' IJAZ AHMAD CHAUDHRY, J.- This judgment will dispose of Criminal Appeal No.422 of 2002 filed by Rehmat Jan, Alam Jan alias Ham Jan, Shah Wali and Gul Draz appellants against their convictions and sentences and Criminal Revision No.443 of 2002 filed by Sarfraz Khan petitioner/complainant for the enhancement of sentence .To Gul Draz respondent No.4 and also for enhancement of compensation to Rehmat Jan, Alam Jan alias Ilam Jan and Shah Wali respondents Nos.l to 3 along with Murder Reference No.266 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence as all these matters have arisen from the same judgment dated 14-3-2002 passed by the learned Additional Sessions Judge-I, Mianwali, through which he had convicted Rehmat Jan, Alam Jan alias Ilam Jan and Shah Wali (appellants) under section 302(b)/34, P.P.C. And sentenced them to death with a compensation of Rs.50,000 each payable to the legal heirs of the deceased Rab Nawaz and Matti Ullah under section 544-A, Cr.P.C. Whereas the fourth appellant Gul Draz had also been convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life with a compensation of Rs.50,000 payable to the-legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. Was also extended to Gul Draz appellant.
However, through the same judgment Rafiq Khan, Muhammad Iqbal, Sial Khan, Farooq Khan, Said Rasool, Muhammad Aslam Khan, Muhammad Hanif and Rashid Khan co-accused had been acquitted by giving them the benefit of doubt.
2. The occurrence in the present case had taken place at 2-20 p.m. On 20-7-2001, within the area of Chashmia, situate 21722 Kilometers away from Police Station Makerwal, District Mianwali and on the statement of Safraz Khan (P.W.Ll) father of Rab Nawaz Khan deceased, F.I.R. (Exh.PAA) was recorded by Ghazanfar Ali Shah Inspectbr/S.H.O. (P.W.14) on the same day at 4-00 p.m. At the said police station.
3. The brief facts as narrated in the F.I.R. (Exh.PAA) by Sarfraz Khan (P.W.Ll) real father of deceased Rab Nawaz Khan are that on the fateful day he (complainant) along with Amir Muhammad, Inayat-Ullah sons of Dariya Khan and Zafar Ullah son of Saif Ullah Khan all Patha'ns by caste, residents of the same village were present in the Baithak of Dariya Khan at about 2-20 p.m. And preparing for Juma prayers when Rehmat Jan son of Abdul Ghafoor, Ilam Jan son of Ghulam Jan, Rafiq Khan son of Muhammad Jan, Guldraz son of Ghulam Jan, Shah Wali son of Gul Khan and Muhammad Iqbal son of Gul Baig all armed with guns and Sial Khan son of Usman armed with rifle, came there, who raised lalkaras to teach a lesson for previous litigations and daily quarrels and abuses. Then Rehmat . Jan, Ilam Jan and Rafiq Khan stood positions near the water tank whereas Guldraz, while Shah Wali took the position in front of the Baithak behind the four-walls of the Baithak and houses and Sial Khan and Muhammad Iqbal stood near the eastern wall of the Baithak. They all started firing with their respective, weapons. In the meanwhile, Muhammad Aslam son of Gul Baig armed with a rifle, Muhammad Farooq son of Ajab Khan armed with a rifle, Muhammad Hanif son of Muhammad Jan armed with a rifle, Said Rasool son of Ghulam Jan and Rashid Khan son of Said Khan both armed with rifles also came there and stood behind the above said seven assailants for giving a cover to them and they also raised Lalkara that if anybody came near them, they would kill him. In the meanwhile Rab Nawaz Khan son of the complainant and Matti Ullah Khan son of Haji Dariya Khan came out of the house on hearing the noise of firing Rahmat Jan made the first fire with his gun at Rab Nawaz which hit him on the front side of the chest. The second fire was made by Ilam Jan with his .12 bore gun which hit the left armpit of Rab Nawaz and he fell down. To save him, Matti Ullah Khan deceased stepped forward. Guldraz fired with his gun at Matti Ullah which hit on his left flank. The second fire was made by Shah Wali with his gun at Matti Ullah Khan deceased which hit near the right eye-brow and he also fell on the ground. The complainant and other eye-witnesses took refuge behind the pillors of the baithak and did not dare to go near the deceased Rab Nawaz and Matti Ullah with the fear of cross-firing by all the assailants. The ladies and the children of the complainant party raised alarm, which attracted the inhabitants of the village at the spot and on seeing them all the assailants went away towards their houses while making fires with their respective weapons. By the time, the complainant and other eye-witnesses went near Rab Nawaz and Matti Ullah Khan, they had succumbed to the injuries.
