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(a) Penal Code (XLV of

1860)‑‑

‑‑‑S. 302/307/34‑‑Free fight taking place between two rival groups of students‑‑Both parties giving different account of occurrence but no dispute existing with regard to time and place of occurrence; existence of hostility between the parties; presence of eye‑witnesses and accused at rime of occurrence‑‑Parties not coming out with whole truth and each party trying to minimise part played by it and telling incomplete tale of incident‑‑Complainant deposing about motive‑‑Dying declaration silent on point as to which party took initiative and attacked and no satisfactory evidence/ circumstance available to throw light on origin of occurrence‑‑Fact of injury on accused showing that complainant party was also armed with firearms‑‑Occurrence taking place in broad daylight and eye‑witnesses and deceased in a position to identify their assailant who was previously known to them‑‑Dying declaration of deceased recorded in presence of doctor and ringing true and could be relied upon‑‑Both parties armed themselves in full expectation of an armed conflict and were determined to have a trial of their strength and took risk of encounter to establish its supremacy‑‑Each accused is liable for his own act in free fight‑‑Fact that deceased received fatal injury at the hand of accused also established by dying declaration of deceased‑‑Kind of weapon used' by accused and seat of injury selected by him showing that he had no intention but to kill deceased‑‑Accused, held, was therefore, guilty of an offence of murder punishable under section 302, Penal Code‑ Conviction maintained.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 S C 502; Abdul Rehman Gadai Khan and others 1972 S C M R 676 and Inayat Ullah and others v. The State PLD 1966 Lah. 8 rel.

(b) Penal Code (XLV of

1860)‑

‑‑‑5. 307/34‑‑Occurrence taking place in light

of day and injured were in a position to identify their assailants‑‑No case of substitution for real culprit made out‑‑Charge under section 307, Penal Code, brought home to accused‑‑Conviction and sentence maintained.

(c) Penal Code (XLV of

1860)‑‑

‑‑‑S. 302/34‑‑Sentence‑‑Accused also received an injury though simple in nature‑‑Sentence of death altered to imprisonment for life.‑ [Sentence].

(d) Penal Code (XLV of

1860)‑‑

‑‑‑S. 307/34‑‑Free fight‑‑Accused found injured and duration of their injuries tallying with duration of injuries of complainant party‑ Presumption, held, could be drawn that both parties were injured by each other during same occurrence.

(e) Penal Code (XLV of

1860)‑‑

‑‑‑S. 302/307/34‑‑Evidence‑‑Police Officer‑‑Evidence of Police Officer, held, could not be rejected when it found support from unimpeachable circumstances.‑‑[ Evidence].

(f) Penal Code (XLV of

1860)‑‑

‑‑‑S. 302/34‑‑Evidence Act (I of 1872), S. 32‑‑Dying declaration‑‑ Failure on part of deceased to explain injuries of accused in dying declaration, held, would not affect its veracity adversely.

(g) Penal Code (XLV of 1860)‑‑

‑‑‑S. 3021307134‑‑Evidence‑‑Partisan eye‑witness‑‑There is no inflexible rule that evidence of a partisan eye‑witness should be rejected in all cases.‑‑[Witness].

(h) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 300, Exception 2 & 302/307/34‑‑Private defence, right of‑‑Each party entering upon armed conflict deliberately taking upon itself risk of encounter‑‑Right of self‑defence of person,--held-- not available to either of them.‑‑[Private defence, right of].

M.B.Zaman and Ijaz Hussain Batalvi for Appellants. Shah Nawaz Khan for the State.

Dates of hearing:28th April, 2nd, 3rd, 4th, 5th and 6th

May, 1987.

MUHAMMAD MUNIR KHAN, J.‑‑ This criminal appeal No. 94 of 1984 and the connected Murder Reference No. 37/1984 arise from the judgment of the learned Sessions Judge, Faisalabad whereby he on 4‑2‑1984 while acquitting Abdur Rehman, Sohail Tariq Aamar and Muhammad Ghaffar alias Ghaffari co‑accused convicted Iftikhar Ahmad alias Ifti (22), Muhammad Tahir lqbal (27), Muhammad Khalid King (23), Shahid Iqtidar (24) and Abdul Majeed (25) under sections 148/302/149 and sections 3071149 PPC and sentenced them as under:‑

(i) U/s 148 PPC to two years R.I. each;

(ii) U/s 302/149 PPC;

for the murder of Abdul Shakoor (24), Iftikhar alias Ifti appellant to death and a fine of Rs.8,000 or in default thereof two years R.I. and other appellants to imprisonment for life and a fine of Rs.8,000 in default thereof two years R.I. each. It was directed that Rs.4,000 be paid by each appellant as compensation a/s 544‑A Cr.P.C. to the legal heirs of the deceased. or in default thereof six months R.I. each;

(iii) U/s 302/149 PPC for the murder of Muhammad Akram, all the appellants to imprisonment for life and a fine of Rs.8,000 or in default thereof two years' R.I. It was directed that the appellants shall pay Rs.4,000 each to the legal heirs of the deceased or in default thereof six months, R.I.

