ATTAULLAH KHAN, J.---Through this single judgment we propose to decide Criminal Appeal No,110 of 2007 filed by appellants Abdur Rahman and Iqbal against their conviction passed by learned Additional Sessions Judge-V, Bannu dated 29-9-2007 vide which they have been convicted and sentenced;
(1) Under section 302(b)/34, P.P.C. To imprisonment for life on two counts for charge of committing Qatl-e-Amd of Umar Khan and Jalil Khan with payment of Rs,2,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of each deceased. In default thereof further to undergo six > months' simple imprisonment each.
(2) Under section 324/34, P.P.C. To five years' R.I with fine of Rs,10,000 each for the charge of attempt to commit Qatl-e-Amd of complainant Muhammad Ayaz Khan and in default of payment of fine to undergo three months' simple imprisonment each. Under section 337-F(ii)/34, P,P.C. On two counts for causing injuries to Ismail and Kifayatullah to pay Rs,5000 each to each victim as daman. In default thereof further to undergo one month's simple imprisonment each.
(3) Under section 337-F-2(1)/34, P.P.C. For causing injures to Mst. Rifat Bibi to pay Rs,5000 each to victim as daman. In default thereof further to undergo one month's simple imprisonment each. All the sentences were ordered to run concurrently. However, benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Complainant Muhammad Ayaz Khan has filed Criminal Revision No,4 of 2008 for enhancing the sentence of accused appellants from life imprisonment to normal penalty of death and also for increasing the compensation amount. The above Criminal Appeal and Revision are arising out of the same judgment/order passed by the learned trial Court, therefore are taken together for decision, through this single judgment.
3. Succinct facts of the present case as per F.I.R. Are that on 10-5-2006 at 1835 hours, the complainant Muhammad Ayaz Khan brought the dead bodies of his son namely Jalil Khan and his son-in-law namely Umar Khan to the Emergency Room of DHQ Hospital, Bannu with the help of his grandson namely Inamullah and reported the matter to the police that on the day of occurrence at User Vela he along with his son Jalil Khan, his son-in-law Umer Khan and grandson Inamullah started to Kotka Zabta Khan for thrashing the crop and when at 1800 hours they reach Lochi Chowk of his village, saw that accused Abdur Rahman alias Numan, Abdullah armed with Kalashnikovs and Iqbal armed with .30 bore pistol were present in Veranda of Chowk. As soon they reached near them, all the accused started firing at them with their respective weapons with intent to commit their Qatl-e-Amd as a result of firing his son Jalil Khan and his son-in-law Umer Khan were hit and fell down. They being empty-handed could do nothing. After decamping the accused from the spot when they attended Jalil and Umer Khan, they both were by then expired. Motive for the occurrence, as stated by the complainant in his report, was, of beating between accused Abdur Rahman and his son Saweed Rahman. Hence F.I.R. No,234 dated 10-5-2006 registered under sections 302/324/34, P.P.C. At Police Station, Saddar District Bannu.
4. Challan against the appellants was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellants refused to plead guilty in response to the charge framed against them; therefore prosecution was directed to record its evidence to prove guilt of the accused.
5. The prosecution examined eleven witnesses during trial against the accused and then closed its evidence. Whereafter statements of accused were recorded under section 342, Cr.P.C.
6. The learned trial Court after hearing arguments of both sides convicted the accused/appellants and sentenced them as per detail given in first Para of this judgment.
7. Learned counsel for the accused/appellants contended that:--
(a) The charge framed against the accused/appellants is defective because no separate charge has been framed.
(b) The case of prosecution is based on solitary evidence of complainant who appeared as P.W.8.
According to the learned counsel this P.W. (complainant) is father of one of the deceased while father-in-law of the second deceased and also his statement is full of contradiction and also not trustworthy, therefore, conviction on the deposition of this P.W. Recorded is illegal and wrong.
(c) The injured persons were not produced but abandoned by the prosecution which has affected the prosecution case badly.
(d) No corroboration available from any independent source.
(e) There exists cross-case between the parties and it is not known as to which of the party is aggressor and which aggressed upon.
(t) Medical evidence contradicts the ocular version. (g) Motive taken in the F.I.R. Is not proved.
