P L D 1975 Supreme Court 607 (PLP)

After recording the report Exh. P. A. the S. I. P. proceeded to the spot, where on a statement made by Dost Muhammad respondent No. 1, he recorded the F. I. R. Exh. P. F F F at 7‑30 p.m. This purported to be a. counter‑version of the incident. According to this version, Dost Muhammad and his eleven companions (who were among the above‑named 17 persons while returning from a meld were waylaid and attacked by the appellant and his partymen with guns near dhok Nawaz killing Khanu son of Khan Muhammad and injuring three others. Dost Muhammad and his companions in self‑defence counter‑attacked the appellant and his partymen killing five of them and also setting fire to the Dhok of Nawaz which was used as ambush. Dost Muhammad later resiled from this statement and the accused in the counter‑case were let off. That case does not appear to have been pursued further before higher Courts. The relevance of the report Exh. P. FFF will be adverted to later at the appropriate place. In the case culminating in this appeal, a learned Additional Sessions. Judge, convicted all the seventeen accused under section 302/149, P. P. C. on five counts and sentenced Shah Muhammad (No. 2), Sardar Khan (No. 3), Sahib Khan (No. 7), Sher Muhammad son of Dost Muhammad (No. 8) and Ghulam Muhammad (No. 10) to death and the remaining 12 to imprisonment for life each. All the seventeen accused were also convicted under sections 307/4361 149 and 148, P. P. C. and each of them was sentenced to 5 years' rigorous imprisonment for each of the first two offences and to two years' R. I. for the third. In the case of the five condemned accused, the sentences of imprisonment were to take effect, only if their death sentences were not confirmed and in that event the sentences of imprisonment were also made concurrent. With regard to the remaining 12 accused the various, sentences were made concurrent. On appeal by the respondents and a reference under section 374,. Cr. P. C. the High Court altered the conviction of respondents 1 to 7, namely, Dost Muhammad, Shah Muhammad Sardar Khan, Rabnawaz, Sher Muhammad son of Munda, Khudayar and Sahib Khan, under section 302/149, P. P. C. to that under section 304, Part I read with section 149, P. P. C. and sentenced Shah Muhammad (No. 2), Sardar Khan (No. 3) and Sahib Khan (No. 7) to life imprisonment each and the other four to 10 years' R. 1. each. The convictions and sentences of these seven respondents under sections 307 and 436 read with 149 and section 148, P. P. C. were also maintained. The remaining ten accused respondents, named at Nos. 8 to 17 above were acquitted because the case against them was not proved beyond doubt. The High Court took the view that there is sudden fight" within the meaning of the fourth exception to section 300, P. P. C. between the two factions and therefore in respect of the killing of five persons of the appellant's party the offence fell under section 304, P. P. C. In reaching that conclusion the High Court like the trial Court rejected the plea of self‑defence of the respondents resting on the killing, of Khanu, a partyman of the respondents, by gunshot injuries by the appellant and his companions. Leave was granted by this Court, to consider whether the High Court was right in its view that there was "sudden fight" though it lasted for several hours and further whether notwithstanding the rejection of the defence version, the acquittal of the respondents other than Nos. 9, 10, 12 and 13 was consistent with the principles relating to the safe administration of justice. Leave was refused in respect of respondents 9 to 10, 12 and 13 because no incriminating article was recovered from any of them. In the report Exh. P. A. by the appellant, the incident is stated to have taken place in the following manner: On 29‑6‑1967 Muhammad Khan appellant and his seven companions, namely, Ahmad Khan, Mansab Khan, Ata Muhammad, Muhammad Nawaz son of Muhammad, Sher Khan and Sahib Muhammad (the five deceased), Khan Muhammad P. W. 11 and Jahan Khan P. W. 12 had come to see annual meld and bullock races held at the Khanqah of Sakhi Khushhal. Five of them, namely, Khan Muhammad, Mansab Khan, Muhammad Nawaz and Jaban Khan each carried his licensed gun and the other three were empty handed. At about peshiwela, a pair of bullocks belonging to Amir Khan (P. W. 15) took part in the contest and it is stated that the pair ran very well and the owner withdrew the pair from the racing ground. Dost Muhammad respondent (who along with his 16 partisans had also come to see the bullock races) demanded of Amir Khan to make his bullocks run for the second time, to which Amir Khan did not agree and in that he was supported by Jahan Khan P. W.