(iv) Under section 307/149 PPC. for murderous assault on Abdul Mateen PW 11, Ghulam Rasool PW 12, Shahid Ahmad PW 13 and Nadeem Zafar PW 14, all the appellants to five years R.I. each on four counts and a fine of Rs.4,000 each on four counts in default whereof one year R.I. on four counts. They were directed to pay Rs.2,000 each to the injured PWs on each count in default thereof six months R.I. on each count. The sentences awarded to the appellants on different counts were to run concurrently.

It may be noted that the two connected revisions Nos.534/84 and 537 of 1984 which were still at motion stage were not pressed by the learned counsel for the petitioners therein and were disposed of accordingly.

2. The occurrence took place on 23‑9‑1981 at 4-15 p.m. in the area of Agricultural University, Faisalabad two miles away from Police Station Civil Lines, Faisalabad. The FIR Ex.PX was written by Muhammad Yousaf D.S.P. on his own information, on the spot on the same day at 4‑45 p.m. which was sent to the Police Station, Civil Lines, Faisalabad for the registration of case. Formal FIR Ex. PX/2 was drawn up at the Police Station on the same day at 5‑15 PM by Muhammad Saleem Head Constable PW.10.

3. The background of the occurrence allegedly was rivalry between two groups of students known as Islami Jamiat‑i‑Talaba and Inqalabi Council of Agricultural University, Faisalabad. The appellants, their acquitted co‑accused and the proclaimed offender Amjad Gujjar belonged to Inqalabi Council whereas the two deceased and the six eye‑witnesses belonged to Islami Jamiat Talaba. On 21‑9‑1983, Islami Jamiat‑i‑Talaba held Jehad Conference in which Gut Badin Hikmat Yar leader of Afghan Muhajreen addressed the students of Agricultural University.

Muhammad Tahir Iqbal appellant and Amjad Gujjar P.O. tried to create disturbance during the proceedings of the meeting whereupon some of the students belonging to Islami Jamiat Talaba not only turned them out of meeting forcibly but also insulted them. On this Muhammad Tahir Iqbal appellant and Amjad Gujjar P.O. declared that they would take revenge of the insult.

4. As for the main occurrence, there are two versions of the prosecution. It has been stated in the F.I.R. prepared by the D.S.P. that he was in his office when he received information on telephone that the rival groups of students were firing on each other in Agriculture University, Faisalabad whereupon he alongwith foot constables reached the spot and witnessed the exchange of firing. The version of the eye‑witnesses is that at the eventful rime Shahid Aslam P.W. 9, Abdul Mateen P.W. 11, Ghulam Rasool P.W. 12, Shahid Ahmad P.W.13, Hafiz Adeel Zafar P.W.14, Zahid Tauqir P.W. 15, Khalid King and Ibrar Ghauri (both not produced) were sitting in the lawn outside Tipu Hall. They on hearing shouts to the effect that the students belonging to Islami Jamiat‑i‑Talaba would not be allowed to go alive got up and saw that Amjad Gujjar P.O., Iftikhar alias Ifti and Shahid Iqbal appellants armed with guns, Khalid King, Tahir Iqbal and Abdul Majeed appellants armed with carbines and the acquitted co‑accused Abdur Rehman Khalid, Muhammad Ghaffar and Sohail Tariq armed with revolvers were present across the road in front of Tipu Hall who opened fire on them resulting in injuries to Abdul Mateen, 'Shahid Ahmad, Ghulam Rasool and Adeel Zafar P.Ws while they were still in the lawn.

At that time, Muhammad Akram, and Abdul Shakoor, the two deceased were present on the top of roof of first floor of Tipu Hall and were shouting Amjad Gujjar P.O. fired a shot hitting Muhammad Akram on his left flank, Iftikhar appellant fired a shot from his gun hitting on the belly of Abdul Shakoor. Both fell down and were subsequently brought down from the roof by the students and taken inside the Tipu Hall. By that time, the police arrived and the appellants, acquitted co‑accused and the proclaimed offenders ran away towards cafeteria. Muhammad Akram died on the same day in District Headquarters Hospital, Faisalabad whereas Abdul Shakoor succumbed 'to the injuries on 11‑10‑1981 in Mayo Hospital, Lahore.