8. On the other hand, learned State counsel assisted by learned counsel for complainant, strongly rebutted the arguments advanced by learned counsel for the accused/appellants. They argued that though P.W.8 is the only eye-witness and also closely related to both of the deceased, yet his statement can be relied upon for reason that the defence has failed to point out any iliwill or enmity and secondly his version proved through corroboration by medical evidence and recovery of empties. They further submitted that the injured persons were abandoned because two of them were won over and rest were not necessary because the solitary eye-witness recorded his statement which is sufficient to prove the guilt of accused/appellants. Regarding cross-case they submitted that the cross-case registered by the accused/appellants would not affect the prosecution case because in the case in hand two.Persons have been murdered while five injured at hands of the accused while in the alleged cross-case only the complainant was injured and thus the events of both the F.I.Rs, suggest that the accused are aggressors while the complainant party being heavily suffered are aggressed upon. Their further contention is that the medical evidence has corroborated the ocular evidence coupled with the FSL report, according to which the empties were fired from Kalashnikovs, which was recovered from one of the accused. Regarding motive they submitted that keeping in view the ocular evidence corroborated by medical, recoveries as well as FSL report it loses its importance, moreover, the defence has failed to rebut it.
9. We have considered the arguments from both sides, in the light of evidence of prosecution and plea of defence with care and caution, which lead us to the following conclusion.
10. Keeping in view the arguments of learned counsel of the parties, the following points are before this Court for determination:--
(i) Framing of charge.
(ii) Ocular evidence.
(iii) Non-production of injured witnesses.
(iv) Medical evidence
(v) Recovery of empties and Kalashnikov.
(vi) FSL report.
(vii) Cross case.
(d) What would be the effect of acquittal of co-accused?
11. Framing of charge.--Learned counsel for the accused/appellants submitted that the charge framed against the accused/appellants is illegal as it amounts to misjoinder of charges because no separate charge has been framed against the accused/appellants. Record reveals that the trial Court has framed the charge under seven heads. The first charge is regarding murder of two deceased under section 302/34, P.P.C., the second is regarding attempting to commit Qatl-e-Amd of Muhammad Ayaz etc. Under section 324/34, P.P.C., the third to seventh charges are regarding causing injuries to different injured under sections 337-F(i)/337-F(ii), P.P.C. All these charges are framed under separate head for each offence i,e, causing murder, attempting to commit Qatl-e- Amd and causing injuries to the injured. In this case all the accused have allegedly committed more than one offence in the same transaction, therefore, may be tried and charged together. The case of framing charge against accused would be covered under section 239, Cr.P.C, which is reproduced below:-- "What persons may be charged jointly. The following persons may be charged and tried together namely,-- (a)
(b)
(c) (d) Persons accused o di l erent of ences committed in the course other same transaction;" So in view of the above provision of law, the charge has correctly been framed by trial Court against the accused/appellants.
12. Ocular evidence:---In this case the ocular evidence is consisting of statement of Muhammad Ayaz son of Muhammad Ayub, who was examined in the trial Court as P.W.8. This witness has lodged the report against the accused in the hospital duly signed by him and is available on file as Exh.PA/1. According to this witness he along with his son Jalil Khan, son-in-law Umar Khan and grandson Inamullah were proceeding for thrashing wheat through a thrasher to village Kotka Zabta Khan, when they reached near the spot at about 6-00 p.m. He noticed the accused/appellants Abdur Rahman, Iqbal and other accused Abdullah duly armed with Kalashnikovs and .30 bore pistol. When the complainant and his companion were crossing them, they started firing with which Jalil Khan and Umar Khan were hit and fell down and the accused decamped. Thereafter he went near the injured and found them dead. The report was signed by complainant. If we examine the examinationin-chief of complainant Muhammad Ayaz who was examined as P.W.8., it appears that the contents of F.I.R. Have been reiterated. This witness also witnessed the recovery of two spent bullets of 7.62.Bore, 12 empties of same. Bore and one empty of .30 bore pistol. It is also admitted fact that Muhammad Ayaz P.W.8 is the father of one deceased while father-in-law of other deceased and thus is closely related to both the deceased. In this regard general principles are that mere relationship of a witness would not mean that the witness is interested and his testimony not to be believed when he is found reliable and trustworthy. So two conditions are attached with the evidence of related witness. The first is his true deposition and the second is absence of hostility to falsely implicate the accused. We may refer to 2002 SCM R 1586, wherein it is held that:- "It is settled by this Court that mere relationship of a witness would not mean that the witness, was interested and his testimony was not liable to be believed when the same is found to be reliable, trustworthy and confidence-inspiring on the material points". As held above mere relationship of a P.W. With the deceased is no disqualification P.W. Would be reliable when he narrates the occurrence at the time of trial without exaggeration and contradiction and the absence of enmity is proved. Similar view has' been taken in case reported in 2003 SCM R 522 wherein it is held that:- "We may observe, that relationship itself is no ground to discard and discredit the testimony of eye-witness unless it is shown that they are partisan and interested witnesses. The eye-witnesses in the present case undoubtedly are related to the deceased but they have been found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration.
