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Criminal Appeals Nos. 125 and 126 of 1980, heard on 30th April, 1986.

(Against judgment of Lahore High Court, Lahore in Criminal Appeals Nos. 1274 and 1982 of 1976, Criminal Revision No. 673 of 1977 and Murder Reference No. 7 of 1977).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302/307/149‑‑Appeals against acquittal /conviction and enhancement of sentence‑‑Leave granted to complainant as well as to convicts to examine correctness of impugned judgment of High Court.

‑‑‑Ss. 302/307/148 & 149‑‑Six persons killed and eight injured seriously in attempt on their lives‑‑Convictions challenged‑‑Dispute over possession /cultivation of land‑‑Plea of right of private defence of property repelled‑‑Complainant party being unarmed and there being no show of force on their side, accused could have no reasonable apprehension that death or grievous hurt would be consequence if right of private defence of property was not exercised‑‑Even if they had any such right they clearly far exceeded it as legal restraints attaching to exercise of such a right were altogether ignored and on the contrary their wanton act was a clear proof of vindictiveness and maliciousness with which it was exercised‑‑Convicts, held, were rightly denied protection of exercise of a right of private defence of their property.

Ahmad and 3 others v. The State P L D 1971 S C 720 rel.

‑‑‑Ss. 302/307/149 & 148‑‑Appeal against acquittal‑‑Interference by Supreme Court‑‑Appreciation of evidence‑‑High Court doubting participation of some convicts in incident, gave benefit of doubt and acquitted them‑‑Order impugned‑‑Held: This was a view of evidence and material on record which could be taken and was not, on face of it, perverse or opposed to any principle of law‑‑Acquittal, held, was not liable to interference on ground that a different view could also possibly be taken of that evidence.

‑‑‑S. 307/ 149‑‑Appeal against conviction‑‑Non‑production of injured witnesses‑‑Effect of‑‑Injured witnesses not produced at trial on ground that they had been won over‑‑Inference drawn that they were not supporting prosecution case in respect of their injuries‑‑In their absence for such a reason it could not be held that they were subjected to murderous assault and received injuries on account of it‑‑Conviction set aside.

‑‑‑Ss. 302/307/149 & 148‑‑Sentence of death‑‑Whether warranted‑‑Fine and compensation‑‑Six persons killed and eight seriously injured‑‑Dispute over possession /cultivation of land‑‑Right of private defence of property‑‑On finding that entry of complainant party on land and their ploughing of it was not strictly in exercise of their lawful rights over it and amounted to interference with possessory rights of convicts, sentence of death in case of all of them, held, was not called for sentence of death of some of convicts reduced life imprisonment but fine and compensation awarded being grossly inadequate and insufficient to meet requirements of law, enhanced.

Maqbool Elahi, Advocate Supreme Court and Sh. Salahuddin Ahmed, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 125 of 1980).

Ijaz Hussain Batalvi, Senior Advocate Supreme Court and Iqbal Ahmad Qureshi, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 126 of 1980) .

M. Bilal, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate‑on‑Record for the State (in both Appeals).

Ijaz Hussain Batalvi, Senior Advocate Supreme Court (in Criminal Appeal No. 125 of 1980) and Ch. Muhammad Aslam, Advocate‑on‑Record (absent) for Respondent No. 2.

Dates of hearing: 19th and 30th April, 1986.

Leave to appeal was granted to the complainant as well as to the convicts, to examine the correctness of the judgment of the Lahore High Court, Lahore, dated 17th of January, 1979. The complainant Dost Muhammad feels aggrieved by the acquittal of three of the accused convicted by the trial Court, namely, Muhammad Khan and Gehna Khan sons of Ahmad Khan and Ali Khan son of Muhammad Khan having given up his grievance against the acquittal of Matah Khan at the leave granting stage, and the inadequacy of fine/ compensation awarded (Rs.1,000 to each only), though in the occurrence, and at the hands of the accused, six persons were killed and eight others seriously injured in the attempt on their lives. In the other appeal, the convicts feel aggrieved by the rejection of their appeal against their conviction and sentence under sections 302, 307/149 and 148, P.P.C. and the confirmation of the sentence of death on one of them (Qasim Khan). There is yet another category of convicts, five of them, now that Habib Khan has died pending appeal, who have appealed as of right against the enhancement of their sentence to death by the High Court by the impugned judgment.

