' HAMID ALI MIRZA, J.---This criminal appeal with leave granting order, dated 24-2-2004 of this Court is directed against the judgment, dated 29-4-2002 in Criminal Appeal No,308-T of 1999 passed by learned Division Bench of the Lahore High Court, Lahore filed against judgment of conviction, dated 20-12-1999 of the learned Special Judge, Suppression of Terrorist Activities, Islamabad, whereby the said appeal was dismissed so also Revision Petition No,14 of 2002, _maintaining the judgment of conviction of the trial Court, whereby the appellants were convicted and sentenced for triple murder in the following terms:-- "All the seven accused convicted under section 148, P.P.C. And sentenced to two years' R.I. Each.
' Convicted under section 460/149, P.P.0 and sentenced to imprisonment for life.
' Convicted under section 302(b)/149, P.P.C. Haroon Rasheed, Muhammad Raees and Muhammad Hanif sentenced to death on three counts. Muhammad Nawees, Muhammad Waqar, Muhammad Wariyam and Muhammad Sarwar, however, sentenced to imprisonment for life on three counts.
' All the seven accused further directed to pay Rs, Seven lac in aggregate to the legal heirs of three deceased as compensation under section 544-A, Cr.P.C. Or in default of payment, to suffer six months' S.I. On three counts.
' Sentences were directed to run concurrently and they were given benefit of section 382-B, Cr.P.C.
As well."
2. Leave was granted for reappraisal of the evidence whether the learned High Court has failed to appraise the evidence according to principles laid down by this Court for safe administration of justice in criminal cases to consider the plea raised that testimony of P. W.11 Niaz Akhtar and P.W.12 Tahir Hussain being not confidence inspiring and unimpeachable in nature cannot be basis for conviction and that points raised before the learned Division Bench of the High Court were not attended to in the judgment when the above said P. Ws. Were not present at the place of occurrence at the relevant time and the motive being remote seventeen years prior to the incident and further that none from the inmates of the house was produced as witness in the case.
3. Brief facts of the case are that on 9-12-1997 'at 23-05 hours Complainant Niaz Akhtar, .P.W.11, lodged report F.I.R. No,175 at Police Station Bhara Kahu, Islamabad stating therein that he was a student of 9th class and residing in Dhok Chappar Dakhali Chrah. On the said date after taking evening meal he, his maternal grandfather Muhammad Sharif, his father Hassan Akhtar, his mother Mazloom Bibi, paternal uncle Muhammad Saeed, maternal uncle Muhammad Faris and material cousin Tahir Hussain went to the house of Aurangzeb, their co-villager, to condole the death of his father-in-law for offering "Faateha". Aurangzeb was not present in his house, and had gone to offer Isha prayer in the mosque. All the aforesaid visitors went inside his house and sat on cots in a room and were waiting for Aurangzeb's return. There was sufficient tube and bulb light in the house and outside in the courtyard. In the meantime at about 20-00 hours suddenly Waqar accused along with Muhammad Sarwar, both armed with 30 bore pistols, Muhammad Hanif and Muhammad Wariyam both armed with .7 mm rifles, entered through the eastern door of the room while Haroon Rasheed and Raees accused, both armed with Kalashnikov rifles and Muhammad Yunus armed with 44 bore rifle, entered the same room from its western door. At the exhortation of Haroon Rashid to kill Hassan Akhtar and Muhammad Saeed to teach them a lesson for the murder of Azmat Bibi, wife of Muhammad Sarwar accused, the other accused separated Muhammad Sharif, Mst. Mazloom Bibi, Tahir Hussain and Muhammad Faris and made them (the said victims) to stand in the southern. Corner of the room. In the presence of witnesses, appellant/ accused Haroon Rasheed fired a burst with Kalashinkov at Hassan Akhtar who was hit on the right side of his neck and right hand. Muhammad Raees, accused, fired a burst at Muhammad Saeed, hitting him on the back of his shoulder. Muhammad Faris stepped forward to rescue the two injured persons, on which Muhammad Hanif aimed his .7 mm rifle straight at Muhammad Faris and fired at him hitting him on the right cheek. The remaining accused also started firing and when all the accused were satisfied that the father, paternal uncle and maternal uncle of the first informant had expired, they ran away to their houses while firing. The incident was allegedly committed at the instance of Raja Jamroze Khan, who had earlier not allowed the complainant party to resolve their dispute regarding some land. After usual investigation of the case the above said accused were challaned before the competent Court wherein they were