1984 P Cr (PLP)

MUHAMMAD ILYAS, J..-Abid Shah son of Abdul Wahid, aged 14-15 years, Wilayat Shah son of Jalil Shah, aged 18 years, Lah Shah son of Muhammad Shah, aged 25-30 years, and Rajay Shah son of Muhammad Shah, aged 20 years, all four Qureshis by caste and residents of Pir Da Kot, District Sheikhupura; and Boota son of Beg, aged 45 . years, Tufail son of Muhammad Boota, aged 24 years and Ashraf son of Muhammad Boota, aged 20 years, all three Dogars by caste and residents of Khayaray Khurd, District Sheikhupura, stood trial before Mr. Muhammad Afzal Sohail, Additional Sessions Judge, Sheikhupura, on charges under sec tions 302 read with section 149, and section 148 of the Pakistan Penal Code for having formed an unlawful assembly with the object of causing the death of Saleh Muhammad son of Allah Ditta (P. W. 8), caste Dogar, resident of Khayaray Khurd, District Sheikhupura, and for actually caus ing his death, besides committing rioting. The learned Additional Sessions Judge found them guilty on all the charges and sentenced each of them to life imprisonment under section 302 read with section. 149 of the Pakistan Penal Code. They were also sentenced to pay fine amounting to Rs. 2,000 each or, in default, to suffer further rigorous. imprisonment for two years each. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased. Under section 148 of the Pakistan Penal Code they were directed' to pay fine of Rs. 5,000 each or in default, to suffer further rigorous imprisonment for six months each. All the sentences were ordered to run concurrently. Feeling aggrieved by the order of their conviction, they have preferred this appeal (Criminal Appeal No. 861 of 1980). Allah Ditta (P. W. 8), who is complainant in this case, has also filed a criminal revision (Criminal Revision No. 1033 of 1980) seeking enhancement of the sentences awarded to the appellants. Both these matters shall be disposed of by this judgment.

2. It is alleged that on 17th August, 1979 at 11 p. m., the complain ant, his daughter, Mst. Jamila Bibi (P. W. 11) and his son, Saleh Muhammad deceased, went out to irrigate their land. The deceased had a burning lantern with him. When they were on the khal passing through the garden of Lai Shah appellant, the appellants came out of the garden and attacked the deceased. Lai Shah, Wilayat Shah and Boota appel lants were armed with hatchets, Rajay Shah, Tufail and Ashraf appellants had tokas and Abid Shah bad a kassi. Tufail and Rajay Shah appellants gave toka blows on the legs of the deceased and Boota appellant inflicted a hatchet blow on his head. On this, he fell down and then all the assai lants started giving him more blows. Boota appellant told them to cut him into pieces starting from the side of his feet. The complainant and his daughter raised alarm and also asked the appellants to take pity on the deceased but with no response. Instead, they caused him more injuries on his head, arms, legs etc. On the raising of the alarm by the complainant and his daughter Ahmad Ali (P. W. 9) and Ahmad Shah (P. W. 10) came to the spot and saw the occurrence. They, however, did not dare to catch hold of the assailants who ran away alongwith their weapons.

3. As indicated above, there are two sets of the appellants in this case. One set consists of Qureshis and the other is of Dogars. Separate motives have been attributed to the appellants of each set for committing the offences involved in this case. In regard to the Qureshis, namely, Abid Shah, Lai Shah, Rajay Shah and Wilayat Shah, who are related inter se, it has been alleged that they forcibly occupied the haveli of the complain ant which resulted in a civil suit. The suit was decided in favour of the complainant in the month preceding the one in which the occurrence had taken place. This was resented by Lai Shah and others. As regards the other appellants, who are Dogars, namely, Boota and his two sons, it was stated by the complainant that Boota's mother was married to Beg who was paternal uncle of the complainant. Boota was born after 21 years of the death of Beg. Despite this, he claimed to be the son of Beg but the com plainant used to call him a bastard. The mother of Boota had also litiga tion with the complainant regarding the inheritence of Beg who had left some land. The complainant, won the litigation. According to the com plainant since the two sets of the appellants were annoyed with the com plainant and his son they had joined hands to kill him.

