P L D 1969 Lahore 114 (PLP)

SHAUKAT ALI, J.‑Karam Dad and Muhammad Afzal were tried under sections 302 and 307 read with section 120‑B, P.P.C. on the allegation that they on or about November 16, 1964, at Jhawarian agreed between themselves and Mehr Muhammad Yar to commit the murders of the members of the opposite faction and thus became a party to a criminal conspiracy to commit the offence of murder; in furtherance of which conspiracy Ghulam Muhammad alias Gulls, Bhai Khan, Rehmat, Dost Muhammad alias Dosa sons of Jalat, Allah Yar, Muhammad Yar sons of Muhammad Hayat, Allah Bakhsh alias Bakhsha, his son Umer Hayat, Khuda Bakhah, his brother Rafique sons of Siddiq, Muhammad Hayat, Allah Dad and Rahman formed themselves, into unlawful assembly with the common object of committing the murders of Muhammad Bakhsh, Mst. Jallan, Bhai Khan Khanjar, Ali, Muhammad Yar, Jalal and Shera and for the attempted murders of Lala, Wali and Dost Muhammad P. Ws. and in prosecution of that common object to lave actually on 17th November 1964, at Juma‑Peshiwela committed the murders of Bhai Khan and seven others and caused grievous injuries to Lala, Wali and Dost Muhammad P. Ws. They were tried under sections 302/149, 307/149 and 148, P. P. C. by the learned Sessions Judge, Sargodha, who acquitted Karam Dad, Muhammad Afzal, Bhai Khan, Umar Hayat, Khuda Baghsh and Rafique of all of the charges, but convicted Ghulam Muhammad, Rehman, Dosa, Allah Yar, Muhammad Yar, Allah Bakhsh, Muhammad Hayat, Rehman son of Mamoon, under sections 302/149, 307/149 and 148, P. P. C. and sentenced each one of them to suffer death under section 302/149, P. P. C. seven years' R. I. to each under section 307/149 P. P. C. and one year's R. I. to each under section 148, P. P. C. The sentences awarded under sections 307/149 and 148, P. P. C. were to come into operation only if the death sentences were not confirmed. The condemned persons have filed a joint appeal challenging their convictions and sentences. There is also a usual reference under section 374, Cr. P. Code, for the confirmation of the death sentences. The State has also filed an appeal challenging the acquittal of Bhai Khan, Umar Hayat, Khuda Bakhsh and Rafique. This judgment will dispose of the appeal, the reference and the appeal against acquittal.

2. The appellants and the respondents are related inter se. Ghulam Muhammad alias Gulla, Bhai Khan, Rehman and Dost Muhammad are real brothers. Allah Yar and Muhammad Yar are brothers inter se and are sister's sons of Ghulam Muhammad alias Gulla, Bhai Khan, kehman and Dost Muhammad. Mst. Zadi wife of Allah Bakhsh appellant is brother's daughter of the step‑mother of Ghulam Muhammad and his brothers. Khuda Bakhsh and Rafique are brothers inter se and are Awans. They are said to be the partisans of the other accused. The remaining accused are Jhawari Rajputs.

3. The relevant facts are these: Village Jhawarian in the District of Sargodha has a population of fifteen thousand souls. The accused the deceased and the injured, P. Ws. are the inhabitants of this village. One Muhammad Yar Pleader (deceased) was the leader of the accused party while the complainant party was led by Allah Bakhsh P. W.

27. There is an open place which forms part of the common land which is exclusively owned by Jhawaris of the village. This open space adjoins the houses of the accused and some of the deceased. 4. 30/35 years ago, the grandfather of Yara P. W., constructed a house comprising a room and a verandah with the permission of the proprietors of Patti Qaimana. About two years before the present incident Yara P. W. left for village Hadali and delivered the possession of this house to Karam Dad, who stored wood in it. About 5/6 months before the present incident, Yara P. W. came back to the village and asked Karam Dad accused to surrender the possession of the house to him. He refused to do so. Bhai Khan accused asked him to accompany him to Sargodha for instituting a suit against Karam Dad accused, as he bad declined to deliver the possession of the house to him. Bhai Khan accused secured the thumb impression of Yara P. W. on a blank paper. A suit was instituted by Allah Yar accused against Muhammad Yar P. W. 18, on the 15th of July 1964, in the Court of Mr. Muhammad Azam, Civil Judge, Sargodha. It is alleged that this blank paper was converted into a written statement and on the basis of that written statement Muhammad Yar P. W., is said to have confessed judgment in favour of Allah Yar accused and a consent decree was obtained against him on the 23rd July 1964. Allah Yar accused sold this house to Bhai Khan accused on 12th October 1964, through a registered sale, deed (Exh. P. O./1‑4).

