' NAZIM HUSSAIN SIDDIQUI, J---The Criminal Appeals Nos.153/98 and 154/98 by leave of this Court are directed against judgment dated 13-8-1997, of a learned Division Bench, Lahore High Court, Rawalpindi Bench, whereby judgment dated 29-10-1992 of learned Sessions Judge, Chakwal, with modifications to the extent indicated in the impugned judgment, was maintained.
2. The occurrence took place on 8-11-1990 at about "Deegarwela" in land of one Sarfraz Khan, situated in Dhoke Galial Dakhli Mogala, District Chakwal. The scene of offence was at a distance of seven miles from Police Station Talagang. Looking to the distance involved, the report seemed to have been lodged promptly. Allah Dad, reported the matter and his statement was recorded by Sikandar Baig S.-I. And later on it was incorporated in section 154, Cr.P.C. Book. Formal F.I.R. No,293, under sections 148/149/ 324/302/337-A/337-D, P.P.C., (Exh.P/1) was registered by Muhammad Asghar, S.-I. At said Police Station on the same day at 10-00 p.m.
3. The incident was witnessed by Allah Dad, complainant, Mst. Shafia Begum, Taj Muhammad, Mansab Khan, and Mst. Kalsum Bibi, P.Ws. All above-named were injured and were examined as P.Ws., except Mst. Kalsum Bibi, who was given up.
4. According to prosecution, the alleged crime was committed by Muhammad Iqbal, Muhammad Sartaj, both sons of Muhammad Nawaz, Shoukat Hayyat son of Khaaki Jan; Muhammad Nawaz and Gulbaz, both sons of Ghulam Abbas.
5. In Criminal Appeal No,153 of 1998, Allah Dad is appellant, hereinafter referred to as "the complainant" and the persons named in para. 4 have been shown as respondents, who are appellants in Criminal Appeal No,154 of 1998 hereinafter referred to as "appellants". The Criminal Appeal No,153 of 1998 is for enhancement of sentences of the appellants and Criminal Appeal No,154 of 1998 has been filed for their acquittal.
6. The motive, as set up by the prosecution, was that there was a dispute over land between the parties. Gulbaz and Shoukat Hayat, appellants allegedly demolished the "Bunna" a day before the occurrence over which complainant's brother Ghulam Abbas deceased had protested. It is alleged that the deceased restored "Bunna" over which Gulbaz and Shoukat Hayat felt annoyed.
7. Learned Sessions Judge convicted Muhammad Sartaj, Muhamamd lqbal and Shoukat Hayat, appellants and sentenced them to death and a fine of Rs,60,000 each or three years' R.I. In default thereof on two counts, under sections 302/109, P.P.C. Muhammad Nawaz and Gulbaz, appelants were convicted and sentenced to imprisonment for life and a fine of Rs,60,000 each or in default thereof to suffer R.I. For three years on two counts, under sections 302/149, P.P.C. All above-named appellants were also sentenced to 5 years' R.I. And a fine of Rs,5,000 each or one-year R.I. In default thereof on five counts, under sections 324/149, P.P.C., all sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was denied to Muhammad Nawaz and Gulbaz, appellants. The fine for offence under sections 302/149, P.P.C. If recovered, half of it was to go to the heirs of Ghulam Abbas deceased and the remaining half to the heirs of Atta Shabbir deceased, as compensation under section 544-A, Cr.P.C. Similarly the fine, if recovered, for offence under sections 324/149, P.P.C. Was to be equally distributed among Allah Dad, Mansab Khan, Taj Muhammad, Shafia Begum P.Ws., and Kalsum Bibi, as compensation.
8. Learned High Court in appeal maintained death sentences of Shoukat Hayyat and Muhammad Sartaj appellants on one count. Death sentence of Muhammad Iqbal, appellant on two counts was converted into life imprisonment on one count. For injuries to the witnesses, all the appellants, except Muhammad Sartaj, were convicted under section 337-F(ii), P.P.C. And each of them was ordered to pay Rs,5,000 as "Daman" to the injured persons to whom they inflicted injuries and were also to suffer two and a half years' R.I. As "Tazeer". Muhammad Sartaj, appellant, was also convicted under sub-clause (iii) of section 337-F of the P.P.C. And was directed to pay Rs,5,000 as "Daman" to Mst. Shafia Begum and also to undergo two and a half years' R.I. As "Tazeer". The sentences of imprisonment would run concurrently. The sentences and convictions of Shoukat Hayyat, Muhammad Sartaj and Muhammad Iqbal, appellants, regarding fine were also maintained.