4. The incident was reported by Allah Ditta complainant at Police Station Warburton by making F. I. R., Exh. P. G. It was recorded by Ijaz Ahmad (P. W. 12) who was then posted as S. H. O. at the said Police Station. After recording the F.I.R. the S. H. O. went to the spot and prepared inquest report Exh. P. H. and injury statement Exh. P. J. in respect of Saleh Muhammad deceased. He collected blood-stained earth from the spot, vide Exh. P. K., and sent the dead body of Saleh Muhammad to the mortuary for post-mortem examination. The S. H. O. also took into possession broken lantern Exh. P. 7 from the spot, vide memo., Exh. P. D. After their arrest, Abid Shah, Rajay Shah and Wilayat Shah appellants led to the recovery of kassi Exh. P. 4, toka Exh. P. 5 and hatchet Exh. P. 6 which were taken into possession by the S. H. O., vide memoranda Exhs. P. D., P. E., and P. F., respectively. These recoveries were attested by Abbas Ali Shah (P. W. 7). The said three weapons were sent to the Chemical Examiner who opined, vide his report Exh. P. M., that they were stained with blood. -In the opinion of the Serologist the blood found on the said weapons was of the human origin. His report is Exh. P. N. J 1.

5. Dr.. Muhammad Raliq (P. W. 4) . performed autopsy on the dead body of Saleh Muhammad and found the following injuries thereon :- (1) An incised wound 8 c. m. x 2 c. m. x scalp deep on the left side of the head, 10 c.ms. from the left ear. (2) An incised wound 5 c.m. x 2 c. m. X. bone deep on the central part of the forehead. (3) A swelling 11 c.m. x 4 c.m. on right side of the head 8 c.m. from the right ear. Underlying skull bone was fractured. (4) An incised wound 5 c.m. x 7 c.m. x bone deep on the upper and lateral side of the left arm. Underlying bone was cut into two. (5) An incised wound 13 c. m. x 11 c. m. x arm deep on the outer part of the left forearm, in its lower part, bone had been cut and arm was attached by a piece of muscle and skin. (6) An incised wound 14 c. m. x 12 c. m. x arm deep on the left arm near the elbow joint, bone has been cut and arm was attached with a piece of skin. (7) An incised wound 9 c.m. x 2 c.m. x bone deep on the left arm between injury Nos. 5 and 6. (8) An incised wound 14 c.m. x 5 c.m. x bone deep in the medial side of the left thigh on its lower part, underlying bone had been cut into two. (9) An abrasion 8 c.m. x 1 c. m. on the enteromedial side of the left thigh about its middle part. (10) An incised wound 7 c. m. x 2 c. m. X muscle deep on the outer and lower, part of the left thigh. (11) An incised wound 21 c.m. x 10 c.m. x left knee joint deep the lower part of the left femur and upper part of the left tibia had been cut, and the leg was attached with skin. (12) An incised wound 5 c.m. x 1 c.m. x skin deep on the medial deep upper part of the left leg. (13) An incised wound 1 c.m. x 1 c.m. x skin deep on the medial and upper part of the left leg. (14) An incised wound 3 c.m. x 21 c.m. x bone deep on the medial and middle part of the left leg. (15) An incised wound 6 c.m. x 4 c.m. x bone deep on the medial side of the left knee joint. (16) An incised wound 2 c.m. x 1 c.m. muscle deep do the medial and lower part of the left thigh. (17) An incised wound 6 c.m. x 3 c.m. x muscle deep on the outer and the upper part of the left leg. (18) An incised wound 7 c.m. x 5 c.m. x skin deep on the outer and the lower part of the left leg. (19) An incised wound 9 c. m. x 2 c. m. x muscle deep on the anterior and middle part of right thigh. (20) An incised wound 4 c.m. x 1 c.m. into skin deep on the lower part of the right thigh near the knee joint. (21) An incised wound 24 c. m. x 7 c. m. x knee joint deep and joint is cut into two, only attached by the skin, right knee joint. (22) An incised wound 5 c. m. x 1 c. m. x bone deep on the anterior and upper third of the right leg. (23) An incised wound 12 c.m. x 5 c.m. x bone deep on the back and upper part of the right leg. (24) An incised wound 10 c.m. x 8 c.m. x muscle deep on the back and lower third of the right leg. (25) An incised wound 18 c.m. x 7 c.m. x ankle deep on the anterior side of the right ankle and ankle joint has been cut into two. (26) A contusion 9 c.m. x 1 c.m. on the outer and the lower part of right thigh. (27) An incised wound 6 c. m. x 4 c.m. x skin deep on the back and lower part of the left of abdomen. Injuries Nos. 3, 4, 5, 6, 8, 11, 21 and 25 were reported to be grievous. Others were declared to be simple. In the opinion of the doctor, injuries Nos. 3, 9 and 26 were caused by blunt weapon, while the others ever in flicted with sharp edged weapon. In the opinion of the doctor, the death of Saleh Muhammad had occurred due to severe shock and haemorrage caused by injuries Nos. 3, 4, 5, 6, 8, 11, 21 and

