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Criminal Appeal No. 88 and Murder Reference No. 38 of' 1974, decided on 4th February 1975.

‑‑ S. 302/34 read with S. 100‑Murder‑Eye‑witnesses related inter se and inimical. towards accused‑‑Evidence of such witnesses not corroborated by other evidence from independent sources Recovery of crane empty and gun doubtful‑Occurrence not proved to have taken place in manner alleged by prosecution‑-Accused having number of grievous injuries on heads, chests and other vital parts of their bodies‑Accused, held, enjoyed complete right of self‑defence to extent of causing death of assailants‑‑Conviction and sentence set aside.‑[Evidence‑Recovery Private defence, right of].

Aftab Farrukh for Appellants.

Saeed‑ul‑Haq, for A. G. for the State.

Dates of hearing: 31st January, 3rd and 4th February 1975.

Zohra, Nur, Yaqub and Sikandar, sons of Qaim, were tried by the learned Additional Sessions Judge, Layallpur, under sections 302 and 307 read with section 34 of the Pakistan Penal Code for having committed the murder of Ismail deceased and made murderous assault on Ahmad son of Jaimal P. W. on 27th May 1971, at 10/11 a.m. in the area of Chak No. 399/G. B., Police Station Tandlianwala, District Lyallpur. By judgment, dated 23rd January 1974, Yaqub and Sikandar were acquitted on the benefit of doubt while Zohra and Nur appellants were convicted under sections 302/34 and 307/34, P. P. C. Under section 302/34, P. P. C. Zohra appellant was sentenced to death and a fine of Rs. 1000 or in default in the payment thereof to R. I. for ten months while Nur appellant was sentenced to imprisonment for life and a fine of Rs. 1,000 or in default to undergo further R. I. for ten months. Out of the fine, if realised a sum of Rs 1000 was ordered to be paid to the hears of Ismail deceased as compensation. Under section 307/34, P. P. C. both the appel lants were sentenced to seven years' R. I. and a tine of Rs. 500 each and in default of payment of fine to undergo five months' R. I. each. The sentence of imprisonment awarded to Zohra appellant was to take effect only in the event of his death sentence being not confirmed while that of Nur appellant was ordered to run concurrently with the sentence of life imprisonment awarded to him under section 302/34 of the Pakistan Penal Code. Out of the fine, if realised, a sum of Rs. 500 was ordered to be paid to Ahmad, the injured P. W., as compensation. The convicts have appealed and the case is also before us on reference for confirmation of the death sentence awarded to them. The appeal and the reference are being taken up together and disposed of by this judgment.

2. The brief facts of the prosecution case as contained in the F. I. R. are that about six or seven years before the occurrence which took place on 27th May 1971, Khurshid son of Jamun of Chak No. 399/G.B. installed a tube‑well on State land in the area of Chak No. 399/G.B. All the four appellants were partners in the tube‑well. About twenty or twenty‑two days before the occurrence, Fazil complainant and his sister's son Ahmad son of Jaimal also purchased a share of the tube‑well from aforesaid Khurshid for a consideration of Rs. 1,000. On the day of occurrence at about 10 or 11 a.m. the complainant, his brother Ismail deceased and their nephew Ahmad P. W, son of Jaimal went to the tube‑well in order to irrigate their land. They were just preparing for operating the tube‑well when Zohra and Nur appellants armed with guns and Sikandar and Yaqub (acquitted accused) armed with lathis reached there. They told the complainant and his com panions that they had no share in the tube‑well, therefore, they will not allow them to operate it. The complainant and his companions insisted on operating the tube‑well, upon which a quarrel ensued between the parties. Nur appellant fired his gun on Ismail deceased. The fire hit the deceased on neck and arm. The Zohra appellant fired his gun on the deceased hitting him on his left ear. On receiving the shots, Ismail deceased fell down. The appellants then tried to take away Ismail but Fazil complainant and Ahmad P. W. son of Jaimal while resisting their attempt caused them injuries and, in the meantime, Nur appellant fired his gun at Ahmad P. W. hitting him on his chest. Sikandar and Yaqub (acquitted accused) gave lathi blows to aforesaid Ahmad. Ahmad son of Thelu, Ahmad Yar son of Taja and Ahmad son of Muhammad who had reached the spot when the parties were quarrelling, also saw the occurrence and rescued the com plainant‑party. Later on, other persons also reached the place of occurrence, Ismail succumbed to his injuries at the spot.

