' KHIZAR HAYAT, J.-- Twenty-three accused were tried by Sessions Judge, Vehari, for the offences of rioting, abduction, murder and voluntarily causing hurt. Learned trial Court vide its judgment, dated 24-5-1986, acquitted eighteen accused but convicted and sentenced the remaining five namely, Haitam. Abdul Razzaq, Naseera, Allah Yar and Pehlwan, as under:- S. No.Names of accusedConviction under sectionSentence 1.Haitam, Abdul Razzaq Naseera, Allah Yar and Pehlwan.148, P.P.C. One year's R.I. each.
2.-do-323/149, P.P.C.
(two counts)6 months' R.I., and compensationof Rs.100 each or in default, one month's R.I., on each count.
3.Haitam Abdul Razzaqand Naseera.302/149, P.P.C.
(two counts).Death on each count.
4.Allah Yar and Pehlwan302/149, P.P.C.
(two counts).Imprisonment for life plus fine of Rs.1,000 each or in default to undergo 6 months' R.I. each. Further directed to pay compensationof Rs.2,000 each or in default to undergo 6 months' R.I. each on each count.
' Feeling aggrieved thereby, Haitam, Abdul Razzaq and Naseera jointly preferred Criminal Appeal No, 369 of 1986, while Allah Yar and Pehlwan filed Criminal Appeal No, 109 of 1986. Murder Reference No, 137 of 1986, under section 374, Cr.P.C. For confirming death sentence of Haitam, Abdul Razzaq and Naseera is also before us. Muhammad Azim (complainant) has filed Criminal Revision No, 166 of 1986, praying that retrial of the acquitted accused, Muhammad Ramzan, etc. (respondents Nos. 1 to 12) be ordered and the sentence imposed on Pehlwan and Allah Yar and amount of compensation to be paid by Naseera, Abdul Razzaq and Haitum (appellants) be enhanced. We propose to decide above-noted appeals, murder reference and the revision by this single judgment as they arise from the same impugned judgment.
2. The occurrence took place on 7-5-1984 at 11 a.m. At the tube well of Khushi Muhammad in the vicinity of Chak No, 50/KB wherein Muhammad Sharif and Abdul Hamid were killed and Zahoor and Mukhtar P.Ws. Were injured. Report to police was made through F.I.R.(Exh.P.J.) lodged by Muhammad Azim (P.W.10) brother of Abdul Hamid (deceased), the same day, at 1 p.m. At Police Station Sahuka, District Vehari, at a distance of about 10 miles from the spot, which was recorded by Yar Muhammad S.I./S.H.O. (P.W.7).
3. The prosecution case, as disclosed at the trial, briefly, was that Ghulam Muhammad known as Peer of Nalka Sharif owned some landed property in Chak No, 50/KB. He died about a year before the occurrence leaving behind two wives, namely, Mst. Asmat Bibi and Mst. Sabra Bibi and a daughter Mst. Umme Kulsoom. One Mian Aftab Ahmad also claimed to be son of late Peer Sahib (from his third wife) who was in possession of deceased's land situated at tubewell of Khushi Muhammad (known as Tibbiwala tube well). The ladies mentioned above did not recognize him as legitimate son of late Peer Sahib and, therefore, a dispute arose between the parties regarding the possession of Aftab Ahmad over the said land. A section of disciples of late Peer Sahib supported the ladies group while the other supported Mian Aftab Ahmad. It may be mentioned that Mst.
