met hiini pn the way, that his brother Mian Noor and Baz Gul had been attacked by the appellants and were murdered by their pistol shots. On getting this information he came to his Dhoke alongwith Char Gul and found that his two brothers were lying dead. At that time besides Char Gul, Yusuf Khan P. W. 11 and Ghulam Habib (not produced) were present at the Dhoke and since they had also witnessed the occurrence, they described the way how it had taken place to him. They informed him that in their presence the appellants came to their land which is adjacent to the land of the complainant-party and started throwing stones from their land on the land of the complainant-party. This incident took place 4-45 p.m. Thereupon Baz Gul deceased stopped them from throwing stones on his land. In reply they abused Baz Gul deceased. In the meantime Char Gul and Yusuf Khan P. W. Arrived there and patched up the matter. Thereafter, Char Gul and Yusuf Khan P. W. Took away Baz Gul deceased to his Dhoke. 10/12 minutes thereafter both the appellants armed with pistols came to the spot and challenged Baz Gul deceased that they would teach him a lesson for abusing them. Baz Gul deceased tried to run away towards the Dhoke of Mian Noor deceased but when he came on the land of Juma Khan appellant. Juma Khan appellant fired through his pistol at Baz Gul deceased from behind and the shot hit on the head whereupon he fell down. While he was in the fallen condition, the -second shot was fired at him which also hit on his head. On hearing the noise of pistol fire Mian Noor deceased alongwith Ghulam Habib (not produced) came out of his Dhoke in order to rescue Baz Gul deceased. When Mian Noor deceased and Ghulam Habib reached the land of Baz Gul deceased.
Juma Khan appellant told Ghulam Habib that he should keep away and that they were not going to spare Mian Noor deceased. At that time Mian Noor deceased was at a distance of about 12/13 karams from Baz Gul deceased and Gulam Habib was standing at a distance of 5/6 yards from him. In the meantime, Juma Khan appellant fired through his pistol at Mian Noor deceased and the shot hit him on the left side near the armpit. Both Mian Noor and Baz Gul died on the spot. The occurrence was witnessed by Char Gul, Yusuf Khan P. W. And Ghulam Habib and they narrated the same to Noorullah P. W.
' It has already been pointed out that Noorullah P. W. Is not eyewitness of the occurrence and he described the incident on the information of the eye-witnesses who claimed to have witnessed the same. After recording the F. I. R. Mahboob All A. S. I. P. W. Arrived on the spot on the same day he recorded the statement under section 161, Cr. P. C. Of Yusuf Khan P. W. Which is Exh. D. A. At page 22 on of the Paper Book. Yusuf Khan P. W. Stated that he and Char Gul had gone to see Baz Gul deceased as his bullock was ill. When they arrived at the Dhoke of Baz Gul deceased, the appellants were picking up stones from the Banna and throwing on the land of Baz Gul deceased.
Baz Gul deceased stopped them from doing so and there was exchange of abuses between them.
He and Char Gul intervened and the matter was patched up. They came to the Dhoke of Baz Gul deceased. But shortly thereafter Juma Khan and Jamaid Khan appellants armed with revolvers, came to the spot again. Jamaid Khan appellant was holding revolver in one hand and soti in another. They challenged Baz Gul deceased that they would teach him a lesson for abusing them.
In the meantime, Baz Gul deceased wanted to run from his Dhoke to the Dhoke of his brother Mian Noor deceased. When he reached the land of Juma Khan appellant running, Jamaid Khan appellant fired a shot at him from behind through his revolver which did not hit Baz Gul deceased, Baz Gul deceased picked up a stone from the ground and threw it on the head of Jamaid Khan appellant. The stone hit him on his head. Thereafter, Baz Gul deceased laid on the ground in order to save himself from the fire. On this Jamaid Khan appellant gave three soti blows on the back of Gul deceased and one soti blow fell on the right hand of Baz Gul deceased. Thereafter, Jamaid Khan appellant fired the second shot through his revolver on the bead of Baz Gul deceased. The shot hit on the top of the head of Baz Gul deceased and he died on the spot. On hearing the noise of the fire Mian Noor deceased came out running from his Dhoke alongwith Ghulam Habib in order to rescue Baz Gul deceased. When Mian Noor deceased reached near Baz Gul deceased, Juma Khan appellant told Ghulam Habib that he should keep away and not interfere and that they would not spare Mian Noor deceased. On this Mian Noor deceased likewise picked up a stone from the ground and threw it towards the head of Juma Khan appellant. The stone hit Juma Khan appellant on the forehead. Ghulam Habib withdrew and stopped at a distance. Then Juma Khan appellant fired a shot through his revolver at Mian Noor deceased which hit him on the left side near the armpit and Mian Noor deceased died on the spot as a result thereof. The occurrence was witnessed besides him by Char Gul and Ghulam Habib. In order to inform about the same Char Gul went to Noorullah P. W. Thereafter, Noorullah P. W. Arrived on the spot alongwith Char Gul, and Yusuf Khan P. W. Narrated the incident.
