HAJI FATEH KHAN Versus THE STATE

1. SAJJAD ALI SHAH, J .‑‑Both these appeals mentioned in the caption arise from impugned judgment dated 24‑9‑1980 passed by Mr. Ghulam Hussain Memon, Ex‑Officio Additional Sessions Judge, Karachi, whereby he has convicted Haji Fateh Khan appellant resulting in Criminal Appeal No.253/80 for offences and sentenced stated as under:‑

(i) convicted under section 304(2), P.P.C. for causing injuries to deceased Gul Muhammad sentenced to R.I. for five years and compensation of Rs.3,000 to the heirs of deceased or in default R.I. for one year and fine of Rs.500 or in default R.I. for three months more;

(ii) convicted under section 307/34, P.P.C. for injuries to Niaz Muhammad and sentenced to R.I. for two years and fine of Rs.300 or in default R.I. for two months and compensation of Rs.1,000 to injured Niaz Muhammad or in default R.I. for three months more;

(iii) convicted under Section 326, P.P.C. for injuries to Hamidullah and sentenced to R.I. for one year and compensation of Rs.800 to the said injured or in default R.I. for three months and fine of Rs.200 or in default R.I. for one month more;

(iv) convicted under section 307, P.P.C. for injuries to Amanullah and sentenced to R.I. for two years and a fine of Rs.200 and compensation of Rs.1000 to the said injured or in default R.I. for three months more; and

(v) convicted under Section 326, P.P.C. for causing injuries to Abdul Baqi and sentenced to R.I. for one year and fine of Rs.200 or in default for one month and compensation of Rs.500 to the said injured or in default R.I. for three months more.

2. In fact trial proceeded against appellant Haji Fateh Khan and four other co‑accused namely (1) Allah Dad, (2) Khuda Dad, (3) Daru Khan sons of Haji Fateh Khan and (4) Abdul Wadood s/o Ghayasuddin and by the same impugned judgment only Haji Fateh Khan was convicted and sentenced as stated above and the remaining co‑acc sed named above were acquitted as the case against them was found to be doubtful. Trial Court also directed that the case against remaining three absconding co‑accused namely Agha Jan, Agha Mohammad and Miran Jan can be kept on dormant file. Against the impugned judgment Haji Fateh Khan has filed appeal against his convictions and sentences while State has filed separately acquittal appeal against Haji Fateh Khan and four other co‑accused named above who were put on trial and were acquitted in the case for offences under sections 302/307/148 and 149, P.P.C. Since in both these appeals impugned judgment is same and the evidence is same requiring common appraisal, we propose to dispose of both these appeals by single judgment.

3. Briefly stated the relevant facts are that the incident took place on 23‑4‑1974 from 10‑30 a.m. to 11‑00 a.m. in the open ground behind Leghari Ice Factory in Block No.21, Federal 'B' Area, Karachi. Gul Mohammad and Niaz Mohammad, brothers inter se and sons of Abdullah lived in a but on the open ground behind Leghari Ice Factory and at about 10‑30 a.m. on the day of incident Niaz Mohammad went out to fetch water from Government tap, which was objected by Haji Fateh Khan, who tried to stop him, upon which quarrel ensued. On the noise, Gul Mohammad also came to the spot. Soon so many persons assembled on both sides. Haji Fateh Khan and Agha Jan were armed with pistols. Remaining accused persons namely, Agha Mohammad, Miran Jan, Abdul Wadood, Khuda Dad, Allah Dad and Daru Khan were armed with iron bars, knives and Dandas. Haji Fateh Khan fired from his pistol and in the result were injured Gul Mohammad and Niaz Mohammad. Gul Mohammad died at the spot. Hameedullah and Amanullah also became injured because of firing. Agha Jan also fired shots. P.Ws. Mahmood, Abdul Baqi, Hayat Khan, Obaidullah and Hameedullah also received injuries at the hands of other co‑accused persons. All the injured persons fell down on the ground. So many persons came to the spot on the noise. Accused persons ran away with their weapons. Somebody brought Suzuki to the spot in which all injured persons were removed to Civil Hospital, Karachi. Police came to the hospital and recorded statements of witnesses. Statement of Hayat Khan was recorded by the police in the hospital and the same was incorporated in the register as F.I.R. under section 154, Cr.P.C.