12. At this Sardar Khan respondent abused Jahan Khan P. W. for his unwarranted intervention. Tempers ran high on both sides and there was exchange of abuses. But other present, separated the parties and calm was restored though that was short‑lived. Little later, the appellant and his companions noticed that the respondents were collecting on the eastern side of the racing ground. This appeared ominous to the appellant and his companions who apprehending attack on them and they started towards the dhok Nawaz. The respondents raised a lalkara and pursued the appellant and his companions. When they were at some distance short of dhok Nawaz, they were attacked by respondents Nos. 1 to 16 and Khanu son of Khan Muhammad by guns and rifles. Muhammad Nawaz son of Muhammad Sher Khan was hit by gun and rifle fire and he fell in a maize field. Later Mansab Khan was also similarly hit and he fell at the entrance of the dhok. The complainant, Ahmad Khan, Ata Muhammad, Jahan Khan, Saleh Muhammad and Khan Muhammad had, by then, reached the courtyard of the dhok. Ata Muhammad picked up the gun of Mansab Khan, took position and fired at the pursuing accused who were trying to encircle them. From among the assailants, Khanu son of Khan Muhammad was hit by the cross‑fire by the appellant's party and he too fell on the ground. As the accused advanced further, the complainant and his companions entered the kotha. The assailants were entreated by Muhammad Nawaz P. W. 13, his brother Noor Khan and Amir Khan (P. W. 15) to desist from shedding blood. The assailants were impervious: instead Dost Muhammad and Sardar Khan respondents challenged the complainant and his companions to come out of the kotha or else they would set it on fire. The complainant and his four surviving companions, however, remained inside and fired a few shots in a bid to keep away respondent. At this stage some of the respondents climbed up the kotha from behind and forced an aperture in the roof through which they fired inside the kotha. Kerosine oil was also brought and poured into the aperture and the roof was set on fire. As the fire spread, the complainant and his five surviving companions felt choked and ventured to come out of the burning kotha. Saleh Muhammad was, the first to come out. Shah Muhammad and Sardar Khan respondents both fired at him, Saleh Muhammad was hit and he fell on the ground. Next to come out of the room was Ata Muhammad who was fired at by Sahib Khan and Sher Muhammad son of Dos; Muhammad respondents and as a result he was also injured and fell or the ground. Muhammad Khan complainant and Ahmad Khan were next to come out of the burning room and ran towards the north. Lastly Jahan Khan and Khan Muhammad also came out and ran towards the west. Ghulam Muhammad son of Sher Muhammad respondent fired at Ahmed Khan who was bit and fell down on the ground. Muhammad Khan complainant, Jehan Khan and Khan Muhammad P. Ws. were also fired at and injured. On a cry that many persons have been killed, the shooting stopped, and it was realized that on the side of the appellant, Muhammad Nawaz son of Sher Khan, Mansab Khan, Saleh Muhammad, Ata Muhammad and Ahmad Khan were killed besides gunshot injuries to Muhammad Khan, the appellant and Jahan Khan and Khan Muhammad P. Ws. On the side of the respondents, Khanu was killed by gunshot injuries besides injuries to three others. Muhammad Khan complainant leaving Muhammad Nawaz P. W. 13 and his brother Noor Khan with the dead bodies, proceeded to lodge the report. He met the S. I. P. on the way made the report Exh. P. A. naming respondents 1 to 16 and Khanu as the assailants. In the report he also gave the background of ill‑will between the parties, and the weapons which each party carried at the time of the incident. Incidentally all the weapons were licensed. The S. I. P. after recording the report Exh. P. A. immediately proceeded to the spot, where besides the usual investigations, he arrested the following respondents and recovered incriminating articles noted against each of them, namely (1) Dost Muhammad Gun Exh. P. 36 and 19 liver cartridges; (2) Shah Muhammad Rifle Exh. P. 34 and 24 liver cartridges; (3) Sardar Khan Gun Exh. P. 38 and 14 liver cartridges; (4) Rab Nawaz Gun Exh. P. 30 and 8 liver cartridges; (5) Sher Muhammad 12 bore gun Exh. P. 27 and 112 liver cartridges; son of Munda. (6) Khudayar Gun Exh. P. 25 and 11 liver cartridges; (7) Sahib Khan Rifle Exh. 32 and 17 liver cartridges; and (8) Sher Muhammad Rifle Exh. P. 28 and 21 live cartridges. son of Muhammad. It is important to point out that at the time of the recovery, the guns and rifles were giving powder smell. Jahana accused was also present at the spot, but being seriously injured was sent to the hospital for treatment. On the morning of 30‑6‑1967, the S. I. P. recovered burnt bags, quilts, pieces of timber and burnt empties from inside the kolha of Nawaz P. W.