Sabra, etc. Lived at the Dera of Peer Sahib about 5 ICillas away from the residence of Mian Aftab Ahmad. Mian Aftab Ahmad lived at Chah Kohniwala which is at a distance of 2-1/2 squares from the tubewell of Khushi Muhammad (place of occurrence). Khushi Muhammad is servant of Mian Aftab Ahmad while Ghulam Hussain and Muhammad Sharif (accused) are attorney of Mst. Asmat, etc. Aforementioned. Ghulam Hussain filed an application before Tehsildar Consolidation against Khushi Muhammad objecting to his possession over said land. In this connection, Tehsildar Consolidation scheduled his visit there on the fateful day. The supporters of ladies group gathered together at the Dera of Peer Nalka Sharif while Mian Aftab Ahmad's supporters/Mureeds, namely Muhammad Azim (P.W.10), Zahoor Ahmad (P.W.11), Mukhtar Ahmad (P.W.12), Abdul Hamid (deceased), Muhammad Shafi (deceased), Sikandar son of Baqir, Zahoor son of Manak, Attaullah (a school teacher) and Khushi Muhammad collected at the tube well of Khushi Muhammad. At about 11 a.m. Party-men of ladies group, namely Haitam, Abdul Razzaq, Naseera and Shaukat armed with .12 bore guns, Pehlwan, Muhammad Yar, Waryam, Fazil, Allah Yar and Ghulam Hussain armed with sticks, Muhammad Ramzan, Noor Zaman, Ghulam Mohayyuddin, Muhammad Shafi and Muhammad Rafiq empty-handed came to Khushi Muhammad's tubewell raising Lalkaras that they would punish the complainant party for helping Mian Aftab Ahmad. The complainant party replied that they were waiting for the arrival of Tehsildar Consolidation there and that they have no evil designs against them. At this Abdul Razzaq fired a shot in the air and exhorted his companions that none of them be spared. The second shot he had fired at Muhammad Shafi (deceased) which hit him on the chest. Shaukat fired at Abdul Hamid (deceased) hitting him on the right side of his head. Naseera fired a shot which hit his right arm while the shot fired by Haitam hit on his abdomen. As a result of gunshot injuries both Muhammad Shafi and Abdul Hamid died on the spot.
Pehlwan and Muhammad Yar inflicted Soti blows to Zahoor (P.W.11) Fazil and Waryam put a Patka (turban) around the neck of Mukhtar (P.W.12) and dragged him towards Chah Chhini Khichi, while Allah Yar and Ghulam Hussain dealt him stick blows. Ramzan, Noor Zaman, Ghulam Mohayyuddin, Sharif and Muhammad Rafiq had raised Lalkara only during the occurrence. Mst. Asmat, Mst. Sabra and Mst. Umme Kulsoom allegedly had arranged this attack on the complainant party for they had a land dispute with Mian Aftab Ahmad.
4. S.I. Yar Muhammad (P.W.7) after recording the F.I.R. (Exh.P.J.) reached the spot and preparing inquest reports (Exhs.P.L. And P.M.) despatched the dead bodies of Abdul Hamid and Muhammad Shafi for post-mortem examination. He collected blood-stained earth from the places where the two deceased were lying and made their separate parcels. He picked up four empty cartridges (P.9/1-4) from the spot and made them into a parcel vide memo. Exh.P.R. Allah Yar (appellant) was arrested on 13-6-1984, Pehlwan and Naseer (appellants) were arrested on 23-6-1984 and Abdul Razzaq and Haitam (appellants) on 27-6-1984.
5. On 23-6-1984, the Investigating Officer (P.W.7) arrested Muhabbat, Ferhat, Yousaf, Imtiaz, Mustafa and Mansha, not named in the F.I.R. On 26-61984 he recovered gun P.10 belonging to Abdul Razzaq at the pointation of Ferhat alias Phullo (accused) and gun P.11 belonging to Chhini from Muhabbat (accused) while Imtiaz and Ghulam Mustafa (accused got recovered a Sota each, not stained with blood. The fire-arms Expert opined vide report Exh.P.JJ. That out of four empties (P.9/1-4) two had been fired from gun P.10 and two from gun P.11.
6. On 27-6-1984, seven accused persons, namely, Muhabbat, Ferhat, Imtiaz, Mustafa, Yousuf and Mansha since acquitted (not named in F.I.R.) and Naseera (appellant) were produced in custody before Malik Jawwad Hussain M.I.C. (P.W. 9) who recorded their confessional statements (Exhs.P.Y., P.Z., P.AA. To P.EE.). They told a different story (from the F.I.R.) in their confessional statements, that is, that in the morning of the day of occurrence, (Naseera of ladies group) learnt at the well of Chhini that Mian Aftab Ahmad had taken possession of Tibbiwala tubewell who alongwith Shadoo (absconder) went to Chak No,51/KB and called Ferhat alias Phullo, Muhabbat, Abdul Razzaq, Mansha, Imtiaz and Mustafa at the Dera of Abdul Razzaq. From there Muhabbat took gun of Abdul Razzaq and Naseera that of Chhini and went to Tibbiwala tubewell (Khushi Muhammad's tubewell) for taking back the possession of the land from Mian Aftab Ahmed. Reaching near the tubewell, Naseera fired in the air so that Mian Aftab's partymen be frightened and vacate the land. At this Abdul Hamid grappled with Naseera. In the process his gun fell down. Abdul Hamid and Muhammad Shafi (two deceased) then started dragging him towards their tube well whereupon Muhabbat in order to get him (Naseera) released fired two shots at Abdul Hamid hitting on his head and abdomen. Muhammad Shafi gave a Sota blow to Ferhat (accused) whereupon he picked up Naseera's gun lying on the ground and fired with it at Muhammad Shafi. As a result of these shots both Abdul Hamid and Muhammad Shafi died on the spot. On the basis of this story, S.I.