5. After sending report Ex. P. X. to police station for registration of the case, under section 307/149/148, P.P.C. Muhammad Yousaf D.S.P. summoned police force from all the police stations of Faisalabad and police lines through wireless. After sometime, the police force, S.S.P., District Magistrate, Faisalabad, Magistrates 1st Class and also S.M.L.A. reached the place of occurrence. The injured P.Ws. and the two deceased who were still alive were sent to Hospital under the escort of Malik Bashir Inspector Police. Thereafter the rooms of the hostel were searched by the police under the supervision of the Magistrates as a result whereof numerous weapons including five revolvers, five daggers, 13 knives, seven Chhuris, three razors, 45 cartridges etc. were recovered therefrom which were taken into possession vide Memo. Exh. D.E. attested by Malik Mushtaq Ahmad, Muhammad Ashraf and Syed Tassadaq Hussain Bokhari Magistrates. The Memo. was prepared by Muhammad Yousaf D.S.P. P.W. 26. The police arrested 360 students but ultimately challaned 23 persons from both sides in three cases under sections 302/148/149, 307/149 and 325/149, P.P.C.

6. On 24‑9‑1981 Ch. Muhammad Yousaf D.S.P. again inspected the place of occurrence. He took blood‑stained earth into possession from the roof of Tipu Hall. He recovered ten crime empties of .12 bore gun from the same roof where Muhammad Akram and Abdul Shakoor were injured and took them into possession vide Memo. P.S. attested by Muhammad Zaman, S.I. P.W. 20 and Muhammad Ali, S.I. P.W. 25. The Memo. was prepared by Muhammad Yousaf D.S.P. P.W. 26.

7. On 23‑9‑1981 Dr. Bashir Hussain Kahlon P.W. 1 examined Adeel War, Abdul Mateen, Shahid Ahmad, Ghulam Rasool P.Ws and Abdul Shakoor in injured condition. He found three fire‑arm wounds, one fire‑arm wound, two fire‑arm wounds, one fire‑arm wound and two fire‑arm wounds respectively on their persons. Abdul Mateen, Shahid Ahmad and Abdul Shakoor had received one grievous injury each. The rest of the injuries found on the aforesaid persons were simple. In cross‑examination, the Doctor stated that there was blackening on the margin of injury No. 2 of Abdul Shakoor deceased.

On 24‑9‑1981 Dr. Imtiaz Ahmad Gill P.W. 6 performed post‑mortem examination on the dead body of Muhammad Akram. He found following injuries:‑‑

. "(1) A fire‑arm wound 1 c.m. x 1 c.m. on the front of left side of chest at the costal margin.

(2) Two abrasions 1 c.m. x 1 c.m. each on the back of right elbow.

(3) An abrasion 1 c.m. x 1 c.m. on the back of left elbow.

In his opinion the death was due to shock and haemorrhage. Injury No. 1 was caused by fire‑arm and the rest were caused by blunt weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature. The duration between injury and death was about one hour, and between death and post‑mortem examination was about nine hours. In cross‑examination, the doctor stated that injury No. 1 was a round wound. If this injury was caused by the assailants from a right angle direction then the wound was likely to be round in shape. Dr. Muhammad Tahir Anees P.W. 16 conducted post‑mortem examination on the dead body of Abdul Shakoor on 11‑10‑1981. He found following injuries:‑‑

(1) A penetrating lacerated wound .8 x .8 c.m. over umblical region on the left side with inverted‑ margins.

(2A) Penetrating lacerated wound with diameter 0.8 c.m. over inner mid front part of left thigh with inverted margins.

(B) Penetrating lacerated circular wound with diameter 0.6 c.m. over inner back mid part of left thigh with everted margins.

(3) Stitched vertical incised wound 18.0 c. m. long over left part of abdomen.

(4) Partly stitched vertically oblique incised wound over right upper part of abdomen 1 c.m. alongwith a gauze protruding out from it.

(5) Stitched incised wound 2 c.m. long over right lower part of abdomen extending horizontally oblique.

(6) Stitched incised wound 2 c.m. long over inner front part of right ankle.

On internal examination left pleura was found adherent. Both lungs were congested. Peritoneum showed stitching on front and its cavity contained foul smelling blood mixed suppurative fluid about 1.5 liter and generally distributed. Injuries No. 1 and 2 were caused by fire‑arm whereas No. 3 to 7 were surgical incision for operation, drainage and vene‑section. Injury No. 1 was sufficient to cause death in the ordinary course of nature through post traumatic post operative complications particularly toxaemia. The time between the injuries and death was 2 to 3 weeks. In cross‑examination, the doctor stated that in case post traumatic, post operation complications and toxaemia had not occurred due to injury No. 1, then despite injury No. 1, the injured might have survived in the ordinary course of nature. The doctor further stated that he would not rule out the possibility that the aforesaid complications were due to the carelessness and lack of attention by the concerned Medical Officer who had performed the operation. Dr. Bashir Hussain Kahlon was recalled and examined on 24‑11‑1983. He stated that he had examined Muhammad Tahir Iqbal appellant on 23‑9‑1981 and found following injuries on his person:‑‑

(1) An incised wound 3 c.m. x c.m. bone deep on the top of head at its middle.