13. Left roof had also fallen down. On the same day the S. I. P, also recovered 8 empty shells of .303 rifle, seven missed bullets of .303 rifle and 21 empties of 12" bore gun. On 2‑7‑1967 the guns and rifles along with empties recovered already were sent for examination by the Fire‑arm Expert (P. W. 18). He found that '12 bore crime empty marked C. 20 matched gun Exh. P. 36 recovered from Dost Muhammad respondent. Similarly five empty shells marked C. 22, 24, 25, 28 and 29 matched rifle Exh. P. 34 recovered from Shah Muhammad respondent. Two 12 bore empties marked C. 17 and 21 matched gun Exh. P. 3 8 recovered from Sardar Khan respondent. Four '12 bore empties marked C. 5, 6, 9 and 19 matched the gun Exh. P. 30 recovered from Rabnawaz respondent. Two .12 bore empties marked C. 8 and 16 matched gun Exh. P. 27 recovered from Sher Muhammad son of Munda respondent. One 12 bore crime empty marked C. 18 matched the gun Exh. P. 25 recovered from Khudayar respondent. The 303 empty shells-marked C. 26 and 27 matched the rifle Exh. P. 32 recovered front Sahib Khan. The Fire‑arm Expert, however, could not give any definite opinion whether the rifle Exh. P. 28 recovered from Sher Muhammad son of Dost Muhammad had been fired. The trial Court accepted the evidence of five eye‑witnesses, namely Mohd. Khan P. W. 10 (the appellant), Khan Muhammad (P. W. 11), Jahan Khan (P. W. 12), Muhammad Nawaz (P. W. 13) and Amir Khan (P. W. 15)", all of whom were treated as natural witnesses. The first three though riot independent, had suffered injuries and therefore their presence was confirmed. The other two were treated as independent. The trial Court also relied upon the recovery of guns and rifles, the evidence of the Fire‑arms Expert, and the copy of the F. I. R. in the counter‑case Exh. P. FFF as strong confirmation of the prosecution version. Noor Muhammad son of Fateh Sher (No. 17) though not named in the report Exh. P. A. yet on the basis of ocular evidence, particularly of Muhammad Nawaz (P. W. 13) and Amir Khan (P. W. 15), his participation in the transaction was held as sufficiently proved. The part attributed to him was, that he brought a tin of kerosene oil to set the kotha on fire. At the trial, Dost Muhammad respondent gave the following version of" the incident which was materially different from the F. I. R. Exh. P. FFF allegedly recorded at his instance:‑ "I alongwith Shah Muhammad, and Jahana my co‑accused Khan deceased were going back to our dera from the meld ground on our path which passes from the northern side of the dhok of Nawaz P. W. When we reached near the dhok, the complainant party including the five deceased persons attacked us and fired at us. We fired back at them in self‑defence. Many persons from the meld joined the parties on hearing the gun report and cross‑firing lasted for several hours, in which some persons on both the sides were injured. The motive for the attack was that Mehra a relative of the complainant party was murdered by our relatives. I did not make any report with S. I. He was annoyed as I complained against him to the authorities for not discharging his duties properly in arresting Muhammad Khan and the notorious P. O. He, therefore, fabricated a report containing my confession." Jahana and Shah Muhammad respondents both of whom were injured admitted their presence and raised similar plea in their defence. Others were content with a bald plea of innocence and false implication on account of enmity. However, no evidence whatever, was produced in support of the above plea and the trial Court had no hesitation to reject the defence version that the respondents were ambushed by the appellant and his companions ‑resulting in the killing of Khanu "first" which provoked counter‑attack by the respondents resulting in the death of five persons belonging to the appellant's party. In appeal, the High Court also rejected the defence version of the incident, but took the view that the ocular evidence produced in support of prosecution version was interested and therefore needed independent corroboration. The High Court further opined that though there was certain amount of ill‑will between the parties, nevertheless the immediate cause of the incident was the quarrel over Amir Khan's refusal to make his bullocks ‑run for the second time, and therefore concluded that it was a case of "sudden fight" within the meaning of the fourth Exception. section 300, P. P. C. That conclusion is summed up in these words: "We are aware that there existed previous enmity between the parties and they belonged to opposing factions. However, we are convinced that the immediate cause of occurrence was the dispute regarding the bullock‑race which flared up the parties, they exchanged abuses and then followed a pitched battle in which guns were used by both the sides and cross‑fire lasted for several hours. It is probable that in the first phase the encounter took place in the fields and then the complainant party was driven to the kotha of Muhammad Nawaz P. W. while firing continued. The result was that one person was killed and three injured on the accused side, and five persons were killed and three injured on the complainant side . . . . Sheikh Shaukat Ali, learned counsel for the appellant was critical of the above conclusion. He argued that it was a mere surmise based upon no evidence, whatever, rather it was against the general weight of the evidence including the physical facts so well established on the record. There is substance in the argument. The question, whether a case properly falls within the 4th exception is one of fact, which has to be determined in the context of the totality 4 of the circumstances appearing in the case, The exception is in following terms. "Exception 4.