' JAVID IQBAL, C.J.--(1) Muhammad Aslam, son of Fazal Elahi, aged 40, armed with Sota, (2) Amir Sultan son of Muhammad Zaman, aged 43, armed with Sota, (3) Muhammad Ashraf son of Dhuman Khan, aged 33, armed with pistol .12 bore, (4) Amir Sultan son of Dhuman Khan, aged 35/36, armed with gun .12 bore, (5) Asghar Ali son of Fazal Elahi, aged 45, armed with gun .12 bore,
(6) Muhammad Ashraf son of Muhammad Khan, aged 48, armed with pistol .12 bore, (7) Safdar Ali son of Dhuman Khan, (injured), aged 45, armed with Sota, (8). Lal Khan, son of Bahadur Khan (injured), aged 62/64, armed with Sota, (9) Allah Dad son of Sondhey Khan, aged 55, armed with Sota, and (10) Anwar Sultan son of Muhammad Zaman, aged 28, armed with Sota have been convicted and sentenced vide judgment, dated 18-10-1983 of the Additional Sessions Judge, Sahiwal as follows: Convicts Nos. 1 and 2 stand convicted under section 302, P.P.C. For the murder of Khan Muhammad, aged 60, and No, 1 was sentenced to death plus fine of Rs,4,000 or in default to undergo one year rigorous imprisonment, whereas No, 2 was sentenced to life imprisonment plus the same amount of fine with the direction in both cases that if fine was realized from them, half of the same was to be paid as compensation to the heirs of the deceased. Convicts Nos. 3, 4, 5 and 6 have been convicted under section 307, P.P.C. For murderous assault on Muhammad Yasin (P.W.10) and Ghulam Haider (P.W.11) and each of them was sentenced to ten years rigorous imprisonment plus fine of Rs,2,000 or in default to undergo one year rigorous imprisonment with the direction that if the fine was realized from them, half of the same was to be paid equally to Muhammad Yasin and Ghulam Haider P.W. Convicts Nos. 7, 8, 9 and 10 have also been convicted under section 307, P.P.C. For murderous assault on Muhammad Ramzan (P.W.8) and Manzoor Hussain (P.W.9) and each of them was sentenced to six years rigorous imprisonment plus fine of Rs,1,000 or in default to undergo one year rigorous imprisonment. All of them have been convicted under section 148, P.P.C.
And each of them was sentenced thereunder to one year rigorous imprisonment. The sentences in each case were ordered to run concurrently.
' Convicts Nos. 2 and 10 are brothers inter se and cousins of Convicts Nos. 1 and 5 who are also brothers inter se. Convicts Nos. 3, 4 and 7 are brothers inter se and collaterals of Convicts Nos. 2 and 10. Convict No, 8 is uncle of Convicts Nos. 3, 4 and 7. Convicts Nos. 6 and 9 are not related to the rest but are stated to be their partymen. The relationship of the complainant side is that Muhammad Ramzan (P.W.8) and Ghulam Haider (P.W.11) are brothers inter se and they are sons of the cousin of the deceased. Manzur Husain (P.W.9) is Sala of the brother of the deceased and Muhammad Yasin (P.W.10) is Sala of the cousin of Manzur Husain P.W.
' It may be pointed out at this stage that Convicts Nos. 7 and 8 have received injuries in the course of the occurrence on the accused side along with one Sarfraz Khan of their party who has not been included as an accused person. On the other hand, besides the deceased four persons have received injuries on the complainant side and who are eye-witnesses of this occurrence namely, Muhammad Ramzan, Manzur Husain, Muhammad Yasin and Ghulam Haider P.Ws.
' The appeal of the convicts as well as reference for the confirmation of death sentence awarded to convict No, 1 Muhammad Aslam son of Fazal Elahi are being taken up and heard together with Criminal Revision No, 731 of 1983 praying for enhancement of sentence awarded to Amir Sultan son of Muhammad Zaman, convict No, 2, to death and conviction as well as sentence under section 302/149, P.P.C. To be awarded to the remaining eight of the members of the accused party as well as increased of the compensation in respect of the death of the deceased and injured P.Ws. And these are being disposed of by this judgment.
2. The occurrence took place at about 5 p.m. On 23-10-1980 in the village Abadi of Chak No, 115/12-L at a distance of four miles from Police Station Kassowal, Tehsil Chichawatni, District Sahiwal.
Statement (Exh. P.A.) was made by Muhammad Ramzan (P.W.8) at 10.45 p.m. On the same day and it was recorded by Qadir Bakhsh A.S.I. (P.W.14) outside the District Headquarters Hospital Sahiwal where he chanced to meet the first-informant when he was on patrol duty of another area i.e, Chak No, 90/6-R. On the basis of the aforesaid statement formal F.I.R. No, 187 (Exh. P.A/1) was registered at the police station at 11.55 p.m. On the same day by Niaz Ahmad M.H.C. (P.W.1). Initially the case was registered under section 307/148/149, P.P.C. But on the death of the deceased at 11 p.m. On the same day section 302, P.P.C. Was added thereto.