read over charge who pleaded not guilty of the charged offences and prayed to be tried. The prosecution examined as many as 19 P.Ws. And one C.W. After closing of prosecution evidence, the appellants/accused were examined under section 342, Cr.P.C. Who denied the commission of alleged offence and further stated that the case has been concocted and they have been falsely implicated due to local election rivalry with Hassan Akhtar deceased, and the ocular evidence has been procured by the prosecution after persuading the witnesses for long. They denied the recovery of the empties and other fire-arms from them and also denied that they had gone with Jamroze Khan in his Pajero Jeep and they also denied to have committed the alleged offence on account of murder of Mst. Azmat Bibi wife of Muhammad Sarwar which took place 16/17 years prior to the instant incident. The appellants/ accused did not examine any witnesses in defence. The trial Court Judge after recording the evidence and hearing the learned counsel for the parties convicted and sentenced the appellants as said above, while acquitted Jamroze Khan who was charged with abatement of the said offence. The appellants/accused preferred appeal No,.308-T/99 before the Lahore High Court, Lahore, which was heard by learned Division Bench of the High Court when the said Division Bench dismissed the said criminal appeal and criminal revision maintaining the conviction and sentence.
4. We have heard learned counsel for the parties and perused the record.
5. Contentions of the learned counsel for the appellants are that the motive with regard to murder of Azmat Bibi which had taken place about sixteen years prior to the incident was too remote to be believed for the commission of instant offence as same being farfetched which also could not be proved on record. He further submitted that testimony of alleged two eye-witnesses, namely, Niaz Akhtar, P.W.11 and Tahir Hussain, P.W.12, is not confidence inspiring as it would appear that they did not suffer any injury spite of alleged indiscriminate firing of such deadly weapons as allegedly used by the appellants/accused. It was further urged that prosecution has not examined Investigating Officer who conducted the investigation of the case, therefore, it was serious blow to the case of the prosecution which also caused prejudice to the appellants/accused. He further submitted that no inmate of the house of Aurangzeb was examined to support the prosecution case, consequently the best evidence was withheld and the ocular version was of interested and hostile witnesses which could not be relied upon. He also submitted that crime empties were not wedded with the fire-arms and fake recovery has been planted upon the appellants/accused as no independent witness of recovery came forward to depose against the appellants/accused and further that the ocular testimony was in conflict with the medical evidence considering that stomach of Muhammad Saeed, deceased, was found empty and further considering the site-plan and the size of the room, the presence of the two ocular witnesses who escaped unhurt was not possible in view of the indiscriminate firing allegedly on the part of the appellants/accused. Learned counsel further submitted that in view of the weak motive and ocular testimony of interested and hostile witnesses in absence of independent corroboration capital sentence cannot be sustained.
6. Learned counsel for the respondent/complainant submitted that learned Division Bench and the trial Court have rightly appraised the evidence on record and arrived at right conclusion in the appreciation of evidence in accordance with law which required no interference considering that ocular version of P.Ws. Niaz Akhtar and Tahir Hussain was confidence inspiring and unimpeachable and fully corroborated by independent, circumstantial, confirming medical evidence and recovery of the firearms and empties which were found at the pointation of the accused, so also the said weapons of crime and also the motive which had taken place 3/4 months prior to the instant occurrence as per record and further that even if it is assumed that motive was not proved or was weak it cannot be said that the case of prosecution was not proved keeping in view the confidence inspiring ocular testimony and unimpeachable evidence corroborated by other circumstantial and confirmatory evidence.
7. The prosecution case is based on the following pieces of evidence:---
(I) Ocular testimony of P,W.11 Niaz Akhtar and P.W.12 Tahir Hussain;
(II) Medical evidence of P.W.5 Dr. Muhammad Arshad and postmortem report;
(III) Recovery evidence of empties and recovery of fire-arms; and
(IV) Motive.
(V) Absconsion of appellant/accused Muhammad Raees.
