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1984 P Cr. L J 1151

[Lahore]

Before Javid 1qbal ant Rustam S. Sidhwa, JJ

GHULAM ALI AND 5 OTHERS-Appellants

versus

THE STATE-Respondent

Criminal Appeal No. 930 and Murder Reference No. 243 of 1979, decided on 13th December, 1981.

(a) Penal Code (XLV of 1860)-

-- Ss. 302/149, 307/149 & 148--(Murder case)-Appellants by name imputed to have inflicted specific injuries- Evidence regarding over acts attributed, types of weapon used in relation to nature of injuries caused or proper identification not contradictory-Conviction and sentence maintained in circumstances of case.

(b) Penal Code (XLV of 1860)-

-- Ss. 302/149, 307/149 & 148-Appellants given general parts Injuries ascribed to them not shown to have been inflicted by them Falling within probable range of false implication and not identified properly-Appellants given benefit of doubt and acquitted.-[Benefit of doubt].

Dr. Khalid Ranjha for Appellants.

Muhammad Anwar Bhour for A.-G. for the State.

Malik Ashiq Hussain for the Complainant.

Dates of hearing : 6th to 8th, 12th and 13th December, 1981.

JUDGMENT

RUSTAM S. SIDHWA, J

.-Ghulam Ali, Muhammad Nawaz Riaz, Gulzar alias Gulla, Ahma, Mumtaz and Muhammad Ali were tried by an Addi tional Sessions Judge of Sargodha under section 302/307/149/148, P. P. C. for the murder of Muhammad Ali, deceased, Mst. Mumtaz, deceased and Mst. Hayatan, deceased, attempt on the lives of Mst. Daulan P. W. 13, Mst. Aziz Bibi (won over P. W.) and Mst. Fateh Bibi P. W. and for com mitting rioting. The learned trial Judge, by his judgment dated 25th July, 1979,-convicted all the accused under sections 302/149, P. P. C. for com mitting the murder of the three deceased, under sections 307/149, P. P. C. for making a murderous assault on the said three ladies under sections 148, P. P. C. for rioting. Ghulam Ali accused was sentenced under section 302/149, P. P. C. to death on three counts, subject to confirmation by this Court, and to pay a fine of Rs. 1,000 on each count or in default thereof to suffer further R. I. for one year on each count. The remaining six accused were sentenced under section 302/149, P. P. C. to undergo life imprisonment each on each of the three counts with a fine of Rs. 1,000 Court each on each and in default to undergo further R. 1. for one year each on each count. All the accused were sentenced under section 307/149, P. P. C. to R. I. for three years each with a fine of Rs. 400 each or in default thereof to undergo further R. 1. for six months each. All the accused were sentenced under section 143, P. P. C. to one year R. 1. each. It was ordered that in case the sentence of death of Ghulam Ali accused was not confirmed and was altered to any other sentence, all the sentences, except this sentence in default of payment of fine would run concurrently. Similarly, all the sentences awarded to the remaining six accused were ordered to run concurrently and the fine imposed under section 302/149, P. P. C. if realised, was ordered to be paid to the heirs of the three deceased in equal shares. The two appeals (Crl. As. 929/79 and 930/79) preferred by the seven convicts, the reference (M. R. 243/79) forwarded by the trial Judge and the private revision (Cr. Rev. 912/79) filed by Riaz complainant for the enhancement of the sentences of the convicts sentenced to life imprisonment to death and enhancement of fine, are all now before us for disposal.

