FAZAL KARIM, J.--Fajjar Ali, Muhammad Yousaf alias Shera, Zafar Iqbal, Zulfiqar Ali, appellants, along with two others, named, Safdar Iqbal and Akhtar Iqbal, were tried by the learned Special Court constituted under the Special Courts for Speedy Trials Act, 1987, Sargodha, for the murders of Khalil Ahmad, Nazar Muhammad and Muhammad Habib. By its judgment dated 12.1.1988, the learned Special Court acquitted Safdar Iqbal and Akhtar Iqbal and convicted the appellants under section 302, read with section 34 of the PPC and sentenced them to death and fine of Rs.10,000/- and in defauIt to two years R.I. Each on three counts 3/4th amount of the fine, if recovered, was directed to be paid equally to the heirs of Khalil Ahmad, Nazar Muhammad and Muhammad Habib, deceased persons.
2. Muhammad Yousaf alias Shera and Zafar Iqbal, appellants are sons, Zulfiqar Ali, appellant, is a son-in-law of Fajjar Ali, appellant. The acquitted accused person Zafar Iqbal and Akhtar Iqbal were also the sons of Fajjar Ali, appellant.
3. The deceased men were closely related to the appellants. Muhammad Habib, deceased; Nazar Muhammad, deceased, was a real brother of Fajjar Ali, appellant. Khalil Ahmed, deceased, was a real uncle's son of Fajjar Ali, appellant. It is in evidence that the wives of Fajjar Ali, appellant, Nazar Muhammad and Khalil Ahmed, deceased persons, were real sisters.
4. The unfortunate incident occurred at 4 p.m. On 9.1.1987, which was a Friday, in Killa No.5 of square No.9 in Chak No.64 S.B. Within the limits of Police Station Sillanwali, District Sargodha, the place of incident being seven miles from the Police Station. Its first information was laid before the police by Alimuddin (PW.10), a brother of Khalil Ahmed, deceased, at 6.30 p.m. On the same day. The FIR is Ex.P.S; it was recorded by Muhammad Aslam S.I. (PW-12). The prosecution case, as laid in Ex.P.S., is follows.
5. Towards the north of the abadi of Chak No.64 S.B. At a distance of about one mile, the two brother Fajjar Ali, appellant, and Nazar Muhammad, deceased, owned contiguous lands viz. Killa Nos.5 and 6 of square No.9. Killa No.5 belonged to Nazar Muhammad, deceased, and Killa No.6 belonged to Fajjar Ali, appellant. There had been a dispute between the two brothers over the boundary of these two killas for 5/6 years. Fajjar Ali and his sons wanted some area of killa No.5 to be included in killa No.6. At about 4 p.m. On 9.1.1987, Alimuddin, Muhammad Hafiz and Muhammad Iqbal P.Ws, were watering their cattle in the Government water-course near the land; Khalil Ahmad, Nazar Muhammad and Muhammad Habib, deceased persons, were working in their land viz. Killa No.4 of square No.9. Fajjar Ali, accompanied by his sons Muhammad Yousaf alias Shera, Zafar Iqbal, Safdar Iqbal and Akhtar Iqbal and his son-in-law Zulfiqar Ali, of whom Muhammad Yousaf alias Shera carried a kassi and the rest carried hatchets, came from their cattle shed to killa No.5 shouting. Muhammad Yousaf alias Shera started demolishing the boundary between the killa Nos:5 and 6. Khalil Ahmed and Nazar Muhammad, deceased persons, entreated them not to do so saying that they should have the dispute decided by bradri. Fajjar Ali, appellant, however, exhorted his co-accused to kill them. Fajjar Ali, Zafar Iqbal, appellants, and Akhtar Iqbal accused gave a hatchet blow each on the head of Nazar Muhammad; he fell down. Zulfiqar Ali and Zafar Iqbal gave a hatchet blow each on the right leg of Nazar Muhamad. Khalil Ahmed and Muhammad Habib Went forward and Muhammad Yousaf alias Shera struck him on the head with the right side of his Kassi. He fell down. Zulifqar Ali gave a hatchet blow on the head of Muhammad Habib; he too was grounded. Then all the appellants and their co-accused gave hatchet blows to Khalil Ahmad and Muhammad Habib. Alimuddin, Muhammad Hafiz and Muhammad Iqbal tried to intervene to save the deceased persons but they were threatened with death by the appellants and their coraccused. The appellants and their co-accused then left. The deceased person., died of the injuries at the spot.