Convictions and sentences of life imprisonment of Muhammad Nawaz and Gulbaz appellants, under sections 302/149, P.P.C. Were set aside. Murder Reference relating to Muhammad Iqbal was dismissed.
9. The prosecution case, in brief, is that on the aforesaid date, time and place Muhammad Iqbal and Muhammad Sartaj duly armed with .12 bore guns, Shoukat Hayyat, with a Carbine, Muhammad Nawaz, appellant with a Soti and Gulbaz, appellant with a hatchet formed an unlawful assembly at scene of offence and in prosecution of their common object of unlawful assembly committed rioting and in consequence of the attack committed murders of two real brothers of Allah Dad complainant, namely Ghulam Abbas and Atta Shabbir, the deceased of this case, and attempted upon the lives of Allah Dad, Mst. Shafia Begum, Taj Muhammad, Mansab Khan and Mst. Kalsum Bibi, P. Ws.
10. Main investigation was conducted by Sikandar Baig, S.-I. On 8-11-1990, he noted down injuries of Taj Muhammad, Mansab Khan, Kalsum Bibi and Shafia Begum and referred them to the Civil Hospital Talagang for their examination, treatment and report. He visited the scene of offence and found the dead bodies of Ghulam Abbas and Atta Shabbir there and sent them through Constable Sarfraz Khan, for post-mortem examination. He secured blood-stained earth from there in the presence of witnesses. He examined P. Ws. Muhammad Nawaz, Gulbaz and Muhammad Iqbal appellants were arrested on 10-11-1990 Shoukat Hayyat, appellant on 18-11-1990 and Muhammad Sartaj on 1-12-1990. Blood-stained earth was secured from the place, where the dead bodies were lying and an empty cartridge Exh. P-9 was also recovered from scene of offence. From possession of Gulbaz a hatchet, Muhammad Nawaz, a Soti, Muhamamd Iqbal .12 bore gun, Shoukat Hayyat, 12 bore pistol and Muhammad Sartaj, a gun were recovered on 16-11-1990, 8-111 990, 23-11-1990 and 4- 12-1990 respectively. Gun secured from possession of Muhammad Iqbal matched with the fire-arm secured in the investigation. On completion of investigation charge-sheet was submitted against the appellants before the Court having jurisdiction.
11. At trial, the prosecution examined 17 witnesses namely, Muhammad Iqbal S/o Fazal Khan, Mohsin Raza Shah, Patwari, Lady Dr. Hameeda Khatoon, Rub Nawaz, Head Constable, Khadim Hussain Constable, Sarfraz Khan Constable, Dr. Muhammad Yaqoob Awan, Medical Officer, Muhammad Aslam Constable, Muhammad Asghar A.S.-I., Allah Dad complainant, Mansab Khan son of Allah Dad P.W,, Taj Muhammad S/o Allah Dad P.W., Dr. Muhammad Iqbal Siddiqui, Medical Officer, Ghulam Haider Constable, Farooq Ahmed recovery witness, Mst. Shafia Begum d/o Ghulam Abbas P.W. And Sikandar Beg, S.I., Investigating Officer.
12. All the appellants in their statements recorded under section 342, Cr.P.C. Had denied the prosecution's allegations and claimed to be innocent. Muhammad Nawaz, aged about 76 years stated that neither he was present on the spot nor participated in the commission of offence.
