P L D 1976 Supreme Court 557 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This appeal originated in an incident which took place thirteen years ago in the heart of the city of Rawalpindi resulting in the murder of one Muzaffar Khan Piracha. The occurrence took place on 13.2‑63 at 2‑00 p.m. and was reported within 20 minutes at the Police Station 1f furlong away, by Noor Elahi P. W. 3, It was as elaborate report containing the names of the three accused, namely Zafarul Haque and his son Ikramul Haque respondents herein and Nawazul Haque another son of Zafarul Haque, the names of the four eye‑witnesses viz. the complainant, Fayazuddin P. W. 4; Fazal Flahi P. W. 5 and Mst. Pukhraj P. W. 6 all Pirachas by caste, residents of the same locality of whom the last mentioned lady was injured during the incident. The version disclosed in the report was that the locality was inhabited by two factions of Pirachas and Chaudharis, of which the deceased and the P. Ws. belonged to the former while the accused belonged to the latter. The factionalism was evidenced by the long standing political rivalry, election contests and the dispute over the name of the locality, which was officially named after the father of Ch. Zafar‑ul‑Haque and was known as the Mohallah Waris Khan which the Pirachas preferred to call as Mohallah Pirachgan and also unsuccessfully tried to get it altered in the municipal record. Political rivalry ,was further accentuated by a romance between the deceased who was a registered bad character and Mst. Jamila Khatoon daughter of Jahan Dad a first , cousin of Ch. Zafar‑ul‑Haque respondent. Jamila Khatoon who was already married to one Tariq Azim a sister's son of her father deserted her husband and started living with the deceased whom she later married after obtaining an ex parte decree for dissolution of marriage, almost a year prior to the occurrence. It was to avenge this ignominy that the three accused of whom Ikram‑ul‑Haque was armed with a pistol and his father Zafar‑ul‑Haque carrying a stick along with the latter's second son Nawaz ul‑Haque who was empty‑handed allegedly came to Street No. 23 and finding the deceased going ahead of them challenged him saying that he would be taught a lesson for marrying Mst. Jamila Khatoon. As the deceased turned round Ikram‑ul‑Haque fired at him several shots with his pistol in quick succession killing him at the spot. Mst. Pukhraj invain tried to intervene and was given 5/6 stick blows by Zafarul Haque. The case was initially investigated by Ch. Ali Muhammad S. H. O., Police Station 'C' Division, Rawalpindi under the supervision of D. S. P. Muhammad Iqbal. He rushed to the spot, recovered a piece of lead and blood‑stained earth from the spot, sent the dead body for post‑mortem examination and within a couple of hours of the occurrence recorded the statement of the eye‑witnesses mentioned in the F. I. R. and completed the preliminary investigation of the case. Late in the evening Maula Dad D. W. 5 a first cousin of Zafar‑ul‑Haque produced before the Investigating Officer one Banaras a servant of Walayat Khan brother of Zafar‑ul‑Haque giving a counter version that he had a fight with Muzaffar Khan deceased over the removal of the sign board bearing the name of the Mohallah and had given him hockey stick blows in defence which proved fatal. In support of this version five persons namely Muhammad Iqbal son of Abdur Rehman, Muhammad Sharif, Muhammad Ashraf, Muhammad Iqbal son of Hayat Muhammad Qureshi and Muhammad Bashir Awan appeared, before the police who were later examined as C. Ws. at the trial. Zafar‑ul‑Haque and Nawaz‑ul‑Haque also led evidence of alibi before the police taking the plea that at the alleged time of occurrence they had hosted a lunch in honour of their Sikh friends who had come to visit Punja Saheb on the Baisakhi festival. Bringing of the counter version on the police record was construed by the complainant party as a deliberate attempt on the part of the investigating agency to spoil the case and on their representation the investigation was entrusted to the crimes branch on 24‑3‑

63. As a result of its investigation the police finally challaned Ikrsm‑ul -Haque who was also the principal accused according to the complainant version and Banaras the star witness of the defence version who on his own showing had fatally injured the deceased in self‑defence. Being dissatisfied Noor Elahi the first informant filed a separate complaint in Court Exh. P. BB which was a faithful reiteration of the F. I. R. lodged by him. The Committing Magistrate in two parallel proceedings made different orders of committal in accordance with the respective versions of the complainant and the police. Lt was in these peculiar circumstances of the case that the question of procedure to be adopted at the trial was taken to the Supreme Court and was finally determined in Noor Elahi v. The State etc. (PLD1966SC708). It