8. F.I.R. Exh.P.Q/1 was registered at Police Station Bhara Kahu at 23-05 hours on 9-12-1997 whereas the time of incident is stated to be 20-00 hours when the distance between the place of the incident and the Police Station is shown to be twenty kilometers whereas Exh.P.Q. F.I.R. Was written at the place of incident by S.-I. Azhar Hussain at 22-20 hours at Police Station Bhara Kahu and thereby it could be conveniently said that after recording the complaint at the place of incident, F.I.R. Was promptly lodged at the police station as such there could not be said to have taken place in-between, any deliberation and consultation so as to falsely implicate the appellants/accused in the commission of offence. Reference may be made to Said Shah v. The State NLR 1988 Criminal 381(b). On reading the F.I.R. We find that the complainant P.W.11 Niaz Akhtar has specifically stated about the weapon with which each of the appellant was armed and the side from which the said appellant/accused entered into the room and as to who fired upon whom at the specific place on the person of deceased causing injuries to each of the deceased. P.W.11 in his testimony before the Court has deposed:- "We all sat on cots in the house of Aurangzeb and waited for return of Aurangzeb. The tube light and the electric bulbs were lit. When we were waiting for the arrival of Aurangzeb it was about 7-45 p.m. And in the meanwhile Muhammad Hanif, Muhammad Wagar, Wariyam and Muhammad Sarwar accused present in Court came there from the eastern side. Muhammad Wagar accused was armed with .30 bore pistol, Muhammad Hanif was armed with .7 mm rifle, Muhammad Wariyam was armed with .7 mm rifle, Muhammad Sarwar accused was armed with .30 bore pistol.
Haroon Rasheed accused armed with kalashnikov, Raees accused armed with kalashnikov, Muhammad Nawees accused armed with .44 bore came from the western side and trespassed into the room where we were sitting in the house of Aurangzeb. Haroon Rasheed accused raised the Lalkara that they had come to teach lesson to Hassan Akhtar and Muhammad Saeed for committing the murder of Azmat Bibi wife of Muhammad Sarwar accused. The accused,made me, my maternal-grandfather Muhammad Sharif, my mother Mst. Mazloom Bibi and my cousin Tahir on one side in the room. Haroon Rasheed accused fired a burst of kalashnikov which hit my father Hassan Akhtar on the right hand and on the neck, then Muhammad Raees accused fired the burst of kalashnikov which hit my uncle Muhammad Saeed on the left shoulder, my maternal-uncle Muhammad Faris tried to rescue my father and my uncle and Muhammad Hanif, fired with .7 mm rifle which hit Muhammad Faris on his right, cheek. Muhammad Nawees, Waqar, Wariyam and Muhammad Sarwar indulged in indiscriminate firing which hit my father, my uncle Saeed and my maternal uncle Faris. When the accused were satisfied that all the three had died then all the accused fled away from the spot by firing. Besides me, my maternal-grandfather Muhammad Sharif, my mother Mst. Mazloom Bibi and my cousin Tahir saw the occurrence.
' The said witness was cross-examined at length by the defence which consists of fifteen full pages but on perusal of the said cross-examination it appeared that the defence has failed to shake the credibility and veracity of said witness. The testimony of P.W.11 Niaz Akhtar is consistent with the contents of the F.I.R. Lodged promptly.
9. P.W.12 Tahir Hussain in his testimony has deposed as under:-- 'We all sat on cots and chairs in a room of the house of Aurangzeb and waited for his return. Inside the room and outside the room the tube lights and the electric bulbs were lit. It was 8 p.m. And from the eastern door of the room Wagar armed with .30 bore, Hanif accused armed with .7 mm rifle and Muhammad Sarwar accused armed with .30 bore and Wariyam accused armed with .7 mm rifle entered the room. From the Western door of the room of occurrence Haroon Rasheed armed with kalashnikov, Raees accused armed with kalashnikov and Muhammad Nawees armed with .44 bore entered the room. Haroon Rasheed accused after entering the room raised the Lalkara that they had come to teach lesson to Hassan Akhtar and Saeed for committing the murder of Mst, Azmat wife of Muhammad Sarwar accused. On the .Pointation of the weapons the accused persons made me, my aunt Mst. Mazloom and my cousin Niaz Akhtar, Muhammad Faris and Muhammad Sharif, in one corner of the room. Haroon Rasheed accused gave the first burst of kalashnikov which hit Hassan Akhtar on his right hand and his neck. Then Raees accused fired with Kalashnikov which hit Muhammad Saeed on the left shoulder on its back. Muhammad Faris came forward to save. Saeed and Hassan Akhtar and Hanif accused fired with .7 mm rifle which hit Faris on his left cheek. When the three injured persons were in the process of fall then the accused, namely, Waqar Sarwar, Wariyam and Nawees indulged in indiscriminate firing upon the^ three injured persons. When three injured persons fell down on the floor then all the seven accused named above ran towards their house by firing. I, Niaz Akhtar, Mst. Mazloom Bibi and Muhammad Sharif P.Ws. Saw the occurrence. All the three injured namely Hassan Akhtar, Muhammad Saeed and Faris succumbed to the injuries at the spot."