According to him, being head of the family, he was roped in due to close relationship with other appellants. Muhammad Sartaj, who was Sepoy in Pakistan Army, denied all the allegations and stated that Investigating Officer had arrested him from Pannu Aqil Cantonment on 1-12-1990. He claimed that he handed over his licensed gun to the Investigating Officer. He stated that he was falsely implicated due to relationship with other appellants. Shoukat Hayyat stated that he was innocent and had voluntarily appeared before the police on the next day of occurrence having come to know that he was named as one of the accused in the case. According to him, neither he led the police for recovery of Carbine nor it belonged to him. He alleged that Ghulam Abbas deceased had developed illicit relations with his sister-in-law Sadiq Sultana and latter's cousin Ghulam Rabbani took exception to it and reprimanded the deceased. According to him, he supported Ghulam Rabbani and for this reason his relation with above-named deceased and his relatives were strained. Besides, he also stated as follows: ' "...A day prior to the occurrence, Muhammad lqbal accused and I were going to the former's Dhoke on his tractor. The children of Allah Dad P.W. Were playing on the way. Their ball struck the tractor of Muhammad Iqbal accused who was taken by surprise and nearly lost control of the tractor. He and I abused the Children and Muhammad Iqbal accused also beat them up. On this, Ghulam Abbas, Atta Shabbir deceased and Allah Dad, Mansab Khan and Taj Muhammad P.Ws. Went to the house of Muhammad Iqbal accused in the evening to attack him but he was not there. The women-folk entreated them on which they came back leaving the threat that they would deal with Muhammad Iqbal accused. This was also a reason for my false involvement...."-
13. Gulbaz, aged 71 years, like others, proclaimed his innocence and admitted his presence at the scene of offence and stated as follows:-- ' On the evening preceding the day of occurrence, Ghulam Abbas, Atta Shabbir deceased and Allah Dad, Mansab Khan and Taj Muhammad P.Ws. Came to our house in order to attack Muhammad Iqbal accused for his having beaten up the children of Allah Dad P.W. But he was not there, I and my women-folk entreated them on which they went away issuing threats that Muhammed Iqbal accused would not be spared.
' On the day of occurrence, at about "Kuftanwela', while in the house with the women-folk, I heard Muhammad Iqbal accused raising hue and cry near the well of one Muhammad Nawaz. On this, I rushed there with Mst. Sarwar, Qamer Sultana, Mst. Sadiq, Raffat and Mst. Kausar and saw Ghulam Abbas and Atta Shabir deceased armed with hatchet and Soti respectively injuring Muhammad Iqbal accused, who was on the ground. Mansab Khan, Taj Muhammad P.Ws. Armed with .12 bore guns, Allah Dad P.W. Carrying Soti and Shafia Begum and Kalsum P.Ws. Also reached there from the complainant side, Mansab Khan and Taj Muhammad P.Ws. Started firing indiscriminately as a result of which the two deceased and Shafia Begum and Allah Dad P.Ws. Got injured. Allah Dad P.W.
Gave Soti blow to me. Muhammad Iqbal accused picked up the hatchet of Ghulam Abbas deceased and injured the hand of Taj Muhammad P.W. With the same as he was about to fire at him. Women from either side hurdled stones at each other resulting into injuries to Mansab Khan, Taj Muhammad, Allah Dad, Shafia Begum and Kalsum P.Ws. From the complainant side and Mst.
Sarwar, Qammer Sultana, Mst. Sadiq, Riffat and Mst. Kausar from our side. I and the other injured appeared before the police on the same night at about 10-00 p.m. At Police Station Talagang and apprised them of the true facts. Police promised to take action against the complainant party but then backed out. Muhammad Nawaz, Muhammad Sirtaj and Shaukat Hayyat accused were neither present at the spot nor did they participate in the occurrence.
14. Muhammad Iqbal also admitted his presence at the scene of offence and stated that these were the complainant and P.Ws. Who were responsible for the occurrence, and that Ghulam Abbas and Atta Shabbir deceased were killed due to indiscriminate firing resorted by Mansab Khan and Taj Muhammad P.Ws. He also stated that ladies from both sides had pelted stones at the opposite party. According to him, he had apprised the police about actual facts and the latter, in spite of promise of taking action against the complainant party, let it off and involved him and other appellants as accused of this case.
15. The appellants did not examine themselves on oath nor produced any witness in defence.
16. The following injuries were found on the persons of deceased:- (I) Injuries of Ghulam Abbas deceased
(1) A fire-arm wound of entry 1/2" x 1/2" on the right side of forehead, 1-3/4" above the right eye- brow and 1/2" right to the, mid-line, directed inward and backward.
(2) A fire-arm wound of entry 1/2" x 1/2" on the left side of forehead, 1-3/4" above the left eye-brow and 1/2" left to the mid-line, directed inward and backward.
(3) A contusion 1/2" x 1/2" on the right side of forehead, 1/2" above the right eye-brow and 1/4" below injury No, 1 .
