1. ANWARUL HAQ, J.--This appeal by special leave is directed against an order made by a Division Bench of the High Court of West Pakistan at Peshawar on the 2nd of October 1969, whereby the convictions and sentences recorded against the three respondents, Gadai Khan, Ashraf Khan, and Ajab Khan, by the learned Sessions Judge, Hazara, on charges falling under sections 302, 307 and 325, P. P. C. Read with section 34 thereof were set aside, and they- were acquitted. The convicts had appealed, and the proceedings were also before the High Court for the confirmation of the death sentences imposed on the three respondents for each of the two murders alleged against them. By the same order the learned Judges also dismissed a revision petition filed by Abdur Rahman, a brother of the two deceased, against the acquittal of two accused persons named Fariq and Mohammad Irfan.
2. According to the prosecution, there was friction between the parties regarding, the possession of agricultural land comprising Khasra Nos. 491/1 and 493 situate in village Samwala in the jurisdiction of Police Station Nara in the Hazara District. The land belonged to one Bostan Khan, who bad mortgaged the same, by a mutation attested on the 30th of August 1956, in favour of three sans of Kals Khan (P W 14), namely, A.I Zaman, Aziz Khan and Abdur Rahman. On the 29th of March 1957, Bostan Khan sold this land to the respondents, Ashraf Khan and Ajab Khan, who are brothers inter se. It is said that as the mortgage was with possession, the land remained with the three mortgagees. On the 25th of August 1967, mutation of redemption of the mortgage was attested by the Revenue Officer in respect of 2/3 share of mortgagees, A.I Zaman and Abdur Rahman, the 1/3 share of their brother Aziz Khan remaining unredeemed. It is alleged that the mutation of redemption was got attested as a result of fraud and impersonation, at which the mortgagees were allegedly identified by the respondent Gadai Khan, who is a Lambardar of the village and is married to a sister of the other two respondents. The complainant party started criminal proceedings in respect of this alleged frau, and security proceedings under sections 107 and 151 of the Criminal Procedure Code were also taken between the parties, on the allegation that the accused persons had forcibly reaped the maize crop of Kharif 1967, belonging to the mortgagees and standing on the disputed land.
3. The security proceedings were still pending before the Magistrate when the present occurrence took place on 11-3-68 at 8-30 a.m.
4. It is alleged that on the morning in question the respondents Ajab and Ashraf came to the disputed land with the plough harnessed to a pair of bullocks and started ploughing the land, obviously in assertion of their ownership and possession. Kala Khan, the father of the mortgagees, was at that time standing in his own land in the same locality. The two respondents called out to him to come and take his mortgage money, where--upon Kola Khan replied that his sons would do that when they return to their home. Saying so, Kala Khan started walking on the path adjacent to the land, when respondents Ajab and Ashraf approached him and gave him blows with the butt ends of their guns.
5. On hearing the alarm raised by their maternal uncle Kala Khan, the two deceased brothers Dadan Khan and Mahmood Khan and their third brother Abdur Rahman (P. W. 20) came out of their houses, whereupon the respondents shouted a challenge to them. The three respondents, Ajab, Ashraf, and Gadai were at that time joined by the two acquitted accused, Irfan and Fariq, all armed with guns, and they started advancing towards the house of P. W. Abdur Rahman. Seeing the threat posed by the respondents and their two companions, Dadan Khan deceased asked his brothers not to move, and he himself went forward with folded hands, entreating the accused persons not to start a fight. It is alleged that at that moment the respon--dent Ajab Khan fired at Dadan, mortally wounding him. The respondent Gadai Khan fired at the deceased Mahmood Khan, seriously injuring him, and then the respondent Ashraf fired at the third brother Abdur Rahman. The acquitted accused Fariq fired at Khaber Zaman (P. W. 21)D a nephew of the deceased, and the acquitted accused Irfan fired at his name-sake P. W. 17, who was at that time engaged to be married to the daughter of deceased Mahmood Khan. Thereafter, the accused persons decamped from the spot.
6. The incident is said to have been witnessed not only by the four injured relations of the deceased, namely, Kala Khan (P W.14), Mohammad Irfan (P W. 17), Abdur Rahman (P. W. 20) and Khaiber Zaman (P. W. 21), but also by Gul Rahman (P. W. 9), Khawaja Mohammad (P. W. 12) and A.I Asghar (P W 16) Dadan Khan was in his senses and able to make a brief dying statement before Lambardar, Abdus Sattar (P. W. 15). At the Lambardar's instance, the statement was reduced into writing at the spot by A.I Asghar (P. W. 16), and it was handed over to the police in the presence of Yaqub (P. W. 13), and was placed on the record of the trial as Exh. P. W.