5. The prosecution case further continues that on 16th November 1964, there was a meeting in the house of Muhammad Yar pleader (deceased) which was attended by all the accused, besides Ghulam Muhammad, Fateh Sher and Langer P. Ws. Muhammad Yar addressed this gathering and told them that the complainant party was opposing them in every walk of life and he was fed up with them. He suggested to the participants to start constructing boundary wall and thus enclose the open space near the house of Muhammad Yar P. W. and that the complainant party was bound to stop the construction and that if any one of them tried to intervene he should be done to death. All the accus ed agreed to the scheme. Muhammad Afzal accused undertook to bear the expense of the litigation if any, while Karam Dad accused volunteered to provide the necessary fire‑arm and told the accused that the weapons shall be stored in the house of Muhammad Yar P. W. and in case of any eventuality they could be collected from there.

6. On 17th November 1964 Ghulam Muhammad alias Gulla, Bhai Khan, Rehman, Dost Muhammad alias Dosa, Allah Yar, Muhammad Yar. Allah Bakhsh alias Bakhsha, Umer Hayat, Khuda Bakhsh, Muhammad Hayat, Allah Dad, Rehman and Rafique started enclosing the house of Muhammad Yar P. W. with a wall. By Juma prayer time the accused had constructed the eastern wall measuring 55 feet in length with a height of 4 feet and the western wall 34 feet in length with a height of about 3 feet. Haji Muhammad Khan and Allah Bakhsh P. Ws. approached Ghulam Muhammad accused and asked him not to raise the construction. All the accused were adamant to complete the project. Bhai Khan deceased son of Haji Muhammad Khan P. W. came there and told the accused that they were not authorized to do so. He started demolishing the western wail from its southern side, whereupon the accused entered the room of Muhammad Yar P. W. and all of them came out armed with guns. At this juncture Haji Muhammad Khan and Allah Bakhsh P. Ws. retreated and asked Bhai Khan deceased also to retreat. Bhai Khan deceased retreated one or two paces when he was fired at by Ghulam Muhammad alias Gulla accused. He fell down. On hearing the report of fire‑shots Mst. Jalla, Wali, Lala, Muhammad Bakhah, Khanjar and All came there. They also beseeched the accused not to commit any further aggression. All the thirteen accused fired at them, as a result of which they suffered injuries and fell down at the spot. At this stage, Muhammad Yar, Shera deceased and Dost Muhammad P. W. also came. On their protest they were also fired at by the accused. They also fell down there. Thereafter, Ghulam Muhammad alias Gulla locked the door of the room of Muhammad Yar P. W. while the other accused started collecting empties from the spot. They went away raising slogans. As a result of this attack, Muhammad Yar, Muhammad Bakhsh, Jalal, Shera and Mst. Jallan succumbed to the injuries at the spot while Bhai Khan, Ali and Khanjar expired in the hospital the same day.

7. Leaving Muhammad Yar P. W. to guard the dead bodies, Haji Muhammad Khan P. W. proceeded to Police Station Jhawarian, which is at a distance of 3/4 mile from the place of incident and lodged report Exh. P. S. at 2‑15 p.m. which was scribed by Ch. Abdur Rehman, Sub‑Inspector, P. W.

33. The Sub‑Inspector reached the spot at 3‑35 p.m. He found at the spot Muhammad Yar, Muhammad Bakhsh, Jalal, Shera and Mst. Jallan lying dead. He prepared their injury sheets and the inquest reports and despatched the dead bodies to the mortuary for post‑mortem examination. He also prepared the injury sheet of Lal P. W. and got him medically examined. Thereafter he went to Jhawarian Hospital and reached there at about 9 p.m. On his arrival he found that Bhai Khan, Ali and Khanjar had already expired. He prepared their injury sheets and the inquest reports and sent the dead bodies for post‑mortem examination. He also got Wali and Dost Muhammad P. Ws. examined. He took blood‑stained earth from nine places and made it into separate sealed parcels. He also took into possession embedded pellet from the northern wall of the house of Fazal Ilahi and made it into a sealed parcel vide Memo. Exh. P. L. On 21st November 1964, Ghulam Muhammad accused produced 12‑bore gun P. 43, two live cartridges P. 44 and 45, Bandolier P.46, copy of judgment P. Q. and sale‑deed P. O./1‑