Yar Muhammad (P.W. 7) submitted challan (Exh.D.A.) on 28-7-1984 against twenty- one accused persons, i,e,, fifteen male accused named in the F.I.R. And six confessors, Muhabbat, Ferhat, Mustafa, Mansha, Imtiaz and Yousuf, holding them to be real culprits and the rest as abettors. Ladies were not challaned. The case was, however, re-investigated by D.S.P. Abdul Karim (P.W.8) under orders of the Deputy Inspector-General of Police. The Deputy Superintendent of Police found all the accused named in the F.I.R. As guilty. According to him, Ferhat, Mansha, Muhabbat, Imtiaz, Mustafa and Yousaf had confessed in order to save the real culprits. He declared Mst. Sabra as innocent but challaned Mst. Asmat and Mst. Umme Kulsoom as abettors. Based on these findings the S.H.O., submitted another challan against twenty-three accused persons on 5-7-1985. Both these challans were sent for trial to Sessions Court. Learned Sessions Judge, Vehari, tried all the twenty- three accused mentioned in the challans at this trial.
7. On 7-5-1984, at 11 p.m., Dr. Abdul Rauf Bhatti (P.W.2) had examined Mukhtar Ahmad P.W. And found multiple contusions and abrasions on different parts of his body, as detailed below:
(1) Multiple contusions in an area measuring 27 cm x 20 cm on the back and upper part of both sides of chest.
(2) An abrasion 2 cm x 1 cm on the back of right ear.
(3) Multiple small abrasions in an area 10 cm x 5 cm on the left side of neck.
(4) A contusion 5 cm x 1 cm on the ulnar aspect of middle of left forearm.
(5) An abrasion 1 cm x 1/2 cm on the left palm.
(6) An abrasion 1 cm x 1/2 cm on the front of right elbow.
(7) A contusion 5 cm x 1 cm on the back and middle of right forearm.
(8) A contused area 15 cm x 8 cm on the upper part of left buttock. All the injuries were simple in nature, caused with blunt weapon.
' On 8-5-1984, at 7 a.m., the same doctor conducted post-mortem examination on the dead body of Abdul Hamid and found following injuries on it:-
(1) fire-arm wound 13 cm x 8 cm x brain-matter coming out of the right side of forehead and head.
There was comminuted fracture of bone. The edges were black and it was transverse in direction.
(2)A fire-arm wound 8 cm x 5 cm on the front and middle of right arm. The edges were ecchymosed.
(3)A fire-arm wound 3 cm in diameter x intestines. The edges of the wounds were black and ecchymosed.
' Right temporal, frontal and parietal bones were fractured under injury No,1. Forty pellets and wads were recovered from the bladder. Death occurred due to shock and hemorrhage. The injuries were caused with fire-arm, sufficient to cause death of the deceased in ordinary course of nature. The time between death and post-mortem examination was about 20 to 24 hours.
' On the same day at 8 a.m., the same doctor conducted autopsy on the dead body of Muhammad Shafi and found following injuries on it:- ' Seven fire-arm wounds each measuring 3/4 cm x 3/4 cm deep going, three on the front and upper part of chest, three on the front of right shoulder at a variable distance from each other. The edges of the wounds were inverted and ecchymosed.
' Thoracic walls, pleurae, trachea, both lungs, pericardium and heart were found perforated under injury No,1. Death occurred due to shock and hemorrhage. Injury was caused with fire-arm. It was sufficient to cause death in ordinary course of nature. Three metallic pieces of pellet were recovered. Post-mortem examination was carried out within 20 to 24 hours of death.
' On 9-5-1984 at 10 a.m., Dr.Zahid Ali (P.W.1) medically examined Zahoor Ahmad P.W. And found three swellings on the inter-phlangeal joints of the forgers of right hand, inner border of right scapula and the middle of left upper arm, with dimension of 10 cm x 5 cm and 12 cm respectively, caused within duration of 2 to 3 days.
