Ijaz Ahmad Chaudhry, J.--Muhammad Ilyas and Muhammad Abbas appellants were convicted for an offence under Section 302(b)/34, PPC, vide judgment dated 28.2.2002 rendered by the Learned Additional Sessions Judge, Kasur for committing `qatl-i-amd' of Muhammad Jaffar deceased and were sentenced to death with direction to pay a sum of Rs. 50,000/- each to the heirs of the above-said deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months RI. each. Muhammad Ilyas appellant was further convicted under Section 302(b) PPC and was sentenced to death for committing `qatl-e- amd' of Allah Ditta deceased and was sentenced to death with direction to pay a sum of Rs.
50,000/- to the heirs of the above-said deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months R.I. However, through the same judgment, co-accused namely Muhammad Mushtaq, Muhammad. Salim, Tahir Ijaz, Faqeer- ud-Din and Master Ahmad Din were acquitted of the charges by the learned trial Court while extended benefit of doubt to them. Both, Muhammad Ilyas and Muhammad Abbas appellants have challenged their convictions and sentences before this Court through Criminal Appeal No. 336 of 2002 while Criminal Appeal No. 516 of 2002, has been filed by Muhammad Arshad complainant against the acquittal of Muhammad Mushtaq, Muhammad Salim, Tahir Ijaz Faqeer- ud-Din and Master Ahmad Din, and both these matters have been heard by us alongwith Murder Reference No. 248 of 2002 sent by the learned trial Court under Section 374 Cr.P.C. seeking confirmation of the sentences of death passed by the learned trial Court against Muhammad Ilyas and Muhammad Abbas appellants. We propose to decide all these matters jointly through the present consolidated judgment.
2. Concisely the facts of the prosecution's case unfolded in the F.I.R, (Ex. P-3) got lodged by Muhammad Arshad complainant (PW-10) are that on 26.9.1998 at 11.00 a.m., the complainant alongwith Mahboob Alam and Muhammad Akram (PW-9) was sitting outside his residential house.
Muhammad Jaffar (deceased) was going towards his field. When he reached near the house of Mahboob Alam, Muhammad Ryas appellant, Muhammad Salim (acquitted accused) armed with mousers and Abbas appellant armed with rifle, came out from the shelter of a wall. Muhammad Salim (acquitted accused) raised a lalkara' that they would kill Muhammad Jaffar (deceased) and simultaneously made fire hitting Muhammad Jafar (deceased) under his left eye. Ilyas appellant made fire hitting on his right cheek. Abbas appellant fired with his rifle hitting on his left breast.
Jafar (deceased) became injured and fell down on the ground. The above said persons made fires on the different parts of body of Jaffar (deceased) in a fallen position. When Jafar died and upon raising hue and cry by them, Abbas appellant and Salim (acquitted accused) ran away towards the fields by making firing. Muhammad Ilyas appellant stepped towards them. They hide themselves and ran towards the house. On the shop of Master Din Muhammad, Tahir Ijaz alias Lala (acquitted accused) armed with mousers, Mushtaq and Master Din Muhammad (acquitted accused) armed with rifles were sitting. Ilyas appellant went there and shouted that they had killed Jafar (deceased). Allah Ditta (deceased) his wife Mst. Hamidan Bibi and his daughter Mst.
Manzooran Bibi (PW-8) were also present at the saw machine to get their wood sawed. Master Din Muhammad (acquitted accused) raised a `lalkara' that his father Allah Ditta (deceased) should also be killed and he simultaneously made fire upon Allah Ditta (deceased), hitting him on right side of front of his neck. Tahir Ijaz (acquitted accused) made fire hitting. Allah Ditta (deceased) on right side of his back. Muhammad Ilyas appellant made fire hitting Allah Ditta (deceased) on his shoulder. Mushtaq (acquitted accused) made fire which hit on the nose of Allah Ditta (deceased).
