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Criminal Appeals Nos. 40 and 41 of 1983, decided on 12th August, 1986.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 29‑5‑1982, in Criminal Appeal No. 1220 of 1979).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302, 96 a 97‑‑Leave to appeal granted to examine contentions whether convicts /appellants had a right of self‑defence, in circumstances of case, in view of injuries sustained by some of accused 'and whether their convictions were sustainable in view of fact that High Court had rejected version of prosecution that occurrence took place in house of complainant and evidence of recoveries from accused was held to be of doubtful nature.

‑‑‑S. 302‑‑Evidence Act (I of 1872), S.32‑‑Criminal. Procedure Code (V of 1898), S.161‑‑Dying declaration‑‑Investigating Officer making no attempt to have statement recorded in accordance with ‑law and declarations found to have been incorporated in statements under S.161, Cr.P.C.‑‑Such statements found to be faithful reproduction of F.I.R. part of which already disbelieved‑‑Evidence of such dying declarations, held, would not be of unimpeachable quality to be relied upon in a case of capital charge.

‑‑‑S. 302‑‑Evidence‑‑Ocular testimony‑‑Occurrence taking place in house of eye‑witnesses, father and son‑‑Such persons being natural witnesses, their presence could not be doubted.

‑‑‑S. 302, 96 t 97‑‑Private defence, right of‑‑Occurrence taking place at house of complainant in a sudden flare up without premeditation on a land dispute‑‑Both parties related inter se‑‑Accused party using fire‑arms and killing three persons‑‑Complainant party not using any fire‑arm but accused sustaining minor injuries in scuffle‑‑Accused neither in cross‑examination of prosecution witnesses nor in their statements specifically pleading right of private defence‑‑Plea of accused that complainant side attacked them in their house and they had a right of self‑defence, held, could not be accepted in circumstances.‑‑[Private defence, right of]

‑‑‑S. 302‑‑Both parties withholding vital facts which gave rise to violence in which deceased fatally injured‑‑Duty of Court on consideration of all circumstances established in evidence to determine whether accused charged with felonious act were responsible for same and what offence, if any, had been committed by each or whether participation of each established in accordance with well‑recognised principles for appraisement of evidence in criminal cases.

‑‑‑S. 302‑‑Evidence‑‑Recovery evidence‑‑Evidence of recovery witnesses cannot be rejected outright merely because they did not belong to same locality‑‑Delay simpliciter in despatching incriminating material to expert, held, would not always be destructive of evidentiary value of such material if recovery proved on record and no suggestion forthcoming that parcels were interfered with while in custody of police.

Allah Rakhio and another v. The State 1977 S C M R 330; Anwarul Hassan v. The State 1980 S C M R 64y and Mian Khan v. The State P L D 1982 S C 197 ref.

‑‑‑S. 302‑‑Accused taking advantage of lethal weapons against unarmed victims and having no justification to fire upon them when only single injuries were caused to some of their party members‑‑Convictions recorded by High Court maintained.

‑‑‑S. 302‑‑Sentence‑‑Prosecution withholding real circumstances for flare up in which deceased done to death‑‑Likelihood that deceased were responsible for such behaviour which furnished immediate cause for conflict between parties‑‑Lesser sentence of life imprisonment would meet ends of justice‑‑No interference thus called for on question of sentence in circumstances of case.

Raja Muhammad Anwar, Senior Advocate for Appellant (in Criminal Appeal No. 40 of 1983).

Nazir Akhtar, Senior Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents (in Criminal Appeal No. 40 of 1983) .

Nazir Akhtar, Senior Advocate Supreme Court and Khan Imtiaz Muhammad Khan Advocate‑on‑Record for Appellants (in Criminal Appeal No. 41 of 1983).

Ch. Ghulam Ahmad, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate‑on‑Record for the State (in Criminal Appeal No. 41 of 1983).

Date of hearing: 5th May, 1986.

