1. ' As both the reference and appeal arise out of the same incident therefore, these are consolidated and being disposed of by a single judgment.
2. ' The facts precisely stated are that Ulfat Khan the complainant lodged a report at Police Station Khuiratta alleging therein that on 10-9-2004, at 7 a.m. The complainant and his nephew Muhammad Katib, Muhammad Rasheed, Muhammad Qadeer sons of Bagh Ali and his neighbourer Muhammad Akram were proceeding towards village Dhanna from their houses for labour.
3. Muhammad Katib and Muhammad Rasheed were proceeding ahead whereas the complainant, Ulfat Khan, Qadeer and Akbar were walking behind them. Liaquat Hussain and Muhammad Khan accused-persons waylaid. As soon as Katib and Muhammad Rasheed reached near them, Muhammad Khan raised Lalkara and asked his son to do away with their lives, whereupon, firstly, Liaquat Hussain who was armed with a .30 bore pistol, fired a shot upon the chest of Katib, who fell down. When Muhammad Rasheed tried to pick him up, Liaquat Hussain fired a second shot with the pistol upon Muhammad Rasheed which hit on his right thigh. Meanwhile, the complainant along with Qadeer and Akbar rushed to the place of occurrence but Liaquat Hussain while raising Lalkara and firing shots fled-away along with his father. When the complainant and his companions tried to pick up Katib and Rasheed, they found Katib dead whereas Rasheed was still alive. They took him to the hospital but while on the way, Rasheed also succumbed to the injuries.
4. The occurrence was committed on the behest of Razzaq son of Sattar Din and Javed alias Jadi son of Muhammad Bashir which was witnessed by the complainant Ulfat Khan, Muhammad Qadeer, Muhammad Akbar and some other persons.
5. ' The motive has been stated to be a dispute of affinity in which connection an altercation took place between the complainant and the accused-persons and a case was also registered at Police Station Khuiratta.
6. ' On this report, a case under section 302/341, 34/109, A.P.C. Was registered by Muhammad Naseer Khan S.-I. Police (P.W.22).
7. ' On 10-9-2004, after arriving at the spot Muhammad Naseer S.-I. (P.W.22) prepared an inquest report of Muhammad Katib, deceased Exh.P.Q. He also prepared his injury sheet Exh.P.M. On the same day, the blood-stained clay and grass (vide recovery memos. Exh.P.F. And. Exh.P.G.) and three empties of pistol .30 bore (vide recovery memo Exh.P.E.) were taken into possession by him in presence of Muhammad Liaquat (P.W.4) and Muhammad Maqsood (P.W.6).
8. ' The accused-appellants were apprehended on 10-9-2004. On the same day, Liaquat Hussain convict-appellant led to the recovery of .30 bore pistol with magazine, which was taken into possession vide recovery Exh.P.H. Attested by Muhammad Jhangir (P.W.8) and Muhammad Ilyas (P.W.9).
9. ' After the post-mortem, on 10-9-2004, the blood-stained clothing of Muhammad Katib deceased was taken into possession by Muhammad Naseer S.-I. Police (P.W.22) vide recovery memo.
10. (Exh.P.C.) in presence of Muhammad Yousaf (P.W.5) and Muhammad Rafique (P.W.7). On the same day, he prepared the site-plan Exh.P.P.
11. ' Mureed Hussain Shah, A.S.-I., Police (P.W.20) prepared an inquest report Exh.P.L. Of Muhammad Rasheed deceased on 10-9-2004. He also prepared an injury sheet of above stated deceased Exh.P.K.
12. ' On 14-9-2004, Muhammad Naseer S.-I. Police got prepared the site-plan Exh.P.J. By Muhammad Yaqoob Patwari (P.W.14).
13. ' On 30-9-2004, Muhammad Naseer, S.-I. Police took into possession the blood-stained clothing' of Muhammad Rasheed deceased vide recovery memo. Exh.P.D. Attested by Muhammad Yousaf (P.W.5) and Muhammad Rafique (P.W.7).
14. ' In the light of document Exh.P.T., it was reported by Chemical Examiner vide its report dated 25-9- 2004 that the clay and clothes of both the deceased were stained with human blood.
15. ' It was reported by the Director, Forensic Science Laboratory Punjab in the light of document Exh.P.U. Vide its report dated 12-10-2004, that the three crime empties were found to have been fired by .30 bore pistol recovered from Liaquat Hussain, accused-appellant.