8. Dr. Muhammad Rafiq P. W. 1 conducted post-mortem examination on the dead body of Mian Noor deceased at 2-30 p.m. On 21st August, 1975.And found on his person a fire-arm wound on the front of left chest near left armpit. The injury was oval in shape and the edges of the wounds were inverted and echymosed. On opening the chest the bullet was removed which was preserved in a sealed bottle and handed over to the police. In his opinion, the death resulted due to shock and haemorrhage caused by the fire-arm injury which was dangerous to life and was sufficient to cause death in the ordinary course of nature.
' On the same day at 5-00 p.m. He conducted post-mortem examination on the dead body of Baz Gul deceased and found on his person a fire-arm wound on the frontal portion of the head. The edges of the wound were inverted and ecchymosed also a contused wound on the upper lid of left eye ; a contusion mark on the back of upper part of left chest, an abrasion mark on the back of right chest ; a contusion mark on the lumbo-sacral region and a lacerated wound on the right index finger. A bullet was removed from the head and handed over to the police. In his opinion, the death had resulted due to shock and hemorrhage caused by the fire-arm injury on the head which was dangerous to life and was sufficient to cause death in the ordinary course of nature. The other injuries were simple whereas injury on the index finger of the hand was grievous. These injuries had been caused by a blunt weapon.
' On the 26th of August. 1975 at 12-00 noon he medically examined Jumma Khan appellant and found on his person a lacerated wound on the right side of forehead. The injury was simple in nature and caused by a blunt weapon.
' On the same day at 12-20 p. m. He medically examined Jamaid Khan appellant and found on his person a lacerated wound on the left side of head. The injury was simple and caused by a blunt- weapon. The dimensions of fire-arm injuries on Mian Noor and Baz Gul deceased were the same.
He stated in the cross-examination that it was possible that these two injuries could have been caused by two different shots from the same weapon. He further stated that the injury on the person of Juma Khan appellant could have been caused with a stick blow.
9. We have heard learned counsel for both the parties and carefully perused the record. There is nothing on the record to indicate that there existed any previous background of enmity between the parties. We are only informed that a few minutes before the occurrence the accused-party was throwing stones from their land on the land of the complainant-party and when they were asked by Baz Gul deceased to stop, there was exchange of abuses. Why the accused-party started throwing the stones on the land of the complainant-party which led to the exchange of abuses subsequently, no reason is given, for, according to the testimony of Yusuf Khan P. W., when he arrived at the scence of occurrence, he saw the accused-party throwing stones from the Banna of their land on the land of the complainant-party. It is contended by learned counsel for the appellants that the sole eye-witness Yusuf Khan P. W. Produced by the prosecution was inimical towards the appellants. His sister was married to Juma Khan appellant and she was divorced in 1945. Thereafter, Juma Khan appellant married Mst. Bano and Jamaid Khan appellant was his son from her. Learned counsel attempted to argue that because of the divorce of his sister in 1945 Yusuf Khan P. W. Had a motive to falsely implicate the appellants and, therefore, he was an interested witness. It was submitted that the other two eye-witnesses of the occurrence, namely, Char Gul and Ghulam Habib, who were disinterested were not produced because they did not come forward to support the prosecution version. It was next argued that the two lead bullets B. 1 and B. 2 recovered from the dead bodies could not be connected with revolvers P. 7 and P. 5 recovered by the police in the instant case. Crime empty P. 9 picked up from the spot matched with revolver P. 5, stated in the report of the Fire-Arms Expert Exh. P. U. To have been recovered from some Hameed Khan and not Jamaid Khan appellant. It was then argued that according to the record crime-empty P. 6 and live cartridge P. 10 were taken into possession on 21st August, 1975 and they were made into a parcel and remained in the custody of Mahboob Ali A. S.-I. P. W. 12 until 25th August, 1975 when he is stated to have arrested the appellants. It was argued that although according to the police officer the recoveries of revolvers were effected from the appellants on 30th August, 1975, the possibility could not be ruled out that the recoveries of revolvers were effected on the date of the arrest of the appellants on 25th August, 1975 because these recoveries were made from the house of the appellants. The reasoning of learned counsel is that if there was a possibility of the recoveries of revolvers having been effected on the date of the arrest of the appellants on 25th August, 1975, then on that date the crime-empty P. 9 was in the custody of Mahboob Ali A. S.-I. P. W. 12 and he could have tampered with the recovery evidence. The argument is that since the police officer got the crime-empty P. 9 deposited in the Police Malkhana on 25th August, 1975 he deliberately recorded the recovery of revolvers on 30th August, 1975. Thus, according to the reasoning of learned counsel the recovery evidence, in the instant case, had no corroborative value. It was next argued that in the F. I. R. No explanation was given by Noorullah P.
