1. SALAHUDDIN AHMED, J.-There are two appeals before us. Criminal Appeal No. 80 of 1910 is by four convicts, namely, Sher Zaman, Dheru, Abdur Rehman and Bahadur Ali. This appeal is as of right. The four appellants have been convicted for the first time by a Division Bench of the then High Court of West Pakistan, Lahore, under various sections of the Pakistan Penal Code including section 302 read with section 34 of the Code. They have been convicted under section 302 read with section 34 of the Code for committing the murder of two persons, namely, Elahi Bakhsh and Allah Bakhsh, and have been sentenced to transportation for life each.
2. Criminal Appeal No, 53 of 1971 is by special leave of this Court. The leave was granted in view of the fact that already, an appeal as of right from the same impugned order of the High Court and arising out of the same occurrence was pending in this Court.
3. The occurrence took place on the 1st of October 1.62, about digarwela, in the area of village Badia Qadir Bakhsh, at a distance of three miles from Police Station Golra Sharif. According to the prosecution story, complainant Khuda Bakhsh and his son Elahi Bakhsh deceased were grazing their cattle in the area of Danawali, when they noticed that 8 or 10 heads of cattle belong--ing to accused Sadiq and Sher Zaman had entered the Jawar field of the complainant and were causing damage to the crop. Elahi Bakhsh (one of the deceased) went to their field and collected the cattle for the purpose of taking them to the cattle pound. Gulzar aged 9/10 years who is younger brother of co-accused Sadiq and who was evidently tending the said cattle, ran to his Dhok and raised a hue and cry which brought to the scene Sadiq armed with a gun, Sher Zaman and Dheru armed with a hatchet each, and Bahadur Ali armed with a spear. The accused persons asked Elahi Bakhsh to release their cattle but the latter refused to do so. At this stage Allah Bakhsh and Noor Elahi (both since deceased) who were present nearby also came to the place of occurrence. It is said that Sadiq (since acquitted) fired with his gun at Elahi Bakhsh with the result that the victim fell down. In the meantime the remaining seven accused persons, namely! Aslam, Ghulam, Khuda Bakhsh and Yousuf (all these four have since been acquitted) and appellants Sarwar, Mehrban and Abdur Rehman arrived there. Of these seven accused Abdur Rehman was armed with a hatchet and the rest with lathis. P. Ws. Afzal, Sarwar and Fazal Elahi, who were present in the neighbourhood, came to the place of occurrence and tried to intervene between the parties when Sadiq accused fired another shot at Allah Bakhsh deceased. Thereafter the accused persons caused injuries to the three deceased persons, namely, Elahi Bakhsh, Allah Bakhsh and Noor Elahi as well as to the two prosecution witnesses, Sarwar and Fazal E1ahi. On hearing an alarm P. Ws. Mst. Thani and Mst.
4. Munnawar Jan came to the place of occurrence from their field and when they tried to intervene they too were injured by some of the accused persons. All the accused then left the place of occurrence. Elahi Bakhsh died at the spot. P. W. Khuda Bakhsh went to the Police Station Golra Sharif and lodged the first information report the same day at 6-30 p.m. Noor Elahi succumbed to his injuries in the Civil Hospital, Rawalpindi, at 10 p.m. On the same day, while Allah Bakhsh died in the same hospital on the 4th of October 1962.
5. In course of the investigations a muzzle guard of a gun was recovered and this was subsequently found to fit the gun produced by appellant Sher Zaman. Appellant Sher Zaman was arrested on the 4th of October 1962, and he produced the aforesaid gun which was of .12 bore with its muzzle guard missing, along with some cartridges of various numbers, and a licence. Appellants Abdur Rehman, Dheru and co-accused Aslam were arrested on the 4th of October 1962, by P. W. 25 S. I. Muhammad Suleman, and the first named produced a blood-stained hatchet and the last named produced a laths.
6. The accused persons had denied the allegations of the pro--secution, and alleged that they had been falsely involved on account of enmity. Appellant Sher Zaman and co-accused Sadiq had stated that the complainant party was the aggressor and was the first to attack Sher Zaman and snatch away his gun and when the latter raised an alarm people from both sides turned up and there was an open fight between them. Both these accused persons claimed that they had received injuries at the hands of the complainant party.
7. All together eleven persons were tried under sections 148, 302/149 and 307/149 of the Pakistan Penal Code but they were all acquitted by the trial Court of all the charges framed against them.