The motive for the occurrence was that the appellants had a suspicion that Muhammad Khan son of Ismail deceased had illicit relations with their sister Mst. Amiran.

Leaving Ahmad Yar son of Taja and Ahmad son of Muhammad near the dead body, the complainant brought Ahmad son of Jaimal to Civil Hospital, Tandlianwala on a cot. After obtaining his medico legal report, he reported the occurrence at Police Station Tandlianwala, incorporating the above facts vide F. I. R. Exh. P. V., recorded by Mukhtar Ahmad Sub‑Inspector at 4‑30 p.m in the same day.

3. After recording the F. I. R., Mukhtar Ahmad S. I. reached the spot. He prepared the injury‑statement (Exh. P. G./1) and inquest‑report (Exh. P. H.) of the dead body of Ismail deceased and despatched it to the mortuary for post‑mortem examination under the escort of Muhammad Amin F. C. on 28th May 1971, he collected blood‑stained earth from the spot and made it into a sealed parcel vide memo Exh. P. C. On the same day he recovered a broken butt (Exh. P. 5) of the gun and an empty cartridge (Exh P. 6) vide memo Exh. P. D. The empty was made into a sealed parcel. On the same day, Muhammad Amin F. C. brought the clothes of the deceased and a sealed phial (Exh. P. 8) containing pellets and produced these articles before the Sub‑Inspector vide memo Exh. P. B. The appel lants and the acquitted accused were arrested on 30th May 1971. At the time of arrest, Zohra appellant was in possession of gun (Exh. P. 4) with broken butt containing cartridge (Exh. P. 7) in its chamber which was taken into possession vide memo Exh. P. F. On 6th June 1971, Nur appellant led to the recovery of gun (Exh. P. 3) from an earthen bin lying in his house which was made into a sealed parcel vide memo. Exh. P. X. On 10th rune 1971, Muhammad Imtiaz F. C. produced a sealed phial (Exh. P. 11) containing pellets before the Sub‑Inspector vide memo Exh P. A. The crime empty (Exh. P. 6) recovered from the spot and gun (Exh. P. 3) were sent to the Forensic Science Laboratory for examination and the said empty was found to have been fired from gun (Exh. P. 3). After the investigation, a case; under sections 302 and 307 read with section 34 of the Pakistan Penal Code was sent up against the appellants and the acquitted accused.

4. On 27th May 1971, at 4 p.m. Dr. Safdar Ali, Medical Officers Civil Hospital, Tandlianwals, examined Ahmad P. W. son of Jaimal and found the following injuries on his person:‑

(1) A firearm wound of entry ' x ' x not probed on the front of right chest, 2' below the right nipple edges were slightly burnt.

(2) An oblique lacerated wound 3' x ' x bone deep on the left side of the head, 3' above the inner and of left eyebrow.

(3) An oblique lacerated wound 2 ' x ' x bone deep on the left side of the head. 1' behind the injury No. 2.

(4) Lacerated wound 1 ' x 1/8' scalp deep on the back of left side of the head, 3 ' behind the left ear.

(5) An abrasion 1 ' x 1/10' on the inner side of left foot, 1' above the root of big too.

Injury No. 1 was caused by firearm and the others with blunt weapons, within the duration of six hours. Injury No. 1 was grievous and the rest were simple.

On the same day at 6‑15 p.m. the same doctor examined Yaqub (acquitted accused) and found the following injuries on his person:‑

(1) A lacerated wound 1' x x scalp deep on the back of left side of the head 3' behind the left ear.

(2) A contusion mark 5' x 1 on the back of left shoulder.

(3) A contusion mark 3' x ' on the back of neck lower part.

(4) 10 contusion marks scattered on the back of right and left chest and back of abdomen, size varying from 7' x 1' to 3' x 1'.

(5) An abrasion 5' x on the right chest, lower part.

(6) A contusion mark 4' x 1' on the outer side of abdomen left side.

