P L D 1964 (W (PLP)

KHAMISANI, J.

‑All the 25 respondents in this appeal were sent up to stand triai for offences under sections 147, 148, 302/ 149, 325/149, and 323/149, Pakistan Penal Code. They were committed to the Court of Sessions and were tried by the learned Additional Sessions Judge, Karachi. They were all acquitted. The Public Prosecutor, Karachi, after sanction from the Com missioner, Karachi Division, has filed this appeal against the judgment of acquittal.

2. The facts of this case briefly are that the complainant's party and the respondents had been at loggerheads for quite some time. The admitted position is that several cases had been filed between the parties some of which were pending at the time of the incident. It is alleged that on the 10th of January 1960, at about evening time Ibrahim alias Tehni came to the house of complainant Abdul Hameed and quarreled with his younger brother Saeed. Hanif, another brother of Abdul Hameed, wit nessed this quarrel and informed Abdul Hameed about it when became to his house at about 10 p. m. Hanif also informed Abdul Hameed that several people of the locality had collected at the time of quarrel and had intervened to save Saeed. He also informed him that Tehni had given threats that he would take revenge. At about the same time, i.e., at about 10‑15 p. m., Abdul Hameed heard noise outside and therefore went out. When he went near Isa Hotel, he found Nadir, Munshi and Badru lying injured. He also saw the respondents mentioned in the first information report giving injuries to these persons. The names of the respondents given in the first information report are Amiruddin, Cheena, Chuna, Aziz, Babuddin, Riazo, Sharif, Rafikuddin, Tehni, Bakhva, Barkat, Islam, Fariduddin, Bashir, Tahir and Zakir. As soon as Abdul Hameed went for the rescue of the injured he also was given injuries. It is suggested that a lot of people from the locality including Nathu, Sattar, Nathu son of Karim and Aijaz had collected at the scene and witnessed the occur rence. The police also arrived on the scene and apprehended some of the respondents. It is also mentioned in the first inform ation report that at the time when the police was taking the arrested persons to the police‑station people at the scene were saying that Amiruddin had run away to the police station after inflicting blade injuries on his chest. It is also mentioned in the first information report that some of the witnesses caused injuries to some of the respondents in the exercise of the right of private defence.

3. The admitted position on the record also is that Muhammad Yakub Head Constable, Soofi Zardar, Khaki Khan, Iqbal Ahmed and Bashir Ahmed, constables, had come to the scene and arrested Ibrahim alias Tehni, Rafikuddin alias Rafu, Gulfar, Riazuddin alias Riazo, Sharifuddin alias Sharif, Islam alias Nata, Farid alias Bhambho and Babu Din son of Gulab. It is also on the record that the police had secured lathis and bamboo sticks from these respondents. These respondents, who had injuries on their persons, were produced before Kalakot Police. Abdul Hameed and others, who had been injured, had also gone to the police‑station at Kalakot where First Information Report, Exh. 32, was lodged by Abdul Hameed, P. W. 9, at 11‑15 a. m. Counter First Information Report, Exh. 73, had already been lodged by Amiruddin at 10‑40 p. m.

4. The Police during the course of investigation visited the scene of offence and prepared its mashirnama. The significant part of the investigation is that the crockery and some of the furniture in Isa Hotel was found broken at the time when the mashirnama of the scene was made. The statements of the wit nesses were also recorded. The injured respondents as well as the witnesses were sent to the hospital for medical examination and treatment. Some of the respondents, who bad received injuries were those who had been arrested at the scene by Head Constable Muhammad Yakub. Ch. Amiruddin who had lodged the counter first information report was also found with injuries on his person and he also therefore was sent to the doctor for medical examina tion and treatment. From amongst the witnesses, the persons who received injuries were Abdul Ghaffar, Badruddin, Munshi Faridud din, Nadir, Sharif, Israr Alimad, Muhammad Kamil, Jamil Ahmad and Abdul Hameed. Out of these injured persons, Abdul Ghaffar and Badruddin succumbed to the injuries on the 14th of January 1960 and 19th January 1960, respectively. Munshi Fariduddin, Nadir and Sharif had received grievous injuries. Simple injuries were caused to the rest of the injured witnesses. After the usual investigation was completed, the respondents as has been stated above were sent to Court to stand trial. They were all committed to the Court of Sessions where they were acquitted.

5. The respondents, who had neither injuries on their persons nor were arrested on the scene had, when questioned, denied the allegations made against them. They also denied their presence at the scene of offence at the time of the incident. With regard to the respondents Ch. Amiruddln, Ibrahim, Rafikuddin, Gulfar. Riazuddin, Sharifuddin, Islam, Farid and Babu Din, the case put forward was that when Ch. Amiruddin was going to his house and was in front of Chuna's house, Modi, Ghaffar, Chuna Soofi, Allauddin, Shamshad, Nadir and Saeeda gave beating to him with fists. Modi was also alleged to have been given injuries with a knife. The case of these respondents further was that on the cries raised by Ch. Amiruddin, Abba, Aziz, Hamid and others had arrived there and saved him. It is also stated by Ch. Amiruddin that after this quarrel he went to the Police‑station at Kalakot and lodged first information report, Exh.

73. He denies the knowledge about the incident in which Abdul Ghaffar, Badruddin and others received injuries. The case of the other respondents was that on account of the injuries given to Ch. Amiruddin the com plainant's party came in a body and assaulted the respondents and caused injuries to them. Ch. Amiruddin alone has examined Abdul Hai, D. W. 1. and Haji Muhammad, D. W. 2, as wit nesses in defence.

