' MUHAMMAD AMER MALIK, J,--- Sahib Alam Shah (55), his sons Akhtar Hussain Shah (19) and Imdad Hussain Shah (25), brothers Afzal Shah (46) and Jeewan Shah (32) appellants were tried by learned Additional Sessions Judge, Bhakkar for the murder of Tasawar Hussain Shah deceased and murderous assault upon Ghulam Baqir Shah complainant P.W.9, Kafait Hussain Shah P.W.1.0, Bashir Ahmad Shah P.W.11. And Nazar Hussain Shah P.W.12. They were convicted vide judgment dated 9-4- 1990 and sentenced as under:-- ' Under section 302, P.P.C.
' Akhtar Hussain Shah: Death and a fine of Rs,10,000 or in default thereof 2 years' R.I.
' Under section 307, P.P.C.
' Sahib Alam Shah: 10 years' R.I. With a fine of Rs,5,000 or in default thereof one year's R.I.
' Jewan Shah: 5 years' R.I. With a fine of Rs,5,000 or in default thereof one year's R.I.
' Afzal Shah: 2 years' R.I. With a fine of Rs,3,000 or in default thereof one year's R.I.
' Under section 323, P.P.C.
' Imdad Hussain Shah: One year's R.I. With a fine 'of Rs,2,000 or in default thereof 6 months' R.I.
' Under section 452, P.P.C.
' All the accused to undergo one year's R.I. Each and a fine of Rs,500 or in default thereof one month's R.I. Each.
' The convicts have filed appeals. The matter is also before us on Reference for the confirmation of the death sentence of Akhtar Hussain Shah under section 374, Cr.P.C. Ghulam Baqir Shah complainant has filed revision petition for the enhancement of the sentence and for awarding of compensation. All the matters are being disposed of by a single judgment.
2. The occurrence took place at 7-15 a.m. At the house of Nazar Hussain Shah P.W. On 29-3-1987 in village Razai Shah Shamali, at a distance of 3-1/2 k.m. From Police Station Bhakkar. Ghulam Baqir Shah reached the police station and lodged the F.I.R. Exh.P.O. With Bashir Ahmad Cheema S.H.O./P.W.14, the same day at 8-00 a.m.
3. According to the F.I.R. Sahib Alam Shah appellant on coming to the shop of Ghulam Baqir Shah complainant, had told him that his cousin Nazar Hussain Shah P.W.12 had established illicit liaison with his (Sahib Alam Shah's) daughter Mst. Lqbal Bibi who was not desisting from the evil course in spite of being asked to mend his ways and not to pass in front of their house. Sahib Alam Shah was tried to be satisfied on oath but he left in anger throwing a threat to take revenge for the insult.
4. As to the main occurrence, the version given is that at the fateful time Sahib Alam Shah, Akhtar Hussain Shah, Imdad Hussain Shah, Jeewan Shah and Afzal Shah entered the courtyard of the complainant armed with .12 bore guns. Tasawar Hussain Shah and Nazar Hussain Shah were present there. While standing near the hand-pump, Akhtar Hussain Shah fired his double-barrel gun which. Hit Bashir Ahmad Shah P.W. Who had entered the house on the alarm, hitting him on the right arm. Sahib Alam Shah also fired and struck Bashir Ahmad Shah P.W. In the right flank. When Tasawar Hussain Shah went forward to intervene, he was fired at by Akhtar Hussain Shah striking on the right temporal region. He fell to the ground and died at the spot. Jeewan Shah fired at the chest and left armpit of Kafayat Hussain Shah. In the meanwhile Afzal Shah also fired at the right flank of Nazar Hussain Shah P.W. When the complainant tried to intervene, he was given a butt blow in the head by Imdad Husssa in Shah. Nazar Hussain Shah P.W. Picking up a Sota lying in the courtyard tried to give blow therewith to Jeewan Shah appellant but it landed on his gun breaking its butt. His gun fell down. On the alarm of the people the accused ran away. Jeewan Shah was caught at the spot and chained in a Kotha.
