' AKHTAR ZAMAN MALGHANI, J.--- By this common judgment we intend to dispose of Criminal Appeal No,64 of 2006, Murder Reference No,16 of 2006 and Criminal Appeal No,65 of 2006 as identical questions of facts and law are involved in both the appeals and Murder Reference.
2. Briefly stated, facts of case are that on 10-1-2005 a case under section 302/34, P.P.C. Was registered in Police Station Dera Allah Yar on the report of Sana Ullah vide F.I.R. No,7 of 2005 wherein it was alleged that on the said date he along with his brother Ramzan and cousin Allah-ud-Din came out of their house in order to, go to Jacobabad and when at about 3-45 p.m. They reached near water bridge situated near to their village, they saw Ali Jan armed with T.T. Pistol and Mir Hassan with shot gun present there. At a short distance Abdul Nabi and Abdul Karim were also present who directed Ali Khan and Mir Hassan to murder them whereupon Ali Khan and Mir Hassan opened fire with their respective weapons resulting in injuries to Ramzan and Allah-udDin whereas he jumped into the watercourse in order to save his life. In the meanwhile Bukhsh and Pandhi also came out of their houses and saw the culprits firing whereafter they escaped towards south.
Motive behind the occurrence was stated to be allegations of "Siyah Kari",
3. After registration of case investigation was carried out by P.W.7 Sikandar Hayat S.-I. Who proceeded towards the place of occurrence where he prepared site plan Exh.P.7/A and inquest reports of deceased Exh.P.7/E and Exh.P.6/C. He also secured blood-stained earth from the place of occurrence and recovered six empties of T.T. Pistol and five empties of shotgun. After recording statements of witnesses and dispatching dead bodies to mortuary he went to the house of appellants and arrested them. During investigation he also secured blood-stained clothes of deceased and it is stated that he recovered crime weapons at the instance of appellants. After receipt of F.S.L. And Arms Expert's reports he submitted challan against appellants.
4. On commencement of trial charge was read over to appellants, to which they pleaded not guilty where after prosecution produced following witnesses:---
(i) P.W.1 examined the dead bodies of Muhammad Ramzan and Allah-ud-Din and found following injuries on their persons:- Injuries of Muhammad Ramzan
(i) Circular entrance wound about 1 c.m. On left temporal region.
(ii) Circular entrance wound about 1/2 c.m. On back and blow the left ear. Exit wound about 2 c.m.
On the right mandible.
(iii) Two circular pellet the entrance wound on epigastric region about 1/3 c.m. With black margin with mark of burn hair. Exit wound on back of the abdomen (on same back of epigastric region).
(iv) Circular pellet entrance wound about 1/3 c.m. With black margin. Mark of burn abdominal hair just 2 c.m. Above the epigstric region:Exit wound on same area of back of abdomen.
(v) Circular pellet entrance wound on right side of the chest above 5th intercostals space about 1/3 c.m. And exit wound on same area of back of the chest.
(vi) Circular pellet entrance wound about 1/3 c.m. On left nipple. 'Exit wound on same area of back of the left side of the chest.
Injuries of Allah-ud-Din
(i) Circular entrance wound about 1/2 c.m. On the left side of the sternum.
(ii) P.W.2 Sana Ullah deposed that on 10-1-2005 at about 3-45 p.m. He along with his brother Ramzan and Allah-ud-Din came out of the house in order to go to Jacobabad and when they reached near watercourse they saw Ali Khan armed with pistol and Mir Hassan armed with shot gun standing there. At a short distance Abdul Karim and Abdul Nabi were also present holding shot guns who directed Ali Khan and Mir Hassan to kill the enemies whereupon Ali Khan and Mir Hassan started firing with their respective weapons due to which his brother Ramzan and cousin Allah-ud- Din after sustaining injuries fell on the ground whereas he jumped into the watercourse in order to save his life. In the meanwhile Bukhsh and Pandhi also came at the spot. According to him his brother and cousin were murdered because Ali Khan had declared his brother Ramzan "Siah Kar" with his wife.
' In cross-examination he deposed that Police Chowki was situated at about 20-25 paces from the seem "Shakh" whereas his house was situated at about 20-25 paces from the place of occurrence.