6. The learned counsel for the respondents took up a preliminary point that the sanction for filing an appeal against acquittal which was granted by the Commissioner, Karachi, was invalid in that it could be granted by the Provincial Govern ment alone and the Commissioner, Karachi, was not the Provincial Government for the purpose of granting sanction under section 417, Cr. P. C. The learned counsel for the State took us chronologically through the law on the subject, referred initially to section 5 of the Pakistan (Establishment of Federal Capital) Order, 1948, which inter alia mentioned that the executive authority of Karachi was to be exercised by the Governor. General either directly or through the Administrator and that that authority would extend to all matters included in the List II of Seventh Schedule to the Act. The Government of India Act, 1935, talks in Item 1 of Public Order, Administration of Justice, Constitution and Organisation of all Courts except the Federal Court and fees taken therein. He also referred to Notification No. 1/24/48‑Kar. dated 23rd July 1948, under which all the powers of the Government of Sind under every enactment were conferred on the Administrator of Karachi. He then referred to the Pakistan (Establishment of the Federal Capital) (Amendment) Order, 1952, under which Karachi became the Chief Commissioner's Province and the Administrator was substituted by the Chief Commissioner. Notification No. 3/4/52‑Kar:Il dated the 21st of October, 1952, was also referred under which the Chief Commissioner was given all powers of Sind Government under every enactment just as the Administrator of Karachi was given powers under Noti fication No. 1/24/48‑Kar. dated 23rd July 1948. He next referred to section 2 (i) (ii) of the Establishment of West Pakistan Act, 1955. Under this provision of the Act, the Capital of the Federation was made a Province. Under section 2 (2) of this very Act, it was laid down that the Capital of the Federation was to be governed under section 290‑A of the Government of India Act, 1935. Governor‑General's Order No. 22 of 1955, (Capital of the Federation Order, 1955) was also cited. Under section 2 (2) of this Order, it has been laid down that the Chief Commissioner would exercise executive authority in all matters including the matters in List If of the Seventh Schedule to the Government of India Act, 1935. Under President's Order No. 6 of 1958 (Federal Capital Powers and Duties of the Chief Commissioner) (Declaration Order, 1958) dated 15th April, 1958, a declaration was made under which Notification No. 3/4/52‑Kar.‑lI dated 21st October 1952, was put into effect and the powers conferred under that Notification were ordered to be the powers exercisable by the Chief Commissioner of Karachi. Under President's Order No. 11 of 1959 (Capital of the Federation (Amendment) Order, 1959) dated 11th July 1959, the Administrator of Karachi was substituted for the Chief Commissioner. On 1st August 1960, President's Order No. 20 of 1960 (Seat of Government Order, 1960) was promulgated under which the name of Federal Capital of Karachi was changed to Federal Territory of Karachi. Under Karachi (Federal Territory) Order, 1960, dated 1st December 1960, the powers of the Commissioner were conferred on the Commissioner of Karachi in addition to the powers that he previously exercised. The merger of Karachi took place on 1st July 1961, under Notification No. S. R. O. 27 (R), dated 29th June 1961. Under Article 7 of President's Order No. 9 of 1961 (West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961) under which Karachi was merged all laws that were in force before the merger of Karachi were ordered to remain in force. In view of all the enactments and notifica tions referred to above, it is quite clear that the Commissioner of Karachi exercises the powers of former Government of Sind under all enactments. The Government of Sind in amongst other powers exercised the power under section 417, Cr. P. C. for granting sanction to file appeals against the judgments of acquittal. The Chief Commissioner of Karachi before the merger of Karachi exercised all those powers and was ordered under the law to continue to exercise those powers even after the merger. Under these circumstances we find no substance in the preliminary A objection taken by the learned counsel for the respondents an we are of the view that the Commissioner of Karachi had the legal power to sanction the filing of appeals against the judgments of) acquittal.

7. The question whether Abdul Ghaffar, Badruddin, Munshi Fariduddin, Nadir, Sharif, Israr Ahmad, Muhammad Kamil, Jamil Ahmad and Abdul Hameed received injuries and Abdul Ghaffar and Badruddin succumbed to them is not disputed. It is also not disputed that the injuries on the persons of Munshi Faridud din, Nadir and Sharif were grievous in nature. It is also not disputed that the injuries on the persons of the rest of the injured persons were simple injuries. Dr. Aijaz Ahmad had examined all these injured persons but since he was not available, Dr. Major A. Hassan was examined as P. W.

29. He has produced the certificates of injuries given by Dr. Aijaz Ahmad and has thereby established the case of the prosecution. In view of the question not being disputed, it is not necessary to go into further details about it. The question, in our opinion, stands established.

8. The most important question that needs to be decided in this appeal is whether the respondents or some of them were responsible for causing injuries to the injured persons and whether the judgment of acquittal passed in their favour is proper. It is conceded that there was a long drawn-out enmity between the parties and that there were numerous cases filed between them. It is also admitted that some of the cases were pending at the time of the incident. It is also admitted that all the respondents are closely connected. It is also established and conceded that all the prosecution witnesses except Muhammad Yakub, Soofi Zardad, Arif Hussain and Ghulam Mohiuddin are related inter se and form one party. It is also conceded that the evidence of all these witnesses except the four witnesses mentioned above will be considered to be interested and inimical and there are tainted and as such will not alone be sufficient for holding the respondents guilty of the offences with which they have been charged. On these admissions made by the learned counsel for the State, the case of the respondents will have to be categorized in three divisions: (1) The respondents against whom there is evidence of interested witnesses. (2) The respondents against whom there is evidence of interested witnesses supported by the evidence of disinterested witnesses. (3) The respondents against whom there is evidence of the witnesses both interested and disinterested and other corrobo ratory circumstances. We shall in the light of the admissions made, deal with the case of the respondents in the categories mentioned above. We will therefore deal with the case of the respondents of the first cate gory against whom the evidence consists of only the interested witnesses. These respondents are (1) Azizuddin alias Azizo, (2) Aziz alias Abba, (3) Villayat, (4) Abdul Ghani, (5) Rashid alias Bakhwa, (6) Sabir, (7) Babu, (8) Zakir son of Mulla Bashir, (9) Abdul Hameed alias Hamid and (10) Tahiruddin alias Taro. The witnesses who implicate Azizuddin are Abdul Hameed, P. W. 9, Munshi Fariduddin, P. W. 10, Nadir, P. W. 13, Israr Ahmad, P. W. 14 Aijaz Ahmad, P. W. 16, Syed Arif Hussain, P. W. 21 and Mohiuddin, P. W.

