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Criminal Appeal No. 293 and Murder Reference No. 156 of 1974 decided on 23rd June 1975.

--‑ S. 302‑‑Murder‑Benefit of doubt--Accused attributed only a ‑proverbial lalkara and although carrying a revolver yet making no use of it‑Accused given benefit of doubt and acquitted, in circumstances‑‑‑ [Benefit of doubt).

‑‑‑ S, 149‑Common object‑[Murder case]‑Accused persons attracted to scene of crime on spur of moment, taking part in free fight between parties, resulting in death of two on complainant side and injuries to P. Ws.‑Accused, held, could not share common object with each other in committing double murder and individually liable for their acts, in circumstances.‑[Common object].

S. 302‑Murder‑Sentence‑Mitigation‑Accused having no direct enmity with complainant party; incident a sudden affair and accused giving a single dagger blow to deceased on spur of moment‑Sentence of death altered to imprisonment for life, in circumstances.‑[Sentence].

‑‑ S. 302/34‑ Murder‑Common intention‑‑Accused armed with dagger and knife; selecting vital part of body for injuring their victim‑‑Accused. held, shared common intention to kill deceased, in circumstances‑Conviction under S. 302/34, P. P. C. maintained.[Common intention].

Dr. Khalid Ranjha for Appellants.

M. Rafiq Butt for the State.

Ch. Muhammad Anwar for the Complainant.

‑Bashir Ahmad (aged 26 years watch maker), Munir Ahmad (36 years) sons of Munshi, Bashir Ahmad (aged 66 years halwai) son of Mehr Din, Naseer alias Kala (22 years), Manzoor Hussain alias Booth (25 years), Sh. Hidayat Ullah (65 years) and Saleem Masih (31 years since dead) were tried for the double murder of Muhammad Rafiq and Muhammad Din for attempt on life of Anwar‑ul‑Haq P. W. for voluntarily causing simple injuries to Muhammad Pervaiz and Naseem Ijaz P. Ws. and for committing rioting after forming themselves into an unlawful assembly. By his judgment passed on 30‑3‑1974 Mr. Mahmood Khan, Sessions Judge, Sialkot convicted all the seven of them under sec tion 302/149, P. P. C. on two counts, under section 307/149, P. P. C. under section 323/ 149, P. P. C. and under section 148, P. P. C. of them Bashir Ahmad (watch maker) and Munir Ahmad sons of Munshi were sentenced to death and the remaining five convicts were sentenced to undergo imprison ment for life under sections 302/149, P. P. C. for the murder of Muhammad Rafiq. For the murder of Muhammad Din deceased Munir Ahmad, Bashir (halwai) son of Mehr Din, Naseer alias Kala and Manzoor Hussain alias Booti were sentenced to death and the remaining three convicts were senten ced to undergo imprisonment for life under section 302/149, P. P. C. All the seven of them were sentenced to suffer R. I. for five years under sec tion 307/149, P. P. C. for attempt on life of Anwarul Haq P. W. They all were further sentenced to suffer R. T. for 6 months under section 323/149, P. P. C. for injuries to Naseem Ijaz and Muhammad Pervaiz P. Ws. and all of them were also sentenced to suffer R. I. for 2 years under section 148, P. P C. All the sentences were ordered to run concurrently. The sentences of death of each of them were ordered to be executed subject to confirma tion of this Court. Saleem Masih filed Criminal Appeal No. 202 of 1974 while the remaining 6 convicts filed Criminal Appeal No. 293 of 1974. Pending decision of his appeal Saleem Masih died his natural death and his appeal (Cr. A. No. 292/74) has abated. This judgment will dispose of Cr. Appeal (No. 293 of 1974) of the 6 remaining convicts and the murder reference, sent under section 374, Cr. P. C. by the learned trial Judge.

