MUSHTAQ HUSSAIN MUNIR, J.-Shahu (55), Farid (45), Amir (40), Manzur (45), Ramzan alias Ramoon (50), Lal alias Lalu (50), Lashkari (65) and Yousaf alias Anno (40) were con--victed by the learned Sessions Judge, Lyallpur, under section 396 of the Pakistan Penal Code for committing murder of Muhammad deceased son of Jagu, while jointly committing dacoity and under section 395 read with section 397, P. P. C. For attempting to cause the death of or causing grievous hurt to Sultan (P.
W. 11) being armed with deadly weapons. Shahu and Farid accused have been sentenced to death under section 396 of the Pakistan Penal Code and to ten years' rigorous, imprisonment and a fine of Rs. 2,000.00 each in default of payment of which, to further rigorous imprisonment for three years each under section 395 read with section 397 of the Pakistan Penal Code. The latter sentences, awarded to them, have been directed to operate only, if the death sentences were not confirmed by this Court. The remaining accused, namely, Amir, Manzur, Ramzan, Lashkari, Yousaf and Lal have been sentenced to transportation for life and a fine of Rs. 2,000.00 each under section 396 of the Pakistan Penal Code and in default of the payment of fine, they have been directed to suffer further rigorous imprisonment for a period of three years each. They have also been awarded ten years' rigorous imprisonment and a fine of Rs. 2,000.00 each under section 395 read with section 397 of the Pakistan Penal Code. In default of payment of fine, they have been directed to suffer further rigorous imprisonment for three years. Their sentences however, have been directed to run concurrently. The convicts have come up in appeal bearing Criminal Appeal No: 361 of 1968. Shahu has also been convicted under section 13 of the West Pakistan Arms Ordinance and has been awarded to years' rigorous imprisonment. Against the said conviction he has preferred Criminal Appeal No. 363 of 1968. Farid to has been convicted under section 13 of the West Pakistan Arms Ordinance and has been awarded to years' rigorous imprisonment. His appeal against that conviction bears Crimi--nal Appeal No. 362 of 1968. The case of Shahu and Farid is also before us for confirmation of their death sentences. This judgment shall dispose of the aforesaid appeals and the murder reference.
2. Manzur and Amir accused are brothers. Lal is their cousin. They are Kharal by caste and are residents of Msmdana Khurd. The remaining accused are not related to them. Farid accused is a cobbler by caste and is resident of Mamdana Khurd. Shahu is a resident of Chak No. 12/l4-L, District Sahiwal. Ramzan is a Machhi and is resident of Chak No. 731 G. B. Lashkari and Yousaf are Mirasi by caste and are residents of Kalera Khurd.
3. The prosecution case is, that Ghulam (not produced), a brother of Muhammad (P. W. 7), exchanged a buffalo belonging to the latter with the buffalo of Manzur appellant without the permission of the owner, f. e. Muhammad P. W., when he was away from the village. After his return he came to know of the exchange and also saw the buffalo of Manzur accused tethered at his behni. He took it to his brother Ghulam and told him, that he was not prepared to keep it. Hz further told him, that he could either keep the buffalo himself or return it to Manzur accused. Upon this his brother, Ghulam accom--panied him and both of them met Manzur and requested him to cancel the exchange. The latter did not agree and thus they returned home. Muhammad's buffalo remained with Manzur and it was not returned to him in spite of his having approached Manzur appellant several times.
4. After about a month, the buffalo of Muhammad P. W. Strayed into his behni and he tethered it there. Manzur appellant approached him and he put him of by saying, that his buffalo was with Ghulam and he could take it back from him. He made it clear, that he would not return his own buffalo. It is thereafter, that Manzur got a case of theft registered against him and during the course of the investigation the police officer handed over the buffalo to Bahawal Khan (P. W. 8) on superdari. Muhammad P. W. Was not challaned in the theft case, which was got cancelled.