(2) A lacerated wound 2 c.m. x c.m. x bone deep on the top of left shoulder.

(3) A contused marked 5 c.m. x 2 c.m. on the top of left shoulder.

(4) A contused mark 5 c.m. x 1 c.m. on the back of right shoulder.

(5) A contused mark 10 c. m. x 2 c. m. on the back of right upper chest.

(6) An abrasion c.m. x c.m. on the right elbow.

(7) A contused mark 2 c.m. x c.m. on the left elbow.

(8) A contused mark 10 c.m. x 2 c.m. on the back of right knee.

(9) A contused mark 3 c.m. x 2 c.m. on the right leg.

(10) A contused mark 3 c.m. x 2 c.m. on the left knee.

(11) A lacerated wound 2 c.m. x 1 c.m. x bone deep on the tip of left little finger."

Injury No. 1 was caused by sharp‑edged weapon and rest by blunt weapon. Injury No. 9 was declared grievous and rest were simple. Dr. Ajmal was examined as C.W. 1. He had examined Iftikhar alias Ifti appellant on 25‑9‑1981 and found following injury on his person:‑‑

"A lacerated wound 3/4 c.m. x 3/4 c.m. x depth not probed on the outer middle part of right leg."

The injury was caused by fire‑arm and was simple in nature.

8. The appellants other than Iftikhar alias Ifti were arrested on 23‑9‑1981. Muhammad Iftikhar was arrested on 25‑9‑1981 by Muhammad Yousaf D.S.P. P.W. 26. At the time of his arrest, Iftikhar was carrying 11 live cartridges P.7/1 to 11 and three empties of .12 bore P.8/1 to 3 which were taken into possession vide memo. Exh. P.T. attested by Muhammad Zaman, S.I. P.W. 20 and Muhammad Ali Inspector P.W. 25. The memo. was prepared by Muhammad Yousaf D.S.P. P.W. 26.

9. On 2‑10‑1981 Iftikhar led to the recovery of pistol P. 5 from roof of cycle stand which was taken into possession vide memo. P.Q. attested by Muhammad Saleem Head Constable P.W. 18, Khuda Bux, S.I. P.W.24 and Shah Muhammad (not produced).

On 1‑10‑1981 Abdul Ghaffar acquitted accused got recorded revolver P. 6 and two live cartridges P. 6/1‑2 which were taken into possession vide a memo. attested by Abdur Rehman, S.I. P.W. 19 and Saeed Ahmad Khan P.W. 21. The memo. has not been proved. It may be noted that no recovery was effected from the appellants other than Iftikhar alias Ifti and that no report from forensic science laboratory has been placed on record. The recoveries of pistol from Iftikhar appellant and revolver from Muhammad Ghaffar acquitted accused are thus of no consequence.

10. On 23‑9‑1981 Muhammad Khalid King (given up) P.W. who was an accused in the counter case led to the recovery of a gun from Tipu Hall which was taken into possession vide memo. Copy DL attested by Muhammad Zaman S.I. P.W. 20 and Muhammad Ali Inspector P.W. 25. On 24‑9‑1981 Nadeem Iqbal a given up P.W. who was also an accused in the counter case led to the recovery of a revolver from his room which was taken into possession vide memo. Copy DN attested by Muhammad Zaman P.W. 20, Muhammad Ali Inspector P.W. 25 and Khuda Bukhsh (not produced). The recovery memoranda were also signed by Muhammad Yousaf, D.S.P. P.W. 26.

11. To prove its case, the prosecution produced 26 witnesses, Shahid Aslam P.W. 9, Abdul Mateen P.W. 11, Ghulam Shaheen P.W. 12, Shahid Ahmad P.W. 13, Adeel Zafar P.W. 14 and Zahid Tauqir P.W. 15 have given the ocular account of the occurrence. They claim to have seen the appellants the three acquitted accused and Amjad Gujjar P.O. initiating attack and opening fire on them hitting the four injured P.Ws and the two deceased. Muhammad Yousaf D.S.P. P.W. 26 also claim to have seen the two groups of the students firing at each other at the time of occurrence. Syed Tassadaq Hussain Bokhari M.I.C. P.W. 17 had reduced into writing the dying declaration Ex. P.O. /2 made by Abdul Shakoor deceased before him on 5‑10‑1981 which reads as under:‑‑