4. The motive behind the occurrence was alleged that due to previous litigations and casual quarrels and exchange of abuses, some days earlier to the occurrence a Chachazad of the complainant namely Kalim Ullah had an altercation with the accused/appellants. Kalim Ullah had insulted the accused party and the immediate cause of the occurrence was the same incident.
5. After the registration of the case Ghazanfar Ali Shah Inspector/S.H.O. (P.W.14) proceeded to the'spot where the dead bodies of Rab Nawaz and Matti Ullah were lying. He prepared the injury statement Exh.PH and inquest report Exh.PJ. He also prepared the injury statement pertaining to Matti Ullah deceased ^ Exh.PE and inquest report Exh.PF and forwarded both the dead bodies under the escort of Alam Khan Constable for post-mortem examination and Khan Zaman Constable. He inspected the spot and prepared the rough sketch of the place of occurrence which is Exh.PEE. The bullet marks mentioned in the site-plan Exh.PGG were observed by him at the spot. It was prepared on the pointation of the witnesses. He collected blood-stained earth from the place of murder of Matti Ullah Khan- which was rendered into a sealed parcel and was taken into possession vide memo. Exh.PK. He also picked up blood-stained earth from the place of murder of Rab Nawaz and prepared the sealed parcel and secured it vide memo. Exh.PL. He also collected from the place where Sial Khan and Muhammad Iqbal accused pointed out to be present four crime empties of rifle and sixteen of .12 bore gun which are Exh.P10/l-4 and Exh.P.9/1-16 and after making into two sealed parcels were taken into possession vide memo. Exh.PQ. He also collected ten crime empties of China bore P. 12/1-10 and fourteen of 303 rifle P. 11/1-14 and prepared two separate sealed parcels. These crime empties were collected from the place of the presence of Muhammad Aslam.
Muhammad Farooq, Muhammad Hanif, Said Rasool and Rashid Khan accused which were taken into possession vide memo. Exh.PR. He also collected seven crime empties of .12 bore gun P. 8/1-7 whidh were picked up from the places where Gul Draz and Shah Wali accused were said to be present and after making the same into sealed parcel took into possession vide memo. Exh.PN. He also collected seven crime empties of gun ;12 bore P.7/1-7 from the place where Rehmat Jan, Ilam Jan and Muhammad Rafiq accused were present and a sealed parcel was prepared and was taken into possession vide memo. Exh.PM. All the abovesaid memos, were attested by Noor Ali Shah and Amir Aslam P.Ws. He also recorded the statements of the witnesses at the spot.
' On the same day, Alam Khan Constable after the post-mortem examination, produced before him the last worn clothes of Matti Ullah deceased viz. Shirt P.1, Shalwar P.2, Vest P.3, all stained with blood along with a sealed Phial and the same were taken into possession vide memo. Exh.PB which were attested by Alam Khan Constable. On the same day, Khan Zaman Constable produced before him the last worn clothes of Rab Nawaz deceased viz. Shirt P.4, Shalwar P.5, Bunian P.6 all stained with blood alongwith a sealed phial which was secured vide memo Exh.PC, attested by Khan Zaman Constable. He searched for the accused and they were not available. He dispatched the sealed parcel in the Malkhana for safe custody.