2. Briefly, the prosecution case as disclosed in the F. 1. R. is that on l0‑8‑1971 at about 4 p.m. all the appellants except Sh. Hidayat Ullah were found giving beating to Naseem Ijaz P. W. on the Kachery Road, going towards the office of Town Committee in the town of Shakargarh while Sh. Hidayat Ullah appellant was standing there. At that time Arshad Mumtaz P. W. and Muhammad Rafiq deceased were, passing on that side. On seeing Naseem Ijaz P. W. under attack Arsad Mumtaz complainant and Muhammad Rafiq deceased intervened upon which Sh. Hidayat Ullah appellant raised lalkara to kill them because they were also their enemies. Thereafter Bashir Ahmad (watch maker) and his brother Munir Ahmad appellants brought a dagger each from their khoka while another Bashir Ahmad (halwai) son of Mehr Din appellant brought a khuncha from his shop and the three of them opened attack on Muhammad Rafiq deceased. Bashir Ahmad (watch maker) delivered a dagger blow to Muhammad Rafiq deceased who fell down. In the meantime Muhammad Din deceased and Anwarul Haq P. W., residents of Daska, and Muhammad Pervaiz P. W., resident of Shakargarh, who were related with the complainant, also reached there upon which Sh. Hidayat Ullah appellant gave his dagger to Manzoor Hussain alias Booti Mirasi appellant and persuaded him to attack while he himself held an open revolver in his hands as a threat to stop intervention of anybody. Then Munir Ahmad appellant held Muhammad Din deceased from collar while Manzoor Hussain alias Booti armed with dagger and Naseer alias Kala with knife injured Muhammad Din deceased while Bashir Ahmad (halwai) delivered a khauncha blow on the head of Muhammad Din deceased. When Anwarul Haq P. W. advanced to rescue the deceased the appellants caused him injuries. Muhammad Pervaiz P. W., also suffered injuries at the hands of the appellants while rescuing the deceased. The appellants also suffered some minor injuries. The occurrence was witnessed by Tara Masih, Hassan Muhammad, Ghulana Rasul and Muhammad Maqbool of Shakargarh, Muhammad Jameel and Muhammad Ali belonging to Murdowal who reached the spot and rescued the injured from the hands of the appellants. Muhammad Rafiq deceased died at the spot. Arshad Mumtaz complainant P. W. kept on standing aside due to fear. After the occurrence Arshad Mumtaz left for the police station but came across Malik Muhammad Aslam S. H. O. Police Station, Shakargarh at a distance of about half furlong who recorded his statement near the National Bank of Pakistan in the town of Shakargarh at 4‑45 p.m. on which formal F. I. R. was registered. at the Police Station at 4‑55 p.m. The distance between the place of occurrence and the police station was given as 11/2 furlongs.

The motive alleged in the F. 1. R. was that enmity existed due to elections between Sh. Hidayat Ullah appellant of Shakargarh town and the complainant‑party. A criminal case against Naseem 1jaz P. W. son of Tara Masih and Mst. Nusrat, sister of Saleem Masih appellant was pending in Court in which Sh. Hidayat Ullah appellant was supporting the complainant party of that case while the complainant party of this case was supporting the accused party of that case.

After recording statement of Arshad Mumtaz near National Bank of Pakistan. Malik Muhammad Aslam (P. W. 17), who was then S. H. O. Police Station, Shakargarh sent it to the Police Station for registration of the F. 1. R. On receipt of a ruqqa (Exh. P. L) from the doctor the Investigat ing Officer wrote an application (Exh. P. M./A.) addressed to the Assistant Commissioner, Shakargarh for getting recorded dying declaration of Muhammad Din deceased upon which Shaukat lqbal (P. W. 3) a Magistrate 2nd Class Shakargarh, was deputed and recorded the dying declaration of

Muhammad Din deceased after obtaining medical certificate of fitness from the doctor before and after recording the dying declaration. The dying declaration was so recorded on the day of occurrence sometimes after 6‑15 p.m. Malik Muhammad Aslam P. W., the Investigating Officer, prepared the inquest report and injury statement of ‑Muhammad Rafiq deceased and sent his dead body to the mortuary for autopsy. He took into possession from the doctor last worn clothes of Muhammad Din deceased who was then alive. Thereafter, the Investigating Officer went to the spot and reached there at 10 p.m. on the same day where he secured blood‑stained earth after scrapping it, vide memo. Exh. P. W. Then the Investigating Officer returned to the Civil Hospital where he found Bashir Ahmad (watch maker) and Munir Ahmad sons of Munshi and Manzoor Hussain alias Booti appellants in the hospital in injured condition alongwith Sh. Hidayat Ullah appellant and arrested them on 16‑8‑1971. He arrested Saleem Masih (the deceased appellant) on 20‑8‑1971, arrested Bashir Ahmad son of Mehr thin appellant and Naseer Ahmad alias Kala appellant on 21‑8‑1971. Bashir son of Mehr Din led him to recovery of his khuancha (P. 6) from his shop which was not stained with blood. Saleem Masih appellant since dead led him to the recovery of sofa (P. 7) from his house which too was not stained with blood. Naseer Ahmad alias Kala appellant led him to the recovery of knife P. 8) from underneath a bridge which was also not stained with blood. Those were secured, vide memos. Exhs. P. S. P. T. and P. U. respectively. Bashir Ahmad son of Mashi led him to the recovery of his dagger (P. 11) from a bush which was secured, vide memo. Exh. P. B. B. It was not stained with blood The Investigating Officer got prepared the site plan. Muhammad Din died in Civil Hospital. Sialkot on 25‑8‑1971 at 1‑45 a.m. On receipt of information from the doctor, Wajid Ali (P. W. 9) who was then A. S. 1. at Police Station, Rangpura, Sialkot went to the hospital and after preparing the injury statement and inquest report of Muhammad t‑in deceased sent his dead body to the mortuary for autopsy. After completing the investigation Police challaned the 7 appellants including Saleem Masih since dead.