was laid down by this Court that a consolidated trial should begin with the examination of the complainant witnesses also with witnesses common to both the versions to be designated as P. Ws. Then should follow the examination of witnesses exclusive to the police version as Court witnesses so as to be cross‑examined by both sides. Although Ikramul Haque was the one accused common to both the versions and was sent up both in the complaint case as well as in the police challan, yet the C. Ws. appearing in support of the latter version deliberately tried to create a confusion as to his identity and categorically asserted that Ch. Ikram the accused in the challan case was a person different from Ikramul Haque in the complaint case. They also showed ignorance of his parentage and this crude attempt on their part merely exposed their mandacity. At the trial the accused totally denied the allegation, attributed their false implication to party‑factions, disowned the motive alleging property dispute with Jahan Dad father of Mst. Jamila Khatoon and raised a plea of alibi. Zafarul Haque further observed that he was a 70/72 years old man suffering from "rheumatism" and was physically incapable of participating in the commission of the crime. They examined five witnesses in defence whose testimony in substance was that there was acute political rivalry between the Pirachas and the Chaudharis as evidenced by election contests and dispute over the name of the mohallah, than Zafarul Haque and his son mere at loggerheads with Jahan Dad father of Jamila Khatoon and therefore unconcerned with the latter's marriage with the deceased and that at the relevant time Zafarul Haque and Ikramul Haque were busy in entertaining their Sikh guests at their residence. Having considered the evidence on the record available in the testimony of P. Ws. and C. Ws. the learned Sessions Judge came to the conclusion that the C. Ws. were down right liars and were set up to support a false version, conjured up with the connivance of the local police whose investigation was thoroughly dishonest. On the other hand the complainant's version based on a promptly lodged initial report and fully supported by the witnesses mentioned therein including Mst. Pukhraj who had the stamp of injuries to establish her presence at the spot, was found to furnish a natural consistent and convincingly true account of the occurrence, which received full support from medical evidence. However the learned Judge did not endorse the invocation of section 34, P. P. C. and consequently held Ikramul Haque alone guilty of murder and sentenced him to death. Nawazul Haque was acquitted on being found entitled to benefit of doubt. Zafarul Haque was convicted under section 323, P. P. C. for causing simple hurt to Mst. Pukhraj and was awarded a sentence of Its. 500 as fine. In appeal and reference the leaned Judges in the High Court took the view that trial Court's approach in starting with the discussion of defence evidence in the first instance, before coming to the prosecution case which had to stand on its own legs, was erroneous and misconceived, and that the two sets of site plans Exhs. PE, PE/1 and PE/2 prepared on 24‑4‑63 and Exhs. PE/5 and PE/6 prepared on 25‑6‑63 purported to show that all the four eye‑witnesses had seen the occurrence from one and the same place indicated at point No. 2, ran counter to the prosecution case. It was further held that the defence version put forth by Banaras and other C.Ws. was also not without force offering a plausible explanation of the head injury of the deceased which otherwise remained unaccounted for. All these reasons disposed the High Court to the acceptance of the appeal and acquittal of the accused. Feeling aggrieved Noor Elahi complainant challenged the judgment in a petition for special leave to appeal. Leave was granted by this Court to examine the contention that the High Court's judgment of acquittal proceeded on untenable grounds and in disregard of the well settled principles of the administration of justice. The case for the appellant was argued by Mr. Brohi who pleaded for the restoration of the trial Court's judgment which was defended by Mr. Mahmud Ali Kasuri who represented the respondents. Lengthy arguments were addressed by the learned counsel who took us through the evidence and the forensic battle continued for six days during which lengthy arguments were addressed leaving us with copious notes. The sheet‑anchor of Mr. Brohi's case was the promptly lodged elaborate F.I.R. giving an unembellished eye‑witness account with all the essential details about the accused, the weapons of offence and the eye‑witnesses one of whom Mst. Pukhraj had sustained five blunt weapon injuries alleged to have been caused by Zafarul Haque. He tried to highlight the fact that the' F.I.K. disclosed a very natural and unexaggerated version attributing the fatal pistol shot