MUSHTAQ HUSSAIN MUNIR, J.-Shah Nawaz (25), Muhammad Iqbal (26), Muhammad Daurez (50) and Muhammad Ashraf (30) were tried by the learned Sessions Judge, Jhelum, under section 302, read with sections 34 and 307, read with section 34 of the Pakistan Penal Code for the murder of Nakhra deceased and murderous assault on the person of Khuda Bakhsh alias Bakhshu (P. W. 12), in furtherance of their common intention. All the four appellants were convicted under section 302, read with section 34, P. P. C. And sentenced to death. Shah Nawaz, Muhammad Ashraf and Muhammad Daurez were also convicted under section 307, read with section 34, P. P. C. And sentenced to transportation for life each. It was directed that the sentence of transportation for life, awarded to the last mentioned three appellants, would take effect only, if the sentences of death awarded to them, were not confirmed. The appellants have come up in appeal and he case is also before us on a reference under section 374 of the Criminal Procedure Code for the confirmation of death sentence. The appeal and the reference shall be disposed of by this judgment.
2. Muhammad Ashraf and Muhammad Iqbal appellants are real brothers, while Shah Nawaz appellant is their step-brother and Muhammad Daurez is their first cousin.
3. Nakhra deceased and Khuda Bakhsh P. W., who were the servants of Muhammad Akbar Lambardar (P. W. 8) were sent by the latter to his fields situated at a place known as Andra Jharma within the area of village Ghugh on 18th July 1967, at about digerwela, to fetch fodder for the cattle.
When they reached a place known as Bahra Jharma, the four appellants emerged from a khuddar.
Muhammad Iqbal was armed with a spear, while the remaining appellants were carrying hatchets.
Muhammad Ashraf gave a hatchet blow to Nakhra deceased, which fell on his neck. Shah Nawaz also hit him at about the same place. Muhammad Daurez gave an injury on his head. On receipt of tire above injuries Nakhra fell down and while he was lying on the ground, Muhammad Iqbal gave him two spear blows on the neck. Khuda Bakhsh P. W., while running away from the spot to save himself, threw stones at his assailants. He was chased by Shah Nawaz, Muhammad Ashraf and Muhammad Daurez and was given hatchet blows on the head with the blunt side. He fell down.
However, on the alarm raised by Makhana (P. W. 11) and Mst. Gahran (P. W. 13), who were grazing cattle and looking after their ground-nut crop, the appellants took to heels. They went away towards their Dhoke, which is towards the west of the place of occurrence, carrying their weapons with them. Nakhra expired at the spot, while Khuda Bakhsh lost consciousness.
4. Makhana (P. W. 11) went to village Ghugh, which is about 2 or 2-- miles from the place of occurrence and informed his master, Muhammad Akbar Lambardar (P. W. 8). Accom--panied by the latter, he returned to the spot and therefrom went to Police Station Nila, which is eight miles from the place of occurrence, and reaching there at about 11-45 p.m. Lodged report Exh. P. A., which was recorded by Assistant Sub-Inspector Ch. Fazal Karim (P. W. 3).
5. Assistant Sub-Inspector Ch. Fazal Karim sent a copy of the report to Sub-Inspector Ali Asghar Shah (P. W. 14), who happened to be in village Mehro Peelo through Foot Constable Faqir Muhammad (P. W. 2). The latter arrived at village Mehro Peelo at about 7 a. m. On 19th July 1967, and delivered copy of the report to the Sub-Inspector.
6. Sub-Inspector Ali Asghar Shah P. W. Reached village Ghugh at about 9-30 a.m., it being five miles from village Mehro Peelo. He found the dead body of Nakhra lying near the village path in a khudder, being guarded, by Muhammad Akbar, Lambardar and Ashraf Chowkidar. He prepared its inquest report Exh. P. H. And injury statement Exh. P. H./l and despatch-- ed it to the mortuary in the custody of Foot Constable Faqir Muhammad (P. W. 2). He then collected blood-stained earth from near the dead body and from a spot 17 paces away from it. He sealed the blood-stained earth into two separate parcels and took them into his possession vide memo. Exhs. P. .B. And P. C.