8. Prosecution examined 12 witnesses in all. Mohammad Azim (P.W.10) and the two injured witnesses Zahoor Ahmad (P.W.11) and Mukhtar Ahmad (P.W.12) gave account of assault as narrated by Muhammad Azim (complainant/P.W. 10) in the F.I.R. Exh.P.J., and they belied the story given in confessional statements Exhs.P.Y., P.Z., P.AA. To P.EE. They did not implicate Ferhat, Mohabbat, Imtiaz, Mansha, Mustafa and Yousaf at all. Learned defence counsel in cross-examination suggested to Muhammad Azim and Mukhtar Ahmad P.Ws. That on the relevant day Tehsildar was to visit the Dera of Peer Sahib of Nalka Sharif and for that a proclamation had been made, in response whereof about 200/250 persons gathered at the Dera of Peer Sahib while supporters of Mian Aftab Ahmad variously armed (including fire-arms) sat behind a grove of trees at the tubewell of Khushi Muhammad. The respectables present at the Dera of Peer Sahib sent certain persons there for calling the supporters of Mian Aftab Ahmad but the latter gave beating to them and some of them had fired at them and that Muhammad Shall and Abdul Hamid (both deceased) were hit accidentally with firing of their own men. The suggestion was, however, denied by them and no defence evidence was produced in its support.
9. Malik Jawwad Hussain, M.I.C. (P.W.9) stated that he recorded confessional statements Exhs.P.Y., P.Z., P.AA. To P.EE. Made by Mohabbat, Ferhat, Ghulam Mustafa, Imtiaz, Mansha, Yousaf and Naseera respectively, before him. He admitted that before recording their statements he had not told them that they were not bound to make such statements and that if they made one then that would be used as evidence against them; that he did not inform them (confessors) that if they would refuse to make confessional statement they would not be handed over to the police; and that he had not even afforded them time to think over the matter before making confessional statements. He further admitted that he had not enquired from them as to when they were arrested and that whether any pressure was brought to bear upon them?
10. Recovery of guns P.10 and P.11 from Ferhat and Mohabbat (who had made judicial confessions about their participation in the occurrence) had been allegedly effected in the presence of the sole witness from public, namely, Mumtaz who had not been produced.
11. At the conclusion of prosecution evidence the accused in their statements recorded under section 342, Cr.P.C., denied the allegations and professed innocence. Mohabbat, Ferhat, Mansha, Ghulam Mustafa, Imtiaz and Yousaf disowned their confessional statements recorded by Malik Jawwad Hussain M.I.C., (P.W.9). Ferhat and Mohabbat (accused) denied the recovery of guns P.10 and P.11 from them. Abdul Razzaq (appellant) admitted that gun P.11 belonged to him. He, as well as Naseera, and Halt= (appellants) admitted their presence at the relevant time, at the Dera of Peer Nalka Sharif. Shaukat (accused) pleaded alibi saying that he is a lecturer in Government Degree College, Burewala, and that at the time of occurrence he was present in Government Degree College, Burewala. He appeared as his own witness under section 340(2), Cr.P.C., in support of his plea and examined three D.Ws., namely, Nazir Ahmad, Librarian (D.W.2), Ch. Sarfaraz Iqbal Ghumman, Advocate, Burewala, (D.W.3) and Shah Muhammad, Teacher, Government High School, Burewala, (D.W.4). D.W.2 stated that on the relevant day at about 10A5/11 a.m., Shaukat visited him in his office with orders of the Principal of the College addressed to him to deliver "BA. Degree" to him. He, in compliance with the order, delivered the same to him and obtained his signature in the register against S.No,86. D.W.3 is an Advocate who stated that on the day of occurrence, at about 10 a.m., Shaukat came to his office at Burewala and stayed with him for about 30 minutes and then left for the Degree College for obtaining his 'BA. Degree'. The same day Shaukat told him in the local club that a fight had taken place in Chak No,51/KB and that he should enquire from Police Station Sahuka as to who had been named in the case. He, therefore, made enquiries from the S.H.O. Who informed him that Shaukat was named as accused in the case. The witness stated that he supported the plea of alibi before the Investigating Officer and also before Superintendent of Police and Deputy Inspector-General of Police. D.W.4 stated that he was present in his school on the day of occurrence and Shaukat had met him at 11 a.m., alongwith Anwar Ali Chishti SI for getting a boy admitted in 6th class and stayed with him for 15 to 20 minutes. He had told Shaukat that the boy had to take test on the following day for admission, where after he went away. They all stated that they had appeared during the investigation. Other accused did not produce any defence evidence.