The two appellants (in Criminal Appeal No. 41 of 1983) , namely, Muhammad Riaz and Faiz Ali were convicted by the Additional Sessions Judge, Sheikhupura Camp at Rawalpindi, inter alia. under section 302, P.P.C. on three counts for the murders of Mst. Sughran, Mst. Anaran and Mir Zaman (hereinafter called the deceased), and were sentenced to death, besides fine etc. They were tried alongwith three other co‑accused, namely, Abdul Majid, Mir Afsar and Muhammad Azram who were also convicted, inter alia, for murder on the aforesaid three counts and sentenced each to imprisonment for life and fine etc. except Abdul Majid who was also sentenced to death. The convicts appealed against their convictions and sentences in the Lahore High Court, which heard their appeal with the reference for confirmation of death sentences made by the Additional Sessions Judge, under section 374 of the Criminal Procedure Code. The learned Judges of the High Court by their judgment, dated 29th May, 1982, while acquitting Abdul Majid, Mir Afsar and Muhammad Azram, upheld the convictions of the appellants under section 302/34, P.P.C. but altered the death sentence to life imprisonment. The sentence of fine and the alternate sentence of imprisonment in the case of non‑payment of fine were also maintained. The criminal revision filed by the complainant for enhancement of the sentences of two of the convicts was also dismissed.

2. Convicts Muhammad Riaz and Faiz Ali filed a petition for leave to appeal against their convictions and sentences.

3. Liaquat Hussain son of complainant Nadir Khan also filed a petition for leave to appeal against the judgment of the High Court. This Court granted leave in both petitions in order to examine the contention whether the convicts /appellants had a right of self‑defence in the circumstances of this case, in view of injuries sustained by some of the accused and whether their convictions were sustainable in view of the fact that the High Court had rejected the version of the prosecution that the occurrence took place in the house of the complainant and the evidence of recoveries from the accused was held to be of doubtful nature. On the other side the question for consideration was whether the High Court was right in taking the view that the occurrence did not take place in the house of the complainant and whether on this account lesser sentence was rightly awarded to convicts /appellants Faiz Ali and Muhammad Riaz. Also the question of the culpability of the acquitted accused was to be considered. As the appeals arise out of the same judgment of the High Court they are being disposed of by this common judgment.

4. The occurrence in this case took place on 15th April, 1974, at noon time in village Chakki, Tehsil Gojar Khan, District Rawalpindi. According to the prosecution the occurrence took place in the house of Nadir Khan, whereas the counter‑version put forward by the accused was that the occurrence took place in the house of Abdul Rehman father of the co‑accused Azram Khan. It is common ground that both parties are inter‑related. Abdul Rehman is the paternal‑cousin of Nadir Khan complainant. Both these persons who have survived the deadly incident, have their houses opposite to each other separated by a small lane 5 or 6 feet vide.

5. According to the prosecution the main cause leading to the tragic events resulting in the death of three persons was a dispute over a transaction for the purchase of a piece of land. It is said that this piece of land was owned by Abdul. Rehman and was situate adjoining the land of complainant Nadir Khan. Abdul Rehman had entered into an agreement to sell this piece of land to one Gheba and had received earnest money of Rs.2,000 from the latter. However, as the land was situate near the land of the complainant, he asked Abdul Rehman to 1 cancel the transaction with Gheba and sell the same to him. Abdul Rehman agreed to this proposal provided that the complainant paid to him the amount of Rs.2.000 so that he could refund the earnest money to the previous purchaser. Accordingly Nadir Khan paid the amount to Abdul Rehman. Muhammad Azram, acquitted co‑accused who is the son of Abdul Rehman Mst. Arshan Bibi wife of Abdul Rehman and Mst. Aksar Jan sister‑in‑law of Abdul Rehman, were displeased with this bargain, for reasons not disclosed by the prosecution.

6. In this background, the prosecution story proceeds to more immediate reasons for a conflict between the parties, furnishing the motive for the occurrence. It is said that the lands of complainant Nadir Khan and Abdul Rehman were irrigated by the storm water discharged from the street leading to open areas from the village. One day prior to the occurrence co‑accused Azram was seen by complainant Nadir Khan raising the level of land so that the entire storm water should flow to their land and the land of complainant be deprived of the water. The complainant remonstrated with Muhammad Azram over this unfair act on his part. On this Muhammad Azram burst out, and declared that they would not sell their land to the complainant. Saying so he left his implements of work and proceeded towards his house. Shortly afterwards the complainant heard the sound of commotion from the direction of his own house. Apparently feeling concerned, he left his plough and went to his house. On reaching there he saw, Mst. Aksar Jan, daughter‑in‑law of Khan Zaman (deceased co‑accused) and Mst. Arshan Bibi wife of Abdul Rehman throwing stones inside his house and from his house his daughter Khurshid Bibi and Riasat Bibi were also hurling stones at them in retaliation. In this exchange of stone throwing a stone hurled by Khurshid Bibi hit and injured Mst. Aksar Jan. In the meantime Abdul Rehman also appeared at the scene and he along with the complainant restrained the warring women‑folk which ended the quarrel.