23. Out of these witnesses, Abdul Hameed, Munshi Fariduddin, Nadir, Israr Ahmad and Aijaz Ahmad implicate respondent Azizuddin in that they say that he was one of the persons who was in the quarrel and had caused injuries to the injured persons. Abdul Hameed has also men tioned his name in the first information report as Aziz. Apart from the fact that the evidence of these five witnesses is interested as we have already stated the mention of the name of Aziz in the first information report does not convincingly establish the presence of respondent Azizuddin in the quarrel merely because there are two Aziz who are respondents and it cannot be known as to who was the Aziz out of these two Aziz that was meant to be mentioned in the first information report. Syed Arif Hussain, P. W. 21, and Ghulam Mohiuddin, P. W. 23, are disinterested witnesses. Although an argument has been advanced that Ghulam Mohiuddin is not disinterested because he is a son of Mulla Allauddin and one Allauddin is mentioned in the counter first information report, Exh. 73, as one of the Assailants. It is not established whether Allauddin mentioned in the Counter First Information Report is Mulla Allauddin, the father of Chulam Mohiuddin. Under these circumstances, we will consider Ghulam Mohiuddin to be a disinterested witness. Out of these witnesses, Syed Arif Hussain does talk of Aziz being one of the assailants but as we have already stated that there are two Aziz who were the assailants it cannot be inferred that the Aziz mentioned by Syed Arif Hussain is the respondent Azizuddin. Ghulam Mohiuddin does not specifically mention Azizuddin to be one of the assailants. He has, however, implicated him in his general statement that the respondents present in Court were the assailants. The evidence of Ghulam Mohiuddin therefore also cannot be accepted for the purpose of holding that Azizuddin was one of the assailants when Azizuddin was not specifically mentioned in his evidence. The learned counsel for the State also for the reasons given above for not accepting the evidence of Syed Arif Hussain and Ghulam Mobiuddin did not place reliance upon their evidence. Under these circumstances, the evidence which is left on the record implicating Azizuddin consists of the evidence of interested witnesses and there being admittedly no corroboration of their evidence it will be unsafe to accept their evidence for the purpose]' of holding Azizuddin to be guilty of the offences with which he has been charged.

9. Against respondent Aziz alias Abba the evidence consists of the evidence of Munshi Fariduddin, Nadir, Israr Ahmad, Aijaz Ahmad, Syed Arif Hussain and Ghulam Mohiuddin, Syed Arif Hussain has again mentioned only Aziz in his evidence and for the same reason that there were two Aziz as assailants, the evidence of Syed Arif Hussain cannot be considered against this respondent also. Ghulam Mohiuddin has also not specifically implicated him. The learned counsel for the State has also for the same reasons not relied upon the evidence of Syed Arif Hussain and Ghulam Mohiuddin so far as this respondent is concerned. Under these circumstances, the evidence against this respondent reduces itself to the evidence of only interested wit nesses which is not corroborated by any other circumstances on the record. The evidence of the witnesses, therefore, cannot be accepted against this respondent for holding him guilty.

10. So far as respondent Villayat is concerned, the evidence against him consists of the evidence of only interested witnesses who are Munshi Fariduddin, Nadir, Iqbal Ahmad and Muhammad Sharif. Ghulam Mohiuddin does not specifically mention him. There is no other corroboratory circumstance existing on the record against this respondent. The evidence of these witnesses therefore, in our view, will not be sufficient for holding this respon dent guilty.

11. Against respondent Abdul Ghani, the evidence con sists of the evidence of Israr Ahmad, Muhammad Sharif, Munshi Fariduddin, Nadir and Ghulam Mohiuddin. Ghulam Mohiuddin does not specifically involve him in the case. The evidence of the witnesses therefore is interested and inimical and consequently cannot be considered to be sufficient for holding this respondent guilty of the offences with which he has been charged.

12. So far as respondent Rashid alias Bakhwa is concerned, the evidence against him consists of the evidence of Abdul Hameed, Aijaz Ahmad, Muashi Fariduddin, Syed Arif 1‑lussain, Nadir and Ghulam Mohiuddin. Ghulam Mohiuddin does not specifically mention him as an assailant but talks of him generally as being one of the assailants. Syed Arif 1‑lusain did not know this respondent before the incident and was not put to identification test His pointing out of the respondent in Court only therefore will not be sufficient for holding that the respondent was present at the time of the incident. The evidence of rest of the witnesses is tainted and has received no corroboration from any quarter. The evidence as such is not sufficient for holding the respondent liable for the offences with which he has been charged.

13. Against respondent Sabir, the evidence consists of the evidence of Abdul Hameed, Muhammad Sharif, Munshi Faridud din, Nadir and Ghulam Mohiuddin. Abdul Hameed has not mentioned his name in the first information report. Ghulam Mobiuddin speaks of him in general terms and does not speci fically mention him as an assailant. The evidence against this respondent therefore consists of the evidence of only interested witnesses without any corroboratory circumstances and as such is not sufficient for holding him liable for the offences with which he has been charged.

14. So far as respondent Babu is concerned, the evidence against him consists of the evidence of Munshi Fariduddin, Nadir, Ghulam Mohiuddin and Syed Arif Hussain. Ghulam Mohiuddin has not specifically mentioned him as an assailant and for the reasons that we have given in respect of his evidence against the other respondents we do not consider his evidence to be sufficient for holding this respondent liable for the offences with which he has been charged. Syed Arif Hussain had identified him only in Court and was not put to identification test although he did not know the respondent before. The evidence of Syed Arif Hussain therefore also will not be sufficient for holding that the respondent was one of the assailants. The rest of the wit nesses appearing in evidence against this respondent are interested and inimical and as such their evidence will not be sufficient for holding the respondent guilty.

15. So far as respondent Zakir son of Mulla Bashir is concerned, the evidence against him consists of the evidence of Abdul Hameed, Munshi Fariduddin, Muhammad Kamil, Israr Ahmad, Jamil Ahmad, Ghulam Mohiuddin and Nadir. Out of these witnesses, the only disinterested witness is Ghulam Mohiud din but he has not implicated him specifically but has merely stated generally that he was the assailant. Under these circums tances, there being no corroboratory circumstances supporting the evidence of the interested witnesses we consider the evidence against this respondent to be insufficient for holding him guilty.