5. Dr. Inam-ul-Haq P.W.1 performed the post-mortem examination on the dead body of Tasawar Hussain deceased (14/15) on 29-3-1987 at 4-30 p.m. He observed a fire-arm wound on the right side of forehead up to the upper lip. There were multiple black stains on the forehead, right eye and cheek were injured with a bruised area 13 c.m. x 12 c.m. On the right cheek. A lacerated wound on the outer side of the right eyebrow 3 c.m. x 2.5 c.m. Was also observed. Brain matter was protruding out and eye was burst. Right temporal bone and right side of the nostril were also fractured.
' Pellets were removed from the brain. The death was immediate and the duration between the death and post-mortem examination was within 12 hours. The injury was ante-mortem, by a fire- arm and sufficient to cause death in the ordinary course of nature.
6. This very doctor had medically examined Kafayat Hussain Shah (P.W.21/22) at 1-15 p.m. On the same day and found the following injuries on him:--
(1) An abrasion 5 c.m. x 5 c.m. x skin deep with swelling 3 c.m. x 2.5 c.m. Around on the right side of chest at the middle of calvical.
(2) An abrasion 4 c.m. x 1 c.m. On the front top of shoulder.
' Both the injuries were by fire-arm, simple in nature and within a duration of about one hour.
7. The doctor found the following injuries on the person of Bashir Ahmad Shah (P.W. 42):--
(1) A fire-arm wound of entry 33 c.m. x 12.05 c.m. On the front of right arm up to the wrist.
(2) An exit wound 5 c.m. x 4 c.m. On the back of right arm near the armpit (exit of injury No,1).
(3) A lacerated wound 1 c.m. x 1/2 c.m. On the lateral side of right chest.
' The injuries were by fire-arm and Nos.1 and 2 dangerous to life while No,3 was simple. These were of a duration of about one hour.
8. The doctor also medically examined Nazar Hussain Shah P.W. On the same day and found the following injuries on his person:--
(1) 4 lacerated wounds on the back of right forearm near elbow-joint in an area of 10 c.m. x 6 c.m.
These were skin deep.
(2) 5 fire-arm wounds on the right side of chest.
(3) An abrasion 2 c.m. x 3/4 c.m. x skin deep on the right side of chest.
' All the injuries were caused by fire-arm, simple in nature and of a duration of about one hour.
9. This very doctor observed a lacerated wound 4 c.m. x 5 c.m. x deep to the brain on the left side of head by a blunt object on the person of Ghulam Baqir Shah complainant. The injury was later on declared as simple.
10. Sahib Alam Shah appellant and his son Akhtar Hussain Shah appellant were also injured. They were got medically examined by the police from Dr. Nisar Hussain P.W.6 on the very day of occurrence at 6-00 p.m. The former was having the following Injuries:--
(1) A contused wound with swelling 3 c.m. x 2 c.m. On the top of scalp in centre 13 c.m. Above the left ear.
(2) An abrasion 5 c.m. x 2 c.m. On the outer aspect of right orbit.
(3) 8 contusions in an area of 27 c.m. x 16 c.m. On the back of left side of chest alongwith swelling and tenderness.
(4) A contusion 13 c.m. x 3 c.m. On the back of left side of chest 9 c.m. Below injury No,3.
(5) A contusion 15 c.m. x 3 c.m. On the left side of waist.
(6) 5 contusions in right scapular area.
(7) A contusion 10 c.m. x 2 c.m. On the back of right side of chest 17 c.m. Below injury No,6.
(8) A contusion 6 c.m. x 1-1/2 c.m. On the right side of waist.
(9) A contusion 5 c.m. x 5 c.m. On the back of left side of chest 3 c.m. Below injury No,3.
(10) Multiple abrasions in an area of 5 c.m. x 5 c.m. On the front of left knee.
(11) Multipal abrasions in an area of 8 c.m. x 5 c.m. On the front of left knee.
(12) Multiple abrasions in an area of 8 c.m. x 5 c.m. On the back of right elbow.
(13) A contusion 1 c.m. x 1 c.m. On the tip of left index finger.