Respectively.
7. Khuda Bakhsh (P. W. 12) was sent to Chakwal, while he was still unconscious, at about 7 p.m., from the spot, by Muhammad Akbar Lambardar (P. W. 8).
8. Doctor Raja Muhammad Afzal, Medical Officer, Civil Hospital, Chakwal (P. W. 1) examined Khuda Bakhsh P. W. On 19th July 1967, at 1-3.0 a.m. And found the following injuries on his person: -
(1) A contused wound, 1--"x 1/3", bone deep on the left fronto-parietal region.
(2) A contused wound, 1 -- " x -- ', bone deep on the right parietal region.
(3) A contusion, 2" x 1", on the left supra scapular region.
(4) A contusion, 6" x 1", on the left scapular region.
(5) A contused wound, -- ' x--' x skin deep; on the left ear.
(6) A contused wound, -- " x--" x-- ", on the left mastoid region.
(7) A scratch, 4" long on the left lumber region.
(8) A contusion, 2' x 1", antro-lateral side mid of forearm right.
All the injuries were caused by blunt weapon within 12 hours and except for the injuries on the skull and chest for which an X-ray was advised, the rest were found to be simple. Subsequently injuries Nos. 1, 2 arid 6 of Khuda Bakhsh were X-rayed and vide report. Exh. P. L/2 were found to be simple.
Thus all the injuries on his person were simple in nature.
9. The same doctor, on the same day, at 4 p.m., conducted post-mortem examination on the dead body of Nakhra alias Nakhra Khan deceased and found the following injuries: --
(1) An incised wound, 3" x 1' x cut into the spinal column. The third cervical vertebra, spinal cord and vessels were cut. The injury was on the back of neck and middle part.
(2) An incised wound, 2" x 6" x whole thickness of the neck except on anterior side, trachea and its frontal skin were saved. Vessels, muscles, nerves, spine, spinal cord were also cut.
(3) An incised wound, 2-- " x -- " x bone cut on the left parieto---occipital region close to the medial line antero posterior in direction.
(4) An incised wound, 3" x -- x -- " on the right supra clavical region.
(5) A stab wound, 3/4" x 1 /2" x 2", on the front of neck, right side. .
Death, in the opinion of the doctor, was due to shock and haemorrhage. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature individually as well as collectively. All the injuries were anti-mortem. Injuries Nos. 1 to 4 were caused by sharp-edged weapon and No. 5 by sharp-pointed weapon. The deceased expired immediately on receipt of injuries, and post--- mortem examination on his body was performed about 24 hours after his death. Exh. P. N is the copy of the post-mortem report.
10. Sub-Inspector Ali Asghar Shah P. W. Searched for the appellants on 19th July 1967, but they were not available. Except Muhammad Ashraf, the rest of the appellants were produced before him by one Fazal Dad on 21st July 1967. Shah Nawaz appellant was found wearing blood-stained shirt Exh.
P. 4 Chadar Exh. P. 5 and vest Exh. P.
6. These were taken into possession by the Sub-Inspector vide memo. Exh. P. G. He had injuries on his person. His injury statement Exh. P.M. Was prepared. He was examined on 22nd July 1967, at 7 p.m., by Doctor Raja Muhammad Afzal P. W. And the following injuries were found on his person: -
(1) A contused wound, 1-- " x -- " x scalp deep on the right anterior quardrant of the scalp.
(2) A scratch, 3" x 1/8", on the right side of epigastrium.
(3) A scratch, 2" x 1/8", on the left side of epigastrium.
The injuries were simple and had been caused by blunt weapon within 3 to 5 days. Exh. P. O. Is carbon copy of the medico-legal report.