5. Bahawal Khan P. W. Made over the buffalo of Muhammad P, W, to the latter's brother Bahadur (P.
W. 9), who is a resident of Chak No. 732, which is at a distance of seven miles from leis village.
6. On the night between 5th and 6th of January 1966. Bahadur (P. W. 9) was asleep in his dhari situated in Chak No. 732, G. E. When at about mid-night he heard noise of' barking 'of the dogs. He woke up and saw the eight appellants in his courtyard. His wife, his wife's sister and his daughter were sleeping inside the kotha, whereas he himself was sleeping outside under a chhapar. The disputed buffalo was tethered under an adjoining chhapar. Farid and Lashkari appellants, were armed with guns while the remaining with sticks. Fartto and Lashkari fired shots in the air in order to frighten him, whereas Lal and Amir unchained the buffalo. Ramzan, Farid and Manzur accused chained the door of the kotha in which the ladies were asleep, from outside. Raisin lalkaras, the appellants took away the buffalo. After the departure of the appellants Bahadur unchained the door of the kotha and started raising alarm and so did the ladies, who were sleeping inside. He then followed the appellants and also went on raising alarm upon which several persons from the adjoining dharis joined him in the pursuit and it was near Chah Chakar Bakar, situated in Chak No. 738 G. B. That the appellants were encircled. At that the Shahu and Farid were carrying guns.
Muhammad deceased and Sultan P. W. Went ahead. Muhammad deceased managed to catch hold of the buffalo while Sultan P. W. Was near him at that the. Shahu appellant is stated to have fired, which hit Muhammad deceased in his chest on the right side. Farid also fired, which hit Sultan on the right upper arm. Amir and Lal were captured at' that place. The buffalo was snatched from them. Shahmand (P. W. 1 3) managed to snatch the gun from Shahu accused and hit hire with the same on the back of the head, with the result that its butt was broken.
7. Except Amir and Lal accused, who had been captured at Chah Chakar Bakar, the rest of the appellants took to heals. They were chased by Nek Muhammad (P. W. 10). Muhammad deceased was carried to Chah Faridwala and Sultan P. W., who was also injured, went away to his house.
Bahadur P. W. Took away the buffalo to his dhari and after tethering it there, returned to Chah Faridwala and found that Muhammad had by then expired. He left for Police Station Kamalia, which is about nine miles from his village and arriving there in the early hours of the morning, lodged report Exh. P. T. At 4 a.m. On 6th January 1966.
8. Nek Muhammad (P. W. 10) and Zawar Hussain (P. W. 10), who were armed with guns, fired at the appellants at Chah Chakar Bakar. They were joined by many other people and followed the culprits, who tried to escape. Amongst these persons were Jamal Din (P. W. 14) and Farid (P. W. 15), who also had guns. On arrival near Chah Lalwala, the appellants divided themselves into to groups.
One group consisting of Shahu, Lashkari and Yousaf managed to escape, while the other group, consisting of Manzur, Ramzan and Farid took up position in a cotton field and fired at their pursuers.
Some shots were fired by the pursuit party as well, which had taken up position near a dry watercourse, Farid and Ramzan were captured at that place. Jamal Din P. W. Is stated to have snatched the; grin from Farid and be hit him with it, as a result of which, its butt broke. Some empty cartridges were also recovered from the pocket of Farid appellant. Hamand Lambar--dar arrived and he took aforesaid Ramzan and Farid appellants into custody.
9. Sub-Inspector Ghulam Muhammad (P. W. 17), after recording the first information report, arrived at Chah Farid--wala at about 6-30 a. m. He prepared injury statement Exh. P. EE and inquest report Exh. P. DD of Muhammad deceased and sent his dead body for post-mortem examination. Sultan P.
W. Was injured. He prepared his injury statement Exh. P. FF and sent him for medical examination.
He then went to Chak No. 732 G. B. And took into possession the disputed buffalo vide memo. Exh P.