16. ' The post-mortem of the dead bodies of Muhammad Katib and Muhammad Rasheed deceased was performed on 10-9-2004 by Dr. Muhammad Is'haq C.M.O. Rural Health Centre Khuiratta vide postmortem reports Exh.P.N. And Exh.P.O. He noticed the following injuries on the dead body of Muhammad Katib deceased caused by firearm:--
(1) An entry wound on front of chest just right to midline 11, c.m. Below clavicle bone and at level of 4th intercostal space on margins of sternum. It is 0.5 c.m. In diameter.
(2) An exit wound on right side of back of chest 17, c.m. Below the upper border of scapula and 8, c.m. Lateral to midline. It is 0.9, c.m. In diameter.
17. ' Tract of bullet:- ' Bullet entered through above mentioned entry wound, went through medial margin of right lung, went through aorta just on its emergence from heart and ruptured it. Struck with vertebral column changed its direction and went out of exit wound.
18. ' He also noticed the following injuries on the dead body of Muhammad Rasheed deceased caused by fire-arm:--
(1) An entry wound on upper part of right thigh 0.5, c.m. In diameter with inverted margins. No tattooing or powder marks present. Wound is 13, c.m. Below anterior superior iliac spine.
(2) An exit wound on upper part of left thigh 14, c.m. Below the anterior superior iliac spine. It has 0.7, c.m. Diameter with everted margins.
(3) An entry wound on antromedial aspect of left wrist joint 0.5 c.m. In diameter.
(4) Exit wound on posteromedial aspect of same wrist joint 0.9 c.m. In diameter. Tract of Bullet:--
(1) Bullet entered from right side of upper thigh, went through anterior compartment. Pierced femoral arteries and veins on both sides also damaged the arteries of urethra spermatic cords of both sides, also injured the urethra and went through anterior compartment of left thigh and exited through exit wound.
(2) Bullet entered on anteromedial aspect of left wrist fractured lower end of ulna bone and exited.
19. ' During the investigation, the offence under section 109, A.P.C. Was deleted and the challan was submitted against the accused-appellants under sections 302/341/34, A.P.C. Read with sections 13/20/65, Arms Act, before District Criminal Court Kotli on 28-9-2004, whereas benefit of section 169, Cr.P.C. Was extended to Muhammad Razzaq and Javed Iqbal alias Jaidi accused-persons. The accused-appellants during their examination under section 242, Cr.P.C. Pleaded not guilty and opted for the trial.
20. ' Ulfat Khan, complainant (P.W.1), Muhammad Qadeer (P.W.2), Muhammmad Akbar (P.W.3), Muhammad Liaquat (P.W.4), Muhammad Yousaf (P.W.5), Muhammad Maqsood (P.W.6), Muhammad Rafique (P.W.7), Muhammad Jhangir (P.W.8), Muhammad Ilyas (P.W.9), Muhammad Razzaq (P.W.10), Ahmed Khan (P.W.11), Muhammad Mehrban (P.W.13), Muhammad Yaqoob Patwari (P.W.14), Dr. Muhammad Is'haq (P.W.15), Kabeer Hussain Shah constable No.103 (P.W.18), Muhammad Siddique Khan Head-constable police (P.W.19), Mureed Hussain A.S.-I. Police (P.W.20), Sardar Shadab Ahmed Khan D.S.P. (P.W.21) and Muhammad Naseer Khan S.-I. Police (P.W.22) were produced in support of the prosecution tale, whereas P.Ws.12, 16 and 17 were given up by the prosecution.
21. ' After completion of the prosecution evidence on 22-11-2004, an opportunity was provided to the accused-appellants under section 342, Cr.P.C. To furnish their explanation about the evidence and all circumstances appearing against them. Both the accused-appellants pleaded that false evidence was produced against them on account of enmity and they claimed to be innocent.
22. ' The District Criminal Court Kotli, after completion of the trial,. Awarded death sentence to Liaquat Hussain accused on two counts under section 302(A), A.P.C. And one month simple imprisonment under section 341, A.P.C. And 5 years simple imprisonment under section 13/20/65, Arms Act, whereas Muhammad Khan, accused was awarded life imprisonment under section 302/34, A.P.C.
23. And one month simple imprisonment under section 341, A.P.C. Vide its judgment/order dated 30-11- 2004. Feeling aggrieved and dissatisfied, both the convict-appellants Liaquat Hussain and Muhammad Khan have challenged the aforesaid conviction and sentence before this Court whereas a reference has also been made by the trial Court for confirmation of the death sentence as required by section 338-D, A.P.C. The aforesaid judgment/order of District Criminal Court Kotli dated 30-11-2004 is the subject-matter of the appeal and reference titled above.