' P.W.12 was cross-examined by the defence counsel at length which cross-examination consists of eleven full pages. We have not been able to find that the defence has shaken the credibility or veracity of the said witness on the material points. It may also be borne in mind that incident had takeh place on 9-12-1997 while the evidence of P.Ws. 11 and 12 was recorded on 19-10-1999 and 25- 3-1999 respectively, almost after two years of the incident, therefore, somewhat little omissions and inconsistencies are bound to occur but so far the material part of implication of the appellants/accused is concerned the same has been affirmed by both the P.Ws. In their testimony even after two years. We have not been able to find any plausible reason on record or from the arguments advanced from the learned counsel for the appellant that as to why the said P.Ws.
Would falsely implicate the present appellants in the commission of crime if real culprits were other than the appellants.
10. The ocular testimony of both the P.Ws. Is also affirmed by medical evidence of P.W.5 Dr. Muhammad Arshad and inquest reports Exhs.P.R., P.S. And P.T. And post-mortem examination reports Exhs.P.J., P.K. And P.L. Which affirmed the locale and injuries found oh the person of deceased with fire-arms used by each of the appellant/accused which was deposed by P.Ws.11 and 12 and stated in the F.I.R. By the complainant. The Inquest Reports Exh.P.R. Of Muhammad Faris, Exh.P.S. Of Muhammad Saeed and Exh.P.T. Of Hassan Akhtar deceased also confirm the locale of injuries inflicted upon the deceased persons with fire-arms as deposed in the ocular testimony by the said two P.Ws. There is no dispute with regard to place of incident having taken place in the said room of the house of Aurangzeb as it hag not been contested or pleaded by the defence that the incident had not taken place in the room of the house of Aurangzeb_ Besides, Exh.P.M. Which is site plan which mentioned two doors of the room eastern and western from which specified appellants/accused are said to have entered and the place and distance at which the deceased Akhtar Hussain and Muhammad Saeed were standing. As per site plan Hasan Akhtar, deceased, was at point No,1 to whom appellant/accused Haroon Rasheed is said to have fired from point No,4 which is western door at the distance of seven feet from the point No,1, and as per Doctor's evidence wound of entries on the person of deceased Hasan Akhtar were found having no burning or blackening or tattooing around the margins of wound in respect of injuries sustained by him being beyond the distance of three feet, except on the right hand one gutter wound and on the thinner area of hand, smoke was found to be present whereas in case of other deceased persons,- none was nearer than three feet from the assailant considering that nearest victim Muhammad Saeed was at point No,2 which was about four feet from the place of firing of Muhammad Raees appellant at point No,4 who was standing at the western door whereas Muhammad Faris who was standing at point No,3 was fired from point No,5 by Muhammad Hanif accused who was hit by .7 mm rifle which shot hit him on the mid of left cheek when wound of injury on the right chest back just below the apex of scapula, and wound of exit on the left chest on lateral surface, and on the top of mid of vertex. No burning, blackening or tattooing were found as per injuries Nos.3 to 5 being distance beyond three ,feet from the place of firing where the appellant/accused Muhammad Hanif was standing. P.W.6 Muhammad Akram (Draftsman) again stated that at arms length's distance at point No,4 from point No,2 would be 1-1/4 to 1-1/2 feet; Again stated that nearest person at point No,5 shall be 4-1/2 feet from point No,3 and the arms length would be about two feet. Be that as it may, it could safely be said that blackening by smoke and unburned gun-powder surrounding fire-arm injuries would not only depend on the distance from which shot is fired but also on (i) kind and quantity of gun-powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end. Reference may be made to the decision of this Court in Wahid v. The State PLD 2002 SC 62 at 67, wherein this Court has observed:-- "These observations to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missile. We have no information in the present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who are otherwise dependable and natural witnesses, cannot be set aside merely on the basis of the theoretical opinions relied upon by the defence."