7. Afterwards Khan Zaman (deceased co‑accused) and his sons Riaz appellant and Abdul Majid (acquitted co‑accused) being annoyed with the aforesaid incident went to the house of the complainant and maltreated him, his wife and daughters. The villagers intervened and separated them. Later in the day Liaquat (P.W.) son of the complainant, Aslam his brother‑in‑law and Mir Zaman (deceased) who was cousin of the complainant's wife arrived at his house and Mir Zaman started his efforts to bring about a reconciliation between the quarrelling parties.

8. In the aftermath of these unpleasant events we turn to what happened on the crucial day when the occurrence took place. At Katchi Rotiwela Mir Zaman, Aslam, Jalal, Abdul Rehman and Abdul Majid (acquitted co‑accused) gathered at the house of the complainant in order to bring about a compromise. During the negotiations the complainant expressed his willingness to settle the dispute if his advance payment was refunded to him and also if Khan Zaman and others tender apology to him for their misbehaviour. The aforesaid mediators went over and consulted the other side. After some time Aslam and Mir Zaman came back to the house of the complainant and stated that Abdul Rehman had agreed to return the advance money after some time but Khan Zaman and others were not willing to apologise to the complainant and had demanded the hand of the complainant's daughter in marriage. The compromise talks thus failed to bring about a settlement between the parties. Subsequently at about noon time, the complainant, his son Liaquat (P.W.) Mst. Safidan, Mst. Sughran (deceased), Mst. Khurshid, Mst. Riasat, Noor Muhammad and his wife Mst. Anaran (deceased) were sitting in the courtyard of the complainant's house. Mir Zaman (deceased) and Aslam also joined them. At that time Khan Zaman (deceased accused) having stone in his hand, Muhammad Riaz, Abdul Majid and Faiz Ali accused armed with pistols, Mir Afsar accused also carrying stone in his hand, Muhammad Azram came there. On the instigation of Khan Zaman, Muhammad Riaz fired a shot at Mat. Sughran which hit her on the chest as a result of which she fell down. Abdul Majid fired at Mst. Anaran who was also hit on the abdomen and Faiz Ali fired at Mir Zaman who was hit on the left side of the abdomen and fell down. Then Riaz accused challenged Liaquat who tried to save himself by running towards a room of the house. Riaz fired at him but his shot missed and hit wooden frame of the door of the room. Mir Afsar accused injured Noor Muhammad with a stone on the back side of his head. In the meantime Liaquat (P.W.) closed the door of the room by bolting it from inside. Khan Zaman (deceased accused) put his hand inside the room in order to unchain the door but Liaquat gave him hatchet injury on his hand from inside. Then Muhammad Azram accused also tried to unchain the door by putting his arm inside the door and was likewise injured with the hatchet by Liaquat. The complainant and others who were unarmed entered into a room of the house and closed the door to save themselves. On the commotion many persons from the village came there and intervened. The assailants then left the scene. The complainant and others came out and found Mst. Sughran to have expired as a result of injury sustained by her. Mst. Anaran, Mir Zaman and Noor Muhammad, who had sustained injuries were, however, still alive and conscious. Nadir Khan complainant then went towards the police station to lodge the report but on the way he met the S . H. O . , Police Station, Jatli, who recorded his statement and the F I.R. was subsequently registered.