(4) A contusion 1" x 1/2" on the right side of forehead, 1" above the outer border of right eyebrow.
(5) A fire-arm wound of entry 1/2" x 1/2" on the inner angle of left eye-ball, just left to the bridge of nose, directed inward and to the right.
(6) A fire-arm wound 1/2" x 1/2" on the mid-region of right ear. Skin was denuded over the wound.
' The doctor opined that death occurred due to shock and haemorrhage and due to injuries Nos.1, 2 and 5, which were grievous, ante-mortem and were caused by fire-arm.
(II) Injuries of Atta Shabbir deceased
(1) Gunshot wounds, each measuring 1/8" x 1/8", over an area 19" x 15", starting from both clavicles and extending to both illiac bones on the anterior aspect of the chest and abdomen. The wounds were 90 in number.
(2) 16 gunshot wounds, each measuring 1/8" x 1/8", on the anterior aspect of right arm and forearm in an area 10" x 4", starting from the middle of the arm and extending to the right wrist joint about 3" above to it.
(3) Two gunshot wounds, each 1/8" x 1/8", on the anterior aspect of the right shoulder joint.
(4) Three gunshot wounds 1/8" x 1/8" each over an area measuring 2" x 1-1/2" on the left side of the base of neck, 2" lateral to the sternal fossa.
' The doctor opined that the death resulted on account of above injuries. Injury No,1 was grievous and was sufficient to cause death. It was a fire-arm injury.
16. Mst. Shafia Begum d/o .Ghulam Abbas sustained following injuries, which were simple in nature.
(1) A multiple gunshot wound on the back of right hand over an area measuring 3" x 6" with swelling all around the wound. X-Ray of the injury was advised.
(2) A multiple gunshot wound of entrance on the right forearm 3" x 4" on the back of right arm. X- Ray was advised.
(3) A lacerated wound on the right upper thigh 1/2" x 1/2". Its X-Ray was advised.
(4) A fire-arm wound on the Index finger of left-hand 1/8" x 1/8" X-Ray was advised.
(5) A fire-aim wound on the middle finger of left-hand 1/8" x 1/8". Its X-Ray was advised.
17. Mst. Kalsum Begum daughter of Allah Dad sustained following injury, which was kept under observation.
(1) A lacerated wound on the right side of head 1-1/2" x 1/2" X bone deep. Its X-Ray was advised.
18. Allah Dad complainant sustained following injuries:---
(1) A multiple gunshot wound of entrance on the back of distal 1/3rd of left arm and the elbow joint (about 18 in number), each measuring 1/8" x 1/8" superficially. Corresponding holes were on the shirt of the examinee which was blood-stained. Wounds had bled on touching.
(2) A multiple gunshot wound of entrance over an area measuring about 10-1/2" x 9" on the back and upper 1/4th of both buttocks, comprising of about 30 wounds, each measuring 1/8" x 1/8" x superficial. Corresponding holes were present on the shirt, jacket and Chadder of the injured, which were blood-stained. The wounds bled on touching.
(3) An abrasion with swelling 2" x 1/4" on the back of middle of left forearm.
(4) An abrasion 3/4" x 1/4" on the top of left shoulder.
(5) An abrasion 1/4" x 1/4" on the back of distal 1/3rd of proximal phalynx of right ring finger.
' The injuries Nos.1 and 2 were caused by fire-arm and rest by blunt weapon. After X-Ray report, injuries Nos.1 to 5 were declared simple.
19. Mansab Khan had sustained following injuries:
(1) A lacerated wound 1-1/2" x 1/8" x skin deep on the top of scalp, in mid-line, 6" from the root of nose.
(2) An abrasion 1-1/4" x 1/4" with swelling 2-1/2 x 2-f/2" round the wound, on the back and outer side of the distal 1/3rd of right forearm.
' Above injuries were caused by blunt weapon and were simple in nature.
20. Taj Muhammad sustained following injuries
(1) A lacerated wound 1/2" x 1/8" x skin deep on the left side of scalp, 4" above left ear.
(2) An incised wound 1-1/2" x 1/2" x bone deep, on the back of distal half of middle phalynx and distal phalynx of left ring finger. Bone underneath and nail were cut, and distal inter-phalyngeal joint dislocated.