The prosecution case in brief is that Killas Nos. 11, 12 and 13 of Square No. 43 in Village Kiran, P.S. Qadirpur, District Jhang, originally belonged to Fateh Khan, a cousin of the complainant Dost Muhammad (P.W. 13). During the consolidation proceedings in the village in the year 1967, this land was allocated to Gehna Khan son of Shera accused (since dead). As Fateh Khan died, he was succeeded by his widow Mst. Manzooran and his daughter Mst. Kanizan. The complainant on their behalf appealed against the scheme of consolidation and as a result of a compromise, a part of the land measuring Kanals 9 Marlas out of 2 Kanals 19 Marlas of Kills No. 11 which is distinguished as No. 11/1/2 was re‑allocated in the name of Mst. Manzooran and others. Dost Muhammad claimed to have obtained possession of that land through Ahmad (P.W. 24) who was its tenant. On the 28th of July, 1974 at about 6 a.m. the five male deceased persons went with their ploughs in order to prepare this land for sowing and started ploughing it. They had hardly ploughed a portion of the land when the appellants Qasim, Matah Khan, Ata Khan son of Ahmad, Muhammad Khan son of Gehna, Habubib Khan, Ata son of Sardara, Nawaz and Rehman, all armed with guns came upon them. Muhammad Khan son of Ahmad Khan and Ali Khan armed with hatchets also appeared on the scene and so did Gehna son of Shera (since dead) and Gehna son of Ahmad Khan who had sotas. First, those who were armed with guns started firing at the complainant party, the five male deceased, who were ploughing the field. Matah fired at Ghulam Ali, Qasim at Mukhtar and subsequently when Mst. Iqbal Bibi and Murid Abbas (P.W. 28) were attracted to the scene, he fired at them too. Muhammad son of Gehna also fired at Mst. Iqbal Bibi. Ata Khan son of Ahmad Khan fired twice at Liaqat deceased. Habib fired twice at Riaz deceased and Ata Khan son of Sardar also fired at Riaz. Rehman and Nawaz fired twice each at Muhammad Khan deceased. Muhammad Khan son of Ahmad Khan gave hatchet blow from its blunt side to Mukhtar after he had fallen on receipt of fire‑arm injuries. From the side of the accused, Mst. Bhagan, Mst. Kaniz Fatima, Mst. Kanizan, Mst. Sardaran and Mst. Sattan were attracted to the spot. They came forward with Sotas and Mst. Bhagan in particular inflicted injury on Riaz Khan. On the side of the complainant, Zil‑i‑Hussain, (P.W. 16), Murid Abbas (P.W. 22), Daim Khan (not produced). Muhammad Ashraf (P.W. 19), Mst. Kalsoom (P.W. 20), Mst. Allah Wasai, (P.W. 21), Mst. Amiran (P.W. 17) and one Wali Muhammad (not produced) intervened and received injuries at the hands of the accused. When the attack ended, five of the persons on the complainant side were dead and these were Liaqat Ali, Ghulam Ali, Riaz Khan, Muhammad Khan and Mukhtar Khan. Mst. Iqbal Bibi was seriously injured and subsequently died. There were other eight persons who were injured during the occurrence but survived, six of whom appeared as prosecution witnesses at the trial and two Wali Muhammad and Daim Khan were given up as won over.