4. The same were taken into possession vide Memo. Exh. P. R.

8. Doctor Muhammad Iqbal Medical Officer, Shahpur Saddar, performed the post‑mortem examination on the dead bodies of Mst. Jallan, Shera, Muhammad Yar, Jalal and Muhammad Bakhsh on the 18th November 1964 at 11 a.m. 12‑30, 2‑00, 3‑15 and 4‑30 p.m. respectively. He also held the autopsy on the dead bodies of Ali, Khanjar and Bhai Khan on 19th November 1964, at 9‑30 a.m. 11‑30 a.m. and 2‑20 p.m. respectively, the deceased had:‑ (i) Mst. Jallan had seven gunshot wounds. In the opinion of the doctor the cause of death was shock and haemorrhage due to the injuries to the vital organs, i.e. lungs and heart, which were sufficient in the ordinary course of nature to cause death. (ii) Shesa had six gunshot wounds and one bruise. He died on account of injury to the right lung, large intestines, liver and right kidney. Injuries Nos. 1, 2 and 3, as described in the report of the doctor, were individually sufficient to cause death in the ordinary course of nature. (iii) Muhammad Yar suffered 5 gunshot wounds. Heart was ruptured into two places. The death took place on account of shock and haemorrhage due to injuries to the vital organs, i.e. left lung and heart under injury No. 1 which was sufficient to cause death in the ordinary course of nature. (iv) Jalal received 9 gunshot wounds and an abrasion. The heart was ruptured at upper part. Death occurred on account of shock and haemorrhage due to the injuries to the vital organs, like heart and right lung. Injuries Nos. 5 and 7 according to the report of the doctor, were sufficient to cause death in the ordinary course of nature. (v) Muhammad Bakhsh had two gunshot wounds, one abrasion and a bruise. Death in the opinion of the doctor, was due to shock and haemorrhage as a result of injury to the left lung. Injuries Nos. 3 and 4, as described in the report of the doctor, were caused by blunt weapon and the rest by fire‑arm. (vi) All suffered four gunshot wounds and one lacerated wound. He died as a result of shock due to injury to the brain. Injury No. 2 was sufficient to cause death in the ordinary course of nature. (vii) Khanjar received 11 gunshot wounds. The deceased died due to shock and haemorrhage due to injuries to right lung, liver and intestines. Injury No. 5 as described in the report of the doctor was sufficient to cause death in the ordinary course of nature. (viii) Bhai Khan had eight gunshot wounds. The death took place on account of shock and haemorrhage due to injuries to the large blood vessels, intestines and right kidney. Injuries Nos. 3 and 7 were individually sufficient to cause death in the ordinary course of nature. Doctor Safdar Ali A. M. O. examined Dost Muhammad P. W. on 17th November 1964 at 5‑10 p.m. and found 13 fire‑arm injuries on his person. All the injuries on his person were simple in nature. He also examined Lal P W who had one injury on the left fore‑arm. This injury was found simple in nature. Wall P. W. who was examined at 3‑35 p m. the same day had eight fire‑arm wounds on his person. All the injuries except injury No. 7, as described in the report of the doctor, were simple in nature. The same doctor also examined Muhammad Feroze (not produced) the same day at 5.45 p.m. He had one fire‑arm wound on his person which was simple in nature.

10. Ghulam Muhammad alias Gulla accused admitted the relationship of the accused inter se, but denied that Khuda Bakhsh and Rafique accused belong to their party. He admitted that they started constructing wall around the house of Muhammad Yar P. W. on 17th November 1964. He also admitted that he produced licensed gun and the documents Exhs. P. O. and P. Q. about the title of the property in question. He denied the rest of the prosecution allegations and stated that he had been falsely involved in this case on account of enmity. Bhai Khan accused made a similar statement as of Ghulam Muhammad, but added that Ghulam Abbas Shah F. C. came at the place in dispute sometime after the Walls had been completed and told him that he was wanted at the police station by the M. H. C. He went to the Police Station taking alongwith him the documents of title of the property in question accom panied by Gul Muhammad, Member, Union Council, Khuda Bakhsh accused joined him on the way at the bus‑stand and accompanied them to the police station. While he was busy talking with the M. H. C. he learnt that the present occurrence had taken place. Haji Muhammad Khan P. W. and Muhammad Khan son of Langer were already present at the police station, when he along with Gul Muhammad and Khuda Bakhsh reached the police station. When he had gone to the police station he had left his brother Ghulam Muhammad alias Gulla at the place of occurrence. Umer Hayat accused pleaded alibi. He stated before the Committing Magistrate that he left Jhawarian on the 16th of November 1964, for his unit at Channari in Muzaffarabad in Azad Kashmir and reached there on 17th November 1964. Before the Court of Sessions he stated that he was employed in the Army and was at his duty at Channari in Azad Kashmir on the day of occurrence. He had left his village in the evening of 16th November 1964 and had boarded a train at Bhalwal. He had sent the telegram Exh. P. SS. to his officer on 16th November 1964 and that Chanari is at a distance of 120 miles from Rawalpindi. Khuda Bakhsh accused also denied the prosecution allegations. He stated before the committing Magistrate that he had gone to the police station with Gul Muhammad when Bhai Khan also joined them there. They were in the police station and it was there that they learnt about the present occurrence. At the trial he stated that he had come to Sargodha one day proceeding the day of occurrence and went back to his village on 17th November 1964. When he got down from the bus at the bus‑stand Jhawarian and was about to start for his dera which is at a distance of about two miles from the bus stand he met Bhai Khan accused and Gul Muhammad, Member, Union Council, who asked him to accompany them to the police station, because one Mst. Roshanai had made an application to the police against Gul Muhammad. He accompanied them to the police station and it was there that they learnt that the present occurrence had taken place. Haji Muhammad Khan P. W. and Muhammad Khan son of Langer were also present at the police station when they were there. He further stated that he was a prosecution witness in a case under section 307, P. P. C. in which Ciulla accused and some others had been injured. Muhammad Yar deceased of this case was prosecuted for theft and he was a prosecution witness in that case. The other accused denied the prosecution allegations. The defence examined Malik Allah Bakhah, Inspector, Police D. W. 1, Naik Muhammad Yousaf, D. W. 2, Havl. Muhammad Rafi, D. W. 3 and Subedar Major Gul Muhammad D. W. 4, in defence.