12. Learned trial Court on consideration of the material on record observed in para 59 of the impugned judgment that the land situated at the tubewell of Khushi Muhammad was in possession of Mian Aftab Ahmad but contrarily Mst. Asmat Bibi claimed herself to be in possession of the same. Tehsildar was, therefore, to visit the site (on the day of occurrence) to decide the question of possession. Mian Aftab Ahmad's Mureeds gathered at the tubewell of Khushi Muhammad to maintain the possession while the supporters of Mst. Asmat Bibi wanted to dispossess them before the arrival of the Tehsildar in order to show that Mst. Asmat Bibi was in possession of the disputed land. He, therefore, held that the occurrence took place at 11 a.m., at the tube well of Khushi Muhammad which was in possession of Mian Aftab Ahmad and discarding the confessional statements allegedly made by Naseera, Mohabbat, Ghulam Mustafa, Mansha, Imtiaz, and Yousaf as they were retracted and uncorroborated. It also disbelieved the recovery of guns P.10 and P.11 for it was not supported by any reliable evidence and further it had ruled out of consideration the report of Fire-arms Expert (Exh.P.JJ.) on the ground that possibility of substitution of crime empties could not be eliminated because the empties and fire-arms were sent to the expert on one and the same day. It further observed that no evidence of preconcert between Mst.
Asmat and other co-accused existed on record. In view of the above observations learned trial Court acquitted Mst. Asmat and Mst. Umme Kulsoom saying that they were not proved to have abetted the crime. Ramzan, Noor Zairian, Ghulam Mohayyuddin, Mohammad Sharif and Muhammad Rafiq were acquitted for they were said to be empty-handed and raised only Lalkara during the occurrence which too was doubtful. Ferhat, Mohabbat, Ghulam Mustafa, lmtiaz, Mansha and Yousaf were acquitted as their confessional statements being defective were found as not worth reliance and Muhammad Yar and Ghulam Hussain were acquitted for they were aged.
Invalid and incapable of participating in the attack. Fazil and Waryam whc according to the prosecution had put Patka around the neck of Mukhtar Ahmad P.W. And dragged him were acquitted since no ligature mark around his neck was found by the doctor. Further, it acquitted all the accused from charge under section 365/149, P.P.C. As the story of dragging and abducting Mukhtar Ahmad P.W. Was found doubtful, but convicted the remaining five accused, namely, Haitam, Abdul Razzaq, Naseera, Allah Yar and Pehlwan and sentenced them, a indicated in para 1 above, believing the eye-witness' account qua them observing that injuries on the persons of the deceased and the P.Ws. Appeared to have beer caused from closer distance in broad daylight, therefore, there was no possibilit) of mistaken identity of the assailants and the presence of eye- witnesses Zahooi Ahmad and Mukhtar Ahmad was established beyond doubt as they had got injured during the occurrence. As to the liability/culpability of the appellants learned trial Court in paras. 61, 62 and 63 of the impugned judgment held that they being armed with guns and Sotis formed "an unlawful assembly with the common object of getting possession of the land situate at the tubewell of Khush Muhammad although Mian Aftab Ahmad was in possession of the same" and having gone there, " fired a gun shot in the air to scare away the persons present there" who grappled with them and then "they injured Muhammad Shafi, Abdul Hamid, Zahoor Ahmad and Mukhtar Ahmad". Learned trial Court, therefore, held them guilty under section 302, P.P.C. Read with section 149, P.P.C. For the murders of Abdul Hamid and Muhammad Shafi saying that they came armed from ChahChhini Khichi to the tubewell of Khusi Muhammad knowing fully well that some persons of the complainant party were likely to be murdered in the prosecution of common object of the unlawful assembly. It further convicted them on other charges as indicated in para 1 above.
13. Feeling aggrieved thereby the convicts have preferred the instant appeal while the complainant has filed revision against acquittal of respondents Nos.1 tc 12 and enhancement of sentence of respondents Nos.13 and 14. It is worth noting that the complainant has not filed revision against acquittal of Muhabbat, Imtiaz. Mustafa, Ferhat, Mansha and Yousaf who had made judicial confessions before Malik Jawwad Hussain M.I.C. (P.W. 9) regarding their participation in the occurrence and had retracted at the trial.