(7) A contused wound x ' x skin deep on the palmer aspect of the root of left index finger.

(8) As abrasion ' x " on the left knee.

All the injuries had been caused with blunt weapon. Injury No. 2 was grievous and the rest were simple.

On the same day at 6 p.m. the same doctor examined Nur Muhammad appellant and found the following injuries on his person:‑

(1) A lacerated wound 2' x x none deep on the right side of parietal region of head, 4' above the right ear.

(2) A contusion mark 3' x ' on the back of left forearm 3' above the wrist, ulna bone was fractured.

(3) A contusion mark 2' x ' on the back of left forearm 1 ' above injury No. 2.

All the injuries had been caused with blunt weapon within the duration of 12 hours. Injury No. 2 was grievous and the rest were simple.

On 28th May 1971, at 7‑15 a.m. the same doctor conducted the autopsy on the dead body of Ismail deceased and found the following injuries on it.

(1) A firearm wound of entry 2' x 1' x neck and vertebral column deep on the lower part of the left ear, involving the pinna and adjoining part of the neck, muscles, vessels, vertebral column and cervical part of spinal cord. Vessels, muscles of the right of the neck were involved. There were four wounds of exit on the outer side of the neck, one above the other in area of 5' x 2 . The wound was ' x ". A pellet was removed from the neck. The wounds of entry and its edges were inverted and burnt. The first and second cervical vertebrae were smashed and the spinal cord was torn apart. The wound was full of blood.

(2) A pellet wound of entry ' x ' x muscle deep on the front of right shoulder, edges were burnt and inverted. Pellet was removed 4' from the wound of entry under the skin on the outer side or right upper arm.

(3) A pellet abrasion 1/8' x 1/8' x skin deep on the forehead just above the outer end of left eye‑brow.

(4) A scorched abrasion 1/8' x 1/8' on the outer and of left clavicle.

All the injuries had been caused by a firearm. Injury No. 1 was grievous and the rest were simple. On dissection, lower jaw was found fractured on the left side and lower part of the brain, membranes and skull were smashed in the depth of the wound. One pellet and seven was were recovered from the dead body. Trachea and oesophagus were perforated and injured. In the opinion of the doctor, injury No. 1 was sufficient to cause death in the ordinary course of nature The doctor handed over three pellets, seven wads and namda in a sealed bottle to the police.

5. To support its case, the prosecution examined eighteen witnesses in all, its main stay being the ocular testimony of Fazal complainant, Ahmad P. W. son of Muhammad, Ahmad son of Thelu, Ahmad son of Jaimal and Ahmad Yar son of Taja. It also placed reliance on the recovery of crime empty (Exh. P. 6) from the spot which was found tea have been aired from gun (Exh. P. 3) recovered from Zohra appellant.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Zohra appellant and Sikandar denied their participation in tine occurrence. Nur appellant and Yaqub admitted the occurrence but contended that it took place to a different manner. Nur appellant when asked to explain the injuries on his person made the following statement:‑

"The occurrence took place in this manner. Myself and Yaqub being share‑holders in the aforesaid tube‑well went there at the time of occurrence to operate the well to irrigate our land whereas Ismail deceased, Ahmad son of Jamil P. W. and Sadullon son of Fazal complainant come there. They insisted to operate the tube‑well for irrigation of their land but we objected that they were not share holders in the tube‑well and that they have no right to operate the well. They insisted. We stopped them. They assaulted me and Yaqub accused with sticks and started giving us injuries. In order to save ourselves we retaliated and gave injuries to Ahmad son of Jaimal P. W. whereupon Sadullon aforesaid who was present with gun hur riedly fired gun shot which accidentally hit Ismail deceased and Ahmad son of Jamal P. W. The complainant party to save their skin cooked up this false story and implicated all the four of us."

Yaqub (acquitted accused) also made a similar statement. Zohra appellant produced copy of judgment dated 14‑11‑1327 (Exh. D. V.) passed 1n Sessions Trial No. 11 of 1927, copies of Khasra Girdawaris (Exhs. D. H. and D. H./1) pertaining to square No. 8 and a certified copy of the statement (Exh. D. J.) made by Ahmad P. W. son of Thelu in case State v. Jafar. No other evidence was led in defence.