' Besides, it may be observed that in the instant case ocular testimony of both P.Ws. Is confidence inspiring and unimpeachable, therefore, the site plan which is not substantial piece of evidence (Reference may be made to decision of this Court in Sardar Khan and 3 others v. State 1998 SCM R 1823) in presence of reliable ocular version as such would be confirmatory evidence. The ocular version coupled with medical evidence proved beyond shadow of doubt guilt of the appellants and mere inaccuracy in site plan would not take away probative force of testimony in the case, considering also the fact that F.I.R. Was promptly lodged and there was no strong reason to falsely implicate the appellants in the B case, instead of real assailants of the deceased. In the circumstances it is held that ocular testimony of P.Ws.11 and 12 is confidence inspiring and unimpeachable hence it cannot be excluded from consideration in arriving at a correct conclusion/finding.
11. So far as the contention of learned counsel for the appellants/ accused that no inmate of the house of Aurangzeb was examined by the prosecution, it may be observed that it would not lead to adverse inference against the prosecution case considering the fact that Aurangzeb himself was not in the house and had gone to offer Isha prayers while other inmates, namely, wife and daughter of Aurangzeb were in another room and as the said ladies and the deceased persons and P. Ws. Were strangers to the ladies of Aurangzeb's family members, hence were not likely to be present in the same room as per tradition of the rural area-prevailing and further that in such cases generally the women do not come forward to become witness at the risk of uncalled for enmity with the assailants and further that the prosecution has not said that women-folk of Aurangzeb were present at the time of occurrence in the said room.
12. Next contention of learned counsel for the appellants that Investigating Officer was not examined by the prosecution. It may be observed that in place of Investigating Officer, Azhar Hussain, P. W.19 Mussarrat Ali Khan, Inspector .Was examined and he has confirmed and verified the investigation conducted by Azhar Hussain, S.-I. Who had worked under him and was not available in the country as he had been sent to Bosnia. Non-examination of Investigating Officer Azhar Hussain, in the circumstances would not adversely affect the prosecution case-as in .His place Inspector Mussarrat Ali Khan was examined to attest and certify the investigation of the case, hence it would, not be fatal to the prosecution case. Reference may be made to (i) Muhammad Mansha v. The State 1992 SCM R 273 and (ii) Abdul Majeed v. The State 1992 SCMR 379(b).
13. Next contention of the learned counsel for the appellants is that motive alleged is too remote and weak, therefore, prosecution cannot succeed on the basis of said motive which took place about 16/17 years ago. It may also be observed that this Court has time and again held that even absence of motive is not helpful to the accused so also weakness of the motive would not come in the way of prosecution if there was otherwise strong, confidence inspiring, unimpeachable and reliable evidence in support of prosecution case considering that motive is always the state of mind of the accused which cannot be proved by ocular testimony because a number of such incidents appear to occur without any motive to the knowledge of the victim. Reference may be made to the decision of this Court in (i) Syed Mushtaq Ahmad v. Sidduiqullah PLD 1975 SC 160 at 165(d), (ii); Abdul Rashid v. Umid Ali PLD 1975 SC 227 at 236(b); (iii) State v. Sobharo 1993 SCM R 585(c) at 592(d) and (iv). Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCM R 427(b) at 430(c), though in the instant, case P.W.7 Muhammad Munir has deposed that 3/4 months before the present occurrence appellant/accused Haroon Rasheed had a quarrel with Hassan Akhtar,- deceased, and he had intervened to compromise when both parties were present in the mosque, Jarnroze Khan accused came there and proclaimed that till the revenge of previous enmity was not taken, no compromise would be effected and the present occurrence was the result of the said instigation of Jamroze Khan., It is true that his statement was recorded by C.I.A. After investigation was transferred to them which can also be the cause of present occurrence resulting in unnatural death of three young persons. Mere fact that statement of P.W.7 Muhammad Munir was not recorded soon after the occurrence, it being the fault of Investigating Officer, would not be sufficient to hold that his testimony was not reliable and was liable to be discarded on that account only. Be that as it may, as time and again this Court has held that absence of, motive itself is not a ground to hold that the prosecution was false when there existed strong, reliable and confidence inspiring evidence on record as observed in the above cases.