3. Dr. Muhammad Naseem (P. W. 1) conducted post‑mostem examina tion on the dead body of Muhammad Rafiq alias Sain, aged 25 years, on 16‑8‑1971 at 10 a.m. and found'three injuries on his dead body, injury No. I was a stab wound 6/10" x 4/10" on the front of left of chest, 1" below and inner to the left nipple, through the 4th interspaced penetrating into the chest cavity. Injury No 2 was an incised wound I" x I/4" x 1/2" on the back of left thigh oblique below its middle injury No. 3 was an abrasion 1 " x 1/4" on the back of left forearm in the middle part. On dissection the doctor found that injury No. 1 was directed medially and backwards and through the medial part of the 4th interpace cutting the interior border of upper of lobe of left lung in the lower part. It had cut the pericardium and had penetrated into the cavity of left vertical by a vertical cut 4/10" long, the left side of chest cavity was full of blood. The stomach contained an ounce of semi‑digested food, small intestines contained semi‑digested food and large intestine contained faecal matter. In the opinion of the doctor death resulted due to haemorrhage from left lung and heart on account of injury No. 1 which was sufficient to cause death in the ordinary course. Injuries Nos. 1 and 2 were caused by sharp‑edged pointed weapon while No. 3 was caused with a blunt weapon. According to doctor the time between injuries and death was immediate and that between death and post‑mortem was within 24 hours.

The same doctor on 15-8‑1975 at 5‑10 p.m. medically examined Muhammad Din deceased when alive and found four injuries on his person. Injury No. 1 was an incised wound on the lower part of right side of cheat, injury No. 2 was also an incised wound on the back of lower part of left side of chest, injury No. 3 was also an incised wound on the back of right side of lower part of chest while injury No. 4 was a reddish contusion on the right side of scalp, 2 " above the ear. Injuries Nos. 1, 2 and 3 were inflicted with sharp‑edged pointed weapon and injury No. 4 was inflicted with blunt weapon within about 6 hours. Injury No. 2 was kept under observation and rest were declared as simple.

The same doctor on the same day at about 4‑25 p.m. also medically examined Anwarul Haq P. W. aged 22 years, and found 5 incised wounds on his person. injury No. 1 was on the front of left arm below its middle. Injury No. 2 was an incised wound skin deep on the postero‑medial aspect of middle of left arm, injury No. 3 was on the outer aspect of upper pact of left arm, injury No. 4 was on the outer aspect of upper part of right pinna while injury No. 5 was on the back of lower part of right side of neck. All injuries were inflicted with a sharp‑edged weapon within about 6 hours. Injury No. 3 was kept under observation and the rest were declared as simple.

The same doctor on the same day at 8 p.m. medically examined Naseem Ijaz P. W. and found 6 injuries on his person which were simple in nature caused with blunt weapon within the duration of about 24 hours. These injuries were reddish contusions on the back of left shoulder, on the back and outer aspect of left arm on the back of left fore‑arm just below the elbow, below injury No. 3 and on the left side of scalp 3" above the ear while one injury was an abrasion on the back of right arm just above the elbow.

The same doctor on the same day at 8‑45 p.m. medically examined Muhammad Pervaiz P. W. and found 5 injuries on his person four of which were abrasions while No. 2 was a reddish contusion on the lower part of the back of right side of chest. All injuries were simple inflicted with blunt weapon within about 24 hours.