11. The first information report shows that the incident took place at Juma‑Peshi prayer time. We know that Juma Prayer time in the month of November is between 1‑2 p.m. At the maximum according to, the calculation of the time as given in the first information report it can be said that the incident took place between 1 and 2 p. m. The report of this occurrence was lodged at 2‑15 p. m. Other cross‑checks would also show that the incident happened between 1 and 2 p. m. Doctor Safdar Ali A.

141. O. P. W. 8 of Jhawarian Hospital first of all examined Bhai Khan at 3‑05 p.m. It is in cross‑examination of F. C. Ghulam Abbas P. W. 5 that on the day of the incident Haji Muhammad Khan P. W. came to police station and complained to the M. H. C. that Ghulam Muhammad alias Gulla and others were constructing walls on the Shamilat land. The M. H. C. detailed F. C. Ghulam Abbas Shah to go to the spot and to bring those who were constructing the walls. He went there and asked Ghulam Muhammad alias Gulla accused that he was wanted at the Police Station by the M. H. C. who told him that he would be shortly coming to the police station along with the documents of title and then he started saying Juma prayer in the mosque of the Police Station. From the medical evidence and the testimony of Ghulam Abbas Shah F. C. it is obvious that the occurrence took place between 1 and 2 p. m. No suggestion was put in cross‑examination to the informant or to the Sub: Inspector that there was a delay in recording the first information report. We hold that the report in the case was lodged promptly. The first information report gives all the details of the attack. It mentions all the attacks and specifies the weapons carried by them. There appears to be no indication of concoction in the first information report.

12. In this case it is also admitted by the prosecution and the defence that the dispute occurred over a plot of Shamilat land. Yara P. W. had deposed that he was duped in affixing his thumb‑impression on some blank paper and this blank paper was converted into a written statement and that fraudulently a decree was obtained against him by Allah Yar accused. The learned trial Court took the view that the file of the civil suit show that Yara P. W. had confessed judgment in his written statement before the Court and that the decree against him was not obtained fraudulently and it was a consent decree. He further held that Allah Yar accused sold this property to Bhai Khan accused through sale‑deed Exh. P. O. and Bhai Khan accused thus stepped into the shoes of Yara P. W. He further held that Yara P. W. is a non‑proprietor in the village. There fore, he was not competent to sell the site in dispute and that he could only dispose of the material of the house and that the site belongs to the proprietors of Patti Qaimana. He finally concluded that the accused who constructed the boundary wall in front of the house of Yara P. W. were, therefore not at all within their right in entering upon the physical possession of the Shamilat land to the exclusion of other proprietors and those who took exception to the walls being built were justified in doing so. It is in the evidence of Ch. Abdur Rahman, Sub‑Inspector, P. W, that Karam Dad accused produced key P. 48 with which the door of the house of Yara P. W. was opened while Yara P. W. had also deposed that he left the possession of the house with Karam Dad accused, Karam Dad also admitted, when examined, that he produced the key of this house to the police. He admitted further that he was in possession of this room since tree grandmother of Yara P. W. hand given the possession of this room to him and that this area was part of Patti Qaimana of which he was also one of the proprietors. From this it can be spelled out that Bhai Khan accused was not in possession of the Kotha at the material time. The circumstances under which Yara P. W. confessed the judgment also look suspicious. The Civil suit was instituted on the 15th of July 1964 and Yara P. W. defendant confessed judgment in favour of the plaintiff on 23rd July 1964. There is nothing in this record to show that Muhammad Yar P. W. actually appeared before the civil Court and confessed judgment in favour of Allah Yar accused. The assertion of Muhammad Yar P. W. that his thumb‑impression was obtained on some blank paper and that paper was converted into a written statement in that case may be true. The question whether it was a consent decree or a decree obtained as a result of fraud has no bearing on the decision of this case, as it is a case of both the parties that the land in dispute where the wall were being constructed forms part of the Shamilat land. There fore, it is obvious that the accused were not justified in raising the four walls without the permission of the other proprietors of Patti Qaimana. In the circumstances, the appellants could not claim the right of defence of property.