9. On 16th April, 1974, Faiz Ali, Khan Zaman (deceased accused) and Muhammad Azram were arrested and on 18th April. 1974, the remaining accused Muhammad Riaz and Abdul Majid and Mir Afsar were arrested. Mst. Anaran died on 16th April, 1974 at 4‑00 p. m. and Mir Zaman died on 21st April, 1974, at 3‑00 a.m. The Investigating Officer recorded the statements of the last mentioned two deceased before their death. He also secured .32 bore lead bullet from the wooden frame of the door in the house of the complainant, one .32 bore empty and two 38 bore empties from the courtyard of the house, besides the blood stained earth. He also secured blood‑stained earth from the house of Abdul Rehman father of accused Muhammad Azram. A hatchet was produced by Liaquat (P.W.) before him. Faiz Ali appellant is said to have produced .32 bore revolver on 18th April, 1974, which matched with the crime empties (Exh.P.3) secured from the spot. Similarly Riaz appellant also produced .38 bore (Exh.P.11) revolver on 18th April, 1974, which matched with two crime empties recovered from the spot and the bullet (mark 'B') found in the wooden frame of the door of the house of the complainant.

10. Before the trial could commence accused Khan Zaman died and the remaining five accused were put to trial. Out of these accused three acquitted accused had pleaded their non‑presence at the time of occurrence; however, the convicted appellants had given their own version of the occurrence although Faiz Ali had also denied his presence. It may be stated that Muhammad Riaz appellant and Abdul Majid acquitted accused are brothers and sons of Khan Zaman deceased accused. As already mentioned Muhammad Azram accused is the son of Abdul Rehman and nephew of the daughter‑in‑law of Khan Zaman accused. Mir Afsar and Faiz Ali accused are the sons of nephews of Khan Zaman. It has already been observed that the accused are also related to the complainant. The version of the accused party as reflected in the section 342, Cr.P.C. statement of Muhammad Riaz appellant is as under:‑

"Q. Why this case against you

A. Due to enmity. On the alleged day of occurrence Mir Zaman deceased. Noor Muhammad, Nadir, Nazar Hussain, Bostan, Mst. Sughra, and Mst. Anaran armed with sticks, fire‑arms, hatchet, sword and stones lodged an attack and injured me, Azram and Mst. Aksar Jan and at our alarm supporters of both sides turned up and there was pendimonium. Thereafter, I do not know who injured whom. The cross- complainant filed by late Khan Zaman accused is pending in this Court. The complainant‑party has brought this false case against us to cover their own aggression."

The accused also denied the recoveries allegedly made from their possession and other prosecution allegations. Mst. Aksar Jan (D.W.) was examined in defence in support of the defence.

11. From the accused side four persons were injured. Mst. Aksar Jan had a lacerated wound on the eyebrow bruise on the eyelid and a small lacerated wound on the bridge of the nose. Muhammad Riaz had one lacerated wound on the head. The injuries on the said two persons were simple and caused with blunt weapons. Khan Zaman, deceased accused had an incised wound 2-1/4" x 1/4" skin deep on the back of right forearm. Muhammad Azram accused, had also incised. wound 3" x 1/2" x1/4 skin deep on left forearm inner side of the wrist. The incised wounds found on the persons of the said two accused were simple caused with a sharp‑cutting weapon. On the side of the complainant party the three deceased had each received a single fire‑arm injury. Mst. Anaran deceased had wound of entrance 1/4 x 1/4 x 1-1/2" above the umblicus with the slight charring. There was a corresponding wound of exit on the right side of the abdomen. Mir Zaman deceased had a circular wound of entrance on outer left side of abdomen 11" below costal margin, 11" above the level of umbilicus, 1/2 x 1/2. There was no blackening on the shirt or the skin. Mst. Sughran Bibi, deceased was found to have received an oval wound of entrance 1/3" x 1/4 on the front of left chest just inner to the left nipple. There was burning and blackening around the edges of the wound. There was also blackening on the shirt. The wound of exit was on the back of the chest near lower angle of scapula. Noor Muhammad had sustained a lacerated wound on the back of the right side of head.