However, in the present case as discussed above, the ocular account is seeking ample support from the motive, the medical evidence and the attending circumstances. ". We may refer to 2007 SCM R 518, which is to the effect that relationship is not sufficient to discard the statement of interested witness. It says; "Both the Courts below after proper appreciation of evidence had given finding of fact that the aforesaid piece of evidence duly corroborated the confession made by the petitioner and his co- accused. It is also a settled law that mere relationship is not sufficient to discard the statement of the interested witnesses as laid down by this Court is Roshin's case PLD 1977 SC 557. The prosecution witnesses had faced lengthy cross-examination but the defence had failed to shake their veracity." Similar principle has been laid down in 1999 SCMR 141, wherein it is held that an interested witness in a criminal case is one, who has motive with the accused to falsely involve him in the case and mere relationship of the witness with the deceased or complainants party is no ground for disbelieving him. The same principle is adopted in case reported in PLD 2007 Supreme Court (AJ&K) 102, wherein it is held that conviction can be recorded on the basis of ocular testimony of natural and reliable witness without seeking any corroboration but the said testimony is required to be scrutinized with great care and caution. In some cases it is also held that relationship of a witness with the deceased is not alone sufficient to disbelieve his testimony. The principle laid down in the above referred case is reproduced below; "It is well-settled principle of appreciation of evidence that mere fact of witnesses being related inter se to deceased is not sufficient to discard their testimony outrightly if such witnesses otherwise found to be witnesses of truth. The witnesses found to be interested and inimical in sense of having a motive to falsely implicate innocent person from other party must be scrutinized very carefully and cautiously by the Court in order to eliminate the chances of false implication. This view finds support from a case reported as Mehtab Khan v. The State PLD 1979 SC AJ&K) 23 which reads as under:- "After studying these authorities and considering the arguments, we have come to the conclusion that:-
(a) The mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony if otherwise such witnesses are found to be witnesses of truth". The above settled principle ennunciated by Superior Court has settled the matter about the related witness. Now such witness is to be believed provided he speaks truth and his evidence is corroborated by independent source. In the case in hand the ocular evidence coincide with other circumstances of the case and it is free from any contradiction and discrepancies. The evidence is straightforward, true and confidence-inspiring. Moreover, in this case the witness was subjected to lengthy cross-examination but he remained stuck to his stand. Nothing adverse has been brought out by the defence to prove him hostile or having any ill will to falsely implicate the accused/appellants.
13. Keeping in view the quality of evidence of P.W.B. We are of the view that he can be safely relied upon.
14. Non-production of injured P.Ws.--One of the objections of defence counsel is that some of injured P.Ws. Have been abandoned while two have been declared hostile, therefore, presumption arises that had they been produced in the Court, they would have spoken truth which may go against the prosecution case.. We do not agree with this argument of learned counsel for the accused/appellants because it is settled principle of lawthat quality and not quantity of evidence is to be counted. There is no rule or law in criminal cases prescribing as to how much witnesses are to be examined. The criminal cases have always based on the evidence which is true and trustworthy. It may be consisted of a single witness. Contrary to it if a number of witnesses are produced but they are not trustworthy, then they lose their credibility and evidentiary value. We may rely on 2005 PCr.LJ 667 wherein it is held that; "It is cardinal principle of the criminal jurisprudence and is also consistent view of the august Supreme Court of Pakistan that it is the quality and not the quantity which should weigh with the Court while evaluating evidence brought from both the sides on the record. We see no mitigating circumstance in this case in appellant Muhammad Hant even or the award lesser sentence. Respectfully following the principles enunciated by the apex court of the country from time to time and conscious of the duties on the shoulders of this Court.. We find that the prosecution has proved its case to the hilt against all the three appellants." Similar principle has been acted upon in case reported in 2007 SCM R 1519. The relevant portion is reproduced as below:- "Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial. The petitioner if was satisfied that had Sadiq Hussain (the brother of the complainant) been produced at the trial would have spoken the truth in respect of the involvement of the petitioner in the case, the petitioner could have summoned the said cited witness through the process of the Court to be examined as the Court witness or in defence but no request admittedly had ever been made in such behalf; therefore, non production of the said ocular witness was not fatal to the case of the prosecution nor would it per se result in creating any substantial doubt on the prosecution case."
