' SH. IJAZ NISAR, J.---By this single judgment we propose to dispose of Criminal Appeals Nos.89, 90, 91, 92 and 123 of 1996, as the same are inter-linked and involve the same factual and legal controversy.
2. These appeals with the leave of this Court are directed against the judgment, dated 21-6-1995, passed by the Peshawar High Court, Abbottabad Bench, Abbottabad, in Criminal Revision No,18 of 1994, Criminal Appeal No,28 of 1994 and Criminal Appeal No,22 of 1994.
3. The prosecution case is that on 22-10-1986 at "Chashkan-Vela" Haider Zaman (Appellants in Cr.
A.89 of 1996) along with his father Lal Khan and two brothers, namely, Saifur Rehman and Muhammad Younus left their house for bringing maize crop from their land. On the way they were confronted by Suleman, Muhammad Farid, Dildar (respondent In Crl.A.89 of 1996) and Mir Zaman, father of Suleman, who were armed with guns, except Mir Zaman who had a "stick". It is alleged that on the direction of Mir Zaman (since acquitted), Suleman, Muhammad Farid and Dildar accused opened fire on Muhammad Younus deceased, who succumbed to the injuries. Saifur Rehman, brother, of the deceased, was beaten by Mir Zaman with his stick. After the occurrence the accused left the spot.
4. The motive for the occurrence was a dispute between the parties over the ownership of "Dhaka- Rauh".
5, After completing the investigation, the police challaned the accused.
6. At the trial, the learned Additional Sessions Judge, Abbottabad, vide judgment, dated 13-4-1994, convicted Suleman, Muhammad Farid and Dildar alias Kala, respondents, under section 302/34, P.P.C. And sentenced them to imprisonment for life, plus fine. Mir Zaman was, however, acquitted.
7. On appeal by the convicts, the learned High Court vide judgment, dated 21-6-1995, maintained the conviction and sentence of Suleman and Muhammad Farid, but acquitted Dildar alias Kala of the charge by accepting his plea of alibi. Criminal revision filed by Haider Zaman for the enhancement of sentence of the accused was dismissed.
8. On the day of occurrence i,e, 22-10-1986 another case under section 307/34, P.P.C. Was registered at Police Station Nara, District Abbottabad, at the instance of Mir Zaman (accused of the murder case) against Haider Zaman and Saifur Rehman (appellants in Cr.A. No,90 of 1996). The local police did not find the accusation to be true and recommended to the Ilaqa Magistrate of cancellation of the case. As Mir Zaman was then in Jail in the above-referred murder case, his daughter Mst. Shamim Akhtar filed a private complaint under section 307/34, P.P.C. Against Hiader Zaman, Saifur Rehman and one Khani Zaman, on the allegation that Saifur Rehman wanted her hand in marriage, to which her father Mir Zaman was not willing, as a result of which Saifur Rehman etc. Attempted at her life by firing at her and stabbing her father with a knife. According to her, she received a firearm injury on her left hand at the hands of Siafur Rehman resulting in the amputation of her hand, while her father was caught hold by Khani Zaman and given a knife injury on his hand by Haider Zaman.
9. The learned Additional Sessions Judge vide judgment, dated 13-4-1994 acquitted the accused.
Feeling aggrieved, she filed an appeal in the Peshawar High Court against their acquittal, which was allowed, and by judgment, dated 21-6-1995 the learned High Court convicted Haider under section 324, P.P.C. And sentenced him to imprisonment for 3 months, plus fine. Siafur Rehman the other accused was convicted under section 326, P.P.C. And sentenced to 7 years R.I. Plus fine. Khani Zaman accused was, however, acquitted.
10. Feeling dissatisfied with the judgment of the High Court, both the parties have filed appeals, the details whereof are as under: "Criminal Appeal No,91 of 1996 has been filed by Suleman and Muhammad Farid against their convictions and sentences under section 302/307/34, P.P.C., Criminal Appeal No,89 of 1996 has been filed by Haider Zaman against the acquitted of Dildar alias Kala and for enhancement of the sentences of Suleman and Muhammad Farid from life imprisonment to death. Criminal Appeal No, 90 of 1996 has been filed Haider Zaman and Saifur Rehamn against their conviction and under sections 324 and 326, P.P.C., Criminal Appeal No,92 of 1996 has been filed by Mst. Shamim Akhtar challenging the acquittal of Khani Zaman and for the conviction of Haider Zaman and Saifur Rehman under section 307/34, P.P.C., and Criminal Appeal No,123 of 1996 has been filed by the Saifur Rehman against his conviction and sentence under section 326, P.P.C."
11. Leave to appeal was granted by this Court on 19-3-1996 to consider whether the learned High Court had correctly analyzed the evidence in accordance with the principles governing the safe dispensation of criminal justice and had derived properly the conclusions by appreciating in its proper perspective the evidence on record .