' It may be pointed out at this stage that cross F.I.R. No, 188 was lodged at Police Station Kassowal pertaining to the same occurrence by the other side on 26-10-1980 at the instance of Raja Nazir Ahmad against Ghulam Haider etc. (17 persons of the complainant party) under section 307/148/149, P.P.C. The defence as adopted in the present case by the appellants is the subject- matter of the cross-case which is not before us at present.
3. The motive from crime as stated in the present F.I.R. Is that on the fateful day half an hour before the present occurrence Manzur Husain P.W. And Muhammad Ashraf son of Dhuman Khan, appellant No, 3, quarrelled with each other. However, Ghulam Haider, Muhammad Yasin and Muhammad Ramzan P.Ws. Alongwith the deceased separated them. But it is stated that Muhammad Ashraf son of Dhuman Khan, appellant No, 3, then left the spot holding out a threat to the effect that he would avenge the insult. Another motive given in the F.I.R. Is that there existed previous enmity between the parties as there was a dispute as well as litigation pending between the parties over a Dera which had previously i.e, 3/4 months prior to the present occurrence, led to a fight resulting in cross-cases against both the parties. It is stated that it was in this background that the present occurrence took place.
4. The prosecution has produced five eye-witnesses of the occurrence namely, Muhammad Ramzan (P.W.8), Manzur Husain (P.W.9), Muhammad Yasin (P.W.10), Ghulam Haider (P.W.11) and Muhammad Waris (P.W.12). The first four are injured in the course of the present occurrence and their relationship with the deceased has already been indicated above. So far as Muhammad Waris (P.W.12) is concerned, he is not related to the rest but is stated to be a partisan and inimical towards the accused side. Bahadur Khan was another eye-witness cited in the F.I.R. But had been given up as unnecessary.
5. In the F.I.R. The occurrence is reported to have taken place in the following manner: As stated in the motive version half an hour earlier than the actual incident Manzur Husain (P.W.9) and Muhammad Ashraf, son of Dhuman Khan appellant No, 3 quarreled with each other and the deceased plus Ghulam Haider (P.W.11), Muhammad Yasin (P.W.10) and Muhammad Ramzan (P.W.8) had separated them. Appellant No, 3 while leaving the spot had held out a threat that he would immediately avenge the insult. Thereafter, it is stated in the F.I.R. That while Muhammad Ramzan, Manzur Husain, Ghulam Haider and Muhammad Yasin P.Ws. Were standing along with the deceased in front of the house of Manzur Husain P.W., the appellants armed as described above came there raising Lalkaras and launched an attack on them. Muhammad Aslam appellant No, 1 gave a Sota blow which fell on the right back side of the deceased who fell down on the ground.
While he was in the fallen condition Amir Sultan appellant No, 2 gave a Sota blow which fell on the back side of the left arm of the deceased. Thereafter Allah Dad appellant No, 9, Lal Khan appellant No, 8 and Safdar All appellant No, 7 gave Sota blows to Manzur Husain (P.W.9) on his head, whereas the Sota blows of Safdar Ali appellant No, 7 fell on his left hand. Then Amir Sultan appellant No, 4 and Muhammad Ashraf appellant No, 6 fired through their respective guns on Muhammad Yasin (P.W.10) and the pellets hit different parts of his body. As a result Muhammad Yasin P.W. Fell down on the ground. Thereafter, Asghar All appellant No, 5 and Muhammad Ashraf appellant No, 3 fired through their respective gun and pistol on Ghulam Haider (P.W.11) who as a result sustained fire- arm injuries. Then Anwar Sultan appellant No, 10 gave a Sota blow which fell on the head of Muhammad Ramzan (P.W.8). On the alarm of the P.Ws. Were attracted to the scene of crime Bahadur Khan (given up as unnecessary) and Muhammad Waris (P.W.12) who were nearby and who witnessed the occurrence besides Muhammad Ramzan, Ghulam Haider, Muhammad Yasin and Manzur Husain P.Ws. Thereafter, the accused party de-camped. Then. Muhammad Ramzan P.W. Brought the deceased in an injured condition, Ghulam Haider, Muhammad Yasin and Manzur Husain P.Ws. Injured in the course of occurrence, to the Civil Hospital, Sahiwal and obtained medical certificates in respect of them. The deceased in an injured condition, Muhammad Yasin and Ghulam Haider P.Ws. Were admitted to the hospital as they were unconscious. It is stated in the F.I.R. By Muhammad Ramzan P.W. That at the time of the occurrence the members the accused party had also sustained injuries at the hands of the complainant side in the exercise of their right of self-defence.
' The deceased died at 11 p.m. On the same night when he was admitted to the hospital.
6. Amir Sultan appellant No, 2 and Muhammad Ashraf appellant No,3 were arrested by Mazharul Haq S.I. (P.W.18) on 28-10-1980. The rest of the appellants were arrested on 30-10-1980 by the same police officer.