25. According to him, the said injuries were sufficient to cause death in the ordinary course of nature. Exh. P. A. is the post-mortem report while Exh. P. A./1 is diagram of the injuries.

6. There was bunyan, safa and dhoti on the dead body of Saleh Muhammad when it was taken to mortuary. These clothes were handed over to Mahboob Ahmad, Foot Constable (P. W. 5) by the doctor which he passed on to the S. H. O. bunyan, safa and dhoti are Exhs. P. 1, P. 2 and P. 3, respectively. They were taken into possession by the S. H. O. Vide memo. Exh. P. B.

7. According to the investigation held by the S. H. O., Lai Shah, Eoota, Tufail, and Ashraf appellants were found innocent and, therefore, he placed them in column No. 2 of the challan submitted by him (copy Exh. D. B.). The matter was further investigated by P.W. 15, Anwar-ul- Haq, Inspector, Crimes Branch, Lahore. The result of his investigation was that all the appellants were guilty. All of them had, therefore, to face trial before the learned Additional Sessions Judge.

8. After the prosecution had led evidence in support of its case, statements of the appellants were recorded under section 342 of the Code of Criminal Procedure. It was admitted by Abid Shah, Rajay Shah, Lai Shah and Wilayat Shah that they were related inter se. Abid Shah, how ever, expressed ignorance with regard to civil litigation between Lai Shah appellant and the complainant in regard to haveli of the complainant. According to Wilayat Shah, Rajay Shah and Lai Shah no such litigation had taken place. All the said appellants denied their participation in the occurrence and said that they were involved in this case due to enmity with the prosecution witnesses and party faction. Abid Shah, Wilayat Shah and Rajay Shah appellants also denied having led to the recovery of kassi Exh. P. 4, toka Exh. P. 5 and hatchet Exh. P. 6, respectively. Accord ing to Lal Shah appellant Saleh Muhammad deceased was killed in the following circumstances :- "Deceased Saleh Muhammad used to indulge in immoral and indecent activities. He had outraged the modesty of niece of Anwar son of Dara Changer resident of village Pir Da Kot. As a result of which the said Anwar has caused injuries to Saleh Muhammad. I and my brothers had prevented Saleh Muhammad from indulging in such activities. We had been falsely implicated. In case No. 12 registered with P. S. Warburton on 17th January, 1979 at the instance of Allah Ditta complainant relating to the injuries caused to Saleh Muhammad by Muhammad Anwar. I tender in evidence the true copy of the said F.I.R. I and my relative were not challaned in that case. Only Anwar was challaned. The copy of F. I. R. is Exh. D. F." It was admitted by Boota, Tufail and Ashraf appellants that Boota appellant is father of Tufail and Ashraf appellants. It was denied by Boota appellant that he was born after 2J years of the death of his father (husband of his mother) and for this reason there was civil litigation between him and the complainant about the land left by his father. Accord ing to him it was incorrect that the relations between his family and that of the complainant were strained due to the said litigation. It was denied by Boota appellant that Saleh Muhammad deceased used to call him bas tard (harami) and for this reason he (Boota appellant) was deadly against him (Saleh Muhammad deceased). It was however, admitted by Boota appellant that some litigation had taken place between his mother and the complainant when he was a baby. He denied having taken any part in the occurrence. The explanation given by him for his involvement in this case was as follows : "Due to party faction in the village and also for the reason that Saleh Muhammad used to indulge in immoral and indecent activities in the village and I used to object to this. The complainant and his family annoyed with me for this reason." He tendered in evidence copies of' certain documents, namely, Exh. D. C., D. C./I, D. C./2, D. E., D. E./1, D. E./2, D. F., D. F./I and D. F./2. It was denied by Tufail and Ashraf appellants that there was any litigation between the complainant and their father. (Boots appellant) regarding the said land or that the deceased used to call their father a harami. According to Tufail and Ashraf appellants they were involved in this case due to party faction and enmity with the prosecution witnesses. No witness was examined in defence.