' On 26-7-2001 Muhammad Shafiq Draftsman visited the spot in his presence and in the presence of the witnesses took rough notes on his pointation and the witnesses and prepared the scaled site-plan Exh.PA and Exh.PAS/1 which were handed over him on 2-8-2001. He searched for the accused but they were not available.
' On 23-8-2001 he arrested Rafiq Khan, Muhammad Iqbal, Sial Khan, Farooq Khan and Said Rasool in this case and took their physical remands for the recovery of weapons. On 25-8-2001, Rafiq Khan accused while in his custody after making disclosure led to his residential house and got recovered 303 rifle P.13 along with a licence which were secured vide memo. Exh.P.S. He prepared the rough sketch of the place of recovery Exh.P.S'/1. On the same day, Sial Khan accused while in his custody led to his residential house and got recovered . 12 bore gun P.14 along with the licence which were secured vide memo. Exh.PT. Exh.PT/1 is the sketch of the place of recovery. Said Rasool accused while in police custody on the same day led to his residential Kotha and got recovered gun .12 bore double barrel P. 15 along with eight live cartridges P. 16/1-8 and the licence which were secured vide memo. Exh.PU and Exh.PU/1 is the sketch of place of recovery.
' On 26-8-2001 Muhammad Icjbal accused after making disclosure in police custody led to his house and got recovered double barrel gun P.18 along with three live cartridges P.9/1-3 which were secured vide memo. Exh.P.W. Exh.P.W./l is the sketch of place of recovery. On the same day Muhammad Farooq accused after making disclosure led to his house and got recovered gun .12 bore P.17 which was secured vide memo. Exh.PV. Exh.PV/1 is the sketch of the place of recovery.
Ameen Ullah and Saleh Khan P.Ws. Attested all the above mentioned recoveries.
' On 30-8-2001 he arrested Alam Jan alias Ilam Jan accused, Muhammad Aslam, Muhammad Hanif accused persons in this case and interrogated them. On the same day, Ilam Jan accused after making disclosure in police custody led to his residential house and got recovered gun P.25 along with five live cartridges P.26/1-5 which were secured vide the. Memo. Exh. PZ. Exh. PZ/1 is the sketch of the place of the recovery. On the same day, Muhammad Aslam accused while in his custody led to the recovery of China bore rifle P.20 along with two bullets P.21/1-2 which were secured vide memo. Exh.PX. Exh.PX/1 is the sketch of the place of recovery. On the same day, Muhammad Hanif accused while in his custody led to his residential house and got recovered the licensed gun P.22 along with Bandoliar P.23, containing 15 cartridges P.24/1-15 which were taken into possession vide memo. Exh.PY. Exh.PY/1 is the sketch of place of recovery. All these documents were attested by Hakeem Khan and Hayat Ullah P.Ws.
' On 6-9-2001 he arrested Gul Draz accused in this case and on the same day after making disclosure he led to his house and got recovered licensed gun P.27, which was secured vide memo.
Exh.P.W. Exh.P.W./l is the sketch of place of recovery which were attested by Rab Nawaz A.S.-I. And Allah Nawaz Constable. On 9-9-2001 he arrested Rehmat Jan, Shah Wali and Rashid Khan accused in this case and on the same day, Rahmat Jan accused while in his custody after making disclosure led to his residential house and got recovered licensed gun P.28 which was secured vide memo. Exh.PCC. Exh.PCG/1 is the sketch of the place of recovery. On the same day, Shah Wali accused while in police custody led to his residential house and got recovered licensed gun P.29 which was taken into possession vide memo. Exh.PDD. Exh.PDD/1 is the sketch of the place of recovery which were attested by Rab Nawaz A.S.-I. And Allah Nawaz Constable. He recorded the statements of all the recovery witnesses under section 161, Cr.P.C.
6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and their co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 14 witnesses.
The ocular account had been; provided by Sarfraz Khan (P.W.Ll) and Zafarullah (P.W.12) while the medical evidence had been furnished by Dr. Tajamal Qadeer (P.W.9) who had conducted the postmortem examination of Matti Ullah and Rab Nawaz. The investigation had been conducted by Ghazanfar Ali Shah Inspector/S.H.O. (P.W.14). The remaining witnesses are of formal in nature and need not to be discussed here.