12: Thus, we have before us two rival versions of the occurrence, in which each party claims to have been the victim of aggression by the other. The crucial point on which the question as to which party was the aggressor turns is the real venue of the occurrence. One circumstance which has assumed vital importance in this regard and which was emphasised by both sides, was the fact that the Investigation Officer found a trail of blood from the house of the complainant to the house of accused Muhammad Azram i.e. the house of his father Abdul Rehman. Without going into the question of the culpability of the accused or the extent of their liability, the first question to be determined is the place of occurrence. According to the prosecution the trail of blood was the result of blood oozing out from the injuries sustained by Khan Zaman (deceased accused) on his hand and Muhammad Azram accused on his arm inflicted by Liaquat (P. W.) with a hatchet when they attempted to unchain the door of the room in which he had taken refuge. On the other hand the accused party contends that the trail was left by the fleeing injured who subsequently died, after receiving bullet injuries when they decamped from the scene of violence in the house of Abdul Rahman. The manner in which the two members of the accused party sustained injuries as described by Liaquat (P.W.) has been disbelieved by the trial Court as well as the High Court for very valid reasons. The F.I.R. which is the earliest version of the prosecution case does not disclose this part of the story that Liaquat had taken refuge in the room and closed the door from inside, which the aforesaid accused tried to open by inserting their hands one after the other. In any case it does not appeal to reason that if one is injured from inside the other would be so foolish as to repeat the dangerous process. The hatchet allegedly used by Liaquat was also not blood‑stained and there were no blood marks found on either side of the door. The High Court having disbelieved this part of the prosecution story and having regard to the fact that it was Nadir Khan complainant who had the grievance, in view of the breaking down of the transaction of sale of land and insult to which his womenfolk were subjected, reached the conclusion that:

"It is more likely that deceased got fire‑arm injuries on chest and abdomen in the house of Abdul Rehman where some blood fell and the injured ran, or were taken to their house dropping blood all the way. Out of the two probable versions, it is exiomatic, that one favouring the accused is to be taken into account."

13. In reaching this conclusion the High Court, however, took no note of some important circumstances which if taken into consideration, it cannot be said that the probabilities of the two rival versions as to the place of occurrence were equally balanced. It is in the evidence that a bullet imbeded in the wooden frame of the door in the house of the complainant was recovered and three crime empties were also recovered from the courtyard of the complainant's house, two of which matched with the revolver secured from Muhammad Riaz appellant and one empty which matched with the weapon secured from Faiz Ali appellant. Besides the body of one deceased and two deceased in injured condition, along with blood‑soaked earth were found in the house of the complainant. Mst. Sughran Bibi deceased received a fire‑arm injury from a very close range, passing through her chest, causing extensive damage to internal organs including both lungs and the heart. In the opinion of the medical officer she must have died instantaneously. Therefore, she could not have been able to walk much less run away from the spot. In the charged atmosphere in the wake of three persons being critically injured by fire weapons, in my opinion it is difficult for the remaining associates of the injured or deceased to keep their cool and exercise their mental faculties in the calculated manner so as to remove their dead and injured to another place, in order to make up a false case of assault on them in their house. The inference drawn by the High Court, with due respect is farfetched and does not receive support from the circumstances of the case. Besides merely because the explanation offered by the prosecution as to the injuries on the person of Khan Zaman and Muhammad Azram is unbelievable is no ground for holding that the place of occurrence was not the house of Nadar Khan complainant. In these circumstances I am unable to agree with the view that prevailed in the High Court in this respect and hold that there is sufficient evidence that the occurrence took place in the courtyard of the house of Nadir Khan complainant.

14. Having determined the crucial question of the place of occurrence, the next question is whether the prosecution case as put up at the trial has been proved bringing home the guilt to the accused. The case was sought to be supported by several pieces of evidence, namely, motive, dying declarations of two deceased Mst. Anaran and Mir Zaman, medical evidence, recoveries of crime weapons and other incriminating articles and finally the ocular testimony of two witnesses Nadir Khan, complainant (P.W.16) and his son Liaquat Hussain (P.W.14). I have carefully considered each piece of evidence in the light of the record. Taking up first the motive evidence, the High Court rightly rejected the first and earliest part of the alleged motive that Nadir Khan having once promised to give the hand of his daughter, Mst. Khurshid Bibi in marriage to appellant Muhammad Riaz, subsequently backed out of his promise which soured the relations between the parties. This part of the alleged motive seems to be an afterthought as it finds no mention in the F.I.R. Besides it seems there was no bitterness on any matter between the parties, otherwise Abdul Rehman would not have broken his transaction of sale with Gheba Khan for the sake of Nadir Khan. Clearly, therefore, there was no serious enmity existing between the parties, until one day before the date of occurrence, when Nadir Khan and Muhammad Azram accused quarrelled over the raising of his land by the latter. The prosecution version of what happened on the previous day resulting in exchange of stone throwing by the womenfolk of the two parties,, namely, Abdul Rahman and Nadir Khan has already been stated. The accused in their statements have stated that they were the victims of the aggression made by the complainant party and have been involved due to enmity but the nature of this enmity has not been explained in their statement, nor was any serious attempt made to challenge this part of the prosecution story relating to the events that took place a day earlier to the date of occurrence. Therefore, there appears nothing in the evidence to discredit the testimony of the complainant on this part of the motive. The consideration of the evidence as to how the occurrence took place will be taken up a little later.

