1. MUHAMMAD HALEEM, C.J.--This appeal, by leave arises from the judgment of the Lahore High Court, Lahore, dated 20th December, 1983, whereby Criminal Appeal No. 400 of 1983 filed by Muhammad Asif was dismissed while Criminal Appeal No.589 of 1982 filed by the State and Criminal Revision No. 419 filed by Hakam A.I were allowed, and Muhammad Asif, Muhammad Shafi, Jehan Khan, Muhammad Ashraf, Muhammad Afzal and Fazal Dad were convicted under sections 148/307 read with section 149, P.P.C. And section 302 read with section 149, P.P.C. And sentenced to suffer rigorous imprisonment on the first count for three years, on the second to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000 or in default to undergo rigorous imprisonment for six months and on the third Fazal Dad and Muhammad Asif were sentenced to death and to pay a fine of Rs.5,000 or in default to undergo rigorous imprisonment for two years.
2. The trial Court convicted only Muhammad Asif under section 304 Part I, P.P.C. And sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of - Rs.5000 on each of the two counts of culpable homicide not amounting to murder or in default to undergo rigorous imprisonment for six months. He was further convicted under section 308, P.P.C. For causing injuries to prosecution witnesses and sentenced to further undergo rigorous imprisonment for four years and to pay a fine of Rs.1000 or in default to undergo rigorous imprisonment for three months. He was acquitted of other charges. The others namely, Muhammad Shafi, Jehan Khan, Muhammad Ashraf, Muhammad Afzal, Muhammad Azam and Fazal Dad were acquitted. Hakam A.I filed a revision against the acquittal of all the accused including Muhammad Asif on the capital charge, noting and for attempted murder. The State appeal was accepted against others but not as against Muhammad Azam Jehan Khan had died and his appeal now stands abated.
3. Muhammad Asif and Nawab died at the spot. PWs Bahadur Khan, Lai Khan, Muhammad Khalid and Muhammad Nawaz were taken to the hospital where they were treated for their injuries. Hakam A.I hastened to Police Station Kunjah, but on the way near Octroi Post Nagrianwala, he met Muhammad Fazal, ASI, who recorded his statement.
4. The trial Court in its ultimate analysis held the motive to be a remote cause as in its view it did not justify the killing of two persons and injuring as many as four prosecution witnesses. There was, therefore, some immediate cause for the present incident which has been suppressed. The trial Court also noticed that the houses of the two deceased and those who were injured were situated quite apart at some considerable distance and there was, therefore, no reason for them to have gone in a body with one of them armed with a licensed gun, and if, at all, they were surprised in the fashion in which it is alleged, the deceased and the witnesses would have, in order to save themselves, attempted to escape from there, but none of them did so which strongly militates against the instinct of self-preservation. It was also a matter of surprise that the prosecution witnesses noticed and counted the number of shots fired by each assailant on the victims and for reasons not known left some of them unhurt.
5. The trial Court next considered the immediate cause suggested by the defence and denied by the prosecution witnesses that earlier to the incident, an altercation had taken place between Asif and Muhammad Nawaz at the shop of Khushi Muhammad Mochi. Fazal Dad intervened to separate them and while leaving Muhammad Nawaz who considered himself to be disgraced threatened them. There was, therefore, no reason for the appellants to have formed themselves into an unlawful assembly for committing rioting when the grievance was on the side of the complainant party. It was, therefore, that they, who were closely related, formed an assembly to avenge their insult by mounting an attack on Muhammad Asif. But it said, that one of them was also armed with a gun and they proceeded in a particular direction in furtherance of their common object, that is, to commit murder of Muhammad Asif appellant who was fired at and suffered injuries. It was in this context that the right of self-defence was partially conceded to Muhammad Asif in that he was convicted under section 304 part I PPC keeping in view the interestedness of the witnesses who though injured had not come forward to give straight--forward account of the incident due to fear of disastrous consequences. Accordingly, the trial Court held the complainant party to be the aggressor and at the same time concluded that Muhammad Asif had exceeded the right of private defence as it did not extend to the inflicting of more harm than was necessary to inflict for the purpose of defence. And as the case of the prosecution was disbelieved in its entirety, the others were acquitted.
6. The High Court not only believed that the relations were strained because of the defeat of Jehan Khan in the Local Council Election but also because of the other matters preceding the occurrence.
7. One such matter was the detachment of some of the units of Jehan Khan's depot at the behest of Hakam A.I and Lai Khan resulting in the lessening of his units and consequent monetary loss to him, and the other was frequent quarrels between them as a result of the defeat of Jehan Khan in the Local Council Elections. The High Court, accordingly, believed the motive qua the result of election to be the immediate cause for the appellants to launch an attack on the complainant party as they were proceeding towards their house. The other circumstance relied by the High Court was that the houses of these appellants were not situated in the lane where the murders of the two deceased had taken place as they were situate in the land on the West and not on the North of the house of Ashraf A.I. Further the presence of Muhammad Nawaz, Bahadur Khan, Lai Khan and Muhammad Khalid was established beyond doubt as they had suffered injuries on their person and that their presence earlier at the Baithak could not be regarded as unnatural as held by the trial Court. In this regard the High Court considered it to be a natural event in rural life for the relatives to collect and sit together for a chat, and if, at all, there was such a meeting of minds for taking a revenge then the other brothers of Lai Khan and Bahadur Khan namely, Muhammad Sadiq and Muhammad Sharif and other close relatives of Hakam A.I would have joined them but that was not the case. And as to how Bahadur Khan joined them, it is stated that he wanted to meet his mother and, therefore, he accompanied them. Lai Khan also stated that he used to sit daily in the Baithak of Hakam A.I in the evening to smoke Huqa. Similarly the other witnesses had also given plausible explanations. Concluding the High Court held that the. Trial Court was not correct in holding that they had formed an unlawful assembly with the object to commit the murder of Muhammad Asif as this conclusion was devoid of any foundation. The prosecution case so far as the injury to Nawab is concerned is supported by the medical evidence in that a bullet was extracted from his body. The injuries caused to Bahadur Khan and Muhammad Khalid are consistent with the fire-arm used as the "X-ray films" showed the presence of metalic pieces which were not round in shape as in the case of Muhammad Nawaz, Lai Khan and appellant Asif. The injuries, according to the High Court, on Bahadur Khan and Muhammad Khalid were caused by the rifle shots.