6. According to the FIR, the incident had occurred at 4 P.M. On 9.1.1987 and was reported at 6.30 P.M.
On the same day, yet somehow in the body of the FIR, the time of occurrence was stated to be
7. After recording the FIR, Muhammad Aslam S.I. Reached the spot 7.30 P.M. He prepared the injury statements and inquest reports in respect of the dead bodies and despatched them for postmortem examination under escort of SuItan Mehmood and Pehlawn Khan Constables. He collected blood-stained earth from three different places and made the earth, so collected, into three different parcels. He inspected the sopt on 10.1.1987 and found " that boundary of Killa No.6 was extended to 7 Karams in length and 1-1/2 feet in width into killa No.5 ". He searched for the accused persons on 9th and 10th Jaunary but did not find them. On 14.1.1987, he arrested the accused persons from their house.On 18.1.1987, Fajjar Ali, appellant, led to his house and produced blood-stained hatchet P.11 from the Baithak. The hatchet was made into a sealed parcel Vide memo Ex.P.H. Then Muhammad Yousaf alias Shera led to his house and produced blood-stained Kassi P.13 from his house and he made it into a sealed parcel vide memo Ex/PK. On the same day, Safdar Iqbal, accused, led to the recovery of blood-stained hatchet P.14 from his house. The hatchet was made into a sealed parcel vide memo Ex. P.L. Zafar Iqbal, appellant, also led to the recovery of bloodstained hatchet P.15 from a Khola: the hatchet was made into a sealed parcel vide memo Ex.P.M. Akhtar Iqbal accused led to the recovery of bloodstained hatchet P.16 On the same day, Zulfiqar Ali, appellant, led to the recovery of blood-stained hatchet P.12 from a Chullah of a sugar-cane Bhatti. The hatchet was made into a sealed parcel vide memo Ex.PJ.
8. While in the witness box, the attenation of Muhammad Aslam S.I. (PW.12) was called to the words in the inquest report " ". He said that "this was written inadvertantly". Muhammad Aslam S.I.
Admitted that at the time of his arrest Fajjar Ali, appellant, had stated before him" that he was injured by Khalil deceased with a hatchet," adding that he had "noted a wound on the left leg of Fajjar Ali accused' but volunteered "that this mark of wound was mark of identification". He had not noted that the wounds was a healed one. He had also noticed that Muhammad Yousaf alias Shera, appellant, had a wound on his eye-brow. This too was a mark of identification. The S.I. Also admitted that Muhammad Yousaf alias Shera, appellant, had at the time of his arrest given his version that he was innocent. Akhtar Iqbal accused had, at the time of his arrest, told him that he was employed at Nishtar Textile Mills, Faisalabad, and was not present at the time of the incident.
Similarly, Safdar Iqbal accused had told him that he was a student of Government Islamia College, Faisalabad, and had not participated in the incident.
9. The autopsy on the dead bodies of the deceased persons was performed by Dr.Zafar Chaudhry (PW.9), at about 10 a.m. On 10.1.1987. On the dead body of Nazar Muhammad were found the following injuries:-
1. An incised wound 15 cm x 4 cm on right side of head, wound was deep upto the bone.
2. An incised wound 10 cm x 1 1/2 on the top of the head, bone deep.
3. An incised wound 10 cm x 3 cm on the right cheek.
4. An incised wound 9 cm x 3 cm on the right leg.
5. An incised wound 5 cm x 2 cm on the right lower leg. 5 cm from injury No.4.
In the opinion of the doctor, death was due to haemorrhage and shock due to injuries Nos. 1, 2 and 3 which were sufficient to cause death in the ordinary course of nature. All the injuries were caused with sharp-edged weapon and were ante-mortem. Probable time between 'the injuries and death was immediate and between death and postmortem was 18 to 21 hours. Ex.P.O.Is the postmortem examination report and Ex.P.O/1 and Ex.P.O/2 are the sketches of the injuries.
10. The dead body of Khalil Ahmed was found to have the following injuries:-
1. An incised wound, 24 x 13 cm on the head. Bone was completely cut.
2. An incised wound 7 cm x 4 cm on the right side of head. Bone was completely cut, at the distance of 6 cm from injury No.1.