24. ' Abdul Aziz Ratalvi, Advocate the learned counsel for the convict-appellants argued with vehemence that the trial Court fell in grave error while passing the impugned judgment. According to him, the appellants were implicated in the occurrence on account of enmity. The learned counsel further contended that the prosecution witnesses are closely related to the deceased. Ulfat Khan (P.W.1) is uncle of the deceased whereas Muhammad Qadeer is their brother and Muhammad Akbar is their brother-in-law, therefore, being interested witnesses their evidence cannot be taken into consideration. The learned counsel also submitted that the perusal of the statement of Ulfat Khan (P.W.1) shows that he is not a reliable witness. He pointed out that according to the prosecution case, the F.I.R. Was lodged at 9-00 a.m. Whereas according to Ulfat Khan (P.W.1), the F.I.R. Was lodged at about 11-00 a.m. The learned counsel further contended that Ulfat Khan (P.W.1) has deposed that Liaquat Hussain fired two shots whereas Muhammad Qadeer (P.W.2) and Muhammad Akbar (P.W.3) have testified that Liaquat Hussain fired three shots, therefore, the version of the P.Ws. Being inconsistent and self-contradictory is not worthy of any credence. The learned counsel maintained that according to the post-mortem report two shots were fired upon Muhammad Rasheed, deceased, but according to the P.Ws. One shot was fired upon him, therefore, the ocular version is in conflict with the medical evidence. The learned counsel pressed into service the submission that the eye-witnesses' account has not been sufficieritly supported by the corroboratory evidence. The learned counsel also submitted that the recovery witnesses do not belong to the locality, therefore, the mandatory provision of section 103 Cr.P.C.
25. Was not followed on this account, the recovery evidence is not reliable. The learned Counsel laid great stress upon the point that the evidence of Dr. Muhammad Is'haq (P.W.15) is also not worthy of any credence because it is not possible that a bullet of .30 bore pistol could fracture the ulna of the deceased after crossing both the thighs. The learned counsel criticized the evidence of Muhammad Naseer Khan, the Investigating Officer, and submitted that he intentionally did not state the timings of the investigation in order to defend the illegalities of the investigation.
26. According to the learned counsel, the occurrence took place at.Night but the time of occurrence was changed with an intention to implicate the accused-appellants in the case in fact both the deceased were done to death by the complainant. The learned counsel vigorously argued that according to Mureed Hussain Shah A.S.-I. Police (P.W.20), he received information at 7/7-15 a.m. At Police Station Khuiratta, therefore, it was not possible that the occurrence had taken place at 7-00 a.m. The learned counsel further maintained that the prosecution case is full of material irregularities and serious contradictions and it is based upon surmises and conjectures but the trial Court failed to consider that the benefit of even slightest doubt goes in favour of the accused and the prosecution is bound to prove its case beyond any reasonable doubt. The learned counsel zealously argued that the trial Court also committed an error while imposing the sentence of life imprisonment to Muhammad Khan on account of mere raising a Lalkara, according to him no overt act has been attributed to Muhammad Khan, but the complainant party involved both the father and son in the case so that nobody should remain outside to defend the case of the accused-persons. The learned counsel finally submitted that the prosecution has miserably failed to appreciate the evidence in its true perspective, therefore, the impugned judgment is not sustainable, which may be set aside. In support of the contentions, the learned counsel cited the following authorities:--
(1) PLD 1969 SC 127.
(2) PLD 1986 Lahore 391.
(3) 1996 PCr.LJ 817.
(4) 2004 PCr.LJ 1239.
(5) PLD 2004 Quetta 123.
(6) 2005 PCr.LJ 53, 83 and 138.
27. ' Rafiullah Sultani, Advocate, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the convict-appellants and submitted that both the accused- appellants have been nominated in the F.I.R. And a clear role has been attributed to them, which has also been proved by the prosecution evidence without any shadow of doubt. The learned counsel argued that the prosecution has produced three eye-witnesses, who are unanimous on the point that on raising a Lalkara by Muhammad Khan, co-accused, his son Liaquat Hussain fired three shots upon Muhammad Katib and Muhammad Rasheed, the deceased, one after another.