(14) A contused wound 2 c.m. x 1 c.m. In right mastoid area. The latter was found to have the following injuries:--
(1) A lacerated wound 3 c.m. x 1/2 c.m. Bone deep on the top of scalp in centre, 11 c.m. Below hair margin.
(2) A lacerated wound 3 c.m. x 1 c.m. Bone deep, 9 c.m. Above left ear.
(3) A lacerated wound 2 c.m. x 1/2 c.m. Bone deep on the top of scalp on right side 11 c.m. Above left ear.
(4) A lacerated wound 4 c.m. x 1 c.m. Bone deep on the top scalp on right side 6 c.m. Above right ear.
(5) A lacerated wound 2-1/2 c.m. x 1/2 c.m. Bone deep on the back of scalp on right side 13 c.m.
Above and behind left ear.
(6) An abrasion 5 c.m. x 1 m.m. On right cheek.
(7) An abrasion 2 c.m. x 1 m.m. On left side of chin.
(8) An contusion 5 c.m. x 2 c.m. On the front of left shoulder.
(9) Multiple contusions in an area of 7 c.m. x 3 c.m. On the outer aspect of left arm 7 c.m. Below injury No,2 below.
(10) A contusion 7 c.m. x 3 c.m. On the back of left arm 12 c.m. Above to left elbow.
(11) A contusion 3 c.m. x 2 c.m. On the front of left forearm just below left elbow.
(12) A contusion 6 c.m. x 3 c.m. On right deltoid area.
(13) A contusion 8 c.m. x 3 c.m. On the back of right forearm in centre.
(14) A swelling with contusion 7 c.m. x 4 c.m. In the centre of right hand dorsum.
(15) A contusion 7 c.m. x2 c.m. On the back of left shoulder.
(16) A contusion 16 c.m. x 2 c.m. On the back of left side of chest 8 c.m. Below injury No,5.
(17) A contusion with swelling 22 c.m. x 5 c.m. Across vertebral column, from left to right side of back of chest 19 c.m. Below the side root of neck.
(18) A contusion 10 c.m. x 2 c.m. On the back of left side of chest just below injury No,17.
(19) A contusion 10 c.m. x 2 c.m. On the back of left side of chest 4 c.m. Below injury No,18.
(20) A contusion 8 c.m. x 2 c.m. On the back of left side of chest 4 c.m below injury No,19.
(21) A contusion 8 c.m. x 2 c.m. On the left side of waist 8 c.m. Below injury No,19.
(22) A contusion 8 c.m. x 4 c.m. On the back of right side of chest just below injury No,20,
(23) A contusion 17 c.m. x 2 c.m. On the back of right side of chest 13 c.m. Below injury No,22.
(24) A contusion 10 c.m. x 3 c.m. On the right side of waist.
(25) A contusion 12 c.m. x 5 c.m. On the out respect of left thigh 12 c.m. Below left buttock.
(26) An abrasion 2 c.m. x 2 c.m. On the front of left knee.
' Injuries to Sahib Alam Shah were all declared simple except injuries Nos.1 and 3 which were kept under observation. After X-ray these were also declared simple. All the injuries were opined to be caused by blunt weapon and within a duration of 8 to 14 hours.
' Injuries Nos.1 to 4, 14 and 17 of Akhtar Hussain Shah were kept under observation and the rest were declared simple. After X-ray the injuries kept under observation were also declared as simple. All the injuries to him were also by blunt object and within a duration of 8 to 14 hotirs.