He admitted that Pandhi was his cousin and Bukhsh was son of his cousin. He admitted that Pandhi was also residing in Jacobabad. Voluntarily stated that on the day of occurrence he was residing in Goth where he also owned a house. He further stated in cross-examination that appellants were his relatives as the father of appellant Mir Hassan and his father were cousins.
(iii) P.W.3 Pandhi deposed that on 10-1-2005 at about 3-45 p.m. He was present in his house when, he heard firing reports whereupon he came out and saw Ali Khan and Mir Hassan armed with T.T.
Pistol and shotgun firing at Ramzan and Allah-ud-Din. Abdul Nabi and Abdul Karini were also present armed with shotguns exhorting "Lalkara". He further stated that Sana Ullah in order to save his life jumped into the watercourse whereafter the culprits ran away towards south. He, Bukhsh and Sana Ullah went to Ramzan and Allah-ud-Din and found them dead thereafter Sana Ullah proceeded for report whereas they remained near the dead bodies. In cross-examination he denied the suggestion that he and Bukhsh were resident of "Katoo" Village situated in Jacobabad.
He further stated that house of appellants was situated at 7-8 paces from place, of occurrence whereas his house was at a distance of 20-25 paces. P.W.4 Abdul Khair deposed that police inspected the site in his presence and secured blood-stained earth, five empties of .12 bore and six empties of T.T. Pistol through seizure memos, which were signed by him.
(iv). P.W.5 Ghulam Sarwar, Constable deposed that on 23-1-2005 at about 10 a.m. Mir Hassan disclosed about shot gun whereupon he was brought to his house situated in Goth Durrani Khan where he produced a double barrel shot gun after taking it out from the roof which was taken into possession through Exh.P.5/B, signed by him. He further stated that on the same day at about 3 p.m. Ali Khan also disclosed about T.T. Pistol, which he produced after digging it out of the earth, which was taken into possession through seizure memo. Exh.P.5/D.
' In cross-examination he stated that no private person was associated at the time of recovery. He further stated that house of appellants was situated at about 2-3 furlong from Goth Durrani. He admitted that both the recoveries were made from the same house.
' P.W.6 Muhammad Dost is witness to seizure of blood-stained clothes of deceased Allah-ud-Din and Ramzan.
' P.W.7 Sikandar Hayat is Investigating Officer who prepared site plan, inquest report, secured blood-stained earth, empties of shot gun and T.T. Blood-stained clothes as well as T.T. Pistol and shot gun statedly on the disclosure and instance of appellants. He sent blood-stained articles as well as emptes and crime weapons for expert opinion and after receipt of opinion submitted challan.
' In cross-examination he stated that place of occurrence was situated at a distance of more than two furlongs from the house of complainant whereas distance of appellants' house was about 30- 35 paces.
5. At the end of prosecution evidence appellants were examined under section 342,Cr.P.C. Wherein they denied all the allegations. They did not opt to give statement on oath, however; produced two witnesses. D.W.1 Shafi Khan and D.W.2 Murad Bukhsh in defence who deposed that on the day of incident they came out of their house after hearing firing reports and found Allah-ud-Din and Ramzan dead whereupon they informed in their home.
6. On conclusion of trial learned Sessions Judge, Dera Allah Yar found the appellants guilty under section 302(b) and sentenced them as under:---
(i) Appellant Mir Hassan was sentenced to life imprisonment. He was also directed to pay Rupees one-one lac as compensation to legal heirs of deceased or in default to further undergo two-two years' R.I.
(ii) Appellant Ali Khan was sentenced to death on two counts and was also directed to pay Rupees one-one lac as compensation to legal heirs of deceased or in default thereof to further undergo six months' S.I.
(iii) Mir Hassan was also found guilty under section 13-E, Arms Ordinance, 1965 for possessing unlicensed shot gun and sentenced to two years' R.I. With fine of Rs,500 or in default thereof to further undergo two months' S.I.