8. The High Court noticed that even though Bahadur Khan, the complainant, had not explained the remaining two injuries on Muhammad Asif nonetheless the eye-witnesses had explained them in their depositions before the Court, but as they were not confronted with their police statements the explanation stands un-rebutted. Therefore, the absence of explanation on the part of Bahadur Khan was an omission and not entitled to any weight. The High Court further held that, as to the injuries suffered by other prosecution witnesses, there might have been an error in stating the number of shots but all of them were caused with shot-guns. The eminent feature, however, remained that two types of fire-arms were used for causing the injuries to the two deceased and the prosecution witnesses. Therefore. The conclusion of the trial Court that only shot-guns were used was baseless. As for the finding of the trial Court that Hakam A.I was not present at the spot and that his own version that he had fetched the gun from his Baithak after the appellants had opened the attack was highly improbable, the High Court held that the place where the incident occurred was hardly 37 yards from the door of the Baithak and as it could not be said that Hakam A.I was walking side by side with the other prosecution witnesses and the two deceased, it was probable that he was in a situation to have seen the incident from near his Baithak and to have fetched his licensed gun to fire it in self-defence.
9. The High Court next dealt with the question as to which of the two versions, the prosecution or the defence, was correct. In the context of its own appreciation of the evidence, the High Court considered that if the two deceased and the prosecution witnesses were armed and their intention was to kill Muhammad Asif, the appellant, he could not have escaped to enable him to pick up the licensed gun of his father to fire at the two deceased who were running towards him along with the prosecution witnesses, and if, at all, he had entered the Baithak he was safe and there was no occasion for him to come out from it again and to run towards the West so as to make himself a target of attack by the complainant party. The High Court also rejected his assertion that as the prosecution witnesses were firing indiscriminately while chasing him, it was possible that some of the prosecution witnesses might have come in the line of fire and sustained injuries. Appellant Muhammad Asif's statement was, accordingly, rejected by the Court as being palpably false.
10. As to the small quantity of the blood secured from the places where the deceased lay after being shot dead, the High Court held that it could not be of any value on account of the large quantity of blood (3-3f' litres of blood) found in the chest cavities of both the deceased as a result of internal haemorrhage. There was, therefore, no spluttering of blood from the chest cavities so as to make the quantity large. In this view of the matter, the High Court did not agree with the trial Court that the incident did not occur at a place near the house of Ashraf A.I.
11. Lastly, the High Court was of the considered view that the defence had failed to establish that the injured prosecution witnesses had any motive to falsely implicate the appellants.
12. The question which needs consideration is whether reasonable doubt as to the plea of Muhammad Asif surfaced from the examination of the evidence in keeping with the probabilities of the case.
13. The plea of Muhammad Asif, in our view, does not fit in, in the perspective of the proved circumstances of the case. If, at all, the complainant party had formed an unlawful assembly with the object of committing the murder of appellant Muhammad Asif, then it does not appeal to reason as to why only Hakam A.I would be armed and the others to be empty-handed. Again if all of them had been armed then it is not possible that they would have become the victims of the attack instead of pursuing the aggression to its logical conclusion. The injuries on the two deceased and the prosecution witnesses were multiple and caused by two types of fire-arms, which apparently showed that they were caused by a large number of persons duly armed for the occasion and with a set purpose. Therefore, it were they who laid ambush finding an opportunity to mount an attack rather than the complainant party. The place of attack also shows that they were ambushed in a lane away from the house of the appellants who had no reason to be there unless they had an ulterior motive. The simple injuries on appellant Muhammad Asif caused by a solitary shot fired by Hakam A.I is impossible to be construed as one to have been so fired to initiate the aggression. It appears that in a state of utter helplessness, that Hakam A.I had fired his gun but that too without any fatal consequence. This broad assessment beyond doubt affirms conviction that it were appellants who had mounted the attack with lethal weapons on the complainant party. On no other hypothesis, the two casualties and the injuries on the Prosecution witnesses can be explained. It is also not possible to accept that if the complainant party were armed, appellant Muhammad Asif would be so brave as to emerge from his Baithak with a licensed gun of his father to face the complainant party and to subdue them in the manner stated by him. The whole version appears to be preposterous. The trial Court seems to have taken an erroneous view that it was the complainant party which was the aggressor, seemingly to have developed it on the hypothesis of the earlier incident in which Muhammad Nawaz was disgraced.
14. The High Court, on appeal, has duly considered the evidence and rejected the conclusions of the trial Court upon a fair assessm ent of the evidence and rightly so as those conclusions appear to us to be based more on assumptions than on evidence.