11. Bashir Ahmad Cheema S.H.O P.W .14 prepared the injury statements of Ghulam Baqir Shah complainant; Kafayat Hussain Shah, Nazar Hussain Shah and Bashir Ahmad Shah who also reached the police station and sent them for medical examination. On reaching the spot, he prepared the injury statement and inquest report Exhs.P.E. And P.F., of Tasawar Hussain Shah deceased and sent the dead body for post-mortem examination. He collected blood-stained earth from the place where Tasawar Hussain Shah deceased, Nazar Hussain Shah and Bashir Ahmad Shah were injured, vide memos. Exhs.P.B., P.O. And P.R. He also recovered 2 crime empties (P.12/1 and 2) from the place wherefrom Akhtar Hussain Shah had been firing, vide memo. Exh.P.S. He also recovered 2 crime empties vide memo. Exh.P.T. From the place wherefrom Afzal Shah and Jeewan Shah had indulged in firing. One crime empty from the place of firing of Sahib Alam Shah was also recovered vide memo. Exh.P.U. The crime empties were sealed into separate parcels. He also recovered plank of door (P.13) vide memo. Exh.P.V. Having a pellet hole. The S.H.O. Arrested Jeewan Shah on 30-3-1987, Sahib Alam Shah and Akhtar Hussain Shah on 14-4-1987 and Imdad Hussain Shah and Afzal Shah on 25-4-1987. At the time of arrest of Jeewan Shah he recovered the gun snatched from him and this was of Sahib Alam Shah. From Akhtar Hussain Shah licensed win P.11 was taken into possession vide memo. Exh.P.L. The licensed gun of Sahib Alam Shah P.10 was recovered vide memo. Exh.P.K.
' The S.H.O. While under cross-examination admitted that when the F.I.R. Was lodged with him Ghulam Baqir Shah complainant had not produced the gun snatched from Jeewan Shah accused.
He also deposed that this gun was only produced before him on 30-3-1987. He also deposed that the room in which Jeewan Shah was interned, was locked and the key of the lock was provided by the complainant. The S.H.O. Had reached the spot, as per his statement, after recording the F.I.R. On the very day of occurrence and despatched the dead body for post-mortem examination. There is therefore, no explanation why the broken gun of Jeewan Shah was not produced before him then and there or taken into possession by him or Jeewan Shah himself not taken out of the room and arrested. The recovery of the broken gun from Jeewan Shah and his arrest on 30-3-1990 as claimed by the S.H.O. Seem to be extremely doubtful.
12. Sahib Alam Shah appellant in his statement at the close of the trial when asked, "have you anything else to say" replied, "I am innocent. During the investigation I was declared innocent by the police and was got discharged; secondly, in fact, the complainant party due to the grudge of illicit relations of my son with Mst, Mussarat Bibi had entered into my Bethak while I was sitting with Ghulam Jafar, they lifted me from there and took to the Haveli of Nazar Hussain Shah where they all injured me and attempted to assassinate me, my son Akhtar Shah had gone to my rescue, he too was injured from the hands of the complainant party also. We were brought to the police station for making the report, police got me and son medically examined and we remained admitted in the hospital, later on the police of Police Station Saddar, Bhakkar did not take any action against the complainant party and I filed a complaint against them who are facing trial before this Honourable Court".
13. Akhtar Hussain Shah appellant in his statement under section 342, Cr.P.C. Pleaded that he sustained injuries at the hands of the complainant party when he had gone to the Haveli of Nazar Hussain Shah to rescue his father Sahib Alam Shah. To the question, "Have your anything else to say?" his reply was, "I am innocent. In fact 10 persons from the complainant party while armed entered into the Baithak of my father which is situated in front of the house of Nazar Hussain Shah P.W., he was sitting with Ghulam Jafar son of Ghulam Habib. They lifted my father and took him into the Haveli of Nazar Hussain Shah in order to dispose of him. On hue and cry of my father I ran from my house with licensed gun of my father to rescue him. The complainant party were mercilessly beating my father and I rued in order to ward them off from further beating, thereupon the complainant party turned towards me and opened fire on me and my father, my two mothers Mst.