Dr. Tanveer Ahmad P.W. 23 issued certificate Ex. P.O./3 with regard to the fitness of Abdul Shakoor to make statement before Magistrate. He also issued certificate Ex. P.O. /4 to the effect that dying declaration Ex. P.O./2 was recorded in his presence and that Abdul Shakoor remained fully conscious during the recording of aforesaid statement. Muhammad Saleem P.W. 18, Abdur Rehman P.W. 19, Muhammad Zaman P.W. 20, Saeed Ahmad P.W. 21, Muhammad Ali Inspector P.W. 25 and Muhammad Yousaf D.S.P. P.W. 26 have deposed about the recoveries of numerous weapons from Teepu Hall, live cartridges and pistol from Iftikhar appellant and revolver from Muhammad Ghaffar acquitted accused, gun from Muhammad Khalid King and revolver from Nadeem Iqbal P.Ws. (both given up) and the ten crime empties from first floor of Tipu Hall. Dr. Bashir Hussain Kahloon P.W. 1. has proved medico legal report pertaining to injuries of four injured P.Ws. and Abdul Shakoor while he was alive. Dr. Imtiaz Ahmad Gill P.W. 6 has proved the post‑mortem report of Muhammad Akram deceased. Dr. Muhammad Tahir Anees P.W. 16 has proved the post‑mortem report of Abdul Shakoor. Dr. Bashir Hussain Kahloon P.W. 1 when recalled on 24‑11‑1983 deposed about the injuries found on Muhammad Tahir lqbal appellant. Dr. Ajmal Mian was examined as C.W. 1. He proved the medico legal report relating to the injuries of Iftikhar alias Ifti appellant. The rest of the evidence is more or less of formal nature.

12. When examined under section 342, Cr.P.C., the appellants other than Iftikhar alias Ifti and Muhammad Tahir Iqbal, did not admit their presence on the spot and denied all the incriminating circumstances. Muhammad If tikhar and Muhammad Tahir Iqbal, however, gave a different version of the occurrence. Iftikhar appellant in answer to question No. 13 stated:‑‑

"On 23‑9‑1981 I was attracted to the place of occurrence after having come to know that Tahir Iqbal accused and Amjad Ali, P.O. were being beaten by students belonging to Islami Jamiat Tulba near Tippu Hall in the Agriculture University. I rushed to the place of occurrence like many others. The moment I reached the place of occurrence, Abdul Shakoor, since deceased, belonging to Islami Jamiat Tulba fired at me with the gun with which I was injured."

Muhammad Tahir Iqbal appellant in reply to the question No. 11 stated:‑‑

"On 22‑9‑1981 Nasir Zaheer and Abdur Rehman Councillor belonging to Inqlabi Council, had beaten Ibrar Ahmad Ghori P.W. on account of the incident dated 21‑9‑1981 during the meeting arranged by Islami Jamiat Tulba. As a result of retaliation, when myself and Amjad Ali, P.O. were passing in front of Tippu Hall, we were attacked by Zahid Tauqeer and other students belonging to Islami Jamiat Tulba, accused in the cross case under section 325, P.P.C., assaulted us and caused injuries to me, and immediately I was removed to the DHQ Hospital, Faisalabad where I was medically examined".

No evidence was produced in defence.

13. Learned counsel for the appellants argued that the six eye‑witnesses produced by the prosecution are interested and partisan; that Shahid Aslam and Zahid Tauqeer were not present on the spot and had not seen the occurrence; that the four injured eye‑witnesses are not truthful witnesses although they were present on the spot; that the eye‑witnesses have suppressed the injuries found on Iftikhar

and Tahir Iqbal appellants; that the ocular testimony is in conflict with the medical evidence; that the ocular evidence is mutually contradictory; that no reliance can be placed on the dying declaration Ex. P.O./2 because the same is not only a belated one but also a tutored statement; that the appellants other than Iftikhar and Tahir Iqbal were not present on the spot at the time‑of occurrence; that in view of the incidents dated 22‑9‑1981 and 23‑9‑1981, which were suggested to the eye‑witnesses, the motive lay with the complainant party in making attack on the two injured appellants; that the deceased party was in fact aggressor; that the students belonging to Islami Jamiat Tulba had opened the attack and injured Iftikhar and Tahir Iqbal and that there is reasonable possibility that the plea of self defence suggested in cross‑examination might be true. The learned counsel for the State was of the view that it was a case of free fight between the two groups of students and as such each participant was liable for his individual act. Mr. Muhammad Ismail Qureshi, the learned counsel for the complainant attempted to support the judgment of the learned trial Court. He maintained that the eye‑witnesses are wholly dependable; that nothing is wrong with the version of the prosecution; that the four eye‑witnesses being injured, their presence at the spot cannot be questioned; that it was a case of pre‑planned murder and murderous assault and that the prosecution case cannot be thrown out on the ground of the suppression of the injuries of the two appellants by the eye‑witnesses.

