1. MUHAMMAD AFZAL ZULLAH, J.-These two matters Criminal Appeal No. 188 of 1977 and Criminal Review Petition No. 6-R of 1981 arise out of the same case. They are being disposed of together.
2. Appellants, namely, Khushdil, his brother Muhammad Anwat, and his relations Sardar and Muhammad Nawaz were tried for the double murder of Sain Muhammad and latter's sister Mst. Bibi Nargas, close relations of Khushdil. They were found guilty and each was, sentenced to death as also fine. Compensation was also awarded to the heirs of the deceased. Their appeal in the Peshawar High Court failed and sentences of death awarded to them were confirmed. By order, dated 15-10-1977, Special Leave to Appeal was granted to examine the question of sentence in so far as Khushdil, Anwar and Nawaz appellants are concerned, and with regard to Sardar appellant, leave was granted also to examine the correctness of his conviction.
3. During the hearing of the appeal, when examining the merits of the convic--petition of Sardar appellant, a question arose that if the evidence is not found sufficient for maintaining his conviction, whether it would react on the finding of guilty recorded against any of the other appellants and whether in view of the limited question on which leave was granted to them namely, sentence, this Court could examine the merits of their conviction. It was in this background that Criminal Review Petition No. 6-R of 1981 was filed by appellants for review of the leave granting order so as to leave the entire case open for examination of the correctness of conviction (as also sentence) of all the appellants.
4. Pir Muhammad Khan, a brother of the two deceased who is not only an eye-witness but also the first informant when recording his deposition at the trial stated that "Khushdil and Muhammad Anwar accused are brothers inter se. Mother of Sardar accused is a distant aunt of Khushdil accused. Muhammad Nawaz accused is sister's son of Khushdil and Muhammad Anwar accused. Sain Muhammad deceased, was my real brother while Mst. Nargis deceased was my real sister. Gut Rehman P. W. Is married to my sister. Mst. Bibi Gut Taj is the widow of Sain Muhammad deceased. Khushdil and Muhammad Anwar are my first cousins. Gut Rehman son of Bahadur P. W. Is brother of my mother. On the day of occurrence (29-12-1975) at about 9 30 a.m. Sain Muhammad, Bibi Nargis, the two deceased, Mst. Gut tai Bibi and Gut Rehman P. Ws., with myself had gone to attend the marriage of a daughter of Gut Rehman son of Bahadur at "Gull Bagh" at a distance of 2 miles from our village. It may be 2J miles. After participating in the function and taking the meals we left for our village on foot at about 2 p.m. We reached village Trangri Pain. My deceased brother and deceased sister were ahead followed by my sister-in-law Mst. Gut Taj, my brother-in-law, Gut Rehman son of Qazi Ahmad P. W. And myself. Gut Rehman son of Qazi Ahmad and I were chatting on the way. We bad hardly passed by a hotel when the four accused, namely Khushdil, Muhammad Anwar, Sardar and Muhammad Nawaz appeared from the edge of the road. They bad guns and pistols and started firing on us. As a result of their firing Sain Muhammad deceased and Mst. Bibi Nargis alias Gul Bibi, were hit and died on the spot. The accused ran away towards Naikot. The motive . For the offence is that Khushdil accused was asking for the hand of Mst. Bibi Nargis deceased. As Khushdil accused was unemployed and a vagabond, therefore, Sain Muhammad deceased was not prepared to allow this proposal. The murder was on account of that frustration. I was examined by the Police after my F. I. R. Muhammad Nawaz and Muhammad Anwar had Tamanchas and they fired and killed Sain Muhammad deceased, Kbushdil accused was armed with a rifle while Sardar accused had a Tamanchas and they fired on and killed Bibi Nargis deceased. I straightaway hastened to the police station and lodged my report." t a addition to Pir Muhammad Khan, Gut Rehman P. W., a brother-in--llaw of the deceased was examined by the prosecution as an eye-witness, Another eye-witness, namely, Mst. Gul Taj Bibi widow of Sain Muhammad deceased was given up as unnecessary. Although there was no incriminating recovery from any of the appellants, some recoveries made from the spot by the investigator with regard to which due evidence was led at the trial, have some bearing. They are a 7-mm. Crime empty. Two bullet pieces were extracted from the two dead bodies. The bullet recovered from the dead body of Mst. Bibi Nargas weighed 137 grains while the one extracted from the dead body of Sain Muhammad weighed 68 grains.