Case reported in 1983 SCM R 697, also supports the above view in the following words:-- "The learned counsel also laid down stress on the fact that although Gul Muhammad Inspector Police had introduced a new and different version of the same case through his report under section 173, Cr. P. C, against 6 persons, five of whom are not mentioned as accused in the F.I.R., yet the prosecution did not produce and examine the witnesses cited in support thereof. This contention overlooks the fact that it is well established that it is not incumbent upon the prosecution to produce each and every witness in the calendar of witnesses and it can drop or not examine any witness that it does not consider necessary". Keeping in view the above verdict of the superior Courts it is now settled that only one witness is sufficient' if he is truthful and his evidence is corroborated by independent source. As stated above it is the quality and not quantity of evidence is to be considered. The abandoning of two witnesses and not producing the other three injured witnesses would not affect the case of prosecution because the evidence of P.W.8 was sufficient to prove the guilt of accused/appellants.
15. Medical evidence: The learned counsel for accused/appellants is of the view that the medical evidence contradicts the ocular version to the extent of seat of injuries which is mentioned in the postmortem documents. As a ready reference we reproduce the relevant portion of the statement of Dr. Khalid Mahmood, who was examined as P.W.5.
"1 had conducted autopsy on the dead body of Umar Khan son of Muhammad Hakeem Khan r/o Kotka Zabta Khan aged about 45/50 years, brought by Azad Khan F. C No,965 and identified by lmran and Shaukat Ali Shah, on 11-10-2001 at 12-30 p.m. And found the following:-- Condition of subject:-- Middle, age, fatty and clothed man.
Wounds.
(1) One 1/4 x 1/4" FA entry wound on left side upper back close to mid-line.
(2) One 1 x 1/2" FA exit wound on right side from of chest 2" below and medial to right nipple.
(3) One 114 x 1/47 FA entry wound on lateral aspect of left upper end of arm.
(4) One 3/4 x 1/2" FA exit wound in upper en of right arm laterally.
(5) One 1/4 x 1/4" FA entry wound on left posterior axillary line at the level of 7th Intercostal space.
(6) One 1/2 x 1/2" exit wound in right lumber region posteriorly.
(7) On 1/4 x 1/4" FA entry on sacrum.
(8) One 1 1/2 x 1" exit wound on left side pubic region.
(9) One 1/4 x 1/4" FA entry wound on postero lateral aspect of left lower buttok.
(10) One 3/3 x 3/4" exit wound on anterior and medial aspect of left upper thigh.
(11)One 1/4 x 1/4" FA entry wound on lateral aspect of abdomen just about left iliac bone.
(12)One 1 1/2 x 2" FA exit wound on back right side just about right iliac bone.
(13)One 1/4 x 1/4" FA entry wound on postern lateral aspect of left mid-arm.
(14)One 1/2 x 1/2" FA exit wound on postero lateral aspect of left mid-arm 3/4" below and lateral to wound No,13.
(15)One 1/4 x 1/4 FA entry wound on antero medial aspect of left lower arm, (16)One 1/2 x 1/4" FA exit wound on antero medial aspect of left lower arm 1/2" below and medial to wound No,15.
(17)One 1/4 x 1/4" FA entry wound on posterior aspect of left lower leg.
(18)One 1/2 x 1/2" exit wound on medial aspect of left med-leg.
Cranium and Spinal Cord. Healthy Thorax. Pericordium and hear healthy; rest injured.
Abdomen. Mouth, phyranx, stomack, pancreas, liver, left kidney and organs of generation healthy; rest injured.
Muscles, Bones and Joints. Muscles injured at site of injury. Right humorous, left iliac bone, SACRUM, 6th rib on right side fractured.
Remarks. In my opinion the deceased died due to FAI to both lungs, spleen, major vessels of heard and intestines.
Probable time. Time between injuries and death 10 to 20 minutes. Between death and P.M. 01 to 03 hours.
The PM report Exh:P.W.5/1 which is correct and correctly bears my signature. The injury sheet Exh.P.W.5/2 and inquest report Exh.P.W.5/3 also bear my correct signatures and endorsements. I handed over the P.M. Copy along with Kamiz, Bunyan and Shalwar blood stained belonging to deceased to constable Azad Khan."