14. We have anxiously attended to the elaborate arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the appellants recorded under section 342, Cr.P.C. and the circumstances appearing in the case, with care. We have appreciated the case in the light of the observations made in Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 S C 502, Abdur Rehman v. Gadai Khan and others 1972 S C M R 676 and Inayat Ullah and others v. The State PLD 1966 Lah. 8. We find that although the parties have given different versions of the occurrence yet there is no dispute with regard to the time of occurrence; place of occurrence; the existence of hostility between the two groups of the students as the complainant party belong to Islami Jamiat Tulaba whereas the appellants belong Inqlabi Council; that the presence of four eye‑witnesses and presence of Iftikhar and Tahir Iqbal, the two injured appellants on the spot at the time of occurrence. Since the appellants were found injured and the duration of their injuries tally with the duration of the injuries of the complainant party so it could be reasonably presumed that both the parties were injured by each other during the occurrence. The eye‑witnesses have not explained the injuries found on the two appellants nor did the appellants and the acquitted accused explain the injuries suffered by the two deceased and the four injured P. Ws. The parties as usual have not come with whole truth. Each party has tried to minimise the part played by it in the occurrence and has told incomplete tale of the incidence. This however, should not deter us from ascertaining what actually happened at the eventful time and from drawing inference that properly flow from the evidence and attending circumstances. Undoubtedly the eye‑witnesses and the appellants belong to rival groups of students and there was acute hostility between them. The complainant alone has deposed about the motive part of the prosecution case i.e. incident of 21‑9‑1981 in which students of Inalabi Council were turned out from Jehad Conference by the students of Islami Jamiat Tulaba. On the other hand, it was suggested to Shahid Aslam P.W. 9 in cross‑examination that students belonging to Inqlabi Council had beaten Ibrar Ahmad Ghauri P.W. (not produced) on 22‑9‑1981. It was suggested that Ibrar Ahmad Ghauri had submitted written application relating to that incident dated‑‑against Iftikhar Ahmad‑‑Khalid King appellants, Sohail acquitted accused, Amjad Gujjar P.W. and others which was referred to inter Faculty Board Advisory Committee. It was also suggested to the complainant that as a consequence of the incident of beating to Tahir Ahmad Ghauri by the students of Inqlabi Counsel, the students of Islami Jamiat Tulaba had attacked the students belonging to Inqlabi Council on 23‑9‑1981 immediately before the occurrence. Muhammad Yousaf D.S.P. has stated that Muhammad Ghaffar acquitted accused had raised the plea that on 22‑9‑1981, the students belonging to Inqlabi Council had beaten lbrar Ahmad Ghauri belonging to Islami Jamiat Tulaba as a result of which the students belonging to Islami Jamiat Tulaba had attacked and beaten Amjad Ali P.O. and Muhammad Tahir Iqbal appellant on 23‑9‑1981. Immediately before the present occurrence. It is worth notice that the appellants did not care to substantiate and prove the aforesaid suggestion made to Muhammad Aslam Shahid P.W. 9 and the plea raised by Muhammad Ghaffar acquitted accused before the D.S.P. which could have easily been proved by producing the copy of the complaint made to the Advisory Committee and also the proceedings taken on that application. When confronted with the situation, the learned counsel for the appellant moved application for permission to produce additional evidence which was dismissed by us as being very late in the day. No witness was produced by the appellants to prove the aforesaid incidents dated 22‑9‑1981 and 23‑9‑1981. The prosecution has also not produced any independent evidence with regard to the incident which allegedly took place at the time of Jehad Conference on 21‑9‑1981. The dying declaration Ex. P.O. is also silent on the point of initiation of the attack. There is thus no satisfactory evidence/ circumstance to threw light on the origin of the occurrence. There is no reliable material either to show which of the two parties took the initiative or in the matter of fact, whether the appellants attacked and assaulted their victims i.e. the two deceased and four injured P.Ws. before or after the two appellants namely Iftikhar, Tahir lqbal were attacked and injured. The relation between the parties were such that a very trivial incident could bring them