injuries only to one of the assailants Ikramul Haque without even placing a weapon in the hand of his brother Nawazul Haq whose participation was confined only to the throwing of a challenge, although the attribution to him of one or two of the five shots ascribed to his brother Ikramul Haque could have been readily believed without creating an element of doubt and yet nothing of the kind was done. Likewise the part ascribed to Zafarul Haque and confined only to the giving of stick blows to Mst. Pukhraj remained unaggravated. Not only this, all the four eye‑witnesses were present at the spot to be examined by Ali Muhammad Sub‑Inspector within half an hour of the occurrence. It was emphasised that Zafarul Haque being an ex‑MPA and an influential person and head of the Chaudhary family had successfully tackled the local police and in collusion with it invented a counter version which could not stand the test of a close scrutiny. It was further submitted that the trial Courts had advanced cogent reasons for rejecting the counter version as a sheer fabrication. Criticising the judgment of the High Court Mr. Brohi contended that so long as the trial Court disclosed full awareness of the correct principles of administration of justice and in particular the well estab lished rule that the weakness or even the falsity of defence doss not absolve the prosecution of its responsibility to discharge the heavy onus of proving its case beyond reasonable doubt, the sequence of discussion and in particular the examination of the counter version to start with was wholly immaterial and unnecessarily prejudiced the mind of the learned Judges in the High Court so as to tilt the balance against the appellant. In defence of the sequence adopted by the trial Court it was argued that in case the trial Judge had found some substance in the defence version which was discussed at the outset it would have simplified the matter and obviated the necessity of a thorough and detailed examination of the prosecution case on the principle of preference of the alternative version favourable to the accused. As regards the discrepancies between the first two sets of site plans on the one hand prepared on 24‑4‑63 and 28‑6‑63 which were completely identical showing all the eye‑witnesses at point No. 2, and the last set on the other prepared on 25‑2‑64 and attached to the complaint showing the eye‑witnesses at different points, and the capitali sation by the High Court, of these discrepancies it was contended that the site plan did not per se constitute substantive evidence as held by this Court in Taj Muhammad v. Muhammad Yusuf and others (P L D 1976 S C 234) and in any case the patent error in the first two sets showing all the eye‑witnesses at one and the same point was yet another circumstance to prove the dishonesty of the police investigation in an attempt to spoil the complainant's case. It was argued that Barkatullah draftsman P.W. 17 had frankly admitted that none of the eye‑witnesses had pointed out to him the respective places from where they saw the occurrence. Even otherwise it was common knowledge that the preparation of the site plans was mostly the doing of the Investigating Officer. Lastly it was submitted that the falsity of the defence version based on fabricated evidence of injuries on the person of Banaras a servant of Walayat Khan the brother of Zafarul Haque sought to be supported false and trumped up witnesses was a relevant circumstance which strongly reacted in favour of the complainant s case lending collateral support to it. On the other hand taking us through the evidence of the complainant's witnesses Mi. Mahmood Ali Kasuri strenuously contended that in view of the admitted political rivalry between Pirachas and Chaudharis, the P.Ws. who one and all happened to be Pirachas by caste could not be characterised as wholly disinterested. Their keenness to suppress their relationship inter se as also with the deceased, their denial of the patent fact of the existence of Piracha Association which stood established by documentary evidence and last but not the least their painstaking anxiety to deny the fact that the deceased was a registered bad character went a long way to show that they were hostile and interested witnesses whose testimony could not be accepted without independent corroboration. It was further contended that even otherwise the account furnished by the eye‑witnesses did not inspire confidence and besides leaving unexplained the significant blunt weapon injuries on head and chest of the deceased was patently false inasmuch as it was inconceivable that a person having received two bullet shots in the chest should still have kept standing as the P.Ws. would have us believe. It was next su1‑mitted that no independent corroboration of their testimony being available it could not form the basis of conviction as rightly held by the High Court. Lastly it was