(3) An abrasion 1/4" x 1/4" on the back of distal phalynx of right little finger.
' Injury No,2 was declared grievous and 1 and 3 were simple.
21. Following injuries were found on the person of Muhammad Iqbal, appellant:--
(1) A superficial lacerated wound with pus-formation 1/2" x 1/4" on the back of middle of first phalynx of right index finger.
(2) A superficial lacerated wound 1/2" x 1/8" with pus formation on the back of middle of first phalynx of the middle finger of right hand.
(3) A superficial lacerated wound 1/4" x 1/4" with pus formation on the back of middle of first phalynx of the right index finger.
(4) A superficial lacerated wound with pus formation 1/2" x 1/4" on the outer side of base of right thumb.
' All above injuries were simple in nature.
22. The following 'injuries were found on the person of Gulbaz, appellant:
(1) A superficial lacerated wound 1" x 1/8" x skin deep across the top of scalp. The wound was full of clotted blood.
(2) A bruise 1" x 1/4" on the back of middle of scalp, 2-1/2" behind injury No,1 .
(3) A bluish contusion 6" x 2" across the back of left shoulder.
(4) A bluish contusion 11" x 1" across the back of right chest. It was in oblique direction from the shoulder to mid-line.
(5) An abrasion 1/2" x 1/8" on the front of middle of right leg. All above injuries were simple.
23. Ocular account has been furnished by Allah Dad, complainant, Mansab Khan, Taj Muhammad and Mst. Shafia Begum, P.Ws.
24. The complainant deposed that Muhammad Nawaz and Gulbaz appellants are his paternal uncles. According to him on the day of occurrence he and his brother Atta Shabbir deceased were working at their threshing floor, for the peanut crop. Mansab Khan, Taj Muhammad, Shafia Begum, Kalsum Bibi were also there and were bringing the heaps of peanut crop to the threshing floor from the nearby fields. He stated Muhammad Nawaz, armed with a Soti, Gulbaz, with a hatchet, Muhammad Sartaj and Muhammad Iqbal, with guns and Shoukat Hayyat with a carbine were sitting in ambush near a deserted well and when Ghulam Abbas deceased passed from there with a heap of peanut crop, they got up and raised Lalkara challenging him to get alert, as they had come. He further deposed that Ghulam Abbas threw away the bundle of peanut crop and started running towards his residence. He also stated that Shoukat Hayyat, fired twice hitting his left eye and forehead. Thereafter, he (complainant) and Atta Shabbir deceased rushed towards the spot.
Muhammad Sartaj fired which hit at the chest of Atta Shabbir. Muhammad Iqbal, also fired which hit his (Atta Shabbir) right arm and neck. Both Ghulam Abbas and Atta Shabbir died on the spot.
Mst. Shafia Begum, who was running towards her father was fired at by Muhanmmad Sartaj, and she sustained injuries on her right hand and thigh. While the complainant was attending Atta Shabbir and trying to make him get up Muhammad Sartaj fired at him (complainant) causing injuries on his right hand and buttocks. Muhammad Nawaz and Gulbaz, gave a blow each with their respective weapons to Taj Muhammad on head and left hand respectively. Muhammad Sartaj, also gave a butt blow to Taj Muhammad, and then Muhammad Nawaz, gave a soti blow on the head of Mansab Khan, Gulbaz gave a hatchet blow from its backside on his right arm.
Muhammad Nawaz, also gave Soti blow on the head of Mst. Kalsum Bibi. Gulbaz then struck at the left arm and left shoulder of the complainant with backside of hatchet. Muhammad Nawaz had also gave a soti blow on the complainant's head followed by a blow by Muhammad Sartaj, with the butt of his gun. The witness also deposed that during incident Taj Muhammad, pelted 2/3 stones hitting Gulbaz and Muhammad Iqbal. Mansab Khan, P.W. Who was carrying a fork (Trangle) gave a few blows to the aforesaid two appellants in defence. Mansab Khan, Taj Muhammad and Mst.
Shafia Begum, P.Ws. Also deposed on the same lines.
25. Vide order, dated 11-6-1998 leave to appeal was granted in these appeals to consider the following:--
(i) Whether impugned judgment of the High Court wherein evidence on record has neither been discussed nor analyzed on the basis of contentions raised by either side would be sustainable.
