1. SALAHUDDIN AHMED, J.-These appeals arise out of the same or con--nected incident and they have been heard together and are now being disposed of under one order.
2. Criminal Appeal No. 11 2 of 1970 is by four persons, namely, Mahyan Khushi Muhammad, Shera and Nura, and it is, from the order of the erst--while High Court of West Pakistan, Lahore Seat maintaining their convictions, under sections 302 read with sections 34 and 307 read with sections 34 of the Pakistan Penal Code. The High Court commuted the sentence of death passed upon appellant Mahyan to transportation for life, but maintained the sentences of transportation for life passed on the three others under section 302 read with section 34 of the Code, and the sentence of five years, rigorous imprisonment and a fine of Rs. 500 each passed on all the appellants on the latter charge. The appellants were convicted for the murder of Daulat and for firing at members of the Whhar party with the intention and under the circumstances mentioned in section 307 of the Code. All the accused including the appellants were acquitted by the trial Court of the charge under section 148 of the Code.
3. Criminal Appeal No. 113 of 1970 is by five persons, namely, Mahyan, Mughla, Yar Muhammad, Nawaz and Gulzar alias Gullan, and it is from the order of the High Court maintaining their convictions and sentences under section 382/149 and 144 of the Pakistan Penal Code. It may be mentioned here that the appellants having been acquitted of the charge under section 148 of the Code, their convictions under section 382/149 of the Code shall either have been set aside or altered to one under section 382/ 34 or under section 382/109 of the Code. The appellants have been sentenced to three year's rigorous imprisonment and a fine of Rs. 100 each on the former charge, and rigorous imprisonment for six months each on the latter charge.
4. Criminal Appeals Nos. 114 to 117 of 1970 are by Mahyan, Sher, Khushi Muhammad and Nura and these are from the orders of the High Court maintaining their convictions and sentences under section 13 (c) of the Arms Ordinance XX of 1965.
5. The occurrence took place on the 24th of April, 1965, at about 6 a.m. In which Daulat was fired at and killed. This occurrence was preceded by another incident a little earlier in which the appellants and the other co---accused had gone to the Dhari of P. W. Ghulam Muhammad and took away from there a bullock belonging to Ghulam Muhammad. P. W. 5 Muhammad a tenant of P. W.
6. Ghulam Muhammad, went and informed the latter and others about the taking away of the bullock. P. W. Muhammad was asked to call P. W. Shamir, tracker, and he accordingly did so. A track party consisting of about 14/15 persons including the P. Ws. Of occurrence was formed, and they went to the behk of a co-accused, Yar Muhammad, having followed the track of a bullock and some persons, Near the behk of Yar Muhammad the party saw the appellants alongwith four other co accused, namely, Yar Muhammad, Nawaz, Gullan and Mughla, all armed with guns, present at the `behk' The appellants and their companions took positions in a watercourse nearby, and fired at the `Whhar' party. The members of the Whhar party lay down on the ground and some of them including Daulat (the deceased) and P. Ws. Sher Muhammad, Sultan, Rehmatullah alias Ratoolan and Ghulam Muhammad went towards a sand---dune to the west. The accused party fired at the complainant party, and it is said that the five of appellant Mahyan hit Daulat on his chest, and he died at the spot. Thereafter the-four appellants went towards Chak No. 129/ 9-L towards the south of the place of occurrence, while the other four of their companions went towards the North. The four appellants were chased by some of the witnesses, namely, P. Ws. 2, 3, 4, 6 and 8 and the appellants were caught and a gun was recovered from each of them. Later the police arrived at the spot and took the appellants in their custody, and seized the guns recovered front them, and also four cartridges recovered from Shera, and from Khushi Muhammad.
7. It appears from the medical evidence that there was afire-arm wound of entrance 2" X 2 -- on the right side of the chest, 1 -- " below the right nipple with six small fire-arm entrance wounds around its margin each measuring 1/4" x 1/4. It was also found that the portion of the right 6, 7, 8 ribs were blasted below injury No. 1. Right side of the pleura was injured and the lower lobe of the right lung punctured and blasted out. Diaphragm was punctured from the right side, and torn apart. The lateral lib of the liver was punctured and blasted off. In the opinion of the Medical Officer, P. W. 12, the death was due to shock and haemorrhage due to injuries to the liver diaphragm and right lung, and that the injuries were caused by fire--arm, and were sufficient to cause death under the ordinary course of nature.
8. The occurrence took place in the open in broad daylight and it w witnessed by no less than seven persons. It is true that the witnesses are more or less related to the deceased, P. W. 2 Sher Muhammad, P. W. 7 Shamir and P. W. 12 Ghulam Muhammad, being brothers of the deceased. In the circumstances of the case, however, they were natural witnesses inasmuch as the bullock of Ghulam Muhammad had been taken away by the accused persons and the bullock was in fact recovered from the `behk' of on of the co-accused Yar Muhammad. The ocular evidence find considerable support from the fact that the four appellants were chased and caught wit their guns immediately after the occurrence and they were taken to the spot from where the Investigating Officer later took them into custody. There is hardly any evidence of previous enmity between the witnesses and the appellants, and the co-accused. The utmost that the defence succeeded in proving was that Yar Muhammad accused and his relatives had opposed P. W. Sher Muhammad in the last B. D. Election and that on account of this P. W. 12 said that they had strained relations. We, however, do not thin that this was any good reason for the eye-witnesses to falsely implicate so many persons particularly when some of the witnesses were distantly related to the deceased and had no particular reason to falsely implicate the appellants. The recovery of the bullock from the `behk' of Yar Muhammad a co-accused, also lent corroboration to the ocular evidence.