The same doctor on the same day at 9-30 p.m. medically examined Bashir Ahmad son of Munshi appellant and found four injuries on his person which were simple in nature caused with blunt weapon within 24 hours. These injuries were on the left part of forehead and medial part of eye brow just above the medial part of eye‑brow, on the right said of upper part of nose, and on the light middle malleolus.

The same doctor on the same day at 9‑30 p.m. medically examined Munir Ahmad appellant and found five injuries on his person which were simple in nature caused with a blunt weapon within about 24 hours. Injury No. 1 was a contused wound on the right part of forehead 1" above the outer part of right eyebrow, injury No. 2 was a lacerated wound on the front of nose middle part, injury No. 3 was a lacerated wound on the right side of upper part of nose, injury No. 4 was a reddish contusion below the right nipple and injury No. 5 was a reddish contusion across the midline on the back of chest.

The same doctor on the same day at 10 p.m. also medically examined Manzoor Hussain alias Booti appellant and found seven injuries on his person which were simple in nature caused with blunt weapon within about 24 hours. All the seven injuries were reddish contusions on the top of skull, on the back part of right side of scalp, on the left side of scalp, on the left side of face below the eye on the back of right side of chest Upper part, on the front of upper part of side of Chest, and on the upper part of outer aspect of right thigh.

Dr. Mahtab Akhtar (p. W. 2) conducted post‑mortem on the dead body of Muhammad Din, aged about 20 years, on 25‑8‑1971 at 12‑30 p.m. and found the same four injuries which had been noticed in his medico legal report. He died in the hospital on 25‑8‑71 at 1‑45 am. In the opinion of the doctor Muhammad Din deceased died due to shock and toxaemia due to peritonitis resulting from injury to the peritoneum and small intestine caused by injury No. 2 which was sufficient to cause death in the ordinary course of nature. According to the doctor the probable time that elapsed between injuries and death was about 9 to 10 days arid that between death and post‑mortem was about I1 hours.

5. At the trial prosecution examined 17 witnesses, in all. Arshad Mumtaz complainant (P. W. 12), Naseem Ijaz injured (P. W. 13), Anwar‑ul- Haq injured (P. W. 14) and Muhammad Pervaiz (P. W. 16) were examined as eye‑witnesses while the motive was given by the complainant. The recoveries were proved by the Investigating Officer, Malik Muhammad Adam (P. W. 17) while Shaukat Iqbal (P. W. 3). Magistrate 2nd Class, proved the dying declaration (Exit. P. M./3) of Muhammad Din deceased recorded by the witness on 15‑8‑1971. Other formal witnesses were also examined. They all supported the prosecution cue. The statements of doctors before the Committing Magistrate were transferred to the Sessions record. According to report (Exit: P. X.) of the Serologist the earth recoved from the spot was found stained with human blood.

6. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. they denied the allegations, recoveries of weapon and the motive alleged by the prosecution and except the injured appellants all other appellants denied their presence and participation. Bashir Ahmad and Munir Amdad sons of Munshi and Manzoor Hussain altar Boob were injured in the same incident sad tit former two pleaded the right of self‑defence. The version given by Bashir Ahmad son of Munshi is reproduced below:‑

"Nasim Ejaz P. W. had illicit relations with Mst. Nusrat Masih of my apprentice Salim Masih accused, advised Nasi, Ejaz to desist. Nasim Ejaz fought with me over this issue about a month before the occurrence and I got a case registered against him under sec tion 324, P. P. C. Nasim Ejaz had suspicions that I had illicit relations with Mat. Nusrat Masih. He alongwith Pervaiz and Anwarul Haq P. Ws. came to my shop. There was a quarrel in which Nasim Ejaz and Pervaiz received injuries. People in the bazar separated us. A short time thereat, Nasim Ejaz alongwith Muhammad Rafiq, Muhammad Din and Anwarul Haq and Pervaiz and several othese came back armed with deadly weapons and assaulted me and my brother, who was with me. Apprehending danger we teed in self‑defence alongwith Manzoor and several other people of the briar and caused injuries to them. Hidayat Ullah, Salem, Nasir and Bashir son of Mohr Din were not there."