7. After the close of the prosecution evidence the statement of the appellants along with their co- accused was recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. However, in reply to question No. 6, Gul Draz appellant made the following statement:- "I was present in the mosque. The. Complainant party fired indiscriminately and I received the injuries.. Rashid Khan my coaccused also received injuries. We were conveyed to THQ hospital Isakhel but from there we were brought back to Civil Hospital Kalabagh. I was examined by the M.O.
I remained admitted in the hospital. My clothes and X-Ray are still lying with the M.O. I never absconded or evaded arrest. My licensed weapon was taken into possession by the police from my house. I was not in possession of my licensed weapon at the time of occurrence. I was seriously injured but the police in spite of my repeated requests did not register the case of my injuries against the complainant party. Sarfraz and. Zafarullah P.Ws. Were not present at the time of occurrence. I have been involved in this case due to enmity."
' The appellant Gul Draz did not opt to make statement under section 340(2), Cr.P.C. However, he had produced Dr. Muhammad Masood Ahmad as D.W.l in his defence and closed his evidence. The remaining appellants Alam Jan alias Ilam, Rehmat Jan and Shah Wali also did not opt to giake statement under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeal.
9. The learned counsel for the appellants coiitends that both the eyewitnesses are related inter se and with the deceased closely and previous enmity also existed, who being interested- witnesses were not worthy of reliance; that the recovery of weapon was useless as though the empties had been recovered from the spot yet none of the same had been sent to the Office of Forensic Science Laboratory as there is no report of Forensic Science Laboratory and it cannot be said that the same weapons had been used in the incident by the appellants; that the eye-witnesses had involved 12 persons in the present case, who while armed with weapons had made firing and out of them eight accused had been acquitted and the same evidence could not be relied upon against the appellants without any independent corroboration which is lacking in the present case; that the motive is double edged weapon and it is proved that the complainant with mala fide intention had involved all the family members of the appellants in the present case; that the injuries on thq persons Of Gul Draz and Rashid Khan appellants had been suppressed, which were proved through the statement of Dr. Muhammad Masood Ahmad (D.W.l) and such the witnesses were not truthful witnesses; that the defence plea is more plausible and the incident had not taken.Place in the manner narrated by the eye-witnesses; that the eye-witnesses had not seen the incident, who were not present at the spot and the independent persons, who were allegedly present in the Mosque and in the vicinity had not been produced during the investigation and before the trial Court; that the prosecution case ' is doubtful and conviction and sentence of the appellants may be set aside. In the alternate the learned counsel has prayed to convert the conviction and sentence of the appellants from section 302(b) to section 302(c), P.P.C. As the injurie's had been received by both the deceased in self-defence.
10. Learned counsel for the complainant on the other hand has opposed this appeal on the ground that two persons had been murdered in this case with firearms and the injuries attributed to the appellants were borne out from the medical evidence; that the injuries on the persons of the accused were self suffered, who did not appear before the police for about 1-1/2 months, who failed to produce an/witness in this regard and also had not taken the specific plea of self-defence in their statements before the learned trial Court and that the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt.
11. The learned Additional Prosecutor General also adopts the arguments of the learned counsel for the complainant and further contends that the F.I.R. Was got registered with promptitude and names of the appellants with specific roles were duly mentioned in the F.I.R. And in the statements of the P.Ws. Recorded under section 161, Cr.P.C. And there was no reason to attribute specific injuries to the appellants if they had not caused the same.
12. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution.
13. The incident in the present case according to the prosecution had taken place on 20-7-2001 at 2-20 p,m. In front of the Baithak of the complainant Sarfraz Khan (P.W.Ll) situate within the area of village Chasmia 21/22 kilometers away from the Police Station Makarwal and on the statement of the complainant, F.I.R, (Exh.PAA) was recorded by Ghazanfar Ali Shah Inspector/S.H.O. (P.W.14) at the said Police Station the same day at 4-00 p.m. We have noticed that the post-mortem examination had been conducted by Dr. Tajamal Qadeer (P.W.6) the same night at 11-30 p.m. On the body of Matti Ullah and at 9-30 p.m. On the body of Rab Nawaz. So I there was no inordinate delay in conducting of the post-mortem by the doctor and we find nothing on the record to suggest that the F.I.R. Had not been registered with promptitude.