' From the spot were recovered two .12 bore crime empties (Exhs. P.4 and P.5) and taken into possession vide Memo Exh. P.Q. Dated 24-10-1980. The attesting witnesses are Muhammad Ramzan (P.W.8) Bahadur Khan (not produced) and Mazharul Haq S.I. (P.W.18).
' It may be pointed out at this stage that from Amir Sultan appellant No, 2, Muhammad Ashraf appellant No, 6, Allah Dad appellant No, 9 and Anwar Sultan appellant No, 10 nothing was recovered and according to the police investigation conducted by three different police officers, including the Crimes Branch and verified by Sub Divisional Police Officer as well as S.P. They were found innocent in the course of the investigation and placed in column No, 2 of the challan (Exhs.
P.W.18/A and P.W.18/B).
' At the instance of Muhammad Aslam appellant No, 1 was recovered blood-stained Sota (Exh. P.9) and taken into possession vide memo. Exh. P.T., dated 9-11-1980. The attesting witnesses are Muhammad Ramzan (P.W.8), Bahadur Khan (not produced) and Mazharul Haq S.I. (P.W.18). It may be pointed out at this stage that according to the report of the Serologist (Exh. P.E.E.) at page 23 of the printed paper-book Sota (Exh. P.9) was found to be stained with human blood.
' From Muhammad Ashraf appellant No, 3 nothing was recovered.
' At the instance of Amir Sultan appellant No, 4 licensed .12 bore gun (Exh. P.6) was recovered and taken into possession vide memo. Exh. P.R, dated 9-11-1980. The attesting witnesses are the same as above. It may be pointed out at this stage that according to the report of the Fire-arms Expert (Exh. P.B.B.) at page 19 of the printed paper-book crime empties (Exhs. P.4 and P.5) picked up from the spot were found to have been fired through each of the barrels of gun (Exh. P.6) recovered at the instance of Amir Sultan appellant No, 4.
' At the instance of Asghar Ali appellant No, 5 was recovered licensed .12 bore gun (Exh. P.11) and was taken into possession vide memo. Exh. P.V., dated 14-11-1980, The attesting witnesses are the same as above.
' At the instance of Safdar All appellant No, 7 who is injured himself was recovered Lathi (Exh. P.10)
(not blood-stained) and taken into possession vide memo. Exh. P.U., dated 9-11-1980. The attesting witnesses are the same as above.
' At the instance of Lal Khan appellant No, 8 who himself is also injured was recovered Sota (Exh, P.8), not blood-stained, and taken into possession vide memo. Exh. P.S, dated 9-11-1980. The attesting witnesses are the same as above.
' In the light of what has been recorded above learned counsel for the appellants wants us to note at this stage that since there is background of enmity between the parties and even previously they had been involved in a fight which resulted in cross-cases, corroboration would be necessary of the ocular testimony .Qua each of the members of the accused party and their version. He further submits that four of the appellants, namely, Amir Sultan No, 2, Muhammad Ashraf No, 6, Allah Dad No, 9 and Anwar Sultan No, 10, were found innocent in the course of the investigation and have been placed in column No,
2. Nothing had been recovered from them and that since no corroboration was coming forth so far as these four appellants are concerned, they might have not been present at the time of occurrence and might have not participated in the occurrence. He next points out that Lathi (Exh. P. 10) and Sota (Exh. P.8) recovered from Safdar All appellant No, 7 and Lal Khan Appellant No, 8, respectively, were not blood-stained and, therefore, these recoveries were of no consequence from the point of view of corroboration. It is next submitted that licensed .12 bore gun (Exh. P.11) recovered at the instance of Asghar All appellant No, 5 was not found matching with any of the crime empties picked up from the spot and that that recovery also was of no consequence as it had no corroborative value. He also wants to point out to us that from Muhammad Ashraf appellant No, 3 was likewise nothing recovered and, therefore, there was no corroborative evidence forthcoming in respect of this particular appellant.
7. The appellants in their statements before the trial Court put forward their own version of the incident. This version is noted specifically from the statement of Safdar All appellant No, 7 who himself was injured in the course of occurrence. It has already been pointed out that two of the members of the accused party, namely, Safdar Ali appellant No, 7 and Lal Khan appellant No, 8 sustained injuries in the course of occurrence alongwith one Sarfraz Khan, a partisan of the accused party, who had not been named as an accused person and a cross-case had also been registered by them as against the complainant side. The version of the occurrence given by Safdar All appellant No, 7 has been adopted by the rest of them and it is as follows:-- "I have been falsely involved in this case due to enmity. In fact I alongwith Sarfraz son of Ashraf Pathan accused had gone to the shop of Khaliq Dad Sial for the sale of goods. After Maghrib prayer when it was dark, in the meanwhile Muhammad Ramzan complainant, Manzoor Husain, Ghulam Haider, Yasin P.Ws. And Khan Muhammad deceased etc. Variously armed with hatchets, sticks and fire-arms reached there and attacked me and Sarfraz and tried to abduct us through force and also caused us injuries. Lal Khan accused was attracted to the spot on the alarm of Sarfraz and myself and when he intervened, he was also injured by the complainant party. Muhammad Nawaz, who is related to the complainant party and whose house is just opposite to the place of occurrence, has got a licensed gun, also arrived there. He fired indiscriminately with his licensed gun and the pellets hit Yasin and Ghulam Haider P.Ws. Due to the darkness. Lal Khan etc. Caused injuries to Khan Muhammad deceased, Ghulam Haider, Manzoor Husain and Muhammad Ramzan P.Ws. In self-defence. Actually the complainant party was aggressor. My other co-accused were not present at the spot at the time of occurrence."