6. It is only one sentence to the effect that Dadan Khan had been shot by Ajab Khan and that he did not accuse anyone-else.
7. The first information report was made at Police Station Nara, a distance of five miles from the spot, at noon the same day by Gul Rahman (P. W. 9). The Investigating Officer was able to arrest the accused persons the same day, and to recover three .12 bore empties from the spot, as well as a shot-gun and a revolver from Ajab. However, the empties could not be attested properly as the shot-gun mis-fired, and the Forensic Expert was not able to give any definite opinion.
8. The respondents and their two acquitted companions pleaded not guilty at the trial. As Gadai Khan and Ashraf Khan had sustained injuries during the incident, and a cross-case had also been registered against the complainant party at their instance, they gave an alternative version to the effect that Ashraf had started ploughing the disputed field when P. W. Kala Khan called him, and as Ashraf went towards Kala Khan, his nephew Abdur Rahman fired at Ashraf from behind and injured him. Thereafter. Ashraf and Kala started grappling with each other and general firing started from both sides during which Gadai was also injured. Both Gadai Khan and Ashraf Khan asserted that on the day of the incident they were in possession of the disputed land. The respondent Ajab Khan stated that he was not present at the scene of occurrence. Finally, all the respondents asserted that they had been falsely implicated due to the witnesses being interested and inimical.
9. The medical evidence, consisting of the statements of Dr. Safdar Zaman Khan (P. W. 1), Dr. Mohammad Saeed Ahmad Khan (P. W. 2), and Dr. M. A. Siddiqi (P. W. 3) shows that both the brothers Dadan Khan and Mahmood Khan had sustained fatal gun-shot wounds; P. W. Kala Khan had sustained blunt weapon injuries including a fracture on the right shoulder blade; witness Mohammad Irfan had a fire-arm wound on the lateral side of left chest at posterior maxillary line; witness Khaiber Zaman had an entrance wound caused by a fire-arm on the lower 1/3rd of his right upper arm; and the witness Abdur Rahman had two fire-arm entrance wounds and his shirt and shalwar had corresponding cuts.
10. The respondent Mohammad Ashraf was found to have sustained seventeen entrance pellet wounds spread on back of chest and abdomen; four abrasions 1/6' x 1/6" scattered on the right shoulder blade, caused by striking of most probably, pellet; entrance of five pellets scattered on back of head; fire-arm-wound on the back of left earl four fire-arm wounds on the back of left upper and fore-arm; and three fire-arm wounds, on the back of the right upper fore-arm. However, all the injuries were simple in nature, and corresponding cuts were present on the shirt, bunyan and jacket worn by the respondent.
11. The respondent Gadai Khan had sustained two fire-arm wounds on the right lower chest.
12. Besides the two respondents, two other persons were also injured on their side, namely, Gul Zaman and one Abdur Rehman son of Bosa Khan. The first named had four fire-arm wounds, all simple in nature and the second person had two fire-arm wounds, again simple in nature. The doctor noticed that injuries sustained by the respondents Ashraf Khan and Gadai Khan as well its by their relation Gul Zaman were on the back.
13. The learned trial Judge accepted the motive for the crime as put forward by the prosecution, namely, that the accused persons tried to take forcible possession of the land, and for this purpose he not only relied on the ocular evidence but also on the statement made by the Patwari, Abdur Rauf Khan (P. W. 18) to the effect that from 1957 to Kharif 1967 possession of the mortgaged land was with the three mortgagees, but in Kharif 1957 it was recorded as being disputed between the parties. The security proceedings and other criminal litigation ensued in September 1967, thus confirming that dispute about possession had arisen in Kharif 1967. The learned Sessions Judge considered that the dying statement made by the deceased Dadan Khan was genuine and truthful and could be acted upon. On this view of the matter he convicted the three respondents, but gave benefit of doubt to Fariq and Irfan.
14. The High Court, after an elaborate examination of the evidence brought on the record, came to the conclusion that there was undoubtedly a dispute between the parties over the possession of the mortgaged land, and that both the parties came out armed with fire-arms in full expectation of an armed conflict and were determined to have a trial of strength. It. However, appeared to the learned Judges that it was impossible in the circumstances to find out as to which of the parties started firing first, it being doubtful as to which of the parties attacked first, the benefit of doubt would go to the accused. In support of this approach, the learned Judges placed reliance on .The State v. Khair-ur--Rehman (PLD 1960 Pash. 50).
