P L D 1964 Supreme Court 205 (PLP)

CORNELIUS, C. J.‑‑This judgment relates to two criminal appeals by special leave, namely, No. 65 of 1963 by Afsar, Ahmad Gul, Muhammad Ghulam and Mulla Rahim, who stand con victed under section 302, P. P. C., and No. 66 of 1963 by one Ghulam Qadar a relation of the murdered men, asking for enhancement to death of the sentences of transportation for life of Ahmad Gul, Muhammad Ghulam and Mulla Rahim. A The order granting special leave in the second appeal was consequential on the leave granted in the first appeal which was on the following terms: "It has been urged before us that the incident relating to the injuries caused to Mst. Badri Jamal was not mentioned in the first information report and the story that the attack was made in order to avenge the beating of Mst. Badri Jamal is an improvement and should not be accepted. A question arises as to whether there was an interval between the incident relating to Mst. Badri Jamal and the attack on the deceased or whether the two were parts of the same transaction and the death of the deceased was the result of a sudden quarrel." The story for the prosecution put briefly was that Hanif, having returned home from the fields on the evening of the 11th May 1962, was sitting on a cot with his brother Ahmad Zaman (P. W. 1) while their mother Mst. Nur Nisa (P. W. 4) was busy giving them their evening meal. The time was about sunset. She had served the rice and was heating the curry to give them when the four accused persons entered the courtyard, Ahmad Gul carrying an axe and Afsar, Muhammad Ghulam and Mulla Rahim carrying daggers, openly. On seeing them, Hanif invited Ahmad Gul who is a relation of his to partake of the food, but Ahmad Gul abused Hanif and immediately raised his axe to give him blows whereupon Hanif jumped up from the cot and caught hold of the axe. Then Ahmad Gul seized Hanif bodily and Afsar stabbed him twice in the belly while Muhammad Ghulam stabbed him in the shoulder. Just then Hanif's father Nimbola arrived on the scene from his cattle‑shed bringing fresh milk in an earthen pot. Seeing what had happened he upbraided Ahmad Gul, but Ahmad Gul retaliated with a blow of his axe on Nimbola's face, and then caught hold of him and Mulla Rahim stabbed him in the body with his dagger. In support of these statements, there arc separate dying declarations, at 9‑45 p.m. by Hanif the same night (which is the initial report in the case) and by Nimbola at 11‑15 p.m., respectively. These were recorded at Oghi five miles away, where the injured men were taken. Hanif died on the following day at 2 p.m., but Nimbola survived until the 14th May 1962. In neither of the dying declarations nor in the examination‑in chief of the eye‑witnesses Ahmad Zaman and Mst. Nur Nisa was any mention made of the person Mst. Badri Jamal, who figures so largely in the order granting leave quoted above. The motive shown for the attack was an incident that had occurred some two months earlier when, following an altercation at a tamasha, Hanif had beaten Afsar. The Investigating Officer went to the village without delay and there at 4 O'clock in the morning he took down a statement from Mst. Badri Jamal which was allowed to be proved on the record, although in fact it was a statement made in the course of the investigation. Mst. Badri Jamal supported the statement Exh. P. B. by evidence given as C. W. 1, at the trial. She lives in a house adjoining that of Nimbola and said that it was dark and she was baking bread at her oven placed in the street, just outside her house when Hanif came and asked her why she had lighted the oven, because they were being troubled by the smoke. He threw a stone at her which hit her on the head and she raised an alarm whereupon he threw another stone which dislodged two of her teeth. The house of Abroad Gul who is Mst. Badri Jamal's uncle, is just across the street and he came out and asked Hanif why he had injured Mst. Badri Jamal whereupon Hanif abused Ahmad Gul and gave him a soti blow on the head, threw him down on the ground, and sat on his chest. Then Afsar came and Hanif grappled with him as well and threw him on the ground while Nimbola and Ahmad Zaman grappled with Ahmad Gul. By this time a number of persons had arrived at the spot and it had become dark. Mst. Badri Jamal was taken into her house by Mst. Nur Nisa. She did not know how Nimbola and Hanif came by their injuries. She only learnt about their being injured when their cots were being taken to the police station Mst. Nur Nisa, wife of Nimbola and mother of Hanif is the daughter of Mst. Badri Jamal's maternal aunt. Mst. Badri Jamal's statement as to the fracas which followed the attack on herself is supported to an extent by two defence witnesses Muhammad Gul (D. W. 1) and Jamadar Behram (D. W. 2), each of whom claimed relationship with the deceased persons. Muhammad Gul spoke to grappling between Hanif and Ahmad Gul and later between Nimbola and Afsar. He saw that Mst. Badri Jamal was bleeding. As regards the fracas he introduced a slight variation when he said :‑ "Nimbola caught hold of his son Hanif when he called out