A. He thereafter went to the place of murder situated in the area of Chak No. 738 and took into possession blood-stained earth vide memo. Exh. P. D. He recovered ten .12 bore empty cartridges P.
6 to P. 15 and after sealing them into a parcel took them into his possession vide memo. Exh. P. E.
The broken butt P. 16 was lying at that place. It was taken into possession vide memo. Exh. P. G. He then went to the place, where exchange of fire had taken place between the parties at Chah Lalwala and took into his possession eleven .12 bore empty cartridges P. 23 to P. 33 vide memo. Exh.
P. F. After sealing them into a parcel. He also recovered broken butt Exh. P. 17 from that place and took it into his possession vide memo. Exh. P. H. He then went to Chak No. 738 G. B. Where Shahamand P. W. Produced.l2 bore double-barrel gun P. 21, which he was alleged to have snatched from Shahu appel--lant. He sealed it and took it into possession along with the broken butt vide memo. Exh. P. C. Jamal P. W. Produced 12 bore single-barrel gun P. 22, which he was alleged to have snatched from Farid appellant. It was sealed along with butt P. 17 into a parcel and eras taken into possession vide memo. Exh. P. J.
10. Amir, Lal, Ramzan and Farid appellants were arrested on 6th January 1966. From personal search of Amir, the Sub---Inspector recovered three keys P. 1 to P. 3 and chaini P. 4 and took them into possession vide memo. Exh. P. B. The accused were injured. Their injury statements were prepared and they were sent for medical examination. Manzur, who had absconded, was arrested on 11th January 1966. He was injured. His injury statement was prepared and he was got examined.
Shahu appellant had also absconded. He declared proclaimed offender. He was arrested on 5th February 1966. Lashkari and Yousaf appellants were arrested on 7th January 1966. Both of them were injured. Their injury state--ments were prepared and they were got medically examined.
11. Dr. Muhammad Yaseen (P. W. 1) performed autopsy on the dead body of Muhammad deceased on 6th January at 4-39 p.m., and found the following injuries :-
(1) A big gun-shot wound 2' x 1 --", over the upper past of right shoulder blade with the destruction of the underlying bones and soft tissues opening also the shoulder-joint.
(2) Five pellets wounds on the; margins of the upper wound on its inner aspect about -- x --" each., There is :-Jury to the underlying tissues.
(3) A pellet wound --" x --", over the front of the right side of chest at its upper part near the shoulder joint. A pellet was recovered from the wound.
(4) A pellet wound, --" x --", over the front of the upper part of chest below injury No. 3.
Upper four ribs in front were fractured. Two pellets were recovered from the chest wall and one from the right pleural Sac. Death was due to shock and haemorrhage on account of injuries Nos. 1 and 2. All the injuries ' were anti-mortem and were sufficient to cause death in the ordinary course of nature. Those were gun-shot injuries. Probable the that elapsed between the injuries and the death was about 1 to 2 hours and the between death and post-mortem was within 18 hours.
12. On the same day, the same doctor examined Sultan P. W. And found the following injuries on his person :-
1. A gun-shot wound, 3" x 2", over the upper part of the back of right upper arm with splintering of the underlying bone and destruction of soft tissues: corresponding with this injury there were 5 gun-shot wounds on the front of the upper part of right upper arm. The bigger wound was 2--' x 2" while smaller ones were --" x --. There was much loss of blood. There was no pulse on the right side. The condition of the injured was dangerous. The injuries were grievous dan--gerous and were caused by gun-shots within 12 to 15 hours. Exh. P. U. Is the post-mortem report of Muhammad deceased and Exh. P. V. Is the medico-legal report of Sultan P. W.
13. On the same day, the same doctor examined Amir, Lalu, Farid and Ramzan appellants. On the person of Amir he found seven injuries caused with blunt weapon, out of which to were kept under- observation and the rest were simple.