7. The learned trial Judge believed .the ocular account as also the recovery of empty from the spot and of guns from the appellants, and on the basis of this evidence held them guilty for murder of Ismail deceased and murderous assault on Ahmad P. W. son of Jaimal. He was, however, of the view that after the murder of Ismail deceased there was a separate and independent fight between the parties in which they received injuries. The relevant portion of the impugned judgment is reproduced below:‑

"It may be that the complainant and Ahmad son of Jaimal P. W. after having seen their relation Ismail deceased having been killed with gun shots, engaged Yaqub and Sikandar accused in separate and independent fight and then persons of both the groups were injured Ahmad son of Jaimal P. W. must be more active in this fight and for this reason Noor accused fired his gun at him and injured him. In my opinion Yaqub and Sikandar accused did not share the intention of the remaining two accused and they engaged themselves in altogether a separate and independent fight which occurred after Ismail had died. It could not be said with certainty in the facts and circumstances of this case, that in this second and subordinate fight of lathis, Yaqub and Sikandar accused were aggressors. These circumstances do cast a shadow of doubt in this case, in so far as the case of Yaqub and Sikandar accused is concerned. I find these two accused entitled to the benefit of doubt in this case".

In view of the above observation, the learned trial Judge acquitted Yaqub and Sikandar accused.

8. The learned counsel for the appellants has contended that the presence of all the eye‑witnesses at the spot except Ahmad P. W. son of Jaimal, is extremely doubtful and the defence version is more plausible than the prosecution case. He also assailed the evidence relating to the recovery and that the prosecution version that Ahmad P. W. son of Jaimal had broken the butt of the gun of Zohra appellant during the fight was an improvement and a mere concoction. He further argued that the finding of the learned trial Judge that after the murder of Ismail deceased there was a separate and independent fight between the parties was misconceived as no empty‑handed person or a person having a lathi would dare go near those who were armed with guns According to him, the injuries received by acquitted accused Yaqub and Nur appellant indicated that the guns were fired after these injuries had been inflicted on them,