5. Apart from the evidence relating to motive and these recoveries the prosecution also led evidence regarding abscondence of Muhammad Anwar appellant till 2-2-1976. The defence plea was of total denial except that the inter se relationship of the appellants was not denied and the relationship with the deceased was not admitted to be close. The explanation offered for implication in the case was that the witnesses had not actually seen the occurrence and that they had falsely implicated the appellants. No evidence was led in defence.
6. The learned trial Judge, while placing implicit reliance on the testimony of the two eye-witnesses, which he thought was corroborated by medical evidence, found the appellants guilty. When dismissing the appeal and confirming the sentences of death, a Division Bench of the High Court found the eye-witness account given by Pir Muhammad Khan and Gut Rehman P. W., as reliable.
7. The abscondence of Muhammad Anwar appellant was also taken note of; the delay in the F. I. R.
8. Was not considered fatal; and the criticism that the medical evidence contradicted the eye- witnesses was not accepted as valid.
9. When dealing with the last-mentioned question, the learned Judges observed as follows :- "(12) The submission of the learned counsel for the appellants that the number of injuries on the person of two deceased do not conform with the number of the accused appellants needs careful consideration. The perusal of the site plan and the evidence of lady Dr. Tanvir Ch. (P. W. 1) who bad conducted autopsy on the dead body of Nargis Bibi and Dr. Wahab (P. W. 4) who had performed P.
10. M. Examination on the dead body of Sain Muhammad coupled of course with the ocular evidence, would reveal that according to the two eye-witnesses Nargis Bibi was fired at by Khushdil accused with rifle and Sardar, who was armed with a tamancha. This version of the two eye--witnesses though gets corroboration from the site plan but is con--tradicted -by the medical evidence inasmuch as both the entrance wounds on the person of Nargis Bibi are bullet injuries fired from a rifle. This fact is supported by the recovery of one freshly fired empty of 7 mm. One miss and to live cartridges of 7 mm. From point No. 8 where Khushdil accused had been shown to be present at the time of occurrence. This fact is further supported by the recovery of bullet weighing 137 grains from the corpse of Mst. Nargis Bibi obviously, recovered from Injury No. 1 because the second injury has got its exit. Now it could very. Conveniently be argued and has been done so that no pistol injury has been found on the person of Nargis Bibi and, therefore, the role attributted to Sardar is false.
11. We have given our careful consideration to this aspect of the matter and we must say that the defence has miserably failed to exploit this question and in any case this accused, namely, Sardar cannot take any such benefit because firstly, he has been directly charged in the F.1. R. By Pir Muhammad P. W. 7 and subsequently in the trial Court both the eye-witnesses had directly charged him for the crime in question when they had no grudge against the accused appellant Sardar to implicate him falsely and secondly from the evidence on record it has been proved beyond any shadow of doubt the factum of existence of common intention of this appellant with the other appellant for the crime in question and as such by applying section 34, P. P. C. He has rightly been roped in for the commission of the offence:"
12. Learned counsel for the appellants has with vehemence contended that there was no question of the success or otherwise of the appellants and/or their counsel to, what the learned Judges thought, "exploit" a vital circum--stance appearing in the prosecution evidence, to their benefit. It was the duty of the High Court when examining the case for confirmation of death sentence as also for deciding the criminal appeal to give effect to the weakness in the prosecution case which had not only been highlighted by the defence but was also noted in the afore quoted observations.
13. WHO WERE ARMED WITH TAMANCHAS AND RIFLES AND THEY AT ONCE FIRED AT THEM to the F. I. R., there is no doubt about the initial version in the eye-witness account that persons more than one were armed with guns. Pir Muhammad Khan, who is an educated person, changed the position at the trial presumably in order to make his deposition consistent with the medical evidence and stated that only one accused, namely, Khushdil used a rifle while the remaining three fired pistols. He was closely cross--examined in this behalf and the defence was able to elicit that he himself was a licence-holder of a shot-gun, and that he could distinguish between a rifle and a shot-gun; and further that same was the position regarding a revolver and a pistol. Learned counsel for the appellants also raised an argument that a person like Pir Muhammad Khan P. W.,.
14. Who is a Teacher by profession, should not be allowed any benefit of misunderstanding between a rifle and a shot-gun or a revolver and a pistol, and that if the expressions used by him are taken into account, the results would render him a totally unreliable witness. The maximum concession which can be extended to Pir--Muhammad on account of the confusion that could, as thought by the High Court, have been caused in his mind on account of the sudden murder of his brother and sister, might be with regard to the des--cription of a rifle as a gun or vice versa, and the revolver as a pistol and vice versa. This concession can also be extended on the basis that in some areas gun as well as a rifle is described as a 'Bandooq', while pistol as also revolver - is described as 'Tamancha', and these are the two words used in the F.1. R. But there is a limit to a supposition being made in favour of the prosecution when doing the delicate exercise of .Accepting or rejecting the eye-witness account after putting it in juxtaposition to established/admitted facts. Pir Muhammad Khan, we have checked the original F. I. R., had used the plural for guns when specifying the weapons used by the accused. This means that apart from Khushdil (regarding whom the eye- witnesses remained consistent that he used a rifle) at least one other accused had used a rifle or a gun according to the initial version given in the F. I. R. It was given up at the trial and the position taken by the eye-witnesses stood contradicted by the F.