submitted that surprisingly enough not a single witness from street No. 23 the venue of the crime, came forward to support the complainant's version, all the P.Ws. being residents of street No. 3 from where the place of occurrence was not visible. Taking first the motive as alleged by the complainant‑appellant in the first information report and later deposed to by him and the other P.Ws. at the trial, namely, that the Chaudharis were smarting under the disgrace suffered by them at the hands of the deceased who earlier carried a liaison with Mst. Jamila Khatoon, daughter of Jehan Dad a first cousin of Zafarul Haque and later married her after helping her in obtaining a decree for dissolution of marriage and that Zafarul Haque being a leader of the family took it upon himself to avenge the ignominy, it may be straightaway observed that the romance of this lady with the deceased and her obtaining a Court decree and later marrying the deceased are facts which stand fully established and are not disputed. However there is evidence on the record to show that Zafarul Haq and his sons were not on good terms with the parents of the girl and in fact had disputes over property with them and a couple of months before the occurrence, Jehandad father of the girl had sent a complaint to the Provincial Governor against Zafarul Haque and his sons alleging forcible occupation of his residential plot on Murree Road. This complaint is Exh. DH on the record. An objection was, however, taken by Mr. Brohi to its admissibility in evidence on the ground that it had not been formally proved as the complainant Jehandad had not entered the witness‑box. I am not inclined to agree with Mr. Brohi. In the first instance, no objection seems to have been taken to its admissibility. Again it could not be conceivably a forged or fabricated document and in fact no such suggestion was made to Muhammad Iqbal, D.S.P'., C.W. who placed it on the record. The date and the relevant endorsements on it speak for its genuineness. Again the fact of enmity between Jehandad and Zafarul Haque etc. was within the personal knowledge of the D.S.P. as stated by him in cross‑examination. In the circumstances, the Court was justified in taking it into consideration in the interest of justice. The reasons for non‑appear ance of Jehandad its maker are not far to seek inasmuch as by entering the witness‑box he would not have only helped his enemies but would have also exposed himself to embarrassing cross‑examination regarding the immorality of his daughter. But even otherwise, there is evidence aliunde to show that there were several other reasons for the two branches to be at loggerheads. Najmun Nisa a sister of Mst. Jamila and second daughter of Jehandad was divorced by her husband Haq Nawaz son of Mauls Did D. W. 5 who later married a daughter of Zafarul Haque. It may not be out of place to point out in this context that Waris Khaa father of Zafarul Haque respondent, Shabdad Khan father of Mauladad D. W. and Gul Siraj father of Jehandad and grandfather of Jamila were real brothers. Zafarul Haque, Mauladad and Jehandad were therefore, first cousins but the relations of the branch of Gul Siraj were strained with the other two branches of Shahdad Khan and Waris Khan whose cordiality Inter se stood established by the prominent role played by Mauladad in the fabrication of the defence version. His son Haq Nawaz had remarried the daughter of Zafarul Haque respondent after divorcing the daughter of Jehandad. It may also be observed in the same context that the trial Court's observation that before her marriage with the deceased Mst. Jamila was married to Tariq Azim a sister's son of Zafarul Haque is incorrect in asmuch as Tariq Azim was the son of Mst. Zainab Bibi, sister of Jehandad and as such first cousin of Zafarul Haque. The bad blood between Jehandad and Zafarul Ilaque notwithstanding it would not be difficult to appreciate that as a former MPA and ex‑Chairman of Municipal Committee, Rawalpindi, Zafarul Haque and his sons being the leading branch shared the family disgrace perhaps with greater sensitivity and yet for full one year they did not move in the matter. It appears tome that something did transpire between the parties bringing to the surface the smouldering under current which precipitated the occurrence serving as its immediate motive. In fact there is ample evidence on the record that B there had been constant political rivalry between Chaudharis and Pirachas. Some of the eye‑witnesses like Noor Elahi and Fazal Elahi personally contested Municipal Elections a8ainst the respondents. This rivalry was also manifested in the dispute over the name of the mohallah which the P.Ws. seemed rather anxious to suppress. In fact Abdul Majid P.W. 10 had specifically referred to a dispute between the deceased and Nawazul Haque over the sign board bearing the name `Mohallah Chaudharian' which the deceased tried to