‑-Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.‑It is immaterial in such cases which party offers provocation or commits the first assault." The exception requires three things for its application which must concurrently exist namely that it is a case of: (i) sudden quarrel; followed by; (ii) sudden fight; without premeditation; and (iii) no party has taken undue advantage over its adversary. Certain propositions bearing on the question are well settled. As an abstract proposition, it may readily be conceded that, whenever this exception I applicable in the beginning of a fight, it cannot necessarily be held that one of the participants has taken undue advantage over the other merely because the latter has turned tail and the former pursues the advantage he has obtained. Again it matters not, how the quarrel originated or who offers the provocation or strives first, provided the occasion can properly be regarded as sudden and is "not made a cloak for pre‑existing malice." The word "sudden" has been used in contradistinction with pre‑arranged or premeditated incident. It is spontaneous, committed in the heat of passion upon a sudden quarrel "without any intention to kill or injure another materially", though it might happen that in the course of the scuffle after the parties as heated by the contest and in a fit of rage, one kills the other with a deadly weapon. To such cases the exception will certainly apply. This is, however, subject to an important qualification, namely, that if there intervene sufficient time for passion to subside and for reason to interpose, the exception will not apply. These principles are well settled and can easily be gathered from any annotation on the Penal Code. Therefore, there is hardly any need to burden this judgment with references to the judicial precedents upon which the above statement of law is based. Coming to the instant case, certain facts are not disputed. Firstly, there was previous enmity between the parties. Indeed, this explains the enormity of the tragedy enacted following the incident which by any standard, was trivial. Under the normal circumstances, it is impossible to suggest that a difference developing in a verbal quarrel over the question whether nor not Amir Khan should make his bullocks run for the second time and the intrusion by Jahan Khan P. W. should culminate in the orgy of killing of: five persons on one side and one on the other. Secondly, the prosecution evidence has been consistent throughout that, after the initial verbal altercation, the parties were separated by the interven tion of the bystanders. It was shortly thereafter, that the appellant and his companions noticed that Dost Muhammad respondent and his party were collecting together, that appellant's party thought it prudent to retire towards the dhok of Nawaz. The physical circumstances support that version. The races were held on the east of khanqah at a distance of more than 100 korams or so from dhok Nawaz. No crime empty or blood‑stained earth was recovered from the racing ground or in the immediate neighbourhood of khanqah. The dead bodies, the crime empties anti the missed bullets were all found either inside or around the dhok, more than 100 karams away from the racing ground where verbal quarrel took place. Surely, there was an interval between the verbal quarrel, followed by the separation of the parties, then mustering of strength by the respondents and covering the whole distance from the racing ground towards the dhok. Ordinarily this interval should have allowed the passion to subside and reason to return. This shows that the dhok was stormed. But what actually happened clearly signifies a calculated move and a determination on the part of the respondents. It is common ground that the incident lasted for some hours, in the course of which the respondents brought kerosene oil, climbed up the roof, made an aperture in it and then set it on fire. It was not an idle vandalism, but a manoeuvre to force the appellant and his companions to come out within the firing range. It would be a traversty of fact to treat the transaction as "sudden" for the relevant purpose. Then Muhammad Nawaz deceased, who according to the prosecution evidence was the first casualty on the complainant's side, had all the gun shot injuries on his back. According to the medical evidence, he had the following injuries on his