28. The learned counsel pointed out that ocular version has been 'fully supported by sufficient corroboratory evidence and three empties along with blood-stained clay were recovered from the spot whereas the weapon of offence .30 bore pistol was recovered at the instance of Liaquat Hussain, accused-appellant and the medical evidence produced by the prosecution further confirm the- ocular version. The learned counsel further submitted that the fire-arm expert has also reported that three empties recovered from the spot were found to be fired by .30 bore pistol taken into possession at the instance of Liaquat Hussian, accused. According to the learned counsel, the place, the time and the manner of occurrence have been fully proved by the prosecution evidence. The learned counsel pointed out that the accused-persons have also not taken any clear defence. The learned counsel also argued that the style of cross-examination and the perusal of suggestions made by the defence shows that the accused-appellants have simply defended the occurrence and taken the plea of alibi but neither a single witness was produced in support of their plea nor the accused-appellants got their statements recorded under section 340, Cr.P.C. To prove their version, therefore, the defence has miserably failed to prove its version. The learned counsel pressed into service the submission that the evidence of Ulfat Khan (P.W.1) cannot be read in isolation rather his whole statement has to be taken into consideration, which shows that the occurrence took place at 7-00 a.m. And F.I.R. Was lodged at 9-00 a.m. And if for the sake of arguments, the evidence of Ulfat Khan is brushed away, even though the veracity of the F.I.R. Is not injured, which has been fully supported by the evidence of two other eye-witnesses. The learned counsel zealously argued that the evidence of a related witness cannot be ignored unless it is proved on record that he has falsely implicated the accused-appellants on account of enmity.
29. According to the learned counsel the motive has been alleged and it has been proved by the prosecution evidence that the accused-appellants were annoyed. With the complainant party on account of affinity and in furtherance of their common object they put to death both the deceased.
30. The learned counsel further maintained that the defence has not challenged the main story of the occurrence deposed by the eyewitnesses, therefore, the same stands admitted on the part of the defence. The learned counsel submitted that the occurrence took place in the bright hours of the day and the parties are closely related, therefore, the question of identification of the accused- persons does not arise. While dealing with the injuries of Muhammad Rasheed, deceased, the learned counsel argued with vehemence that when Liaquat Hussain fired a shot upon Muhammad Katib, Muhammad Rasheed deceased went to pick him up and at that time Liaquat Hussain fired another shot upon Muhammad Rasheed, which hit him on his thighs and arm. According to him, while considering the position and posture of Muhammad Rasheed, deceased, the entry of bullet in both thighs and thereafter in the ulna is quite possible, which has been fully supported by Dr. Muhammad Is'haq (P.W.15). The learned counsel further maintained that if any contradiction appears between ocular version and medical evidence, the ocular version has to be considered and not the medical evidence. The learned counsel vigorously argued that the provisions of section 103, Cr.P.C. Are not applicable when a recovery is made at the instance of an accused-person, therefore, it was not incumbent upon the Investigating Officer to find out the witnesses of locality for recovery purpose. The learned counsel finally submitted that if the conscience of the Court is convinced by the evidence of a single witness that the offence was committed by the accused, even such evidence is sufficient for conviction. In support of the arguments, reliance was placed upon the following case-laws:--
(1) 1979 PCr.LJ 113.
(2) 1980 PCr.LJ 654.
(3) 1983 PCr.LJ 298.
(4) 1983 PCr.LJ 761.
(5) PLD 1984 SC (AJK) 182.
(6) 1987 PCr.LJ 1689.
(7) PLD 1992 SC (AJK) 20.
(8) PLD 1995 Kar.
31. 469.
(9) 2000 YLR 2750.
(10) 2005 PCr.LJ 226 = 2005 PCr.LJ 464.
32. ' Zaheer Babar Chughtai, the learned PP appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant and submitted that Muhammad Mehboob was abandoned by the prosecution but the accused-appellants did not produce him in the defence, therefore, in this regard the defence cannot be allowed to take any benefit.
33. ' I have given my deep consideration to the arguments addressed at Bar, perused the record with care and the case-law cited. The prosecution case is based on ocular version, therefore, it will be appropriate to firstly deal with eye-witnesses' account. Ulfat Khan (P.W.1), the complainant, lodged an F.I.R., nominated the accused-appellants and fully supported the manner of occurrence during his statement wherein he testified that when he along with Muhammad Qadeer, Muhammad Rasheed and Muhammad Akbar was proceeding towards village Dhanna for the purpose of labour, both the accused-appellants waylaid and launched an attack upon both the deceased.
34. Muhammad Khan raised a Lalkara in consequence of which Liaquat Hussain son of Muhammad Khan fired a shot with .30 bore pistol upon the chest of Muhammad Katib, who fell down on the ground. When Muhammad Rasheed went close to him to pick him up, Liaquat Hussain fired another shot upon Muhammad Rahseed, which hit him upon his right thigh, who also got injured and fell down. When he went near the deceased found Muhammad Katib dead whereas Muhammad Rasheed was still alive, who was taken to the hospital but while on the way he succumbed to the injuries. He further deposed that the occurrence was witnessed by Muhammad Qadeer and Muhammad Akbar.