3. An incised wound 9 cm x 1 cm on the right mendible.
4. An incised wound 4 cm x 1 cm on the right leg.
5. An incised wound 4 cm x 2 cm on the right upper arm.
6. A lacerated wound 2 cm x 1 cm on the right shoulder.
7. An incised wound 10 cm x 2 cm on the right leg, bone was cut completely.
8. An incised wound 7 cm x 3 cm on the right leg on the upper part.
9. An incised wound 5 cm x 1 cm on the left leg.
10. A contused area 5 cm x 4 cm on the Tight leg.
In the opinion of the doctor, death was due to haemorrhage and shock resuIting from injuries Nos.l and 2, which were sufficient to cause death in the ordinary course of nature. The injuries were caused with sharp- edged and blunt edged weapons and were ante-mortem. Probable time between injury and death was immediate and probable time between death and postmortem was 18 to 21 hours. Ex.P.Q is the copy of postmortem examination report, and Exs. P.Q/1 and PQ/2 are the diagrams of the injuries.11. On the dead body of Muhammad Habib were found the following injuries:-
1. An incised wound 19 x 3 cm on the left side of the head, bone was completely cut down, upto the brain matter.
2. An incised wound 12 x 3 cm on the head at the distance of 6 cm from injury No.1.
3. An incised wound 12 x 2 cm on the back side of the head, bone was completely cut down, upto the brain matter.
4. An incised wound 10 x 2 cm on the left shoulder, on the back.
5. An incised wound 7 x 3 cm on the back of the neck.
1h the opinion of the doctor, death was due to shock and haemorrhage caused by injuries Nos.l, 2 and 3, which were sufficient to cause death in the ordinary course of nature. The injuries were ante- mortem and were caused by a sharp-edged weapon. Probable time between the injuries and the death was immediate and between death and postmortem examination 18 to 21 hours. Ex.P.R. Is the carbon copy of postmortem examination report and Ex.P.R/I and Ex.P.R/2 are the diagrams of the injuries.
12. It should be mentioned here that in the postmortem examination report of Khalil Ahmed, deceased, (Ex.P.Q.), which was a carbon copy, the "expression from 3-4 hours" in the column relating to time between injuries and death and the "expression between 19 to 22 hours" in the column relating to time between death and postmortem examination were substituted by the word 'immediate' and the expression "18 to 21 hours" respectively. Similarly, in the postmortem examination report (Ex.P.R.) the expression "from 2-3 hours" was scored off and was substituted by the word 'immediate' and the expression 20 to 23 hours was substituted by the expression "18 to 21 hours." While in the witness box, the doctor's attention was called to those cuttings and to the copies of postmortem examination resports Ex.D.C. And D.D. Respectively of Khalil Ahmed and Muhammad Habib, deceased persons, where there were no such cutting. He denied that it was to help the complainant that he had deliberately made cuttings in Ex.PQ, and Ex.P.R.
13. At the trial, the prosecution called twelve witnesses including Dr.Zafar Chaudhry (PW.9) and Muhammad Aslam S.I.(PW.12). Of them Alimuddin (PW.10) and Muhammad Hafiz (PW.Ll) gave the eyewitness account of the incident.
14. Muhammad Nawaz ASI (PW.l) was Moharrar Head Constable of Police Station Sillanwali. He had received three sealed parcels, containing blood-stained earth, from Muhammad Aslam SHO P.W.
On 17.1.1987, he had given them to Muhammad Azam F.C. For being delivered at the office of the Chemical Examiner, Lahore. On 18.1.1987, he had received five sealed parcels, containing hatchets and one sealed parcel, containing kassi. He had given those parcels to Muhammad Azam (it was in fact Muhammad Afzal PW.2) the same day for being taken to the Chemical Examiner. Muhammad Afzal F.C. (PW.2) had delivered all these parcels at the office of the Chemical Examiner safely.
SuItan Mehmood F.C. (PW.3) had accompanied Muhammad Aslam S.I. To the place of incident on 9.1.1987; he was handed over the dead bodies on 10.1.1987 and he had escorted them to the mortuary for postmortem examination. Pehlwan Khan F.C. (PW.4) escorted the dead body of Nazar Muhammad, deceased, to the murtuary and reached there at 11 p.m. On 9.1.1987. Muhammad Jamil (PW.5) had identified the dead bodies at the time of the postmertem examination. Manzoor Hussain Patwari (PW.6) had prepared the site-plan Ex.P.D. And P.D/1 in the scale of ten karams to an inch.