9. The learned Additional Sessions Judge found all. the appellants guilty and convicted and sentenced them as aforesaid. 10.In this case four witnesses were cited by the prosecution to give ocular account of the occurrence. They were Allah Oitta (P. W. 8), Ahmad Ali (P. W. 9), Ahmad Shah (P. W. 10) and Mst. Jamila Bibi (p.W. 11). Assailing their testimony it was pointed out by learned counsel for the appellants that Allah Ditta bad failing eyesight and was, therefore, not in a position to identify the assailants. About Mst. Jamila Bibi it was urged that she being an unmarried young lady could not be expected to accompany her deceased brother at 11-00 p. m. to assist him in irrigating his fields and thus she was not a natural witness of the occurrence. With regard to Ahmad Ali and Ahmad Shah it was maintained that they had not supported the prosecution version and were, therefore, declared hostile. Another plea raised by learned counsel for the appellants was that as it was a dark night when Saleh Muhammad was killed it was not possible to identify the persons who had killed him.

11. Before adverting to the other eye-witnesses we would like to deal with Ahmad Ali and Ahmad Shah who were declared hostile by the pro secution Ahmad Ali made the following statement :- About 10/11 months back it was 10-30 p. m. I was coming back from Mandi Dokhaywali after having purchased diesel for my tractor and was going on the bank of Sokar canal towards Dinakot where I cultivate the land. When we reached village Pirkot parallel to the land of Allah Ditta P. W., we beard a big hue and cry. We reached the spot and, found that Muhammad Saleh was being injured by 6/7 persons. When I reached the deceased had already been injured and that time the lantern had extinguished. I enquired from Allah Ditta what had happened. He replied that his son had been murdered." The statement of Ahmad Shah reads as follows :- "About 9/l0 months back. it was 11 p. m. when I present in my house. I beard hue and cry while present in my house, and went to the spot. I saw the seven accused, present in the Court were running from the garden. They were Boota armed with hatchet, Tufail armed with toka, Ashraf armed with toka. The others were not identified by me." Both Ahmad Ali and Ahmad Shah are independent witnesses. Nothing has been brought on the record to demonstrate that they were interested, the prosecution case. Ahmad Ali was not put a single question in cross-examination. Some suggestions were made to Ahmad Shah to show that he was inimically disposed towards Boota, Ashraf and Tufail appel lants but the same were refuted by him. One of the suggestions was that Boota and others were prosecution witnesses in a murder case against Ahmad Shah. If this was correct, documentary evidence could be pro duced by Boota and others to substantiate their plea but this was not done. To our minds, both Ahmad Ali and Ahmad Shah are disinterested wit nesses and we will take their. statements into consideration despite the fact that they were declared hostile by the prosecution. As ruled in Kaloo and A 2 others v. The State (1973 P Cr. L J 334), evidence of such witnesses cannot be discredited wholly merely for the reason of being declared hostile.