Allah Ditta died at the spot.
3. The motive behind the occurrence was alleged to be that brother of Muhammad Ilyas appellant was murdered at Railway Station Kot Lakhpat three years back and case for his murder was lodged against Sadiq etc. sons of Allah Ditta. (deceased). Aggrieved by it, the above said accused have murdered Jafar (deceased) and his father Allah Ditta (deceased) and they have murdered them on the instigation/abetment of Faqeer-ud-Din (acquitted accused).
4. The investigation of this case was conducted by Badar Munir, S.I. (PW-12) and during the investigation, the dead bodies of both the deceased were inspected, injury statements and inquest, reports were prepared, statements of the witnesses under Sections 161 Cr.P.C. were recorded, the places of occurrences were inspected, blood-stained earths were secured, rough site-plans of the places of occurrence were prepared, the dead bodies were sent to the mortuary for autopsy, the last-worn clothes of both the deceased were received, formal site-plans of the place of occurrences were got prepared, the appellants and the acquitted accused were arrested and recovery of different weapon of offence was effected and after completion of the investigation a challan was submitted in the Court.
5. At the commencement of the trial the learned trial Court after supplying copies of the documents required under Section 265-C, Cr.P.C. to the appellants and the acquitted accused framed a charge under Sections 302/34/109 PPC on 28.4.2001 against them, to which they pleaded not guilty and claimed a trial.
6. During the trial the prosecution produced as many as twelve witnesses in support of its case. The ocular account of the incident in question was furnished by Mst. Manzooran Bibi (PW-8), Muhammad Akram (PW-9) and Muhammad Arshad complainant (PW-10) who also deposed about the motive while PW-11 Abdul Ghafoor stated about the hatching of conspiracy. PW-4 Muhammad Rafique, HC on the receipt of written complaint (Ex. 22) had drafted the formal. F.I.R.
(Ex. P.3). Muhammad Nasrullah, Draftsman (PW-5) on the pointing out of the PWs and on the instructions of the police had prepared the scaled site plan. The medical evidence was provided by Dr. Mumtaz Ahmad (PW-7) who on 27.9.1998 at 9.00 had conducted the postmortem examination on the deadbody of Muhammad Jafar deceased while postmortem examination on the deadbody of Allah Ditta deceased was conducted the same day at 11.00 a.m. Badar Munir, S.I. (PW-12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under Section 342, Cr.P.C., the appellants and the acquitted accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "Then why this case has been lodged against you and why the PWs have deposed against you?" Muhammad Ilyas appellant replied in the following terms: "The PWs are related interne, and inimical to me. The prosecution story is false and concocted one.
I have been involved because the complainant party is inimical towards me. My all the brothers Muhammad Abbas and Mushtaq alongwith my first cousin and my old uncle (Taya) Master Din Muhammad, have been involved in this false case. Before the said alleged concocted occurrence, the complainant party murdered my brother in which Arshad complainant of this case, and the others were the accused persons and we were pursuing that case. My whole family has been involved, in this case. I am innocent. The actual facts are that on the fateful day, I was coming from my field to the village when on the way Jaffar slain caught hold of me from the neck and took out his mouser to murder me. I grappled with him and tried to snatch the pistol which went off and hit Jafar and I succeeded in snatching the pistol. I tried to ran away but Jafar grappled with me and tried to snatch the pistol so Seeing the imminent danger to my life, I fired at Jafar and ran away from the spot. The PWs were not present. I went towards other end of the street where Allah Ditta, the father of Jafar slain was standing having mouser in his hand. He fired at me. I escaped and seeing imminent danger to my life, I fired at Allah Ditta also and snatched the pistol from Allah Ditta and made the fire at him. I threw his pistol on the spot and escaped to save my life. No PW was present at the spot. All the other accused were not present at the spot and after consultation and in connivance with police a false story has been concocted against us. I alone fired at the skins in my self-defence and in order to save my life in imminent danger to my life. The recovery has been planted upon me, and I was acquitted from that case."