11. Before despatching Shah Nawaz appellant to the hospital for medical examination, the Investigating Officer interrogated him, who as a result thereof, led him to the recovery of blood- stained hatchet Exh. P. 3 from his residential house, situated in village Ghugh. The hatchet was lying behind a box. It was taken into possession vide memo. Exh. P. F., Muhammad Daurez appellant, on the same day, as a result of interrogation, led to the recovery of hatchet Exh. P. 1 from his residential house. It was lying behind wheat bags. It appeared to have been cleaned. It was taken into possession vide memo. Exh. P. D. This recovery was effected from Dhoke Khadrora. On the same day Muhammad Iqbal appellant was interrogated and he- led to the recovery of spear Exh. P. From the ceiling of his residential kotha at Dhoke Khadrora It was blood-stained and was taken into possession vide memo, Exh. P. E. Hatchet recovered at the instance of Shah Nawaz appellant and spear recovered at the instance of Muhammad Iqbal appellants were sent to the Chemical Examiner and the Serologist. These were found to be stained with human blood.
12. Muhammad Ashraf appellant was not traceable in the village, warrant for his arrest was obtained from the Court of the Resident Magistrate, Chakwal, on the 5th of August 1967, by Sub- Inspector Qureshi Nehmat Ullah (P. W. 5). He deputed Foot Constable Khairat Ali Shah for its execution. However, before the warrant could be executed, the aforesaid appellant was produced at the Police Station on 10th August 1967, by one Fazal Dad.
The motive for the murder of Nakhra decease and murderous assault upon Khuda Bakhsh P. W is that about 1-- years before the occurrence one Mst. Fazal Jan daughter of Sher Dil alias Dilli son of Saad Ullah (P. W. 10) who was a cousin of Khuda Bakhsh P. W and a niece of Nakhra deceased was abducted by Shah Nawaz son of Allah Dad who passed her on to his cousin Muhammad Ashraf appellant and the latter married her. Muhammad Ashraf appellant kept her in hiding and it was only about 1 -- or 2 months before the occurrence that he brought her back to the village and began to live with her openly in Dhoke Khadrora. The appellants were annoyed the deceased and Khuda Bakhsh P. W. Attempts to get the abductee restored to her father.
Muhammad Iqbal, Muhammad Daurez and Muhammad Ashraf denied their participa--tion in the occurrence. However, Shah Nawaz, while explaining the case against him in the Court of the Committing Magistrate stated: - "Bakhsh P. W. And Nakhra deceased armed with lathis came to my dhok to forcibly take away Mst.
Fazal Jan, where I was present. I requested them to leave Mst. Fazal Jan when Bakhsh P. W. And Nakhra deceased were trying to take away forcibly, I tried to intervene and rescue Mst. Fazal Jan on which Nakhra deceased dealt me a soti blow on which I picked up a hatchet lying in the courtyard and inflicted some blow with it to Nakhra deceased in his defence: On hue and cry, Nakhra deceased, and Bakhsh P. W. Returned and attacked me and on his giving me lathi blows, I acted in self-defence and gave him some blows with the blunt side of the hatchet. The other accused and Makhana and Mst. Garhan P. Ws. Were not present at the time of the occurrence."
He stuck to the aforesaid statement at the trial. However no defence was produced by the appellants.
15. Eye-witness account has been provided by Makhana (P. W. 11), Khuda Bakhsh (P. W. 12) and Mst.
Gahran (P. W. 13). Makhana P. W. Is the brother-in-law of Nakhra deceased, the deceased being the brother of his wife. Mst. Gahran P. W. Is the wife of Ghulam Sarwar, a real brother of Makhana P. W - Their case is, that on the fateful day they were grazing their cattle and looking after the ground-nut crop near the place of occurrence when they spotted Nakhra deceased and Khuda Bakhsh P. W.
Coming from the side of village Ghugh. When the latter, that is, the deceased and Khuda Bakhsh P.