Waziran and Bakhtu had also gone to save us, they fired two shots on us and a fire also had hit the Burka of my mother Bakhto. The complainant party had badly injured me and we were saved by Ghulam Abbas Shah, Iqbal Hussain, Ghulam Hussain, Muhammad Bukhsh sons of Allah Bakhsh and Ghulam. Jaffar . We were brought to the police station in an injured condition, the police got me and my father medically examined and under took to prosecute the complainant party. Persons who rescued me and my father had also appeared before the D.S.P. Arshad Iqbal on the very day of occurrence but Bashir Ahmad S.H.O./S.I. Was under the influence of the complainant party and did not conduct the investigation inhesitatingly. Later on the investigation was taken up by D.S.P. Ali Muhammad who concluded that the complainant was aggressor and directed the incharge of Police Station Saddar to register the case against them under section 307/148/149/364/365/34, P.P.C. But he flouted the direction so my father Sahib Alam Shah lodged a complaint against 10 persons of the complainant party who are facing trial in the said complaint in this Court".
14. Sahib Alam Shah appellant produced Ch. Ali Muhammad D.S.P. (D.W.1) who had also investigated the case, after Bashir Ahmad Cheema S.H.O. He, the D.S.P. Investigated the case from 27-4-1987 to 25-5-1987. He deposed that according to his investigation about one year prior to the occurrence Sahib Alam Shah learnt that his son Liaqat was suspected of having cut jokes with Mst.
Musarrat of the complainant party, he (Sahib Alam Shah) gave his defence in Punchait convened in the house of Mohsin Shah P.W.7, in spite of offer to clear the position, the complainant family did not feel satisfied and so Rashid Akber Khan, Chairman, District Council, Bhakkar was approached by both the parties. Even then the complainant party was not . Satisfied so Sahib Alam Shah sent his son to Dera Ismail Khan permanently. He also stated that on the day of occurrence at the fateful time Ghulam Jaffar Mochi came to the house of Sahib Alam Shah. Ghulam Baqir Shah complainant alongwith 8/10 persons reached there armed and forcibly carried away Sahib Alam Shah to the Havel; of Nazar Hussain Shah. On the alarm of Sahib Alam Shah and Ghulam Jaffar, Akhtar Hussain Shah reached with the licensed gun of his father and seeing his father being injured, fired at Nazar Shah etc. As a result of which the deceased and the injured P.Ws. Received the injuries. According to him the complainant party had not mentioned the injuries of Sahib Alam Shah in the F.I.R. He also stated that when Sahib Alam Shah was rescued and was being brought in the street by his brother, Ghulam Baqir Shah etc. Party lifted him (perhaps the brother of Sahib Alam Shah who happens to be Jeewan Shah), brought him to the Haveli, confined him in the Kotha wherefrom he, the brother of Sahib Alm. Shah, was recovered by the police. The D.S.P. Goes on to state that according to his conclusion Akhtar Hussain Shah had fired to save the life of his father and caused injuries to the P.Ws. And the deceased. Jeewan Shah, Sahib Alam Shah, Afzal Shah and Imdad Shah were innocent. He also recommended the registration of a separate case under section 307/364/365/149/148, P.P.C. Against the complainant party. His report was kept by Superintendent Police, Bhakkar till he (S.P.) was transferred on 1-8-1988.
15. At the trial Dr. Inamul-Haq and Nisar Hussain (P.Ws. 1 and 6) have provided medical evidence.
Oral account of the occurrence was given by Ghulam Baqir Shah, Kafayat Shah, Bashir Ahmad Shah and Nazar Hussain Shah P.Ws. 9, 10, 11 and 12 who are all injured. Ashiq Hussain Shah and Ghulam Raza Shah the other eye-witnesses cited in the F.I.R. Were given up. The case was investigated by Bashir hmad Cheema, S.H.O. And Ali Muhammad, D.S.P. After a review of their testimony, the learned trial Judge concluded the charge against the appellants with the sentence as indicated above.
16. Before taking note of the contentions raised a few facts admitted or proved on the record may be taken note of Sahib Alam Shah, Afzal Shah and Jeewan Shah appellants are real brothers.
Akhtar Shah and lmdad Hussain Shah appellants are the sons of Sahib Alam Shah.
' Mohsin Shah, Bashir Ahmad Shah and Nazar Hussain Shah (P.Ws.7, 11 and 12) are real brothers.
Ghulam Baqir Shah complainant is the real brother of Ghulam Raza Shah P.W., Kafayat Hussain Shah P.W.10 is the son of Ghulam Baqir Shah. So was Tasawar Hussain Shah deceased.