14. To prove the ocular account the prosecution produced Sarfraz Khai (P.W.Ll) and Zafarullah (P.W.12). Sarfraz Khan P.W. 11 was real father of Rab Nawaz deceased and Matti Ullah deceased was Chachazad of Zafarullah P.W.12 also admitted that Matti Ullah deceased was his Chachazad and Rab Nawaz deceased was son of his Chachazad. So both the eyewitnesses were related inter se and with the deceased closely. In the F:I.R. And in their statements before the Court, both the eyewitnesses frankly admitted that there was previous enmity between the parties and earlier criminal ease for attempt to commit the murder had been registered and quarrel usually used to take place between the parties. During the cross-examination on the P.Ws. It was proved that there was previous enmity between them and thus they can be termed as interested witnesses. On the other hand the incident had taken place in front of the house of the P.Ws. And they claimed that they were performing the ablution before the Juma Prayer likely to be said in the Mosque at 2-45 p.m. And the Mosque was about 300 feet away from the place where they were present and the incident had taken place before Juma Prayer. So the presence of both the eyewitnesses at the spot was quite natural and the interested witnesses can also be relied upon if they are found to have spoken the truth and their evidence is corroborated by some independent piece of evidence. No doubt the complainant and Zafarullah eyewitnesses in their statements before the police and before the trial Court had involved 12 persons including the appellants, who while armed with guns and rifles had launched an -attack on the complainant party as a result of which both the deceased had received the injuries from the hands of the appellants and about 59 empties were recovered from the spot scattered at different places. So the taking place of the incident at the place-mentioned by the P.Ws. Has been, found correct. Although it is being argued that 8 accused had been acquitted by the learned trial Court on the same evidence and the appellants may also be acquitted but we have noticed that those acquitted 8 accused who had not been attributed any injury to any of the deceased and no other person was injured' in the incident from the side of the complainant. On the other hand the appellants had attributed specific injuries to the deceased and their case according to the learned trial Court was distinguishable from the case of the acquitted accused. As such on the said principle; the appellants cannot be acquitted. .The judgment of "Feroze Khan's case" (1991 SCM R 2220). Is referred wherein the Honourable Supreme Court held that the acquittal of the accused on the extention of benefit of doubt does not necessarily mean that the eye-witnesses had either not seen the occurrence or that they had deliberately and falsely implicated the acquitted accused, but in such cases care is taken that for convicting the remaining accused, the witnesses were put to hardest test of scrutiny to see, if their testimony was corroborated by independent circumstances.