to me saying that Hanif had injured Mst. Badri Jamal for no reason whatsoever." He did not see Mulla Rahim and Muhammad Ghulam at the spot and he did not know "how Hanif and Nimbola were injured because later on it became dark and I could not see". The second defence witness Jamadar Behram lives in a house 30 paces away from the spot and hearing the noise he came out and saw Hanif injuring Mst. Badri Jamal and when Ahmad Gul asked Hanif why he has done so Hanif grappled with him and threw him on the ground and gave him a blow after which Afsar arrived and Hanif went after him, grappled and knocked him down as well. Nimbola arrived and caught hold of Hanif, but Jamadar Behram did not see him grappling with anyone. Many people gathered. Jamadar Behram did not see Muhammad Ghulam and Mulla Rahim. He described Ahmad Gul and Afsar as being unarmed, but Hanif had an axe with which he hit Ahmad Gul. He did not see Nimbola and Hanif being injured at the spot, and he too said it was dark by the time that people gathered. None of these witnesses gives the impression that the stabbing took place during or immediately in continuation of the hand‑to‑hand fighting in which Hanif and Nimbola were involved. The evidence regarding the injuries may be briefly considered. Hanif was found to have a small contused wound on the inside of a finger and four incised penetrating wounds on the body from the left shoulder beyond the lower of the 8th rib, under which fatal hurt had been caused to vital organs. Nimbola's face showed a swelling and tenderness on the right side and an incised penetrating wound on the abdomen which later was the cause of his death. On the other side Ahmad Gul had a "broken swelling" over the occiput and five or six scratches mostly on the left arm and hand and on the left back. Afsar Khan had two lacerations on the left elbow and arms and an abrasion on the left back. Mullah Rahim had small scratches on the front of his neck such as could be caused by nails and Muhammad Ghulam had an abrasion on his left leg. Mst. Badri Jamal had two contused wounds on the face as well as an abrasion on the forehead. An injury was also found on Mst. Nur Nisa, but this was only seen several days after the occurrence. Mst. Badri Jamal and the four accused persons were examined on the 12th May 1962. The trial Judge after consideration of the evidence held "that the incident of Mst. Badri Jamal did not precede the occurrence and that the accused put forward Mst. Badri Jamal in order to claim an exception to which on the evidence on the record they were not entitled". In so holding, he appears to accept the statement of Mst. Nur Nisa P. W. 4, that "Mst. Badri Jamal was injured in the stone throwing which took place after the occurrence." The only other eye‑witness, Ahmad Zaman P. W. 1, refused to support the story regarding Mst. Badri Jamal in the slightest detail, and actually said that she was only produced before the Police after it was known that Hanif had died. This was manifestly incorrect. In the High Court however the defence version of the incident so far as it went was accepted, and the following opinion as to what happened was stated:- "The statements of the D. Ws. and C. Ws. show that there was an altercation between Mst. Badri Jamal C. W. and Hanif deceased in the lane just before the occurrence, during the course of which she was beaten by Hanif. Muhammad Ghulam and Mulla Rahim appellants apparently were sent for by the other two appellants, and all the four appellants after arming themselves with deadly weapons, like axe and daggers, in furtherance of their common intention went to the house of the deceased. The presence of Mulla Rahim and Muhammad Ghulam, appellants whose houses are at a con siderable distance from the spot, would support the prosecution story that the four appellants had attacked the deceased in their house in furtherance of their common intention with a view to avenge the beating of Mst. Badri Jamal and the earlier beating of Afsar by Hanif deceased." There seems no doubt that the earlier incident was of a very minor nature, and that the real and lively cause of the ultimate fatal attacks on Hanif and Nimbola was the fracas over Mst. Badri Jamal, as found by the High Court. But while the trial Court had found that that fracas succeeded the fatal attack, so that Hanif and Nimbola could not have partici pated in it, the learned Judges have transposed it so as to precede the fatal attacks. What the learned Judges have failed to do is to consider, afresh, whether after this tranpositions, the evidence of the two eye‑witnesses giving details of the fatal attacks were to be believed. The terms in which leave to appeal was given in this case show clearly that re‑examination of the evidence was necessary to check the correctness of the view taken by the High Court. In the absence of anything to show that the knife blows were struck in the course of the fracas or immediately afterwards, the learned Judges could be right in thinking that sometime was taken in collecting men and weapons to make the final attack. In other words, the plea of sudden quarrel and sudden fight