Munir Ahmad son of Munshi stated that his answer was the same as that of his brother. Bashir Ahmad son of Munshi. Manzoor Hussain alias Booti stated as under :‑

"I was present with my Rehri in the bazar when Naseem Rjaz P. W. Muhammad Din. Muhammad Rafiq deceased Anwarul Haq and Pervaiz P. Ws. with some others made a murderous assault on Bashir and Munir accused at their Khokha: I tried to intervene and received injures. Bashir and Munir and other persons from the bazar acting in self‑defence caused injuries to the complainant‑party."

7. The learned trial Judge believed the ocular evidence and found that it was corroborated by the medical evidence but excluded the dying declaration from consideration because according to him it contradicted the ocular evidence. The learned counsel for the appellants has urged that the prosecution version is not worthy of reliance, the defence version be accepted, that Bashir Ahmad (watch‑maker) and Munir Ahmad sons of Munshi caused injuries to the deceased and the prosecution witnesses in exercise of their right of self‑defence and after both of them had suffered injuries at the hands of the deceased and the P. Ws. that Manzoor Hussain alias Booti appellant suffered injuries while trying to rescue Bashir Ahmad (watch‑maker) and Munir Ahmad appellants and that none of the remaining appellants were present nor they participated in the occurrence. He has submitted that in fact two incidents took place on the day of occur rence. In the first incident. Naseem Ejaz, Muhammad Pervaiz and Anwarul Haq P. W. visited shop of Bashir Ahmad (watch‑maker) and had a quarrel with them since Naseem Ijaz P. W. suspected illicit relations between Bashir Ahmad (watch‑maker) and Mst. Nusrat Masih and in that quarrel at the first incident Naseem Ijaz and Muhammad Pervaiz P. Ws. suffered injuries. According to the learned counsel for the appellants a second incident occurred thereafter, when Naseem Ijaz, Muhammad Pervaiz and Anwarul Hag P. Ws. alongwith Muhammad Rafique deceased and Muhammad Din deceased went armed to the shop of Bashir (watch maker) when Munir Ahmad appellant was also present there and apprehending danger from them Bashir Ahmad (watch‑maker) and Munir Ahmed appellants apart from Manzoor Hussain alias Booti appellant and several other people of the bazar caused injuries to the two deceased and the prosecution witnesses in exercise of their right of private defence. The learned counsel for the State has urged that convictions and sentences passed against the appellants be maintained for the cogent reasons given by the learned trial Judge. The learned counsel appearing for the complainant has supported the counsel for the State. We have been taken through the entire evidence which we have read ourselves and have considered it in the light of submissions made by the learned counsel for the parties.

8. The medical evidence proves beyond reasonable doubt that Muhammad Rafiq and Muhammad Din deceased died of violence on account of injuries suffered by them on 15‑8‑1971 and on the same day Bashir Ahmad (watch maker) his brother Munir Ahmad and their friend Manzoor Hussain alias Booti suffered injuries while on the complainant side three of the four eye‑witnesses also suffered injuries. The real question involved in the case is as to which of the versions either of the prosecution or that of the defence is direct. According to the prosecution the occurrence took place on the Kachery Road leading towards the Town Committee, 'Shakargarh which is marred as point No. 1 in the site plan and is at a distance of 5 karams from the khoka of Bashir Ahmad (watch maker) and Munir Ahmad appellants. The blood‑stained earth was also recovered from that place. The defence did not suggest to any prosecution witness that any ‑ blood had fallen inside the khoka of Bashir Ahmad (watch‑maker) or Munir Ahmad appellants which was not recovered and there is no allegation to the effect that the investigating Officer failed to effect recovery of blood stained earth from inside the Khokha of Bashir Ahmad (watch‑maker) appellant. The defence Plea that the occurrence tone place inside the Khokha of Bashir Ahmad (watch‑Maker) appellant has no force We are satisfied that the Cause, time and place of occurrence as alleged by the prosecution stand established.