15. Leave to appeal was granted in this case to examine the contention that the whole approach of the High Court was incor--rect, as it was a case of a free fight, and the question of determining as to which party started firing first did not arise. A further question requiring examination was that in any case the accused persons bad exceeded the right of private defence which might have otherwise accrued to them.
16. After hearing the learned counsel for both sides and perusing the entire evidence brought on the record, we have come to the conclusion that this appeal has to be accepted. It is an admitted position that a dispute had arisen between the parties on account of the possession of the land which at one time stood mortgaged to the three son of witness Kala Khan, and which had been subsequently sold to the respondents Ashraf Khan and Ajab Khan by its owner, Bostan Khan. The revenue records as well as the commencement of security proceedings in September 1967, clearly establish the fact that from Kharif 1967 onwards the dispute had become Intensified and both sides were determined to have a trial of strength for the purpose of asserting their possession over this land. We have no hesitation in rejecting the argument put for Hard on behalf of the respondent; that they were in peaceful possession of the land when they were attacked by the complainant party. If that had been true, the respondents would not have escaped with merely superficial fire- arm injuries or their persons and they would not have managed to kill two persons of the complainant party and to injure four others.
17. The facts and circumstances, as brought on the record, clearly show that this was indeed a case of a free fight between the parties. To this extent we are in agreement with the conclusions reached by the High Court.
18. The High Court has, however, clearly fallen in error in think--ing that it was a case where the benefit of doubt had to go to the accused persons for the reason that it could not be ascertained as to which party bad started firing first. The precedent case on which reliance was placed by the learned Judges), namely, The State v. Khair-ur-Rehman (PLD 1962 SC 502) was not a case of a free fight. The relevant observations in that case were :- "If an accused is found to have been injured in a fight with the deceased, it will be permissible to presume that it was the deceased who injured him, unless there is clear evidence or circumstance to the contrary, and if it is doubtful as to which of them attacked first, the benefit of doubt will go to the accused."
19. The principles governing the right approach in a case of free fight were enunciated by this Court in Syed All Bepari v. Nibaran B2ollah and others (PLD 1962 SC 502). It was pointed out that :- "In a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incomplete ness of the tale from drawing the inferences that properly flow from the evidence and the circumstances "
20. It was added that when each party anticipated resistance from the other and were, therefore, determined to have a trial of strength, it would be impossible to say that the accused party were acting on the defensive or in the exercise of any right of private defence of person or property. In such circumstances. It was reasonable to infer that in entering upon the conflict each party knowingly and deliberately took upon itself the risk of the encounter. In the circumstances such as these no question of right of Private defence would arise, and each participant in the free fight would be liable for his individual act.
21. Judging the present case in the light of these principles, it becomes clear that the High Court was in error in acquitting the respondents. The dying statement as well as the ocular evidence left no doubt that Dadan Khan was killed by the shot fired by the respondent Ajab Khan, whereas Mahmood Khan was killed by the shot fired by the respondent Gadai Khan. Similarly, the respondent Ashraf was responsible for firing at the witness Abdur Rehman in such circumstances and with such intention that if Abdur Rehman had died the -offence would have been that of murder, and the respondent Ajab Khan and Ashraf were also responsible for causing injuries to the witness Kala Khan by the butt ends of their guns.
22. On this view of the matter we would accept the appeal and convict Ajab Khan under section 302, P.
23. P. C. For causing the death of Dadan Khan deceased, and under section 315, P. P. C. For causing injuries to Kala Khan. As the respondent was acquitted by the High Court as long ago as 2-10-1969, and on his death sentence being set aside he has acquired an expectancy of life, we would not impose on him the extreme penalty for murder. Accordingly, he is sentenced to imprisonment for life under section 302, P. P. C., acid to three years' rigorous imprison--ment under section 325, P. P.
24. C. Both sentences to run concurrently.
25. We would similarly convict the respondent Gadai Khan under section 302, P. P. C. For causing the death of Mahmood Khan deceased and for the same reason sentence him to Imprisonment for life.
26. We would convict the respondent Ashraf under section 307, P. P. C. For the attempted murder of Abdur Rehman and under section 325, P. P. C. For causing injuries to Kala Khan. On the first count he is sentenced to undergo rigorous imprisonment for seven years and on the second count to rigorous imprisonment for three years. Both the sentences shall run concurrently.