' From the defence version it appears that only two members of the accused party, namely, Safdar All appellant No, 7 and Lal Khan appellant No, 8 alongwith one Sarfraz Khan were present on the spot when they were attacked by the four eye-witnesses who are injured plus the deceased and that those of them who had sustained injuries had either received those injuries while these members of the accused party were exercising their right of self-defence or from the fire shot by one of the relatives of the complainant side whose house was nearby. It may be pointed out at this stage that the defence also produced Dr. Allah Ditta Rana (D.W.1) at page 103 of the printed paper- book, wh medically examined 'Safdar Ali and Lal Khan appellants Nos. 7 and 8 as well as Sarfraz Khan. According to his statement he medically examined Lai Khan appellant No, 8 at 1-30 a.m. On 23-10-1980 and found on. His person a contused wound on the right side of head, a bruise on the back of head, abrasion on the right middle finger of hand, abrasion on the right ring finger of the hand, bruise on the back of left side of chest, bruise on the back of right shoulder, bruise on the back of left side of chest lower part arid bruise with swelling on the outer aspect of left arm. Two of the injuries were kept under observation and the rest of the injuries were found simple. These had been caused by blunt weapon. Subsequently the two injuries kept under observation were also declared as simple.
' On the same day at 1-45 a.m. He medically examined Safdar All appellant No, 7 and found on his person six injuries in the form of lacerated wound on right side of head above right ear, lacerated wound on the right head, lacerated wound on left side of head, swelling on the left hand, bruise on the back of chest and bruise on the back of right shoulder. All the injuries were declared simple and had been caused with blunt weapon.
' On the same day at 1-50 a.m. He medically examined Sarfraz Khan and found on his person an incised wound on the right side of head and a bruise on the back of right shoulder. Both the injuries were declared simple. The first injury was caused with sharp-edged weapon and the second with a blunt weapon.
' It may be repeated here that on the basis of the injuries sustained by these members of the accused party a cross-case was filed under section 307/324/148/149, P.P.C. Against the members of the complainant side.
8. Dr. Muniruddin (P.W.5) medically examined Khan Muhammad deceased while he was still alive at 8-00 p.m. On 23-10-1980 and found on his person a lacerated wound on the back of right side of head and a lacerated wound on the back of lower left forearm. The patient was getting convulsion and he was unconscious. He subsequently died at 11 p.m. On the same night.
' At 3-00 p.m. On the following day i.e, 24-10-1980 he conducted post-mortem examination on the dead body of the deceased and noted the same injuries on his person. The death in his opinion was due to antra-craneal haemorrhage and shock caused by the first injury on the head which was sufficient to cause death in the ordinary course of nature. The second injury was grievous. Both the injuries had been caused by blunt weapon. Probable time that elapsed between injuries and death was about six hours and between death and post-mortem examination about 16 hours. It may be pointed out at this stage that the first injury on the head of the deceased is attributed to Muhammad Aslam appellant No, 1 and the second injury is attributed to Amir Sultan appellant No, 2.
' On 23-10-1980 at 8-30 p.m. He medically examined Ghulam Haider (P.W.11) and found on his person seven injuries in the form of lacerated wounds on different parts of the body including abdomen, umbilicus, buttocks, thighs etc. These injuries had been caused with fire-arm. The 4th and 6th injuries were exit wounds but they were all simple in nature.
' On the same day he performed medico-legal examination of Muhammad Yasin (P.W.10) and found on his person seven injuries in the form of lacerated wounds on different parts of the body in the chest region, 6th and 7th injuries being exit wounds. All the injuries had been inflicted with firearm. The first four injuries on the chest were found to be grievous and the rest simple. The grievous injuries had led to the fracture of 5th, 6th, 7th and 8th right side chest ribs.
' On the same day he conducted medico-legal examination of Muhammad Ramzan (P.W.8) and found on his person a lacerated wound scalp deep on the top of head. The injury was subsequently declared to be simple and had been caused with blunt weapon.
' On the same day he medically examined Manzoor Husain (P.W.9) and found on his person three injuries in the form of swelling on the back of left hand, swelling on the back of left ring finger and multiple lacerated wound on the right side of head. All the injuries were caused with blunt weapon.