Dost Muhammad went to the Police Station Qadirpur at a distance of about eight miles and lodged the report at 8 a.m. giving details of the occurrence. This report was recorded by the S.H.O. Ahmad Yar, Sub‑Inspector (P.W. 26). On way to the spot, he met the party carrying the injured persons to the hospital. He prepared their injury statements, recorded their statements under section 161, Cr.P.C. and one such statement, of Mst. Iqbal Bibi, served as the dying declaration at the trial. On reaching the spot, he attended to the dead bodies of the five persons, prepared the injury statement, and the inquest reports and sent them for post‑mortem. The accused in the case were arrested on various dates soon after the occurrence. From Qasim a licensed gun Exh. P. 24 was recovered, from Matah Khan a rifle Exh. P. 26, Ata Khan son of Ahmad got recovered a gun Exh. P.25, Habib Khan got recovered the gun Exh. P.5, Ata Khan son of Sardara got recovered the gun Exh. P.7 and Rehman got recovered his licensed gun Exh. P.27. The Investigating Officer had recovered fourteen empties of .12 bore, six empty cartridges from one place, two empties from the other, two more empties from a third spot, two other empties from the fourth spot and two more from fifth spot. He sealed them into separate parcels. These were sent to the expert who reported the matching of thirteen empties with the guns recovered from Qasim Khan, Ata Khan son of Ahmad Khan, Rehman of Habib Khan, Ata Khan son of Sardara. Muhammad Nawaz and Muhammad Khan accused. The rifle secured from Matah Khan was not sent for examination to the expert as no rifle‑shell was recovered from the spot and there was no allegation of a rifle having been used in the occurrence.

The autopsy of Liaqat Ali showed five lacerated wounds all caused by fire‑arm resulting in his death. Ghulam Ali deceased had received one gunshot wound on the lateral aspect of left chest one inch circular. Mat. Iqbal Bibi had received multiple gunshot wounds 25 in number. Riaz Khan deceased had received 26 fire‑arm wounds and had a contusion. Muhammad Khan deceased had 33 fire‑arm wounds and Mukhtar had also fire‑arm wounds and abrasions and lacerated wounds. As regards the injured, Zil‑i‑Hussain had two contusions, two lacerations and one blackened injury on his person. Murid Abbas had four fire‑arm lacerated wounds, four contusions and two swellings on his person. Daim Khan had two contusions and one laceration, Muhammad Ashraf had two lacerated wounds on his person. Mat. Kalsoom had five fire‑arm lacerated wounds. Mat. Allah Wassai had a blunt lacerated wound and a swelling on her person. Mat. Amiran had a fire‑arm lacerated wound. Wali Muhammad had one fire‑arm inlet wound.

As regards the accused persons, only Qasim' and Matah Khan were found to have injuries on their person. Qasim Khan had a skin deep laceration on his head and an abrasion on the eye‑brow. Matah Khan had a bone deep contused wound on the top of the head. These injuries were simple. In all seventeen persons were accused of the crime. One Gehna Khan died before the trial. Habib, another accused died after his conviction and pending his appeal. The sixteen accused who stood their trial denied the occurrence and their participation in it. They denied the recoveries from them. Qasim and Matah denied the presence of injuries on their person at the time of their arrest. They denied Mat. Iqbal Bibi having made any statement implicating them in the occurrence and claimed that it was a fabricated document. Qasim Khan and other accused of village Kiran denied that Ahmad Khan was the tenant under Gehna Khan son of Shera (since dead) or that possession over disputed land was of the complainant party and alleged that it was on account of their relationship with Gehna son of Sher that they had been falsely implicated in the case. Another set of the accused, namely, Habib, Rehman, Ata Khan and Nawaz who claimed to be residents of another village known as Mazari, alleged that they had no connection whatsoever with the land in dispute or with the dispute itself between the parties and they had been implicated on account of an earlier enmity with the complainant party reflected in a criminal case. They produced the copies of the official record in support of the earlier criminal cases and the enmity between them. They did not produce any witness in defence.