W. As to how the two appellants had received injuries. So far as the version of Yusuf Khan P. W. Is concerned, it was submitted by learned counsel that it was improbable and not in conformity with the medical evidence. According to learned counsel Yusuf Khan P. W. Had stated that at the time of the attack Juma Khan appellant as well as Jamaid Khan appellant were armed with revolvers and in addition to that Jamaid Khan appellant also carried a stick in the other hand. It is submitted that if both the appellants were carrying revolvers, no crime-empty could have been dropped from the chambers of the same. Furthermore, it was argued that if Jamaid Khan appellant was holding a revolver in one hand, it was improbable that he should also be armed with a stick which was held in his other hand. It was submitted that if this Court was to arrive at the conclusion that the crime- empty picked up from the spot matched with the revolver recovered from Jamaid Khan appellant, then it could be possible that Jamaid Khan appellant used the same and fired two shots at the two deceased whereas Juma Khan appellant, who might have carried a stick, gave injuries therewith to one of the deceased. It was next pointed out that according to Yusuf Khan P. W. (in his statement under section 161, Cr. P. C.) Jamaid Khan appellant fired the first shot at Baz Gul deceased which did not hit him whereas he fired the second shot while placing his revolver on the head of Baz Gul deceased and it hit him on the top of his head. It was submitted that according to the medical evidence Baz Gul deceased had a fire arm injury on the frontal portion of the head and, therefore, the testimony of this witness was not being supported by the medical evidence. It was next pointed out that the dimensions of both the fire-arm injuries on the two deceased were the same and according to the opinion of the doctor it was possible that the two fire-arm injuries which proved fatal in the case of the two deceased had been caused by two different shots from the same weapon. It was next pointed out that the injuries sustained by both the appellants, in the instant case, were also of the same dimensions and in the opinion of the doctor the injury on the person of Juma Khan appellant could have been caused with a stick blow. Thus, it was argued that it was improbable that two stones which were thrown on the appellants should result in the injuries of the same dimensions on their foreheads. Consequently, it was submitted that Yusuf Khan P. W., the sole eye-witness of occurrence, might have not witnessed the occurrence, but since he had a motive to falsely implicate the appellants, he came forward to provide a false account which was not only uncorroborated but was not being supported by the medical evidence. It was then argued that if this Court was to arrive at the conclusion that they were only the appellants who had caused injuries to the two deceased in the instant case, then firstly, the Court has not been taken into confidence as to what had preceded immediately before the occurrence and as to why the appellants found it necessary to throw stones on the land of the complainant-party, particularly when there nothing on the record to show that there existed any previous enmity between the parties ; and secondly, on the exchange to abuses between the two sides there might have been a sudden flare up in the course of which fire-arm injuries were caused as well as blunt-weapon injuries to the two deceased in the instant case by the appellants who had themselves received injuries at the hunds of the complainant-party. It was further argued in the alternative that Jamaid Khan appellant might have acted under the influence of his father, i,e, Juma Khan appellant. It was submitted that if the testimony of the sole eye-witness was unreliable and it was considered as uncorroborated, then a case was made out for acquittal of the appellants. On the contrary, if this Court was to rely on the testimony of the sole eye-witness and arrive at the conclusion that it at least finds corroboration by the recovery evidence so far as Jamaid Khan appellant is concerned, then Jamaid Khan appellant might have acted under the influence of his father Juma Khan appellant and consequently case was made out for the awarding of lesser penalty not only to Juma Khan appellant but also to Jamaid Khan appellant. It was further submitted that the full facts under which the incident took place have not been disclosed and the Court has not been taken into confidence as to what immediate cause led to the occurrence. Furthermore, it could also be said that a sudden flare up might have resulted into the occurrence and if that was the case, then the awarding of capital punishment to both the appellants was uncalled for and a case was made out for the awarding of lesser penalty to both of them.