1. R., in this behalf. Apart from Kbushdil, none else, according to the depositions of the eye-witnesses at the trial, was armed with a rifle . In these circumstances, it would be hazardous to accept uncorroborated testimony of the eye- witnesses for maintaining the conviction of each one of the accused.
15. Mst. Bibi Nargis established beyond doubt that the spots fired at there, were by a rifle. This supposition finds further support from the fact that the weight of the bullet, alleged to have been fired by Khushdil with his rifle on her, is much more than that of the bullet recovered from the dead bode of Sain Muhammad. The circumstance that 7-m.m. Empty and a missed eartridge of the same calibre were recovered from the place where Khushdil had stood when firing his rifle, further supported the role attributed to Khushdil. The explanation offered by Muhammad Anwar appellant with regard to his abscondence (which furnished corroboration) having rightly been rejected, we find that he has also been rightly found guilty. The mere fact that Khushdil and Muhammad Anwar had been refused the hand of Mst. Bibi Nargis, deceased for marriage with Khushdil appellant in which refusal Sain Muhammad had played some vital role while furnishing strong motive to both the appellants would not furnish .Mitigation for award of lesser sentence. Their conviction and sentences were rightly upheld by the High Court.
16. We accordingly dismiss their appeal.Enough comment has already been made on the role attributed to Sardar appellant. 1n addition, we notice that the eye-witnesses in order to, bring their account in line with the medical opinion made an unsuccessful effort to show that Sardar had fired a pistol shot at Mst. Bibi Nargis. The description of the two wounds of entry on her shows that none of them was caused with a pistol not even if it was of '12 bore. A strong possibility cannot be excluded that the injuries suffered by her were the result of shots fired from a weapon like 7-m.m. Rifle. There was not direct motive of Sardar appellant nor there is any other corroboratory circumstance against him. His participation in the crime has not been proved beyond reasonable doubt. Accordingly, he is entitled Same consideration would apply to Muhammad Nawaz appellant The benefit of doubt, which has been extended to Sardar should in normal circumstances be also be extended to Muhammad Nawaz. But according to the learned Assistant Advocate-General, there is an impediment, namely, that although that is no corroboration against him, he was not granted leave to appeal against his conviction. In order to meet this objection, as already noted, a review petition has been filed from the appellant's side.
17. After hearing the learned counsel for the appellants in support of the review petition, we agree with the learned Assistant Advocate-General 'hat it is not a case of review. If the counsel appearing for the appellants at the leave granting stage was not able to argue certain available point or failed to properly highlight a certain aspect, this by itself would not be a valid ground for review. We therefore, dismiss the review application.
18. This would not end the matter. The learned Assistant Advocate---General was asked to assist on the question whether this Court in a proper case, when, after examination of the merits regarding the conviction of one of the accused out of several to whom leave to appeal was granted, comes to the conclusion that the examination reacts on the correctness of the finding of guilty of another accused also to whom the leave to appeal was not granted in this behalf, cannot consider the case of the latter accused even if he is found innocent. He cited Muhammad Aslam and another v. The State (PLD 1978 SC 298to contend that a ground, noted in the leave granting order as not fit for examination, cannot be urged at the final hearing of the appeal.
19. Seeking support for his view from the observation at page 304 of the report that "once leave has been granted in a criminal matter, the whole case is open for examination, unless some points have been specifically repelled in the order granting leave to appeal, the learned Assistant Advocate-General distinguished this case from the cited one because leave was not granted to Muhammad Nawaz regarding his conviction and the points raised in this behalf were repelled.
20. He, however, took a balanced position that the above-noted practice is subject to the provisions of Article 187 of 1973 Constitution; where under when deciding a matter pending before it, this Court has enough power to issue all necessary directions and pass orders and decrees "as may be necessary for doing complete justice".