8. The complainant Sher Muhammad filed a revision petition before the High Court challenging the order of acquittal, and the State also subsequently filed an appeal under section 417 of the Code of Criminal Procedure from the order of acquittal. Both the revision and the appeal were, however, dismissed summarily by a Division Bench of the High Court the 10th of March 1964.
9. On appeal by Sher Muhammad being Criminal Appeal No. 66 of 1966, this Court set aside the order of acquittal passed by the High Court and remanded the case to the High Court for its re-hearing and disposal in accordance with law. In the order of remand this Court had observed as follows :- "The order of the High Court does not reveal that the learned Judges applied their minds to all the relevant aspects of the matter. This being a day-light occurrence, as observed above, and the clash being admitted, summary disposal of the appeal against acquittal, was clearly not a proper exercise of jurisdiction, without any attempt to support acquittal by reasons. Prima facie, the version given by the injured P. Ws. Had to be examined for what it was worth and if the plea of self- defence was raised that had also to be assessed on its merits. The learned trial Judge seems to have disbelieved both the prosecution and the defence versions and apparently he did not come to any firm conclusions. It was all the more necessary for the High Court, therefore, to have scrutinized the evidence in the case and to have recorded a speaking order."
10. The High Court, accordingly, heard the case once again and by its order dated the 13th of May 1970, set aside the order of acquittal in respect of seven persons, namely, Sher Zaman, Dheru, Abdur Rahman, Bahadar Ali, Sarwar, Mehrban and Yusuf, but refused to interfere with the order of acquittal regarding the remaining four persons. The Court convicted appellants Sher Zaman, Dheru, Abdur Rahrnan and Bahadur under section 302/34, P. P. C. And sentenced each of them thereunder to transportation for life and a fine of Rs. 500 for the murder of Elahi Bakhsh and Allah Bakhsh. Dheru was further convicted and sentenced under section 326 to 2 years' rigorous imprisonment and a fine of Rs. 200 for causing grievous injury to P. W. Msr. Munnawar Jan with a hatchet. Sher Zaman was further convicted and sentenced under section 324 of the Coda to I year's rigorous imprisonment and a fine of Rs. 100 for causing injury to P. W. Mst. Thani with a hatchet. Appellants Sarwar and Mehrban were convicted under section 303(()/34 of the Code for killing Noor Elahi and each of them was sentenced to six years' rigorous imprisonment and to pay a fine of Rs. 200. Bahadur Ali, Sarwar and Dheru were also convicted under section 307/34 for the murderous assault on P. W. Fazal Elahi, and each of them has been sentenced to six years' rigorous imprisonment and a fine of Rs.
100. Similarly, appellant Mehran was convicted under section 323 of the Code for causing simple hurt to Mst. Thani and was sentenced to three months' rigorous imprisonment, and a fine of Rs.
50. Yousaf was convicted under section 323, P. P. C. For causing simple hurt to P. W. Mst. Munawar Jan, and sentenced to imprisonment till the rising of the Court and a fine of Rs. 100, but he has not appealed and his case is, therefore, not before us.
11. Mr. A. R. Changez, learned Advocate appearing on behalf of the appellants has contended, in the first place, that P. W. Sher Muhammad was not a complainant in the case as has been erroneously assumed by this Court in its order of remand and that therefore he had no locus standi to prefer Criminal Appeal No. 66 of 1964 before the Supreme Court which resulted in the appeal having been allowed and the order of acquittal passed by the High Court set aside and the case remanded for re-hearing. The short answer to this contention is that although notices had been served on the accused persons they did not choose to appear before the Court and contest P. W. Sher Muhammad's appeal. Furthermore, they never raised such objection before the High Court at the re-hearing of the case. It is, therefore, now too late for the appellants to raise the objection. We may add that this Court had the necessary jurisdiction under Article 58 of the 1962 Constitution to grant leave to appeal, and Criminal Appeal No. 66 of 1964 was the result of such leave.
12. The learned counsel has next contended that while the trial Court had given good reasons for acquitting the accused, the learned Judges of the High Court on the contrary gave no cogent reasons at all for setting aside the findings of the trial Court, and convicting the accused. This is the main contention so far as the merit of the case is concerned.