Ws. Arrived near a place known as Bahra Garma, the four appellants emerged from behind a mound. Muhammad Iqbal had a spear, while the remaining appellants had hatchets. They challenged the deceased and his companion and thereafter Muhammad Ashraf opened the assault and gave a hatchet blow to Nakhra on the head. The second blow was given to him by Shah Nawaz on the neck and the third blow by Muhammad Daurez on the head. On receipt of these injuries the deceased fell down; whereafter Muhammad Iqbal gave him two spear blows on the neck. Khuda Bakhsh P. W. Threw stones at the appellants in order to rescue his companion, when the appellants chased him. He tried to run away to save himself, but was overtaken at a distance of about 60 or 70 paces by the appellants except Muhammad Iqbal. They gave him blows with their respective hatchets, on the head. He also fell down, whereafter the appel--lants ran away towards their dhok taking their weapons along with them. The learned Sessions Judge, while accepting the testimony of Mst. Gahran that she was near the place of occurrence when the incident took place, declined to rely on her testimony as is evident from the observations made by him in para. 27 of his judgment. He observed, that there were contradictions in the statement made by Mst. Gahran before the police and the Committing Magistrate as also at the trial and came to the con--clusion that, "these are material omissions and important contradictions. These discrepancies would, therefore, reduce the value of Mst. Gahran's testimony almost to nullity as she would be seen to be an entirely undependable witness". In spite of these observations he has believed this part of the version of Mst. Gahran, that she had, in fact, seen the occurrence. However, his final assessm ent of her testimony is as follows: - "For all intents and purposes her testimony, however, would be of little value as to the guilt of the accused for not much reliance could be placed on such a faulty observer as she has shown herself to be."
From the aforesaid observations, we are inclined to hold, that the learned Sessions Judge discarded the testimony of Mst. Gahran, as he was not impressed by it. Therefore, we need not say any--thing more about her. The question still would be whether Makhana (P. W. 11), who is also a near relative of the deceased, had seen the occurrence.
16. We have it from Makhana and Mst. Gahran P. Ws., that the field, where they were grazing their cattle and were looking after ground-nut crop is known as Dorianwala. Gulistan Khan Patwari (P. W.
6) stated, that this field bears Khasra No. 2974 and belongs to one Ghulam Mehdi, although it was under the cultivation of Makhana P. W. At the time of the occurrence, where he had grown ground- nut. The question, that would arise, would be, whether the aforesaid witnesses could see the occurrence from that field, even if they were there. During cross-examination Makhana P. W.
Admitted, that the field where he and Mst. Gahran were looking after their ground-nut crop is about 450 yards from the place of occurrence. He, however, claims, that the place of occurrence is visible therefrom as there was no ridge or a mound intervening between them. He stands contradicted by the statement made by him with regard to this assertion, as he had deposed in the Court of the Committing Magistrate, although he did not abide by it at the trial, that there was a ridge of a mound between his field and the place of incident. While appearing in the Court of the Committing Magistrate, Mst. Gahran had also deposed, although she did not abide by the said statement at the trial, that Dorianwala field is about 450 yards from the place of occurrence. She further stated at the trial, that neither the deceased nor Khuda Bakhsh P. W. Raised alarm. The Patwari in his statement was definite, that the place of occurrence was not visible from field No. 2974. It also appears from his statement, that there are mounds and depressions near the place of occurrence, and, therefore, it would not be unreasonable to hold, that even if Mst. Gahran and Makhana P. Ws.
Were in Dorianwala field they would not be in(a position to see how the occurrence had taken place, especially, when, according to Mst. Gahran, neither the deceased nor Khuda Bakhsh P. W.
Had raised alarm.
