1. MUHAMMAD MUNIR, C. J.-This appeal by special leave is by Sher Muhammad and Abdul Sadiq alias Sadiq whose conviction of murder and sentences of death have been confirmed by the Court of Judicial Commissioner, N.-W. F. P.
2. In the course of a riot over rival claims to possession of small strip of land six persons, namely, Sheru, Abdulla, Farid, Abdur Rariman, Sikandar and Maruf, were shot dead and some more injured on the morning of 31st July 1952, on the northern bank of a hill torrent between village Monchora and village Darwesh in the District of Hazara in the North-Western Frontier Province. The transaction was the subject of a trial before the Sessions Judge, Hazara, at which Sher Muhammad, Abdul Sadiq appellants and Taj Muhammad, Sultan Muhammad, Abdul Qayyum and Pir Muhammad were charged with being members of an unlawful assembly, and having killed six persons in prosecution. Of the common object of that assembly. The learned Judge convicted Sher Muhammad and Abdul Sadiq and acquitted the remaining four.
3. Taj Muhammad, Sultan Muhammad and Abdul Qayyum, three of the acquitted accused, are brothers, while Pir Muhammad, the fourth acquitted accused and Sher Muhammad appellant, are their first cousins. Sadiq appellant is married to their sister.
4. Sheru and Abdullah deceased were brothers whose first cousin was married to Farid deceased.
5. Abdur Rahman deceased was the father of the wife of Sheru deceased while Sikandar deceased was Sheru deceased's maternal uncle and Maruf deceased his maternal cousin.
6. Two years before the present occurrence Ali Bahadur, father of Abdul Qayyum, was killed and Sheru deceased was tried for that murder but acquitted. Thus though there is some history of enmity between the two parties, the real cause of the murders was the disputed possession of some land.
7. The villages of Darwesh and Monchora which are separated by a hill torrent are the property of the Ruler of Amb. Some land in Darwesh was cultivated by Sheru deceased and his relatives, but the whole of that village was given by the Ruler in dowry to his daughter on the occasion of her marriage with Muhammad Aslam Khan. The donee ejected Sheru and his father from the land but they both entreated the Ruler to give them land elsewhere. He agreed and gave them some land in Monchora. The attack took place in Khasra No. 225 and the prosecution case is that it was this Khasra No. Which had been given by the Ruler to Sheru deceased and his father. The defence case, however, is that this Khasra No. Was situate in village Darwesh and was in the possession of the party of the appellants. The learned Judges of the Judicial Commissioner's Court have found that Khasra No. 225 belonged to the family of Sheru deceased, that none of the accused had any title to it, and that Sheru and his relatives were affirmatively in possession of it when the occurrence took place. This finding is based on oral, docu--mentary and circumstantial evidence, and there is no sufficient reason for us to interfere with it.
8. The account of the occurrence which ended in the murders is given by four eye-witnesses, namely, Mst. Roshan Jan wife of Sheru deceased, Mst. Sakhi Jan, mother of Mst. Roshan Jan, Faqir who lives in the house of Mst. Resham Jan, and Gulab Shah who is an Imam Masjid in Darwesh and a completely independent witness. The story of the two woman witness and Faqir is that all the six accused came to the land in question at one and the same time, Sultan Muhammad with a pair of ploughs and an axe, and the remaining five all armed with guns and rifles. Sultan Muhammad entered the disputed land while his com--panions stood at a little distance near a khola on the roadside: Seeing Sultan Muhammad bent upon ploughing the land Sher Muhammad, whose house was only 10 or 12 paces distant and who at that time was repairing the boundary wall of the field, went over to Sultan Muhammad to protest against his having trespassed on the land, but he was fired at and wounded by Sadiq appellant. Immediately after this, Taj Muhammad, one of the acquitted accused and Sher Muhammad appellant fired and Sheru lay dead on the ground.