The prosecution case in the F. I. R., is that on 15-8-1971 at about 4 p.m. Bashir Ahmad (watch‑maker), iris brother Munir Ahmad, his brother‑in‑law, Bashir Ahmad (halwai) and their friends Naseer Ahmad alias Kala and Manzoor Hussain alias Booti appellants were giving beating to Naseem Ijaz P. W. on the Kachery Road going towards the Town Committee, Shakargarh while Sh. Hidayat Ullah appellant had exhorted them to do so. At that time‑ Arshad Mumtaz complainant P. W., and Muhammad Rafiq deceased happened to pass that side and went forward to intervene in order to rescue Naseem Ijaz P. W. from the afore‑mentioned appellants who also attacked them on the lalkara raised by Sh. Hidayat Ullah appellant. Bashir Ahmad (watch‑maker) and his brother Munir Ahmad appellants brought dagger each from their khokhas while brother‑in‑law of the former, Bashir Ahmad (halwai) brought a khauncha from his shop and all the three of them attached Muhammad Rafiq deceased in which Bashir Ahmad (watch maker) delivered a dagger blow to Muhammad Rafiq deceased who fe 1 down. At the trial it was alleged that Bashir Ahmad (watch‑maker) and his brother Munir Ahmad appellants gave one blow each with daggers to Muhammad Rafiq deceased but that appears to be an improvement. In the meantime, Muhammad Din deceased, Anwar‑ul‑Haq and Muhammad Pervaiz P. Ws. Who were related with. Arshad Mumtaz complainant P. W. reached there and tried to rescue Muhammad Rafiq deceased. Oh the lalkara raised by Sh. Hidayat Ullah appellant caught hold of Muhammad Din deceased from his collar when Manzoor Hussain alias Booti with dagger and Naseer Ahmad alias Kala with knife caused injuries to Muhammad in deceased and Bashir Ahmad (halwai) delivered a khauncha blow on the head of Muhammad Din deceased. Anwar‑ul‑Hay and Muhammad Pervaiz P. Ws. antlered injuries at the hands of the appellants while trying to rescue Muhammad Din deceased. I be appellants also suffered some minor injuries. According to the defence version of Bashir Ahmad and Manzoor Hussain alias booti appellants Naseem Ijaz P. W. alongwith Anwar‑ul‑Haq and Muhammad Pervaiz P. Ws. visited the shop of Bashir Ahmad (watch maker) appellant in a quarrel arose between them on account of' previous enmity and suspicion in which Naseem Ijaz and Muhammad Pervaiz P. W. suffered injuries but the people in the bazar separated them and the prosecution witnesses left the place. It was after a short time that the eye‑witnesses except Arshad Mumtaz alongwith the two deceased having armed themselves pith deadly weapons reached the shop of Bashir Ahmad (watch‑maker) appellant where leis brother Munir Ahmad appellant was present. Due to previous enmity and on seeing them armed Bashir Ahmad (watch‑maker) ad Munir Ahmad appellants apprehended danger from them and caused them injuries in the exercise of their right of Pelf defence. Manzoor Hussain ins booti who was incidentally present near the place of occurrence with rehri in the bazar, tried to intervene and suffered injuries while rescuring Bashir Ahmad (watch‑maker) and Munir Ahmad appellants from the eye witnesses and the deceased and some other persons.

The presence of Naseem Ijaz, Anwar‑ul‑Haq and Muhammad Pervaiz e‑witnesses at the time of occurrence cannot be doubted because all three of them, suffered injuries. Arshad Mumtaz P. W. was although not urea yet his presence stands established because F. I. R. was lodged by him promptly, within half an hour of the incident. He did not suffer any injury because he kept on shading separately and did not come forward to interfere due to fear. The defence‑ version that in fact two occurrences took place is not plausible because evidently Muhammad Rafiq and Muhammad Din deceased were not armed and if Naseem Ijaz and Muhammad Pervaiz had come back after suffering injuries and had returned after a short white with the two deceased and Anwar‑ul‑Haq in order to attack the appellants they would have come armed and would have caused major damage to tile party of the appellants. It is not understand able how in the first occurrence Bashir Ahmad (watch‑maker) appellant alone caused injuries to Anwar‑ul‑Haq and Muhammad Pervaiz P. Ws. The defence story of two occurrences is not probable. We are satisfied that only one occurrence took place and in the manner alleged by the pro secution in which the complainant‑party was the sufferer.

The ocular evidence in the case is consistent, uniform and inspires confidence. The contradiction and improvements pointed out by the learned counsel for the appellants are due to omission and are natural with every human being particularly with lapse of time, the motive alleged by the prosecution has not been seriously disputed rather it is admitted that Saleem Masih deceased appellant was an apprentice at the shop of Bashir Ahmad (watch‑maker) appellant and Naseem 1jaz P. W. was suspected of illicit liaison with Nusrat Masih, sister of Saleem Masih appellant since dead the dying declaration of Muhammad Din is ruled out of consideration.