9. After going through the entire evidence, we are of the view that the prosecution version of the occurrence is doubtful and both the parties have not stated the whole truth. According to the F. I. R. the appellants and the acquitted accused were partners in the tube‑well. At the trial, Fazil complainant denied that they were partners in the tube‑well. Similarh. Ahmad P. W. son of Jaimal denied at the trial that the appellants and the acquitted accused were partners in the tube‑well. He was confronted with his statement before the police where it was so recorded. Khurshid Ahmad (P. W. 5) who had installed the tube-well, Rulia (P. W. 6) and Muhammad Sharif (P. W. 7) also stated that the accused had no share in the tube‑well. Zohra appellant produced agreement (Exh. D. A ) through which Akbar son of Lal Din and his father had sold away their 1/7th share in the tube‑well to the father of the appellants for a consideration of Rs. 900 on 25th July 1970. This document and the earlier statements of Fazil complainant and Ahmad P. W. son of Jaimal clearly establish that the appellants and the acquitted accused were partners in the tube‑well. The prosecution, however, tried to improve its case and produced evidence to show that they were not partners in the tube‑well, obviously with a view to make out a case that they had no right to prevent the complainant‑party from operating the tube‑well. 'The evidence led by the prosecution to prove the partnership of the com plainant‑party in the tube‑well is inconsistent. In the F. I. R. the complainant stated that about 20/22 days before the occurrence he and his sister's son Ahmad P. W. son of Jaimal paid Rs. 1000 to Khurshid and became share holders in the said tube‑well. At the trial, he disowned this statement and deposed that Muhammad Sharif purchased a share of the tube‑well from Rulia P. W. and his (complainant's) son Sadullon and Ahmad P. W. purchased this share for Rs. 1000 from Muhammad Sharif P. W. A similar statement was made by Ahmad P. W. son of Jaimal. He denied having stated before the police that he purchased the share of the tube‑well from Khurshid for Rs. 1000. He was confronted with his statement before the police where it was so recorded. Khurshid Ahmad (P. W. 5), Rulia (P. W. 6) and Muhammad Sharif (P. W. 7) deposed that Rulia P. W. held 1/7th share in the tube‑well. He sold it to Sharif, and Sharif sold it to aforesaid Sadullon and Ahmad about 20/22 days before the occurrence. From the above, it is clear that the statements made by the complainant and Ahmad P. W. son of Jaimal at the trial on the point of their partnership in the tube‑well, are at variance with, their earlier statements. However, the docu mentary evidence furnished by Iqbal Muhammad petitions-writer (P. W. 13) shows that aforesaid Sadullon and Ahmad P. W. had purchased 1/7th share of the tube‑well from Muhammad Sharif P. W. on 14th May 1971. This witness appeared with the relevant register and proved receipt Exh. P. E./1 which shows that Muhammad Sharif P. W. had sold his 1/7th share in the tube‑well for a consideration of Rs. 1000 to Saddullan son of Fazil complainant and Ahmad P. W. son of Jaimal on 14th May 1971. The entry about this receipt was at, serial. No. 1199 of the register. The authenticity of this entry was not challenged in cross‑examination. It is, therefore, established that on 14th May 1971, the complainant‑party had purchased 117th share of the tube‑well from Muhammad Sharif for a sum of Rs. 1000. The evidence, however, reveals that the appellants and the acquitted accused, who were partners in the tube‑well since 25th July 1970, had no knowledge that the complainant‑party had also become a partner in the tube‑well. In the F. I. R. the complainant had stated that he and his companions were preparing to operate the tube‑well when the appellants and the acquitted accused came there and prevented them from doing so saying that they (the complainant‑party) had no share in the tube‑well. Almost all the eye‑witnesses admitted that the complainant‑party wanted to operate the tube‑well while the accused party tried to prevent them from doing so. Ahmad P. W. son of Jaimal stated in cross‑examination "We did not feel deterred when the accused came there armed with guns and lathis. We and the accused quarrelled for 10/11 minutes. In this quarrel we claimed that we are partners in the tube‑well and the accused stated that they will not permit us to start the tube‑well and the accused also denied our partnership in the tube‑well. We had never shown the receipts of purchase of share in the tube‑well by us from Sharif, to the accused." The above evidence shows that the complainant‑party had purchased a share in the tube‑well only thirteen days before the occurrence and the accused party had no knowledge of this fact; therefore, it can safely be concluded that they had prevented the complainant‑party from operating the tube‑well under a bona fide belief that they had no share in the tube‑well and were not entitled to use it.

The prosecution further alleged that the accused harboured grudge against the deceased because their sister Mst. Amiran had illicit relations with his son Muhammad Khan. This version of the motive was supported by Fazil complainant and Ahmad (P. W. 15). In cross‑examination they admitted that a rumour about this illicit affair was going on since one year or six months before the occurrence but nobody ever assaulted Muhammad Khan on that account. Suffice it to say that if the appellants and the acquitted accused wanted to take revenge of the alleged illicit liaison they would have chosen Muhammad Khan as their target and not the deceased.

10. There are two versions of the occurrence‑‑one given by the prosecution and the other by the defence, and the main question for deter mination in this case is as to which of the versions is nearer to truth and more plausible. The learned counsel for the appellants contended that the accused party had no' intention to cause any harm to the members of the complainant‑party and that they only wanted to prevent them from operat ing the tube‑well under a bona f de belief that they (the complainant party) had no right to use it. To support his contention, he drew our attention to the statements of the eye‑witnesses who admitted that before the occur rence there was a quarrel between the parties for ten to fifteen minutes over the complainant's right to operate the tube‑well. The complainant party asserted their right for operating the tube‑well and tile accused party opposed them saying that they had no share in the tube‑well. He contended that if there had been any premeditation on the part of the appellants to commit the murder they would have used the guns on their very arrival at the spot. He further contended that the defence version that Sadullon, son of Fazil complainant, was armed with a gun and his fire accidentally hit the deceased and Ahmad P. W. son of Jaimal, was more plausible. He further contended that if it be assumed that the appellants had used the guns, then there can be no escape from the view that the guns were used after Yaqub (acquitted accused) and Nur appellant hail suffered injuries at the hands of the complainant‑party. We have already stated above that in this case the parties have not spoken the whole truth. It is, in deed, difficult to say as to how the occurrence had taken place. Fazil complainant and Ahmad P. W. son of Jaimal are self‑condemned liars and no reliance can be placed on their testimony. In their statements in the committing Court with which they were duly confronted, both of them stated that they did not know any thing about the occurrence. Being aware of what he had stated before the committing Magistrate, Ahmad P. W. is the beginning of his examination‑in‑chief stated that three months after this murder one Qaim was murdered in his village in which he, Fazil complainant and others were challaned and that they appeared as accused persons before the committing; Magistrate in that case and his statement was never recorded as a P. W in this case. In cross‑examination, be admitted that on the 9th of November 1971, (when his statement in this case was recorded in the committing Court) he appeared in the Court of Magistrate at Samundri when Zohra appellant and the other accused were present in the dock. His statement that he never appeared as a P. W. in this case in the committing Court is therefore, a white lie.