4. S. H .O. Imtiaz Hussain of Police Station Jauharabad received telephonic message at the Police Station that a quarrel had taken place at Maidan behind Leghari Ice Factory. He rushed there and found dead body of Gul Mohammad lying on cot at the Wardat. He found blood stains at several places and prepared Mashirnama of scene of offence. He also found some Dandas and one "Sarya" ten empty cartridges and one bullet lead lying at the scene of offence which he secured. He secured blood‑stained earth and put it into a sealed parcel. He prepared Inquest Report of the dead body. He came to know that injured persons were removed to hospital as such he came to Civil Hospital. He sent the dead body to the hospital for post‑mortem examination. He recorded statement under section 154, Cr.P.C. of injured Hayat Khan and sent it to the police station for incorporation as F.I.R. He recorded 161. Cr.P.C. statements of other injured witnesses. One of the accused persons namely Abdul Wadood was lying injured in the Civil Hospital and he prepared Mashirnama of arrest. He returned to the scene of offence and arrested accused Haji Fateh Khan. Allah Dad, Khuda Dad and Daru Khan who were residing near Wardat. Haji Fateh Khan while in custody led to the river behind his house and produced a revolver from the bank of the river. This revolver was loaded with six lives bullets and was taken in possession. Haji Fateh Khan did not have the licence for revolver as such case was registered against him for offence under section 13‑A of the Arms Ordinance. S.H.O. also recorded the statement of Haji Fateh Khan under section 154, Cr.P.C. for registration of counter‑case under sections 307/148 and 149, P.P.C. against complainant party. Blood‑stained clothes of some injured witnesses were recovered. Blood stained earth, clothes, revolver and cartridges were sent to the Chemical Examiner and Ballistic Expert respectively. Accused Agha Jan, Agha Mohammad and Miran Jan absconded and could not be arrested during the investigation. After investigation was complete, challan was presented in the Court.

5. In the trial Court, prosecution examined sixteen witnesses in support of its case. Prosecution has examined nine eye‑witnesses, out of whom seven are injured eye‑witnesses. Injured eye‑witnesses are P.W.1 complainant Hayat Khan (paper book page No. 31), P.W. 5 Mahmood (page 46), P.W.6 Niaz Mohammad (page 49), P.W. 7 Amanullah (page 52), P.W. 8 Hameedullah (page 55), P.W.9 Abdul Baqi (page 57) and P.W. 10 Obaidullah (page 59). Two other eye‑witnesses who were not injured are P.W.3 Akhtar Mohammad (page 41) and P.W. 4 Habibullah (page 43).

6. P.W.2 Mohammad Siddiq, Constable is process server who returned the warrants of arrest of accused persons Agha Jan, Agha Mohammad and Miran Jan as he could not serve them in spite of his persistent efforts and on his evidence those three accused persons were declared as absconders and proceedings were ordered to be taken against them under section 512, Cr.P.C. P.W. 11 Tariq s/o Mohammad Khan is Mashir of scene of offence. In his presence police inspected scene of offence and secured empty cartridges, blood‑stained earth, some Dandas and other articles. Mashirnama of dead body and Inquest Reports were prepared in his presence. Haji Fateh Khan produced revolver in his presence. He attested and produced Mashirnamas Exs.18, 19 and 20.

7. P.W. 12 is Dr. Abdul Hadi Khan (page 74) who performed post‑mortem examination ‑on the dead body of Gul Mohammad on 24‑4‑1974 at Civil Hospital, Karachi. According to the Doctor deceased has sustained one punctured wound on the left side of the chest cavity deep and one incised wound on the back of chest and the third injury was abrasion on left elbow. Cause of death was haemorrhage and shock as a result of injuries produced by projectile fired from firearm and also incised wound, caused by short cutting weapon. He produced post‑mortem examination report as Ex.22.