Injury on the left ring finger was declared grievous as it had led to fracture, whereas the other two injuries were found to be simple.
' To sum up all the injuries sustained by Ghulam Haider P.W. Are simple in nature although they are caused by firearm attributed to the shots of Asghar All appellant No, 5 and Muhammad Ashraf appellant No,
3. The injury sustained by Muhammad Ramzan P.W. Is also simple in nature attributed to Sota blow of Anwar Sultan appellant No,
10. Manzur Husain P.W. Has sustained one grievous injury on his finger and the other two are simple and these injuries are attributed to the Sota blows of Allah Dad appellant No, 9, Lal Khan appellant No, 8 and Safdar All appellant No,
7. Muhammad Yasin P.W. Has received four grievous injuries on his chest caused by fire-arm and these injuries are attributed to Amir Sultan appellant No, 4 and Muhammad Ashraf appellant No,
6. Learned counsel wishes to point out that in the light of the medical evidence the possibility could not be ruled out that injuries sustained by Muhammad Yasin and Ghulam Haider P.Ws. Were caused by one shot each.
9. We have heard learned counsel for the parties and carefully perused the record. The first argument of learned counsel for the appellants is that admittedly both the sides have long- standing enmity existing between them. It is stated in the 'F.I.R. That there even previously existed a dispute and litigation between the parties over a Dera and 3/4 months before the present occurrence this dispute led to a fight resulting in cross-cases against each other. It is further pointed out by learned counsel that so far as Muhammad Ramzan, Manzur Husain, Muhammad Yasin and Ghulam Haider P.Ws. Are concerned, they were all related to the deceased and partisan eye-witnesses. Learned counsel does not doubt their presence on the spot because all the four of them have received injuries in the course of occurrence but states that since they were partisans, they should be considered as interested witnesses and their testimony should not be accepted without corroboration. In respect of Muhammad Waris P.W. It is stated that he too is partisan and inimical and that his testimony should also not be accepted without corroboration. Since the eye- witnesses produced in the instant case are interested, according to learned counsel for the appellants, it would not be safe to rely on the ocular testimony without going through and examining carefully the recovery evidence in the instant case in order to find out as to whether or not corroboration is forthcoming of their version through an independent source. In this connection learned counsel's second argument is that human blood-stained Sota (Exh. P.9) is stated to have been recovered at the instance of Muhammad Aslam appellant No,
1. Muhammad Aslam appellant No, 1 is stated to have given a blow therewith which fell on the right back head of the deceased and according to the medical evidence it is this injury which proved fatal. Learned counsel submits that ocular testimony in this case is to the effect that Muhammad Aslam appellant No, 1 gave a Sota blow which fell on the head of the deceased. It is submitted that in the instant case admittedly the occurrence took place on 23-10-1980. Muhammad Aslam appellant No, 1 was arrested on 30-10- 1980 i.e, seven days after the occurrence. Thereafter the recovery of human blood-stained Sota (Exh. P.9) is alleged to have been made from him on 9-11-1980 i.e, ten days thereafter. According to the attesting witnesses Sota (Exh. P.9) was found standing in a corner in his room and which was visible and not hidden. It is then submitted that Sota (Exh. P.9) was sent for chemical examination ten days thereafter i.e, on 19-11-1980. The reasoning of learned counsel is that after such a long delay Sota (Exh. P.9) could have not been found to have stains of human blood on it. In this connection he has placed reliance on Arif Husain etc. v. The State 1983 SCMR 428 in which it was held that the accused led to the recovery of blood-stained Chhuri from a room of his house and this recovery was made on 25-7-1978 i.e, 14 days after the occurrence and 11 days after the arrest of the accused. Similarly, recovery of blood-stained clothes of the co-accused was made on 25-7- 1978 and it was doubtful as it was un-believable that a person having incriminating articles in his possession would not destroy the same and on the contrary would preserved them as souvenir for the police to recover the same later on. Reliance is also placed on Abdullah v. The State 1983 P Cr. L J 2582 and Nazir v. The State 1982 P Cr. L J 318.
' In the light of these authorities it is argued that since the recovery of human blood-stained Sota (Exh. P.9) from Muhammad Aslam appellant No, 1 was doubtful, there was no corroboration of the ocular testimony in respect of the part which is ascribed to him in the commission of crime. The third argument of learned counsel is that according to the prosecution version two crime empties of .12 bore (Exhs. P.4 and P.5) were' recovered from the spot in the morning of the day after the occurrence. It is submitted that the occurrence took place on 23-10-1980 at 5 p.m. Whereas the aforesaid two crime empties were picked up from the spot on 24-10-1980 in the morning. It is submitted that in the site plan the place is not shown from where these crime empties were picked up and that the Investigating Officer also does not state in his note as to from where he picked up the two crime empties in this case. It is then stated that according to the report of the Fire-arms Expert the two crime empties are stated to have been fired through each barrel of the double- barrelled licensed .12 bore gun (Exh. P.6) recovered at the instance of Amir Sultan appellant No, 4.