14. Learned counsel appearing on behalf of the appellants submitted that the conviction of the appellants is bad in the eye of law because the ocular evidenc relied upon by the trial Court cannot be made safe basis for their conviction inasmuch as it had been disbelieved qua eighteen accused acquitted by the tri Court. He further submitted that the injuries on the persons of Zahoor an Mukhtar P.Ws. Are of insignificant nature and could be self-suffered. He further argued that it was a case of two versions. One of them is that Abdul Razzaq Haitum, Allah Yar and Pehlwan (appellants) were not the real authors of crime rather they were Muhabbat, Imtiaz, Mansha, Mustafa and Yousuf (sine acquitted) and Naseera who allegedly had made judicial confession during the investigation and, therefore, it casts grave doubt on the story that the appellant had murdered the deceased in the manner alleged by the prosecution. He further argued that if the prosecution story is accepted on its face value even then it doe not show that the appellants had gone to the tube well of Khushi Muhammad wit common object of taking anybody's life because Abdul Razzaq (appellant) who opened attack had fired the first shot in the air and furthermore both the deceased were fired at after the complainant-party had grappled with the appellants which would mean that the appellants acted in self-defense, therefore, hey could be said to have somewhat exceeded the right. In the alternative, earned counsel submitted that in any case it was not a premeditated attack at her the occurrence took place all of a sudden, therefore, the case is covered by Exception IV of section 300, P.P.C.
15. Replying, learned counsel for the State assisted by learned counsel for he complainant submitted that there is ample evidence to show that the accused >arty had motive to attack the complainant party; that it were the appellants who amen from their Dera duly armed to the place of occurrence traversing about a Nile's distance which is indicative of the fact that they made planned attack and tilled two persons of complainant party in prosecution of their common object; that the gunshot wounds suffered by Abdul Hamid (deceased) are extensive and distantly seated on his body suggesting that they are result of more than one shot; hat injuries on the persons of Mukhtar and Zahoor P.Ws. Do not appear to be elf-suffered and their presence at the time of occurrence is established beyond reasonable doubt; that the appellants party appears to be influential so much so that they were able to win over the first investigating officer who concocted ;vidence against Muhabbat, etc. To save the real culprits and that the complainant >arty under no circumstances could be dubbed as aggressor because they were sitting at the tube well of Khushi Muhammad (the place of occurrence) which was in possession of Mian Aftab Ahmad. Ile further submitted that Shaukat's participation is proved beyond reasonable doubt whom specific shot to Abdul lamid (deceased) has been attributed and that the evidence of alibi adduced by in is shaky and untrustworthy, therefore, revision petition be accepted against dm and his re-trial be ordered.
16. We have carefully considered the contentions of learned counsel for the lathes and also perused the record. The fact that F I R in this case was lodged 'ithout any loss of time wherein the names of the accused, the weapons used by hem and the injuries to the deceased and P.Ws. Were specifically mentioned, dicates that the complainant had seen the occurrence and it was not outcome of eliberations. It is nobody's case that the F.I.R. Was delayed or was lodged after taking preliminary inquiries on the spot. Zahoor and Mukhtar P.Ws. Got injured uring the occurrence. No doubt that the doctor stated that injuries of these '.Ws. Could be self-suffered but from the dimension and nature of the injuries offered by them they do not appear to us as self-suffered. We, therefore, hold tat the injured witnesses were present at the time of occurrence. The only question which needs determination is if their testimony can be relied upon qua to appellants on capital charge? It is true that about twelve persons named in the '.I.R. As accused have been acquitted, but this fact alone is not sufficient to throw way their evidence qua the appellants as well. The principle of falsies in unoilsus in omnibus is not followed by the Courts of this country and on the other and it is emphasized that Court's duty is to sift grain from the chaff. A cursory erusal of the F.I.R. Would show that excepting Fazil, Waryam, Ghulam Hussain nd Allah Yar who are stated to have caused simple injuries to Zahoor and fukhtar P.Ws. The other eight accused were let off as they were either not resent on the spot or were empty-handed and played no active role during the :Torrence.