17. Admittedly there was enmity between the appellants and the family members of Sher Dil alias Dilli (P. W. 10), the father of Mst. Fazal Jan, over her abduction by Shah Nawaz son of Allah Dad and her marriage thereafter to Muhammad Ashraf appellant. Mst. Fazal Jan, the alleged abductee, was related to the deceased, the mother of the latter's father being a cousin of her father. It is precisely for the same reason, that Makhana P. W. While lodging the report, stated therein, that Mst. Fazal Jan was Bhanji of the deceased. I have already pointed out above that the wife of Makhana P. W. Is the sister of the deceased. Naturally, therefore, it cannot be said about him that he is an independent witness. So far as the enmity between the parties is concerned, it appears, although there is no definite evidence to that effect, that on an earlier occasion an attempt was made to bring back Mst. Fazal Jan by force and in that attempt Mst. Sattar Begum, the mother of the alleged abductor of Mst. Fazal Jan, namely, Shah Nawaz son of Allah Dad, was murdered. Sher Dil alias Dilli P. W., the father of Mst. Fazal Jan, stated:- "We are on inimical terms with the accused after the abduction of my daughter."
He, however, denied, that along with several others he went to the dhok of Shah Nawaz son of Allah Dad and during the fight, which took place there, Mst. Sattar Begum was killed. . Shah Nawaz (P. W.
7) when cross-examined with respect to this aspect of the case, stated as follows: "It is correct that Mst. Fazal Jan, daughter of Sher Dil alias Dilli son of Saad Ullah P. W. Was abducted by Shah Nawaz son of Allah Dad. I do not know if Nakhra deceased, Makhana, Dilli and Bakhsh P. Ws.
Went to the dhok of Muhammad Ashraf accused to bring back Mst. Fazal Jan forcibly. However, it is correct that Mst. Sattar Begum was killed. She was mother of Shah Nawaz son of Allah Dad. She was murdered at the dhok of her son which is known as dhok Khadrora."
Khuda Bakhsh (P. W. 12) also admitted, that his relatives were on inimical terms with the appellants on account of the abduction of Mst. Fazal Jan. We are, therefore, not surprised, that Makhana, who in all probability could not have been able to see the occurrence, has volunteered to come forward as an eye--witness. However, for the reasons recorded above, we decline to rely on him.
18. Undoubtedly Khuda Bakhsh (P. W. 12) was present at the time of the occurrence. This cannot be denied, because he bears as many as eight injuries on his person. , The question, however, in his case would be, as to how far his version, that he had gone on an innocent errand with the deceased at the behest of their master, Muhammad Akbar (P. W. 8) towards the place of occurrence in order to fetch fodder is correct. According to Patwari Gulistan Khan (P. W. 6)
Muhammad Akbar P. W., owns a few fields towards west of the place of occurrence. However, these are about 400 karams away from it. Therefore we shall have, in the first instance, to determine, as to where,, the occurrence took place. Makhana P. W., while admitting that all the four appellants lived at dhok Khadrora, deposed, that: the place of occurrence was situated at a distance of one mile: from it. In the Court of the Committing Magistrate, however--- with which statement he was duly confronted, he had deposed, that the distance between the place of occurrence and dhok Khadrora was 100 yards. Khuda Bakhsh P. W. Stated, that while on the way to a field of the Lambardar to collect fodder, he and the deceased were not following any regular path, but were following a pagdandi. When asked about the distance of the. Pagdandi from the dhok of the appellants he deposed, that/ he could not give it. However, when pressed further, he: stated, that "I cannot contradict, if pagdandi is at a distance of" about 17/18 yards from the dhok of the accused".
Knowing fully well that his family and the family of the appellants were at: daggers drawn and there was no love lost between them because in spite of their consistent efforts the appellants had declined to return Mst. Fazal Jan to then', it becomes difficult to accept his version, that even if they, had been sent by their landlord to collect fodder from his field, they would pass near the dhok of the appellants especially when already the mother of the alleged abductor of Mst. Fazal Jan had been killed by some members of their party. We are, therefore, constrained to hold, that the deceased and Khuda Bakhsh P. W. Had not gone towards the place of occurrence on an innocent errand viz. To fetch fodder, but apparently had gone there, as is the defence version, to somehow to get hold of Mst. Fazal Jan. We are fortified in coming to this conclusion from the following statement made by Khuda Bakhsh P. W. Himself '.- "After Muhammad Ashraf accused brought Mst. Fazal Jan to his dhok and they began living openly, I and Nakhra deceased tried for the return of Mst. Fazal Jan. I do not remember having stated before the Committing Magistrate that after Mst. Fazal Jan was brought back to the dhok of Muhammad Ashraf accused, we tried for the return of the hand of Mst. Fazal Jan, because we felt aggrieved and humiliated at this matter."