15. The dying declarations of the two deceased were rejected by the High Court on the ground that these were incorporated in section 161, Cr.P.C. statements recorded by the Investigating Officer who made no attempt to have the statements recorded in accordance with law and were in such minute detail that the deponents could not have had knowledge of some of the facts stated therein. Additionally these statements were a faithful reproduction of the F.I.R., part of which relating to the manner in which Khan Zaman (deceased accused) and Muhammad Azram accused received injuries, has been disbelieved. I am inclined to agree with this view and consider that the evidence of dying declaration is not of unimpeachable quality to be relied upon in a case of capital charge.

16. It will be appropriate at this stage to address the question of ocular testimony. The two witnesses are father and son, but as the occurrence took place in their house they are natural witnesses. There is no good reason to doubt their presence. So far as Nadir Khan complainant is concerned, it is admitted in the version of the accused that he was present at the time of occurrence. But the important question is whether the occurrence took place as described by him. on a careful analysis of the evidence of Nadir Khan it appears that a scuffle over the raising of the level of land by Muhammad Azram had taken place one day before the day of occurrence. The evidence of Nadir Khan complainant is consistent on this aspect of the case with the F.I.R., which is the earliest version recorded soon after the occurrence. This part of the prosecution story appears to have gone in unchallenged and stands proved on the record. This seems to me to be the main cause for the quarrel that ensued and was followed up by a quarrel between the womenfolk of the two sides. It is common that where women are involved it becomes a question of honour and such incidents generally provoke very strong and emotional reaction, ultimately involving the men on the two sides. However, the evidence of Nadir Khan shows that the heads of the two families, namely, he himself on one side and Abdul Rehman on the other side, still maintained their equilibrium. They intervened and restrained their respective womenfolk, subsiding the quarrel for the time being. This is indicative of the fact that the excitement and fierce was not of such magnitude so as to result in violence on the next day with fatal consequences. There is nothing unnatural for these two persons to behave in such manner if one takes into consideration the fact that they were after all relations and the conflict was anything but trivial. It is quite natural that the quarrel between Muhammad Azram and Nadir Khan, may have prompted the former a young man to have asserted that his father Abdul Rehman should not conclude the deal of the sale of land with the latter. However, no reason has been assigned by the prosecution, why if Abdul Rehman had decided to dispose of his land to Gheba, Muhammad Azram, Mst. Arshan Bibi wife of Abdul Rehman and his sister‑in‑law Aksar Jan were opposed to the transaction in respect of the same land in favour of Nadir Khan. It is, therefore, not believable that these persons were opposed to the transaction in favour of Nadir Khan right from the beginning before the quarrel that took place on the previous day of the occurrence. According to the complainant's account after the quarrel between the womenfolk was subsides another incident took place on the previous day, which brought Khan Zaman (deceased) accused) and his two sons Muhammad Riaz appellant and Abdul Majid (acquitted accused) into the picture. Whether these persons maltreated the complainant and his womenfolk is a separate matter, but it seems that on their coming upon the scene a now element was introduced in the existing conflict. These persons were not directly concerned with the quarrel between Nadir Khan and Muhammad Azram. It appears from the evidence that the intervention of these persons on the side of Muhammad Azram deteriorated the situation, so that Muhammad Aslam, brother‑in‑law of the complainant, Mir Zaman (deceased) and his son Liaquat (P.W.) also came in the village by the same evening to give support to the complainant. Some sort of negotiations were started by these persons for reproachment between the parties during the night.