On the person of Lalu, he found one injury, caused with blunt weapon.
Farid had five injuries, out of which three were caused with blunt weapon and these were kept under observation, while the rest had been caused with pointed weapon. There were punc--tured wounds.
Ramzan had following injuries on his person :-
(1) Three pellet wounds, --' x --", each on the upper and inner part of right buttock near the natal cleft.
(2) Three pellet wounds, --' x --" each on the upper and outer part of right buttock near the anterior spine.
(3) A pellet wound --' x --" on the middle on right buttock.
(4) A pellet wound, --" x --" about 3" in front and above injury No. 3.
(5) A pellet wound --" x --", on the inner and lower aspect of right buttock near the natal cleft.
A pallet wound, --" x --" on the outer aspect of middle of right buttock nearly on the line with the anterior spine.
(7) Two pellet wounds, --" x --" each on the back of the right upper arm at its lower part (advised X-ray of right buttock).
Injury No. 7 was simple and the rest were kept under obser--vation. The injuries were the result of gunshots.
14. The same doctor examined Lashkari appellant on 7th January 1966, and, found the following injuries on his person :-
(1) A deep abrasion, --" x --", over the right palm near the base of the thumb.
(2) Swelling of the middle finger of right hand.
(3) A pellet wound over the upper part of left side of back near the top of left shoulder-joint. It was - -" x --".
(4) A pellet wound over the front of the upper part of the left side1 of chest near the top of the left shoulder-joint. It was --" x --".
(5) A pellet wound over the upper part of the right side of back near the upper border of shoulders blade. It was --" x --".
(6) Another pellet wound over the upper part of the front of right side of chest. It was --" x --".
Injuries Nos. 1 and 2, which had been caused with blunt weapon were simple and the rest which had been caused with gunshots were kept under observation.
15. On the same day, the same doctor examined Yousaf appellant and found the following injuries on his person :-
(l) A pellet wound, 1/8"x 1/8" over the back of the right shoulder with the pellet showing out of the wound.
(2) A pellet wound, 1/8" x. 1/8" over the right side of the back near the inner border of the shoulder blade with the pellet showing out of the wound.
(3) A pellet wound, 1/8" x 1/8" over the right side of the back about 1" below injury No., 2, the pellet was showing out of the wound.
(4) A pellet wound, 1 /8" x 1 /8" over the lower part of the back near the middle line with pellet showing out of the wound.
(5) An abrasion, 1/8"x 1/8", over the right buttock. Injury No. 5 was caused with blunt weapon, whereas the rest by fire-arms.
16. The same doctor examined Manzur appellant on 11th January 1966 and found three simple injuries, caused with blunt weapon, on his person. These had been caused within five to six days.
17. Sub-Inspector Ghulam Muhammad (P. W. 17) took into possession '12 bore double-barrel gun Exh. P. 21, which had been produced before him by Shahamand (P. W. 13), which the latter claimed to have snatched from Shahu appellant. It was in broken condition. The broken pieces of butt P. 16 fitted this gun. The same Sub-Inspector took into possession gun P. 22 in broken condition from Jamal Din (P. W. 14), which he was alleged to have snatched from Farid appellant. The broken butt P. 17 fitted this gun. These guns along with the recovered crime empties were sent to the Ballistic Expert, Shah Jahan Khan ,P. W. 18). His comparison revealed, that crime empties marked C. 2, C, 13, C. 14, C. 15, C. 17 and C. 21 had been fired from the left barrel of the'12 double-barrel shot-gun bearing No. 60933. The remaining crime empties were not fired from that gun. No opinion could be expressed by him with regard to the single-barrel shot-gun as it was not in working order.