8. P.W. 13 is Dr. Syed Iqbal Ahmad (page 83). This Doctor examined at Civil Hospital, Karachi injured witnesses Hayat and Obaidullah on 23‑4‑1974. Injured Hayat had injury on the head and complained of pain in the back of chest. X‑Ray showed no fracture of skull or ribs hence both injuries were declared to be simple. Medical certificates as Ex.24 and 25 are on the record. Injured Obaidullah s/o Rahim Khan had redness in left eye, abrasion on right side cheek and injury on the head. X‑Ray showed no fracture of skull. All injuries were declared to be simple. Medical certificates Exs.26 and 27 are on the record.

9. Dr. Syed Iqbal Ahmad was examined once again as P.W. 14 (page 91) and he identified handwriting and signature of his colleague Dr. Ghulam Rasool who had examined some other injured witnesses in this case. He produced medical reports as Ex.29 and 30 in respect of injured Hameedullah, Exs. 31 and 32 in respect of injured Amanullah, Exs. 33 and 34 in respect of injured Niaz Mohammad, Ex. 35 in respect of injured Abdul Baqi, Ex. 36 in respect of injured Mahmood and Exs. 37 and 38 in respect of injured Obaidullah. He identified signatures and handwriting in Exs. 29 to 38 to be of Dr. Ghulam Rasool.

10. Trial Court has examined Wajid Hussain, Head Constable as Court witness (not numbered). He was examined as process server and he stated that he attempted to serve P.W. Bhai Khan but learnt that the witness had gone to his village and was not traceable.

11. P.W. 15 Abdul Jabbar, is Head Constable who on 23‑4‑1974 incorporated in the register as F.I.R. statement under section 154, Cr.P.C. of complainant Hayat Khan which was brought to him at Police Station by Constable Siraj. He recorded the same as F.I.R. which he produced as Ex. 45.

12. Lastly prosecution examined as P.W. 16, S.H.O. Imtiaz Hussain, Investigating Officer, whose evidence is mentioned above. He produced report from Ballistic Expert Ex. 49 and report of Chemical Examiner Ex.50.

13. In the statement recorded under section 342, Cr.P.C., accused Haji Fateh Khan denied allegations levelled by the prosecution and stated that prosecution witnesses had deposed against him due to enmity as he had filed a counter case against them under Sections 307 and 149 P.P.C. He further claimed that he and other accused persons were attacked by Hayat Khan and others who were not residents of his Mohallah. In the attack by them he and his other companions received injuries. Acquitted co‑accused Khuda Dad made similar statement and adopted the statement of his father Haji Fateh Khan. He further stated that one Sarwan used to reside adjacent to the house of his brother‑in‑law Agha Jan and their children used to fight among themselves. This created ill‑will between them and Mohallah people decided that one of them should reside somewhere else. In the compromise Sarwan accepted Rs.1,000 from Agha Jan and left the area but subsequently came back again. Relations between them again became strained and for that reason incident took place. Remaining acquitted co‑accused Allahdad, Daru Khan and Abdul Wadood also made similar statements as those of Haji Fateh Khan and Khudadad.

14. In the trial Court, accused persons examined four defence witnesses as well. D.W. 1 Abdul Ghani deposed about differences between Agha Jan and Sarwan and Faisla of Jirgah, according to which Sarwan accepted Rs.1,000 and went awav from the area but after one month P.W. Niaz Mohammad brought him back. On that account there was dispute between Agha Jan and Niaz Mohammad which subsequently developed into fight between the two parties. D.W.2 Ahmad Bux deposed that on the day of incident Hayat Mohammad brought two Suzukis with persons in them armed with Dandas and iron bars. They called Haji Fateh Khan from his house and there was dispute between them which ended in fight. This witness ran away at that point. D. W. 3 Abdul Khalid and D. W. 4 Fazal Mohammad have made statements similar to the statement of Ahmad Bux.