13. The incident happened at the place which is surrounded by houses and it was in broad daylight and must have been witnessed by a great number of people. We know from experience that in a village society, there is always conspiracy of silence on the part of the people in case of party faction and it is not easy to secure independent and impartial witnesses, but that does not obviate the necessity of the Court's duty of satisfying itself to examine the evidence on the strength of which it is being asked to convict the accused. Even if before the Court there is evidence of interested and partisan nature, the Court has to examine the truth of the version coupled with the circumstances in each case and in the light of that to determine the guilt of innocence of the accused. The principle that the testimony of witnesses who are partisan or inimical should ordinarily be discarded is not applicable to the instant case, as we find that the witnesses are natural and the report was promptly made and their conduct after the event was not unnatural. The mere fact that a witness is partisan does not mean that he must perjure and even a partisan witness may depose the truth while on oath. There is nothing inherently improbable in the acceptance of this evidence. It only put the Courts on guard to examine that it does not falsely implicate the innocent persons and that is why the Courts insist on corroboration. This matter was also considered by the learned Judges of the Supreme Court in Nazir v. State (P L D 1962 S C 2169), and it was held:‑ "But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression it meant a witness who has a motive for falsely implicating an accused persons) can never be accepted without corroboration. There may be an interested ‑witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that decree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing." In the light of these observations we now proceed to examine tire statements of the eye‑witness to see if they are the witnesses of truth.

14. The first information report contained the names of all these eye‑witnesses. Allah Bakhah P. W. 27 is the informant in this case. He is a brother of Muhammad Yar deceased. Jalal deceased was his father's brother and Shera deceased was father's brother's son. He is also a very close relation of the other deceased and the injured prosecution witnesses. About 6/7 years ago, his father's brother's son Muhammad Hayat, his father's sister's son Allah Bakhah and to other maternal‑uncles of Muhammad Hayat and others were prosecuted under section 307, P. P. C. for the attempted murders of Ghulam Muhammad alias Gulla, Bhai Khan accused and their father Jalal and the accused In that case were sentenced. There is party faction in the village and he is the leader of one party while Muhammad Yar Pleader (deceased) was of the other. According to his deposition he and Muhammad Khan P. W. were standing close to the western wall of the house of Fazal Ilahi wherefrom they could see all the accused while the accused could not see them. In a sup plementary statement Exh. D. C. which he denies having made to the police he stated that the accused fired shots while standing on the roof of the house of Ghulam Muhammad alias Gulla accused. In another statement Exh. D. E. which he also denies he stated that when he reached the place of occurrence the firing was already in progress and as none of the injured was proceeding to police station to make the report, he went to the Police Station and that he made the report, according to what he had seen and what he had ascertained at the spot. He stated that if the Inspector wrote any such statement ascribing it to him in the daily diary he must have done so at the instance of Allah Yar, a brother of Muhammad Yar Pleader, who was posted as Tehsildar at Jhang in those days to which place, Mehr Allah Bakhsh, Inspector Police, belongs. Haji Muhammad Khan P. W. 28, also witnessed the occurrence along with Allah Bakhsh P. W. He is the husband of Mst. Jallan deceased. Dost Muhammad P. W. is the brother. Shera deceased was the son of his distant cousin. He was duly confronted with his statement before the Police that he and Muhammad Khan son of Langer had gone to the Police Station at 10 or 11 a.m. on the day of the occurrence and had complained to the M. H. C. that Gulla and others were unlawfully constructing a wall on common land and that the M. H. C. sent F. C. Ghulam Abbas P. W. to the spot to bring Gulla and others to the Police station. He denied having stated before the Police that all the thirteen accused scaled over the roof of the house of Gulla accused and Muhammad Bakhsh having armed themselves with guns and that they had fired from the roof of the Kotha. He states in cross‑examination that the accused must have collected about 100 empty cartridges from the spot. He admitted that a quarrel had taken place between his son Afzal, his brother Dosa P. W. and his cousin Muhammad Hayat on one side and Rehman accused son of Mammo and his father Mammo about the turn of canal water about 15 years ago but the matter was compromised at the Police Station.

15. Lala P. W. 29, is an injured witness. Mst. Hakan, his sister was married to Khanjar deceased. His wife Mst. Jallan is the daughter of Muhammad Bakhsh deceased. He is also a relation of Ghulam Muhammad P. W. 14 and Muhammad Hayat P. W.

17. He denied having stated before the Police that all the 13 accused were standing on the roof of the Kotha of Gulla and Muhammad Bakhsh but he said so before the Police. He denied the suggestion of the defence that 13/14 persons of his party armed themselves with different kinds of weapons, came to the place in dispute and that many other persons came towards the place of occurrence on seeing the gathering and that Gulla accused climbed up the roof of his Kotha out of fear and warned from the roof of the Kotha that his party should not demolish the walls anti that as both the parties had gone to the police station the matter should be allowed to be decided by the Police. He also denied that the members of the complainant party started demolishing the walls and stones were pelted at Gulla by some of them and that some of them fired upon Gulla. He also denied that some of them started taking away the bricks of the walls and that it was upon this that Gulla lost his presence of mind and started firing at them indiscriminately and it was in this way that the persons were injured and killed. Walli is also an injured witness. He denied having made statement before the police that all the 13 accused were standing on the roof of the Kotha of Gutla accused with guns in their hands and it was from that roof that they had been firing causing injuries to them. He said so in his statement before the police. Dost Muhammad injured witness is the brother of Haji Muhammad Khan P. W. He denied that he stated before the police that all the 13 accused were standing on the roof of the house of Gulls armed with guns and that it was from there that they had fired at them, but it was so recorded in his Police statement. He also stated that he had no enmity with the accused. He denied the suggestion that he was the member of the mob, who had gone to the place of occurrence to demolish the walls.