2. The brief facts of the case are that about 1J years before the occurrence, Amanat Ali son of Piru caste Muslim Sheikh. husband of Mst. Aziz Bibi P. W. resident of Chak No. 41/N. B. died. About 15/20 days after his death, Muhammad Ali, deceased, the brother of Muhammad Riaz P W. abducted the said Mst. Aziz Bibi and performed Nikah with her. At that time, Ghulam Ali, accused, brother of Amanat Ali, deceased, was in Jail in some other case. Muhammad Ali, deceased, after passing 2/3 came back to his home with Mst. Aziz Bibi. About 7/8 months before the occurrence, Ghulam Ali, accused, also came back to his house on bail, and thereafter demanded the restoration of Mst. Aziz Bibi several times, but Muhammad Ali, deceased, refused to restore her. Mst. Aziz Bibi gave birth to a daughter, namely, Mst. Mumtaz Bibi (deceased) who was 7/8 months of age at the time of occur rence. Muhammad Ali deceased had a daughter Mst. Shadan from his first wife Mst. Saidan and about 7/8 months earlier to the occurrence had married her with Allah Ditta son of Shahoo, caste Muslim Sheikh. On this, Ghulam Ali, accused, was annoyed with his father-in-law Shahoo (won over P. W.) and his wife Mst. Hayatan, deceased. Due to strained rela tions with her husband, Mst. Hayatan had gone to the house of her father Shahoo a few days before the occurrence. Muhammad Riaz complainant and Muhammad Ali, deceased, were personal servants of Mahla and Allah Ditta P. Ws. sons of Lala, of their village and used to cultivate their land. On the night intervening 6th and 7th of July, 1977, Mahla and Allah Ditta had the turn of their water till 12.30 mid-night. Riaz P. W. Muhammad Ali, deceased, and Allah Ditta P. W. irrigated the land and handed over the turn of water at 12-30 mid-night to Malik Muhammad Khan Awan. They returned to their houses at about 1-00 a. m. Muhammad Ali deceased slept on the roof of his kotha, where Mst. Aziz Bibi (won over P. W.) alongwith Mst. Mumtaz Bibi, deceased, was already sleeping, while Riaz, Allah Ditta and Muhammad Yar P. Ws, sat in the adjoining Ihata of latter and started smoking Huqqa there. Mst. Fateh Bibi and Mst. Kaniz Bibi P. Ws. were sleeping in the courtyard of Muhammad Ali, deceased. All of a sudden, Muhammad Riaz, Allah Ditta and Muhammad Yar heard fire-arm report from the roof of Muhammad Ali, deceased. On the alarm raised by Mst. Fateh Bibi and Mst. Kaniz Bibi, they rushed there. It was a moonlit night. They saw Ghulam Ali, accused, armed with double barrel gun, Gulzar alias Gulla and Riaz, accused armed with pistols, firing at Muhammad Ali, deceased and Mst. Aziz Bibi (won over P. W.) and were raising lalkaras that they would not leave them alive. They also saw Nawaz, Ahmad Mumtaz and Muhammad Ali, accused, armed with lathis, standing in the courtyard and raising lalkaras that if any one tried to get up from their cots they would also be killed. In the meantime, Ghulam Ali, Gulzar alias Gulla and Riaz, accused, got down from the roof. Mst. Fateh Bibi got up from her cot, whereupon Ahmad, Mumtaz, Nawaz and Muhammad Ali accused inflicted lathi blows on her. Mst. Kaniz Bibi P. W. ran away. Out of fear, Riaz, Allah Ditta and their companion did not go ahead. The accused then left the place. The P. Ws. went on the roof of the kotha and found Muhammad Ali and Mst. Mumtaz lying dead on a cot and Mst. Aziz Bibi lying injured with fire-arm injuries. In the meantime, they heard gun, report and noise from the house of Shahoo P. W., whereupon Riaz P. W. also went there. He found Mst. Hayatan, deceased, daughter of Shahoo, lying injured. She had fire-arm and lathi in juries on her person. Mst. Daulan had also received lathi injuries during the occurrence. Shahoo and Mst. Shahban (won over P. Ws.) were present at the spot. They told Riaz P. W. that Ghulam Ali, armed with gun, Gulzar alias Gulla and Riaz, armed with pistols and Nawaz, Ahmad, Mumtaz and Muhammad Ali, accused, armed with lathis, had come to their house and caused injuries to Mst. Hayatan and Mst. Daulan. They stated that Ghulam Ali, accused, had fired at the leg of Mst. Hayatan and that they had identified the accused in the moonlight. Leaving Allah Ditta, Mahla, and Mammu P. Ws. near the dead bodies of Muhammad Ali and Mst. Mumtaz deceased, Riaz P. W. 10 took Fateh Bibi and Mst. Aziz Bibi to Civil Hospital, Sargodha, and got them admitted there. Shahoo (won over P. W.) also brought Mst. Daulan and Mst. Hayatan to Civil Hospital, Sargodha, and got them admitted there. After obtaining the medico-legal report of Mst. Aziz Bibi P. W. Muhammad Riaz P. W. 10 reached Police Station, Sadar Sargodha at 6.30 a. m. on 7th July, 1977 and lodged F. I. R. Exh. P. S. under section 148/307/302,1149, P. P. C. which was recorded by P. W. 15 Lal Hussain Shah. the then S.-I./S. H. O. of the Police Station. The Investigating Officer then proceeded to the spot and, after preparing necessary papers, sent the dead bodies of the three deceased for post-mortem examination. Blood-stained earth, where the three deceased were murdered, was taken into possession. Two crime empties P. 14/1-2 were collected from the roof of the house of Muhammad Ali, deceased, and taken into possession by the police vide memo. Exh. P. U.