' We have carefully considered the arguments of learned counsel in the light of the record. There is nothing on the record to indicate that there was a background of previous enmity between the parties. According to Yusuf Khan P. W. When he arrived at the scene of crime, the accused-party were throwing stones on the land of the complainant-party and when Baz Gul deceased stopped them, there was an exchange of abuses between both the sides. Thereafter, the occurrence is reported to have followed. Thus, the Court has not been taken into confidence as to what actually transpired shortly before the occurrence, I e. Why the appellants started throwing stones on the land of the complainant-party. We have carefully gone through the testimony of Yusuf Khan P. W.
We do not agree with learned counsel that since the sister of this witness, who had been married to Juma Khan appellant, was divorced in 1945, he was inimically disposed of towards the appellants and found a motive to falsely implicate them after so many years in 1975. We are consequently of the view that he cannot be considered as an interested witness merely for this reason. It may further be pointed out that Noorullah P. W., the first informant, did not claim himself to be the eye- witness of the occurrence. He was only informed about the same. Consequently, at the time of the registration of the F. I. R. He missed to give an account as to how the two appellants received injuries in the instant case. But the statement under section 161, Cr. P. C. Of Yusuf Khan P. W. Was recorded by the Investigating Officer on the same day and he had given an account as to how the two appellants received injuries on their heads at the hands of the two deceased. It may further be pointed out that the appellants when arrested on 25th August, 1975 had one injury each on their persons and they were medically examined by the doctor on 26th August, 1975, i,e, six days after the occurrence. He has stated in the statement that the appellants had received injuries within duration of 5 to 7 days. When the appellants were asked the question at the trial stage to explain the injuries on their persons each of them had stated that he had nothing to say. This leaves no doubt in our mind that both the appellants were present on the spot on the day of occurrence and had received injuries in the course of the same. According to the testimony of Yusuf Khan P. W. Both the appellants were throwing stones from the Banna of their land on the land of the complainant- party when he arrived there. Baz Gul deceased stopped them from doing so and thereafter abuses were exchanged. But according to this witness the matter was patched up and the parties returned to their own Dhokes. However, shortly thereafter Juma Khan appellant, armed with a revolver, and Jamaid Khan appellant, armed with a revolver in one hand and soti in the other hand came to the spot again and challenged Baz Gul deceased that they were going to teach him a lesson for abusing them. Then according to his statement, Baz Gul deceased, in order to reach the Dhoke of his brother Mian Noor deceased, arrived running on the land of Juma Khan appellant. At this stage Jamaid Khan appellant fired a shot at him through his revolver which did not hit him.
Then Baz Gul deceased picked up a stone from the ground and throw it on jamaid Khan appellant which hit him on the head. Thereafter we are told that Jamaid Khan appellant gave him stick blows which fell on his back as well as hand. Then he fired the second shot at Baz Gul deceased which hit on his head and he died on the spot. When Mian Noor deceased came out from his Dhoke in order to rescue his brother, Juma Khan appellant confronted him whereupon Mian Noor deceased picked up a stone from the ground and threw it on Juma Khan appellant which fell on his forehead and thus injured him. Thereupon Juma Khan appellant fired a shot at Mian Noor deceased which hit him on the left side near the armpit and thus he was killed on the spot. Consequently, in our view the account of the occurrence as given by Yusuf Khan P. W. Is not improbable in any way. The appellants have injuries on their heads curiously enough of the same dismensions but since they had been caused by a blunt weapon, they could have been caused with stones and if the doctor had said that they could also be caused with a stick, then this opinion is not of much value, for, a blunt-weapon injury can be caused with a Stick or a stone, particularly when the dimensions are x I" x 1". Similarly, the view of the Medical Officer to the effect that it was possible that the two fire-arm injuries could have been caused by two different shots from the same weapon is not of much value. If the two separate weapons are of the same type, i,e, .32 bore, then there is no reason why the dimension of the two firearm injuries which hit on the heads of the two different deceased, may result into injuries of the same dimensions. Learned counsel attempted to argue that the testimony of the sole eye-witness should be considered with abundant caution because it was uncorroborated and he had tried to persuade us that the recovery evidence, in the instant case, was unreliable. It is correct that according to the record, the sole crime-empty P. 9 was picked up on 21st August, 1975. This crime-empty was of .32 bore and there was also a live cartridge of 32- bore P. 10 picked up from the spot along with it. As for the argument of learned counsel that from a revolver no crime-empty could fall from its chambers, no opinion can be expressed. The fact remains that one crime-empty P. 9 and one live cartridge P. 10 were picked up from the spot on 21st August, 1975. These recoveries ramained with Mahboob Ali A. S.-I. P. W. In the form of a parcel from 21st August, 1975 to 22nd August, 1975 when he handed over the investigation to Ghulam Muhammad S.-I. P. W.