"On the same night 1 also conducted autopsy on the dead body of Jalil Khan son of Muhammad Ayaz aged about 22/23 years, brought by constable Azad Khan, identified by Muhammad Imran and Shaukat Ali Shah, and found the following:-- Condition of subject:-- Young, stout, small beard, clothed, rigor mortis developed. Wounds.
(1) One 2 x 2" FA graze wound on top of skull on right side brain deep.
(2) One 1/4 x 1/4" FA entry wound on right anterior axillary line at the level of nipple.
(3) One I x 3/4" exit wound on left posterior axillary line at level of 8th rib.
4. One 1/4 x 1/4" FA entry wound on right anterior axillary line at last intercastol space.
(5) One 1 x 3/4" exit wound on left side of back of chest I" below and medial to wound No,3.
(6) One 1/4 x 1/4" FA entry wound on right posterior axillary line in 9th intercastol space.
(7) One 1 x 3/4" exit wound in left mid axillary line lower chest.
(8) One 1/4 x 1/4" FA entry wound on right side back of upper chest.
(9) One 1 x 1" exit wound in umbilicus.
(10)One 1/4 x 1/4" FA entry wound in right side lower abdomen.
(11)One 1 1/2 x 1" exit wound in right side lower back laterally.
(12)One 2 x 1 1/2" FA graze wound on posterior aspect of left lower arm.
(13)One 2 1/2 x 1/2" FA graze wound in left side abdomen.
Cranium and Spinal Cord. Scalp, skull, membranes and brain injured, rest healthy.
Thorax. Larynx and trachea, pericardium and heart healthy and rest injured.
Abdomen. Mouth, phyranx, Oesoghagus, stomach, pancreas, both kidneys, bladder and organs of generations healthy; rest injured.
Muscles, Bones and Joints. Muscles injured at site of injuries. Skull, 7th, 8th and 9th ribs on left side fractured.
Remarks. In my opinion the deceased died due to FAI to brain, both lungs, liver spleen and intestines.
Probable time. Time between injuries and death:--- Instantaneous. Between death and P.M. 03 to 05 hours.
I handed over the PM report, one Kameez, one Bunyan and one Shalwar blood stained belonging to deceased to constable Azad Khan. Today I have seen the PM report Exh.P.W.5/4 which is correct and correctly bears my signature. The injury sheet Exh.P.W.5/5 and inquest report Exh.P.W.5/6 also bear my correct signatures and endorsements"
16. Perusal of statement of Dr. Khalid Mahmood as well as PM reports reveals that some of injuries are on upper back close to mid-line on lateral aspect of left upper end of arm, on left posterior axillary line at the level of 7th intercastol space, on sacrum, on postern lateral aspect of left lower buttock, on later aspect of abdomen just above left iliac bone, on postero lateral aspect of left mid-arm, on antero medial aspect of left lower arm and on posterior aspect of left lower leg. All these injured are not on the back. If we examine the seat and direction of these injuries in the light of site plan it would become clear that there is no contradiction between the ocular version and these two pieces of evidence. Moreover, human being is not a statue and move when he feels danger and in order to secure his life, he takes every step which includes change of direction, so this is not fatal. According to the medical evidence nine injuries were available on the body of Umar Khan while six on the body of Khalil Khan. Total 15 injuries were caused by firing effected by accused. The recovery of 13 to 15 empties support the number of injuries. So in this way the medical evidence corroborates the eye version of the witnesses. For sake of arguments if we believe that the medical opinion regarding level and seat of injuries is different even then it is not fatal to the prosecution case because it has been proved through ocular evidence. In such circumstances medical evidence would not prevail over ocular version. We rely on 1992 SCM R 2037, wherein it is held that: "The level of injuries as ascertained from the medical opinion is not destructive of the ocular evidence with regard to the actual firing done by the accused appellants. Such expert opinion cannot prevail over the reliable ocular evidence as held in Yaqoob Shah v. The State PLD 1976 SC 53".
Keeping in view the above discussion the medical evidence is of no avail H to the defence rather it supports the prosecution case.