substitute by one bearing MohallAh Pirachgan only two days before the occurrence. Implied support is also lent to this by the defence version itself that there was a fight between the deceased on the one side and Banaras servant of Walayat on the other on this account. I am thus clearly of the view that it was this dispute over the name of Mohallah which triggered off the incident. It was perhaps too much for Zafarul Haque and his sons to pocket this injury added to the insult and having learnt about the removal of the sign board by the deceased in all probability Zafarul Haque and his sons had come to settle it with him once for apt. The motive, therefore, stands established as rightly held by the trial Court. It was contended on behalf of the respondent that being a 70/72 years old man it should have been neither necessary nor probable for Zafarul Haque to personally join the criminal errand and participate in the murder of the deceased particularly when his servants and sons were readily available to do the job. No doubt such a possibility cannot be ruled out but it is not possible to computerise the diversity of human behaviour and or comprehend the complexity of human psychology. It was also contended that when Jehandad's own grown‑up sons and his nephew i. e. son's brother Anwar and above all his daughter's son Tariq Azim the former husband of Jamila were very much alive and present to avenge the insult, Zafarul Haque and his sons should not have taken upon themselves to fight their battle and run the risk of serious involvement in and the legal consequences of murder. I have already stated that being the senior most and leading branch of the family perhaps Zafarul Haq and his sons were more sensitive about the question of family honour and even if they bad pocketed the earlier insult the alteration of the name of Waris Khan father of Zafarul Haq after whom the locality was named was too much to be taken laying down by them. I next come to the defence version and would like to adopt the same sequence as was followed by the trial Court in the order of discussion of evidence. In the peculiar circumstances of the case the promptitude with which the initial report was lodged and the strong impression that it conveyed of being straightforward and unembellished as evidenced by the attribution of the pistol shots to Ikramul Haq alone placing no weapon in the hands of Mawazul Haq and only a stick, may be walking stick in the hands of Zafarul Haq, supported by 5 blunt weapon injuries on the person of Mst. Pukhraj who in vain tried to intervene and rescue the deceased, clothes this version with very high solemnity. It is indeed significant as contended by Mr. Brohi that all the P. Ws. mentioned in the F. I. R. were present at the spot and their statements were recorded by the Investigating Officer within a few minutes of his arrival, whereas on the own showing of the Sub. Inspector it was not till 9‑00 p. m. that Banaras was produced by Mauladad before him alongwith some other persons who supported the counter version and were later examined as C. Ws. The admitted fact that Banaras was a servant of Walayat real brother of Zafarul Haq and had thus readily offered himself as the object of painful fabrication of self‑suffered injuries to trump up as false version is not improbable in the circumstances. If that were really so Zafarul Haq or his cousin Mauladad or some one from among other persons should have immediately rushed to the police station to lodge a report only a few yards away from their house which they never did. `It was contended on behalf of the respondent that the blunt weapon injuries on the head of Banaras could not have been self‑suffered. This Court has experience of cases though very rare indeed where elderly persons have volunteered to court death at the hands of their near ones for the false implication of their enemies. It is also a matter of common observation that fire‑arm injuries on the leg or arm have been very ingeniously suffered by projecting them from behind a shelter such as tree. Likewise the plea of alibi sought to be raised by Zafarul Haq and his son Nawazul Haq on the pretext of ‑the entertainment of Sikh visitors of Punjah Saheb had nothing to commend itself and in fact I have been least impressed by the evidence of Capt. Aurangzeb D. W. 3 and Mirza Muhammad Shafi, D. W.4D which does not inspire confidence and looks more like a cock and bull story, notwithstanding the fact that it was sought to be projected with the `blessings of the investigating agency. I therefore fully agree with the trial' Judge's appraisement in this regard who had the additional advantage of studying the demeanour of the witnesses. This brings me to the crucial point in the case as to whether implicit reliance could be placed on the P. Ws. as witnesses of truth or whether they are interested witnesses whose testimony being of a partisan character could