9. Ghulam Muhammad S. .1. P. W. Arrested both the appellants on 25th August, 1975. On 25th August, 1975 he gave parcel of these recoveries to Ghulam Muhammad Head Constable P. W. 4 who kept them in the Malkhana and handed over to Taj Muhammad F. C. P. W. 5 on 27th August, 1975 for onward transmission to its destination. In other words, if the parcel of these recoveries remained with Ghulam Muhammad S.-I. P. W., it remained from 22nd August, 1975 to 25th August, 1975 and he had not been asked as to why he had kept the parcel in his custody for three days. In any case, the parcel of the recoveries was forwarded to the Pire-Arms Expert on 27th August, 1975. It is stated in the cross-examination by Ghulam Muhammad S. I. P. W. That he obtained personal remand of the appellants for six days on 26th August, 1975 and interrogated them for the recovery of weapons on 27th August, 1975. His interrogation continued till 30th August, 1975. On 30th August, 1975 at about 6- 00 p.m. They got the recoveries effected. There is no evidence on the record to indicate the possibility that the recoveries of revolvers from the appellants were effected on the date of their arrest, i,e, on 25th August, 1975 by Ghulam Muhammad S. 1.-P. W. And that when he had recovered the same, he was still keeping the parcel of the crime- empty in his custody. The crime-empty parcel was sent forwarded on 27th August, 1975 whereas the firearms were recovered on 30th August, 1975. The fire-arms were kept in the Malkhana from 30th August, 1975 to 16th September 1975 when they were delivered to the office of the Forensic Laboratory. There is nothing on the record to show that the investigation had been conducted in a dishonest manner. The agument of learned counsel is that in the report of the Fire-Arms Expert revolver P. 5 is mentioned as of Hameed Khan and not Jamaid Khan appellant. In our view this is merely a typographical error, for, revolver P. 5 had been recovered from Jamaid Khan appellant. In any case there is matching of the single crime-empty P. 9 picked up from the spot at least with revolver P. 5 stated to have been recovered from Jamaid Khan appellant. However, it does not make any difference if the testimony of the sole eye-witness, in the instant case, finds corroboration at least so far as Jamaid Khan appellant is concerned, for, we consider the testimony of the sole eye-witness as reliable and it is not necessary to seek its corroboration from the recovery evidence. Thus, in our view since the conviction of the appellants can be based on the ocular testimony of a single witness, namely, Yusuf Khan P. W. In the instant case, the conviction of the appellants under section 302/34, P. P. C., in the circumstances, was quite proper and is accordingly maintained.
' Now the question remains as to what sentence should have been awarded to the appellant.
Learned counsel has argued that Jamaid Khan appellant might have acted under the influence of his father, namely, Juma Khan appellant. It has also been argued that the Court, has not been taken into confidence as to what actually transpired immediately before the occurrence and furthermore that the occurrence might have been a result of a sudden flare up. It has already been observed that there is nothing on the record to indicate that there existed any previous enmity between the parties. The sole eye-witness of the occurrence has not informed us as to why the appellants had started throwing stones on the land of the complainant-party. When he arrived at the scene of crime, he saw the appellants throwing stones. Therefore, there was exchange of abuses. Then according to him the parties were separated. However, shortly after the occurrence followed. We have already pointed out that the presence of the appellants on the spot is established because of the injuries on their persons. Baz Gul deceased stated to have thrown a stone which hit Jamaid Khan appellant on the head whereas Mian Noor deceased is stated to have thrown a stone which hit Juma Khan appellant on the head. Then it is stated that Jamaid Khan appellant gave stick blows to Baz Gul deceased and also fired a shot at him which killed him and Juma Khan appellant fired a short at Mian Noor deceased and killed him. The throwing of stones, the exchange of abuses, adjacent lands off the parties, no background of previous enmity, Court not having been taken into confidence as to what actually transpired just before the occurrence, these factors at least raise this probability that there might have been some kind of flare up which had resulted in the occurrence. Taking into consideration this probability, we are of the considered opinion that it would be sufficient to meet the ends of justice, in the circumstances, if both the appellants are awarded lesser penalty in the instant case. The result is that the conviction of the appellants under section 302/ 34, P. P. C. Is maintained, but their sentences of death on each count are reduced to that of imprisonment for life. The sentence of fine to both the appellants is maintained. With this modification the appeal is dismissed.
' The death sentence awarded to both the appellants is not confirmed.