16. Against Abdul Hameed alias Hamida respondent, the evidence consists of the evidence of Abdul Hameed, Syed Arif Hussain, Munshi Fariduddin and Ghulam Mohiuddin. Abdul Hameed has not mentioned his name in the first information report. Ghulam Mohiuddin has like others put him up as one of the assailants without specifically mentioning his name or assigning any part to him. Syed Arif Hussain did not know this respondent before nor was be put to identification test. His identification in Court therefore, in our opinion, is not sufficient for holding him guilty. There is no other corroboratory circum stance supporting the evidence of interested witnesses and as such the evidence appearing against him, in our view, is not sufficient for holding him guilty.

17. So far as Tahiruddin alias Taro respondent is concerned, he is generally mentioned by Munshi Fariduddin, Nadir and Ghulam Mohiuddin only. No specific part has been assigned to him. His name is also not mentioned in the first information report. No other circumstance in corroboration has been brought forward on the record. Under these circumstances, the evidence against him, in our view, is not sufficient for holding him liable for the offences with which he bas been charged.

18. In view of what we have stated above, we consider the evidence against Azizuddin, Aziz alias Abba, Villayat, Abdul Ghani, Rashid, Sabir, Babu, Zakir, Abdul Hameed and Tahiruddin to be insufficient. We consequently dismiss the appeal filed against them.

19. We will now deal with the category of those respondents against whom the evidence of interested witnesses is corroborated by the evidence of disinterested witnesses. These respondents are (1) Tahir. (2) Jalil alias Jallo. (3) Muhammad Kamil alias Cheena. (4) Chiraghuddin alias Chaggo. (5) Mulla Bashir.

20. So far as respondent Tahir is concerned, the evidence against him consists of the evidence of Abdul Hameed, Munshi Fariduddin, Nadir, Muhammad Kamil, Syed Arif Hussain, Muhammad Yakub, Jamil Ahmad and Ghulam Mohiuddin. All these witnesses have implicated this respondent and have assigned to him a specific part of causing injuries. It is true that the evidence of Abdul Hamid, Munshi Fariduddin, Nadir, Muhammad Kamil and Jamil Ahmad is interested and will not be by itself sufficient to hold the respondent liable for offences with which he has been charged. The learned counsel for the State has, however, stre nuously urged that Syed Arif Hussain, Muhammad Yakub and Ghulam Mohiuddin are disinterested witnesses and they have all implicated this respondent. He has also argued that the evidence of these three independent witnesses will be sufficient corrobora tion of the evidence of interested witnesses and as such, according to him, the evidence against this respondent will be of the type which can be considered sufficient for holding him liable for the offences with which he has been charged. In order therefore to assess the evidence against this respondent, it will be necessary to examine the evidence of these three independent witnesses and find out if it has supported the evidence of the interested witnesses. The evidence of Muhammad Yakub, P. W. 18, is to the effect that he saw this respondent giving blows. He has also stated that he saw him running away from the scene. It is contended that the evidence of Muhammad Yakub in Court cannot be accepted in view of the fact that he has not mentioned in his 162 statement about this respondent giving blows or running away. The evidence of Syed Arif Hussain of course is to the effect that he saw him giving blows but this very witnesses has in cross- examination stated that this Tahir was not at the scene. Ghulam Mohiuddin has also stated that he saw this respondent giving blows. The evidence of Syed Arif Hussain read as a whole leaves no doubt in our mind that he does not implicate Tahir at all. So far as the evidence of Muhammad Yakub is concerned, non- mention of the fact that he saw this respondent giving blows and running away in 162 statement may not be sufficient for holding that he is not speaking the truth in Court yet since this is an c appeal against acquittal and the trial Court has not accepted this evidence against the respondent we choose not to accept the evidence of Muhammad Yakub so far as this respondent is concerned. On the analysis of the evidence of the disinterested witnesses given above, we are left with the evidence of Ghulam Mobiuddin alone against this respondent. As against this evidence three other independent witnesses, namely, Aijaz Ahmad, P. W. 16, Haji Abbas, P. W. 22 and Syed Arif Hussain, P. W. 21, have not supported the case of the prosecution as against this res pondent. Aijaz Ahmad has stated that Mulla Bashir and his two sons were not in the fight. Syed Arif Hussain has also stated that Mulla Bashir, Tahir and Zakir were not there. Haji Abbas has not been able to implicate any one as according to him he did not identify any of the assailants. With this evidence on the record it is not possible to consider the evidence of Ghulam Mohiuddin alone as sufficient for corroborating the evidence of disinterested witnesses. Under these circumstances, we consider the evidence against this respondent doubtful.

21. So far as Jalil alias Jallo is concerned, the evidence against him consists of the evidence of Nadii, Muhammad Sharif, Syed Arif Hussain, Munshi Fariduddin and Ghulam Mohiud din. It is true that Nadir, Muhammad Sharif and Munshi Fariduddin are interested witnesses. They are also injured persons and their presence therefore cannot be disputed at the scene of offence. The evidence of these interested witnesses finds support from the evidence of Syed Arif Hussain and Ghulam Mohiuddin. Ghulam Mohiuddin has not specifically involved him but has put him up as one of the assailants. If Ghulam Mohiuddin's evidence alone had been the evidence which could be brought to support the evidence of the disinterested witnesses we may not have accepted it as sufficient. It is the evidence of Syed Arif Hussain, which has weighed with us and he is ad mittedly a disinterested witness. Syed Arif Hussain has in his evidence in clear terms stated that he saw Jallo (the present respondent) giving blows to Nadir and others. We consider the evidence of Syed Arif Hussain and Ghulam Mohiuddin sufficient as corroboratory evidence supporting the evidence of interested witnesses. The fact that the name of this respondent is not mentioned in the first information report will not in the least affect the case of this respondent. In a quarrel where more than 50 people participated it will not be possible for the first informant to notice all the persons and mention their names in the firs information report. The evidence of interested witnesses receives further support from the fact that Abdul Hameed, the first in formant, has not mentioned his name in Court. If Abdul Hameed had been out to implicate persons unnecessarily because they happened to be his enemies he could have mentioned his name in Court although he had not mentioned it in the first information report. Under these circumstances, we are clear in our mind that Jallo was one of the parsons who was present at the scene and had participated in the fight.