15. According to the ocular version Rehmat Jan (appellant) while armed with gun had fired on the front of chest of deceased Rab Nawaz and Shah Wali appellant fired with his gun on the right eye- brow of the said deceased. Both these injuries as per medical evidence provided through the statement of Dr. Tajamal Qadeer (P.W.6) were found on the persons of Rab Nawaz and Matti Ullah deceased and declared to be fatal. Thus, the ocular version to the extent to Rahmat Jan and Shah Wali (appellants) is fully 'supported by the medical evidence. The eye-witnesses had made consistent statements regarding the time, place of incident and the manner in which the incident had taken place and they specifically attributed injuries to Rehmat Khan and Shah Wali, which were found fatal having been declared by the doctor sufficient to cause death of Rab Nawaz and Matti Ullah in the ordinary course of nature. We have also noticed that both the eye-witnesses were subjected to lengthy cross-examination but the defence brought nothing oh the record to suggest that they had. Not witnessed the incident. From the very , first day the prosecution claimed that Rehmat Jan and Shah Wali (appellants) had caused the fatal injuries on the person of Rab Nawaz and Matti Ullah deceased respectively. During the cross- examination Dr. Tajamal Qadeer (P.W.6) though stated that there was blackening and burning on the injuries, but the same being concessional statement of Dr. Tajamal Qadeer- is over-cited by us as admittedly in the post- mortem examination report (Exh.PD) the same was not mentioned by Dr. Tajamal Qadeer and any such statement being in contradiction with the documentary evidence cannot be given any importance. On the other hand as per reports of postmortem examination-in-chief of Dr. Tajamal Qadeer none of the injuries had any blackening and the same could be caused from a long distance as claimed by the eye-witnesses. So we do not find any contradiction in the medical evidence and the ocular account regarding the participation of Rehmat Jan and Shah Wali appellants. The occurrence had taken place in broad-daylight at a place where the other people were also present and this occurrence could not go unwitnessed. The substitution of the main accused is a rare phenomenan and the learned counsel for the appellants has not been able to show us any material from the record that why both these appellants had been chosen by the prosecution to attribute the fatal injuries by letting off the real culprits. Although it is contended that the occurrence had taken place in a different manner and the injuries on the persons of Gul Draz appellant and Rashid Khan acquitted accused with firearm had been suppressed by the prosecution and D.W.l Dr. Muhammad Masood Ahmad while appearing in the Court had supported the receiving of injuries by both the said accused as they were medically examined by him on the same day. We have noticed that both the appellants Gul Draz and Rashid Khan acquitted accused had been arrested by the police on 6-9-2001 and 9-9-2001 after about 1-1/2 months of the incident.
It appears that they had not approached the police to show their innocence immediately lifter the occurrence and there was sufficient time for them to create any such evidence. Even otherwise we have perused the injuries on the persons of both the accused, which were simple in nature and also on the non-vital parts of Gul Draz and Rashid Khan. The measurement of the said injuries was also given as 1 c.m. x 1 c.m. The defence plea is also found doubtful due to the conduct of D.W.l, who appeared in the Court oh 1-3-2002 after about eight months of the incident and then produced the bloodstained clothes of both the accused. It is strange that he had kept in his possession blood- stained clothes of both the alleged injured accused for a long period to produce in the Court, which shows his interest and collusiveness with the accused party. Even otherwise the accused appeared 'before the doctor on 20-2-2001 at 7-30 p.m. After about five hours of the incident and if both the accused were seriously injured they could not cause such a period to get medical treatment. The said plea was also not raised during the investigation and no efforts were made by the accused to bring on record the medico legal reports of both the accused. Even no attempt had ever been made for registration of cross-version by moving applications to the higher police officers, if the local police had not been treating them in accordance with law. Even otherwise both the said accused in their statements under section 342, Cr.P.C. Had taken contradictory stand by stating that they received the injuries in the incident in their reply to question No.6 but in their reply to question No.7 both had denied their presence at the spot. In such facts and circumstances the defence plea is not acceptable which seems to be an afterthought story and the same camiot be used for exonerating of Rehmat Jan and Shah Wali (appellants) against whom we have found the prosecution version trustworthy and confidence inspiring. Even otherwise the defence failed to come-up with any specific plea of self-defence and it was not explained that how both the deceased had received the injuries.
16. As far as motive of the incident is concerned, the factum of previous enmity was admitted as in the year 1974 Dariya Khan Chacha/uncle of the' complainant received injuries and got registered the case against the accused party and the ill-will was going on between the parties according to the statements of the witnesses. However, Kaleem Ullah with whom some fight had taken place few days before the incident had not been produced before the I.O. Or in the Court and'-the. Said fresh motive could not be proved. However, non- existence or non-proving of motive alone cannot be taken into consideration for the acquittal of the accused or awarding lesser sentence.