3. The same day at 5 a. m. Dr. Muhammad Azeem Majoka P. W. 1, medically examined Mst. Aziz Bibi (won over P. W.) and found seven gunshot wounds of entrance and one gunshot wound of exit on various parts of her body, including her chest and abdomen. He also examined Mst. Hayatan, deceased (who was then alive) and found four gunshot wounds of entrance and one of exit on both her legs and two lacerated wounds on the left knee and right middle finger. The gunshot wound on the right leg was found to be grievous. The same doctor also examined Mst. Fateh Bibi (who died during trial) and found a swelling and a contu sed wound on her right forearm and head. The injury on the forearm was grievous, while that on the bead was simple. Both were blunt weapon injuries. The same doctor also examined Mst. Daulan and found two contusions and a swelling on various parts of her body, all of which blunt weapon injuries were simple.

4. On the same day at 6 p.m. Dr. Inam ul Haq P. W. 14 conducted the post-mortem examination on the dead body of Muhammad Ali, deceased, and found ten gunshot fire-arm wounds of entrance and two of exit on various parts of his body, including the chest. Death was due to shock and internal haemorrhage caused by multiple gunshot fire-arm wounds which were sufficient to cause death in the ordinary course of nature. The same doctor thereafter conducted the post-mortem examina tion on the dead body of Mst. Mumtaz, deceased, and found six gunshot fire-arm wounds of entrance and one exit .on various parts of her body. The gunshot entrance wound 4" x " on the left cheek had fractured the lower jaw. The death was due to shock and haemorrhage which was the result of the gunshot fire-arm wounds and which were sufficient to cause death in the ordinary course of nature.

5. On 9th July, 1977 Riaz and Gulzar, accused, were arrested by Inayat Ali A. S.-1. P. W. 8. On their search it was found that Riaz, accused, had a revolver P. 5 with two cartridges P. 7/1-2 on his person, and Gulzar, accused, had a revolver P. 12 with two cartridges P. 13/ 1-2 on his person, which were taken. into possession by the police officer vide memos. Exhs. P. K. and P. R. respectively. Muhammad Afzal P. W. 6, Inayat Ali A. S. 1. P. W. 8 and Abdul Ghafoor (given up P. W.) attested the memo. Exh. whereas Yousaf Shah, F. C,, P. W. 9, Lal Hussain Shah S., 1. P. W. 15 and Shahoo (won over P. W.) attested the memo. Exh. P. R. The same day, Ahmad Mumtaz, Muhammad Ali and Nawaz, accused, with their respective weapons appeared before Lal Hussain Shah, S. L, P. W. 15, who not only arrested them, but took into possession their lathis P. 8, P. 9, P. 10 and P. 11 respectively, vide memos. Exhs. P. M., P. N., P. O. and P. Q. The said recoveries were made in the presence of Inayat Ali A. S. L, P. W. 8, Riaz P. W. 10, Lal Hussain Shah S. I., P. W: 15 and Shahoo (won over P. W.).

On 10th July 1977 Mst. Hayat Bibi died in the hospital. Dr. Syed Muhammad Firdous P. W. 2 conducted the post-mortem examination on the dead body of the deceased and found the same injuries on her person as were previously found by Dr. Muhammad Azeem Majoka P. W. 1.

6. On 15th July, 1977 Ghulam Ali, accused, was arrested by Nazir Hussain Cheema, Inspector P. W. 7. At the time of his arrest, he had an unlicensed gun P. 6 with two live cartridges P. 15/1-2, which were taken into possession vide memo. Exh. P. L. in the presence of Inayat Ali A. S. I. P. W. 8, Lal Hussain Shah, S. I., P. W. 15 and Muhammad Zaman (won over P. W.).

7. Unlicensed gun P. 6 and the two crime-empties P. 14/1-2 recovered from the kotha of Muhammad Ali, deceased, were sent to the Forensic Science Laboratory for examination, where it was found that the crime empties matched with the said gun. After completing necessary investiga tion, the challan ............

8 . ...............

9. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical evidence, convicted and sentenced all the accused, as stated in para. 1 above.

10. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The evidence as regarding the motive is furnished by Muhammad Riaz P. W. 10. According to his testimony, about one and a half years before the occurrence, Amanat Ali son of Peru, caste Muslim Sheikh, husband of Mst. Aziz Bibi P. W., resident of Chak No. 41/N. B., died. Muhammad Ali, deceased, abducted Mst. Aziz Bibi (won over P. W.) about a month after the death of her husband, and took her away to an unknown place. He later married her. At the time of her abduction, Ghulam Ali, appellant, was in jail as an accused in some case. Muhammad Ali, deceased, remained away from the village for about one and a half years. About two months before the occurrence, Muhammad Ali, deceased, returned to the village alongwith his wife Mst. Aziz Bibi (won over P. W.) In the meantime, about 8/9 months before the occurrence, Ghulam Ali, appellant was also released on bail. He returned to the village and demanded the restoration of Mst. Aziz Bibi (won over P. W.) from Muhammad Ali, deceased, as she was the widow of his deceased brother Amanat Ali. Muhammad Ali, deceased, refused to do so, as Mst. Aziz Bibi won over (P. W.) had already given birth to a daughter, namely, Mst. Mumtaz, deceased, Ghulam Ali, appellant, then made an alternative demand that the deceased should give the hand of his daughter Mst. Shadan from his first wife Mst. Saidan to him in marriage, but Muhammad Ali, deceased, did not agree to this demand either. Muhammad Ali, deceased, married his daughter Mst. Shadan with Allah Ditta, the son of Shahu (won over P. W.) and a brother of Hayatan Bibi, deceased. Due to this Ghulam Ali, appellant, was not only annoyed with Muhammad Ali, deceased, and his ex-sister-in-law, Mst. Aziz Bibi (won over P. W.), but also with his wife, Mst. Hayatan Bibi, deceased. Notwithstanding a lengthy cross-examination conducted on Muhammad Riaz P. W. 10 and the other eye-witnesses, nothing was brought out to show that the said story was not true or could not be accepted without certain reservations. In these circumstances, we have no hesitation in holding that Ghulam Ali, appellant, had the motive to commit the offences which are presently imputed to him. No motive stands proved against the rest.

11. The ocular account in this case is furnished by Muhammad Riaz Pr W. 10, Allah Ditta P, W. 11, Mst. Kanizan P. W. 12 and Mst. Daulan P. W. 13. Shahoo, Afst. Sahban, Mst. Aziz Bibi and Muhammad Yar were also cited in the challan, but having been won over, were given up. Mst. Fateh Bibi P. W. was also cited in the challan, but having died after the occurrence, could not be produced. Muhammad Riaz P. W. 10, Allah Ditta P. W. 11, Mst. Kanizan P. W. 12, Mst. Aziz Bibi (won over P. W.), Muhammad Yar (won over P. W.) atld Mst. Fateh Bibi (P. W. who died after the occurrence) were witnesses of the first occurrence which took place at the residence of Muhammad Ali, deceased, whereas Mst. Daulan P. W. 13 and Shahoo (won over P. W.) and his first wife Mst. Sahbah (won over P. W.) were the witnesses of the second occurrence that took place at the residence of Shahoo (won over P. W.) Before dealing with the ocular account, it is necessary to state the inter se relationship of the witnesses, through the pedigree table given below :-