22. So far as Muhammad Kamil alias Cheena is concerned, the evidence, against him consists of the evidence of Abdul Hameed, Fariduddin, Muhammad Kamil, Nadir, Israr Ahmad, Aijaz Ahmad, Muhammad Sharif, Soofi Zardad, Jamil Ahmad, Syed Arif Hussain and Ghulam Mohiuddin. Out of these wit nesses, Abdul Hameed, Munshi Fariduddin, Muhammad Kamil, Nadir, Israr Ahmad, Aijaz Ahmad, Muhammad Sharif and Jamil Ahmad are all interested witnesses. They all implicate specifically this respondent and assign to him a part of giving injuries. Abdul Hameed has also mentioned his name in the first information report. Syed Arif Hussain, Soofi Zardad and Ghulam Mohiuddin are disinterested witnesses and they also implicate this respondent and assign to him the specific part of giving injuries to the witnesses. Syed Arif Hussain has stated that Cheena gave blows to Nadir and others. Soofi Zardad has stated that he was armed with a Tabar. He also states that he saw Cheena running ‑away. Ghulam Mohiuddin has also stated that he saw Cheena using his Tabar from the wrong side and giving blows to Ghaffar. Soofi Zardad is a Constable of Police and was one of those persons who had arrested some of the respondents at the scene. None of these three witnesses has been shown to have any reason for falsely implicating this respondent. The evidence of these three disinterested witnesses, in our opinion, sufficiently supports the evidence of interested witnesses most of whom are injured persons and whose presence at the scence cannot be disputed. The evidence of the witnesses both interested and disinterested, in our opinion, is sufficient for holding this respondent to be liable for participating in the fight and causing injuries.

23. So far as Chiraghuddin alias Chaggo is concerned, the evidence against him consists of the evidence of Abdul Hameed, Muhammad Kamil, Israr Ahmad, Aijaz Ahmad, Muhammad Sharif and Ghulam Mohiuddin. Out of these witnesses, Abdul Hameed, Muhammad Kamil, lsrar Ahmed, Aijaz Ahmad and Muhammad Sharif are injured and interested witnesses. Their presence at the scene cannot be disputed. The evidence of these witnesses receives support from the evidence of Syed Arif Hussain and Ghulam Mohiuddin who both say that they saw this respon dent in the fight giving blows. Syed Arif Hussain says that he saw Chaggo giving blows to Hameed with a lathi whereas Ghulam Mohiuddin says that he saw Chaggo giving blows to Badru the deceased. It is being contended that the evidence of Syed Arif Hussain cannot be of much value as Abdul Hameed who has himself been examined does not say that Chaggo gave him injuries. But the argument, in our opinion, is untenable in that in a crowd of so many people it is not possible for Abdul Hameed to notice all the persons who gave him injuries. It is very possible that be may have himself not noticed injuries being given to hint by Chaggo. The fact that Abdul Hameed has not stated that Chaggo gave him injuries will not, in our opinion, discredit the evidence of Syed Arif Hussain. The evidence of Syed Arif Hussain and Ghulam Mohiuddin is quite disinterested and has, in our opinion, sufficiently supported the evidence of injured interested witnesses. The evidence against this respondent therefore in our view is sufficient to hold that this respondent had participated in the fight and caused injuries.

24. So far as Mulla Bashir is concerned, the evidence against him consists of the evidence of Abdul Hameed, Munshi Faridud din, Muhammad Kamil, Israr Ahmad, Muhammad Sharif, Muhammad Yakub, Soofi Zardad, Ghulam Mohiuddin and Nadir. Out of these witnesses, Muhammad Yakub, Soofi Zardad and Ghulam Mohiuddin as we have already stated are disinterested witnesses. All these witnesses except Nadir have specifically im plicated this respondent and have assigned to him the part of causing injuries. Muhammad Yakub has in his evidence stated that Mulla Bashir was giving blows to Badruddin and others but he has not stated so in his statement before the police. Soofi Zardad says that he saw him armed with a Tabar and running away. Ghulam Mohiuddin has stated that he saw Badra being beaten by Bashir. The evidence of these three disinterested witnesses would ordinarily be sufficient corroboration of the evidence of the interested witnesses but three other disinterested witnesses have given evidence against the prosecution. They are Aijaz Ahmad, P. W. 16, Haji Abbas, P. W. 22 and Syed Arif Hussain, P. W.

21. The name of Aijaz Ahmad was mentioned in the first information report. The evidence of Aijaz Ahmad is to the effect that Mulla Bashir and his two sons were not in the fight. Haji Abbas has not been able to identify any of the assailants and has therefore given no evidence either for or against the prosecution. Syed Arif Hussain has in clear terms stated that Mulla Bashir, Tahir and Zakir were not there. In view of the evidence of these three disinterested witnesses it will be difficult to come to a right con clusion especially when the matter is being dealt with in an appeal against acquittal that Mulla Bashir was present at the scene of offence and had participated in the fight. In view of the evidence of Aijaz Ahmad, IHaji Abbas and Syed Arif Hussain we consider the case of Mulla Bashir fit for benefit of doubt being given to him. In this category therefore we consider the evidence against respondents Tahir and Mulla Bashir doubtful and consequently we dismiss the appeal filed against them.

25. So far as Jalil alias Jallo, Muhammad Kamil alias Cheera and Chiraghuddia alias Chaggo are concerned the evidence against them, according to us, is sufficient for holding that they are liable for participation in the fight and causing injuries.

26. We will now deal with the last category of the respon dents against whom apart from the evidence of the witnesses there are circumstances in corroboration. We will deal first with the case of Ibrahim alias Tehnh Rafikuddin alias Raffo Gulfar, Riazuddin alias Riazo, Sharifuddin alias Sharif, Islam alias Nata, Farid alias Bhambho and Babu Din son of Gulab. The witnesses who have given evidence against Ibrahim alias Tehni and have specifically implicated him by assigning a specific part to him are Abdul Hameed, Aijaz Ahmad, Muhammad Yakub, Jamil Ahmad and Ghulann Mohiuddin. All these witnesses in clear terms say that they saw this respondent in the fight giving blows. The witness Munshi Fariduddin, P. W. 10, Muhammad Kamil, P. W. 12, Nadir, P. W. 13, Israr Ahmad, P. W. 14, Jamil Ahmad, P. W. 20 and Syed Arif Hussain, P. W. 21, also mention that this respon dent was amongst the assailants. Out of these witnesses, Abdul Hameed, Munshi Fariduddin, Muhammad Kamil, Israr Ahmad and Jamil Ahmad are injured persons. Muhammad Yakub, Syed Arif Hussain and Ghulam Mohiuddin are disinterested witnesses. Nothing has been suggested against the disinterested persons as to why they would implicate this respondent. So far as respondent Rafikuddin alias Raffo is concerned, the same witnesses who have implicated Ibrahim have implicated him. Respondent Galfar has also been implicated by all the witnesses who have implicated Ibrahim except Israr Ahmad, P. W.