The trial Court held, in view of the judgment of the Additional Commissioner Consolidation, dated 16‑4‑1974 (Exh. P.Z/70), that the land over which the‑dispute had taken place had in fact fallen to the share of the complainant, heirs of Fateh Muhammad. However, as regards possession, by reference to numerous pieces of evidence on the record, it was held that it was not with the complainant party or with Ahmed, the tenant. The ploughing of the land by the complainant party was established at the time shown in the prosecution evidence, namely, 6 a.m. The injured witnesses and the other eye‑witnesses, namely, Dost Muhammad (P.W. 13), Ghulam Abbas (P.W. 23) and Manzoor Ali Khan (P.W. 14) were taken to be the witness of the occurrence being natural witnesses. Out of the injured persons, it was only Mst. Allah Wasai (P.W. 21) about whose evidence it was held by the trial Court that it was not safe to rely on her because her name was not mentioned in the F.I.R. as one of those injured during the course of the occurrence and the injuries received by her (a lacerated wound 1" x 1/4" muscle deep on the top of central part of the back of scalp and painful swelling 1 " x 1" on the left side of the back of scalp) were "of minor measurements and quite simple in nature". These injuries, according to the learned trial Court, could be caused by a fall on the ground. The dying declaration of Mst. Iqbal Bibi recorded in the form of a statement under section 161, Cr.P.C. was accepted as true and correct. The recoveries were also accepted and the matching of the recovered guns except in the case of Matah from whom a rifle was recovered though the allegation of the witness was that at the time of occurrence, he was armed with a gun which he had used. The fact that Nawaz accused reported for his duty prematurely, before the expiry of his leave, on the same day on which the occurrence took place, i.e. 28‑7‑1974, but at a later hour, was taken to be a factor supporting the prosecution case. As regards Qasim Khan, the trial Court held that he had fired at Mat. Iqbal Bibi and caused her death. There was no mitigation of any kind whatsoever as regards her murder because she was not one belonging to the party, which had committed criminal trespass over the land and this totally unjustified attack on her distinguished the case of Qasim from his other associates and on conviction he was sentenced to death subject to its confirmation by High Court, and a fine of Rs.1,000 or in default to suffer one year R.I. which on recovery was to be paid as compensation. The other accused, viz. Matah, Muhammad Khan, Gehna Khan son of Ahmed Khan, Ata Khan, Ali Khan, Muhammad Khan son of Gehna Khan, Habib Rehman, Ata Khan son of Sardara and Nawaz and Qasim too, were held guilty under section 302/149, P.P.C. for the six murders including that Mst. Iqbal Bibi and as there was an element of provocation due to criminal trespass attempted and committed by the male deceased persons, three accused, other than Qasim, were sentenced to life imprisonment and a fine of Ra.1,000 each. For the attempt on the life of seven persons aforementioned, except Allah Wasai, they were convicted under section 307/149, P.P.C. and sentenced to seven years' R.I. and a fine ofRs.500 or in default one year R.I. Out of the ladies tried for the offences Mat. Bhagan was held guilty under section 323, P.P.C. for causing injury to Riaz after he had received fire‑arm injuries and she was sentenced to suffer R.I. for one year. As regards Mat. Sattan, Mst. Sardaran, Mat. Kaniz Fatima and Mat. Kanizan, the trial Court held that it was not safe to convict them. They were related to the male accused. They had come during the course of the occurrence. There was material contradiction about the injuries attributed to each of them. They were also convicted under section 148, P.P.C. and sentenced to one year R.I.

On appeal and while hearing Criminal Revision for the enhancement of the sentence and the confirmation of death sentence of Qasim Khan, the High Court examined at length the entire evidence. It also examined the disputed question of possession over the land at the relevant time, held it to be material in governing the criminal liability of the convicts as right of private defence of property was pleaded though not specifically taken up by any of the accused at the trial. After examining the Khasra Girdawaris and the other evidence with regard to possession, the learned Judges disagreed with the trial Court and recorded the following conclusion: ‑

"We having already discussed that the learned trial Judge has misread the entries in the Khasra Girdawaris. In our view, the evidence of Naib‑Tehsildar Mumtaz Ahmed P.W. Ahmad Patwari P.W. 1 and even Ahmad P.W. 24 does not advance any party's case. We are inclined to conclude, keeping in view the entries in Exh. D.Q. that Ahmad P.W. was a tenant in cultivation possession of the land in dispute and Yara had not been in possession of the same at any point of time before the occurrence. The story that Ahmad P.W. surrendered back possession to the complainant party before the occurrence, can similarly be accepted but with a grain of salt. There was thus no basis for the learned trial Judge to come to the conclusion that the accused party was in possession and the complainant party had trespassed into the land in dispute."

As regards the right of private defence of property and the alleged criminal trespass over the land the learned Judges of the High Court held as follows:‑

"In the instant case having found that Ahmad P. W. was in possession of the land during the days of occurrence, the accused party, in the circumstances, could not claim benefit of section 97, P.P.C., for argument sake, even if it be assumed that the complainant party could not enter upon the land to plough until mutation giving effect to the order, dated 16‑4‑1974 had been sanctioned. The assailants in that event too, were not entitled to the benefit of section 97, P.P.C. The right given under section 97 is subject to the restrictions contained in section 99 which inter alia provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. It was at best an attempt to disturb the possession of Ahmad P. W. It cannot be said that the aggrieved party could not have availed of the protection of the public authorities. We have, therefore, no hesitation in arriving at the conclusion that the appellants did not have assemblance of the right of private defence of property."