12. In regard to the eye-sight of Allah Ditta, great stress was laid by learned counsel for the, appellants on a demonstration held before the learned trial Court to test his capacity to identify a person from some distance. On the conclusion of the demonstration, Allah Ditta made the following statement :- "It is correct that I have not been able to identify a man though he was known to me from a distance of 20 feet within the Court room." The statement of Allah Ditta preceding the above sentence makes the following reading :- "I got my right eye operated a year earlier to the occurrence and since then I am using spectacles. It is correct that my left eye is very weak. It is correct that I have got very weak eye-sight, therefore, I was not in a position to identify any person during the night." The demonstration held before the learned trial Court is indicative of the state of the eye-sight of Allah Ditta at the time when he appeared before that Court and not the one obtaining at the time of the occurrence which had taken place about a year earlier. It is, therefore, not possible for us to say that since the eye-sight of Allah Ditta was poor at the time of his examination as a witness it was so even at the time of the occurrence. The mere fact that he was operated upon a year before the occurrence and was using spectacles does not justify a conclusion that he could not see things properly. It is a matter of common knowledge that after under going operations people generally regain eye-sight with the aid of the spectacles. The suggestion made to Allah Ditta that due to his weak eye sight he was not in a position to identify any person during the night was refuted by him. There is nothing on the record to show that at the time of the occurrence his eye-sight was so poor that he could not identify the assailants even if he had been present at the time of the occurrence. We are, therefore, unable to agree with learned counsel for the appellants that Allah Ditta could not identify the killers of his son even if he was there with his son when he was killed.

13. Allah Ditta appears to be a natural witness of the occurrence in asmuch as according to him he was accompanying his unfortunate son at night when he was going to irrigate his land. The going of the two persons on such a pursuit is not unusual. While irrigating land the watercourse as well as the land desired to be irrigated are to be kept under constant watch. Another reason given by A11ah Ditta for being with his son was that as the latter had enemies the former had escorted him. According to the statement of Ahmad Ali also Allah Ditta was present at the time of occurrence. We are, therefore, convinced that Allah Ditta was with Saleh Muhammad deceased when he was given fatal blows.

14. As regards Mst. Jamila Bibi we are conscious of the fact that in villages womenfolk also work in the fields with male members of their families but this is usually done during day time. Moreover, when Allah Ditta was with the deceased, there was hardly any need for Mst. Jamila Bibi's going with them at about mid-night. Her-presence at the spot was not mentioned by Ahmad Ali or Ahmad Shah. It is in her statement that after Saleh Muhammad was injured she carried his head and found that he was dead. There is nothing on the record to show that while so doing her hands or clothes were smeared with blood. We, therefore, doubt her pre sence at the time of occurrence.

15. This brings us to the submission of learned counsel for the appel lants that as the occurrence had taken place during night it was not possi ble to identify the assailants. It is in the statement of Allah Ditta that the deceased was carrying a lantern and that it was in the light of the lantern that he had identified culprits. The presence of the lantern at the spot was also mentioned by Ahmad Ali. Broken lantern Exh. P. 7 was recovered from the spot by the Investigating Officer, Ijaz Ahmad (P. W. 12), vide memo. Exp. P. L. In this connection, it was urged by learned counsel for the appellants that the broken pieces of the glasses of the lantern were not taken into possession by the Investigating Officer. This circumstance, however, does not justify a conclusion that no lantern was broken at the spot especially when it is in the statement of Ahmad Ali that when he reached the deceased 'the lantern had extinguished". Looking at the statements of Allah Ditta, Ahmad Ali and the evidence of recovery of the broken lantern, therefore, we are satisfied that there was burning lantern with the deceased 'when he was attacked and it was not impossible) for Allah Ditta to identify his assailants.