15. Zulfiqar Ali (PW.7) had witnessed the taking into possesion of blood-stained earth vide memos Exs.P.E, P.F. And P.G. He was also present when Fajjar Ali, appellant, led to his house and produced bloodstained hatchet P.11. The hatchet was made into a sealed parcel vide meo Ex.P.H. He added that the police had then effected recoveries from the remaining accused persons but he had not accompanied the police or the accused persons to their houses." The relevant papers were prepared, at the place where we were sitting and I signed there." As this witness did not go the hole way to support the prosecution case, he was cross-examined by the learned Prosecutor. Nazar Muhammad (PW.8) testified to the recovery of blood-stained earth from three places and the recovery of blood-stained kassi from Muhammad Yousaf alias Shera and blood-stained hatchets from the remaining accused persons.
16. Alimuddin (PW.10) was real brother of khalil Ahmed, deceased; Muhammad Hafiz (PW.Ll) was a son of Khalil Ahmed, deceased. The substance of their testimony was as follows. Killa No.5 of square No.9 belonged to Nazar Muhammad, deceased and Killa No.6 of square No.9 belonged to Fajjar Ali, appellant. There was a dispute between the two brothers "regarding the demarcation of these two killas". Fajjar Ali, appellant, claimed that some of his land fell in killa No.5. Nazar Muhammad, deceased, had told Fajjar Ali, appellant, that he should have his land demarcated by the Patwari.
Alimuddin P.W. And Khalil Ahmed, deceased, cuItivated the land of Nazar Muhammad, deceased.
They had sown Masar crops in an area of 11/2 kanals in killa No.5 which adjoined killa No.6.
17. At about 4 p.m. On the day of the incident, Alimuddin, Muhammad Hafiz and Muhammad Iqbal P.Ws, (the latter was a son of Nazar Muhammad, deceased: he was given up as unnecessary) had taken their cattle to the Government watercourse for drinking water. The watercourse was towards the north of killa No.5 adjoining it. The deceased persons were working in the sugar-cane field viz. Killa No.4 which adjoined killa No.5. The appellants and their co-accused arrived at the spot from their dera in killa No.7; Muhammad Yousaf alias Shera carried a kassi and the rest of them carried hatchets. Muhammad Yousaf alias Shera started demolishing the boundary between killa No.5 and 6 with his kassi and extended the boundary of killa No.5 by 7 karams x 1 1/2 feet. The deceased persons requested them to settle the boundary dispute amicably. Fajjar Ali, appellant, however, raised a lalkara that the deceased men should be killed. Fajjar Ali, appellant, gave a hatchet blow on the head of Nazar Muhammad, deceased; Zafar Iqbal, appellant, also gave a hatchet blow with the right side of his hatchet on the head of Nazar Muhammad hitting him near his right ear; and Akhtar Iqbal accused gave a hatchet blow on the right cheek of Nazar Mi> .Ainmad, deceased; the latter fell down; then Zafar Iqbal, appellant, and Akhtar Iqbal accused gave hatchet blows each on the right leg of Nazar Muhammad, deceased. Muhammad Yousaf alias Shera, appellant, hit Khalil Ahmed, deceased, with his kassi on the head; he too fell down, Muhammad Yousaf alias Shera, appellant, and Safdar Iqbal, accused, then gave several blows with their weapons to Khalil Ahmed, deceased, some with sharp side and some with blunt side of their weapons. Zulfiqar Ali, appellant, struck Muhammad Habibi, deceased, a hatchet blow on the head and this blow grounded him.
Then all the accused persons gave blows to Muhammad Habib with their respective weapons. The P.Ws. Alimuddin, Iqbal and Muhammad Hafiz tried to rescue the deceased men but the appellant and their co-accused threatened them with death. All the deceased men died at the spot. Leaving Muhammad Hafiz and Iqbal at the spot, Alimuddin, complainant, went to the Police Station and lodged the report Ex.P.S.
18. The prosecution also tendered in evidence the reports of the Chemical Examiner Ex.P.LL, P. GG, P.KK, P.MM, P.JJ and P.HH and the reports of the Serologist Ex.P.NN, P.TT, P.QQ, P.RR, P.OO and P.SS.