The dying declaration of Mst. Iqbal Bibi was not accepted on the ground that it was too detailed a document and the injuries received by Mst. Iqbal Bibi could not have enabled her to make such a statement.

The motive for the occurrence was believed in respect of one of convicts, those belonging to village Kiran, and not in respect of those belonging to village Mazari. The recoveries were believed except for rifle of Match which he had not used at the time of the occurrence. Mst. Bhagan was given the benefit of doubt because, according to the learned Judges of the High Court, she was not a member of the unlawful assembly, could not be said to have shared the common intention with other members, and when "so many male persons fully armed were there to deal with the opponents the allegation that Mst. Bhagan had given a Dang blow to Riaz Khan does not appear to be very convincing". Similarly, the learned Judges expressed doubts with regard to the participation of Matah Khan, Muhammad Khan and Gehna Khan sons of Ahmad Khan and Ali Khan son of Muhammad Khan. The reasons were that the rifle recovered from Matah Khan was found not to be involved in the occurrence. The hatchets recovered from Muhammad Khan and Ali Khan were found to have been used by their sharp sides. Gehna Khan was found to be man aged 82 years and armed with a Sota. His participation was not believed on account of his old age and presence of younger persons who were effectively armed in the attack. On these grounds, they were acquitted. The participation of others, namely, Qasim, Ata Khan. Muhammad Nawaz, Muhammad Khan, Habib, Rehman and Ali Khan son of Sardara was held established and no mitigating circumstance whatsoever found in giving them the lesser sentence of life imprisonment. The proper sentence in their case was held to be death and allowing the Criminal Revision, their sentence of life imprisonment was enhanced to death and the fine of rupees one thousand was kept intact. They were ordered to be hanged by the neck till dead.

Though a specific plea of right of private defence of property was not taken up by the accused in their statement under section 342, Cr. P. C. their case fully rested on that plea and was dealt with as such at length by the trial Court, as well as by the High Court. Mr. Ijaz Batalvi, their learned counsel has advanced the same. His argument is that the case of possession sought to be established by the complainant through Ahmed P.W. 24 has utterly failed because of the simplicity, ignorance and pre-verifications of that witness. The revenue record as well as the oral evidence, both established the effective possession of the accused persons over the land. What was further established was that the complainant party wanted to forcibly oust them from that piece of land which happened to be close to their Dera, their cattle shed and the manure heap and the manger. It was a blatant usurpation, aggravated both in manner as well as in its end. They met resistance and the consequences for which they, and not the accused, were responsible ensued. The presence of womenfolk there at the time of occurrence was on neither side by planning or design but simply on account of curiosity, anxiety and involvement of the male members of their families. In this background those who had stakes in the land, and not the residents of village Mazari, alone could be held guilty, and even in their case the offence could not be any other than of exceeding the right of private defence of their property, which right had accrued to them the moment the complainant party of five entered the land and started ploughing it.

The learned counsel for the complainant, Mr. Maqbool Elahi Malik, Advocate, by a reference to sections 97, 99 and 103 of the Pakistan Penal Code contended that there was, even in the alleged act attributed to the complainant party, no reasonable apprehension of death or grievous hurt to the accused and in the absence of such an apprehension, if reckless firing was resorted to by the accused persons, they could not claim either a right of private defence of their property or a bona fide exercise of any such right. According to the learned counsel, both the Courts were amply justified in denying to the accused persons any such right. It was for this reason that their conviction was recorded and mentioned under sections 302 and 307, P.P.C. read with section 149, P.P.C. The mere ploughing of the land even if its possession was of the accused party, was not such an offensive act when those ploughing had not themselves the weapons or arms nor were backed at the spot by a party having arms of any description. It was a peaceful, bona fide attempt on the part of the complainant to assert their possessory right on a portion of the land which had fallen to their lot under a compromise to which the accused were themselves a party. It is in this context that the gravity of the act of the accused has been highlighted, the acquittal of three of them on grounds which are not well‑founded in evidence has been challenged, and further, the inadequacy of the compensation awarded out of the fine imposed objected to. When the petition of Dost Muhammad for Leave to Appeal against acquittal came up he gave up his claim against Matah Khan and Leave to Appeal was granted only against the others mentioned in petition and not Matah Khan