14. Next contention of learned counsel for the appellants that the ocular testimony of P.Ws.11 and 12 was inconsistent to that of medical evidence has also no substance and merits considering that post-mortem report Exh.P.J. Of Hassan Akhtar, deceased, would show that he had sustained injuries Nos.10, 11 and 12 on the neck and right hand. Postmortem examination report Exh.P.K. Of Muhammad Faris mentioned injury No,3 on the right cheek which was attributed to appellant/accused Muhammad Hanif, whereas post-mortem examination Exh.P.L. Of Muhammad Saeed would show that he had sustained injuryNo,5 on the left shoulder which was inflicted upon him by appellant/accused Muhammad Raees with kalashnikov. Besides, the abovesaid injuries attributed to the above named appellant/accused had inflicted other injuries of fire-arm as well on the persons of deceased which was caused by indiscriminate firing by the appellant/accused, Muhammad Nawees, Muhammad Waqar and Muhammad Sarwar jointly as deposed and found by Dr. Muhammad Arshad P. W.5 in his report and deposition. In the circumstances, the said contention has no merit and substance as the ocular testimony is consistent with the medical evidence. It may also be observed that no material inconsistencies have been pointed out by the learned counsel for the defence considering that it would only be material discrepancies coming into conflict with the material probabilities that would militate against the credibility of witnesses justifying the rejection of testimony. Reference may be made to (supra) cited case of Abdul Rashid v. Umid Ali PLD 1973 SC 227(b) and 239H.
15. Next contention of learned counsel for the appellant that as per post-mortem examination Exh.P.L. Of Muhammad Saeed, his stomach was found to be empty, whereas ocular version was that he had taken his meal at Maghrib time before going to the house of Aurangzeb, therefore, the ocular account was inconsistent with the medical evidence. Even if it is assumed that said deceased had taken meal at Maghrib time which in the month of December takes place at about 5-00 p.m. And the deceased along with witnesses had gone to the house of Aurangzeb after 8-00 p.m. And thereby more than two hours passed, therefore, in case light food was taken the same would have been completely digested and passed on. Be that as it may in (i) Ibrahim v. The State 1996 SCMR 773(b) at 776(b) this Court has observed:- "that according to text book of medical Jurisprudence there may be circumstances which may vary the time and digestion to food in particular cases."
(ii) Mansha and others v. The State PLD 1971 Lah, DB 781(c) at page 796(0, learned Division Bench of the High Court observed:-- "The contents of stomach do not by themselves provide the necessary information for determination of time of death."
(iii) Asghar v. The State PLD 1958 W.P. Lah. 395(c) at 399(a) learned Division Bench of the Lahore High Court has observed:- "The state of digestion of the stomach-is not a reliable test for fixing the hours of death.
(iv) Ghulam Hussain v. The State 1984 PCr.LJ 1E07 learned Division Bench of the Lahore High Court observed:- Were fact that doctor in his examination-in-chief having stated that stomach of deceased containing semi-digested food would not ipso facto amount that time of occurrence given by first informant was not correct as it was mere opinion of doctor and would not lead to disbelieve the eye-witness who has deposed on oath and it could not be said that the witnesses were not present at the spot when their evidence inspiring confidence."
16. Next contention of learned counsel for the appellants that the said P.Ws. Had not sustained any injury in spite of indiscriminate firing of the deceased, therefore, their presence was doubtful. We do not find any merit in this contention also. Admittedly as per ocular testimony and site plan, the P.Ws. And other victims were separated and-were made to stand in the southern, corner at point No,10 and the assailants had targeted the only deceased persons for which mission they came at the place of occurrence, therefore, the indiscriminate firing having not been targeted to the P.Ws., hence no injury was sustained by the P.Ws. Whereas the site plan and the ocular testimony would show that because of indiscriminate firing on the southern and eastern walls pellets marks were found at different levels which would suggest that though indiscriminate firing was made, it was not directed to any of the P.Ws. But was made just in order. To scare them from making interference in their mission. In the circumstances, it was not necessary that the P.Ws. Must have sustained injuries on their persons to prove their presence at the relevant time at the place of occurrence, considering the other memos. Of recovery and other evidence on record that the bodies were recovered from the said room of incident and some stains of blood were also found on the floor which after the removal of the dead- bodies was cleaned and the bodies having been removed on the cots so also the chairs were removed on the arrival of the Investigating Officer.