into conflict and encounter. By the fact of injuries on the two appellants, it is clear to us that the complainant party was also armed with fire‑arms etc. Muhammad Yousaf' D.S.P. P.W. 26 saw the rival groups firing at each other from inside the Tippu Hall and from crossing the road in front of Tippu Hall. Wel do not see any reason to disbelieve him. His evidence cannot be rejected for the reasons of the office he holds especially when it finds support from unimpeachable circumstances e.g. the recoveries of ten crime empties from the top of floor of Tipu Hall, guns from the two P.Ws. and various weapons recovered from Tippu Hall and the existence of hostility between the appellants and the complainant party. The injuries found on Iftikhar and Tahir Iqbal are not superficial. One of the injuries found on Tahir Iqbal appellant is grievous in nature. The injuries of the two appellants have certainly been caused by an enemy hand. In the peculiar circumstances of this case enumerated above, the entire evidence of the eye‑witnesses as well as dying declaration Ex. P.O. /2 cannot be rejected merely on the ground of suppression of the injuries of the two appellants by the eye‑witnesses. The failure on the part of the deceased to explain the injuries of the two appellants in dying declaration Ex. P.O. does not effect its veracity adversely. Abdul Shakoor who had been seriously injured could not be expected to make a detailed narration of the occurrence. Furthermore in case of this kind more particularly when there was a cross case against the eye‑witnesses, the suppression of the injuries of the opposite party in order to minimise the part played by them is understandable. The injuries found on the person of the four eye‑witnesses confirms their presence on the spot. By the fact of immediate arrest of Aslam Shahid and Zahid Tauqir P.Ws. on the spot, their presence at the time of occurrence is also established beyond reasonable doubt. The occurrence having taken place in broad daylight, the eye‑witnesses and Abdul Shakoor deceased was in a position to identify their assailants who were previously known to them. No, doubt the eye‑witnesses are partisans but there cannot be an inflexible rule that the evidence of partisan witness should be rejected in all cases. It is well‑settled that each case has to be decided on its own facts. Having appreciated the dying declaration just like a statement of an interested witness, we have come to the conclusion that statement Ex. P.O. was not only made by the deceased but was also truly made. The dying declaration is not detailed one. It does not contain the names of all the accused‑‑the names of all the accused and the names of the injured witnesses and is confined to the circumstances in which the deceased Abdul Shakoor received injuries. The dying man had not attempted to involve all the accused. Had the dying declaration been tutored then the statement Ex. P.O. would have been in conformity with the statement of the eye‑witnesses. The Magistrate is quite an independent witness. The dying declaration was recorded in the presence of the doctor. The doctor has given certificate to this effect. In this view of the matter we find it safe to rely on this piece of evidence. From the aforesaid state of affairs, a legitimate conclusion can safely be drawn that both the parties had armed themselves in full expectation of an armed conflict and each party anticipating resistance from the other, was determined to have a trial of strength. May it be for teaching lesson to the opposite party or to establish its supremacy. Since in entering upon the armed conflict, each party deliberately took upon itself the risk of encounter therefore, the right of self‑defence of person was not available to either of them. The plea of right of self‑defence was also not specifically raised by the appellants in their statements recorded under section 342, Cr.P.C. The same has neither been proved through defence evidence nor is spelt out from the prosecution case or circumstances appearing therein. It was not sufficient for the appellants to suggest a mere hypothesis or a remote possibility of availability of right of self defence to them. In order to gain a favourable verdict, it was necessary to set up facts upon which they relied as exculpatory circumstances sufficient to cast a reasonable doubt over the prosecution case, but this has not been done. So we have no doubt in our minds that there was in fact a free fight between the parties in which Abdul Shakoor and Muhammad Akram lost lives and four P.Ws. as well as the two appellants received injuries and as such each appellant would be liable for his own act.