The occurrence took place at the tube‑well situate in the area of Chak No. 399/G. B. (at page 15 of the paper‑book misprinted as Chak No. 396/ G. B.). The remaining three eye‑witnesses, namely, Ahmad Yar (P. W. 8), Ahmad (P. W. 14) and Ahmad (P. W. 15) belong to Chak No. 396/G. B. situate at a distance of one and a half miles from Chak No. 399/G. B. and are chance‑witnesses of the occurrence. Ahmad Yar (P. W. 8) stated that on the day of occurrence he and Ahmad (P. W. 14) son of Muhammad had gone to Chak No. 399/G. B. to realise a debt from one Zaman Shah for which Ahmad (P. W. 14) had stood surety. According to him, he and Ahmad P. W. had seen the occurrence when they were coming back to their Chak from Chak No. 399/G. B., Ahmad P. W. son of Thelu stated that at the time of occurrence he was working on the Dhar of Khurshid P. W. and it was from there that he reached the place of occurrence. At the trial, Ahmad (P. W. 14) denied that Ahmad Yar P. W. was his nephew. He denied having stated so before the committing Magistrate. He was confronted with his statement before the committing Magistrate where it was so recorded. At the trial, he denied that Jhanda was the uncle of Ahmad Yar or that aforesaid Jhanda was murdered. He denied having stated before the committing Magistrate that Jhanda uncle of Ahmad Yar, was murdered and Khan, Rehman and Shahamand, nephews (sister's sons) of Qaim, father of the appellants, were challaned in that case. He was confronted with his statement before the committing Magistrate where it was so recorded the above admissions of Ahmad (P. W. 14) in the committing Court would show that he and Ahmad Yar P. W. are not only related inter se but were also inimical to the appellants. Ahmad son of Thelu (P. W. 15) is a Muslim Sheikh of their village. In view of these circumstances, it will be unsafe to place reliance on the evidence of these P. Ws. unless corroborated by probabilities and other evidence from independent sources.

11. The account of occurrence given by the eye‑witnesses does not inspire any confidence. At the trial, Ahmad Yar (P. W. 8), Ahmad (P. W. IS), Fazil complainant and Ahmad P. W. son of Jaimal stated that after committing the murder of Ismail deceased, all the four accused tried to lift away his dead body whereupon the complainant and Ahmad P. W. son of Jaimal tried to resist their attempt and in doing to gave sota blows to the accused and when Zobra accused aimed his gun at Ahmed P. W son of Jatmal the latter struck his lathi on the guti of Zohra appellant and broke its butt. Nur appellant had three injuries on his person. Injury No. 1 was a lacerated wound, 2' x ' x bone deep, on the right side of the parietal region of head. This injury was kept under observation and was later on declared as simple. Injury No. 2 on his person was grievous as it had fractured the ulna bone. Yaqub (acquitted accused) had as many as seventeen injuries, out of which injury No. 2 was grievous. His injuries would show that he was given a merciless beating. We have endeavoured to reconstruct the scene narrated by the prosecution witnesses at the trial but it is difficult to believe it. If there had been two guns with the accused party from the very beginning and two shots bad been fired on the deceased before the assault on Nur appellant and Yaqub (acquitted accused), no person armed with a lathi would dare come near these who had the guns and in such a situation the appellants would never have permitted the com plainant and Ahmad P. W. to assault Nur appellant (who was himself armed with a gun) and launch a sustained attack on aforesaid Yaqub. The facts and circumstances of the case indicate that the guns were fired either after Nur appellant and Yaqub (acquitted accused) had received the injuries at the hands of the members of the complainant‑party or when they were being assaulted by them. We do not agree with the learned trial Judge that Nur appellant and Yaqub suffered injuries in a separate and independent fight. The evidence further shows that there was no premeditation on the part of the appellants. It is in evidence that the quarrel between the parties over the entitlement of the complainant‑party to operate the tube‑well continued for ten to fifteen minutes. If there had been any concert or premeditation on the part of the accused party and they had come to the spot armed with guns in pursuance thereof, they would have attacked the complainant‑party on their very arrival. There is force in the argument of the learned counsel for the appellant that the guns were brought in the occurrence when it was already going on and Nur appellant and Yaqub acquitted accused were being thrashed.