16. The learned Sessions Judge rejected the evidence of Allah Bakhsh and Haji Muhammad Khan P. Ws. mainly on the ground that it was difficult to believe that Haji Muhammad Khan and Allah Bakhsh P. Ws. would have been spared by the murderers if they were present at the spot. He took the view that before the Police they stated that the accused fired from the roof of the house of Gulla accused while at the trial they have deposed that the firing was from the ground. He also took notice of the enmity of Haji Muhammad Khan and Allah Baksh P. Ws. with the accused and thought it fit to discard their testimony.

17. We find that the prosecution witnesses of the occurrence have deposed before the committing Magistrate and at the trial that the firing took place from the ground and not from the Kotha. There was no occasion to introduce this change in the version by the complainant the very first day of the incident, as it cannot be said that these witnesses wanted to reconcile the story to fit in the medical evidence, as the medical evidence was not available that day. Apart from this, the medical evidence does not warrant this change. It has come in evidence that the accused weilded influence in the area. Allah Yar Tehsildar, breather of Muhammad Yar Pleader, was posted in those days at Jhang and that Mehr Allah Bakhsh, Inspector of Police who investigated the case also hailed from Jhang. As such, as suggested by the complainant the possibility that the police officer might have introduced this version of his own, to damage the prosecution case, cannot be excluded. The eye‑witnesses from the very beginning insisted in their stand that the firing took place from the ground They adhered to this position before the committing Magistrate and at the trial. We also know from experience that the police officers while recording the evidence usually do not read out the statements to the witnesses nor under the Code of Criminal Procedure the witnesses are required to sign their statements. The claim of Allah Bakhsh P. W. that he came to know about 2 and 2J months after the inspection of the case file that the venue had been shifted from the ground to the top of the house, may be true. On the record there are also two applications Exhs. P. W. 23/A and P. W. 27/1, which do go to show that the complainant was not satisfied with the investigation of the case. He was driven to make complaints to the higher police officers knowing full well that the police may destroy his case. If the evidence on the file show that the investigation was mala fide, and the Police has not correctly recorded a statements under section 161, Cr. P. Code, the Court may prefer to rely on testimony of a witness In Court on oath and a witness should not be considered unreliable on the point on which he is so contradicted. In the instant case we chose to rely on the testimony of the witnesses made on oath in the Court.

18. The finding of the learned Sessions Judge that Allah Bakhsh and Haji Muhammad Khan P. Ws. would have been done to death if they would have been seen by the accused, at first, appears to be attractive and convincing, but on examination we find it difficult to sustain this finding. In this case the parties did not come prepare to measure their strength against each other. It is a case where the complainants came empty‑handed and were shot at by the accused like ducks. Both Allah Bakhsh and Haji Muhammad Khan P. Ws. naturally would have tried to save themselves when the attack was opened by the opponents. These witnesses were not excepting armed opposition and their presence was quite natural as they were opposed to the construc tion of the boundary wall on the shamilat land. It is quite possible in an attack where there is indiscriminate firing that several people may escape unhurt. Walli P. W. also escaped with one pellet. It is difficult to accept as a general rule, that one who does not suffer injury in the course of such like incident, was not present at the spot. If Allah Bakhsh P. W. would not have been present at the spot it was not possible for him to give the detailed account of the gruesome drama in the first information report. It was suggested by the defence that Haji Muhammad Khan P. W. on the day of the incident went to the police station to complain against the construction of the walls. This gives also an implied impression that he was very much interested in the affairs and his presence at the scene of crime would be natural. The statement Exh. D. E. recorded by the Inspector of Police shows that Allah Bakhsh P. W. claimed in his statement that he bad seen the incident and also collected the facts from the spot. Both these witnesses are mentioned in the inquest reports. We are of the view that both these witnesses were present at the spot at the time of the incident.

19. Lala, Walli and Dost Muhammad P. Ws. bore injuries on their persons and their presence at the spot cannot be disputed. The main argument against them is that they are the relations of Allah Bakhsh and Haji Muhammad Khan P. Ws. and are under the influence of Allah Bakhsh P. W. and would tow his line. Allah Bakhsh P. W. is the grandson of Langar Khan, Lala is the grandson of Zaida, father of Walli and Dost Muhammad P. W. is the son of Jalal. They do not belong to same branch of descendants. In cross‑examination it was suggested to Lala P. Ws. that his father Walli P. W. was assaulted by Rehman son of Jalal, Dosa and Shera accused, maternal‑uncles of Allah Dad accused. If it was so the defence would have brought a copy of the first information report or a copy of the judgment to establish this fact. No endeavour was made in this behalf. Dost Muhammad P. W. in cross‑examination stated that he went to the place of occurrence as he was not afraid of the accused as he had no enmity with them. No direct enmity has been established against these witnesses. There appears to be no reason to disbelieve these witnesses. Their evidence also finds corroboration from the medical evidence.