(ii) Whether prosecution witnesses, who were admittedly injured and have fully implicated the convicts could be discredited or deemed interested, on the ground of their relationship with deceased.
(iii) Whether prosecution evidence is materially discrepant and contained improbabilities casting doubts about actual incident thereby making it untrustworthy, by virtue of reasoning offered on behalf of the convicts.
(iv) What is effect of injuries caused to the accused and whether under law it would be responsibility of prosecution or that of defence to logically explain its existence on their bodies.
(v) Whether motive was duly established or remains shrouded in mystery. What is the impact of motive upon ocular evidence, adduced by the prosecution especially in the light of stand taken by some of the petitioners in their respective statements.
(vi) Whether evidence brought on record which includes ocular testimony, medical evidence, recoveries and reports of experts coupled with motive was sufficient to establish collective responsibility of all accused persons, and sentence awarded to them needs enhancement.
26. Mr. Sardar Muhammad Ishaq Khan, learned counsel for the appellants (In Criminal Appeal No,154 of 1998) assailed the judgment of High Court and submitted that the evidence brought on record was neither appreciated by trial Court nor by High Court, in its true perspective. He argued that High Court particularly failed to discuss and analyze the points raised before it on behalf of the appellants.
27. In the narrative part of the judgment, all relevant facts have been stated by the High Court. The details of medical evidence have also been provided. Pleas, taken by the appellants in their statements recorded under section 342, Cr.P.C. Are eminently reflected in the impugned judgment.
Learned High Court, in para. 19 of its judgment has noted, as many as 9 contentions, which were raised by learned counsel for the appellants and answered them in the light of evidence brought on record. It was urged before it that defence pleas were more plausible and more nearer to the truth, as Rich, benefit of doubt should have been extended to the convicts/appellants. Further, it was argued that Muhammad Nawaz and Gulbaz, being aged about 76 and 71 years respectively at the relevant time were not expected to participate in the commission of the offence and being sufficiently old must have tried their level best to avoid the occurrence. Also, it was argued that only Muhammad Iqbal and Gulbaz, appellants were present on the spot when the incident took place.
28. About the recoveries, it was contended that these recoveries were of no consequence, as they were effected in violation of section 103, Cr.P.C. The testimony of eye-witnesses was challenged on the score that they were interested and inimical towards the appellants and no independent corroboration was available. Also, it was urged that initially prosecution alleged that dispute over land between the parties was the motive of the crime but later on introduced a new motive relating to "Bunna". It was also contended that Muhammad Iqbal and Gulbaz acted in self-defence.
29. In para. 20 of the judgment learned High Court had also taken into consideration the arguments advanced on behalf of the State that the presence of injured eye-witnesses on the spot was proved beyond any shadow of doubt and Gulbaz and Muhammad Iqbal admittedly were present on the spot at the time of occurrence.
30. Having examined the evidence brought on record, High Court reached the conclusion that both the parties had not disclosed the true motive behind the incident and that original motive remained shrouded in mystery. Under the circumstances, High Court took the view that "it was sudden fight without premeditation. Rather it being a free fight each of the appellant is responsible qua the role attributed to him." In support of above, reliance was placed on the case reported as Abdul Rehman v. Gadai Khan and 3 others (1972 SCM R 676).
31. Thus, it is evident that High Court considered all the facts of the case, which were brought before it. It is not necessary for the Court to mention the evidence in detail or to narrate the points, which it found irrelevant for the purpose of a specific finding. The decision shall contain a concise statement of facts, the points which require consideration, the decision thereon and the reasons for such decision. What is material is that real points in controversy, which can be the basis for a decision, be highlighted and discussed.
32. High Court discussed the necessary evidence for reaching a conclusion. However, it is entirely a different proposition that its conclusion regarding "sudden fight without premeditation" is not based upon correct appreciation of the evidence available on record. It would be discussed in the succeeding paragraphs.
33. In the case of Abdur Rehman quoted above a Full Bench of this Court, while dealing with the issue of a free fight and right of private defence referred to the case reported as Syed All Bepari v.
Nibran Mollah and others (PLD 1962 SC 502) wherein the following was held:-- ' "In a case of this type the parties do not generally come out with the true story. It is a normal incident of an 'adversary proceedings' to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and the circumstances."