He was duly confronted with this part of the statement, which he had made in the Court of the Committing Magistrate on 29 November 1967 as (P. W. 2). These being the circumstances of the case, we hold, that the contention of Khuda Bakhsh P. W and the deceased had been deputed by their landlord fetch fooder from his field and were going to the said field for that purpose, does not seem true. When Muhammad Ashraf appellant after marrying Mst. Fazal Jan began to live with her openly, that became a source of constant humiliation to the family of the abductee. The contention of Shah Nawaz appellant, that the occurrence took place at his dhok does not appeal to us.
However, there is no denying the fact that it took place so near the dhok of the appellants, that we can infer therefrom, that the reason for which the deceased and his companion, Khuda Bakhsh had gone towards that side was nothing else, but to get hold of Mst. Fazal Jan.
19. We are mindful of the fact that the number of injuries received by the deceased and his companion, indicate that their assailants must have been more than one. However, onus lies very heavy on the prosecution to establish, that the story of the prosecution is correct and that all the appellants had made a concerted attack upon the deceased and Khuda Bakhsh P. W. While they were on their way to the field of their landlord. The fight may not have taken place as stated by Shah Nawaz appellant, but it certainly had not taken place in the manner as stated by Khuda Bakhsh P. W., who is the solitary witness, on whom some reliance can be placed.
20,. In view of the fact, that the prosecution has not come forward with a true version, we are constrained to hold, that we shall rely on the statement of Khuda Bakhsh P. W. Only to the extent, that it finds corroboration. So far as the participation of Shah Nawaz appellant in the crime is concerned, we need not say anything about it, because he has himself admitted that he gaveth injuries to the deceased and Khuda Bakhsh P. W. Although his contention is, that he did so in self- defence.
21. There is no corroboration of the statement of Khuda Bakhsh P. W. In the case of any other appellant, except Muhammad Iqbal, at whose instance blood-stained spear Exh. P. 2 is stated to have been recovered. We shall try to find out as to how far this recovery can be relied upon and can be held to be genuine. It is in evidence, that Muhammad Iqbal appellant was produced before the police officer by one Fazal Dad on 21st July 1967. Earlier to this, and shortly after despatching the dead body to the mortuary, the police officer visited the house of Muhammad Iqbal in order to "effect search", but did not do so for he found his house locked. We do not understand, if the police officer suspected, that some incriminating articles might be recovered from the house, why he did not break open the lock and carry out the search. However, he interrogated the aforesaid appellant on the following day of his arrest. As a result whereof, the appellant is stated to have led him to dhok Khadorara, which is 2-- miles from the village school, where he was interrogated and led to the recovery of blood-stained spear Exh. P. 2 from the ceiling of his residential kotha. This recovery is stated to have been made in the presence of Muhammad Akbar Lambardar (P. W. 8) and Sher Dil son of Bahadur (P. W. 9). The evidence with respect to it is so discrepant that we find it difficult to rely on the same. The Sub-Inspector of police, Ali Asghar Shah (P. W. 14) deposed, that "I had taken all the three accused to dhok Khadrora for the recoveries. Daurez and Iqbal were taken for the recoveries in turn and the remaining accused were kept at some distance from the dhok. Daurez and Iqbal were then left at the school and thereafter recovery was made at the instance of Shah Nawaz". With respect to this aspect of the case the state--ment of Muhammad Akbar Lambardar, who is an interested witness as the deceased and Khuda Bakhsh P. W. Were his servants, is to the effect, that Shah Nawaz appellant was left behind and only lqbal was taken along with Daurez at the time of the recovery at the instance of Daurez. To the same effect is the statement of Sher Dil son of Bahadur that both Daurez and Iqbal were taken to dhok Khadrora. They were not accompanied by Shah Nawaz at that time. He was left behind at that spot.