body (1) A gunshot wound of entrance 1/3 in diameter on .the back in the medial line at the level of posterior iliac‑crest. (2) A gunshot wound of entrance 1/3y x 1/3" on the left side of back 1 1/3 " above the iliac crest‑ (3) A gunshot wound of entrance 1/3' x 1/3' on the left side of back lumber region 1 " x 1 " above injury No. 2. (4) A lacerated wound 1/3" x 1/3" on the left side of head on occipital 3 above the occipital protuberance. This lends strong support to the argument of the appellant's learned counsel, that Muhammad Nawaz was given a chase and gunned to death while h was fleeing for his life. According to the plan Exh. PH/1 the point where the dead body of Muhammad Nawaz was found is at a distance of more than 100 karams from the Khanqah. The location of the dead body of Mansab Khan deceased who was the second casuality is also a pointer in the same direction. All these circumstances taken together do indicate the pursuit of a common object to liquidate the inmates of the kotha with grim determination This is clearly an antithesis of "sudden assault" mounted in the heat of the moment which is ordinarily free from any pre‑existing malice. It is true that g there is no direct evidence of pre‑concert and the whole episode started with a demand asking Amir Khan to make his bullocks run for the second time. But then, as pointed out already the patties were separated, and during the interval between the initial quarrel and the actual assault feelings were worked up to mount the attack. Thus the element of "suddenness" disappears altogether. These factors which are inherent in the case, were, if I may say so with respect, were altogether overlooked by the High Court. On the above analysis, in my view the learned trial Judge came to the right conclusion that the case of the respondents so far as the killing of five persons was concerned, fell squarely under section 302 read with section 149, P. P. C. This brings me to consider the criminality of the respondents as members of the unlawful assembly formed with common object of liquidating appellant and his companions and in prosecution of that object they killed five of them and made an attempt on the life of other three, and also set on fire kotha where the victims had taken asylum, On this aspect of the question, the prosecution relied on the evidence of five eye‑witnesses namely the appellant, Jahan Khan, Khan Muhammad, Muhammad Nawaz and Amir Khan. Of them the first three are injured and the other two though not injured but their presence is fully established. The trial Court accept their evidence fully though it relied on other corroborative evidence also. The learned Judges in the High Court, however, if I may say so with respect, were quite justified in looking for corroborative evidence because none of these five eye‑witnesses could be regarded as independent, though so far as can be seen from the record, their presence on the spot was not at any stage of the proceedings, doubted. And their evidence is amply corroborated by not only the medical evidence but also by a number of other circumstances brought on the record reference to some of which has already been made. The eye‑witnesses were not able to identify the persons who actually caused fire‑arm injuries to Muhammad Nawaz deceased and Mansab Khan deceased the first and the second casualties of the incident. The eye witnesses were, however, definite that Shah Muhammad and Sardar Khan respondents 2 and 3 herein, were the persons who, fired at Saleh Muhammad as he tried to flee from the burning korha, respectively with rifle and gun This evidence is corroborated by the bullet and gunshot injuries found on the dead body of Saleh Muhammad. Not only that. When the S. I. P. arrested these two respondents and recovered the rifle Exh. P. 34 and gun Exh. P. 28 from them these were giving powder smell. The further corroboration is available from the evidence of Fire‑arm Expert P. W. 18 who found that five empty shells marked C‑22, 24, 28 and 29 matched the rifle Exh. P. 34 which was recovered from Shah Muhammad. Similarly two. 12 bore empties marked C‑17 and 21 matched the gun Exh. P. 38, which was recovered from Sardar Khan. Ata Muhammad died of bullet injuries. The ocular evidence attributed these injuries to Sahib Khan and Sher Muhammad son of Dost Muhammad (respondents 7 and 8). At the time of their arrest at the spot, rifle Exh. P. 32 was recovered from Sahib Khan and rifle Exh. P. 28 was recovered from Sher Muhammad. Both rifles were giving powder smell at the time of their recovery by the S. I. P. from the two respondents. According to the evidence of Fire‑arm Expert 2 empty shells recovered from the spot marked by him C‑26 and 27 matched the rifle Exh. P. 32 which was recovered from Sahib Khan. With regard to the rifle Exh. P. 28 recovered from She Muhammad son of Dost Muhammad, the Fire‑arm Expert, because for want of sufficient identifying data could not express any definite opinion as to whether any of the missed ‑103 bullets or crime empty marked Exh. C. 28, was fired from the rifle Exh. P.