15. We have heard at length Mr. Syed Naqi Mirza, Advocate for appellant Haji Fateh Khan and Mr. Murtaza Hussain for A.‑G. for State in both the appeals mentioned above. It would be pertinent to point out at this stage that while we were hearing the appeals mentioned above, along side office used to fix for hearing Criminal Revision No.71 of 1984 which is filed‑ by Haji Fateh Khan against the State calling in question acquittal of other respondents in the counter case filed by him for offences under sections 307, 148 and 149, P.P.C. arising from the same incident. Counter‑ case was not tried by the same trial Court. Mr. Ghulam Hussain Memon, Ex‑Officio Addl. Sessions Judge, Karachi tried the main case from which has arisen present regular appeal and acquittal appeal. It was stated at the bar that during the pendency of the cases Mr. Ghulam Hussain Memon was transferred from Karachi and then subsequently notification was issued in respect of him as Ex‑officio Addl. Sessions Judge for disposal of part heard cases and list of such cases was prepared‑in which counter case filed by Haji Fateh Khan was not included perhaps .due to inadvertence. In such circumstances, the counter case and case under the Arms Ordinances against Haji Fateh Khan arising from the same incident as in the main case were heard and disposed of by Mr. Mohammad Yousuf Memon, VII Additional Sessions Judge, Karachi. When this fact caught, notice that main case and counter case were not tried by the same Court, notices were issued to the counsel appearing in these appeals and Criminal Revision in which Mr. Syed Naqi Mirza is appearing for applicant and Mr. Mohammad Jamil for respondents 2 to 8 and Mr. Murtaza Hussain for A.‑G. for State and they were heard on this point. Mr. A.Q. Halepota was requested to assist the Court as amicus‑curaie for ascertainment of correct legal position. Mr. Murtaza has submitted that it is not an absolute rule that the main case and the counter case arising from the same incident should be tried by the same Court and the rule of propriety is that both such cases should be tried by the same Court in order to avoid conflicting judgments. In support of the proposition reliance is placed by him on the case of Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522). Agreeing with the proposition Mr. Naqi Mirza has submitted that it is desirable that the criminal case and the counter case should be both tried by the same Court to avoid risk of conflicting findings. He has cited the cases of Shahed Ali and others v. The State (P L D 1962 Dacca 576) and Thota Ramakrishnayya and others v. State (A I R 1954 Mad. 442). In the latter case the point in dispute is discussed in great detail and reliance has been placed on a very large number of rulings from Indian jurisdiction. Our attention has also been drawn by the learned counsel to section 234, Cr.P.C which pertains to joinder of charges and section 537, Cr.P.C. under which defects which are in the nature of irregularities have been made curable. Mr. A.Q. Halepota has also submitted that it would be much better if the main case and the counter case are tried by the same Court but if due to some reasons this has not been possible then this would not result in an illegality and such resultant irregularity is curable under Section 537 Cr.P.C. He has referred to the decision of the Supreme Court in the case of Abdul Rehman Bajwa v. Sultan and others already cited by Mr. Murtaza Hussain as stated above and relevant portion in paragraph 20 at page 902 of the report is reproduced as under:‑--

16. "It may be mentioned here that the learned Judge in Chamber had relied on Muhammad Sadiq v. The State and another (PLD 1971 SC 713) to observe that since the Criminal Procedure Code is silent with regard to the procedure to be adopted in the trial of cross cases it was, therefore, not necessary to have required the two cross cases to be tried together by the same Court. In the same authority, however, it has been observed that the practice generally adopted by Courts is to try counter‑cases side by side by the same Court, till their conclusion and to pronounce judgment in each case simultaneously. No doubt, the rule is not absolute and there could be cases in which the circumstances do not warrant that the said procedure must be followed, but the rule of propriety which is the basis of the general practice mentioned above is founded on sound principle because if two cross‑cases about the same incident between the same parties are tried by different Courts there can be a serious possibility of a conflict in judgments resulting in two different Courts giving two diametrically opposite findings about the same incident" .