not be accepted without independent corroboration and if so what corroboration of their testimony, if any, is available on the record. In my opinion the answer to the question is very simple. In the background of the political rivalry between the Pirachas on the one side and the Chaudharis on the other as evidenced by the direct participation of some of the P. Ws. and the accused in the Municipal elections contesting against each other and the dispute over the name of the locality which appears to have been made a point of prestige between them, it would not be proper and safe to place implicit reliance on the testimony of the P. Ws. who were all Pirachas and whose alignment against the accused could be straightaway presumed. The undeniable presence of the witnesses at the spot cannot vouchsafe their veracity and even if maximum credit were given to the promptitude with which the report was lodged containing the names of the eye‑witnesses and the accused, this would hardly guarantee their unadulterated absolute truthfulness. In fact in the background of long standing and deep‑rooted rivalry between the parties, I cannot avoid an expression that the successful romance of the deceased a knight errant of the Pirachas with a girl of the Chaudhary family had almost dealised him as a hero of his community and a symbol of its prestige to which considerable glamour had thus been added with a corresponding ignominy to their adversaries. Considered in this background the P. Ws. could not be characterised as disinterested, but this is not all. Apart from the established' position that there was a constant tug‑of‑war between the parties and there also existed a Piracha Association as clearly evidenced by Exh: DM/2 and whose existence the P. Ws. were at pains to deny, there are other important considerations which strongly militate .against their objectivity as witnesses of truth. Each one of them took meticulous care to suppress their relationship inter so as also with the deceased which otherwise stood fully established by piecing together the odds and ends of stray admissions extracted from them in this regard. Likewise each one of them had deliberately tried to suppre3s the much too evident fact of the deceased being a previous convict and a registered bad character. All this would go a long way to show that notwithstanding the solemnity with which the promptly lodged F. I. R. could be clothed it would 7.not be safe to place implicit reliance on the testimony of the eye‑witnesses which ,needed strong and independent corroboration. Even otherwise, the account furnished by them leaves unexplained the blunt weapon injuries on the top of the skull of the deceased which also weighed with the High Court in disposing it to a judgment of acquittal. I have already come to the conclu sion that the witnesses were present at the spot and furnished an account having a ring of truth and suffering from no inherent improbability and yet for reasons detailed above requiring independent corroboration the question would arise as to what confirmatory evidence of the ocular testimony is available to satisfy the judicial conscience and set at rest the lurking suspicion in the mind of the Court. As to what circumstance or piece of supporting evidence should serve the purpose of confirmation depends on the facts of each case as held by this Court in Niaz's case (P L D 1960 S C 387). In the instant case, however, I find that apart from the promptitude of the report, there are other facts and circumstances which adequately serve the purpose of corroboration. First of all is the rather natural and unembellished account of the occurrence which not only appears to be free from exaggeration but is also characterised by the minimal participation and attribution of role to the accused particularly in the case of Nawazul Haque who was empty‑handed and Zafarul Haque who only gave stick blows to P. W. Mst. Pukhraj, the actual killing having been confined only to Ikramul Haque. Next come the injuries suffered by Mst. Pukhraj whose injury statement was prepared by the Inves tigating Officer within minutes of his arrival at the spot. Last but not the least is the patent falsehood of the parallel version sought to be supported by fabri cated evidence which also reacts on the entire case as a whole. I may not however, be misunderstood as laying down that the falsity or absurdity of the plea of defence either shifts the onus which lies heavily on the prosecution to prove its own case or detracts from that position even in the slightest degree. The principle was settled long ago in Woolmington's case (L R 1935 A C 462 ) which was approved by the Federal Court of Pakistan in Safdar Ali's case (P L D 1953 F C 93) and has since been consistently followed by this Court. However, in a situation like this where from the very outset a false version is not only put forth during the investigation but is also