18. With the exception of Shahu appellant, the rest of the appellants have admitted their presence at the the of the occurrence. Shahu has denied his participation and even his presence. Manzur appellant has given the defence version. He has stated, that eight months before the occurrence in question Muhammad P. W. And his brother Ghulam exchanged a buffalo with him. They thereafter approached him for the cancellation of exchange to which he did not agree, in spite of the fact, that Muhammad P. W. Sent many persons to him. Some days before the occurrence, in question, the buffalo, which he had obtained from Muhammad and Ghulam in exchange was stolen from his dhari. He followed the tracks, which led him to the dhari of Muhammad P. W. He then got a case registered for the theft of his buffalo and as a result the police officer, during the investigation, gave both the buffaloes to Bahawal P. W. On superdari. About ten days before the occurrence, Bahawal passed on the buffalo, which Manzur appellant had obtained in exchange, to Bahadur P. W., a brother of Muhammad son of Gahra. Manzur appellant claimed that the along with his com-- panions went in Panchayat to roe house of Bahadur P. W. On the day of occurrence and brought back iris buffalo. In the meantime Ghulam informed several people, Oat the buffalo was being taken to the police station on which those persons chased Muhammad deceased and his companions in order to snatch the buffalo from him. None of the appellants carried a gun. He denied, that Muhammad deceased and Sultan P. W. Were fired at by Shahu and Farid appellants respectively. He stated that Kiel;: Muhammad and Zowar Hussain P. Ws. Fired and as a result Mohd.
Deceased and Sultan were injured. Four appellants, according to him, were captured at that place.
He denied, that Farid and Ramzan were injured at Chah L.Alwala. Accord--ing to him they were also injured at Chah Chakar Bakar and were captured there.
19. Some evidence has been produced in defence. We refer it for it .Is not necessary for the decision of the appeals before us. The onus lies on the prosecution to prove its case-
20. Muhammad son of Gahra (P. W. 7) and Bahadur are brothers. Muhammad deceased was the first cousin of Nek Muhammad (P. W. 10). Zowar Hussain (P. W. 12) is also a relative of Nek Muhammad P. W. 1.
21. The first question requiring determination is, as to whether the appellants are guilty of the commission of dacoity. The prosecution story with respect to the exchange of buffaloes of Muhammad son of Gahra and Manzur appellant has been provided mainly by Muhammad son of Gahra P. W. And his brother Bahadur (P. W. 9). Their brother Ghulam, who is stated to have been instrumental in the exchange has not been produced. Muhammad P. W.'s version is, that his brother, Ghulam, without his permission, exchanged his buffalo with the buffalo of Manzur appellant during his absence from the village. He did not approve of this exchange and approached Manzur appellant and requested him to cancel the same. The latter did not agree in spite of several persons having been sent to him. The witness deposed: "My buffalo remained with Manzur accused for one month. My buffalo strayed and came to my behni. Tethered the buffalo at my behni. Manzur accused approached me. I told him that his buffalo was with Ghulam. He could take back that Buffalo. I further told him that I was not prepared to return my buffalo."
He further deposed, that Manzur appellant got a case of theft registered against him and during the course of the investigation, the police officer made over his buffalo to Bahawal P. W. On superdari. He had, however no knowledge, as to whether Bahawal passed on the buffalo to anybody else. , 21-A. Bahadur P. W. Stated at the trial, that ten days before the occurrence, Bahawal Khan P. W. Sent the buffalo to him, as he had many more cattle with him. In the first information report Exh. P. T., which was lodged by him within a few hours of the occurrence,, he categorically stated, that it was only seven or eight days earlier, that Muhammad sent the buffalo to him. He was duty confronted with this passage and he stated:- `'I did not state before the police that 7/8 days before the occurrence, Muhammad had sent the buffalo to me. (Con--fronted with Exh. P. T. Where it is so recorded in portion marked A to A)."
In view of the conflict in his statement, we believe the latter version that the buffalo was passed on to Bahadur by his brother Muhammad P. W. a few days before the occurrence, especially when the theft case registered against Muhammad P. W. Was got cancelled as stated by Sub-Inspector Ghulam Muhammad.