17. It is the case of the complainant that in the two incidents that took place on the previous day of the occurrence, two persons from the accused side, namely, Mst. Aksar Jan and Muhammad Riaz appellant were injured and on the day of occurrence, as already mentioned two persons, namely, Khan Zaman (deceased accused) and Muhammad Azram (acquitted accused) were injured at the hands of the complainant party. According to the version of the accused these persons were injured during the occurrence at the house of Abdul Rehman. As earlier discussed the occurrence took place in the house of the complainant. Yet the fact remains that these four persons on the side of the accused received injuries and besides three deceased, Noor Muhammad, (not produced) also received an injury by the blunt weapon on the head. The medical evidence shows that only the injuries received by Mst. Aksar Jan were contemporaneous with the incidents that took place on the previous day. The rest of the injured, from the accused party had all received injuries, according to the medical opinion, which were contemporaneous with the day of occurrence. Keeping all these circumstances it is fairly clear that the two eye‑witnesses gave a false version of the manner in which Khan Zaman, Muhammad Azram and Riaz received the injuries.

18. In this context the events of the day of occurrence as narrated by the complainant may now be examined. According to him Abdul Majid (acquitted accused) Abdul Rehman, Jalal, Mr. Zaman and Aslam came to him for the purpose of effecting a compromise between the parties in the morning hours on the day of occurrence. It is to be noted that Abdul Majid and Abdur Rehman belonged to the accused party. So, the day started with a peaceful activity. Abdul Rehman continued to take a reasonable attitude by agreeing to return Rs.2,000 advance money to the complainant. However, Khan Zaman told the mediating party that he would not accept the condition of tendering apology and demanded the hand of daughter of the complainant. The matter rested there with the dispute unresolved when at about the noon tame the occurrence is said to have taken place..

19. I find considerable force in the reasoning advanced by the learned Judges of the Division Bench that, in the circumstances described by the complainant, the grievance lay on his side and not the accused. His transaction of purchase of land from Abdul Rehman had been frustrated, his earnest money was not being immediately refunded his womenfolk were insulted and apology asked for by him refused by Khan Zaman. What was then the impelling reason for Khan Zaman his sons Abdul Majid and Muhammad Riaz alongwith the two other co‑accused, to make an assault on the complainant in his house with deadly weapons in broad daylight resulting in the killing of the three deceased. Such conduct appears inconsistent with his attitude when in the morning he sent his son Abdul Majid who came over to the complainant for a settlement of the dispute. There is no plausible reason to accept the assertion of the complainant that the accused resorted to violence merely because the terms of compromise offered by him were not acceptable to them. Another significant feature of the prosecution case is that the accused had no animus or any other quarrel with the deceased. If at all they had any motive to harm any body their target would have been Nadir Khan complainant and possibly his son Liaquat but both emerged from the aweful episode of violence unscathed. Similarly the vague and sketchy version disclosed in the statement of the accused, furnishes no plausible reason for the conflict and does not appeal to reason. They would like us to believe that deceased Mst. Sughran and Mst. Anaran joined their men folk with arms to mount an assault on the inmates of the house of Abdul Rehman and then in the pandemonium created by supporters of both sides, firearms were used by unknown persons resulting in fatalities. Normally it is not expected that in the presence of men, women of the family would be involved in violent adventure of this nature by joining in an aggression in the house of another person. As discussed above the circumstances negate the assertion of the accused that the venue of the conflict was the house of Abdul Rehman. The evidence of Mst. Aksar Jan (D.W.1) is also unbelievable and inconsistent with the circumstances. According to her account Mir Zaman (deceased) was armed with a pistol and yet no firearm injury was sustained by any one on the accused side. Besides according to the opinion of the medical officer Mst. Aksar Jan sustained injuries a day prior to the occurrence. The nature of injuries found on the persons of the deceased indicate that Mst. Sughran Bibi and Mst. Anaran were fired at from a very close range as there was charring and burning present around their injuries, whereas there was no blackening on the shirt or skin around the injuries received by Mir Zaman deceased. Therefore, in all probability the women deceased were fired at first before Mir Zaman was attacked. If he was armed with a pistol he would have naturally used it in the meantime. Therefore, it is not possible to accept the plea of the accused that the complainant side attacked them in their house and they had a right of self‑defence. In any case neither in the cross‑examination of prosecution witnesses nor in their statement the accused specifically pleaded the right of private defence. In the light of the above discussion, it is quite obvious that both parties are withholding the vital facts which gave rise to the violence in which the deceased were fatally injured.