It is now clear that Muhammad Riaz, P. W. 10, is the real brother of Muhammad Ali, deceased, brother-in-law of Mst. Aziz Bibi (won over, P.W.), the paternal uncle of Mst. Mumtaz, deceased, the nephew of Mst. Daulan, P. W. 13 and the maternal cousin of Mst. Hayatan, deceased. Allah Ditta, P.W. II, is the landlord of Muhammad Ali, deceased but is not related to any of the deceased or the injured witnesses, but he happens to be the brother of Muhammad Yar (won over P.W.), who saw the first occurrence, and of Mahla, under whom Muhammad Riaz, P.W. 10, was a tenant Mst, Kanizan, P. W. 12, is the real sister of Muhammad Riaz, P.W. 10 and, therefore, related to the three deceased and the three injured persons, as stated above. Mst. Daulan, P.W. 13's connection with Muhammad Ali deceased's side of the family has already been stated. She is the second wife of Shahoo (won over P.W.), the mother of Mst. Hayatan deceased and the mother-in-law of Ghulam Ali, appellant. The first occurrence took place at the residence of Muhammad Ali, deceased, and the second at the residence of Shahoo (won over P. W.). Both these places are not far apart. The occurrence took place in the small hours of the morning at 2 a.m. on 7th July, 1977. Muhammad Ali, deceased, with his wife, Mst. Aziz Bibi (won over P. W.) and his minor daughter, Mst. Mumtaz deceased, was sleeping on the roof of his house, whereas his mother Mst. Fateh Bibi and real sister Mst. Kanizan, P. W. 12, were sleeping in the courtyard down below. During the days of occurrence, Mst. Kanizan, P. W. 12, was staying with her mother Mst. Fateh Bibi (P.W. who died after the occurrence) and her brother Muhammad Ali, deceased, as she had strained relations with her husband, Muhammad Riaz, P. W. 10 and Allah Ditta, P. W. 11 were smoking Huqqa in the Haveli of the latter's brother, Muhammad Yar (won over P. W.), at the time of occurrence, Muhammad Ali, deceased, Muhammad Riaz, P.W. 10 and Allah Ditta, P.W. 11, had earlier gone-to irrigate the land of Mahla, situate near the village school. After watering Mahla's land up to 12.30 (after mid-night) they had come back to the village Muhammad Ali, deceased, had gone to his residence and turned into bed, where his wife and minor daughter were sleeping on the roof of his house. Muhammad Riaz, P. W. 10 and Allah Ditta, P. W. 11. had gone to the Haveli of the latter's brother, namely, Muhammad Yar (won over P. W.), where they were smoking Huqqa for about an hour and a quarter, till the occurrence occurred Muhammad Riaz, P. W. 10, Allah Ditta, P. W. 11 and Mst. Kanizan, P. W. 12, are, therefore, natural witnesses to the first occurrence. In the same manner, Shahoo (won over P. W.) and his first wife Shahoo won over P. W.), his second wife Mst. Daulan, P. W. 13 and his daughter, Mst. Hayatan, deceased (out of his second wife) were sleeping on their charpoys in the courtyard of their house when the second occurrence took place immediately after the first. As such, Mst. Daulan, P. W. 1.3, is a natural witness to the second occurrence. None of the eye-witnesses had any previous enmity or animosity with any of the appellants to implicate any of them on a capital charge of murder. The inmates of the house of Muhammad Ali, deceased, were awakened by the reports of gunshots coming from the roof of kotha where Muhammad Ali was sleeping. They all got up and saw Ghulam Ali, appellant, armed with a gun, and Gulzar and Riaz, appellants, armed with pistols, on the roof, where Muhammad Ali, deceased, and his wife, Mst. Aziz Bibi (won over P. W.), and his minor daughter, Mst. Mumtaz, deceased, were sleeping. They also saw the remaining four appellants, armed with lathis, standing in the courtyard. According to the statement of Muhammad Riaz, P. W. 10, in the F.I.R. Exh. P.S., he saw Ghulam Ali, Gulzar and Riaz, appellants, firing at Muhammad Ali, deceased, and his wife Mst. Aziz Bibi and raising lalkaras. He also stated that the said three appellants then came down into the courtyard, at which stage his mother, Mst. Fateh Bibi (who died after the occurrence), got up from her charpoy, whereupon the four appellants, who were armed with dangs, injured her. At the trial Muhammad Riaz, P. W. 10, stated that Ghulam Ali, appellant, armed with gun, and Gulzar and Riaz, appellants, armed with pistols, were standing on the roof of Muhammad Ali deceased's kotha, when he first saw them and they had already killed Muhammad Ali; deceased, by firing at him before their arrival there. He then later stated that Ghulam Ali, appellant, fired at Muhammad Ali and Mst. Mumtaz, deceased, and Mst. Aziz Bibi (won over P.W.), while standing on the roof and injured them, whereafter Ghulam Ali, Riaz and Gulzar, appellants got down from the roof and the remaining four appellants, who were armed with lathis, caused injuries to his mother, Mst. Fateh Bibi. In cross-examination, he further stated that only two blows were given to his mother, Mst. Fateh Bibi, one by Nawaz, appellant, on her arm and the other by Ahma, appellant, on her head. Allah Ditta. P. W. 11, in his police statement stated that when he and Riaz, P. W. 10 and Muhammad Yar (won over P. W.) reached the Haveli of Muhammad Ali, deceased, on hearing reports of gunshots, he saw Ghulam Ali, appellant, armed with a gun, and Gull and Riaz, appellants, armed with pistols, standing on the roof of the kotha of Muhammad Ali, deceased, and firing at Muhammad Ali, deceased, Mst. Mumtaz, deceased and Mst. Aziz Bibi (won over P. W.). He also stated that the other four appellants, who were armed with lathis, injured Mst. Fateh Bibi (who died after the occurrence). He supported this story also at the trial. In cross-examination, he stated that he lived in the Haveli of his brother Muhammad Yar (won over P. W.), that he heard two or three reports of gunshots whilst he was in the Haveli and smoking huqqa with Muhammad Riaz, P. W. 10 and Muhammad Yar (won over P. W.) ; and that they then ran for a distance of about 12/13 karams to reach the haveli of Muhammad Ali. deceased. Mst. Kanizan, P. W. 12, in her police statement stated that she woke up on hearing reports of gunshots. She saw Ghulam