22. Whatever be the case, whether the buffalo was given to Bahadur by his brother Muhammad P.
W., or by Bahawal Khan P. W., there is no denying the fact, that Manzur appellant had exchanged his buffalo for the buffalo of Muhammad P. W with the latter's brother Ghulam and till the exchange was cancelled and the buffaloes were returned to their original owners, Manzur would continue to be the owner of the buffalo, which he had obtained in exchange. Therefore, even if he took the buffalo from the possession of Bahadur P. W., he would not be guilty of the commission of theft or robbery, as would be evident frown illustration (p) to section 378 of the Pakistan Penal Code, which runs thus: "(p) A, in good faith, believing property belonging to Z to be A's own property, takes that property out of B's posses--sion. Here, A floes not take dishonestly, he does not com--mit theft."
Manzur appellant in good faith believed, that the buffalo belonging to Muhammad P. W., which had been exchanged with his buffalo by Muhammad's brother was his own property and it he took it out of the possession of Bahadur P. W., by virtue of the aforesaid illustration, he would not be guilty of the com mission of theft and consequently dacoity.
23. With regard to the alleged theft on the night of the occurrence, the most important statement is that of Bahadur P. W. And that statement completely exonerates the :appellants. He stated "Farid and Lashkari accused were armed with guns. The other accused were armed with sticks."
Nobody harmed him or the other inmates of the house. The accused fired to shots in the air in order to frighten them. No physical harm was done to any inmate of the house. Another aspect of the case, which shows, that the intention of the accused-- appellants was not to commit theft, but to take away their own buffalo, whether they took it by means of Panchayat or other--wise, is that they did not touch the to buffaloes of Bahadur P. W., which were tethered near the buffalo in question. 'Kahadur P. W. Stated :- "My to buffaloes were tethered near the buffalo, which; is present outside the Court. The accused mace no attempt to take away my buffaloes."
He further deposed, that none of the accused-appellants had beaten him nor they tried to beat him.' From the aforesaid facts, we cannot exclude the possibility, that' the assertion of Manzur appellant, that he along with other appellants except Shahu went in Panchayat to bring back his buffalo from Bahadur, may be correct. However, their conduct in taking away the buffalo, which undoubtedly till then belonged to Manzur appel--lant, does not bring their case within the ambit of section 395 of the Pakistan Penal Code.
24. The next question, which would require consideration is, as to whether Muhammad son of Jagu, deceased lost his life and' Sultan P. W. Received injuries at the hands of the appel--lants. The prosecution version is, that after the appellants had taken away buffalo from the house of Bahadur, they were chased by the latter, who started raising alarm and so did the ladies of the house. When the appellants reached near a place known as Chah Chakar Baqar in the area of Chak No. 738 G. B.
They were encircled by a large number of persons, to of whom, namely, Nek Muhammad (P. W. 10) and Zowar Hussain (P. W. 12) carried guns. Out of the appellants Shahu and Farid appellants had guns with them. Muhammad deceased and Sultan P. W. Went forward. Muhammad caught hold of the rope of the buffalo and Sultan P. W. As also near him when Shahu is stated to have fired at Muhammad deceased hitting him on the right side of the chest. Farid appellant then fired a shot, which hit Sultan P. W. Immediately thereafter Nek Muham--mad (P. W. 10) and Zowar Hussain (P. W.
12) fired, one shot each at the accused in self-defence, whereafter the accused --appellants started running. Shahamand P. W. Managed to snatch the gun of Shahu appellant and hit him on the head with its butt, which broke. So far as the gun in question is concerned it was taken into possession from Shahamand P. W. By Sub---Inspector Ghulam Muhammad (P. W. 17) and he sent it to the Ballistic Expert along with its butt Exh. P.