35. ' Muhammad Qadeer, a brother of the deceased, also stated that when he along with the complainant, both the deceased and Muhammad Akbar was proceeding towards village Dhanna for labour both the accused-appellants waylaid. Muhammad Khan raised a Lalkara and his son Liaquat Hussain fired a shot upon the chest of Muhammad Katib and when Muhammad Rasheed went to pick him up, Liaquat Hussain fired another shot upon Muhammad Rasheed, which hit him on his right thigh. Thereafter Liaquat Hussain fired another shot, which missed the target.
36. Muhammad Akbar (P.W.3) also corroborated the deposition of both the eye-witnesses and stated that on the fateful day he was proceeding with the complainant, both the deceased and Muhammad Qadeer (P.W.2) for labour. Both the accused-appellants waylaid and launched an attacked. Muhammad Khan raised a Lalkara whereupon Liaquat Hussain fired a shot of pistol upon Muhammad Katib, which hit him upon his chest, who fell down upon the earth and when Muhammad Rasheed went to pick him up, Liaquat Hussain fired another shot, which hit upon the right thigh of Muhammad Rasheed. Thereafter Liaquat Hussain fired third shot but it did not hit any person.
37. The perusal of above stated ocular version shows that all the three eye-witnesses are unanimous on the point that on raising a Lalkara by Muhammad Khan, his son Liaquat Hussain fired two shots with a pistol upon both the deceased. However, Ulfat Khan has stated that Liaquat Hussain fired two shots whereas Muhammad Qadeer and Muhammad Akbar have deposed that accused Liaquat Hussain fired three shots. It has been proved on the record that only two shots hit the deceased and the third shot missed the target, therefore, the above stated discrepancy about the third fire, coming from Ulfat Khan is not fatal to the prosecution case because the deceased were done to death by two shots of the pistol and the third shot missed the target. It is settled principle of law that the minor infirmities and discrepancies do not cast doubt upon the main story of the prosecution if the ocular account is cogent and worthy of credence on its material particulars rather such minor contradictions have to be ignored.
38. It will not be out of the place to mention here that the main story of occurrence about firing shots by Liaquat Hussain upon the deceased and raising Lalkara by Muhammad Khan was not challenged in the cross-examination, therefore, it will be deemed to have been admitted by the defence. In this manner, the prosecution case stands fully proved by the ocular version. My this view finds support from the principle enunciated in Willayat Khan's case (PLD 1985 SC (AJK) 41) and in Mst. Farooq Bibi's case (1999 CLC 1358) which was also affirmed in a case reported as Abdul Latif v. Sifarish Ali Khan's case (2004 YLR 1663) in the following manner:-- "So far as the principle laid down in the authorities cited by the learned counsel for the appellant is concerned, it is correct that if the statement of a witness is not challenged in the cross- examination, the same is considered to have been admitted by the opposite party."
39. ' The next question which needs determination is as to whether the evidence of eye-witnesses being closely related to the deceased and the complainant is confidence inspiring or not? It is admitted on the record that the complainant is uncle of both deceased whereas Muhamthad Qadeer is their brother and Muhammad Akbar is their brother-in-law. In this manner, the P. Ws. Are not only related to the deceased but they are also co-related. It is celebrated principle of criminal jurisprudence that mere friendship or relationship does not make a witness an interested one and testimony of such a witness cannot be brushed away on such ground, who otherwise seems to be natural and truthful witness. An interested witness is one who has a motive for falsely implicating an accused, therefore, relationship with the deceased will not be sufficient to discard the veracity of a witness if the evidence rings true. In the instant case, the eye-witnesses have no such 'animus so as to falsely implicate" or substitute the accused-appellants in the commission of murder.