20. A suggestion was made to Lala P. W. in cross‑examina tion that the incident occurred when the complainant party started demolishing the walls arid throwing stones at Gulla and some of them had fired at him. The case which the accused sought to set up in cross‑examination of this witness is of self‑defence, but there is no statement to this effect, yet we, have examined the allegations for the prosecution and those for the defence in juxta‑position against the proved facts to consider whether the case of the defence set up in cross‑examination, was reasonably possible one. Not a vesting of evidence was offered In support of this suggestion nor anything substantial was elucidated in cross‑examination to support it. In support of this ocular evidence we are of this considered view that it was ridiculous to accept the story of assault as suggested by the defence.

21. The presence of large number of injuries shows that a large body of persons were the attackers. The medical evidence shows that the deceased and the injured witnesses suffered 105 gunshot wounds as a result of the firing by the accused. Yet there are other circumstances which also establish the participa tion of large number of them. The length, breadth and height of the walls also show that a large number of people would be engaged in its construction, as it has come in evidence that the construction of the walls was started on that very day. Ghulam Abbas F. C. P. W. 5, deposed that when he went to the spot 8/10 persons were constructing the walls of Katcha bricks. We know in the country side Katcha walls are not constructed by masons but the villagers usually construct the same themselves. The acquittal of Bhai Khan, Umar Hayat, Khuda Bakhsh and Rafiq is on unsubstantial and unconvincing reasons and is certainly erroneous. We have examined the evidence on this issue. Aurangzeb Head Constable P. W. 4, is a formal witness. He deposed that he was not in a position to contradict the suggestion that Bhai Khan and Khuda Bakhsh accused accompanied Gul Muhammad, a Member of the Union Council, to the police station. He admitted that Bhai Khan and Khuda Bakhsh accused were not known to him and therefore, he could not say who accompanied Gul Muhammad. He admitted that Gal Muhammad offered to produce some documents of title in connection with the disputed plot of land and when he was presenting those documents to him, he heard someone saying in the Deohri of the police station that murders had taken place in village Jhawarian, whereupon Gul Muhammad and his two companions left the police station. He is belied by F. C. Ghulam Abbas P. W. 5 and Ch. Abdur Rehman S. H. O. P. W.

23. Ghulam Abbas P. W. in cross‑examination deposed that Ghulam Muhammad alias Gulla accused was supervising the construction. He told Gulla accused that he was wanted at the police station by the M. H. C. Ghulam Muhammad told him that he had documents of title about that land with him and that he would shortly be coming at the police station along with those documents. On his return he started saying his Juma prayer in the mosque of the police station and that he did not see Gulla, Bhai Khan or Khuda Bakhsh accused in the police station. Ch. Abdur Rehman, S. H. O., in cross‑examination deposed that he had gone to Sargodha on the morning of 17th November 1964, and had reached back at the police station at about 11‑45 a.m. He again left the police station at 12 noon mid‑day for the checking of the traffic and reached back at the police station at 12‑30 p. m. Thereafter he remained at the police station in ins office till the writing of the first information report. He stated that he did not see Bhai Khan, Khuda Bakhsh accused and Gul Muhammad, Member, Union Council or Haji Muhammad Khan P. W. at the police station on the day of occurrence before the incident. Bhai Khan accused in his statement before the committing Magistrate did not plead that at the time of the incident he was at the police station. At the trial he stated that he went to the police station along with tare documents of title of property accompanied by Gul Muhammad, a Member, Union Council, and Khuda Bakhsh accused also joined them on the way at the Bus‑stand. While he was busy in talking with the M. H. C. he learnt of the incident. Khuda Bakhsh accused in his statement before the committing Magistrate stated that he went to the police station with Gul Muhammad and Bhat Khan accused joined them there. in the police station he learnt about the incident. At the trial he stated that he went to Sargodha a day preceding the day of occurrence. When he was back to his village on 17th November 1964, and got down from the Bus at the Bus‑stand Jhawarian and was about to proceed for his dera which is at a distance of two miles from the place of incident he met Bhai Khan accused and Gul Muhammad, who asked him to accompany them to the police station as one Mst. Roshani had made an application to the police against Gul Muhammad. He accompanied them to the police station and it was there that he came to know about the present crime. Both Bhai Khan and Khuda Bakhsh made inconsistent statements as to their presence at the police station. The evidence of H. C. Aurangzeb P. W. does not inspire confidence that Khuda Bakhsh and Bhai Khan accused were at the police station at the time of incident. The upshot of the whole discussion is that it is difficult to sustain the finding of the learned Sessions Judge that Bhai Khan and Khuda Bakhsh accused‑respondents were at the police station at the time of incident.

22. Allah Bakhsh P. W. had no grievance whatsoever against Rafique accused to implicate him in a serious crime of murder. He might have some motive against Khuda Bakhsh accused, as he was a prosecution witness in a theft case against Muhammad Yar deceased, but there is obviously no reason to falsely charge Rafique.