Ali. appellant, armed with gun, and Gulzar and Muhammad Riaz, appellants, armed with pistols, on the roof of the kotha of her brother and that the three appellants fired at her brother, his wife and minor child. She also stated that the other four appellants, were armed with lathis, inflicted injuries on her mother, Mst. Fateh Bibi (who died after the occurrence) with their lathis. At the trial she repeated the story as regards the appellants who were armed with fire arms having fired at Muhammad Ali, deceased, and his wife and child, but stated that only Nawaz and Ahmad, appellants, out of the four appellants who were armed with lathis, injured her mother, Mst. Fateh Bibi (who died after the occurrence). In cross-examination, he admitted that Mahla, brother of Allah Ditta, P. W. 11, was pursuing their case on their behalf and that Mumtaz, appellant, had muffed his face at the time of occurrence and that she had only seen him from his back. She denied the suggestion that Ahmad, Riaz, Muhammad Ali, Gulls and Mumtaz, appellants, had been falsely implicated by them at the instance of Allah Ditta, P. W. 11, his brother Mahla and one Muhammad Khan Awan of their village. All these three eye-witnesses admitted that at the time of occurrence the night was moonlit. As regards the second occurrence, Muhammad Riaz, P. W. 10 in the F.I.R. Exh. P. S., stated that when he reached the house of Shahoo (won over P.W.), he was informed by him that the same three appellants, armed with fire-arms, and the same four appellants, armed with lathis, had come to his house and injured his wife and daughter and that Ghulam Ali, appellant, had injured Mst. Hayatan, by firing at her legs. At the trial, he stated that he was informed by Shahoo (won over P. W.) and Mst. Daulan, P. W. 13 that the three appellants, armed with fire-arms, had fired at Mst. Hayatan, deceased, and caused her injuries and that the remaining four appellants, who were armed with lathis, bad inflicted injuries to Mst. Daulan, P. W. 13, alone. Mst. Daulan, P. W. 13, in her police statement bad mentioned that all the three appellants, armed with fire-arms, had fired at Mst. Hayatan, deceased, and all the four appellants, armed with dangs, had inflicted injuries on her and Mst. Hayatan, deceased, but at the trial she stated that only Ghulam Ali, appellant, had fired at her daughter, Mst. Hayatan, thrice with his gun and that the four appellants, who were armed with dangs, had inflicted injuries on her and Mst. Hayatan, deceased. One thing is clear from the statement of Muhammad Riaz, P. W. 10, that when he and Allah Ditta, P.W. 11 and Muhammad Yar (won over P. W.) rushed to the haveli of Muhammad Ali, deceased, on hearing reports of gunshots, he saw Ghulam Ali, Gulls and Riaz, appellants, with their fire-arms, standing on the roof of Muhammad Ali's kotha and they had already killed Muhammad Ali, deceased, by firing at him before their arrival there. He further stated that in his presence Ghulam Ali, appellant, fired at Muhammad Ali, deceased, Mst. Mumtaz, deceased, and Mst. Aziz Bibi (won over P. W.) whilst standing on the roof of the kotha. It is thus clear that Muhammad Riaz, P. W. 10 and Allah Ditta, P. W. 11, did not personally see Riaz and Gulzar, appellants, firing at Muhammad Ali, deceased, his wife or minor daughter with their respective pistols. Mst. Kanizan, P. W. 12, in her evidence refers to having seen Gulla and Riaz, appellants, firing with pistols at Muhammad Ali, deceased and Mst. Aziz Bibi (won over P. W.), but it cannot be forgotten that when she woke up on hearing gunshots, she bid hurriedly behind a kikar tree and she may not have properly seen who fired at who on the roof of the kotha. Her statement that she saw Gulzar and Riaz, appellants, firing with their pistols on the roof of Muhammad Ali's kotha may be due to her imagica tion caused in the excitement of the moment, because there is no bullet injury on the person of Muhammad Ali, deceased, Mst. Mumtaz, deceased, or Mst. Aziz Bibi (won over P. W.). None of the three eye witnesses refer to the fact that Gulla and Riaz, appellants, were armed with 12 bore carbines or "Desi Sakhta" pistols. One large pellet was recovered from an injury on Mst. Aziz Bibi (won over P. W.) and the fire-arm injuries on her and the three deceased were declared to be gunshot injuries by the doctor. Still further, the statement of Mst. Daulan, P. W. 13, as regards the second occurrence also shows that only Ghulam Ali, appellant, alone fired at her daughter, Mst. Hayatan, deceased. Mst. Hayatan, deceased, also did not have on her person any bullet injury. It would, therefore, appear that Riaz and Gulzar, appellants, did not cause any injuries to anybody with their respective pistols in both the occurrences. As regards the four appellants, who were armed with dangs, and were alleged to have inflicted injuries on Mst. Fateh Bibi (who died after the occurrence) in the first occurrence and later Mst. Daulan, P. W. 13 and Msr Hayatan, deceased, in the second part of the occurrence. the evidence of Muhammad Riaz P. W. 10, Allah Ditta P. W. 11 and Mst.Kanizan P. W. 12 elearly shows that only Nawaz and Ahma, appellants, inflicted the said injuries on Mst. Faieh Bibi (who died after the occurrence) in the first occurrence and the evidence of Mst. Daulan P. W. 13 very clearly shows that all the four appellants, armed with dangs, injured her and Mst. Hayatan, deceased. in the second occurrence. The lacerated wound on the inner aspect of left knee of Mst. Hayatan, deceased, appears to be a pellet injury caused by a stray pellet from the shot which injuried her left thigh (corresponding to injury No. 2 on her person, as stated by the doctor) and the lacerated wound on her right middle finger also appears to be by a stray pellet, but in any case not a dang, Riaz P. W. 10 clearly mentions that when Shahoo (won over P. W.) and Daulan P. W. 13 gave him the story of the second occurrence, they stated that the four appellants who were armed with dangs had only injured Mst. Daulan P. W. 13. Thus, two alleged blunt weapon injuries found on the person of Mst. Hayatan, deceased, are in actual