17. Recoveries and FSL. In this case the recovery of empties from the spot and Kalashnikov from the house of one accused corroborates the ocular evidence regarding the weapon used and firing made by the accused. According to record, vide recovery memo Exh.P.W.8/2 two empties of 7.62 bore from place of deceased, twelve empties of the same bore from the places of accused Abdur Rahman, Abdullah and one empty or .30 bore pistol from the place of accused Iqbal were recovered by the Investigating Officer in the presence of two witnesses. Thus total fifteen empties were recovered. This recovery has been proved through evidence of P.W.8 as well as Investigating Officer. As against the number of empties the same numbers of injuries were found on the dead bodies of two deceased. Moreover, vide recovery memo. P.W.3/1 one Kalashnikov was also recovered front the house of accused Abdur Rahman in his presence. This Kalashnikov along with empties was sent for examination to the laboratory. These two items were examined and report submitted which is Exh.PK/2. According to this report the recovered empties C-1 to C-9 were fired from Kalashnikov recovered from the house of one of the accused. So the recovery of empties and Kalashnikov and its examination by the FSL are supporting the prosecution case and established that the empties were fired from the Kalashnikov recovery from the house of accused in his presence. In this way the weapon of offence has also been proved to have been used in the commission of offence by the accused.
18. Cross-case:---One of the objections of defence counsel is that there is a cross case registered by accused against the complainant under F.I.R. No,235 dated 10-5-2006 under sections 324/148/149, P.P.C. And it is not known as to which of the party is aggressor. It is true that another case under F.I.R. No,135 was registered against the complainant party for attempting to commit Qatl-e-Amd. It is noted that said case has been decided and the accused are acquitted. Meaning thereby that the evidence in that case was not proved by the accused against the complainant in the said case. We rely upon 2006 SCM R 1906, wherein it is held that: "Credible evidence was available on record to establish the said accusation against the said accused persons. In the circumstances, acquitting them all on the ground that it could not be determined as to which one of the two parties had initiated the aggression, was a grave error.
Giving such a premium to parties fighting pitched battles and butchering people in the process, could never be approved." Moreover, both the cases reveal that in the cross case only one person was injured while in the case in hand two persons were murdered and five were injured. The loss on the part of accused in this case is heavy and more than the loss suffered by complainant in the cross case.
Keeping in view the number of casualty in both of the cases we are of , the view that accused/appellants are aggressors while the complainant party in the case in hand is aggressed upon. So the existence of that case would not help the accused/appellants.
19. Motive:---The motive given in the F.I.R. Is that Saweed ur Rahman son of the complainant was beaten by Abdur Rahman accused. The eye-witness Muhammad Ayaz while appearing in the trial Court as P.W.8 has also disclosed the same motive in examination-in-chief. On behalf of accused/appellants no suggestion has been put to the witness to falsify the motive. So the motive given by the complainant party is proved through evidence of P.W.B. There is nothing on record to rebut it. We may rely on 2005 PCr.LJ 667 wherein it is held that; "As far as motive is concerned, that was never challenged by the prosecution which stands proved. Not even a single suggestion was put to the eye-witness regarding false implication of the appellants in the present case. Even in their statements recorded under section 342, Cr. P. C.
Nothing has been said which could appeal to the mind of a man of normal prudence."
20. In view of our above discussion regarding motive we are of the firm opinion that the same has been proved.
21. In short as discussed above, the prosecution has succeeded to prove the case against the accused/appellants on the strength of ocular evidence which is free from any ill will, contradiction and is trustworthy. Medical evidence coupled with recoveries and FSL report strongly corroborates the ocular version. Motive is established, therefore, in our opinion case against accused/appellants under section 302/34, P.P.C. Stands proved and they were rightly convicted and sentenced by the trial Court.
22. As far as the conviction recorded under sections 324/ 337-F(i)/337-F(ii)/34, P.P.C. Is concerned we may refer to the evidence on record. In this case five persons were injured. None of them have been produced to prove their injuries at the hands of the accused. These injured were available and alive and could be produced easily but, not produced. So in our opinion the case under sections 324/337-F(i)/ 337-F(ii)/34, P.P.C. Is not proved against the accused/appellants, therefore, conviction recorded against the accused appellants in the above mentioned sections of law is not legal and based on non-appreciation of evidence, therefore, we set aside the conviction and sentence recorded under sections 324/337-F(i)/337-F(ii)/34, P.P.C.
23. In view of our above discussion, we partially allow this appeal to the extent of sentence and conviction under sections 324/337-F(i)/IN 337-F(ii)/34 P.P.C. Which is hereby set aside while maintain the conviction and sentence under section 302/34, P.P.C. With the above modification in conviction and sentence, the appeal is dismissed.
24. As far as Criminal Revision bearing No,4 of 2008 is concerned we are of the view that the trial Court is proper forum to decide the quantum of sentence to be awarded. Learned trial Court has given sufficient ground in the impugned judgment for awarding lesser punishment to which we agree and accordingly dismiss the Criminal Revision No,4 of 2008.