' In is noted that ratio of Abdur Rehman case is that when each party hostile to each other anticipated resistance from the other and were, therefore, determined to have a trial of strength, it would be impossible to say that the accused party had acted at the defensive or in the exercise of any right of private defence of person or property. In such circumstances, it would be reasonable to infer that in entering upon the conflict each party knowingly and deliberately took upon itself the risk of encounter, and in such circumstances right of private defence would not arise, and each participant in the free fight would be liable for his individual act.
34. Adverting to the facts of the instant case, it is noted that finding of High Court that it was a free fight, is erroneous. The complainant party was on the fields and was doing its routine work, when all its members were roughly handed. They were not armed with any weapon. They had ladies also. In fact, they were taken by surprise when they were attacked. All this happened so abruptly that neither they could run away from there nor could defend themselves. The appellants had surreptitiously approached them and killed two of them on the spot, besides causing injuries to 6 of them. As against above Muhammad Iqbal and Gulbaz, appellants had only sustained superficial lacerated wounds by blunt weapon.
35. It has been contended on behalf of the appellants that P.Ws. Are closely related to the complainant party and their testimony without corroboration could not be relied upon. Presence of the injured P.Ws. At the scene of occurrence is established without any shadow of doubt. Soon after the occurrence, their injures were noted down by the Investigating Officer and they were referred to the hospital, where again their injuries were noted down and were examined. Even during the course of cross-examination of the P.Ws., their presence at scene of occurrence was not seriously challenged. Before us also it was not contended that they were not present at the scene of offence at the time of occurrence. It is, however, true that mere presence at scene of occurrence does not necessarily establish that a witness had told truth in the Court about the occurrence. While appreciating evidence credence is always given to the testimony of a witness whose presence on the spot is established, unless it is shown, that the witness has falsely deposed. Nothing has been pointed out to discard the testimony of the eye-witnesses, Who have corroborated each other on each material point without any significant contradiction. Mere facts the P.Ws. Are interested in prosecution is not by itself enough to discard their evidence altogether. Independent corroboration is not an inflexible rule. Even uncorroborated testimony may be relied upon with reference to other indisputable facts. The veracity of injured P.Ws. Cannot be challenged as, ex-facie, they had no reason to permit the actual culprits to go scot free and implicate the appellants, who are related to them.
36. The eye-witnesses were subjected to lengthy cross-examination and their testimony was not shattered. In fact, testimony of the eye-witnesses is consistent and unimpeachable. Although, it does not require any corroboration, yet, the corroboration is available in the shape of recoveries and medical evidence. Thus, it is proved from irrefutable evidence that Muhammad Iqbal, Muhammad Sartaj and Shoukat Hayat, appellants had killed two deceased of this case. These were pre-mediated and cold-blooded murders and above-named three appellants were rightly awarded death penalty by the trial Court.
37. Mr. Sardar Muhammad Ishaq Khan learned counsel for the appellants argued that the prosecution's version, if examined minutely, does not inspire confidence for the simple reason that if the appellants were armed with formidable weapon, such as, guns, carbine, hatchet etc., then in such situation the complainant party, especially when it is alleged that they were completely unarmed, could inflict injuries to two of the appellants namely Gulbaz and Muhammad Iqbal. We do not find any substance in this connection. Both above named appellants had sustained simple injuries. Prosecution has explained those injuries by stating that the ladies of complainant party had pelted stones. This was accepted by Gulbaz in his statement under section 342, Cr.P.C. The complainant party had only a fork (Trangle), which is not a weapon. Mansab Khan, P.W. Had used it and caused injuries. This happened when the appellants came very close to the complainant party. The simple injuries on the persons of said two appellants were satisfactorily explained by the prosecution.
38. As regards the motive, the law on this point now is well-settled. Motive is a state of mind and is not always established. Motive and ocular testimony are distinct and the former does not necessarily control the later. It is true that where motive is attributed, it requires to be examined that whether it could be a reason for commission of the crime, but at the same time its absence or weakness would not by itself be sufficient to discard an unimpeachable evidence rendered by the prosecution. In other words, ocular testimony is to be looked into on its own intrinsic value and it could not always be regarded as subservient to motive. Motive in many cases remains shrouded in mystery and never comes to surface. In the instant case, the argument is that the prosecution has changed the motive in the way that firstly it was alleged that there was a dispute between the parties over the land and subsequently plea of demolishing "Bunna" was raised. We have examined this plea and are of the view that dispute over land or over "Bantu", virtually is the same. Banna means demarcation which separates the boundaries of two lands. The motive of crime was proved. There is no substance in this plea also.