17. Division Bench of this Court in the case of Pahlwan and others v. The State (P L D 1975 Kar. 84) has held that no doubt the purpose of trying counter‑cases together is to ensure that inconsistent findings are not given but each case must be decided on basis of legal evidence given in that case. If such evidence had been brought in the case as to justify the conclusion that the case of the appellants was false then that would be a different matter. Even if, however, that conclusion could be reached, it did not automatically follow that the prosecution had proved their case.

18. The upshot of the discussion made above is that normally it would be rule of prudence that both main case and counter‑case be tried by the same Court which would ensure avoidance of conflicting, findings but if for some reasons it has not been done then it would amount to irregularity which would stand cured under section 537, Cr.P.C. but if the circumstances and the facts of the case are such that injustice had been caused or great prejudice is caused then it would amount to an illegality warranting interference and remand of the case. In the instant case when the main case was being tried by one Judge and the counter‑case was being tried by another Judge, no objection was raised and both cases were allowed to be tried separately, hence it is too late in the day to raise such objection.

19. Counter case of Haji Fateh Khan which was tried by another Judge also ended in acquittal in respect of which Haji Fateh Khan had separately filed a revisional application mentioned above which would be disposed of separately on the basis of evaluation of evidence recorded therein.

20. Now, we return to appraisal of evidence in the two appeals which are under consideration. Both appeals arise from the same impugned judgment by which the learned ex‑officio Additional Sessions Judge has convicted appellant Haji Fateh Khan and has acquitted his other co‑accused who were put on the trial. Evidence is same and now we take up for consideration ocular evidence produced in that case. Prosecution examined nine eye‑witnesses from whom seven eye‑witnesses were injured in the assault at the scene of offence. Injuries inflicted on and sustained by eye‑witnesses at the time of Wardat prove beyond dispute the fact that they were present at the scene of offence at the relevant time. Injuries are medically proved and even the medical evidence supports the fact that the injuries were inflicted at the time and with the weapons as claimed by the eye‑witnesses. In the injured eye‑witnesses most important is P.W. 6 Niaz Mohammad who is resident of the area where assault took place. He came out from his house to fetch water from the tap when he saw Haji Fateh Khan and other co‑accused. Haji Fateh Khan restrained P.W. Niaz Mohammad from taking water from the tap upon which ensued dispute between them and Haji Fateh Khan also abused. On the noise, deceased Gul Mohammad and PWs. Amanullah, Hameedullah. Obaidullah, Abdul Baqi and Muhmood also came to the spot. Haji Fateh Khan and Agha Jan had pistols and remaining accused persons had iron bars, knives and Dandas. Haji Fateh Khan fired and in the result Niaz Mohammad and Gul Mohammad became injured. Gul Mohammad died at the spot. Haji Fateh Khan fired at Hameedullah and Amanullah. Other co‑accused attacked Mahmood, Abdul Baqi and Obaidullah. P.W. Hayat Khan also reached the spot and intervened and received injuries at the hands of accused Allahdad. Accused persons then ran away. Injured person were removed to Civil Hospital. In the cross-examination of P.W. Niaz Mohammad, there is nothing adverse to show that he was not present at the spot and did not receive injuries. On the other hand, questions were suggested to him that persons from the other side were also injured. In the cross‑examination factum of the incident as such is not denied or disputed nor presence of Niaz Mohammad at the spot or his receiving injuries is denied. Defence plea in the cross‑examination is that the other side was also injured and a counter‑case under section 307, P.P.C. has been filed in which this injured witness Niaz Mohammad is named as accused. This witness Niaz Mohammad has also narrated the motive which is to the effect that dispute arose because objection was raised by Haji Fateh Khan against taking of water by this witness from the government tap. Likewise presence of other injured eye‑witnesses namely P.W. 1 complainant Hayat Khan, P.W.7 Amanullah, P.W. 8 Hameedullah, P.W. 10 Obaidullah, P.W.9 Abdul Baqi and P.W. 5 Mahmood is not denied for the reason that they all have been named as accused persons in the counter‑case. P.W.7 Amanullah deposed that Haji Fateh Khan, fired from his pistol at Gul Mohammad and also fired at Niaz Mohammad. Hameedullah also received injuries at the hands of Haji Fateh Khan. This witness was wounded by Agha Jan. Abdul Baqi received injuries at the hands of Haji Fateh Khan. Hayat Khan was given injuries by Allahabad. In the cross‑examination, this witness stated that he was empty handed and did not give injuries to any person and he did not see any injured from the accused side. He admitted that he was accused in the counter‑case. P.W. 4 injured eye‑witness Habibullah has given the same version as given by other eye‑witnesses. In the cross‑examination, he stated that he resided at half mile from Wardat, and came to the spot on hearing commotion. He admitted that accused; Abdul Wadood only received injuries and he could not say as to who gave injuries to Abdul Wadood. P.W.5 Mahmood is injured eye‑witness and his evidence is same as of other eye‑witnesses. He resided near the place of Wardat. At the relevant time he was one furlong away with his "Thela" near Habib Bank. He did not see any person being injured from the accused party. The evidence of the remaining injured eye‑witnesses is same and their credibility stands unshaken in their cross‑examination.