As observed by the two Courts, the question of actual physical possession of the land in dispute was of the utmost importance and has received proper attention in both the Courts. Two factors which negatived the possession of the complainant party, or their right to obtain immediate possession must be noted at the outset.. Firstly, the compromise order of the Consolidation Authorities (Exh. P.Z/70), dated 16‑4‑1974 shows that for this 2 Kanals 9 Marlas, the complainant party was to hand over to the accused party an equivalent area out of Square No. 33, Square No. 3 and Square No. 54. There was a reciprocity in the compromise in the sense that each party was to hand over possession of the land which it had agreed to give to the other. Without such an exchange, the complainant party could not obtain the land which was to come to them. The second fact is that this 2 Kanals 9 Marlas was to be carved out of Square No. 43, Kills No. 11/1 measuring 2 Kanals 19 Marlas. In order to accomplish its division by metes and bounds an exercise had to be undertaken and there is no evidence on the record to show that any such exercise was undertaken and division by metes and bounds had taken place. Ten Marlas out of this Kills was to remain with the accused party even after complying with the final order of consolidation Authorities.

It is correct that the trial Court misread the revenue record, as held by the High Court, in holding that Yara was the tenant of this particular land. The Khasra Girdawari shows that Gehna son of Sher (since dead) was the owner from the year 1970 and Ahmad Yar was its tenant under him till March 1974 when the crop inspection was done and the continuance of Ahmad as tenant was recorded. What created a confusion in understanding these entries of the revenue record was a note in the red ink recorded subsequently wherein while noting that Gehna son of Sher had made a gift of this land along with others in favour of his son Muhammad, it was also noted that Muhammad was in its possession through Yara, the tenant. This entry being undated and uncounted with the cultivation itself had no place in the Khasra Girdawari and could not affect the entries of Ahmad being the tenant. It is true, as contended by the learned counsel for the convicts, that Ahmad has shown his ignorance and has made contradictory statements with regard to the delivery of possession or share of the produce to Mst. Manzooran etc. and cannot be taken to be a truthful witness. All the same the fact remains that the complainant party had gone unarmed to the land in order to plough it. It had started ploughing it. Only a small portion of the land, and that too in a very irregular fashion, had been ploughed. They were met with a barrage of firing and attack with deadly weapons resulting in death of six persons and injuries to eight others. The injuries received by the two of the convicts have not been shown to have been caused in this occurrence or at the hands of the complainant party. They actually denied having received any such injury or that it was caused during the occurrence. Both the Courts have rejected this contention, outside the record that these could have been caused and were in fact caused during the occurrence itself.

The complainant being unarmed and there being no show of force on their side the accused could have no reasonable apprehension that death of grievous hurt will be the consequence if the right of private defence of property was not exercised. Even if they had any such right they clearly far exceeded it because the legal restraints attaching to the exercise of such a right were altogether ignored and on the contrary their wanton act was a clear proof of the vindictiveness and the maliciousness with which it was exercised. In the case of Ahmad and 3 others v. The State P L D 1971 S C 720 the following law relating to right of private defence of person and property was laid down:‑‑

"The exercise of the right of self‑defence of body or property is subject primarily to the restrictions contained in section 99 of the Penal Code. One basic restriction in this behalf is that no harm is to be caused other than what is absolutely necessary for the exercise of the right of self‑defence. If the harm caused to the offending party is out of all proportion to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right, the right of self‑defence will stand completely negatived. This right is available only if it is rooted in good faith and no intention is manifested by the circumstances of doing more than is necessary for the purpose of self‑defence."

In view of the law on the subject, the convicts were rightly denied the protection of exercise of right of private defence of their property.