could not be taken in mitigation of the offence. But that is not the only result to follow from the transposition of the fracas to precede the fatal attack. That operation cannot be carried out without producing upon the prosecution evidence the effect of exhibiting it as a prepared and artificial story, from the mouths of Hanif and Nimbola as well as from the two eye‑witnesses. The evidence is that it became dark in the course of the fracas. Believing that Hanif and Nimbola were involved in it, there is no truth in the story that Hanif had just come home from the fields and Nimbola from the cattle‑shed, when they were subjected to the fatal attacks. The invitation to partake of a meal, extended to four intruders carrying their weapons openly is totally unconvincing. No blood was found inside the courtyard of Nimbola's house, and neither he nor Hanif showed any characteristic axe injury. 'Their stab wounds could be the work of one or two men, who came upon them unawares to take revenge, at a time when it was quite dark. Therefore, upon examination of the entire case the view that I have formed is that the true question is not whether, accepting the story of Mst. Badri Jamal and the defence witnesses as the High Court has done, the next point to consider was whether the fatal blows were struck in direct continuation of that incident or after a gap of time. The real question seems to me to be whether, accepting that the entire account presented by the prosecution witnesses is shown to be artificial and distorted by the deliberate exclusion of the incident to Mst. Badri Jamal, it is possible still to accept the statements of Ahmad Zaman and Mst. Nur Nisa, for the purpose of holding as the learned Judges in the High Court have held that (a) Afsar gave three knife blows to Hanif and Muhammad Ghulam gave him one further blow and (b) that thereafter Nimbola was attacked and fatally stabbed by Mulla Rahim and (e) Ahmad Gul made ineffective assaults on both the deceased persons with his axe. It was pointed out at the hearing of the appeal that in their statements in the committing Court each of the accused persons after saying that he was innocent and had been falsely charged, also said "however I claim the right of private defence". It is suggested that this amounted to an admission of involvement in the affair in which Hanif and Nimbola received their fatal injuries. At the trial however, Muhammad Ghulam and Mulla Rahim denied their presence at the spot altogether, and said that their slight injuries were received in the course of agricultural work. No explanation for these injuries appears from the evidence on either side). Ahmad Gul said that he was attracted to the spot on hearing the alarm raised by Mst. Badri Jamal and immediately Hanif gave him a blow, threw him on the ground and so caused him injuries while Afsar said that seeing his father Ahmad Gul down and overpowered by Hanif he went forward and then Hanif attacked him and threw him on the ground after which "he sat on my chest and the fight ensued". Both these persons denied responsibility for the injuries which caused the deaths of Hanif and Nimbola. In these circumstances, it is for consideration whether the accused persons incurred any obligation in respect of proof to be led in the case, in consequence of a mechanical statement made by each of them in the committing Court, in identical terms, "However, I claim the right of private defence." It must be borne in mind always that the general burden of the issues arising in a criminal case rests on the prosecution. It is evident that no case of self‑defence is available to a person who is charged with entering the house of another, and without provocation, proceeding to deliver a fatal blow or blows. In relation to the version given in the dying declarations and the evidence of the eye‑witnesses, clearly the question of self‑defence could not arise. It could arise only as a part of the story of the fracas, held by the High Court to be an incident preceding the fatal attack. The evidence accepted for this finding contains no indication, either in the examination‑in‑chief or in the cross‑examination, that the fatal blows were struck in the course of the fracas or as the concluding action in that affair. In the circumstances, it is clear that upon the evidence led in the case, the plea of self‑defence did not, in fact, arise in any conceivable aspect, and therefore, the words taken down in that respect from the mouths of each of the accused, persons, in the committing Court, which were in all probability words suggested by counsel for the accused persons, are of no weight whatsoever, in the consideration of the guilt or innocence of the accused persons. They are guilty if the evidence of the eye witnesses and the dying declarations is believed, but otherwise, they are, in my opinion, entitled to be acquitted. Of the two inconsistent pleas they put up at the commitment stage, only one is effective, namely, "I am innocent and falsely charged." In these circumstances, the question that arises is simply whether, if the evidence of Mst. Badri Jamal and the two defence witnesses