13. We are unable to accept this contention for the following reason. The occurrence took place in broad daylight in an open field and the persons who have figured as eye-witnesses or as supporters of the ocular evidence are persons who lived near the place of occurrence and their presence at the scene of occur--rence can hardly be doubted. Among the eye-witnesses are four persons who received injuries in course of the occurrence and they are P. W. 17 Fazal Elahi, P. W. 18 Muhammad Sarwar, P. W. 19 Mst. Munnawar Jan and P. W. 20 Mst. Thani So far as the first two eye- witnesses are concerned, the medical evidence dis--closed that P. W. Fazal Elahi had sustained as many as four stab wounds, four incised wounds and a contusion out of which injuries Nos. 1 and 9, namely, a stab wound 1" x 3/4' x chest deep on front of left chest 1' above left nipple, and an incised wound 1/4" x 1/3' x chest deep on left back of chest 3-- " from left and axillary line, were grievous, and could prove dangerous to life. P. W. Muhammad Sarwar had received six incised wounds including an incised one 1 ----- x -- x bone deep, cutting the bone on front of middle 1/3rd of right leg, and another injury 2 ----- x 1 /4" x skull deep on the right middle of skull. Despite their injuries which were not disputed, the trial Court had dis--believed their evidence merely on the ground that they were related to the deceased party and that there were some im--material inconsistencies in their evidence. The learned Judges of the High Court have rightly pointed out the artificial nature of the reason given by the trial Court. They have also noticed that there was no suggestion to these witnesses that they had implicated the two persons on account of any enmity or for any other ulterior motive. The trial Court itself stated in para--graph 35 of its judgment that the presence of P. Ws. Sarwar and Fazal Elahi at the spot at the relevant time could not be denied as they were injured. To discard their evidence merely on the ground of relationship and for some remote reason for ill-feeling between the witnesses and the accused party appears to us to be highly unreasonable, for the injuries sustained by these two witnesses fully corroborated their evidence. This is particularly so as regards the accused who injured them. P. W. Fazal Elahi was injured by Bahadur, Dheru and Sarwar, who were respectively armed with a spear, a hatchet and a lath!. The medical evidence fully supports the witness on this point. P. W. Sarwar was injured by appellants Bahadur, Abdur Rehman and co-accused Ghulam who were respectively armed with a spear, a hatchet and a laths. This witness is also supported by the medical evidence.
14. Similarly, both Mst. Mannawar Jan and Mst. Thani sustained injuries in course of the occurrence and this supports their presence at the place of occurrence. Recovery of pieces of broken bangles from the spot by P. W. 25 S. I. Muhammad Suleman lends further support to their evidence. Mst.
15. Munawar Jan is the sister of Allah Bakhsh deceased while Mst. Thani is the widow of Allah Bakhsh deceased. They were both cutting Jawar at a distance of only 150 paces from the place of occur-- rence and it was only natural for them to have been attracted to the place of occurrence and to have acted in the m inner they acted upon the death of their relations. It is inconceivable that although three persons had been killed and two male members of the complainant party had been injured seriously, the prosecution would still feel the necessity of falsely bolstering up its case by injuring the two female witnesses merely for the sake of producing them as eye-witnesses of the occurrence. The learned Judges of the High Court have therefore rightly rejected the reason given by the trial Court for disbelieving these two female witnesses.
16. The other two eye-witnesses are P. W. 21 complainant Khuda Bakhsh, and P. W. 16 Muhammad Afzal who are relations of the three deceased persons, Allah Bakhsh, Noor Elahi and Elahi Bakhsh. The evidence of P. W. Khuda Baklish has not only been corroborated by the first information report which he lodged without any loss of time, but also by the evidence of other reliable eye-witnesses.
17. It is true that P. W. Khuda Bakhsh stated in the first information report that co-accused Sadiq had fired twice but the medical evidence does not disclose any gun shot injury upon either the deceased persons or any of the other injured persons. The learned Judges of the High Court have observed that there is no material on record on the basis of which it can be held that P. Ws. Khuda Bakhsh and Muhammad Afzal implicated the accused persons either on account of their relation-- ship with the deceased or on account of any enmity with the accused. The learned Judges have also rightly dismissed the reasons given by the trial Court for doubting the presence of these two witnesses merely on the ground that they appeared to stand as spectators and allowed their near and dear ones to be butchered mercilessly without having gone to their assistance.