39. Next to be considered is the question of enhancement of sentence of Muhammad Iqbal and that whether the convictions and sentences of life imprisonment of Muhammad Nawaz and Gulbaz were rightly set aside by High Court.
40. Mr. A. K. Dogar learned counsel for complainant (Allah Dad appellant in Criminal Appeal Noj53 of 1998) cited Fateh Khan and others v. The State (PLD 1963 SC 89) to contend that question who caused fatal injury, is not necessary to determine for imposing maximum penalty, if all accused attributed with intention to kill. Learned counsel argued that irrespective of number of the assailants, all would be liable to maximum penalty, once it was established that in prosecution of their common object they had killed a person. In above cited case, trial Court for an offence of murder had tried 9 persons and one was acquitted and the remaining 8 were convicted and sentenced to death. On appeal the convictions were maintained but sentences of three of them were reduced to transportation for life by High Court. This Court having taken into consideration the provisions of section 367, Cr.P.C. Wherein it is laid down that if the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death the reasons are to be given for not awarding the sentence of death, held that, ordinarily the question as to the penalty to be imposed will depend on an assessment of the extent of the guilt or the moral turpitude involved in the act of a particular accused. For this purpose, the whole of the conduct of the accused will have to be examined. With above observations The judgment of the High Court was maintained and the appeal was dismissed.
41. Following above dictum, we have sifted the evidence brought against Muhammad Iqbal, appellant and found that; after. Muhammad Sartaj, fired upon Atta Shabbir deceased, he (Muhammad Iqbal) also fired upon said deceased hitting upon his right arm and neck. Injury on neck by itself could be a sufficient to cause death. Atta Shabbir deceased was killed by joint firing of Muhammed Sartaj and Muhammed Iqbal, both wanted to kill him.
' We find that evidence against Muhammad Sartaj and Muhammad Iqbal, is identical. Muhammad Iqbal, was to be treated like Muhammad Sartaj and trial Court's finding to that effect was just and proper. He also deserved death penalty. Accordingly, we set aside the finding of High Court on this point and restore of trial Court. Muhammad Iqbal, appellant also stands convicted and sentenced to, death on one count and a fine of Rs,60,000 or in default thereof 3 years' R.I.
42. Section 149, P.P.C. Speaks about vicarious liability of the members of unlawful assembly for act done in prosecution of the common object of that assembly. Under this section a person is punished for the act of his associates. We are of the view that under the circumstances, this section is not attracted and in absence of vicarious liability the appellants would be individually responsible for their acts.
43. High Court set aside the convictions and sentences of Muhammad Nawaz and Gulbaz, appellants under sections 302/149, P.P.C. Muhammad Nawaz, was attributed to have caused a Soti blow to Mst. Kalsum Bibi on the right side of her head and injury was kept under observation and X- Ray was never brought on record. Likewise, it was alleged against him that he had given a Soti blow on the head of Mansab Khan, P.W., but final X-Ray report was not brought on record. Similarly, it was alleged against him that he had given a Soti blow to Taj Muhammad, and the X-Ray report was not brought on record. Gulbaz was attributed an injury on the finger of Taj Muhammad, X-Ray report about this injury was not brought on record. Muhammad Nawaz and Gulbaz were aged about 76 and 71 years respectively at the relevant time. Now they must be, if alive, more than 80 years. It is significant to note that at the time of arguments none stated before the Court if they, were still alive or not. Be that as it may, High Court acquitted them under section 302/149, P.P.C. And convicted them under section 337-F(ii), P.P.C. We do not find any ground to interfere in the findings of High Court relating to Muhammad Nawaz and Gulbaz appellants.
44. The sentence of Muhammad Iqbal, appellant is altered as above and all other sentences in respect of Muhammad Sartaj and Shoukat Hayyat, appellants awarded by High Court, are maintained.
45. In consequence, Criminal Appeal No,153 of 1995 with alteration in sentence of Muhammad Iqbal as indicated above, is dismissed. Criminal Appeal No,154 of 1998 is also dismissed.