as to the incident of Mst. Badri Jamal be accepted, that of Ahmad Zaman and that of Mst. Nur Nisa read with the two dying declarations can be accepted at all as true accounts of what happened. I am clearly of the opinion (1) that the High Court has rightly held that the incident of Mst. Badri Jamal preceded the fatal attacks and (2) that the story told in the dying decla rations and by the eye‑witnesses is artificial, being a version from which a great deal of what actually occurred has been omitted. No physical circumstances are adduced in support of the story of stabbing in Nimbola's courtyard, and no evidence is led except that of interested persons, which, in view of the proved "tailoring" of the facts they present, which do not consist with the accepted incident affecting Mst. Badri Jamal, is not sufficient to support so grave a charge. The assessors were unanimously of the opinion that the occurrence took place after dark when it was not possible to identify the assailants and they returned an opinion of "not guilty" in respect of each of the accused persons. On proper analysis I consider that that was a correct appreciation of the entire case. I would accordingly allow Criminal Appeal No. 65 of 1963 and acquit the appellants, but the other appeal con sequently fails and I would dismiss it. FAZLE‑AKBAR, J.‑I have had the advantage of perusing the judgment of my Lord the Chief Justice. I regret my inability to agree with him. This judgment will dispose of two appeals by special leave one by Afsar Khan, Ahmad Gul, Muhammad Ghulam and Mulla Rahim against their convictions and sentences under section 302/34 of the Pakistan Penal Code and another by Ghulam Qadar, a relation of the deceased asking for enhancement of their sentences. The prosecution case briefly was that on the evening of 11th May 1962, when Mst. Nur Nisa was serving meals to her sons Hanif and Ahmad Zaman in the courtyard of their house, the four accused Afsar Khan, Ahmad Gul, Muhammad Ghulam and Mulla Rahim came armed with axe and daggers. On seeing them Hanif invited Ahmad Gul who is a relation of his to partake of the food, but Ahmad Gul after abusing him raised his axe to give him a blow but Hanif jumped up and caught hold of the axe. Thereupon Ahmad Gul caught hold of Hanif and Afsar stabbed him twice in the belly with a dagger and Muhammad Ghulam stabbed him on the shoulder. Just then Hanif's father came from his cattle‑shed and seeing what had happened upbraided Ahmad Gul and Ahmad Gul retaliated by giving a blow on Nimbola's face with an axe and Mulla Rahim stabbed him with a dagger, After the assailants left the place the Injured were taken to Oghi Police Station where Hanif lodged report of the incident at 9‑45 p.m. Shortly thereafter a Magistrate, 1st Class recorded the dying declaration of Hanif at 10‑55 p.m. and that of Nimbola at 11‑15 p m. respectively. Hanif died on the next day at 2 p.m. and Nimbola succumbed to his injuries two days thereafter, that is, on the 14th May 1962. Dr. Muhammad Abdullah who examined the deceased on their arrival at the hospital on 11th May 1962 and the four accused on the next day, that is on 12th May 1962 found the following injuries on their persons: Hanif had 4 incised wounds, one on the left shoulder joint, another between the ribs and musculature over lower part of the left back, a third one on left post‑axillary line over 7th rib area and the fourth one had cut the 8th left rib over left chest and had gone deep into abdomen. He had also a contused wound over inner side of the right little finger. Nimbola had a transverse incised wound running deep into the abdominal cavity on the lower part of the right back just above the right iliac crest. Ahmad Gal had a swelling over occiput, three small reddish abrasions scattered over outer part of left back, a small scratch over outer part of left forearm, and two small scratches with slight swelling over back and middle part of the left hand and on back of the first joint middle finger. Afsar had an abrasion over left back middle part, a linear laceration over outer part of left elbow‑joint, and another laceration over hinder part of left forearm. Muhammad Ghulam had a transverse abrasion over back and lower part of left leg. Mulla Rahim had two linear vertical scratches on his person. On 12th May 1962, the same doctor also examined Mst. Badri Jamal, a niece of Ahmad Gul, and found two contused wounds, one bone deep above left eye brow and the other on left zygomatic bone. There was echymosis and swelling on the left eye and also a circular abrasion over central part of forehead. After investigation these four accused were committed to the Court of Sessions for trial. Their defence may be stated in their own words. Ahmad Gal while explaining his injuries stated: "I was attracted by the alarm of Mst. Badri Jamal who was given a blow by Hanif in my presence. Upon my arrival Hanif threw me on the ground and I received the injuries." His son accused Afsar explained his injuries thus: "I was attracted to the spot on the alarm of my father. I saw my father over‑powered by Hanif. On my arrival Hanif and Nimbola advanced