fact not blunt weapon injuries. As regards the three blunt weapon injuries on Mst. Daulan P. W. 13, the swelling on the back of her head appears to be through a fall, as the same does not give the impression of being an injury by a dang. This, therefore, only leaves Mst. Daulan P. W. 13 with two simple blunt weapon injuries on her person. It would, therefore, appear that not all the four appellants inflicted dang injuries on Mst. Daulan P. W. 13. It is true that none of the eye-witnesses have any enmity or animosity with-any of the appellants as to falsely involve them on a capital charge of murder, but the fact that one or more of them could be falsely involved at the instance of Allah Ditta P. W. 11 and his brother Mahla or some other person, cannot be entirely overlooked. It has come on the record that Mahla, brother of Allah Ditta P. W. 11 was convicted under section 307, P. P. C. for injuring Mahabati and Salabati and the husband of the paternal aunt of Gulzar and Riaz appellants, pursued the case on behalf of the injured, as they were his tenants. In these circumstances, the fact that Gulzar and Riaz, appellants, fell within the probable range of false involvement at the instance of Mahla and Allah Ditta P. W. I1 cannot be totally excluded. As we have already held above, these two appellants did not cause any injuries to any of the deceased or the injured witnesses with their pistols. As regards Mumtaz, appellant, who was alleged to be armed with lathi and to have inflicted injuries on Mst. Daulan P. W. 13 and Mst. Hayatan, deceased it is clear from the statement of Mst. Kanizan P. W. 12 that he had muffled his face at the time of the first occurrence and she had only seen him from his back. if he had so muffled his face for the first occurrence, we have no reason to believe that he would not have muffled his face for the second occurrence. According to the defence, Mumtaz, appellant, had enmity with one Muhammad Khan Awan, who was a neighbour of Shahoo (won over P. W.). Mst. Daulan P. W. 13 admitted that the house of Muhammad Khan Awan adjoined her house, but Riaz P. W. 10 in cross-examination expressed ignorance about any family feud between the family of Mumtaz, appellant, and Muhammad Khan Awan of his village. The fact that the family feud was not expressly denied is not without significance. Mumtaz appellant, belongs to a different chak, two miles from the village where the occurrence occurred. The probability that he could be named as an assailant at the instance of Muhammad Khan Awan, who was a neighbour of Shahoo (won over P. W), cannot be totally excluded. Still further, Muhammad Ali, appellant, is a stepbrother of Allah Ditta p. W. 11. Allah Ditta P. W. 11 denied the suggestion that Mst. Khatoon, the step-mother of Muhammad Ali, appellant, had transferred her house in which Muhammad Ali, appellant and his father Noora were living, against his wishes and that of his brothers, to Muhammad Ali appellant, and, therefore, they had falsely involved Muhammad Ali, appellant, in the case. Notwithstanding the said denial, the probability of false involvement of Muhammad Ali, appellant, at the instance of Allah Ditta P. W. 11 and his brother Mahia cannot be totally excluded. As already stated above, Mumtaz and Muhammad Ali, appellants, did not inflict any injury to any one in the first occurrence and as already demonstrated earlier, only two effective blunt weapon injuries appear on the person of Mst. Daulan P. W. 13 in respect of the second occur rence. Ghulam Ali, appellant alone bore vengeance and had the motive to kill Muhammad Ali, deceased, and his own wife Mst. Hayatan, deceased, as has been found in the present case, and, at best, Muhammad Nawaz, appellant can be saddled with the responsi bility of having assisted Ghulam Ali, appellant, in the matter, as he was his cousin. The recovery of the crime empties from the roof of Muhammad Ali's kotha which matched with the gun P. 6 produced by Ghulam Ali, appellant, strongly prove his participation. The recoveries were not even challenged by the learned counsel for the appellants. As regards Muhammad Nawaz, appellant, all the witnesses of both the occurrences directly involve him in causing injuries to Mst. Fateh Bibi (who died after the occurrence), Mst. Daulan P. W. 13 and Mst. Hayatan. He is specifically named and atributed specific injuries. His participation cannot be doubted. The same is the position with Ahma, appellant, whose participation stands proved. As regards the other four appellants, their participation is not free from doubt. They are not Muslim Sheikhs. One is a Sandarana, the second is an Awan, the third is a Bheekh and the fourth is a Chaddar. Why would so many persons out of sheer friendship participate with Ghulam Ali, appellant, in such a heinous crime of murder at two different places, is not fathomable. In these circumstances, for the purposes of safe dispen sation of justice, we would hold that only such of the appellants who are by name imputed to have inflicted specific injuries to any of the deceased or the injured witnesses and against whom there is no contradiction in the evidence as regards the overt acts attributed to them or the types of weapon used in relation to the nature of injuries caused or as regards their proper identification, were those who were present at and participated in the occurrence. Riaz, Gulzar, Mumta and Muhammad Ali, appellants. who have been given general parts, and against whom there is some material to show that they did not inflict the injuries so ascribed to them, or they fall within the probable range of false implication, or could not be properly identified should be safely excluded. Applying this rule of safety, we hold that Ghulam Ali, appellant, is liable for having fired at and having killed Muhammad Ali, deceased, Mst. Mumtaz, deceased, and Mst. Hayatan, B deceased, and for having injured Mst. Aziz Bibi (won over P W) and that Ahma and Nawaz, appellants, are guilty for having inflicted dang injuries on Mst. Fateh Bibi (who died after the occurrence) and Mst. Daulan P. W. 13. The remaining appellants are entitled to the benefit of doubt.