According to these reports, the kassi and the hatchets allegedly recovered from the appellants and their co-accused were stained with human blood.
19. In their statements under section 342 Cr.P.C., the accused person other than Fajjar Ali and Muhammad Yousaf alias Shera denied having had anything to do with the incident. According to Fajjar Ali, appellant, the incident occurred in the following manner:- "On the day of occurrence at about noon time, I was trimming my Sheesham tree in killa No.6 of Square No.9, with hatchet, while my son Yousaf alias Shera was working with Kassi in the field.
Meanwhile cattle of Khalil deceased tres-passed into killa No.6, where I had grown fodder (Shaftal) and started damaging it. I asked Khalil deceased to take out his cattle from my field and there was exchange of hot words. Khalil deceased had hatchet with him. He gave me a hatchet blow on my left leg. The injury mark is still there. He also caught hold of my beard. My son Yousaf alias Shera came there to rescue me and in the meanwhile Nazar Muhammad and Muhammad Habib deceased also came there armed with hatchets and then fight took place and in that melee my son Yousaf, Nazar Muhammad, Khalil Ahmed and Muhammad Habib were injured. The other accused were not present at the spot. We appeared before the police at the evening time of the following day, when we were called by the police. Anwar Ali Cheema MNA is party man of Aleem- ud-Din, complainant, who got twisted the real facts, on the following day and concocted the present story of the prosecution. Because of the dishonest investigation myself and my son Yousaf alias Shera were not got medically examined by the police."
20. Muhammad Yousaf alias Shera, appellant, adopted the above version of the incident. Zafar Iqbal, appellant, said that he was Accountant in Nishat Textile Mills, Faisalabad; he had five minor children and lived with them at Faisalabad. According to the appellants and their co- accused, the prosecution witnesses had deposed against them" due to enmity with Alimuddin, complainant, and because of unfortunate death of the deceased person".
21. The appellants did not give evidence on oath as required by section 340, sub-section (2) of the Cr.P.C. Safdar Iqbal, accused, tendered in his defence a Character Certificate (Ex.D.H.), photo-copy of his FA. Certificate, Mark-A, Photo-copy of voters' list, Mark-C. Mark 'B' was produced to show that Zafar Iqbal, appellant, was enroled as voter in the area of Nishat Abad, Faisalabad, and Mark-C showed that his wife was also a voter in that area.
22. The learned trial Judge found that the prosecution had succeeded in proving the motive; he believed the ocular testimony of Alimuddin and Muhammad Hafiz P.Ws, which testimony, according to him, received support from the recovery of weapons from the appellants. In his opinion, the word * "in the FIR was not of much significance, particularly when Fajjar Ali, appellant, had admitted the day of occurrence. As to the cutting and over-writings in the postmortem examination reports Exs.P.Q. And P.R., the learned trial Judge accepted the explanation of Dr.Zafar Chaudhry; in the view of the learned trial Judge, the doctor was an independent witness "and had no reason to make any aIterations, in the postmortem examination report, to help the prosecution.
He, however, gave the benefit of doubt to Safdar Iqbal and Akhtar Iqbal accused persons and acquitted them.