towards me. I was over powered by Hanif and was thrown clown by him. He sat on my chest and then the fight ensued. Many people gathered at the spot. It was after evening prayer's time and the occurrence took place on the roof of the kotha of Muhammad Gul." Defence of Muhammad Ghulam and Mulla Rahim was that they had been falsely implicated in this case on account of their relationship with the other accused. As according to Ahmad Gal the incident started over the beating of Mst. Badri Jamal (C. W. 1), her version may now be given. She lives in the house adjoining the house of Nimbola. She stated that after sunset when she was baking bread at her oven just outside her house, Hanif came and objected to it because they were troubled by the smoke and then threw a stone which hit her on the head. On her raising alarm he threw another stone which dislodged two of her teeth. Then Ahmad Gul, her uncle, came from his house which is across the street and on asking Hanif why he had injured her, Hanif abused him and fell him on the ground with a soti blow, and sat on his chest. At that juncture Afsar arrived and Hanif started grappling with him while Nimbola and Ahmad Zaman grappled with Ahmad Gal. According to her by then it had become dark and she could not see how Nimbola and Hanif received their injuries. One Abdul Wahid who lives at a distance of 150 paces from the place of occurrence was also examined as a Court witness. He stated that when he reached the spot, he found Hanif and Nimbola lying on the ground on the path near the kotha of Muhammad Gal and at that time Ahmad Gal was standing in front of his baithak but he did not see the other accused there. Ocular evidence of what took place at the time when Hanif and Nimbola were injured, was given by Ahmad Zaman, the son of Nimbola, and Mst. Nur Nisa, widow of Nimbola. They fully supported the prosecution story. The prosecution also relied on the dying declarations of the deceased persons. The defence examined two witnesses namely, Muhammad Gal and Jam. Bahram. Muhammad Gal substantially supported the story of Mst. Badri Jamal (C. W. 1). The trial Judge accepted the evidence of eye‑witnesses as trustworthy. He also saw no reason to disbelieve the dying declarations. He therefore, held that "the incident of Mst. Badri Jamal did not precede the occurrence and that the accused put forward Mst. Badri Jamal in order to claim an exception to which on the evidence on the record they were not entitled." He therefore, convicted all the accused under section 302 read with section 34, P. P. C. on two counts and sentenced them to death on two counts. On appeal the learned Judges of the High Court also did not accept the defence version that the occurrence took place near the oven of Mst. Badri Jamal. Further they did not agree with the opinion of the trial Judge that the incident of Mst. Badri Jamal did not precede the occurrence. After considering the entire evidence they came to the conclusion that after the incident of Mst. Badri Jamal, Muhammad Ghulam and Mulla Rahim were sent for and thereafter the four accused after arming themselves with axe and daggers attacked Hanif "with a view to avenge the beating of Mo. Badri Jamal and the earlier beating of Afsar by Hanif." In this view of the matter they held that no right of private defence would arise in this case. They also came to the conclusion that the occurrence had taken place at about evening time and that the two deceased and the eye‑witnesses were in a position to identify the culprits They therefore, upheld the convictions of all the four accused but modified their sentences as follows. They confirmed the death sentence of Afsar but commuted the sentences of the others to transportation for life. In this case leave to appeal was granted to consider: "Whether there was an interval between the incident relating to Mst. Badri Jamal and the attack on the deceased or whether the two parts of the same transaction and the death of the deceased was the result of a sudden quarrel." The eye‑witnesses have stated that when these four appellants went armed to the house of Hanif, he asked appellant Ahmad Gul to partake of the food which his mother was then serving to him, but Ahmad Gul abused him and thereafter they inflicted injuries on Hanif and his father Nimbola. The motive for the occurrence was said to be an incident which had taken place two months before the occurrence between Hanif and Afsar. They denied the defence suggestion that `the occurrence took place near the oven of Mst. Badri Jamal.' No blood was however, found in the courtyard of Nimbola's house. The witnesses also did not explain how the accused party received injuries at the time of occurrence. It seems to me that they have tried to suppress the real cause of the trouble in order to minimise the part played by Hanif and Nimbola in the fight. The High Court was therefore, justified in accepting the defence version that the incident relating to attack on Mst. Badri Jamal preceded the incident in which Hanif and Nimbola were injured. It may also be mentioned that on this point the evidence of Mst. Badri Jamal (C. W. 1) receives