In reply to the aforesaid question, co-accused namely, Mushtaq Ahmad, Muhammad Abbas, Master Din Muhammad, Muhammad Salim, Tahir Ijaz, and Faqeer Din also professed their innocence. However, neither the appellants or the acquitted accused had opted to make statements on oath under Section 340(2) Cr.P.C. nor they produced any evidence in their defence.
8. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
9. The learned counsel for the appellants contends that the same evidence of the prosecution has been disbelieved qua the acquitted accused and the same cannot be believed to the extent of the appellants as well for maintaining the conviction; that the learned trial Court had not believed the complainant and Mst. Manzooran Bibi and in such circumstances their statements are not worthy of reliance; that Muhammad Akram (PW-8) is brother of Muhammad Arshad complainant (PW-10) who was also inimical witness and his statement cannot be relied upon for maintaining the conviction; that the recovery in the present case from the possession of the appellants was legally inconsequential as the empties were recovered from the spot according to the prosecution on 26.9.1998 and had been sent to the office of Forensic Science Laboratory on 26.10.1998 while the weapons of offence had been recovered from the possession of Muhammad Abbas appellant on 15.10:1998 and the weapon of offence from Muhammad Ilyas appellant was recovered on 11.10.1998 when the empties were still lying at the Police Station and thus the report of the Forensic Science Laboratory even if positive is of no importance; that the motive had been disbelieved to the extent of the other accused and the same motive could not be believed to the extent of the appellant; that Muhammad Ilyas appellant had raised the plea of self-defence and given true version of the occurrence, which makes out the case of Muhammad Ilyas appellant that of his acquittal as he had exercised his right of self-defence or in alternative it is contended that at the most he is liable to be convicted under Section 302(c) PPC and as such his sentence may be reduced; that the prosecution had widened its net and the ocular account was in contradiction with the medical evidence as there were some injuries on the person of Jafer deceased which had blackening and those could only be caused from a close range. It is further contended that according to the defence plea raised by Muhammad Ilyas appellant he alone had committed this occurrence and there being no evidence of unimpeachable character to connect Muhammad Abbas appellant with the alleged crime, he is entitled to be acquitted.
10.On the other hand, learned counsel appearing on behalf of the complainant opposes the appeal on the ground that convictions and sentences awarded to both the appellants namely Muhammad Ilyas and Muhammad Abbas may be maintained and acquitted accused may also be convicted and sentenced as they had also participated in the occurrence; that it was a daylight occurrence which had taken place near the house of the witnesses and Mst. Manzoor Bibi (PW-8) was also present at the spot and had explained her presence and her statement had been wrongly disbelieved; that she may be believed as opinion of the police has got no evidentiary value and the police was in league with the accused party; that judgment to the extent of acquitted accused is not maintainable, and Criminal Appeal No. 516 of 2002 may also be accepted and the acquitted accused may be convicted.
11.Learned Additional Prosecutor General also opposes Criminal Appeal No. 336 of 2002 filed by both the appellants namely Muhammad Ilyas and Muhammad Abbas and also supports Criminal Appeal No. 516 of 2002 filed by the complainant for setting aside of the acquittal order of the respondents/accused while adopting the arguments of the learned counsel for the complainant.
He also contends that F.I.R. was registered without any delay in which names of the acquitted respondents were duly mentioned; that medical evidence supported the prosecution story and recovery, of weapons had been effected from both the appellants and it was mala fide of the police that it did not recover the weapons of offence from the acquitted respondents being in league with them.
12.We have heard the learned counsel for the parties at length and also game through the record of this case with due care and caution.