14. Riazuddin alias Riazo has also been implicated by the same witnesses who have implicated respondent Ibrahim. Muhammad Sharif, P. W. 17, is another witness in addition who has implicated this respondent. Sharifud din alias Sharif has also been implicated by the same witnesses who have implicated respondent Ibrahim. Islam alias Nata has been implicated by all the witnesses who have implicated respon dent Ibrahim except Israr Ahmad and Jamil Ahmad, Muhammad Sharif, P. W. 17, has in addition implicated him. Farid alias Bhambo has also been implicated by the same witnesses who have implicated Ibrahim except Muhammad Kamil and Israr Ahmad. Babu Din has also been implicated by Abdul Hameed, Munshi Fariduddin, Aijaz Ahmad, Muhammad Yakub, Syed Arif Hussain and Ghulam Mohiuddin.

27. The circumstances in evidence supporting the evidence of these witnesses against all these respondents are (1) injuries on the persons of the respondents, (2) admissions made by these respondents about the injuries on their persons and their presence at the time , of the incident, and (3) the arrest of these respondents by the police from the scene of offence and their admission about it. Dr. Aijaz Ahmad who had examined these respondents being not available Dr. Major A. Hasan, P. W. 29, was examined. He has given evidence to the effect that all these respondents had injuries on their persons. The respondents themselves when confronted with the fact of injuries being on their persons admitted that they had injuries on their persons but what they advocated was that they had received those injuries in the exercise of the right of private defence. These respondents have also admitted their presence at the scene of offence. The evidence therefore against these respondents consist of the evidence of interested witnesses some of whom are injured persons and the evidence of disinterested wit nesses supported by the circumstance of injuries on their persons and admissions made by them about their presence at the scene of offence.

28. The last circumstance that clinches the offences to the respondents is the fact of their arrest from the scene of offence by the police. The admitted position on the record is that Mohammad Yakub Head Constable, Soofi Zardar, Khaki Khan, Iqbal Ahmad and Bashir Ahmad, Constables, from the Kalakot Police Station had come to the scene of offence and apprehended these eight respondents. Some of the other persons who had participated in the fight had run away. Out of these four witnesses, Muhammad Yakub Head Constable and Soofi Zardad, Constable, have been examined as P. Ws. 18 and

19. On the question of the arrest of the respondents, Ibrahim alias Tehni and Rafiquddin the witnesses who have implicated them are Muhammad Yakub. P. W. 18, Abdul Hameed, P. W. 9 and Soofi Zardad, P. W. 19, Respondent Gulfar, on this question, has been implicated by Muhammad Yakub, P. W. 18 and Israr Ahmad, P. W.

14. Riazuddin respondent has been implicated by the same witnesses who have implicated Ibrahim. Muhammad Sharif, P. W. 17, also in addition has given evidence against him. Sharifuddin res pondent has been implicated on this issue in addition to the witnesses who have given evidence against Ibrahim by Israr Ahmad, P. W. 14 and Muhammad Sharif, P. W.

17. The witnesses appearing against Islam on this question are the same who have given evidence against Ibrahim. So far as respondent Farid is concerned, the witnesses who have given evidence against him on the question of arrest are Muhammad Yakub, Abdul Hameed, Israr Ahmad and Syed Arif Hussain. The evidence against Babud din respondent on the question of his apprehension from the scene of offence consists of the evidence of Muhammad Yakub, Abdul Hameed, Muhammad Sharif, Israr Ahmad and Syed Arif Hussain. Some of these witnesses are disinterested persons and no evidence has been led to discredit their evidence. Even the respondents have not denied having been apprehended from the scene of offence.

29. The evidence of the witnesses with the corroboratory circumstances in our view is sufficient for holding that these res pondents were some of the persons who had participated in the fight and caused injuries.

30. In this category the other person left to be dealt with is Ch. Amiruddin and we will deal with his case now. Against this respondent the ocular evidence consists of the evidence of Munshi Fariduddin, P. W. 10, Muhammad Kamil, P. W. 12, Israr Ahmad, P. W. 14, Aijaz Ahmad, P. W. 16, Muhammad Sharif, P. W. 17, Jamil Ahmad, P. W. 20, Syed Arif Hussain, P. W. 21, and Ghulam Mohiuddin, P. W.

23. Out of these witnesses, Munshi Fariduddin, Muhammad Kamil, Israr Ahmad, Muhammad Sharif and Jamil Ahmad are injured persons. Syed Arif Hussain and Ghulam Mohiuddin are disinterested persons. The evidence of these witnesses has been criticized on the ground that it is interested and inimical and does not find support in the evidence of Ghulam Mohiuddin. It is true that these witnesses except Arif Hussain and Ghulam Mohiuddin are interested witnesses but as we shall show hereafter this evidence becomes reliable because of the corroboratory circumstances that have been brought on the record. It is also true that Ghulam Mohiuddin has in his evidence stated that he did not see this respondent in the fight but he has stated that he was on the side of the assailants as one of the assailants. It is also contended that Muhammad Sharif, P. W. 17 and Jamil Ahmad, P. W. 20, had not implicated this respondent in their evidence before the committal Court and as such the evidence of these witnesses cannot be relied upon implicitly in so far as it assigns specific part to this respondent in Sessions Court. Because of the fact that Muhammad Sharif and Jamil Ahmad had not mentioned this respondent in the committal Court we choose not to place reliance on their evidence in Sessions Court against this respondent. We also wish not to place reliance upon the evidence of Ghulam Mohiuddin because he has in his evidence stated that he did not see this respondent in the fight. The evidence of the remaining interested witnesses still receives strong support from Syed Arif Hussain, P. W. 21, who is admittedly a disinterested witness. The only criticism made by the evidence of this witness is that at the time when he gave evidence in Court he lived near Guru Mandir which is a place far away from the scene of offence. The argument advanced is that this witness who lived near Guru Mandir had no justifica tion for being present at the scene of offence at the time of the incident. The argument advanced by the learned counsel for the respondent seems to be untenable in view of the evidence of this very witness that at the time of the incident he lived at Bakra Piri, the place where the incident occurred and had shifted to Guru Mandir after the incident. No evidence of any kind has been brought to controvert what has been stated by this witness about his place of residence being at Bakra Piri. Under these circum stances, we consider the evidence of the interested witnesses sup ported by the evidence of Syed Arif Hussain to be sufficient for holding that the respondent had participated in the fight.