28. This is however inconclusive statement which can hardly be a sufficient reason to falsify the direct ocular evidence of the five eye‑witnesses and the confirmatory evidence of the S. I. P. who arrested Sher Muhammad son of Dost Muhammad at the spot and also recovered rifle from him and who found that this rifle was also giving powder smell at the time of its recovery. Therefore, in my opinion, the prosecution evidence has also established the participation of these two respondents in the incident beyond any reasonable doubt. A fortiori, the judgment of the High Court in so far as it gave benefit of doubt to Sher Muhammad son of Dost Muhammad merely on the above statement of the Fire‑arm Expert cannot be sustained as it ignores altogether other evidence on the point. The participation of Dost Muhammad (respondent 1), Rab Nawaz (respondent 4), Sher Muhammad son of Munda (respondent 5), Khudayar (respondent 6), in my opinion, is also established beyond reasonable doubt not only by the ocular evidence but by the additional fact that each one of them was also arrested by the S. I. P. at the spot and from each of whom respectively licensed guns Exh. P. 36, Exh. P. 30, Exh. P. 27, and Exh. P. 25 along with live cartridges which each of them carried at the time, were recovered. Even these guns were giving powder smell at the time of recovery. This evidence coupled with the ocular evidence also, in my opinion established their participations in the incident as members of the unlawful assembly, even though the evidence falls short of assigning any particular role to any of them. As regards respondents Jahana son of Jahan Khan respondent 14 an Nawaz son of Mughal respondent 15, they had simple gunshot injuries on their persons. But no fire‑arm was recovered from them, though they were also arrested at the spot. I have given my anxious consideration to the question whether the presence of superficial injuries on their persons is sufficient corroboration of their participation in the incident? It is not possible to overlook the fact that the incident lasted for some hours, during which there was sustained firing. The possibility that these two respondents were struck by stray pellets, as stated by them, cannot be entirely excluded. This is all the more so, when the appellant and his companions had been firing in self‑defence from inside the kotha of Nawaz P. W.

13. The fact that they were unarmed at the time of their arrest, is also not without significance. Therefore, in my opinion, they were rightly given benefit of doubt by the High Court and I would dismiss the appeal qua them. The case against the remaining two respondents namely Muhammad Khan son of Fatta (respondent 16) and Noor Muhammad son of Sher Muhammad respondent 17), in my opinion, is also not free from doubt. Neither of them was arrested by the S. I. P. at the spot. Muhammad Khan was arrested on 2‑7‑1967 and gun Exh. P. 24 H was also recovered from him but there is want of further confirma tory evidence as in the case of the other respondents relating to the smell of gun powder or the matching of any crime empty recovered at the spot with tae gun recovered from him. As to Noor Muhammad, the only role ascribed to him was that he was sent to fetch the kerosene oil which was used in setting the kotha of Nawaz on fire. But in the F. I. R. he is not named nor a‑signed any such role. The explanation given by Muhammad Khan appellant was that he was inside the kotha and therefore he was not aware as to who had brought kerosene oil and that he was subsequently told by Noor Khan that Noor Muhammad respondent had gone to fetch the kerosene oil. Noor Khan is brother of Muhammad Nawaz P. W. 13 but 1 the former has not been examined and therefore the evidence of Muhammad Khan appellant with regard to the identity of Noor Muhammad is wholly unsatisfactory. Omission to examine Noor Muhammad who was the source of information to Muhammad Khan complainant creates a doubt which cannot be repaired by the evidence of the remaining witnesses, who are not disinterested. Before I conclude discussion on the cases against the respondents indivi dually, I must advert to argument addressed by their learned counsel, Mr, Ijaz Hussain Batalvi, He argued that the confirmatory evidence relating to the recovery of incriminating articles is not of the quality which should be inspire confidence in a case of this kind. Particularly he referred to the recovery of guns and rifles at‑ the spot from some of the respondents mentioned above. In respect of these fire‑arms no recovery witness other than Muhammad Saleh S. I. P. (P. W. 16) was examined. Basing himself on the provisions of section 103 of the Criminal Procedure Code, 1898, learned counsel argued, that the requirements of the section with regard to the presence of "two or more respectable witnesses of the locality" at the time when the various incriminating articles were recovered, has not been satisfied and therefore the ‑whole basis of the confirmatory evidence disappears. The recovery memoranda Exhs. P. J. P. K., P. L., P. M., P. N., P. O., P. Q. and P. S. had Been duly proved by the evidence ‑3f the S. I. P. (P. W. 16). These also bear the signatures of two attesting witnesses namely Sarwar and Yaqoob Lambardars, the former of the village of the parties and the latter of a neighbouring village. The S. I. P. however stated on oath that the two witnesses have not been produced because they have been "won over by the defence". This part of his statement has gone unchallenged and therefore, there is no reason to doubt its veracity. This evidence when read with the contents of the various recovery memoranda, leaves no manner of doubt that the requirements of section 103, Cr. P. C. were duly complied with. However, it must be conceded that the provisions of section