7. We have heard learned counsel for appellants as well as learned State Counsel. Learned counsel for appellants vehemently contended that the prosecution had implicated father and three' sons in the commission of offence indicating that the prosecution had not come with true version. He further argued that Police Chowki was situated at about 20-2.5 paces but no one from Chowki came at the spot, which also created doubts in prosecution version. According to him P.W. Pandhi was resident of Jacobabad, as such; his statement was liable to be ruled out of consideration whereas story narrated by complainant Sana Ullah was unnatural and unplausible because had he been present at the spot the culprits would not have spared him. Similarly arrest of appellants from bushes near their house was unnatural. The learned counsel vehemently contended that the recovery was made after 13 days of arrest of appellants, which was not believable particularly when the'witnesses had made material contradictions in respect of mode of recovery. He also " argued that the motive set up was not established creating doubts in prosecution version based on testimony of interested witnesses. In support of his contentions learned counsel referred to judgments reported in 1996 SCMR 777, 1998 SCMR 25, PLD 1974 Quetta 28 and 2001 SCMR 424.
' On the other 'hand learned State counsel supported the judgment and contended that ocular testimony corroborated by medical evidence as well as recovery of crime weapon at the instance of appellants and positive report of Fire-arm Expert were sufficient to sustain conviction and appellants were rightly found guilty by the learned trial Court.
8. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as evidence on record with their assistance.
According to prosecution version on the fateful day complainant Sana Ullah along with deceased Ramzan and Allah-ud-Din came out of their house in order to go to Jacobabad and when they reached at water bridge situated at a distance of 20-25 paces from their village, appellants in furtherance of common intention along with absconding accused made firing upon them resulting in death of Allah-ud-Din and Ramzan. So far homicidal death of Allah-ud-Din and Ramzan is concerned, the defence has not seriously disputed which is even otherwise proved by evidence of P.W.1 Dr. Siri Chand who examined the dead bodies and found that Muhammad Ramzan had sustained six injuries and Allah-ud-Din one injury. According to him cause of death of both the deceased was severe firearm injuries to vital organs. It may be noted that according to P.W.1 as well as medical certificate deceased Ramzan sustained bullet and shot gun injuries but the question arises as to who were culprits who committed murder of deceased. According to prosecution version appellants murdered the deceased by resorting to firing by means of T.T. Pistol and shot gun. It is alleged that Ali Khan was armed with T.T. Pistol and Mir Hassan with shotgun. In order to prove the accusation prosecution relies upon the ocular testimony of P.W.2 Sana Ullah and P.W.3 Pandhi as well as recovery of crime weapons at the instance of appellants, positive Fire-arm Expert's report, coupled with other circumstantial evidence such as medical evidence, recovery of bloodstained earth and clothes etc. P.'W.2 Sana Ullah claimed to have been accompanying the deceased at the time of occurrence and according to him when he and deceased Allah-ud-Din and Ramzan reached near watercourse appellants who were already present there armed with T.T.
Pistol and shot gun made firing upon them due to which both deceased sustained injuries and fell down whereas he in order to save his life jumped into the watercourse. Undisputedly the place of occurrence is situated at about 20-25 paces from the village Goth Suleman where both the parties were residing, therefore, presence of P.W.2 Sana Ullah along with deceased could not be doubted particularly when he lodged report with promptitude at Police Station Dera Allah Yar situated at 8-9 kilometers. The learned counsel contended that his statement was not logical but improbable as according to him in order to save his life he jumped into the watercourse whereas site plan Exh.P.7/A indicates that the appellants were also present near watercourse, therefore, it was easy for them to have not spared him but we were not impressed by the arguments of learned counsel as according to statement of this witness the appellants were present at the bridge of watercourse and not in the watercourse. Secondly the Courts have never considered site plan as a substantive piece of evidence to contradict the witnesses nor on the basis thereof straightforward and confidence-inspiring evidence of any witness could be discarded particularly when P.W.7 Sikandar Hayat failed to disclose on whose pointation it was prepared. If any authority is needed we may refer to the judgment PLD 1980 SC 185 wherein it was observed as under:- ' We have heard, me Muhammad Ishaq Khan Kundi, the learned counsel for the appellant and Sahibzada Munir Akhtar, the learned Assistant Advocate-General for the State. The only contention urged by the learned counsel for the appellant was that the prosecution story, as initially unfolded in the dying declaration of the deceased, was subsequently materially changed, therefore, the trial Judge, as well as the High Court both were in error in condemning the appellant. In support of his contention he repeatedly referred to the site plan, but we had to remind him that in the first place the site plan is not evidence, and in the second place, the same has been prepared by A.S.-I.P.