Muhammad Akbar P. W. Deposed, that there was none present at the house of Iqbal, and that there were one or two heads of cattle tethered in the room, from where the recovery was effected. Sher Dil P. W. Also deposed, that none of the inmates of the houses of the appellants were present when the police arrived in their houses. He added that "there is in fact no family member at the house of Shah Nawaz and the family members of Daurez and Iqbal went away on seeing the police". He, however, denied that any cattle was found tethered in the room, wherefrom the recovery was made. His statement is to the effect, that "the recovery from Iqbal was effected from his residential kotha. It would be incorrect to say, that there were one or two heads of cattle tethered in the room from where the recovery was effected. "The Sub-Inspector, who is only other witness with regard to the recovery, stated, that the recovery from Iqbal did not take place from any room used for cattle.
In other words he intended to give an impression that no cattle was found in the room, wherefrom the recovery was made. He further deposed, that "there were women-folk and children at the houses of the three accused." It is apparent from the evidence discussed above, that the testimony of the witnesses to the recovery is highly discrepant, both as to the place wherefrom the recovery was made, i.e. Whether it was made from the residential kotha of Muhammad Iqbal or from his cattle-shed, as also with regard to the fact, whether the members of his family were present at the relevant time. We have already pointed out above about Muhammad Akbar Lambardar, that he had interest in the deceased, because the deceased and Khuda Bakhsh P. W. Were his servants.
Sher Dil P. W. Is also an interested witness, because he admits, that his wife was the niece of Mst.
Gahran P. W. Thus we find, that besides the fact, that the evidence about the recovery of the spear at the instance of Muhammad Iqbal appellant is highly discrepant, it is also interested. No disinterested person was associated by the police officer during the investigation and we, therefore, hold, that the recovery of the spear at the instance of Muhammad Iqbal appellant is doubtful.
22. The net result, therefore, is, that the fate of the case hinges purely on the admission made by Shah Nawaz appellant. There being practically no evidence with regard to the remaining three appellants, namely, Muhammad Iqbal, Muhammad Daurez and Muhammad Ashraf, we give them benefit of doubt and acquit them of all the charges. Their convictions and sentences are set aside and the death sentences in their case are not confirmed. They shall be released forthwith provided they are not required to be detained in connection with any other case.
23. Shah Nawaz appellant has pleaded self-defence. However, his version, that the occurrence took place in the court--yard of his house is not believable. The occurrence took place undoubtedly near his house, when Nakhra deceased and Khuda Bakhsh P. W. Had arrived at that place in order either to persuade Mst. Fazal Jan to accompany them or to lift her away forcibly. Shah Nawaz has injuries on his person. Therefore his contention, that he was assaulted in the first instance can be reasonably accepted and he had thus the right to defend his person against the assault and he could, with a view to save himself, inflict injuries on his assailants, especially when he knew, that his assailants were not there on an innocent errand. However, in view of the large number of injuries inflicted by him on the person of the deceased and his companion, out of which, at least two injuries on the person of the deceased were sufficient to cause death in the ordinary , course of nature, we hold, that he has far exceeded the right of private defence, which was available to him, especially when the injuries received by him do not indicate that he apprehended danger to his life. Thus bearing the aforesaid aspect of the case in mind, we hold, that so far as the injuries inflicted by him upon the person of Khuda Bakhsh P. W. Are concerned, he is not guilty of any offence and thus his conviction and sentence under section 307, read with section 34, P. P. C. Are set aside. However, in the case of Nakhra deceased, we alter his conviction from under section 302 read with section 34, P. P. C. To one under section 34, Part I, Pakistan Penal Code and thus set aside his sentence of death and reduce it to a sentence of ten years' rigorous imprisonment. His death sentence is not confirmed.