13.The incident in the present case according to the prosecution had taken place at 11.00 a.m. in front of the house of Mahboob Alam situated within the area of Mauza Meer Muhammad, 5 km. away towards North from Police Station Raja Jang District Kasur. According to the prosecution written application (Ex. P-22) had been produced by Muhammad Arshad complainant (PW-10) at Bus Stop Meer Muhammad Kasur Road at 12.00 noon on the basis of which formal F.I.R. (Ex. P.3) was recorded at 12.20 noon. Registration of the F.I.R. in the same manner and with such promptitude could, not be proved on the record as according to Mst. Manzooran Bibi (PW-8) the complainant remained present at the spot after the incident, when the police came at the spot and recorded the statement of Muhammad Arshad complainant alongwith other witnesses. In his statement before the police Muhammad Akram (PW-9) who is brother of the complainant (Ex. P.3) it is found mentioned that after the incident the police after some time on receiving the information had reached at the spot and inspected the place of occurrence. It is not found mentioned that the complainant had gone to lodge the F.I.R. and then returned accompanied by the police. Even otherwise, the incident had taken place on 26.9.1998 and according to the police Constable namely Zulfiqar Ali (PW-2), who had taken the deadbody to the mortuary for autopsy from the spot, the deadbody had reached the hospital at 4.30 p.m. and the doctor met them, but the post-mortem examination had been conducted on the next day. PW-3 Rashid Ahmad Constable the other witness of taking the deadbody of the deceased to hospital also claimed that the deadbody was sent to the hospital at 6.00 p.m. If the deadbodies had reached hospital on the same time given by the PWs and doctor was also available as per statement of PW-2 Zulfiqar Ali Constable, then why the post-mortem examination on the deadbody of Jafar deceased had been conducted at 9.00 a.m and on the deadbody of Allah Ditta deceased at 11.00 a.m. on the next day for which no reason had come on-the record. The delayed post-mortem examination on the deadbodies of the deceased also casts doubt in the prosecution story about the registration of the F.I.R. with promptitude. The possibility of registration of the F.I.R. after consultation and due deliberation while making preliminary investigation cannot be ruled out. Hence, such an F.I.R. cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
14. As per prosecution story, in the present case two incidents had taken place in the same vicinity.
Both the places were at a distance of about 1000 yard from each other as per statement of Badar Munir, S.I. (PW-12). To prove the ocular account the prosecution produced Muhammad Arshad complainant (PW-10), who had allegedly seen both the incidents while Mst. Manzooran Bibi (PW-8) was the eye-witness of murder of Allah Ditta deceased and Muhammad Akram (PW-9) was the eye-witness of the incident wherein. Jafar was done to death. PW-9 Muhammad Akram is brother of Muhammad Arshad complainant (PW-10) while Mst. Manzooran Bibi (PW-8) was sister of Muhammad Jafer and daughter of Allah Ditta deceased. Mst. Manzooran Bibi (PW-8) in her statement admitted that her brother Sadiq was married to the sister of Muhammad Arshad complainant (PW-10). So all the three eye-witnesses were closely related inter se and with the deceased. It is also admitted fact that Muhammad Akram brother of Muhammad Ilyas and Muhammad Abbas appellants was murdered about 3 years before the incident and in the said murder case Muhammad Arshad complainant (PW-10) and Muhammad Sadiq son of Allah Ditta deceased and brother of Muhammad Jafer deceased were accused as well alongwith others. So previous enmity between the parties also existed and the eye-witnesses can be termed as interested witnesses, whose statements cannot be believed unless those are corroborated by some independent piece of evidence on the record.
15. The motive setup by the prosecution as alleged in the F.I.R. and in the statements got recorded before the police by the eye-witnesses was the previous enmity of murder between the parties. If the incident had taken place for the above-said reason only, then Muhammad Arshad complainant (PW-10), who was an accused in the murder case of Muhammad Akram brother of Muhammad Ilyas, if was present at the spot, there was no reason for the accused to let him alive as the three accused Muhammad Ilyas, Muhammad Abbas and Muhammad Saleem while armed with mousers and rifle were alleged to have made firing and there was no impediment in their way to restrain them from causing harm to Muhammad Arshad complainant (PW-10) and Muhammad Sadiq as well. This fact casts serious doubt about the presence of the complainant at the spot.