On the evidence on record and in the circumstances of the case we are satisfied that the prosecution version is true. However, no specific part was attributed to Sh. Hidayat Ullah who allegedly carried a revolver but did not use it. The prosecution attributed him only a proverbial lalkara. In the safe administration of criminal justice, we consider it fit to give him benefit of doubt and acquit him. Saleem Masih appellant died his natural death during the pendency in his appeal in this Court and his appeal has abated on that score. As regards the remaining five appellants, we are of the view that they did not share the common object with each other in committing the double murder and in causing injuries to the prosecu tion witnesses and had not formed themselves into an unlawful assembly but it was a case of free fight and a sudden affair in which each one of the aforementioned appellants are individually liable. At the original stage Bashir Ahmad (watch‑maker) appellant son of Munshi alone was attributed a dagger blow to Muhammad Rafiq deceased which resulted in his fall oil the ground and proved fatal and no mention was made of the second injury by Munir Ahmad appellant to that deceased. Therefore, we give benefit of doubt to Munir Ahmad appellant with regard to murder of Muhammad Rafiq deceased: rid consider it fit that Bashir Ahmad (watch‑maker) son of Munshi alone he held liable and convicted under section 302, P. P. C. for that murder and since it was a sudden flare up and no direct enmity existed between them the sentence of Bashir Ahmad (watch‑maker) appellant is liable to be reduced from death to life imprisonment. The conviction of Manzoor Hussain alias 13ooti and Naseem Ahmad alias Kala under section 302,/ 3.1, P. P. C. for the murder of Muhammad Din deceased are maintained but their sentences are liable to be reduced from death to imprisonment for life each. Both of them shared common intention to: ill Muhammad Din as they selected vital parts of the body ant: caused injuries with dagger and knife but one of the injuries No. I proved fate) and it is not ascertainable as to which of the two appellants caused it. The remaining appellants are acquitted of the charges of both the murders by giving them benefit of doubt. The appellants. Bashir Ahmed (watch maker) with dagger, Munir Ahmed also with dagger and Manzoor Hussain alias Booti with danger voluntarily caused hurt to Anwar‑ul‑Haq P. W. and they committed the offence under section 314/34, P. P. C. in prosecution of their common intention. Bashir Ahmed (halwai) son of Mohr Din voluntarily caused injury with khauncha which did not prove fatal and committed offence under section 324, P. P. C. on that score. We hold accordingly.

9. As a result of above discussion, the conviction of Bashir Ahmed (watch makers) appellant son of Munshi under section 302, P. P. C. is maintained but his sentence is reduced to life imprisonment for causing murder of Muhammad Rafiq deceased. For the murder of Muhammad Din deceased the convictions of Manzoor Hussain alias Booti and Nasser Ahmed alias Kale, under section 302/34, P. P. C. are maintained and their sentences are reduced to life imprisonment each. Rest of the appellants are acquitted of the charges for causing murder of Muhammad Rafiq and Muhammad Din. The convictions of Bashir Ahmed (watch‑maker), Munir Ahmed son of Munshi and Mansoor Hussain albs food appellants are altered to that under section 324/34, P. P. C. and their sentence are reduced to already undergone for voluntarily causing hurt to Anwar‑ul‑Haq P. W. The conviction of Bashir Ahmed (halwai) son of Mehr Din appellant is altered the that under section 324, P. P. C. and his sentence is also reduced to already undergone for causing hurt to Muhammad Din deceased with khauncha. The convictions and sentences of Bashir Ahmed (watch‑matter) and Munir Ahmed sons of Munshi, Manzoor Hussain alias Booti, Naseer Ahmed alias Kale and Bashir Ahmed (halwai) appellants other than afore mentioned are set aside. Munir Ahmad son of Munshi and Bashir Ahmed (halwai) shall be set at liberty forthwith if not required in any other case. Sh. Hidayat Ullah appellant is acquitted. His sentence was suspended pending appeal by this Court on 6th August 1974 and his bail bonds are discharged. The appeal of Saleem Masih appellant has abated because of his death during the time his appeal was pending in this court. the appeal is partially accepted to this extent.

The death sentences of Bashir Ahmed (watch‑maker), Munir Ahmed son of Munahi, Bashir Ahmed (halwai) son of Mehr Din, Naseer Ahmed alias Kala and Manzoor Hussain alias Booti appellants are not confirmed.

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