16. Besides the ocular evidence, the prosecution heavily relied on the evidence of recovery of kassi Exh. P. 4, toka Exh. P. 5 and hatchet Exh. P. 6 on the pointation of; Abid Shah, Rajay Shah and Wilayat Shah, vide memoranda Exhs. P. D.P. E. and P. F., respectively. Abbas Ali Shah (P. W. 7) and Ijaz Ahmi'd (P. W. 12) are the recovery witnesses. Ijaz Ahmad is Investigating Officer in the present case. Nothing was said by learned counsel for the appellants against Abbas Ali Shah except that had been watching the progress of the case. This conduct on his part being quite natural does not warrant the rejection of his testimony. As for the other recovery witness, namely, Ijaz Ahmad, although it was suggested to him that he had falsely planted the said weapons yet no reason was given for his so doing. We are, therefore, inclined to rely on the statements of the said-two witnesses of recoveries to the extent of consistency.

17. There is consisitency in the statement of Abbas Ali Shah and Ijaz Ahmad regarding the recovery of toka Exh. P. 5 at the instance of Rajay Shah appellant. Both of the had said that it was blood-stained at the time of recovery. There is, Towever, contradiction in the statements of the two witnesses regarding the recovery of kassi, Exh. P. 4, on the pointation of Abid Shah appellant. Abbas Ali Shah said that it was not blood-stained when it was recovered but Ijaz Ahmad deposed that it was stained with blood at that time. This s a material discrepancy in their evidence and we will, therefore, not like to rely on the recovery attributed to Abid Shah appellant. The statements of the two witnesses in regard to the recovery of blood-stained hatchet Exh. P. 6 at the instance of Wilayat Shah appel lant are consistent except to the extent that Abbas Ali Shah described it as takwa and not hatchet. Abbas Ali Shah, however, admitted having attes ted recovery memo. Exh. P. F. in which Exh. P. 6 is mentioned as hatchet Exh. P. 6 was shown to 1'inm in the trial Court before it was exhibited ands he had deposed that it vas recovered at the instance of Wilayat Shah appellant and was blood-stained at the time of its recovery. There thus no dispute regarding the identify of Exh. P. 6 which, in his statement p as P. W. 7, was wrongly Untioned as' takwa by Abbas Ali Shah although, as observed by us, it is al hatchet and not takwa. In these circumstances, mere mis-description, by Abbas Ali Shah of the weapon recovered on the pointation of Wilayat Shah is of little consequence. We are clear in our mind that Exh. P. 6, which is a hatchet, was blood-stained when it we recovered at the instances of Wilayat Shah.

18. The medical evidence supports a prosecution version inasmuch as the number of injuries mentioned by Allah Ditta complainant in the F.I.R. and his statement at the trial is in accord with the injuries mentioned in the post-mortem report Exh. P.A. According to the said report the deceased had suffered 27 injuries and almost all of them were caused by sharp-edged weapons. Prosecution version is that the assailants were also equipped with such weapons when they attacked the deceased. The medical evidence is therefore in tune with the prosecution version that kassi, hatchets and tokas were used to kill Saleh Muhammad.

19. In regard to the motive, spelt out earlier, we have the statements of Allah Ditta and his daughter Mst. Jamila Bibi. It has also been stated by that they had been involved in this case due to the enmity of the prosecution witnesses including the complainant (Allah Ditta). It was admitted by Boota appellant that there was litigation between is mother and the complainant regarding inheritance of his (Boota's) father. According to Exh. D. C. produced in defence, before the present occurrence a case under section 324/326/148/149 of the Pakistan Penal Code was registered on the plea of the Allah Ditta com plainant that Abid Shah, Rajay Shah and Lai Shah appellants had caused injuries to his son, Saleh Muhammad. It is also evident from Exhs D. C./l, D. E., D. E./1, D. E./2, D. F., D. F./1 and D. F./2 (wrongly exhibited as D. F./3) that in some arms cases registered against Saleh Muhammad deceased Tufail appellant was a witness of the prosecution. Saleh Muhammad was, however, killed before the said cases were decided on merits. Exh. D. C./2 would reveal that Lai Shah appellant was a witness in a case under sections 354, 324 and 452 of the Pakistan Penal Code against Saleh Muhammad deceased which was registered at the instance of the Mst. Marvam Bibi. We are, therefore. inclined to believe that there was bad blood between the parties and as such the appellants, had a motive to take life of Saleh Muhammad deceased.