' From the statements of the complainant and Mohsin Shah P.W., it is also clear that Mst. Sabaz Bibi sister of Sahib Alam Shah appellant was married to the complainant about 30 years back but died after about one year. Mst. Bakhat Bibi/Bakhto is the wife of Sahib Alam Shah and she is the mother of Imdad Hussain appellant. She is a close relative of the complainant. Thus, the appellants and the eye-witnesses are closely connected inter se. There was no enmity of any sort between the two families before the present occurrence except the following.
' According to the F.I.R. And the stand taken by the complainant at the trial Mst. Iqbal Bibi daughter of Sahib Alam Shah appellant (and a real sister of Akhtar Hussain Shah appellant) was suspected of illicit connections with Nazar Hussain Shah P.W. A week before the occurrence Sahib Alam Shah complained about it to the complainant, he offered Oath about innocence, the appellant did not agree and extended threat. On the other hand it has been suggested in cross-examination that Mst. Musarat Bibi wife of Sakhawat Ali Shah son of Ghulam Baqir Shah complainant was suspected of illicit connections with Liaqat Shah son of Sahib Alam Shah appellant. The complainant admitted in cross-examination that on the day of occurrence Liaqat Shah was not present in the village but could not say where he was. He denied the suggestion that Liaqat Shah was suspected of illicit connections with Mst. Musarat Bibi. He showed ignorance that Mohsin Ali Shah complained about it to Sahib Alam Shah or the latter and Afzal Shah tried to satisfy him. Nazar Hussain Shah P.W.12 in cross-examination could not say since how long Sahib Alam Shah appellant was suspecting the illicit connection of his daughter Mst. Iqbal Bibi though she was his (Nazar Hussain's) relative.
17. Learned counsel for the appellants contended that both Sahib Alam Shah and Akhtar Hussain Shah appellants were injured in the occurrence, they were got medically examined by the police, the- D.S.P. Had found the complainant party to be the aggressor, recommended the registration of a case against them, the same was not registered and the file kept by the S.P. Till he was transferred, in the private complaint filed, the complainant party had been summoned to face trial, the injuries to the two appellants had been suppressed, so the eye-witnesses could not be believed unless there was corroboration which was not forthcoming on the record. On the other hand learned counsel for the complainant and the State tried to defend the judgment.
18. Ghulam Baqir Shah, Kafayat Hussain Shah, Bashir Ahmad Shah and Nazar Hussain Shah P.W.9, 10, 11 and 12, the injured witnesses reiterated the version of the occurrence given in the F.I.R. `Ghulam Baqir Shah added that he alongwith Ghulam Raza Shah, Ashiq Hussain Shah and Nazar Hussain Shah had injured Sahib Alam Shah and Akhtar Shah during the occurrence whereupon the appellants ran away, Jecwan Shah was apprehended and, closed in a room. To the same effect are the statements made by Kafayat Hussain Shah, Nazar I lussain Shah and Bashir Ahmad Shah P.Ws. Ghulam Baqir Shah stated in cross-examination that when he went to report the matter to the police, he did not kpow about the injuries to Sahib Alam Shah and Akhtar Shah appellants. Me was frank to concede that both the appellants came to the hospital in injured condition. He had not mentioned the purpose of his, Kafayat Hussain and Taswar Hussain's presence at the house of Nazar Hussain Shah. He denied the suggestion that they had gathered in a preparation to attack the appellant party. Kafayat Hussain Shah denied in cross-examination that he had given any injury to any of the accused. He also denied that they had gathered at the house of Nazar Hussain to launch an attack upon the accused party. Bashir Ahmad Shah claimed that he had stated to the police that Baqir Shah had given injuries to Akhtar Hussain Shah and Sahib Alam Shah appellants.