There are other unsatisfactory features of the prosecution case. All the eye‑witnesses, including Ahmad son of Jaimal and Fazil complainant, stated that Ahmad son of Jaimal struck his lathi against the gun of Zohra appellant and broke its butt. This fact is conspicuously missing from the F. I. R. with which the complainant was duly confronted. Ahmad P. W. son of Jaimal deposed at the trial that he had stated before the police that Zohra appellant aimed his gun at him and he broke its butt by a lathi stroke. He was confronted with his statement before the police where it was not so recorded.

Again, Fazil complainant stated in cross‑examination that when he left for the police station to lodge the F. I. R. one empty cartridge was still lying at the spot and he had stated to the police about the presence of the empty at the spot. He was confronted with the F. I. R. where it was not so recorded. These omissions not only show that the prosecution version was improved at the trial but also create doubts about the recovery of crime empty from the spot. The evidence relating to the recovery of gun from Zohra appellant is also unsatisfactory and does not inspire confidence. This recovery was allegedly witnessed by Ahmad Yar and Ahmad P. Ws. who as already mentioned above, are closely related to each other and are inimical to the appellants. Ahmad Yar P. W. joined the investigation on the nee day of the occurrence and remained attached with it till the last recovery from Nur appellant on 6th June 1971. According to the prosecution, Zohra appellant was arrested from his house and at the time of his arrest he had gun (Exh. P. 4) with him. Ahmad (P. W. 14) stated that gun (Exh. P. 4) was in the hands of Zohra appellant when he was arrested. The statement of the Sub‑Inspector is also to the same effect. Generally, the accused persons try to destroy or conceal the weapons of offence after the occurrence, therefore, it is not understandable why this appellant was holding the gun in his hand three days after the occurrence. The Sub‑Inspector further stated that at the time of recovery only Abroad son of Taja and Ahmad son of Muhammad were with him. He further stated that he had not called them and they had joined the investigation of their own. Both these P. Ws. belong to a different village and their keen interest in the investigation lends support to the contention of the learned counsel for the appellants that they were interested witnesses. We, therefore, do not attach any importance to the recovery of crime empty and guns (Exhs. P. 3 and P. 4) at the instance of Nur and Zohra appellants.

12. For all the foregoing reasons, we feel inclined to the view that the occurrence had not taken place in the manner alleged by the prosecution and it is reasonably possible that the appellants had acted in exercise of the right of private defence. Nur appellant had three injuries on his person out of which injury No. 1 was on the head and No. 2 was grievous. Yaqub (acquitted accused) had seventeen injuries on his person out of which injury No. 2 was grievous. The remaining injuries were located on the head, C back of neck, back of right and left chest and other parts of his body. The appellants, therefore, had a complete right of self‑defence to the extent of causing the death of Ismail deceased. We, therefore, accept the appeal, set aside the conviction and sentence of the appellants and acquit them of the charge against them. They shall be set at liberty forthwith, if not required to be detained in any other case. The death sentence of Zohra appellant is not confirmed.

Appeal accepted.

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