17. So far the recovery of crime weapons and empties, learned Division Bench of the High Court has rightly observed that the same were pieces of evidence of corroboration and even if recovery is not proved, in presence of reliable, confidence inspiring and unimpeachable ocular testimony and other circumstantial evidence, it would not adversely affect the prosecution case as the said weapons and its recoveries if held to be tampered with subsequently.
18.. We do not find any legal or factual infirmity in the perusal of evidence of the trial Court and learned Division Bench of the High Court and in the contention of learned counsel for the appellants. So far the quantum of sentence no mitigating circumstance has been put forward by the learned counsel for the appellants except that the motive was said to be weak or not proved which this Court time and again has held that it cannot be a ground for awarding lesser sentence as the same is always found to be in the mind of assailant, therefore, no evidence could be brought to that effect which could be gathered only from other circumstantial evidence if direct evidence being not available. Three young persons have been done to unnatural death brutally as firing squad with dangerous fire-arms like kalashnikov and Rifles, therefore, in my view normal punishment of capital sentence would be just and proper in the circumstances of the case.
Reference may be made to the decision of this Court in Mir Hamid v. Muhammad Azam and 2 others 2005 SCMR 425; at 430(c), wherein this Court has observed:-- "Inadequacy of witnesses of the alleged motive or where motive had not been proved the assailant found guilty of causing of murder of another did not deserve any leniency and only in such-like circumstances would be the sentence of death."
19. So far the absconsion piece of evidence in respect of appellant Muhammad Raees, prosecution has led evidence that the incident had taken place on 9-12-1997 in the house of Aurangzeb while the accused Muhammad Raees was arrested on 19-8-1998 by police party from the village Chapper as deposed by P.W.9 Ibrar Hasan. P.W.13 Sher Muhammad in his examination-in-chief deposed that on 10-1-1998 he was posted in C.I.A. Islamabad and was entrusted with warrants Exh.P.W.13/A in respect of Raees accused and traced the said accused but could not trace him as per his report. Exh.P.W.13/B which he admitted to be in his handwriting and bore his signatures. He further deposed that said accused was avoiding his arrest and he returned the warrants of arrest unserved to the Investigating Officer and then again on 3-2-1998 he was entrusted with proclamation Exh.P.W.13/D of Raees accused which he affixed in the District Court, Islamabad and a copy at his available address and the third copy of proclamation at the thoroughfare and he submitted his report Exh.P.W.13/D which was in his handwriting and bore his signatures. However, this witness in the cross-examination gave obliging statement in favor of the said accused but in presence of the above said Exhibits and admitted signatures and writing of said P.W. The obliging statement would not lessen the intrinsic value of the testimony of the witnesses with regard to absconsion of appellant/accused Muhammad Raees considering that he remained underground for more than eight months as such even after due warrants and proclamation he did not surrender before the Court. His reply to the question in 342, Cr.P.C. Statement that he was in his house appeared to be not satisfactory explanation. Reference may be made to Chakar and another v. The State 1971 PCr.LJ 1121 at 1124-A wherein learned Judge in Chambers has observed: ' "Accused absconding immediately after the occurrence, police making search but accused found not available in village and arrested 8 days afterwards, such absconding of accused, held, a strong piece of corroborative evidence."
(ii) Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896 at 900(b) wherein learned Division Bench of the High Court observed:-- "Accused remaining absconding for four days after occurrence---Abscondence not explained satisfactorily---Conduct of accused, held weighs in favor of guilt in circumstances. "
' Learned trial Court has also at page 41 of the impugned judgment has observed:-- "About his abscondence, Muhammad Races accused simply stated that he had no knowledge about the warrant and the proclamation issued against him. Long abscondence of Muhammad Raees accused for more than eight months is a strong piece of corroborative evidence against him. The prosecution complied with all the legal formalities to declare him Proclaimed Offender."
' Besides other evidence on record, the evidence of abscondence being strong corroborative evidence has supported the case of prosecution about his implication in the commission of crime.
20. Accordingly we find that the prosecution has proved the case beyond reasonable doubt on the basis of unimpeachable and confidence inspiring testimony corroborated by medical evidence, consequently the appeal is dismissed and sentence and conviction passed by the learned Division Bench and the trial Court are maintained.