This he had not and was properly confronted and contradicted. He also told in cross-examination that he did not mention to the police that the accused fled away after getting beating. He also admitted that he could not give the details of the injuries to the accused in his statement recorded under section 164, Cr.P.C. He admitted that he was an accused in the cross-case. From the statements of the injured witnesses no consistent case is being put as to how the two appellants were injured. Jeewan Shah does not seem to have been apprehended and arrested on the day of occurrence when the police visited the spot, nor his broken gun was produced before, the police.
Even Bashir Ahmad S.H.O. Could not claim that he had arrested Jeewan Shah appellant from the room. Mad he been closeted in the room and his broken gun taken at the spot, there was no reason why he should not have been arrested right on the day, of occurrence and the gun recovered. The story in this respect is incorrect and not believable,. The medical evidence shows that he two appellants were got examined by the police but the Investigator (Bashir Ahmad S.H.O.) does not say so. Both the appellants have large number of injuries on their person with blunt weapons though simple. Had they mounted the assault armed with guns as is the case of the eye-witnesses, the complainant party would not have been in a position to cause them the blunt weapon injuries.
For all these reasons, the version given by the eye-witnesses cannot be believed.
19. The conclusion of the D.S.P. Also cannot be accepted and the way he thinks the occurrence took place cannot be probable or in due course of things. According to him the complainant party had assaulted. If the assault was to retrieve Sahib Alam Shah who had been carried away by the complainant party and was being injured in the courtyard of Naar Hussain Shah P.W., Akhtar Hussain Shah could not have been given blunt weapon injuries in that situation. Furthermore in case of assault by the complainant party the injuries to the two appellants would not have been so simple in nature as appear on their persons.
20. The version of the appellants that they were assaulted in the first instance for the above reasons also cannot be accepted.
21. But the occurrence did take place in which the deceased met his death, the for eye-witnesses produced at the tfial were injured and so were Sahib Alam Shah and Akhtar Hussain Shah appellants. Both the parties have tried to 'suppre&s the truth. We are, therefore, left with no alterhative but td look for as to hdw the occurrence took place. One can visualise that over the affair of one girl or the other (Mst. Lqbai Bibi or Mst. Musarat Bibi) both the'parties collected either at the house of the' appellants or that of Nazar Hussain or might be in the street as the house of both the parties are on,the opposite side of the street in front of each other, and there when the matter heated up, the complainant family picking up Sota(s) injured the two appellants. It was then that the appellants took out the guns and injured the deceased and the eye-witnesses. The occurrence seems to have developed all of a sudden and the fire was ignited by the complainant party. The appellants cannot be said to have mounted the assault in the first instance as we must take the most favourable case for them. Each of the appellants is, therefore, to be burdened for his individual act.
Akhtar Hussain appellant also cannot be said to have committed culpable homicide amounting to murder or the other appellants having attempted at the murders of the injured witnesses.
22. The upshot is that the appeals succeed, the conviction of Akhtar Hussain Shah appellant under section 302, P.P.C. And that of Sahib Alam Shah, Jeewan Shah and Afzal Shah under section 307, P.P.C. And sentences thereunder are hereby set aside. Akhtar Hussain Shah appellant is instead convicted under section 304, Part I, P.P.C. For having fired at Tasawar Hussain Shah deceased. He is sentenced to 10 years' R.I. And a fine of Rs,10,000 or in default thereof 2 years' R.I. Whole of the fine, if recovered, shall be paid to the heirs of the deceased as compensation. Sahib Alam Shah, Jeewan Shah and Afzal Shah are convicted under section 308, P.P.C. For respectively having injured Bashir Ahmad Shah, Kafayat Hussain Shah and Gamoo Shah P.Ws. And each sentenced to two years' R.I.
And a fine of Rs,1,000 or in default thereof 3 months' R.I. Maintaining the conviction of Imdad Hussain Shah under section 323, P.P.C. The sentence already undergone by him would suffice. The appellants would have the benefit of the provisions of section 382-B, Cr.P.C. Sahib Alam Shah, Jeewan Shah and Afzal Shah appellants are on bail, they be taken into custody and sent to jail to serve out the sentence. The death sentence of Akhtar Hussain Shah is not confirmed and the reference is declined. The revision petition fails and is hereby dismissed in liminc.