40. Although the parties have no cordial relationship between them and on account of affinity and dispute of land they are also involved in criminal litigation but it is not humanly possible for an' uncle or a brother to involve his own nephew or first cousin in a double murder case on account of dispute of affinity or criminal litigation, instead of real culprits. It may be stated here that an independent or an impartial' witness is not always reliable and a related witness is not always a liar but it is always the quality of evidence and value of testimony which matters. If the conscience of the Court is satisfied that the evidence of an eye-witness is cogent, natural and confidence inspiring, it can always be relied upon without any further. Corroboration. In this regard, a host of case-law can be referred to but I have decided to quote only few cases. The view taken in the case reported as Muhammad Sharif v. The State (PLD 1978 SC (AJK) 146), was affirmed in Mehtab Khan's case (PLD 1979 SC (AJK) 23), Niaz Ahmad alias Jaja's case (PLD 1983 SC (AJK) 211), Muhammad Khalid's case (1992 SCR 249), Ibrar Hussain Shah's case (PLD 1992 SC (AJK) 20) and it was further affirmed in the cases titled Abdul Rasheed and 3 others' case 2001 PCr.LJ 524 and Abdul Aziz and another's (2001 YLR 236).
41. ' In a case reported as Muhammad Din v. State (PLD 1995 Kar. 469) while dealing with the evidence of close relatives, the following dogma was enunciated at page 239 of the report:- "An impression has deepened its roots in the fields of criminology during the last so many years that evidence of witnesses closely related to aggrieved party should not be relied upon. Such witnesses are usually termed as interested witnesses. In the appeal in hand, the impugned judgment of the trial Court was also assailed on the same ground i.e., witnesses examined by the prosecution were close relative of deceased, hence they were interested witnesses and could not be relied upon.
42. ' No doubt, out of seven prosecution witnesses examined by the prosecution four were close, rather closest, relatives of the deceased but they had the same blood-relation with the appellant too as stated, in para. 4 above. Therefore, their evidence cannot be ignored on account of their being close relatives of the murdered as well as of this murderer. Moreover, there is no law to treat every relative to be "an interested witness" if he/she appears as a witness in favour of an accused or against an accused. The term "Interested witness", in its judicial sense, has different import than its general sense. If any person appears as witness in favour of an accused or in favour of aggrieved party or in support of the State, may be, on account of his/her personal monetary gains, enmity, blood-relationship, inducement or for any other interest of his/her own or of anybody else from whom he/she has appeared but the said witness shall not be called interested witness in judicial sense unless element of Interest or favouritism on the face of circumstances is evident. If evidence of such witness creates doubts of favouritism in the mind of contesting opponents then such evidence may not be admissible unless corroborated by other pieces of evidence."
43. So far as another objection raised by the learned counsel for the accused-appellants is concerned that the medical evidence does not corroborate the ocular version, the statement being misconceived is, therefore, repelled.
44. ' A careful perusal of the post-mortem reports and statement of Dr. Muhammad Is'haq (P.W.15) shows that eye-witnesses' account stands fully corroborated and confirmed by the medical evidence. It has been deposed by eye-witnesses that Liaquat Hussain fired a shot of pistol upon the chest of Muhammad Katib, deceased, and fired another shot upon the right thigh of Muhammad Rasheed, deceased. The examination of post-mortem report of Muhammad Katib, deceased, reveals an entry wound on front of chest just right to midline 11, cm below clavicle bone and at level of 4th intercostal space on margins of sternum and an exit wound on right side of back of chest 17, cm below the upper border of scapula and 8, cm lateral to midline. Similarly, the post- mortem report of Muhammad Rasheed, deceased, also shows an entry wound on upper part of right thigh and an exit wound on upper part of left thigh and also an entry wound on antromedial aspect of left wrist joint and exit wound on postermedial aspect of same wrist joint. In such state of affairs, the bullet entered from right side of upper thigh and went through anterior compartment of the left thigh and exited, and the same bullet entered on anteromedial. Aspect of left wrist which fractured lower end of ulna bone and exited. Keeping in view the manner of incident and posture of Muhammad Rasheed deceased, who at the time of occurrence was stopping down to pick up Muhammad Katib deceased, the infliction of above said injuries is quite possible and I cannot accept this version of the learned counsel for the accused-appellants that a bullet of pistol after crossing both thighs cannot fracture the ulna bone. The presumption is not acceptable because if the bullet goes through the flesh it can injure both thighs and also fracture the lower end of ulna bone. In this respect, the learned counsel for the accused-appellants has not referred to any instance from medical jurisprudence which could support his above stated argument. Therefore, there is hardly any justification to hold that the prosecution story was falsified by medical evidence.