Mudassar Shah (P.W.10) but in his evidence, however, he has not said a word as to on the pointation of which P.W. He had prepared the same. In this view, reliance upon the site plan is, therefore, misconceived."
9. Similarly non-arrival of any police official from Chowki situated near to place of occurrence would not make his statement doubtful. His statement is further corroborated by evidence of P.W.3 Pandhi who is an independent witness being related to both the parties which fact was not disputed by appellants in cross-examination. His presence at the place of occurrence also could not be doubted as his house is also situated at about 20-25 paces from the place of occurrence and it was natural for him to have come out of house after hearing firing reports. The defence attempted to establish that he was resident of Jacobabad and not of Goth Suleman but failed to substantiate such fact. The fgt that his statement was recorded at the spot by Investigating Officer further proves that he was present at the place of occurrence and not a made-up witness as his presence at the spot is further proved by presence of his thumb-impression over the inquest report Exh.P.7/C which was prepared at the spot by P.W.7 Sikandar Hayat who stated so in his examination-in-chief which was not disputed in cross-examination. The prosecution also alleged that during investigation appellants disclosed about respective weapons carried by them at the time of occurrence, which were recovered at their instance. In this regard prosecution produced P.W.5 Ghulam Sarwar and P.W.7 Sikandar Hayat. According to whom T.T. Pistol was recovered at the instance of Ali Khan and shot gun on the pointation of appellant Mir Hassan. Though both the witnesses are police officials and no private person was associated to witness the recovery but such fact alone was not sufficient to discard the recovery as recovery was made at the disclosure and pointation of appellants within the meaning of Article 40 of Qanun-e-Shahadat Order, 1984 and provisions of section 103, Cr.P.C. Were not attracted in such-like cases. In this regard we are fortified by the judgment reported in 1995 SCMR 614. Wherein it was held as under:--- "In the instant case the appellant had led the police to his house and pointed the place wherefrom gun was recovered. Neither search warrants were issued by Magistrate for the search of house of the appellant nor the police had searched his house/place of its own. The plain reading of section 103, Cr.P.C. Would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of accused. The recovery ,to be made on pointation of the accused is relevant under Article 40 of Qanun-e-Shahadat, 1984. The association of two respectable inhabitants of locality is not required in a case where the accused himself leads the police party to a particular place and gets the articles recovered."
10. The learned counsel argued that the evidence of these two witnesses was liable to be discarded on account of material contradictions as according to P.W.5 Ghulam Sarwar appellant Mir Hassan got recovered the shot gun after climbing over the roof whereas according to P.W.7 he did not climb over the roof but took out the shot gun by standing on the ground which contradiction, in our considered view, is of a trivial nature and would not damage the intrinsic value of their testimony when they have corroborated each other oh all material particulars such as time, place of recovery, nature of weapon, recovery at the instance of appellants. It may further be noted that the crime weapons recovered at the instance of appellants were sent to Fire-arm Expert along with empties secured from the place of occurrence who found the empties to have been fired from T.T.
Pistol and shot gun as is evident from his report Exh.P.7/G.
11. Another piece of evidence which corroborates the ocular testimony furnished by P.W.1 and P.W.2 is motive which according to prosecution version was "Siah Kari" and in this regard P.W.2 Sana Ullah deposed in examination-in-chief that his brother and cousin Allahud-Din were murdered because appellant Ali Khan declared his wife "Siah Kar" with his brother Ramzan which fact was not disputed in cross-examination; thereby admitting the motive. Similarly medical evidence also corroborates ocular evidence as it was confirmed by the medical evidence that deceased Ramzan sustained bullet as well as shot gun injuries.