9. Sheru's brother, Abdullah, who was working nearby advanced towards his brother, but he was also fired at by the gun-men and injured. The gun-men then entered the field where Sultan Muhammad was. The remaining four deceased persons, namely Farid, Maruf, Skindar and Abdur Rahman were staying as guests in the house of Sheru deceased. Having heard the sound of gunfire they came out and were all killed on the spot by gunshots. The account given by Gulab Shah, however, slightly differs in one particular. He agrees with the other witnesses that Sultan Muhammad bad started ploughing the land, and that his other companions were standing near a dheri but he proceeds to say that Sheru deceased did not come alone and unarmed, but was accompanied by several persons who, after Sheru was fired at, had come to the field armed with sticks, engaged in a fight with the gun-men and were all killed.
10. Another piece of evidence in the case was the dying declara--tion of Abdullah recorded first by Muhammad Zaman constable who had come immediately on the scene, and then by Kala Khan A.
11. S. I. In his first statement Abdullah stated that Abdul Qayyum, Shera, Sadiq, Faqir, Muhammad, Khan Zaman, Sultan and Taj Muhammad, had injured him and others, and that Sher Muhammad had a stengun. When Kala Khan questioned Abdullah, he was on the verge of death and was almost uncon--scious. He could utter only one sentence with difficulty and that was that Sher Muhammad had injared him with a gun.
12. It may be mentioned here that some of the accused persons also had some injuries on them. Thus Tai Muhammad had a bruise, Sadiq, a bruise and a contused wound, Abdul Qayyum, several bruises and abrasions, two contused wounds and a stick mark, and Sultan Muhammad, three bruises and three contused wounds. Although there was some explanation of these injuries in the evidence of Gulab Shah, the learned Judges thought that the blunt weapon injury on Sheru deceased and the several injuries on Sultan Muhammad and his brothers could only be explained on the hypothesis that there was at first a mutual exchange of blows between Sheru and Abdullah, deceased, on the one side, and Sultan Muhammad and his brothers on the other, that in this fight Sheru and Abdullah having worsted Sultan Muhammad and his brothers, the latter shouted for help, and that in response to this shout, Sadiq and Sher Muhammad appellants came armed and caused injuries to Sheru, Abdullah and some of other deceased persons. On this finding, they dismissed the Crown appeal against the acquittal of Taj Muhammad, Sultan Muhammad Abdul Qayyum and Pir Muhammad, but maintained the convictions and sentences of Sadiq and Sher Muhammad.
13. With the assistance of counsel, we have gone through the evidence and do not find ourselves confronted with the difficulty that appeared to present itself to the learned Judges in discovering an explanation of the injuries on some of the accused and the contused wound on Sheru deceased. It is true that of the four eye-witnesses three do not expressly admit that after the attack on Sheru and Abdullah the other deceased persons joined the fight, but all three of them do state that they did come at that stage. Nor do these witnesses make any reference to any fight between the gun-men and these deceased persons. There was thus an omission in their evidence which they were not required to explain, but which could quite easily be explained by the evidence of Gulab Shah, who had distinctly stated that the relatives of Sheru came after the attack on him, that they were all armed with sticks and that they fought with the gun-men and got killed, with the exception of Abdullah who ran for some distance and dropped. The evidence of the eye-witnesses was, therefore, easily reconcilable and a definite finding could have been recorded one its basis that Sultan Muhammad brought his partisans who were all armed with guns ; that he attempted to plough the disputed field ; that Sheru deceased objected to this ; that for this objection he received two bullets in his body ; that Abdullah came either accompanied by Abdur Rahman, Farid, Sikandar and Maruf deceased or a little earlier before the others, that they were all killed by the gun-men after some resistance, and that the injuries to the three accused were caused when the gunmen and Sultan Muhammad were resisted in their act of trespass. On these findings, there could be no doubt that every one of the accused was guilty of murder. If, as has been found, Sheru deceased was in possession of land, Sultan Muhammad had no right to bring a band of armed helpers with him to take forcible possession of the land. Only a few days earlier while reporting the dispute to the police Taj Muhammad accused had stated that he would have recourse to the civil Court to vindicate his rights. There is thus no question of Sultan Muhammad's having acted bona fide or in exercise of the right of private defence of person or property. So far as the two appellants are concerned, they were undoubtedly guilty, and we dismiss their appeal.