15. This brings us to the question of the guilt of an individual) appellant. The ocular evidence and the dying declaration Ex. P.O. /2 leaves no room for doubt that Abdul Shakoor received injuries by

shot fired by Iftikhar appellant. Abdul Shakoor has categorically stated in his dying declaration Ex. P.O./2 that:‑‑

The kind of the weapon used by Iftikhar, and the seat of the injury selected by him, shows that he had no intention but to kill Abdul Shakoor. Despite our observation that there was free fight between the parties, we would hold Iftikhar appellant guilty of an offence of murder punishable under section 302, P.P.C. No doubt in case Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 S C 502 it was observed that:‑‑

"We also agree with the view taken by the Additional Sessions Judge that the offence committed is culpable homicide, but does not amount to murder, inasmuch as the death of Ahmad Bepari occurred in the course of a fight between two bodies of men who were deliberately fighting together both sides being armed and no unfair advantage appearing upon the evidence to have been taken by Nibaran Mollah in the course of fight. The sentence of rigorous imprisonment for seven years awarded to Nibaran Mollah also does not seem to be at all on the side of severity."

Yet in a subsequent case of Abdur Rehman v. Gadai Khan and 3 others 1972 S C M R 676 in which Ali Bepari's case was also considered, the accused who had caused death of the deceased in a free fight was punished and sentenced under section 302, P.P.C. The relevant paras may be reproduced advantageously:‑‑

"Judging the present case in the light of these principles, it becomes clear that the High Court was in error in acquitting the respondents. The dying statement as well as the ocular evidence left no doubt that Dadan Khan was killed by the shot fired by the respondent Ajab Khan, whereas Mahmood Khan was killed by the shot fired by the respondent Gadai Khan. Similarly the respondent Ashraf was responsible for firing at the witness Abdur Rehman in such circumstances and with such intention that if Abdur Rehman had died the offence would have been that of murder, and the respondent Ajab Khan and Ashraf were also responsible for causing injuries to the witness Kala Khan by the butt ends of their guns..

On this view of the matter we would accept the appeal and convict Ajab Khan under section 302, P.P.C. for causing the death of Dadan Khan deceased and under section 325, P.P.C. for causing injuries to Kala Khan. As the respondent was acquitted by the High Court as long ago as 2‑10‑1969 and on his death sentence being set aside he has acquired an expectancy of life, we would not impose on him the extreme penalty for murder. Accordingly, he is sentenced to imprisonment for life under section 302, P.P.C. and to three years rigorous imprisonment under section 325, P.P.C. both sentences to run concurrently.

We would similarly convict the respondent Gadai Khan under section 302, P.P.C. for causing the death of Mahmood Khan deceased and for the same reason sentence him to imprisonment for life."

There may be cases in which act of killing in a mutual fight may be an offence of culpable homicide not amounting to murder but the instant case is certainly not of that type. The facts of the present case are more identical with the facts of the case titled Abdur Rehman v. Gadai Khan and others reported as 1972 SCMR 676. So respectfully following the judgment in case "Abdur Rehman v. Gadai Khan and others 1972 SCMR 676 which is also later in time to Ali Bepari's case PLD 1962 SC 502 we maintain the conviction of Iftikhar alias Ifti under section 302, P.P.C.

Similarly the charges under section 307, P.P.C. have been brought home to Muhammad Tahir Iqbal, Muhammad Khalid King, Shahid Iqtidar and Abdul Majeed. Muhammad Khalid King fired shot hitting Abdul Mateen P.W. 11. Shahid Iqtidar fired shot hitting Ghulam Rasool P.W. 12. Abdul Majeed fired shot hitting Shahid Ahmad P.W. 13 and Tahir Iqbal fired shot hitting Adeel Zafar P.W. 14, in such circumstances and with such intention that if the four injured P.Ws. had died, the offence would have been that of murder. The occurrence took place in the light of the day. The injured P.Ws. were in a position to identify their assailants. No case for the substitution of the aforesaid four appellants in place of real culprits has been made out. Each injured P.W. was the best witness of his assailant. There is no reason why they would falsely name the four appellants as their assailants.

16. We have considered the question of sentence of the appellants with utmost care bearing in mind all the circumstances surrounding the guilt. We find mitigating/extenuating circumstances in favour of Iftikhar Ahmad for lesser penalty inasmuch as he had also received a fire‑arm injury although simple in nature. As for Muhammad Tahir Iqbal, Muhammad Khalid King, Shahid Iqtidar, and Abdul Majeed appellant, the sentence of five years R.I. and a fine of Rs.4,000 each awarded by the trial Court under section 307, P.P.C. does not appear to be on the side of severity.

17. The upshot of the above discussion is that while accepting the appeal partly, we acquit the appellants of the charges under section 148, P.P.C. and section 302/149, P.P.C. for the murder of Muhammad Akram deceased. The appellants other than Iftikhar alias Ifti are also acquitted of the charge under section 302/149, P.P.C. for the murder of Abdul Shakoor. Iftikhar appellant is acquitted of the charges under sections 307/149, P.P.C. The conviction of Iftikhar u/s 302, P.P.C. for the murder of Abdul Shakoor is maintained but sentence of death is altered to imprisonment for life. The fine of Rs.8,000 or in default thereof two years R.I. and the direction for the payment of Rs.4,000 to the legal heirs of Abdul Shakoor deceased or in default thereof six months R.I. are maintained. The convictions of Muhammad Tahir Iqbal, Muhammad Khalid King, Shahid lqtidar and Abdul Majeed appellants under section 307/149, P.P.C. on three counts are set aside but conviction and sentence under section 307/34, P.P.C. on one count only is maintained. The fine of Rs.4,000 and sentence of one year R.I. in default thereof and direction of payment of Rs.2,000 each to the injured P. Ws. on one count are also maintained.

The sentence of death is NOT confirmed.

M.Y.H./I‑30/L Appeal partly accepted.

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