The argument of learned counsel is that if this proposition was correct that two shots had been fired through each of the barrels of this gun, then the crime empties should have gone along-with it, when the accused had escaped, lying in the barrels unless there was evidence of the accused having reloaded the gun on the spot. According to learned counsel the ocular testimony in the instant case does not indicate that any of the members of the accused party who was stated to be armed with a gun had reloaded the gun on the spot. In this connection learned counsel places reliance on Lalan etc. v. The State 1976 P Cr. L J 52. It is next pointed out by learned counsel that if page 19 of the printed paper-book is examined, the report of the Fire-arms Expert clearly indicates that both crime-empties and the two guns were received by him on 20-11-1980 through Abdul Ghafoor F.C. (P.W.4). The statement of Abdul Ghafoor F.C. P.W. Is confused in respect of this matter and even attempt was made to get him declared hostile. The reasoning of learned counsel, therefore, is that since gun (Exh. P.6) and the two crime empties picked up from the spot were received by the Forensic Science Laboratory on the same date i.e, 20-11-1980, the possibility of this being tampered with could not be ruled out or there was the element of fabrication involved in this case. Thus, learned counsel states that so far as the part ascribed to Amir Sultan appellant No, 4 is concerned, no corroboration is forthcoming through an independent source. So far as the rest of the appellants are concerned, it is submitted by learned counsel that licensed .12 bore gun (Exh.
P.11) was recovered at the instance of Asghar All appellant No, 5 but it cannot be connected with the commission of crime as a corroborative piece of evidence of the ocular testimony. Then it is submitted that at the instance of Safdar All appellant No, 7 Lathi (Exh. P.10) was recovered and at the instance of Lal Khan appellant No, 8 Sota (Exh. P.8) was recovered. Both these articles were not found to be stained with blood and, therefore, they have no corroborative value. It is next submitted that so far as Muhammad Ashraf appellant No, 3 is concerned, no recovery was effected from him and that besides that no recovery was effected from Amir Sultan appellant No, 2, Muhammad Ashraf appellant No, 6, Allah Dad appellant No, 9 as well as Anwar Sultan appellant No,
10. On the contrary, the aforesaid four appellants (2, 6, 9 and 10) were found to be innocent in the course of investigation and placed in column No, 2 of the challan despite the fact that three different police officers including Crimes Branch had conducted the investigation in this case. In the light of these arguments it is submitted by learned counsel that so far as the ocular testimony is concerned, it is interested, hostile and inimical and that no corroboration is forthcoming from an independent source of the same. Consequently it was a case in which each of the appellants should be granted benefit of doubt and acquitted. In this connection learned counsel is placing reliance on Rehmat v.
The State PLD 1959 SC 109 at 118.
' We heard in detail learned counsel for the complainant. The arguments advanced on behalf of the complainant were to the effect that it was not a sudden fight as contemplated in Exception 4 to section 300, P.P.C. Because according to the prosecution version time had intervened between actual occurrence and the earlier incident as given in the motive version. Learned counsel then submitted that even otherwise the ocular testimony should be considered reliable, in the instant case, because one of the eye-witnesses, namely, Muhammad Waris P.W. Was not an interested witness. The reasoning proceeds on the basis that if Muhammad Waris P.W. Was to be considered as an independent witness, then he is corroborating the ocular testimony of four other eye- witnesses, namely, Muhammad Ramzan, Manzoor Husain, Muhammad Yasin and Ghulam Haider P.Ws. Who all were injured in the course of occurrence and whose presence on the spot cannot be disputed. According to learned counsel for the complainant if the ocular testimony is relied upon then the prosecution story should be accepted as the correct version of the occurrence and no corroboration was required in the form of recovery evidence. The argument of learned counsel further was that the ocular testimony, in the instant case, was being supported by the medical evidence as well as the motive version and if the motive version and the ocular testimony read with the medical evidence are considered in totality, it would appear that the occurrence did not have all the ingredients of a sudden fight, which should bring the case of the appellants under Exception 4 to section 300, P.P.C. Learned counsel submitted that firstly the complainant side and the accused side were not even or equal so far as the position of not taking advantage over each other was concerned, because the accused side also carried fire-arms and, therefore, had an advantage over the complainant side. It is also pointed out that according to the motive version the earlier incident had taken place half an hour before the actual occurrence and when the parties had been separated, the member of the accused side involved in the incident had left holding out a threat that this insult would be avenged and thereafter when the complainant side alongwith the deceased were standing in front of the house of Manzoor Husain P.W., the appellants armed as described above, came there raising Lalkaras and launched a deliberate attack on them. It is further submitted that the injuries sustained by two of the appellants were caused in the exercise of right of self-defence by the complainant side. It is also pointed out by learned counsel that even if corroboration was sought, in the instant case, then Muhammad Aslam appellant whose fatal single blow led to the death of the deceased, had caused the injury on the back of head of the deceased with a Sots which was subsequently recovered from him and it was found to be stained with human blood. Thus, according to learned counsel in the case of Muhammad Aslam appellant the ocular testimony was not only being supported by the motive version or the medical evidence but was also being corroborated by the recovery evidence. Similarly, it is submitted that in the case of Amir Sultan, son of Dhuman Khan, appellant No, 4, two crime empties picked up from the spot matched with the gun which was recovered from him, for, these two crime empties had been fired through two barrels of the said gun. Learned counsel pointed out that it. Was wrong to say that the crime empties were sent to the Forensic Science Laboratory alongwith the gun. He showed us from the record that the crime empties had been despatched earlier and the gun was despatched subsequently to the Fire-arms Expert.