Even otherwise, we have found that statement of Muhammad Arshad complainant (PW-10) is not worthy of reliance as during the cross-examination he stated that application (Ex: P.22) had been drafted by a person, but he was never produced before the police and this fact makes it doubtful that how the application (Ex. P.22) had been prepared for reporting the occurrence. The possibility of consultation and deliberation before getting registered the case cannot be ruled out.
Muhammad Arshad complainant (PW-10) also cannot be believed as he stated that after the first incident they had gone inside the house to hide themselves and then two accused namely Muhammad Abbas and Muhammad Saleem went to the other side while Muhammad Ilyas had gone to the side where the incident of murder of Allah Ditta deceased had taken place. We have found that there is nothing on the record to show that it Was in the knowledge of Muhammad Ilyas appellant that Allah Ditta deceased had been sitting in front of the saw machine and how Muhammad Arshad complainant (PW-10) learnt that Muhammad Ilyas appellant had gone to commit the murder of Allah Ditta deceased as no alarm had been raised by him at the time of murder incident of Jafer deceased that they had any intention to commit the murder of Allah Ditta deceased as well. The three eye-witnesses are also not found truthful as it has been admitted by the eye-witnesses that houses i.e. places of occurrence of both murders were at the path which was being used by the whole village and people before the incident had been passing from the said path. It is admitted fact that the incident had taken place in a thickly populated area and number of houses were situated around the place of occurrence but it is strange that according to the PWs none of the persons from the said houses had come out and witnessed the incident. The intention of the PWs to exclude the presence of any other independent person at the spot also is sufficient to draw an inference that the eye-witnesses were guilty conscious and they made to conceal certain facts.
16. We have also found that the medical evidence did not fully support the ocular account as according to Muhammad Nasrullah, Draftsman PW-5), Muhammad Ilyas, Muhammad Abbas appellants and Muhammad Saleem (acquitted accused) were at a distance of four feet from Muhammad Jafar deceased whereas PW-9 Muhammad Akram stated that Muhammad Jafar deceased after receiving three shots fell on the ground. This story of the ocular version cannot be believed that a person who received firearm injuries on the chest, cheek and near the eye would keep on standing till he received all the three fire shots. It is also not convincing that the three accused were at a distance of four feet as per site-plan prepared by the Draftsman as well as by the police and in the second incident it was also claimed by the complainant and Mst. Manzooran Bibi that the accused were at a distance of 4/5 feet, but it is strange that Dr. Mumtaz Ahmad, (PW- 7), who had conducted the post-mortem examination on the deadbodies of both the deceased, did not find that there was any blackening on the front side around the injuries and the said injuries on both the deceased could not be caused from the said distance. Thus the eye-witnesses appeared to be tutored one and they had not spoken the whole truth and such witnesses cannot be relied upon unless their evidence receives corroboration from some independent source.
17. The evidence of Mst. Manzooran Bibi (PW-8) and Muhammad Arshad complainant (PW-10) has already been disbelieved by the learned trial Court on valid reasons. We have noticed that Mst.
Manzooran Bibi (PW-8) who was the sole eye-witness alongwith Muhammad Arshad complainant in the murder incident of Allah Ditta deceased during the cross-examination explained that her house was at a distance of 2/3 houses from the ara machine (Place of occurrence) but the said house has not been shown in the site-plan and this story is not found correct. Moreover, she had not given any reason for her presence at the spot alongwith the deceased as she being a married woman had been residing in an independent house alongwith her husband and according to her the house of Allah Ditta deceased was two houses away from her house. However, she tried to explain that. Allah Ditta deceased alongwith her mother and herself (PW-8) had taken the wooden to the saw machine and they were sitting there. Admittedly, it was not the routine of the deceased to be present in front of the saw machine and how the accused came to know about his presence there after committing the murder of Muhammad Jafar deceased and had straightaway gone to the saw machine to commit the murder of Allah Ditta deceased. Mst. Mai, Doran Bibi (PW-8) during the cross-examination stated that Tahir Ijaz had fired from the back of her father but while making examination-in-chief in the Court and also in her statement before the police she did hot state so.