20. However, the Court has a duty on the consideration of all the circumstances established in the evidence to determine whether the accused charged with the felonious act were responsible for the same and what offence if any, had been committed by each or whether participation of each has been established in accordance with well recognised principles for appraisement of evidence in criminal cases. From the circumstances on record, it appears that the scuffle between the complainant and Muhammad Azram over land resulted in the quarrel between the womenfolk of the two sides in which Mst. Aksar Jan was hit with a stone. It seems that Abdul Rehman was taking a reasonable attitude but Nadir Khan and his sons were annoyed and insulted the complainant. On account of close relationship between the parties, they seem to have met on the day of occurrence for settling the dispute in which some of them may have come armed. As the womenfolk who were involved something suddenly happened in which simple injuries were inflicted by members of the either side. After this fire weapons were used resulting in the death of the three deceased. Therefore, it appears to me that there was no premeditation and the incident is the result of sudden fight in the house of the complainant. Consequently each accused would be individually liable for the acts proved against him. Muhammad Azram and Mir Afsar have been attributed no part in inflicting fatal injuries and the former is only said to have been armed with a stone. Muhammad Azram has been alleged to have been armed with no weapon and no part has been assigned to him. Therefore, they were rightly acquitted by the High Court. The remaining three accused namely, Muhammad Riaz, Faiz Ali and Abdul Majid are said to have used fire weapons effectively. Since material parts of the testimony of the two eye‑witnesses have been disbelieved, their testimony qua each accused can only be accepted if materially corroborated by other evidence. Abdul Majid accused has been given the benefit of doubt as the weapon secured from him was not sent to the ballistic expert. As such there is no corroboratory evidence against him. He was also rightly acquitted. However, there is circumstantial evidence of recovery of weapons from the possession of Muhammad Riaz and Faiz Ali appellants and the crime empties secured from the spot were found by the ballistic expert to match with these weapons. In this connection mention may be made of the witnesses in whose presence these recoveries were made from these two accused. Although the learned Judges of the High Court based their opinion on the evidence of recoveries, they held that the attesting witnesses in whose presence these recoveries were effected were not reliable because they were not residents of the locality and were related to the complainant. The other ground pointed out by the High Court was that the empties were not sent to the expert when recovered but were kept for nearly a month. Both these grounds are not sufficient to reject the evidence of recoveries. If the witnesses in whose presence the recoveries were made were related to the complainant they were also related to the accused. Merely because the recovery witnesses did not belong to the locality their evidence cannot be rejected outright. Also delay simpliciter in despatching incriminating material to the expert is not always destructive of the evidentiary value of such material, if the recovery is proved on the record and there was no suggestion that the parcels were interfered with while in the custody of the police. See Allah Rakhio and another v. The State 1977 S C M R 330, Anwarul Hassan v. The State 1980 S C M R 649 and Mian Khan v . The State PLD 1982 SC 197. Muhammad Riaz and Faiz Ali appellants took advantage' of the Lethal weapons with which they were armed against unarmed victims and had no justification to fire upon them when only simple injuries were caused to some of their party members, even in a sudden free fight. Their liability is, therefore, not diminished in the circumstances of the case. The convictions of Muhammad Riaz and Faiz Ali appellants (in Criminal Appeal No. 41 of 1983), are, therefore, maintained as recorded by the High Court but for different reasons. No interference is called for on the question of sentence in the circumstances of the case. The prosecution withheld the real circumstances for the flare up in which the deceased were done 'to l death and it is quite likely that they were responsible for such behaviour which furnished the immediate cause for conflict between the parties. The lesser sentence of life imprisonment seems to meet the ends of justice.

21. In the result both the appeals are dismissed. The convicts shall, however, be given benefit of section 382‑B, Cr.P.C. while computing their sentence of imprisonment.

S.Q. Appeal dismissed.

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