45. The above stated ocular version is also supported by the evidence of Muhammad Razzaq (P.W.10) and Ahmad Khan (P.W.11), who arrived at the spot during the occurrence and found the accused- appellants, the eye-witnesses, Muhammad Katib, deceased, and Muhammad Rasheed, deceased while he was rolling about restlessly. Sufficient corroboratory and confirmatory evidence apart from the above stated evidence has also been adduced in support of the prosecution tale. The inquest reports of both the deceased, their injury sheets, the site-plan prepared by the Investigating Officer as well as by the Patwari, the blood-stained clay, three empties of .30 bore pistol recovered at the instance of accused - appellant Liaquat Hussain and blood-stained clothing of both the deceased coupled with the experts' reports that the blood-stained clothing and clay have been found to be stained with human blood and three empties recovered from the spot were found to be fired by .30 bore pistol recovered from Liaquat Hussain, appellant are also in nature of corroborative evidence.
46. I do not find any substance in this plea of the learned counsel for the accused-appellants that the recovery evidence is not reliable because the recovery witnesses are not inhabitants of the same village. Suffice to note that the recovery of weapon of offence at the instance of accused-person is not strictly governed by the provision contained in section 103, Cr.P.C. The said provision pertains to search by a police officer under Chapter (VII) of Criminal Procedure Code and not to the case where a weapon of offence is produced or recovered by the police at the instance of an accused person. My this view stands fortified by a case reported as Ibrar Hussain Shah v. State (PLD 1992 SC
(AJK) 20). The same view was affirmed in a case reported as Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others (2001 PCr.LJ 524).
47. I have examined the evidence of Muhammad Jhangir (P.W.8) and Muhammad Ilyas (P.W.9) and am of the view that recovery of pistol does not suffer from any legal infirmity. The aforesaid pistol was recovered at the instance of accused. From a ravine on the day of occurrence, therefore,. I do not find any reason to disbelieve the statements of both marginal witnesses on the basis of some variation of distance about the place of recovery from the house of the accused Liaquat Hussain because the simple villagers are not supposed to explain the distance in minute details like feet and yards. Besides, the evidence of Muhammad Naseer S.I. Police (P.W.22) further supports the recovery of weapon of offence which is as good evidence as of any other witness. (2002 SCR 108).
48. ' The learned counsel has laid great stress upon the point that Muhammad Naseer Khan S.-I.
49. (P.W.22) has not mentioned the timing of his investigation and in the light of the statement of Mureed Hussain Shah (P.W.20), it has been proved that the time of occurrene was changed and in fact the occurrence had taken place in dark hours of night. As stated earlier, it has been proved by the cogent, convincing and truthful deposition of eye-witnesses that the occurrence took place at 7-00 a.m. In the manner alleged in the F.I.R. Therefore, minor infirmities about the explanation of time and investigation etc., on the part of Investigating Officer could only be termed as irregularity or arrogant attitude on the part of the Investigating Officer but it is settled and well entrenched principle of law that the procedural defects and irregularity and sometime even the illegality committed during the course of investigation will not demolish the prosecution case or vitiate the trial (2002 PCr.LJ 1785).
50. I agree with the contention of the learned counsel for the complainant that the alleged motive has been fully proved by the prosecution, whereas on the other hand the defence has not taken any specific plea, and stated their mere denial from participation in the occurrence and also pleaded plea of alibi but neither a single witness was produced in support of the aforesaid plea nor the accused-appellants chose to appear as witness in support of their claim. It is by now settled principle of law that if the plea of alibi is taken as defence it should be strictly proved by convincing and confidence inspiring evidence. In the instant case, this plea is taken without leading a single witness, therefore, the mere assertion is not by itself sufficient to brush aside the natural and truthful incriminating material brought on record by the prosecution. In this context, reliance can be placed upon a case reported as Saleh Muhammad v. State (1988 PCr.LJ 653).
51. I have carefully taken into consideration both the prosecution and the defence versions in juxtaposition but the defence version seems to be vague and afterthought without having any solid support, whereas the prosecution version seems to be more natural, probable and trustworthy. The ocular version does not smack of any taint. The eyewitnesses were found `Adil' during purgation and do fulfil the standard and requirements of the evidence needed in the case of `Qisas'. They have been cross-examined at a great length but nothing useful has been brought out which could cast shadow on their statements. The ocular version stands corroborated by sufficient supportive and confirmatory evidence. In such state of affairs, I have no doubt in my mind that the prosecution has succeeded to bring guilt home to the IL accused-appellants.