23. It is quite impossible that the complainant and the prosecution witnesses should have named Umar Hayat as an accused person and one of the assailants in the first information report knowing full well that he was an army personnel and his presence at the place of duty at the material time would destroy the entire prosecution case. Umar Hayat was on eight days leave from 10th to 17th of November 1964 (both days inclusive). On 16th November 1364, he sent a telegram Exh. P. SS. from Jhawarian Post Office to Battery Commander, 101, Battery care of Postmaster Domel (A. K.) wherein he stated that his absence may be excused as no conveyance was available due to strike. That telegram was despatched by Nasir Ahmad P. W. 12, Post master at 11‑45 a.m. He deposed that on 17th November 1964 at about 8 a.m. Umar Hayat came to him to enquire if any reply of the telegram had teen received at the post office who told him that no reply had been received. Havaldar Muhammad Rafi, D. W. 3, stated that Umar Hayat accused is a Sepoy and that he reported himself for duty on 18th November 1964 at 12 o'clock at mid‑day at Channari and he made an entry on the leave certificate of Umar Hayat accused when he reported himself on that day. He admitted in cross‑examination that he should have been present on duty on the evening of 17th November 1964 at Channari. He stated that he had not brought along with him the original document pertaining to an entry that Umar Hayat had reached Muzaffarabad in the evening of 17th November 1964. He admitted that when an army man goes on leave, a concession voucher is issued to him, to enable him to travel free by train on one side. He deposits that voucher in the railway and gets ticket on payment of half the fare.

24. According to the time table of the P. W. R. for the year 1964 there was only one train "Chenab Express" which used to leave Bhalwal in the evening at 8‑30 p.m. and reached Rawalpindi at 4‑18 a.m. Bhalwal is at a distance of 15 miles from Jhawarian Town. Umar Hayat accused before the committing Magistrate stated that he left Jnawarian on 16th November 1964, for his Unit at Channari in Muzaffarabad (A. K.) and reached there on 17th November 1964 and that he was not present in his village on the day of occurrence. At the trial he stated that he was employed icy the Army and was on duty at Channari in Azad Kashmir on the day of occurrence. He left the village in the evening of 16th November 1964 and had boarded a train at Bhalwal. He sent a telegram Exh. P. SS. to his officer on 16th November 1964. The defence did not make any attempt to produce that voucher to show the departure of Umar Hayat for the obvious reason that Umar Hayat had boarded the train on the evening not of the 16th of November but of the 17th of November 1964, by Chenab Express which left Bhalwal for Rawalpindi at 8‑30 p.m. and reached Rawalpindi at w‑18 a.m. As such it was quite easy for him to reach Channari by 12 noon, on 18th November 1964, which is at a distance of 120 miles from Rawalpindi. Furthermore, if he intended to leave on the 16th of November 1964, he would not have sent the telegram. In view of the documentary evidence on the file it would be difficult to accept the oral testimony of Naik Muhammad Yusuf D. W. 2, and Sub‑Major Gal Muhammad D. W.

4. The evidence of alibi is tissues of lies.

25. From the foregoing discussion we are of the view that the eye‑witnesses did not lie on any material point and their conduct after the incident was natural and in the light of the surrounding circumstances of the case, even if it is said that the, evidence is of partisan nature which we do not, we find that there is nothing inherently improbable to accept this evidence.

26. This is a case of brutal, pre-mediated and concerted assassinations and the learned Sessions Judge rightly passed the sentences of death on Ghulam Muhammad alias Gulla, Rehman, Dost Muhammad alias Dosa, Allah Yar, Muhammad Yar, Allah Bakhsh. Muhammad Hayat, Allah Dad and Rahman son of Mammoon and that sentences we confirm. Their convictions and Sentences under sections 307/149 and 148, P. P. C. are also upheld. Criminal Appeal No. 718 of 1966, is accordingly dismissed.

27. We also accept the State appeal (Criminal Appeal No. 102 of 1967) against Bhai Khan, Umar Hayat, Khuda Bakhsh and Rafique and convict them under sections 302/149, 307/149 and 148, P. P. C., but we refrain to pass sentences of death on there under section 302/149, P. P. C. as they were acquitted by the learned Sessions Judge on 7th October 1966. In our opinion the ends of justice would be met if they are sentenced to life imprisonment under section 302/149, P. P. C. and we order accordingly. We also sentence them seven year:' R. I. each under section 307/149, P. P. C., and one year's R. I. each under section 148, P. P. C. The sentences shall, however, run concurrently.

28. The District Magistrate, Sargodha, shall now take steps tar have Bhai Khan, Umir Hayat, Khada Bakhsh and Rafique arrested and committed to jail to serve out the sentences as Imposed on them.

29. Needless to say that Criminal Revision No. 261 of 1967, preferred by Allah Bakhsh P. W. against the acquittal of Karam Dad and Muhammad Afzal accused of criminal conspiracy was dismissed at a preliminary hearing by another Division Bench on the 30th of May 1967. A. E. Death sentence confirmed. State appeal accepted.