18. In our opinion, the learned Judges of the High Court have carefully scrutinized the evidence against each one of the accused persons, and even have gone out of their way to give the benefit of doubt to them on several points.
19. Upon the evidence there can hardly be any doubt as to the time of occurrence and the place where the first information report was recorded. P. W. 24 Sher Zaman, A. S. I., who recorded the first information report was not at all cross-examined as to whether the first information report was recorded at the police station.
20. The learned Judges of the High Court have found that the prosecution succeeded in proving the motive which led to the occurrence. This motive was mentioned in the first information report and it was proved by P. W. Khuda Bakhsh in his evidence. P. W. 6 Sher Muhammad appeared as a formal witness to prove that he bad identified the dead body of Allah Bakhsh at the post--mortem examination. It appears that this witness came out with another reason for the occurrence. The learned Judges of the High Court have rightly pointed out that his evidence does not in anyway falsify the immediate motive as proved by P. W. Khuda Bakhsh.
21. We do not find any substance in the contention that the story given in the first information report is different from the story disclosed in the evidence at the trial. This contention apparently is based upon the fact that although P. W. Khuda Bakhsh stated that Sadiq had fired twice, the medical evidence apparently did not disclose any fire-arm injury. It may, however, be stated here that the recovery of a muzzle guard which fitted the gun produced by Sher Zaman proved the fact that a gun was with the assailant party. P. W. Khuda Bakhsh deposed that P. W. Sarwar had snatched the gun from Sadiq and inflicted some blows with it on the latter and that the accused while leaving left behind a muzzle guard. The medical evidence lend support to this story for Sadiq was found to have received some injuries caused by a blunt substance. The fact that Sadiq was acquitted does not, in our opinion, in any way affect the evidence of P. W. Khuda Bakhsh. In the absence of clear medical evidence that there was a fire-arm injury, the learned Judges of the High Court were entitled to hold that the prosecution failed to prove its case against Sadiq beyond any reasonable doubt.
22. There it nothing to show that any material witness who was available has been left out by the prosecution without any reason.
23. The evidence discloses the circumstances in which accused Sher Zaman could have been injured and the contention, there--fore, that there is no explanation for his injury is not correct.
24. The learned Judges of the High Court have given good reasons for not interfering with the acquittal of some of the accused persons on the ground of benefit of doubt. 1 he acquittal of these accused does not in our opinion affect the prosecution case regarding those who were convicted.
25. There remains the contention as to the nature of the offences committed by the appellants. It has been contended strenuously that upon the evidence the offences appear to have been com-- mitted without any premeditation and at the spur of the moment and therefore there could be no conviction constructively under sections 302/34 and 307/34 of the Code. We do not find any substance in this contention also, The evidence discloses that the accused persons came in two batches as a result of the message carried by the boy, Gulzar. They, however, all came armed, and some of them, namely, appellants Sher Zaman, Dheru, Abdur Rehman and Bahadur were armed with hatchets and spear while at least one of the accused carried a gun. The evidence further is that individual attacks were followed by simultaneous assaults which resulted in the death of three persons and severe injuries to at least two witnesses. In these circumstances even if they had no pre-concert when they had first started from their houses, the simultaneous and indiscriminate attack upon the injured persons that followed undoubtedly proved that such attack was in further- -ance of their common intention to kill or to make the murderous assault ascribed to them. In the case of Rasool Bakhsh v. The State (PLD1970 SC 316), this Court has held that the common intention can be formed at the spur of the moment.
26. Similarly in the case of appellants Mehrban and Sarwar the evidence is that they simultaneously gave lathi blows upon Noor Elahi deceased as a result of which the victim succumbed to his injuries. According to the medical evidence, Noor Elahi had one contused wound 2' x J' x bone deep on the top of the head on the left side 1' from middle line, and another contused wound 3/4' x 1/4' on the upper part of left ear: These injuries resulted in the fracture of left temporal bone and the fracture of the left parietal bone on the top. In the opinion of the doctor death was caused by the fracture of the skull. The doctor also found an abrasion 1" x 1/2' on the back of the left hand. This injury was presumably due to the defensive action on the part of the deceased. In these circumstances their action was obviously in furtherance of their common intention to cause at least such bodily injury as was likely to cause death.
27. As regards the other injuries the accused persons have been convicted for their individual acts and no fault can be found with this.
28. For the foregoing reasons we do not find- any substance in any of the two appeals and they are accordingly dismissed.