12. Learned counsel referred to several judgments in support of his contention but after having gone through the said judgments in our view the same are not applicable to the peculiar facts and circumstances of the case. In the judgment reported in 2001 SCMR 424 the Honourable apex Court held that basic principle of reappraisal of evidence in criminal cases is that if a witness is trustworthy and reliable then conviction could safely be based on his evidence. However, when his evidence is unreliable the same cannot be utilized for passing of conviction against the accused. In the same judgment it was also held that the site plan looses its evidentiary value if it is not prepared on the pointation of a witness.
13. Similarly the Honourable apex Court observed that evidence of a chance witness in a criminal case can be accepted it he successfully established his presence at the place of incident otherwise Court is to find out strong corroboration to his statement in order to make it admissible.
In the instant case firstly P.W. Pandhi could not be termed as a chance witness as his house is situated near to place of occurrence; secondly the statement of P.W.2 Sana Ullah corroborates his statement.
14. Judgment reported in 1997 MLD 1463 pertains to a case registered under Articles 3/4, Prohibition (Enforcement of Hudood) Order, 1979 wherein bail was granted to the accused and same is at all not applicable in the instant case.
' The case reported in 1996 SCMR 777 is about educational institution.
' Whereas in the judgment reported in 1998 SCMR page 25 the Honourable apex Court observed that Courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some independent and unimpeachable piece of evidence or circumstance in the case whereas in the instant case both the eyewitnesses could not be regarded as interested witnesses as they have no personal motive or interest to falsely implicate the appellants in the commission of offence. P.W.3 Pandhi was not only related to complainant party but also to appellants being their cousin whereas motive was against deceased Ramzan and not against P.W.2 Sana Ullah.
' Similarly judgment reported in 1997 MLD 1463 is also distinguishable. Even if disclosure of appellants is ruled out of consideration the pointation of place by appellants where crime weapons were hidden and recovery of same from that place was sufficient to prove recovery against appellants as held in the judgment reported 1971 SCMR 412.
15. In view of above discussed factors, in our considered view, ocular testimony of P. W.1 and P.W.2 corroborated by recovery of crime weapon, positive reports of Fire-arm Expert, motive and medical evidence proved guilt of appellants beyond any doubt whereas defence version based on testimony of D.W.1 Shafi Khan and D.W.2 Murad Bukhsh was neither natural nor probable. If they were first to reach at spot then why they had not reported the matter to police or recorded their statements when police reached at the spot. It also appears unnatural for both of them to go to the home of complainant party to inform them leaving behind the dead bodies unprotected.
16. The learned Sessions Judge has also forwarded reference for confirmation of death sentence of appellant Ali Khan. It may be noted that both the appellants were alleged to have made firing upon deceased with their respective weapons but the learned Sessions Judge while awarding death sentence to Ali Khan sentenced the appellant Mir Hassan to imprisonment for life though both of them committed offence in furtherance of common intention and their participation in the crime was equal and undistinguishable. The learned Sessions Judge found age of appellant Mir Hassan, who is stated to be about 60 years old as mitigating circumstances for not awarding capital punishment which ground, we afraid, was not available to the learned Sessions Judge as old age has never been considered to be a mitigating circumstance to withhold normal penalty of death.
In this regard we may refer to the judgment reported in PLD 2001 SC 90, however, the State or complainant party failed to file any revision for enhancement of sentence, therefore, keeping in view rule of consistency we are not inclined to confirm death sentence of Ali Khan. In this regard we are fortified by the judgment reported in PLD 1970 SC 447 wherein it was held as under:--- "In the administration of criminal justice, Courts have a wide discretion in awarding sentence, which has to be exercised judiciously according to the circumstances of each case. For murder offence, this discretion is restricted to the choice of alternative sentences of death or life imprisonment/death being the normal sentence unless mitigating circumstances exist to justify the awarding of the lesser sentence...."
As such; we convert death sentence of appellant Ali Khan to imprisonment for life. It may further be noted that Mir Hassan, was awarded two years' R.I. On each count, in default of payment of compensation which sentence in the light of provisions of section 554-A, Cr.P.C. Was illegal, as such; we alter the sentence awarded to appellant Mir Hassan in default of payment of compensation from two years' S.I. On each count to six months' S.I. On each count. Except above modification in the quantum of sentence appeals are otherwise dismissed on merits and murder :reference is answered in negative.