31. The other significant thing which has appeared on the record is the part assigned to this respondent in the first informa tion report. Abdul Hameed in his first information report has not assigned any specific part to him but has mentioned that when he ‑was going to the police station people at the scene were saying that this respondent had gone to the police‑station for lodging a report and had created self inflicted injuries on him self. The statements made by the by‑standers at the time of the incident would be admissible and this fact has been supported by Dr. Major A. Hassan, P. W. 29, who has produced the certificate of injuries given for this respondent by Dr. Aijaz Ahmad. This respondent has also examined Dr. Abdul Hai, D. W. 1, as a witness in defence. This doctor has also stated that he had examines this respondent and found injuries on his person. Dr. Major A. Hassan has also stated that the injuries on the person of this respondent could be self inflicted. No question has been asked from the defence witness, Dr. Abdul Hai, as to whether those injuries could or could not be self inflicted. The statement there fore of Abdul Hameed supported by the first information report that the injuries were self inflicted stands proved through the evidence of Dr. Major A. Hassan. This circumstance therefore that the respondent had created injuries on his person goes a long way to implicate him in this case. This conduct of creating injuries on the part of this respondent in our view, by itself is sufficient for bringing home to him the offences with which he has been charged.

32. The other circumstance in corroboration of the evidence of these witnesses that has been brought on the record is that the counter first information report, Exh, 73, was lodged by this res pondent on the same day at 10‑40 p. m. In this counter first information report his participation in the fight as well as his presence near the scene of offence has been admitted by him. Great stress has been laid by the learned counsel for the res pondent on this counter first information report. It is urged that the counter first information report does not talk of the incident which is the subject‑matter of this case but talks of an incident which preceded the incident of this case and was pro bably, according to the learned counsel for the respondent, a preclude to what culminated in this incident. The evidence on the record does not bear out the contention of the learned counsel. The counter first information report, Exh. 73, was lodged at 10 40 p. m. on the same day after the incident as alleged in this counter first information report occurred. The first information report in this case was lodged at 11‑15 p. m. about 25 minutes after the counter first information report was lodged. If an attack on the party of Ch. Amiruddin and others was made as alleged in the counter first information report after the incident in which Ch. Amiruddin received injuries had occurred, it is not possible to believe that there would be a pitched fight between the two parties on the organized basis about 25‑30 people participating on each side causing injuries to about nine people on either side within such a short period. The first information report in this case was also lodged after the police had come on the scene and arrested some of the respondents. The police had come on the scene after Ch. Amiruddin had left for the police‑station. The coming of the police and arresting the people and taking the apprehended respondents and the injured to the police‑station will also take a time longer than 25 minutes. The obvious conclusion from the circumstances appearing on the record is that no other incident except the one which is the subject‑matter of this case had occurred and that Ch. Amiruddin, the present respondent, had participated in this incident. Ch. Amiruddin out of abundant caution had created self inflicted injuries and rushed to the police station to be able to lodge the first information report in advance so as to be put up as defence against the report that was likely to be lodged in respect of the incident which is the subject‑matter of this case. From the evident, of the witnesses and the circum stances appearing on the record we have no hesitation in coming to the conclusion that the respondent was one of the persons who had participated in the fight and caused injuries.

33. The argument of the learned counsel that this respondent has not been assigned a specific part in the first information report has not much consequence. His name is mentioned in the first information report and in the circumstances as we have stated above which are more damaging to his cart than the mere mention of the name in the first information report. The argument of the learned counsel that Muhammad Yakub and Haji Abbas had not implicated hint also is not of much value in view of Muhammad Yakub coming on the scene after the respondent had left for the police‑station and Maji Abbas in his evidence stating that he did not identify any of the assailants taking part in the fight. The argument of the learned counsel for the respondent that the wit nesses mentioned in the first information report have also assigned no part to him, to us also does not appear to be of any material consequence. In a crowd of 50 people it is not necessary for all the witnesses to notice every person participating in the fight and then specifically mentioning him.

34. For the respondents of this category our conclusion there fore is that Ch. Amiruddin, Ibrahim alias Tehni, Rafikuddin alias Rafoo, Gulfar, Riazuddin alias Riazo, Sharifuddin alias Sharif, Islam alias Nata, Farid alias Bhambho and Babu Din son of Gulab had participated in the fight and caused injuries.

35. One more respondent remains and he also falls in the last category. His name is Amiruddin alias Chuna. The wit nesses who have implicated this respondent are Abdul Hameed, Munshi Fariduddin, Israr Ahmad, Jamil Ahmad, Syed Arif Hussain, Nadir and Ghalam Mohiuddin. The disinterested witnesses against him are Syed Arif Hussain and Ghulam Mohiud din. It is true that the name of this respondent is not mentioned in the first information report but non‑mention of his name in the first information report will not in the least come in the way of coming to the conclusion that he was one of the respondents who had participated in the fight and caused injuries. The evidence of the interested witnesses finds support in a general statement of Ghulam Mohiuddin when he talks of this respon dent being one of the assailants. The evidence of the interested witnesses also finds support in the evidence of Syed Arif Hussain who had in clear terms stated that this respondent gave blows to Hamida. The argument put across is that if he had caused injuries to Hamida then Abdul Hameed who is Hamida should have mentioned his name in the first information report. Just as we have stated above it is not possible in a crowd like this for an injured to notice all the persons participating in the fight and also the persons who gave him injuries. The fact remains that Syed Arif Hussain has implicated him categorically and no reason of any kind has been assigned as to why this witness would falsely implicate this respondent. The evidence of these witnesses also receives support from the fact of injuries on his person and his presence at the scene of offence. The evidence of the witnesses supported by the corroboratory circumstances, in our opinion, is sufficient for holding him to be liable for being present at the scene and causing injuries.