23. As has been noticed above, the parties were closely related inter se. Nazar Muhammad, deceased, was the real brother of Fajjar Ali, appellant, and Khalil Ahmed, deceased,-was the first cousin of Fajjar Ali, appellant, and Nazar Muhammad, accused. Alimuddin and Muhammad Hafiz P.Ws., on whose testimony the prosecution case mainly rested, were also very close relatives of the deceased persons and the appellants. Alimuddin P.W. Was real brother of Muhammad Habib, deceased, and Muhammad Hafiz P.W. Was a son of Khalil Ahmed, deceased. Thus Alimuddin and Muhammad Hafiz P.Ws, were as close relatives of Nazar Muhammad and Muhammad Habib, deceased, as they were of Fajjar Ali, appellant. It was said that the dispute over the boundary of killa No.5 and 6 between Nazar Muhammad, deceamsed, and Fajjar Ali, appellant, had been going on for 5/6 years before the incident but it was no body's case that the dispute had ever taken a serious turn before. Against Alimuddin P.W., it was said that he was involved in a case for assauIting Fajjar Ali, appellant; this was true and the fact was admitted by Alimuddin P.W. Too. As to when the incident in which Fajjar Ali, appellant, was injured, occurred, the record is silent. That case was cancelled. We also do not know serious that alleged assauIt by Alimuddin upon Fajjar Ali, appellant, was. It appears, therefore, that Alimuddin and Muhammad Hafiz P.Ws, had no reason to falsely implicate the appellants. Learned counsel for the appellants also pointed out that Alimuddin and Muhammad Hafiz P.Ws lived at a distance of one mile from the place of incident; that the story that they had brought their cattle to the water-course near killa No.5 to water them is hardly plausible, for, admittedly, there were water-courses near the village abadi and in any case, there were water pumps and other sources of water available. Learned counsel for the appellants went so far as to suggest that it was an unwitnessed incident and he sought to derive support for this view from the cuttings in the postmortem examination reports Ex.P.K and P.R, referred to above. True, that both Alimuddin and Muhammad Hafiz P.Ws, lived in the abadi of Chak No.64/S.B. Which was at a distance of one mile from the place of occurrence; Alimuddin P.W. Also admitted that there was a water pump in his land in square No.37; there was a water-course also in that square and there were water-ponds on the four sides of the village abadi. He, however, added that on the day of incident, there was no water in the canal but there was some water in the water-course. Otherwise too, we do not find anything unusual in Alimuddin and Muhammad Hafiz P.Ws taking their cattle to the watercourse near Killa No.5 of square No.9. As regards the cuttings in the column relating to the time between the injury and the death and between death and postmortem examination in Exs.P.Q and P.R., the learned counsel for the appellants wanted us to infer from the substitution of "immediate"for the expression "from 3-4 hours" that the deceased persons Khalil Ahmed and Muhammad Habib had remained alive for 3/4 hours after receiving injuries and as no body had witnessed the incident taking place, they lad died unattended. It appears, however, that the place of occurrence was not aItogether an un-inhabitated place. It is in the evidence of Alimuddin P.W.
That Daood and Suleman had deras in square No.10. One Tufail had his dera in square No.8 and one Abdul Sattar had his dera in square No.9 itself. The lands near the place of occurrence were all cuItivated lands. We, therefore do not find it possible to hold that the deceased persons had lived for three or four hours after receiving the injuries but no body had attended them. Learned counsel for the appellants was unable to say that the doctor had any basis in fact for his opinion that the time that had elapsed between injuries and death was 3 to 4 hours. Thus the doctor's was a mere opinion. We, therefore, see no reason for holding that the incident had not been witnessed by Alimuddin and Muhammad Hafiz P.Ws. As according to them, the deceased persons had died at the spot immediately, if we have to choose between the mere opinion of the doctor and the testimony of Alimuddin and Muhammad Hafiz P.Ws., we would prefer the latter. Much was tried to be made of the words " " in the FIR; it was said that this shows at least that the FIR was not recorded on 9.1.1987 and the inference is that it was recorded after due deliberations and preliminary inquiries. In this behalf, reference was also made to the entries of the inquest reports to point out that there also the word"........ " occurs. In the inquest reports, it was further pointed out, the number of the FIR was not mentioned. Alimuddin P.W. Said that he had reported the incident at 4he Police Station at 6.30 p.m. On 9.1.1987 and this is borne out by the FIR itself. The S.I. Said that it was by inadvertence that the word " " was written in the FIR. He was positive that he had, after recording the FIR, reached the spot at 7.30 p.m. On 9.1.1987. In the circumstances, we do not attach any importance to the occurrence of the word " " in the FIR and the omission of the FIR number in the inquest reports.
24. Learned counsel for the appellants also argued that it was a case of-no motive at all. Alimuddin P.W. Admitted that though there was the boundary dispute between Nazar Muhammad, deceased, and Fajjar Ali, appellant, yet, there had been no litigation between the parties and also there had been no fight over that dispute. The parties are, however, agreed that the incident occurred, according to the prosecution, when the appellants and their co-accused went to the land demolished the boundary between the two killas with a view to including a part of killa No.5 in killa No.6 and according to Fajjar Ali, appellant, when the cattle of Khalil Ahmed, deceased, had damaged his shaftal crop and when he told him to take out his cattle from his field, there was an exchange of hot words and Khalil Ahmed, deceased, had given him a hatchet blow on his left leg and caught him by his beard. The Investigating Officer Muhammad Aslam S.I. Had noticed, while inspecting the spot, that boundary of killa No.6 had been extended by 7 karams x 11/2 feet into killa No.5. This assertion, according to the learned counsel for the appellants, was belied by the fact that it was not mentioned in the inspection note as also in the site-plan Ex.P.D. The S.L, however, did mention it in the case diary. As regards the sit-plan, that was, according to Manzoor Hussain Patwari (PW.6), prepared on 21.1.1987 and could not have reflected the position as on 9.1.1987.