Waryam, Fazil, Ghulam Hussain and Allah Yar have been given benefit of doubt by way of abundant caution and in view of their old age we do A like to interfere with the order of their acquittal. As for Shaukat (acquitted accused), he had been attributed a direct shot to Abdul Hamid (deceased). We find that the trial Court has believed the evidence of alibi given by three D.Ws mentioned above. He is educated upto MA, and was serving as Lecturer in Burewala college in the days of occurrence. No doubt, defence evidence supporting his plea of alibi is somewhat shaky but we are of the view that the belief reposed by the trial Court in the defence witnesses is not wholly unjustified. Even otherwise this Court is always slow in interfering with an order of acquittal recorded by the trial Court, therefore, the benefit of doubt given to Shaukat (acquitted accused) in this case does not call for interference. But at the same time we would say that on account of the acquittal of Shaukat the testimony oil the eye-witnesses is not damaged qua the appellants. Their evidence stands rehabilitated for the reason that these witnesses have no direct previous enmity whetsoever with the appellants; their version finds support from all attending circumstances, that the occurrence took place in broad daylight, and their identity Could not be mistaken one; and that their evidence inspires confidence, therefore, we say that it can be safely acted upon. It is to be noted that the gun P.10 said to have been recovered from Ferhat actually belonged to Abdul Razzaq (appellant) for which he holds a licence. Consequently, we hold that learned trial Court rightly found that the appellants were present on the spot and had participated in the occurrence in the manner as stated by the P.Ws.
E
17. The next question which arises for determination is as to what offence the appellants had committed? The narration of facts made by the eye-witnesses shows that the appellants with other (acquitted) accused had gone to the place of occurrence with common object to get possession of Khushi Muhammad's tubewell by making show of force before the arrival of Tehsildar Consolidation and that is why Abdul Razzaq fired first shot in the air raising Lalkara. In the process the tempers of course went high on both sides and the appellants used their weapons against the complainant party. The contention of appellants' learned counsel that they acted in the exercise of right of private defence of persons is absolutely unfounded for the reason that the complainant party was empty-handed and there is not an iota of evidence on record showing that anybody from the accused party caused to the appellants apprehension of death or grievous hurt. As a matter of fact nobody from the accused party suffered even a scratch during the occurrence. In the circumstances, the appellants did not have right of private defence of person. The second contention that it was a sudden t fight without premeditation, therefore, the case was covered by exception IV of section 300, P.P.C. Also has no merit for the reason that essential conditions of the aforesaid exception, namely, that the accused should not take undue advantage and that he should not act in a cruel manner are not satisfied. However, as indicated above, the common object of the unlawful assembly was to take possession of land by show of force as the first shot was fired in air, therefore, Pehelwan and Allah Yar (appellants) who carried sticks could only be burdened with the knowledge that in prosecution of the common object grievous hurt might be caused to the persons present there, therefore, Pehelwan and Allah , Yar could be held guilty under section 326/149, P.P.C. And not under section 302/149, P.P.C. The conviction of Allah Yar and Pehelwan is consequently altered from section 302/149, P.P.C. (two counts) to section 326/149, P.P.C.
Abdul Razzaq, Haitum, and Naseera fired at the deceased with their guns and actually caused death of the two deceased. Their conviction under section 302/149, P.P.C. Is, therefore, upheld.
Similarly, conviction of all the appellants under section 148, P.P.C. And section 323/149 P.P.C. (two counts) by the learned trial Court is upheld and the sentences awarded thereunder are maintained.
18. Coming to the question of sentence under section 302/149, P.P.C., since Abdul Razzaq (appellant) caused fatal gunshot injury to Muhammad Shafi, therefore, his sentence of death on the charge is confirmed while sentence of imprisonment for life awarded to Haitum and Naseera regarding murder of Muhammad Shafi is maintained. On second charge of murder, Haitum's shot resulted in death of Abdul Hamid (deceased). Therefore, death sentence awarded to Haitum is confirmed as there is no mitigating circumstance in his favour. The shot fired by Naseera hit on the arm of Abdul Hamid (deceased) which is not fatal, so his sentence of death is not confirmed and is altered to imprisonment for life. Pehelwan and Allah Yar's conviction and sentence under section 302/149, P.P.C. Is hereby altered to one under section 326/149, P.P.C. And they are sentenced to the imprisonment for the period already undergone which comes to about 4 years' R.I. The sentence of fine imposed by trial Court is maintained.
19. In the result, death sentence of Abdul Razzaq and Haitum IS confirmed while death sentence of Naseera is NOT confirmed. Both the appeals are partly allowed in the terms indicated above. The reference to the extent of Naseera is rejected. Criminal revision seeking enhancement of sentence and retrial of respondents Nos.1 to 12 fails automatically.