In recording the acquittal of Matah, Gehna, Gehna Khan and Ali Khan, the High Court recorded the following reasons:‑

"We have doubts regarding the participation of appellants Matah Khan, Muhammad Khan and Gehna Khan son of Ahmad Khan and Ali Khan son of Muhammad Khan. Rifle recovered from Matah Khan has not been found involved in the occurrence. Medical evidence alone is not sufficient corroboration to implicate him. Hatchets have been recovered from appellants Muhammad Khan and Ali Khan. However, it is significant to note that none of the deceased or the P.Ws. had sustained any sharp injury. It would be difficult to believe that the type of occurrence in which the assailants had resorted to wreckless killing, these appellants would not use their respective weapons. Therefore, these recoveries cannot be used as corroborative pieces of evidence against them. Gehna Khan appellant is aged 82. He is stated to be armed with a Sota. No doubt some of the victims of the assault sustained injuries with blunt weapons, yet the presence of this old man does not fit in with the circumstances of the type of incident where, at least, six persons armed with guns were there to deal with the situation. In the case of appellants Muhammad Khan. Gehna Khan, Matah Khan, sons of Ahmad Khan and Ali Khan son of Muhammad Khan, we are inclined to give them benefit of doubt also and acquit them."

This is a view of the evidence and the material on the record which could be taken and is not, on the face of it, perverse or opposed to any principle of law. Their acquittal is, therefore, not liable to interference on the ground that a different view could also possibly be taken of that evidence. The appeal against their acquittal must, therefore, fail.

Daim and Wali Muhammad, the two injured, were not produced at the trial on the ground that they had been won over. In the circumstances, it clearly followed that they were not supporting the prosecution case in respect of their injuries. In their absence for such a reason, it cannot be held that they were subjected to murderous assault and received injuries on account of it. Mst. Allah Wasai was disbelieved by the trial Court in respect of her injuries having been caused at the hands of the accused. In the result the conviction under section 307/149, P.P. C. in respect of injuries to Daim and Wali Muhammad, is set aside.

In view of what has been stated the conviction of the convict appellants under sections 302/307/149, 148, P.P.C in respect of six deaths and other five injured, recorded by the two Courts was proper. As regards the sentence, on the finding that the entry of the complainant party on the land and their ploughing of it was not strictly in exercise of their lawful rights over it and amounted to interference with the possessory rights of the convicts whether it was through the tenant or not, the sentence of death in the case of all of them was not called for. For this reason, we would restore the sentence of life imprisonment awarded to the convicts other than Qasim Khan. The reasons for awarding death sentence to Qasim Khan have been given by the trial Court and, have stood the test of scrutiny of the evidence. His firing at Mst. Iqbal Bibi had no nexus, direct or indirect, with the ploughing of the field. The fine and the compensation awarded are, on the facts of the case, grossly inadequate and insufficient to meet the requirements of the law. Therefore, while maintaining the conviction and rejecting the appeal of the convicts against their conviction, the sentence of all other than Qasim Khan is altered to life imprisonment and to fine or rupees ten thousand each, on each charge (six counts in all) and the amount of fine realized shall be paid as compensation to the heirs of the deceased persons. In ‑default, they shall suffer R.I. for three years. The sentence of fine imposed on Qasim Khan is also enhanced to 10,000 rupees on each charge (six counts in all). The appeal of the complainant against acquittal is dismissed. The sentence including the fine imposed for the offence under section 307/149, P.P.C. remains intact. The result is that the appeal of Dost Muhammad complainant against the acquittal of Muhammad Khan, Gehna Khan sons of Ahmad Khan and Ali fails and is dismissed. As regards the inadequacy of fine /compensation, it is allowed. The appeal of the convicts against their conviction under section 302/149 (six counts) fails and is dismissed. The sentence of death awarded to Qasim Khan is maintained, that of others, viz. Ata Khan, Muhammad Khan, Muhammad Nawaz, Rehman, Ata Khan son of Sardara is set aside and substituted by life imprisonment. Habib Khan having died pending appeal, his appeal abates. The sentence of fine is enhanced to rupees ten thousand on each count on conviction under section 302/149, P.P.C. or in default three years' rigorous imprisonment. Their conviction and sentence in respect of injuries to Daim and Wali Muhammad is set aside. It is maintained therefore on five counts under section 307/149 P.P.C. the sentence is also maintained. Their conviction and sentence under section 148, P.P.C., is also upheld. The two appeals stand disposed of accordingly.

M.I. Order accordingly.

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