21. Apart from seven injured eye‑witnesses, there are other two eye‑witnesses who are not injured. PW.3 Akhtiar Muhammad had deposed that at the time of incident he was taking his "Thela" from his house when he heard noise of people behind Ice Factory. He went there and saw the incident. By profession he is Ice seller as such he lived near Ice Factory near the spot. He has supported ocular version as is given by other eye‑witnesses. He has denied his relationship with Niaz Mohammad and deceased Gut Mohammad. Wardat is situated at 601 paces from his house. He has admitted that Abdul Wadood from the side of accused persons also received injuries. He was examined by, the Police at the Wardat and he did not go to the Hospital because he was not injured. There is nothing adverse in the cross‑examination of this witness to show that he has deposed falsely. The other eye‑witness who is not injured is P.W. 4 Habibullah. At the relevant time he was standing near the Ice Factory and putting ice on his 'Thella'. His ocular version of the incident is same as given by the other eye‑witnesses. He has admitted that he resides at a distance of half a mile near the house of Hayat Khan. He was taking ice from the Factory that is how at the time of incident he was present at the Ice Factory. He has admitted that P.W. Abdullah is his brother who was also present at the time of incident. Complainant Hayat Khan reached the spot late when the fight was going on. He has denied the suggestion in the cross‑examination that Hayat Khan brought persons in Suzuki who attacked Haji Fateh Khan and others. He has admitted that from the side of accused persons Abdul Wadood received injuries.

22. Appraisal of the ocular testimony clearly shows that eye‑witnesses are natural and they have not given false statements. From nine eye‑witnesses, seven are injured and their presence at the spot is not disputed for the reason that they have been named as accused persons in the counter case for offence under sections 307, 148 and 149, P.P.C. The other two eye‑witnesses who were not injured at the time of incident namely P.Ws. Akhtar Mohammad and Habibullah are also natural witnesses and their presence at the spot at the relevant time is amply proved. Moreover, there is no enmity between the parties and all eye‑witnesses have no reasons whatsoever to implicate falsely the accused persons or to depose against them. Since in the defence plea, the factum of incident is admitted to the extent that fight took place but different defence version is given in which it is claimed that injured eye‑witnesses including deceased attacked Haji Fateh Khan and others hence in the main case in presence of the eye‑witnesses is not denied. We are satisfied that these eye‑witnesses were present at the spot because seven of them were injured in the incident and the other two who were not injured have deposed in such a manner that we cannot doubt their evidence and veracity.

23. Learned counsel for appellant Haji Fateh Khan has criticized corroborative evidence produced by the prosecution in this case. According to him report of the Ballistic Expert is negative. This report is Ex.49 on the record. Finding in the report is that no opinion could be expressed about the time of the last fire of 38 bore Revolver No.2280 due to lack of sufficient identifiable data. It was also stated before us that Ex. 20 on the record is Mashirnama of recovery of Revolver (P‑71) in which different description is given as Revolver 38 bore, Maker Webley black handle on which number is marked IV 381451200. In view of this discrepancy Mr. Murtaza Hussain for A.‑G., Sind for State submitted that prosecution does not rely upon report of Ballistic Expert and further stated that even in the absence of this piece of evidence, prosecution case stands in good stead and is proved even otherwise. So far report of the Chemical Examiner Ex.50 on the record is concerned, it is stated to be relied upon to the extent that earth was found to be stained with blood and so far blood‑stained clothes sent to the Chemical Examiner are concerned, there appears to be a mix up with the clothes in the main case as well as in the counter‑case which has created some confusion.