36. The argument of the learned counsel for the respondents that there has not been consistency in the evidence of the witnesses with regard to their part of the evidence which relates to who caused injuries to whom has also not found favour with us because in a case of this nature it is not possible for the witnesses to be consistent.

37. Having come to the conclusion that some of the respon dents whose names have been mentioned above were present at the scene of offence and had caused injuries to some of the persons of the prosecution party, the next question that needs to be decided is as to whether the offences committed by those respondents would fall under section 302/149, etc., or 304 (1), etc. P. P. C. The common ground on which the case of both of the parties is founded is the long drawn out enmity between them. Both of the parties have put across the previous litigations between them as the motive for this incident. Each party, however, has accused the other party of being the aggressors. If a view were to be taken that the res pondents were the aggressors then obviously the conclusion would be that they would be liable for offences under section 302,1149, P. P. C. If, on the other hand, a view could be taken that the prosecution party were the aggressors then the respondents obviously would have the right to cause injuries in the exercise of the right of private defence. The evidence which is available on the record is that the respondents were the aggressors. the case put forward by the prosecution is that on account of the previous enmity all the respondents went into Issa Hotel and started belaboring some of the prosecution witnesses. The case of the pro secution further is that the deceased Abdul Ghaffar was in fact dragged out of his house and brought to the scene of offence and given injuries. This part of the prosecution case stands substan tially established from the fact that the furniture and the crockery in Issa Hotel was found broken. No explanation from the side of the respondents has come forth to suggest as to how the crockery in Issa Hotel was broken. The case of the respondents is at best reflected from the case of Ch. Amiruddin respondent who states that he was given injuries for no cause at about 10 p. m. by some of the persons mentioned in his counter first information report, Exh.

73. His case also is that after he raised cries and extricated himself he rushed to the Kalakot Police station and lodged his first information report. His case also has been that the prosecution party in order to retaliate on the party men of Ch. Amiruddin then assaulted his party men because he had had the impudence to go to the police‑station and file report. We have given our best consideration to this aspect of the respondents' case and we have been unable to see any substance is this contention. In the first instance as we have stated above the time between which reports were lodged by Ch. Amiruddin and Abdul Hameed being only 25 minutes it would be extremely inconceivable to believe that the present incident occurred as has been alleged by Ch. Amiruddin. In the second place, if Ch. Amiruddin as alleged by him was given injuries for no fault of his and if the prosecution party in doing so had already taken the law into their own hands it would be hardly believable to expect that they would further form an unlawful assembly and assault the respondents. The reasonable conclusion, on the premises laid down by Ch. Amiruddin, would be that the partymen of Ch. Amiruddin would assault the prosecution party with a view to vindicate the wrong done to Ch. Amiruddin by causing him injuries. On every count the evidence on the record, both oral as well as circumstantial, would lead to the conclusion that the respondents were the aggressors.

38. Despite the fact that a reasonable conclusion could be arrived at about the respondents being the aggressors, what has weighed with us is that we are dealing with the case of the res pondents in an appeal against acquittal. The number of respondents is 25 and there must be an equal number, as the evidence suggests, from the prosecution party who participated in the fight at the time of the incident. Whatever be the cause on which quarrel started, the fact remains that all the persons from both sides could not have come as aggressors and initially taken part in the incident. Some of the persons from either side must have come subsequently after the quarrel originated. The evidence on record is such that it is difficult to come to the conclusion as to the persons who were originally the aggressors. The circums tances of the case indicate this thoroughly. Although furniture and crockery of Issa Hotel was found to be broken, the evidence discloses that the scene of offence was spread in a considerable area near the Issa Hotel. Because this is an appeal against acquittal we are inclined to give the benefit of the doubt to the respondents on this issue and take the view that the offences were committed in the course of a sudden fight in heat of passion on a sudden quarrel. On this view of the matter the offence of which the respondents would be guilty would be not under section 302/149, P. P. C. but under section 304 (1)/149, P. P. C. There is also evidence to indicate that the offences under sections 147, 325/149 and 323/149, P. P. C. were also committed. We, however, give the benefit of the doubt to the respondents in respect of offence under section 148, P. P. C. because of the injuries appearing on the persons of the deceased as well as the injured being with blunt weapons.

39. In view of what has been said above, we are of the view that the case against Azizuddin, Aziz alias Abba, Willayat, Abdul Ghani, Rashid, Sabir, Babu, Zakir, Abdul Hamid, Tahiruddin alias Taro, Tahir and Mulla Bashir has not been established and giving the benefit of the doubt to them we dismiss the appeal filed against them. We however, hold Ch. Amiruddin, Jaiil alias Jallo, Muhammad Kamil alias Cheena, Chiraghuddin alias Chaggo, Ibrahim alias Tehni, Rafikuddin alias Raffo, Gulfar, Riazuddin alias Riazo, Sharifuddin alias Sharif, Islam alias Nata, Farid alias Bhambho, Babu Din son of Gulab and Amiruddin alias Chuna guilty. We consequently accept the appeal filed by the Government against them and hold them liable for offences under sections 147, 304(1)/149, 325/149 and 323/149, P. P. C. They are convicted under these sections and sentenced to suffer rigorous imprisonment for six months, 10 years, two years, and six months each respectively. The sentences passed against them shall run concurrently.

40. Before we part with this case, we consider it our duty to say that the learned Additional Sessions Judge, who dealt with this case , bad written a very perfunctory and slipshod judgment. The type of the case and its magnitude merited greater consider ation at the hands of the learned Additional Sessions Judge He has not so much as even discussed the evidence of the witnesses or the circumstances appearing in corroboration of their evidence. He has not given any reasons much less cogent reasons for discarding the evidence of the witnesses and the corroboratory circumstances. K. B. A. Appeal partly accepted.