9. It has been contended before us on behalf of the appellant that no independent eye-witness has been examined in the case. This is true, but it is not pointed out to us that any such witness was present and yet he was not examined by the prosecution.
10. The absence of recovery of any empties from the place of occurrence does not, in any way, affect the prosecution case inasmuch as Daulat was indeed fired at and killed at the place of occurrence from where blood-stained earth was seized.
11. The contention that it was unlikely that the complainant party would go unarmed to the `behk' of Yar Muhammad to take back the bullock is not of any substance inasmuch as nobody on the side of the accused party was injured. If the complainant party had gone armed to take back the bullock by force, they would have left behind something more than mere pellet marks on the dhari of Yar Muhammad.
12. It has also been contended that the motive, namely, that several days before the occurrence, Mansab son of P. W. Ghulam Muhammad had beaten Ahmad Saeed Khan, brother of Yar Muhammad accused, has not been proved inasmuch as Mansab has not been examined and the evidence about the beating was hearsay. It appears from the evidence of P. W. 5 Muhammad that when the accused persons came to the dhari of P. W. Ghulam Muham--mad to take away the bullock, Yar Muhammad declares: that they came to avenge the insult of Ahmad Saeed Khan, Advocate, from Ghulam Muhammad P. W. And Mansab. Be that as it may, the earlier incident regarding the removal of the bullock from the dhari of P. W. Ghulam Muhammad has been proved on reliable evidence and they explain how the occurrence that followed the removal of the bullock took place.
13. It appears clear from the evidence of P. W. 2 Sher Muhammad, P. W. 12 Ghulam Muhammad and the evidence of P. W. Rahmatullah before the committing magistrate (this evidence has been brought on record under section 288 of the Code of Criminal Procedure) that only one man, namely, Mahyan fired at and hit Daulat deceased. P. W. 4 Lal could not say whose fire hit Daulat. He was confronted with his statement before the committing Magistrate. P. W. 6 Sultan said that Daulat was hit with a fire shot but could not say who fired the shot. This witness, too, was confronted with, his statement before the committing Magistrate. P. Ws. 7 and 8 said than all the eight accused fired at Daulat but could not say whose fire hit Daulat. Both of them were confronted with their earlier statements made before the police or the committing Magistrate. The medical evidence clearly shows that Daulat received one gun shot wound on the chest. The medical evidence thus supports the ocular evidence that it was Mahyan whose fire hit Daulat and killed him.
14. It appears, however, that this was appellant Mahyan's individual act in which the other three appellants did not participate. This view receives support from the circumstances that Daulat had only one entrance wound, and no other person of the complainant party was injured. The recovery of live cartridges from appellant Shera and Khushi Muhammad is another circumstance that goes in favour of this view, for it showed that although they were in a position to fire the: did not fire. The evidence indicates that when the four appellants broke away from their companions at the water- -course at the approach of the people of the locality, they wanted to get away from the place, and the firing by Daulat at the sand-dune was the isolated act of appellant Mahyan.
15. For the reasons stated above, we think that Mahyan alone should have been convicted and sentenced under section 302 of the Code and the other ,appellants were entitled to the benefit of doubt and should have been acquit--ted of the charge. We, accordingly, allow the appeal of Khushi Muhammad Shera and Nura and set aside their convictions and sentences under section 302/34 of the Code. We dismiss the appeal of Mahyan, but alter his convic--petition to one under section 302 of the Code but maintain his sentence of trans--portation for life there under.
16. As regards the charge under section 307/149 of the Code, we think that it has been proved on reliable evidence that all the appellants fired at the `whhar' party at the watercourse with the intention and under the circum--stances contemplated under section 307 of the Code. We, therefore; see no reason to interfere with the order of the High Court maintaining their convic-- tions on this charge. As, however, they have been acquitted of the charge under section 148 of the Code, we alter their convictions to those under section 307/34 of the Code. The sentence of Mahyan will rut' concurrently with his sentence of transportation for life under section 302 of the Code. As regards the other three appellants their sentences shall be reduced to the period already undergone by them. With these modifications the appeal against their conviction under sections 307/149 of the Code is dismissed.
17. As regards Criminal Appeal No. 113 of 1970, in our opinion, the evidence fully brings home the charges under sections 382 and 144 of the Code to the five appellants before us. Namely, Mahyan, Mughla, Yar Muhammad , Nawaz, and Gulzar alias Gullan. Their convictions have been rightly maintained by the High Court anti we see Ito reason to interfere with them. Since, however they have been acquitted of the charge under section 148 of the code, we alter their convictions to those under section 382/34 of the Code. We, however, direct that the sentence of Mahyan shall run concurrently with his sentence under section 302 of the Code and the sentences of the other three appellants shall be reduced to the period already undergone by them. With these modifications this appeal too is dismissed.
18. As regards Criminal Appeals Nos. 114 to 117 of 1970 we see no reason to interfere with the order of the High Court maintaining) the convictions of Mahyan, Shera, Khushi Muhammad 'and Noora under section 13 (c) of the Arms Ordinance, 1965. These persons were arrested soon after the occurrence and a gun was recovered from each one of them, and also some live cartridges were found with Shera and Khushi Muhammad. We maintain their con--victions but direct that the sentence of Mahyan shall run concurrently with his sentence under section 302 of the Code and that the sentences of the three others shall be reduced to the period already undergone by them. With these modifications the appeals are dismissed. We accordingly direct that Khushi Muhammad, Shera, Nura, Mughla, Yar Muhammad, Nawaz and Gulzar alias Gullan be set at liberty forthwith if not wanted in connection with any other matter.