52. Now the question arises as to whether there was any mitigating circumstance in the case not to award death penalty. So far as the case of Liaquat Hussain, accused-appellant, is concerned, the close scrutiny of the impugned judgment shows that it is well considered and supported by cogent reasons, therefore, mere conjectures and surmises, derived from fallacious logic, cannot be regarded as extenuating circumstance for awarding lesser sentence than normal penalty of death in a murder case. In the present case, the accused-appellant Liaquat Hussain, committed a double murder, he waylaid both the deceased armed with pistol sand fired shots upon them one after another due to which Muhammad Katib deceased fell down on the ground 'and died instantly, whereas other deceased Muhammad Rahseed succumbed to the injuries on the way to the hospital. Therefore, convict-appellant Liaquat Hussain does not deserve any leniency and `Qisas' being normal sentence of murder shall meet the ends of justice. Thus, the Court below has rightly awarded sentence of death as `Qisas', which is hereby confirmed and the other sentences awarded under sections 341, APC and 13/20/65 Arms Act are also maintained.
53. So far as the case of Muhammad Khan, convict-appellant, is concerned, is to be taken on different footings. According to the prosecution case a Lalkara has been attributed to Muhammad Khan, convict-appellant, and no overt act has been ascribed to him. Muhammad Khan is father of Liaquat Hussain convict-appellant; he has no inflicted any injury to both the deceased or the prosecution witnesses. His mere presence on the spot and raising a Lalkara is not by itself sufficient for awarding him life imprisonment; therefore, in view of the facts and circumstances of the case, the sentence of life imprisonment awarded to Muhammad Khan convict-appellant under section 302/34, APC is converted into ten (10) years imprisonment, which shall meet the ends of justice.
54. However, the other sentence of one month awarded under section 341, APC is maintained.
55. Now the question which needs consideration is as to whether Muhammad Khan, convict-appellant, is entitled to the benefit of section 382-B, Cr.P.C. It transpires from the perusal of impugned judgment that the trial Court has neither extended the benefit of aforesaid section nor applied its judicial mind towards this aspect of the case. It is now settled position of law that the trial Court, after considering the circumstances of the case, should decide as to whether the discretion has to be exercised in favour of the accused or not. According to the view of apex Court of AJK the consideration of extending benefit under section 382-B, Cr.P.C. Is mandatory and its application is discretionary. (2001 SCR 231). On this account, the trial Court committed an error while not recording the reasons in order to extend or not, the benefit of section 382-B, Cr.P.C. To Muhammad Khan convict-appellant. However, after considering the facts and circumstances of the instant case, I am of the view that Muhammad Khan, convict-appellant, is not entitled to the benefit of aforesaid provision.
56. ' It is worthwhile to mention here that complainant, Ulfat Khan has not only implicated Muhammad Razzaq son of Sattar Din and Javed Iqbal alias Jaidi in the F.I.R. But also during his own statement.
57. Muhammad Mehrban (P.W.13), brother-in-law of the complainant, has also deposed that he heard both the above persons while talking loudly instigating the accused-appellants to do away with the lives of the deceased. The above stated statement cannot be believed on the following grounds:-- ' Firstly, the Police has extended the benefit of section 169, Cr.P.C. In their favour; ' Secondly, the evidence of Muhammad Mehrban (P.W.13) is not worthy of any credence because a prudent mind cannot accept this version that the above mentioned persons were instigating and provoking the appellants to kill the deceased in so loud voice that the P.W. Was able to hear the conspiracy while passing away outside the house of accused-appellants.
58. ' Thirdly, the above quoted deposition has not been testified by any other witness.
59. ' On this account, the prosecution has miserably failed to prove that Muhammad Razzaq and Javed alias Jaidi instigated and provoked the accused-appellants to put to death to the deceased. The findings of the Court below in this context are also kept intact.
60. ' As far as the authorities cited by the learned counsel for the convict-appellants are concerned, being distinguishable from the facts of the instant case, do not need any detailed analytical survey. For instance, Allah Yar's case (2005 PCr.LJ 83 and Kashif Ikram's case (2005 PCr.LJ 138) deal with the cases registered under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereas Hameed-urRehman's case (2005 PCr.LJ 53) deals with the case registered under sections 337-A(1), 506, 148 and 149, APC. Similarly, Qasim Ali and 2 others' case (PLD 1986 Lahore 391) deals with a civil revision petition.'
61. For the reasons listed above, the instant appeal to the extent of Liaquat Hussain convict-appellant being devoid of force is dismissed.
62. ' The reference made by the District Criminal Court is accepted and the sentence of `Qisas' awarded to him vide judgment dated 30-11-2004 is confirmed. The other sentences awarded to him under sections 341, APC and 13/20/65 Arms Act are also maintained. The impugned judgment to the extent of Muhammad Khan convict-appellant is modified in the manner that he will undergo the sentence of ten (10) years rigorous imprisonment under section 302/34, APC and the sentence of one month under section 341, APC.