17. We have already discussed that the medical evidenee fully supported the involvement of Rehmat Jan and Shah Wali ^ (appellants), who had been attributed fatal injuries to the deceased Rab Nawaz and Matti Ullah respectively. However, the medical evidence does not fully support the ocular version to the extent of Alam Jan alias Ilam Jan as in the F.I.R. The injury attributed to him with gun on the person of Rab Nawaz was described on left arm-pit of Rab Nawaz deceased but the doctor had H found the injury on the right armpit and there is contradiction between the medical evidence and the ocular account, which has created doubt regarding his participation in the occurrence. Even otherwise after the perusal of the diagram (Exh.G/1) we find that the said injury on the right armpit could be as a result of the one shot. Similarly', Gul Draz appellant had been attributed injury with gun on the left flank of Matti Ullah deceased but the Doctor .P.W.6 who .
Conducted the post-mortem examination of Matti Ullah had found that injury No.2 was "one c.m.
Long abrasion which was 3/4 c.m. Wide of left flank" and it could be caused by blunt weapon and could be as a result of fall on the ground. Moreover, the said injury had not contributed in the death of the deceased as Injury No.l attributed to Shah Wali appellant was declared sufficient to cause death. Similarly the injury attributed to Rehmat Jan on the person of Rab Nawaz I was sufficient to cause death. As such the participation of Alam Jan alias Ilam Jan and Gul Draz (appellants) has become doubtful being not supported by the medical ^ evidence and benefit of doubt has to be given to them.
18. As far as recovery of weapons, from the appellants is concerned, we have noticed that though a large number of empties according to the prosecution had been collected from the spot immediately after the incident by the I.O. In the presence of the witnesses, yet there is no evidence that such empties had been sent to the office of Forensic Science Laboratory and subsequently weapons which were recovered from the appellants had also not been sent to the office' of Forensic Science Laboratory. In such circumstances the recoveries were inconsequential as it has not been proved that the same weapons had been used by the appellants during the incident.
19. As a result of the above discussion we find that the prosecution had been able to prove the case against Rehmat Jan and Shah Wali appellants beyond any shadow of doubt and the learned, trial Court had rightly convicted them under section 302(b), P.P.C., which is maintained.
20. So far as question of sentence is concerned, we have noticed that during the occurrence the firing had been made at large scale and Rab Nawaz and Matti Ullah deceased had received the injuries on the front of chest and on the right eye-brow respectively..There is no doubt in our mind that Rehmat Jan and Shah Wali," the appellants had intention to commit the murder of both the deceased and even if the incident had taken place at the spur of moment they are not entitled to any discretionary relief by way of conversion of their death sentence to imprisonment for life as the normal punishment in a murder case is death which having been rightly imposed upon both the appellants by the learned trial Court is maintained with compensation of Rs.50,000 payable to heirs of both the deceased, but in default of payment thereof, they will undergo S.I. For 6 months each on both counts .
21. As far as case of Gul Draz and Alam Jan alias Ilam Jan appellants is concerned, we have already found the case of the prosecution doubtful to their extent. As the co-accused who have already been acquitted by the learned trial Court had not been attributed specific injuries to the deceased, the case of both these appellants is not distinguishable from them and they are also entitled to the same treatment. Consequently, both Alam Jan alias Ilam Jan and Gul Draz appellants are acquitted from the charges by extending them the benefit of doubt and convictions and sentences recorded by the learned trial Court against them are set aside. They shall be set at liberty forthwith, if not required any other criminal case.
22. In view of above discussion, Criminal Appeal No.422 of 2002 is partly dismissed to the extent of Rehmat Jan and Shah Wali and partly allowed to the extent of Alam Jan alias Ilam Jan and Umar Draz (appellants).
23. Criminal Revision No.443 of 2002 filed by the petitioner/complainant has no merit as no ground existed for the enhancement of compensation amount, which-has adequately been awarded by the learned trial Court while Umar Draz respondent has been acquitted and no question arises for enhancement of his sentence. Hence this Criminal Revision is dismissed.
24. Murder Reference No.266 of 2002 to the extent of Rahmat Jan and Shah Wali appellants is replied in the affirmative and the sentence of death awarded to them by the learned trial Court is confirmed while the sentence of death of Alam Jan alias Ilam Jan appellant awarded by the learned trial Court is not confirmed and Murder