16. This gun is a doable-barrel gun and some of the crime empties, which were recovered from the spot by the police officer matched it. However, the matter does not end there. It was admitted by the Sub---Inspector of Police in cross-examination, that the gun produced by Shahamand bore No.60933. It was a licensed gun. He admitted, that it belonged to one Lal son of Fateh Muhammad, resident of Jewanwala, whom he cited as a prosecution witness in the case. He, however, did not know, whether the said Lal had been given up.
In view of this state of evidence, it cannot be said positively, that the contention of the prosecution that Shahu appellant was armed with gun is correct. So far as the gun used by Farid appellant is concerned, it is said to have been snatched from him by Jamal Din P. W. And it was found to be broken, because according to Jamal Din P. W: he had given a blow with its butt to Farid appellant.
At this stage it would be pertinent to point out, that the appellants bear a large number of injuries including injuries caused with fire-arms on their persons and no mention of them was made by the infor--mant before the police, although an oblique reference was made that at Chah Chakar Bakar, Nek Muhammad and Zowar Hussain P. Ws. Fired at the appellants in self-defence and thereafter the party was joined by other gunmen, such as Jamal Din (P. W. 14) and Farid (P. W. 15).
They exchanged fire with the appellants when they had taken refuge in a cotton field. At that the.
According to Jamal Din P. W., the prosecution witnesses also had with them Bahawal and Muhammad P. Ws., who had pistols. The story of Jamal Din having recovered a gun from Farid appel--lant appears to be padding, because he had stated in the Court of the Committing Magistrate, although he did not abide by it, that Nek Muhammad P. W. Took the gun from Farid appellant and he gave a blow with the same to him. He was duly confronted with the aforesaid statement.
25. Reverting to the happenings at Chah Chakar Baqar, we would like to point out, that the position of the prosecution is quite clear that the appellants had been encircled. Muhammad deceased went forward and caught hold of the rope of the buffalo and Sultan P. W. Also was near him.
It is then, that Shahu and Farid appellants are alleged to have fired hitting the deceased and Sultan P. Ws. Respectively. In the same breath, almost all the prosecution witnesses have stated, that Nek Muhammad and Zowar Hussain carried guns as they fired in self-defence. The contention of the learned counsel for the appellants is, that it was the firing of Nek Muhammad and Zowar Hussain, which caused the death of Muhammad deceased and injuries to Sultan P. W. When we visualize the position in which the deceased and Sultan were, at the the when Nek-- Muhammad and Zowar Hussain, admittedly fired their guns towards, the appellants, we cannot exclude the possibility that Muhammad lost his life and Sultan was injured at their hands, especially when we are of the view, that in all probability, none of the appellants were armed with guns. As a matter of fact, the number of injuries received by some of the appellants by fire-arms also indicate, that the prosecution witnesses, most of whom were armed, had fired towards them. Nobody had fired at Nek Muhammad and Zowar Hussain P. Ws. And we do not under--stand, as to why they fired in self- defence. Thus in our opinion the appellants, most of whom bear gun-fire injuries, the deceased and Sultan P. W. 'were quite close to each other, when Nek-- Muhammad and Zowar Hussain fired. It were their guns, which caused damage to them and not the so-called guns carried by the appellants. No empty was recovered from the house of Bahadur nor did the police officer mention, that he had seen any pellet marks anywhere in his dhari.
26. The prosecution version does not seem to be above board. Bahadur. P. W. When questioned, as to whether the appellants had also received gun-fire injuries, answered, "I cannot say, if any of the accused received any gun-shot injury."
27. Thus taking an overall view of the case, we are of the opinion, that it has not been established affirmatively, that the appellants are responsible for causing the death of Muhammad deceased and injuries to Sultan P. W. Under the circumstances the appeals are allowed. The conviction and sentences of the a appellants are set aside. They are acquitted. They shall be released forthwith, if they are not required in any other case. The fine, if paid by them, shall be refunded to them. The death sentences awarded to Shahu and Farid are not confirmed.