20. Efforts were made by learned counsel for the appellants to pursuade us to believe that Saleh Muhammad deceased was found of the pleasure of flesh and was, therefore, killed by unknown persons at night when he was in a compromising position with some female. In this con nection they invited our attention to copy of .F. I. R. Exh. D. C./2 in which it was alleged by Mst. Maryam that Saleh Muhammad had tried to out rage her modesty. It was also urged by learned counsel for the. appellants that there was no cut mark on the dhoti of the deceased, Exh. P. 3, Exh. D. C./2 simply indicates that case under sections 354, 324 and 452 of the Pakistan Penal Code was registered against Saleh Muhammad, but he was not convicted in that case As indicated in Exh. D. C./3, he was killed during the pendency of the case. We are, therefore, unable to say that the allegations made by Mst. Maryam were correct. As regards the plea of absence of cut marks on the dhoti we examined it in court and found some cut marks thereon. It is also too well known that dhoti is a cloth ing of loose type and it is possible to inflict some injuries even when it is tied to the waist. Very little force is needed to take it of. Therefore, the possibility of dhoti having fallen down on the ground during the scuffle cannot be ruled out. Looking at all this, dhoti of the deceased is of no help to the appellants.

21. In view of the foregoing discussion, we are convinced that Allah Ditta complainant bad witnessed the occurrence. Admittedly, he had enmity with the appellants and is, therefore, sin interested witness. We are unable to believe that he would substitute the real culprits by others even if the latter happened to be his enemies. 'We would, however, like to guard against any exaggeration on his part and would, therefore, look up for corroboration of his statement with a view to pin pointing the appel lants who had actually taken part in the occurrence. His statement regard ing the involvement of Boota, Ashraf and Tufail appellants in the occur rence is supported by the testimony of Ahmad Shah, who as stated above, is an independent witness. Ahmad Shah had seen them running away from the place of occurrence alongwith their respective weapons as men tioned by Allah Ditta. As regards Rajay Shah and Wilayat Shah appel lants the statement of Allah Dttta in regard to their complicity is supported by the evidence of recovery of toka Exh. P. 5 and hatchet Exh. P.

6. In view of the number of injuries suffered by the deceased the involvement of five persons in the incident is not improbable. According to the state ment of Ahmad Ali also the assailants were more than five in number. We are, therefore, conceived that Wilayat Shah Rajay Shah, Boota, Tufail and Ashraf were responsible for intentional causing the death of Saleh Muhammad. Accordingly, we maintain the convictions , Wilayat Shah, Rajay Shah, Boota, Tufail and Ashraf on charges under section 302, P. P. C. read with section 149 and section 148 of the Pakistan Penal Code. There is no corroboration; of the statement of Allah Ditta regarding the participation of Lai y1 0t in the present occurrence. No recovery was attributed to him. For reasons given above, recovery of kassi Exh. P. 4 at the instance of Abid Shah appellant does not inspire confidence. There is no other corroborative evidence qua him. Their participation in the occurrence, therefore, seems to be doubtful. As a result, we give benefit of doubt to Abid Shah and Lai Shah appellants and acquit them of the said charges. They shall be set at liberty forthwith if not required in any other case.

22. As regards the sentences, learned Additional Sessions Judge did not impose death penalty on the appellants for the following reasons :- "The reason for not awarding the capital punishment to the accused is that none of them has been attributed any particular injury. Besides, the injuries were caused death and none of the injury was independently enough to cause death of the deceased." He had the discretion to award death sentence or the sentence of imprisonment for life on charge under section 302 read with section 149 of the Pakistan Penal Code but he decided to inflict the lesser penalty. In the circumstances of the present case we are also reluctant to interfere with exercise the learned trial Court. Other sentences awarded by him also appeal to be unexceptionable. The sentences awarded by the learned trial Court to Wilayat Shah, Rajay Shah, Boota, Tufail and Ashraf appellants are, therefore, affirmed in toto.

23. The criminal appeal and the criminal revision are disposed of accordingly. M.Y.H. Order accordingly.