Mst. Manzooran Bibi (PW-8) and Muhammad Arshad complainant (PW-10) are also found in contradiction with each other as according to Mst. Manzooran Bibi (PW-8) Allah Ditta deceased was standing and Riaz accused was on the left side of the deceased, who then had fallen on the ground after receiving the firearm injury while PW-10, Muhammad Arshad complainant stated that Tahir Ijaz accused was a little right of Allah Ditta deceased when he was fired at from there. Even otherwise, had the eye-witnesses been present at the spot, they would not have attributed the exit wounds to Muhammad Salim acquitted accused. It is also found that the independent witnesses had not been produced before the police during the investigation to support the prosecution story.
So in such circumstances, we find that the eye-witnesses were interested being inimical, who had also made improvements at the trial on the material points and their statements being not fully supported by the medical evidence, it is not safe to rely upon their statements. The learned trial Court had rightly disbelieved the statements of Mst. Manzooran Bibi (PW-8) and Muhammad Arshad complainant (PW-10). So far as the statement of Muhammad Akram (PW-9) is concerned, he was close relative of the deceased and his real brother Muhammad Arshad complainant was involved in a criminal case we have already discussed that the F.I.R. was not got registered with promptitude and the story of the prosecution had been concocted to implicate all the family members of the accused in the present case. We are of the view that it was not possible for the witnesses to differentiate each and every weapon and describe seat of injuries received by the deceased who were illiterate persons. Hence, the ocular account furnished by the alleged eye- witnesses is not worthy of reliance and they cannot be relied upon for recording conviction and sentence in a case entailing capital sentence.
18.As far as recovery of weapons from the appellants is concerned, we have noticed that though empty had been allegedly recovered from the spot on 26.9.1998 yet the kind of the weapons of the empties had not been mentioned in the recovery memo as well as in the inspection note, which was admitted by the Investigating Officer during the cross-examination. Even otherwise, recovery of pistol from Muhammad Ilyas appellant had been effected on 11.10.1998 and from the same house recovery had been effected from Muhammad Abbas appellant on 15.10.1998. Admittedly, the said house was not exclusively in possession of the appellants and the other family members were also residing there. Moreover, the recovery had been witnessed by the police officials only and no reason whatsoever has been given for not joining the respectables from the vicinity in the recovery proceedings: Moreover, the empties had not been sent for one month to the office of Forensic Science Laboratory and had been sent to the office of Forensic Science Laboratory alongwith the weapons after showing recovery of the weapons. Even otherwise, from the spot empty of .7-MM rifle and empties of pistol were also recovered which shows that different kind of firearm weapons had been used during the incident. The positive report of the Forensic Science Laboratory in such circumstances is not worthy of reliance and it does not provide any corroboration to the prosecution story.
19.Although we have disbelieved the prosecution story, but on the other hand, Muhammad Ilyas appellant has raised the specific defence plea while making statement under Section 342, Cr.P.C., which has been reproduced in para 7 ante. According to the plea of Muhammad Ilyas appellant as well the incidents in which both the deceased had received injuries had taken place at two different places. Muhammad Ilyas appellant claims that both the deceased were aggressors and he had acted in the exercise of his right of self defence. We are unable to subscribe the defence plea raised by Muhammad Ilyas appellant, who failed to substantiate the same through any other independent witness and also did not put him to the test of cross-examination by the other party while making statement on oath under Section 340(2), Cr.P.C. We are conscious that in the absence of prosecution story, the defence plea raised by the accused should be believed or rejected in toto. The appellant has admitted his participation in the occurrence as a single accused, who made firing at both the deceased at two different places, but in a different manner.