sufficient corroboration from the injuries on her person. The next question is : Whether there was any interval between the two incidents? The High Court took the view that after Mst. Badri Jamal was injured by Hanif, her uncle Ahmad Gul sent for Muhammad Ghulam and Mulla Rahim and on their arrival, they attacked Hanif in his courtyard. If there was such an interval, Hanif could have easily armed himself to meet the attack. The fact that the accused party escaped with some minor injuries clearly indicates that the affair arose suddenly and as a result of an altercation between Mst. Badri Jamal and Hanif in the course of which she was injured. I therefore, find it difficult to agree with the learned Judges of the High Court that there was interval between the two incidents. It stands to reason that Ahmad Gul must have objected to the conduct of Hanif and this led to the fight. With this background if the facts, evidence and circumstances are scrutinised, it would appear that fight developed between the parties as a result of a sudden quarrel between Hanif and Mst. Badri Jamal. Now I proceed to consider the extent to which these four appellants were responsible for inflicting injuries on Hanif and Nimbola. It was contended that as the prosecution attempted to shift the place of occurrence and also denied the incident relating to Mst. Badri Jamal it would not be safe to accept their evidence that these appellants were responsible for what happened on the evening of 11th May 1962. It was also argued that in any event Hanif was aggressor and that the accused party acted. In and within the right of private defence. It is true that there were certain infirmities in the evidence of the eye‑witnesses. But while dealing with this type of cases this Court made the following observations in the case of Syed Ali Bepari v. Nibran Mollah and others (P L D 1962 S C 502). "In a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances." Now presence of the appellants Afsar and Ahmad Gul in this fight was not seriously disputed. Injuries on their persons speak for themselves and prove their participation in the fight. In the Court of committing Magistrate they claimed right of private defence. In the Sessions Court Ahmad Gul admitted that after the incident relating to Mst. Badri Jamal, Hanif injured him. Similarly Afsar while explaining his injuries stated that when he arrived on hearing the alarm raised by his father Ahmad Gul, Hanif threw him on the ground and `then the fight ensued.' The defence witness Muhammad Gul while admitting their presence in the fight feigned ignorance as to how Hanif and Nimbola received injuries. Thus participation of these two appellants in the fight has been proved beyond a shadow of doubt. Further, from the fact that Afsar and Ahmad Gul received some minor injuries in the course of the fight it can be safely inferred that the deceased were not armed. From the nature and number of injuries found on the deceased persons a legitimate conclusion can be drawn that these appellants were not acting merely on the defensive. Furthermore in view of the fact that they were using freely daggers against unarmed persons it would be difficult to say that they did not take undue advantage or act in a cruel manner. Hence they are not also entitled to the benefit of Exception 4 to section 300, P. P. C. I am therefore of opinion that both the appellants Afsar and Ahmad Gul have been rightly found guilty under section 302/34, P. P. C. However, having regard to the facts and circumstances I think this is not a fit case for awarding extreme penalty. I would therefore, allow Afsar's appeal to the extent of altering his sentence from death to transportation for life. So far as appellants Muhammad Ghulam and Mulla Rahim are concerned, they denied their participation in the fight. The injuries that were found on their person were of a trivial nature. Their explanation that they had received them in the course of their zamindara work, may perhaps be true. No doubt the eye‑witnesses have named them. But in view of the infirmities in their evidence which have already been noted, it would not be safe to rely fully on their evidence. If really 4 persons had gone fully armed to attack Hanif and Nimbola, the damage would have been much more severe in nature and extent. If the evidence of eye‑witnesses is eliminated the circumstantial evidence, in my opinion, is not sufficient to exclude possibility of the innocence of these appellants and in these circumstances their conviction cannot be sustained. For the reasons stated above I would allow the appeal of Muhammad Ghulam and Mulla Rahim and acquit them. Afsar's appeal would be allowed to the extent indicated above. Ahmad Gul's appeal would however, be dismissed. The other appeal consequently fails and is dismissed. B. Z. KAIKAUS, J.‑I agree. In accordance with the view of the majority, the conviction of Afsar Khan, appellant, under section 302, P. P. C. is maintained, but his sentence of death is altered to transportation for life. Muhammad Ghulam and Mulla Rahim appellants are acquitted. Ahmed Gul's appeal is dismissed. A. H. Order accordingly.