' We have carefully considered the arguments advanced by both the sides. After careful perusal of the record we agree with the finding of the trial Court that it was a sudden fight and, therefore, the case of the parties happens to be covered by Exception 4 to section 300, P.P.C. It is reasonably probable that the fight had started because Manzoor Husain P.W. And Muhammad Ashraf appellant quarrelled with each other half an hour before the main occurrence and they were separated by Ghulam Haider, Muhammad Yasin, Muhammad Ramzan P.Ws. Alongwith the deceased. Thereafter, it is reasonably probable that the injuries were caused by the complainant side to two injured members of the accused party, for, each Lal Khan and Safdar All appellants have received six or more than six injuries. Thereafter, it is reasonably probable that the other members of both the factions arrived at the spot, members of the accused party also carrying fire- arms. We find the arguments of learned counsel for the appellants weighty enough when he pointed out that if it was a pre-planned affair and the members of the accused party had carried fire-arms initially, then the members of the complainant side would have not succeeded in causing eight or six injuries to Lal Khan and Safdar Ali appellants. Thus, we are of the considered opinion that on the initial incident between Manzoor Husain P.W. And Muhammad Ashraf appellant, the members of both the factions had assembled and were involved in the said fight. It is irrelevant to consider the situation as to whether it was a sudden fight or it was a free fight. The finding of the trial Court is to the effect that it was a sudden fight but in our view it was a fight which could be considered sudden in the sense that it had been ignited due to sudden quarrel which took place between Manzoor Husain P.W. And Muhammad Ashraf appellant. If it was a sudden fight, then the case of the appellants would naturally be covered by Exception 4 to section 300, P.P.C. And each of them would be liable for his own act. The next point which requires consideration here is that admittedly there is enmity between the parties and, therefore, we have to examine carefully the ocular testimony to arrive at a conclusion as to whether it can be considered as reliable or not.
Learned counsel for the complainant had advanced the argument that one of the eye-witnesses of the occurrence, namely, Muhammad Waris P.W., was an independent witness and he should be considered as such. We have read his statement alongwith the other eye-witnesses. Four of the eye-witnesses in this case who are injured are all interested witnesses being closely related to the deceased as well as partisans. Muhammad Waris P.W. Did not receive any injury in the course of the occurrence but we are relunctant to agree with learned counsel for the complainant that he should be considered as an independent witness. A perusal of the statements of the eye-witnesses indicates that he too is a partisan and should be considered as inimical or an interested witness.
Since this is the position, we will proceed to convict and sentence each and every member of the accused party for the injury which he has caused provided that the ocular testimony finds corroboration coming forth from an independent source. Proceeding on this principle our conclusion is as follows:- ' We take the case of Muhammad Aslam appellant No,
1. He has been convicted under section 302, P.P.C. For causing the murder of Khan Muhammad deceased and was sentenced to death plus fine of Rs,4,000 or in default to undergo one year rigorous imprisonment with the direction that if the fine was realized from him, half of the same was to be paid to the heirs of the deceased. Since we have brought his case under Exception 4 to section 300, P.P.C., he is to be considered liable for his own act. He is stated to have caused a single blow with a Sota on the head which led to the death of the deceased. Human blood-stained Sota was recovered from him and, therefore, the ocular testimony in respect of the part attributed to him is being corroborated. But since we have brought his case under the above Exception, we alter his conviction from section 302, P.P.C. To section 304, Part I, P.P.C. And also alter his sentence from death to that of ten years' rigorous imprisonment plus fine of Rs,2,000 or in default to undergo six months rigorous imprisonment with the direction that if the fine is realized from him, the whole of it should be paid as compensation to the heirs of the deceased.