The defence plea raised by Muhammad Ilyas appellant is not in conformity with the medical evidence and is also not bone out from the circumstances of the case. It is strange that according to Muhammad Ilyas at both the places of occurrence he had been first attacked by the deceased persons, who were armed with weapons and he after snatching the same from them had fired at them, but he did not receive even single scratch oh his body in spite of having grappled with the deceased persons. There were seven entry wounds on the person of Jafer deceased as observed by the doctor during the post-mortem examination, which could not be as a result of one shot claimed to have been made by him. Similarly, Allah Ditta deceased had also received 9 firearm injuries but of which 2 were exit and 7 were entry wounds. However, during the cross-examination the doctor explained that Injuries Nos. 4 and 5 could also be exit wounds, but he had not mentioned so. In any way these injuries could also not be caused by a single shot as claimed by the appellant it is thus clear that both the parties have not come up with true version of the occurrence. In Syed Ali Beopri's case (PLD 1962 S.C. 502) the rule was laid down by the Hon'ble Supreme Court of Pakistan that if the parties do not come with the true story, the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances. Article 129 of the Qanun-e-Shahadat Order, 1984 also lays down that the Court may presume the existence of any fact, which it think likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. We are not satisfied that the appellant had acted in the exercise of self defence, but it appears to be a case of target killing in which son and father inter se killed one after the other at two different places while making reckless firing at them. According to the Investigating Officer the distance between both the places was about one kilometer. It was a broad daylight occurrence committed in a thickly populated area and it could not go unwitnessed, but Muhammad Ilyas appellant failed to produce even a single person from the vicinity to substantiate his defence plea. He even did not receive a single scratch during the occurrence. The circumstances of the case and the medical evidence fully establish that it was a case of intentional murders committed by Muhammad Ilyas appellant in a brutal manner. The previous enmity existed between the parties. We see no mitigating circumstances in the present case for awarding lesser sentence to Muhammad Ilyas appellant, who was responsible for committing this occurrence in a preplanned manner. As such his A conviction and sentence recorded by the learned trial Court plus compensation payable to the heirs of both the deceased is maintained, but in default of payment thereof he will undergo simple imprisonment and not rigorous imprisonment. Criminal Appeal No. 336 of 2002 to the extent of Muhammad Ilyas appellant is partly dismissed.
20. So far as case of Muhammad Abbas Appellant No. 2 is concerned, we have already disbelieved the prosecution story and there are no circumstances on the record to suggest that Muhammad Abbas appellant had participated in the occurrence. Thus the impugned conviction and sentence of Muhammad Abbas appellant recorded by the learned trial Court through the impugned judgment is set aside and he is acquitted by extending him the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case. Criminal Appeal No. 336 of 2002 to the extent of Muhammad Abbas appellant stands partly accepted.
21. Consequently, Murder Reference No. 248 of 2002, to the extent of Muhammad Abbas appellant is replied in the negative and death sentence awarded to him is not confirmed, but to the extent of Muhammad Ilyas appellant it is replied in the affirmative and the death sentence on two counts awarded to him by, the learned trial Court is hereby confirmed.
22. So far as Criminal Appeal No. 516 of 2002 filed by Muhammad Arshad complainant against the acquittal of Muhammad Mushtaq, Muhammad Salim, Tahir Ijaz, Faqeer-ud-Din and Master Ahmed Din, respondents-accused is concerned, suffice it to say that in the preceding paragraphs we have disbelieved the prosecution story and convicted Muhammad Ilyas appellant only on the defence plea raised by him. As such we find no reason for interference with the acquittal order of the respondents-accused made by the Learned trial Court, which is maintained and Criminal Appeal No. 516 of 2002 is dismissed having no merits.