103. Cr. P. C. are mandatory and are designed to guard against possible chicanery and concoction. But the argument is not that the requirement had not been complied with in this case: the argument on the other hard is, that no credible evidence has been produced in proof of due compliance with the above requirement. The fact that the recoveries of incriminating articles were made in the presence of two respectable witnesses of the locality is amply proved by the oral testimony of the S. I. P. read with the recovery memoranda and failure to produce the best evidence has been amply explained. However, that may be, the requirement of section 103 is not absolute in the sense that failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore Courts will ordinarily insist on a strict compliance with this requirement and view its non‑compliance with suspicion, unless an expla nation is forthcoming fur failure to secure the presence of respectable wit nesses or omission to examine them in Court. Mr. Ijaz Hussain Batalvi next objected to the reliance by the trial Court, on, what was treated as F. I. R. Exh. P. F F F in the counter‑case recorded at the instance of Dost Muhammad respondent. The objection was two fold firstly, the maker of the statement having disowned that statement. it could, at best, be regarded as his statement recorded under section 162, Cr. P. C. during the investigation of the instant case. In support of thin limb of his argument, learned counsel cited Privy Council case in Pakala Narayana Swami v. Emperor (A I R 1939 P C 47). Secondly, it was urged that, if at all, the statement is admissible, it must be accepted as a whole or not at all and in any event against the maker only and not against other respondents. It is true that the trial Judge relied on Exh. P. F F F as piece of confirmatory evidence in general support of the prosecution case against all the accused. The High Court however, did not treat Exh. P. F F F as "substantive evi dence" and observed that even otherwise, "it had to be considered in it: entirety" and not the portion which supported the prosecution version. Nevertheless, as pointed out earlier, the High Court found that quite apart from Exh. P. F F F, other evidence on record showed that from among the seventeen accused, respondents 1 to 7 were guilty of rioting and curtain other offences, which in the opinion of the High Court, they had committed in the course of the incident, viz., offences under sections 304, Part 1, 307 and 436 rear with 149, h. P. C. This appeal being against the judgment of the High Court and not that of the trial Court, the objection raised by the learned counsel is hardly tenable. On the merits of the objection, the first limb of the argument is without substance. The Privy Council case proceeded on entirely different facts. It was not a case of an F. I. R. being registered in the cross‑case. The short question, which in so far as it is relevant to this case, was whether the state ment made before the Police, during the investigation of a case, by a person who had not till then joined the investigation as accused, can subsequently be proved by the prosecution against him as his admission, in the same case. The prosecution in that case sought to prove an admission by the accused on the plea that the expression, "the person" in section 162, Cr. P. C. refers to a person, other than an accused or a potential accused and that therefore any admission (as distinguished from down right confession of guilt) made by an accused or a potential accused is provable against him. The argument was rejected, and their Lordships came to the conclusion that such "statement is not admissible even when made by the person ultimately accuser". Rather the matter is directly covered by this Court's Judgment in Ali Zaman v. The State (P L D 1963 S C 152), in which the initial report made by the accused as complainant in the case was held admissible against him as his admission. In the instant case too, Exh. P. F F F at best is an admission by Dost Muhammad respondent which under section 18 of the Evidence Act, 1872 is admissible against the maker only, and not against others, even if they are co‑accused with him. To the same effect is Shaharmed v. The State (P L D 1956 S C (Pak.) 238). Therefore, the learned trial Judge was not right to treat Exh. P. F F F, as piece of confirmatory evidence in the ‑case except against the maker. But the point is only academic, because as pointed out earlier, other confirmatory evidence, so far as respondents Nos. 1 to 8 are concerned, is of over‑whelming strength, which coupled with the direct evidence established the various offences with which they were charged by the trial Court, beyond any doubt. Finally, learned counsel for the respondents raised the plea of self -defence on the premise that Khanu was shot down by the