24. Trial Court has rightly analysed the evidence and held that case against Haji Fateh Khan is proved and the case against the remaining accused persons was not proved, as such, they were given benefit on, doubt and were acquitted. This was done obviously for the reason that so far Haji Fateh Khan and absconding accused Agha Jan were concerned, it was claimed by the prosecution that both were armed with pistols and both fired and particularly in consequence of firing‑ by Haji Fateh Khan deceased Gul Mohammad, complainant Hayat Khan, P.Ws. Niaz Mohammad and Hameedullah received injuries. Agha Jan, Agha Mohammad and Miran Jan accused had absconded and were not present at the time of trial. Allegation against Haji Fateh Khan is specific in nature and he was armed with pistol and fired which fact is categorically asserted by all the eye‑witnesses. Allegation against the remaining accused on trial was that they were armed with Lathis and Dandas and Seryas and further allegation was general in nature that they attacked with their weapons and it was not pin‑pointed satisfactorily as to who caused injuries to whom and with what weapon. In such circumstances, benefit of doubt was given to them by the trial Court.

25. Before the trial Court in the statement under section 342 Cr.P.C. appellant Haji Fateh Khan denied prosecution allegations and stated that he is innocent and had been involved due to counter‑case. He has further stated that eye‑witnesses who have deposed against them are accused persons in counter‑case filed under sections 307 and 148 PPC. It is further stated by him that Hayat Khan and other persons were not residents of the Mohallah, they had come there and attacked him and his companions and in that fight they received injuries. Although Haji Fateh Khan in his statement under section 342, Cr.P.C. has not spoken specifically about enmity with eye‑witnesses in the main case but he has adopted statements made by his sons under section 342, Cr.P.C. His son Khudadad stated in his statement before the trial Court that one Sarwan used to reside adjacent to the house of his brother‑in‑law Agha Jan and children of two neighbours used to quarrel among themselves, which created ill‑will between them. Mohallah people decided that one of the two either Sarwan or Agha Jan should reside separately elsewhere. There was compromise in which Agha Jan paid Rs.1,000 to Sarwan who left the area. After some time Sarwan came back again to the area and P.W. Niaz Mohammad took the side of Sarwan and turned against Agha Jan. In the defence, four witnesses have been examined, out of whom D.W. 1, Abdul Ghani has categorically spoken about this compromise. In the cross‑examination, this witness admitted that he did not have Ration Card of Water Pump Area but had Ration Card of Chakiwara and had a shop in Chakiwara. When PW Niaz Mohammad was in the box available for cross‑examination, no such suggestion was made to him that there was dispute between Sarwan and Agha Jan and there was "Faisla" of Jirgha after which Rs.1,000 was paid by Agha Jan to Sarwan who left the area and came back and this witness supported him and insisted that he could stay there to the annoyance of Agha Jan. This clearly shows that this plea is not truthful and is afterthought. Other defence witnesses D.W. 2 Ahmad Bux, D.W. 3 Abdul Khaliq and D.W. 4 Fazal Mohammad stated that Hayat Khan brought two Suzukis with men. They called Haji Fateh Khan from his house, who brought Quran Shareef and pleaded with its name not to fight. Agha Jan was also with Haji Fateh Khan and then the fight started. In the cross‑examination, this witness has admitted that he had no Ration Card of that area. When complainant Hayat was in the box in the trial Court story of P.W. Ahmad Bux was not put to him in the cross‑examination and in fact no suggestion of any such kind was put to him which shows that the story of the defence witnesses is certainly afterthought and was cooked up later. D.W.3 Abdul Khaliq and D.W.4 Fazal Mohammad have supported the version of D.W. 2 Ahmad Bux.