' We now take the case of Amir Sultan, son of Muhammad Zaman, appellant No,
2. He is also convicted under section 302, P.P.C. For the murder of Khan Muhammad deceased but sentenced to imprisonment for life plus fine of Rs,4,000 or in default to undergo one year rigorous imprisonment with the direction that if the fine was realized from him, half of it should be paid as compensation to the heirs of the deceased. He is stated to have given a Sota blow on the arm of the deceased and thereby causing a grievous injury. No corroborative evidence is forthcoming in this case and no Sota was recovered from him. He was even placed in column No, 2 by the police as he was found innocent in the course of investigation. Be that as it may, since corroboration is not forthcoming in his case of the ocular testimony, we are of the view E that the prosecution has not succeeded in establishing its case as against him beyond any shadow of doubt. Consequently his conviction as well as sentence awarded to him are set aside and he is acquitted. His appeal is accepted. He shall be released from jail forthwith if not wanted in any other case.
' Now we take up the case of Muhammad Ashraf, son of Dhuman Khan, appellant No, 3, Amir Sultan son of Dhuman Khan, appellant No,
4. Asghar All appellant No, 5, and Muhammad Ashraf, son of Muhammad Khan appellant No,
6. They have been convicted under section 307, P.P.C. For murderous assault on Muhammad Yasin and Ghulam Haider P.Ws. And each of them was sentenced to ten years' rigorous imprisonment plus fine of Rs,2,000 or in default to undergo one year rigorous imprisonment with the direction that if the fine was realized from them, half of the same should be paid to Muhammad Yasin and Ghulam Haider P.Ws. All the four are stated to be armed with pistols and guns and they are said to have fired and caused fire-arm injuries to Muhammad Yasin and Ghulam Haider P.Ws. Corroboration isF forthcoming only in the case of Amir Sultan son of Dhuman Khan, appellant No,
4. From the others either fire-arms were not recovered or if these were recovered from any of them, they did not match with the two crime empties picked up from the spot. The two crime empties picked up from the spot were sent separately to the Fire- arms Expert before the gun was sent to him and the gun with which these two crime empties matched, according to the report of the Fire-arms Expert, was recovered from Amir Sultan son of Dhuman Khan, appellant No,
4. Since the ocular testimony finds corroboration only in his case, we consider him liable for having caused fire-arm injuries out of which grievous as well as simple injuries had been caused to the two P.Ws. And maintain his conviction under section 307, P.P.C., but reduce his sentence from ten years' rigorous imprisonment to five years' rigorous imprisonment on each count plus fine of Rs,1,000 or in default to undergo six months rigorous imprisonment on each count with the direction that if the fine is realized from him, it should be paid in equal shares to Muhammad Yasin and Ghulam Haider P.Ws. The sentence of imprisonment under this head to him will run concurrently on two counts. But so far as the case of Muhammad Ashraf, son of Dhuman Khan, appellant No, 3, Asghar Ali, appellant No, 5, and Muhammad Ashraf son of Muhammad Khan, appellant No, 6 is concerned, since no independent corroboration is forthcoming of the ocular testimony in their case, we set aside their conviction and sentence awarded to them under section 307, P.P.C. Their appeal is accepted and they are acquitted. They shall be released forthwith from jail if not wanted in any other case.
' Now we take up the case of Safdar Ali appellant No, 7, Lal Khan appellant No, 8, Allah Dad appellant No, 9 and Anwar Sultan, appellant No,
10. All these appellants have been admitted to bail.
Two of them namely, Safdar All and Lal Khan had themselves sustained injuries in the case of one six injuries and in the case of other eight injuries. They are stated to have been armed with Sotas and they caused simple injuries to Muhammad Ramzan and Manzoor Husain P.Ws. Anyway, they are convicted under section 307, P.P.C. And each of them was sentenced to six years rigorous imprisonment plus fine of Rs,1,000 or in default to undergo one year rigorous imprisonment. But in the case of all of them corroborative evidence was not forthcoming of the ocular testimony and, therefore, in our view their conviction and sentence were not proper. In this background we set aside their conviction as well as the sentence awarded to them under section 307, P.P.C. Their appeal is also accepted and they are acquitted. They are already on bail. Their bail bonds shall stand discharged.
Since we have brought the case of the appellants under Exception 4 to section 300, P.P.C., their conviction as well as sentence under section 148, P.P.C. In each case are hereby set aside. In passing, we want to point out that in all cases where section 148, P.P.C. Is made applicable and accused persons are convicted and sentenced thereunder, then their conviction ought to be recorded under any section read with section 149, P.P.C. Or vice versa, because section 148, P.P.C.
Cannot be made applicable without section 149, P.P.C. In other cases when a case is covered under any of the Exceptions and each and evdry accused person is liable for his own act, then the application of section 148, P.P.C. And conviction as well as sentence awarded thereunder are uncalled for. We further direct that at the time of the computation of sentences of imprisonment awarded to Muhammad Aslam appellant No, 1 as well as Amir Sultan son of Dhuman Khan, appellant No, 4, the Jail authorities shall give them the benefit of the provisions of section 382-B, Cr.P.C. The appeal of the appellants is accepted to this extent.
The death sentence awarded to Muhammad Aslam appellant is not confirmed.
' In the light of the above discussion we do not find any substance in Criminal Revision No, 731 of 1983 which is accordingly dismissed in limine.