appellant's party "first" and what followed was a sequel in retaliation by the respondents, and therefore in their self defence. It was argued that the appellant and his com panions had entrenched themselves in the dhok of Nawaz and attacked the respondents with guns as they passed the dhok enroute to their village Makroomi. In the absence of any other evidence to support his argument, learned counsel sought to rely upon an admission by the appellant made before the Enquiry Magistrate that, for going to village Makroomi from the khanqah, one has perforce to pass dhok Nawaz. In the trial Court the appellant however, stated that village Makroomi is to the north of the Khanqah and there is direct path from the Khanyah to the village. Whether or not there is a direct path to the village from the Khanqah that would not per se establish right of self‑defence in favour of the respondents. The version that the respondents were ambushed by the appellant and his party, in the absence of any credible evidence, was rightly rejected. It appears highly improbable that despite the marked superiority of respondents both in numbers and weapons over the appellants party, the latter should have been so fool‑hardy as to risk the made adventure as suggested by learned counsel. To sum up my conclusions are‑ (a) that respondents 1 to 8 were rightly convicted by the trial Court inter alia under section 302/143 in respect of the killing of five persons belonging to the appellant's party; and to that extent the appeal succeeds and the judgment of the high Court is varied; and (b) that the offences with which respondents Nos. 14 to 17 were charged and convicted by the trial Court are not proved beyond reasonable doubt and to that extent the High Court's judgment is maintained and appeal dismissed. This brings me to the question of appropriate sentences to be passed on respondents 1 to 8 for offences under section 302/149. Learned counsel for the respondents submitted that so far respondents Shah Muhammad, Sardar Khan, Sahib Khan and Sher Muhammad son of Dost Muhammad (who were sentenced to death by the trial Court) are concerned, the High Court's judgment has created expectancy of life for them and that per se was adequate reason for imposing life sentence, the restoration of their conviction under section 302/149, notwithstanding. Certain precedents were also cited in support of this plea. These cases, however, proceeded on their own facts and were not intended to lay down any rule of law of general application. Indeed there are also cases to the contrary. Learned counsel did not suggest that the death penalty imposed by the trial Court on any of the above‑named four respondents was severe. Having killed two of the appellant's companions they haughtily dictated the rest of them to come out of the kotha where they had taken asylum or else the kotha would be set on fire. And this proved to be no empty threat. As the appellants and his surviving companions ran out of the burning kotha, three of them were shot dead one after the other like ducks. Merely because that the High Court, if I say so with due respect, on a mistaken view of the matter has altered the conviction of the said respondents to a lesser offence, cannot outweigh the atrocious features of the case and they definitely do not deserve any leniency on that account. For the foregoing reasons, I would determine the appeal and vary the judgment of the High Court as follows (i) I would restore the conviction and confirm the death sentence of each of respondents Shah Muhammad, Sardar Khan, Sahib Khan and Sher Muhammad son of Dost Muhammad (Nos. 2, 3, 7 and 8) for the offence under section 302 read with 149, P. P. C., and to addition thereto, impose a fine of Rs, 1,000 each, under section 544‑A, Cr. P. C. or in default to undergo sentence of one year R. I. each. (ii) In respect of the same offence, I would restore the conviction and the sentence of life imprisonment of Dost Muhammad, Rao Nawaz, Sher Muhammad son of Munda and Khudayar (respondents 1, 4, 5 and 6) each and in addition thereto would also impose a fine of Rs. 3,000 each under section 544‑A, Cr. P. C. or in default shall suffer R. I. for three years each. (iii) The conviction and sentence of Sher Muhammad son of Dost Muhammad (respondent 8) for offences under sections 307 and 436 read with section 149, P. P. C. as imposed by the trial Court are restored. (iv) In the case of respondents 2, 3, 7 and 8, the sentences of imprison ment whether substantive or otherwise will be operative only if capital sentences, for any reason, or not carried out. (v) Fine, if recovered shall be payable to the heirs of each of the five deceased belonging to the appellants party to accordance with their respective Muslim law shares in the inheritance, so however, that the heirs of each such deceased shall collectively get 1/6th of tile total fine recoverable. (vi) Sentences of imprisonment, other than imposed in default of payment of fine, shall be concurrent. (vii) As respect respondents Jehana, Nawaz son of Mughal, Muhammad Khan son of Fattah and Nur Muhammad (Nos. 14 to 17), the appeal is dismissed. They shall be set at liberty forthwith unless they are to be kept in custody in connection with some other case. MUHAMMAD YAQOOB ALI, J.‑- I agree. ANWARUL HAQ, J.‑-I agree. S. A. H. Order accordingly.