26. It is claimed by appellant Haji Fateh Khan that he and his other companions were attacked by eye‑witnesses and deceased in the main case and he filed a counter‑case for offences under sections 307/148 and 149, P.P.C. in which all the eye‑witnesses in the main case have been shown as accused persons. In the main case no attempt was made during the trial proceedings to bring F.I.R. 'of the counter‑case on the record and also no attempt was made that both cases be tried by the same Court. Counter‑case was not tried by the same learned Judge who tried the main case. No steps were taken by the appellant or his counsel in the trial Court to bring this fact to the notice of the learned trial Judge in the main case that the counter‑case should also be tried by the same Court. From the conduct of the appellant in the trial Court, an inference can be drawn that no steps were taken for trial of both the cases by the same Court for the reason that appellant did not have faith in his own version reflected in the counter‑case, in which plea was taken by him that he and his companions were attacked by eye‑witnesses and deceased in the main case. Since the counter‑case is not before us and was not tried by the same Judge and F.I.R. of counter‑case has not been produced in this case hence we are unable to find out as to when F.I.R. in the counter‑case was lodged, whether before the F.I.R. in the main case or afterwards. In this context P.W. 16 SHO Imtiaz Hussain deposed before the trial Court that after the incident in the main case he came to the spot and saw dead body of Gul Mohammad and since injured witnesses were removed to hospital, he went there and recorded statement of injured Hayat Khan under section 154, Cr.P.C. From hospital he again came back to the Wardat and arrested Haji Fateh Khan, Allahdad, Khudadad and Daru Khan. Haji Fateh Khan while in custody led to the recovery of revolver which was secured. He also recorded statement under section 154, Cr.P.C. of Haji Fateh Khan as complainant in the counter‑case under sections 307, 148 and 149, P.P.C. and sent it to the Police Station for registration of F. I. R. This clearly shows that F. I. R. in counter‑case was registered belatedly and after the registration of F.I.R. in the main case and that also after Haji Fateh Khan was taken in custody as accused in the main case. This shows that Haji Fateh Khan did not go to the Police Station to have F.I.R. registered giving his own version of incident.

27. After analysis of evidence produced by the prosecution in the main case, the learned trial Judge has come to the conclusion that the case fell under section 304(2), P.P.C. He has convicted appellant Haji Fateh Khan for the offence mentioned above and for injuries causing to other injured eye‑witnesses. Maximum sentence awarded to him is five years and compensation to the heirs of the deceased and also fine. Sentences on other charges are for period shorter than the period mentioned on the main count. We convert conviction under section 307/34, P.P.C. in respect of injuries to Niaz Mohammad and Amanullah to section 326/34, P.P.C. and maintain the same sentences. Although there is no mention in the judgment of the learned trial Judge that the sentences are to run concurrently but we presume it to be so and direct so. The other co‑accused on trial have been acquitted as they have been given benefit of doubt.

28. For the facts and reasons stated above, we uphold the impugned judgment with modification in the conviction and sentence as stated above and dismiss the appeal. Bail of appellant Haji Fateh Khan is cancelled and steps be taken to have him committed to judicial custody to serve out his sentence. Before parting with this judgment, we would like to bring on record that we appreciate very much assistance rendered by learned counsel who had appeared in this matter including Mr. A.Q. Halepota, Advocate who was requested to assist the Court as amicus‑curiae.

29. So far acquittal appeal is concerned, Mr. Murtaza Hussain at the very outset stated that there cannot be acquittal appeal against Haji Fateh Khan against his acquittal under section 302, P. P. C. because he stands convicted for lesser offence of section 304(2), P.P.C.

30. Memorandum of Criminal Acquittal Appeal No.58/1981 filed under section 417, Cr.P.C. clearly shows Haji Fateh Khan as respondent No.1 on the top. For the facts and reasons stated above, no inter ference is called for and the acquittal appeal is also dismissed.

31. M.Y.H./F‑45/K Appeal dismissed.