12. This now leaves us with the question of sentence. The conviction of Ghulam Ali, Muhammad Niwaz and Ahma, appellants, is converted from section 302/149, P. P. C. on three counts to that under section 302/34, P. P. C. on three counts. The sentences as already awarded by the trial Judge, are maintained. Learned counsel for the appellants, during arguments, filed an application on behalf of Ghulam Ali, appellant to show that Shahoo (won over P. W.) had forgiven Ghulam Ali, appellant, with regard to the murder of his daughter, Mst. Hayatan, deceased. We would like to point out that the said application does not show that any compensation was paid by Ghulam Ali, appellant, to the heirs of Mst. Hayatan, deceased. In any case, Ghulam Ali, appellant, committed a heinous crime by not only firing at and killing Muhammad Ali deceascd, and his daughter Mst. Mumtaz, deceased, and injuring his wife Mst. Aziz Bibi (won over P. W.) at the residence of Muhammad Ali, deceased, but thereafter carrying his wrath to the house of his father-in-law and there firing at and killing his own wife, Mst. Hayatan, deceased. There are no mitigating circumstances to relieve Ghulam Ali, appellant, from the maximum sentence. Even otherwise, the application submitted on behalf of Shahoo (won over P. W.) does not relieve Ghulam Ali. appellant, from his liability with regard to the murders of Muhammad Ali, deceased, and Mumtaz Bibi, deceased, as their heirs have not compromised the matter with Ghulam Ali appellant. In these circumstances, Ghulam Ali, appellant is liable for the maximum sentence provided under section 302/34, P. P. C. on all the three counts. In these circumstances, we have maintained the sentences of Ghulam Ali, Niwaz and Ahma, appellants, as awarded by the trial Judge on the capital charges of murder on all the three counts. The sentences of death awarded to Ghulam Ali, appellant, on each of the three counts is confirmed. Ghulam Ali, Ahma and Niwaz, appellants, are convicted under sections 325/34, P. P. C. on three counts for causing injuries to Mst. Aziz Bibi, Mst. Fateh Bibi and Mst. Daulan P. W. 13 and we sentence them to two years' R. I. with a fine of Rs. 400 each on each of the three counts or in default thereof to suffer further R. I. for six months each on each of the three counts. The convictions and sentences of all the appellants under sections 307/149 and 148, P. P. C. are hereby set aside, The sentence awarded to Ahma and Muhammad Niwaz, appellants shall run concurrently. In view of section 382-B, Cr. P. C., the periods of detention undergone by Ahma and Muhammad Niwaz, appellants as under-trial prisoners, shall be treated as periods of detention undergone by them as convicts.

13. For the foregoing reasons, the appeals stand fully accepted qua Riaz, Gulzar alias Gulla, Muhammad Ali and Mumtaz appellants and their convictions and sentences are set aside. They shall be released forthwith, if not required in any other case. Fines, if any recovered from them, shall be refunded to them. The appeals qua Ghulam Ali, Muhammad Nawaz and Ahma, appellants, stand partly accepted in terms of alteration of conviction and reduction in sentences, as stated above. There being no merit in the private revision (Crl. Rev. 912/79) filed by Muhammad Riaz, complainant, the same is dismissed in limine.

M.Y.H. Death sentence confirmed.

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