12. In order to know the pleas advanced by the accused of both the cases it may be relevant to reproduce the statement of Mir Zaman made by him before the trial Court. In reply to the question as to why the P.Ws. Had deposed against him, he made the following statement:-- "They are interested and have become inimical before the occurrence and given wrong twist to the whole story. The deceased along with P.W. Haider Zaman and Saifur Rehman are my real nephews.
The hand of daughter Mst. Shamim Akhtar spinster was asked for Saifur Rehman is also unmarried as he was a patient of T.B. I refuse and so did Shamim Akhtar who did not like this proposal. This caused strained relations. On the day of occurrence 1 alongwith my daughter Shamim Akhtar, my daughter-in-law was proceeding to our fields and were waylaid by Saifur Rehman. Haider Zaman Khan, Zaman son of Jehandad who are their close relatives and Muhammad Younis deceased.
Khani Zaman caught hold of me while Mst. Shamim Akhtar was clasped by Saifur Rehman. I was given blow with knife by Hiader Zaman and Mst. Shamim Akhtar released herself on which she was fired at by Saifur Rehman. The deceased and Khani Zaman also helped them. Due to the fire shot the people nearby were attracted and the firing started. With the fire shot of Saifur Rehman, Mst.
Shamim Akhtar was seriously injured and later on her arm was amputated. I lodged the report and the case was registered but the police for ulterior motive due to the degeneration in the society filed the case and Mst. Shamim Akhtar lodged the complaint which is also ripe and is pending before this Honourable Court. Actually we were waylaid. I am innocent."
' Haider Zaman accused in the complaint case under section 307/34, P.P.C. Explained the occurrence as under:-- "I am innocent and had been flasely charged. In fact my brother Younus was done to death by complainant's father and maternal uncle for which they were charged. Complainant's father made a report on the facts mentioned in the complaint before police which was later on cancelled after the investigation and proceedings under section 182, P.P.C. Were initiated against the complainant Khani Zaman and that case and the present complaint were aimed to get rid of murder case of Younus. The present complaint is concocted and fabricated which is bald from independent evidence. The hand of Mst. Shamim Akbhtar was injured by her own relatives at her own house."
13. Learned counsel for Muhammad Suleman and Muhammad Farid contends that on account of the acquital of Dildar alias Kala co-accused, on the plea of alibi, the eye-witnesses, who were even otherwise highly interested, stood discredited and as such without any independent corroboration, their testimony could not be accepted against the appellants.
' The conviction of Saifur Rehman and Hiader Zaman under sections 324 and 326, P.P.C. Is assailed by the learned counsel appearing on their behalf on the ground that the, police case got registered against them was found to be false and that the private complaint was filed against them with a delay of about one month and further that Mir Zaman P.W: was an interested witness as he was one of the accused in the cross case.
14. After hearing the learned counsel for the parties and perusal of the record, we find that in the F.I.R. Lodged by Haider Zaman and the complaint made by Mst. Shamim Akhtar there has been suppression of true facts and each party has tried to throw the burden on the shoulders of the other. In the challan case there is no explanation of the injuries suffered by Mir Zaman and Mst.
Shamim Akhtar, while in the complaint the factum of the death of Muhammad Younas deceased is completely missing: Mst. Shamim Akhtar had received fire-arm and sharp-edged weapon injuries of serious nature, while Mir Zaman had also suffered sharp-edged and blunt weapon injuries on the vital parts of his body. In the cross case Saifur Rehman had received blunt weapon injuries while Muhammad Younus deceased had received 12 fire-arm injuries.
15. The motive set up by both the parties in the complaint case and in the police challan case was totally different and had no nexus what so ever with each other . In such a situation, law permits the Court to draw its own conclusion flowing from the facts and circumstances of the case.
' The motive set up by the prosecution in the police challan case under section 302, P.P.C. About the dispute over the ownership of "Dhaka Rauh" does not appear to be convincing. On the contrary, Mir Zaman, one of the accused, stated that the hand of Mst. Shamim Akhtar was asked for Saifur Rehman, which was refused both by her father and Mst. Shamim Akhtar herself, leading to the strained relations between the parties and ultimately to the occurrence in question. Since no convicing evidence was led to prove any dispute over the ownership of "Dhaka Rauh", we are of the opinion that in all probability the occurrence was the result of refusal of the hand of Mst. Shamim Akhtar for Saifur Rehman. The fact that she had also suffered injuries during the occurrence lends support to this view.
16. In the circumstances, we conclude that both the parties had a chance encounter, and there was a free fight between them making the participants individually liable for the part played each one of them. We, therefore, alter the conviction of Suleman and Muhammad Farid from section 302/34, P.P.C. To section 304 Part-1, P.P.C. And sentenced each one of them to 10 years R.I. Plus the same fine as awarded by the Trial Court with benefit of section 382, Cr.P.C.
17. The conviction and sentences of Saifur Rehman and Haider Zaman under sections 326 and 324, P.P.C. Respectively for causing injuries to Mst. Shamim Akhtar and Mir Zaman are maintained and they shall be entitled to the benefit of section 382-B, Cr.P.C.
18. Criminal Appeals Nos.89 to 92 and 123 of 1996, stand disposed of in the light of above observations.