25. It was then contended that it was a case of sudden fight in which Fajjar Ali and Muhammad Yousaf alias Shera were also injured; that as their injuries were not explained, and the version of Fajjar Ali, appellant, was a plausible version, the appellants Fajjar Ali and Muhammad Yousaf alias Shera must be taken to have acted in the exercise of their right of self defence, for, not only were Fajjar Ali and Muhammad Yousaf alias Shera injured but the beard of Fajjar Ali, appellant was pulled which was a grave insuIt. The contention, if we may say so, assumes that the version of the incident given by Fajjar Ali, appellant, received support from the evidence on the record and, therefore, deserved acceptance. We, however, find nothing on the record to support that version.
According to that version, Muhammad Yousaf alias Shera had a kassi: Fajjar Ali, appellant, did not so much as say that he was armed. Thus the defence version would have us believe that Muhammad Yousaf alias Shera alone had with his kassi caused the death of these persons, one of whom Khalil Ahmed was armed with a hatchet. As noticed above, the appellants were arrested on 14.1.1987. Though, according to Fajjar Ali, appellant, he and his co-accused had appeared before the police in the evening of 10.1.1987, yet, there is no evidence to support this assertion and to reject the prosecution evidence that the appellants were arrested on 14.1.1987. Muhammad Aslam S.I. Had noticed some injury marks on the persons of Fajjar Ali and Muhammad Yousaf alias Shera but those, according to him, were identification marks. Any how, if Fajjar Ali and Muhammad Yousaf alias Shera, appellants, had been injured during the course of the incident, they had enough time to.Have themselves medically examined for their injuries, if any. The defence version as set up by Fajjar Ah and Muhammad Yousaf alias Shera, appellants, must, therefore, make demand upon one's sense of credulity. It has nothing to commend it and we have no hesitation in rejecting it. It appears, therefore, that the appellants had gone to the spot armed with a view to using force in order to take from killa No.5 what they thought to be the part of their land. Thus, they took the law into their own hands after making preparations to act violently, if any body intervened. As seen above, there was no fight, for, the aggression was wholly one sided.
26. The recovery of weapons from Muhammad Yousaf alias Shera, Fajjar Ali, Zafar Iqbal and Zulfiqar Ali, appellants, was effected on 18.1.1987; the prosecution examined two witnesses, namely, Zulfiqar Ali (PW.7) and Nazar Muhammad (PW.8) to testify to those recoveries. Zulfiqar Ali, P.W. Supported the prosecution case to the extent of recovery of bloodstained hatchet P.11 from Fajjar Ali and added that the police had effected the recovery from others but he had not accompanied the police to the places of recovery. He, however, admitted that the recovery of weapons from the appellants Muhammad Yousaf alias Shera, Zafar Iqbal and Zulfiqar Ali was effected and that he had signed the memos of recoveries. Nazar Muhammad P.W. Fully supported the recovery of the weapons of offence from the appellants. Both were independent and disinterested witnesses and were in our view rightly believed by the learned trial Judge.
27. For these reasons, we would maintain the conviction of all the appellants. As regards the sentence, we find no mitigating circumstances in favour of Fajjar Ali, Muhammad Yousaf alias Shera and Zafar Iqbal, appellants, and maintain their sentences also.
28. Zulfiqar Ali, appellant, is a son-in-law of Fajjar Ali. He belonged to Pasrur, District Sialkot and it may well be that he had come on a visit to the house of the remaining appellants and had joined the remaining appellants on the spur of moment. We would, therefore, reduce his sentence to life imprisonment on all the three counts but jnaintain his sentence of fine. The sentence of life imprisonment shall run concurrently.
29. With this modification, the appeal is dismissed.