sought to be supported by set up witnesses as rightly held by the trial Court and even evidence of self‑suffered injuries is fabricated to support a trumped up version, the Courts would be fully justified in taking into account such a clever attempt to put the investigation on a is wrong track and the effect of this subterfuge to damage the prosecution case at the very outset by setting up an alternative version known to be false from its very inception. It is no wonder that at times such cleverly conceived and assiduously pursued devices prove efficacious so as to be able to produce the intended result of spoiling the prosecution case.' A circumstance of this nature would not only be relevant but might in the circumstances of a particular case also react in favour of the prosecution. There are several authorities under the English Law wherein a false position taken by an accused has been construed as serving the purpose of corroboration in the circumstances of a particular case. Reference may be made in this regard to Credland v. Knowler ((1952) 35 Cr. A R 48) and Jones v. Thomas ((1934) 1 K B 323) I am, therefore, of the view that corroboration of the testimony of the interested witnesses was available in this case In the next important point to be adverted to is the existence of the blunt weapon injuries on the head and chest of the deceased of which no explanation whatever was offered by the P. Ws. The locale of the head injury, being the top of the skull apparently excludes the possibility of its having been sustained by a fall on a hard substance unless the deceased was dropped head‑long from a height which is nobody's case. In fact in the course of postmortem examination on Muaaffar Khan deceased apart from the other injuries the doctor found the 3 blunt weapon injures of which one was a lacerated wound 1 x " bone deep over the top of skull slightly towards the back and another superficial contusion " x ' near the outer side of right nipple and one abrasion " x over the back of left elbow joint. In cross‑examination the doctor opined that injury No. 5 could not result from a fall unless it was violent. Injury No. 7 was due to a fall while injury No. 6 was superficial in nature and was not relateable to other injuries on the person of deceased and could, therefore, be ignored. However, in answer to a Court question the doctor observed that injuries 5 and 7 could be the result of one fall. On a careful consideration of this aspect of the case and having already agreed with the trial Court's assessment that the counter version about the deceased having exchanged stick blows with Banaras was a sheer falsehood, I am inclined to think that the bead injury of the deceased if not being the result of a fall was in all probability caused by a blunt weapon used from behind as tile deceased was proceeding in the lane. On receipt of this blow he appears to have turned round when he was fired at by Ikramul Haque. Since the P. Ws. were residents of the adjoining lane No. 4 and not of lane No. 23 in which the occurrence took place, they might have missed the opening part of the attack, who was the author of this injury is difficult to say. Obviously, it was not a case of touch and go where some hired assassins having stealthily come upon the victim had tried to disappear immediately after the completion of their secret mission. In fact the personal participation of Chaudhary Zafarul Haque an old man of about 70 years of age not only proves the calculated nature of the design and its deliberateness but also its completion in a rather calm and unhurried manner. It appears that the accused neither apprehended any stiff resistance nor did they show any anxiety to make good their escape. Considered in the context of over whelming evidence this solitary circumstance does not pick a serious hole in the prosecution case so as to tilt the balance against it. In view of the foregoing discussion, the conclusion I have reached is that the appeal which was also supported by the A. A: G. must succeed, which is accordingly allowed and convictions of respondents 1 and 2 as recorded by the Sessions Judge are restored. As regards the question of sentence, since the matter not only involved the question of family honour but Ikramul Haque the principal accused was also accompanied by and acted under the influence of his father Chaudhary Zafarul Haque besides the occurrence having g taken place more than 13 years before, the sentence of death of Ikramul Haque respondent is commuted to transportation for life under the law as it then stood. This would be in accord with the view taken by this Court in a recent and analogous case of Taj Muhammad v. Muhammad Yusuf and 2 others. The sentence of Chaudhary Zafarul Haque which is merely confined to a fine of Rs. 500 however, stands. SALAHUDDIN AHMED, J.‑I agree. DORAB PATEL, J.‑I agree. MUHAMMAD HALEEM, J.‑I agree. S. A. H. Appeal allowed.