1. MUHAMMAD AFZAL ZULLAH, CJ. ---This appeal through leave of the Court has arisen out of the dismissal by the High Court of the appellants' appeal against conviction and various sentences including life imprisonment for offences of murder and attempted murder.
2. Two persons were injured from the complainant side: One, Ghulam Rasool who received 11 injuries- -3 with sharp edged weapons as a result of which he died. Allah Ditta P.W. Received 23 injures, 8 of them were grievous. He, however, survived the attack. The accused/convicts were ten in number as follows:
(1) Akbar
(2) Ashiq
(3) Abdullah
(4) Ghulam Rasool
(5) Atta Muhammad
(6) Muhammad
(7) Hazara Khan
(8) Allah Ditta
(9) Subey Khan
(10) Mukhtar The story in the prosecution case as stated in the concise statement is as follows: That Abdullah accused had abducted Mst. Wassan Mai wife of Muhammad Yousaf who is brother of the deceased about 3/4 years prior to the occurrence. In retalliation Muhammad Yousaf abducted Mst. Zohra Mai wife of Abdullah accused 2/3 months before the. Occurrence. The accused wanted the return of Mst. Zohra Mai but Yousaf did not agrec. Muhammad Ramzan complainant stated that on 7-6-1980 at about 4 p.m. He along with Ghulam Rasool deceased.
3. Manzoor, Muhammad and Allah Ditta PWs was proceeding to the house of Ghulam Lambardar and Chairman as he had summoned them. When they reached near the land of Shafi Khan Baloch suddenly from the nearby Sarkanda bushes Subey Khan, Allah Ditta, Abdullah and Ata Muhammad armed with Barchhis, Mukhtar: Ghulaw Rasul. Hazarei' Khan, Ashiq and Akber armed with sticks while Muhammad accused armed with hatchet emerged. At that time Ghulam Rasool was going ahead of them. Subey Khan gave Barchhi blow on the right side of head while Allah Ditta accused gave Barchhi blow on the top of head of Ghulam Rasool deceased. Thereafter Muhammad accused infected hatchet blow on the head of Ghulam Rasool deceased who fell down. Allah Ditta PW went near Ghulam Rasul deceased to rescue him but he he was given blows by all the accused. They had sticks in their hands. The alarm attracted Sardar PW as well. The other residents also rushed towards the place of occurrence. At this all the accused after injuring Ghulam Rasul and Allah Ditta with Barchhies, sticks and hatchets went away with their respective weapons.
4. Leave to appeal was granted mainly to examine; whether there is absolutely no possibility that although the culprits did belong to the complainant party in this case and the net had not been thrown too wide on account of bitter enfiity between the parties due to two abductions of women; one from each side.
5. After fairly long discussion we have come to the conclusion that although Abdullah appellant who has also the strongest possible motive is not alleged to have caused any serious injuries to the deceased yet it cannot at all be assumed that the type of the attack the accused party was to launch could have involved less than five persons. There is no doubt about the common object as well. Furthermore subsequently a spear was recovered from him and it was found blood stained.
6. He also bears the mark of participation; namely, one injury was found on his chest. The location and nature of injury is such that his denial notwithstanding, it was suffered by him in this occurrence. His participation is, therefore, beyond any doubt.
7. Subey Khan appellant subsequently by a written application withdrew his appeal. There is nothing in the application submitted by him for the withdrawal of the appeal to indicate that it was under any pressure, under fear or other undue influence. He did so voluntarily and there is no reason for us not to assume that he did so on an assumption that he participated in the occurrence and he did not want to be acquitted. Accordingly, his participation in the occurrence is also assured beyond any doubt.
8. Muhammad appellant was attributed a specific hatchet blow with a hatchet and the same with blood stains on it was recovered from him. His participation also is without any doubt.
9. Accordingly, their participation being beyond reasonable doubt their appeals are dismissed.
10. In so far as the remaining appellants are concerned there is no satisfactory, confirmatory supporting corroboratory material against them. Therefore, their appeals are allowed and by extension of benefit of doubt they are acquitted. They are Akbar, Ashiq, Ghulam Rasool, Atta Muhammad, Hazara Khan, Allah Ditta and Mukhtar.
11. 1t may be mentioned here that at an earlier stage, it appears, under konaitur Kanman, J) some misunderstanding and lack of co-ordination between the accused persons, leave to appeal petition of Mukhtar Ahmed, Ghulam Rasool, Allah Ditta, Akbar Khan and Ashiq was got dismissed on 31-10-1987. On deeper' analysis of the case and after hearing the arguments at length acting on the principle enunciated in Khushi Muhammad v. The State 1969 SCM R 26 we having re-heard their matter suo mote, review the order of dismissal of their petition for leave to appeal and convert the same to appeal and allow that appeal also and acquit all the appellants therein by extension of benefit of doubt.
12. The result therefore is that out of ten accused/convicts the appeals of Abdullah, Muhammad and Sooba Khan are dismissed while those of the other seven are allowed by extension of benefit of doubt. They are Akbar, Ashiq, Ghulam Rasool, Ata Muhammad, Hazarey Khan, Alla Ditta and Mukhtar Ahmed. They are acquitted and shall be released forthwith if not required to be detained in any other matter.