21. Learned counsel for the appellants cited Sadiq v. The State (PLD 1967 SC 356and relied an the provisions of rules 5 and 6 of Order XXXIII of the Supreme Court Rules to contend that the leave granting order in this case should not be treated as an insurmountable hurdle in acquitting any of the appellants, if he is otherwise entitled to acquittal on consideration of merits, when examin--ing the correctness of Sardar's conviction. The case of Sadiq does lend a strong support to the argument of the learned counsel, but it is indeed indirect support; because in a similar situation as in the present case, when a convict companion of an appellant who had not even challenged his conviction in Supreme Court, was found "entitled to relief on the same grounds" as those found in favour of the appellant before the Supreme Court, it was directed that the convict who had not filed a petition for leave to appeal be instructed to file such a petition from Jail; notwithstanding that it was then admittedly time-barred. There are similar other cases which have not been cited. We have noticed some of them.
22. In Pakistan v. R. S. Roopchand and 2 others (PLD 1967 SC 479), even though it was a civil matter and a serious question of limitation had been kept open at the leave granting stage, when deciding the two joint appeals before this Court, one of which as noted was time-barred, it was held that the question of limitation had lost its significance because merits having been considered (one of the two appeals was within time), both the appeals were dismissed on merits. In Mst.
23. Shamim Akhtar v. Syed Alam Hussain and others (1975 SC 14 R 16the principle involved in the present controversy, was examined and settled as follows :--- "In support of this practice, learned counsel has referred us to a decision of the Privy Council in the case of John E. Brownlee v. Vivian Mac--Millan (AIR 1940 P C 219) where the Privy Council refused to allow counsel to argue points on which leave to appeal had not been granted,and a decision of this Court in the case of Ashfaq-ur-Rehrnan Khan v. Ch. Muhammad Afzal (1971 SC.M F 766) where too this Court refused leave to the learned counsel to agitate points on which leave to appeal had not been granted.
24. It is no doubt true that the general practice of this Court following the Privy Council practice, has been as suggested by the learned counsel; but this is on an inflexible rule, and there may well be cases in which this Court, in the interest of justice, may be constrained to depart from this practice, although such cases will, no doubt, be extremely rare. This Court has undoubtedly the power, under Constitution itself, to do complete justice and, therefore, it has never tied itself down in such a manner as to deprive itself of this power. Thus, in the case of S. Sibtain Fazli v. Star Finn Distribators PLD 1964 SC 337) in which learned counsel Mr. A. K. Brohi himself appeared, the majority of the Court, allowed a law point to be argued even though it was neither raised in the petition for special leave to appeal nor in the additional grounds subsequently filed or in theconcise statement. Again, the case of Pakistan v. Waliullah Sufyani (PLD 1965 SC 310) certain objections taken in a petition of cross objection filed without the leave of the Court were considered at the argument stage in the appeal, by treating the cross-objection as a petition for special leave to appeal and condoning the delay in the filing thereof. Next in the case of Abdul Majid Khan v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 154), the Court allowed a question of law to be raised, even though it was not a point on which leave had been granted. The relevant passage from the judgment of the Court reads "The only question, therefore, that now arises for consideration is as to whether the Settlement Authorities were right in treating each room comprised in premises No. W/432 as an independent commercial unit and since this is the real question now 'in issue we have allowed learned counsel appearing in support of the appeal of Sh. Muhammad Hassan to raise this question even though this was not a point on which leave was granted'."
25. It would thus appear that it is not correct that this Court has never departed from this rule of practice. It cannot, therefore, be maintained that any and every- departure from this rule no doubt a salutary rule-would result in the exercise of a jurisdiction not possessed, by the Court and thereby constitute an error apparent on the face of the record. The jurisdiction is there; but whether, and in what circumstances, the Court will exercise it, is an entirely different matter.
26. The rule is at best a rule of practice only developed as a result the practice of the Judicial Committee and, therefore, like all rules of practice it can legitimately be departed from if the interest of justice demand." (Underlining riot in original).
27. In State v. Muhammad Nawaz (PLD 1966 SC 401), we find a clear example of the exercise of power to do "complete justice" by this Court in a criminal case. 28 persons were tried for offences including murder, out of which 18 were convicted. On appeal, the High Court maintained the conviction of only seven of them and acquitted the rest. The seven convicts were granted leave to appeal and so was the State granted leave, regarding the acquittal of eleven persons. On objection from the acquitted accused, the appeal of State against them was dismissed because the petition for leave to appeal was barred by time. However, notwithstanding the dismissal of the appeal against their acquittal as time-barred, this Court on consideration of the merits set aside the acquittal of three persons and convicted them ' under section 302, P. P. C. In suo motu exercise of the power to do complete justice. It was held that "This Court has power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, vide Article 61 of the Constitution. The error being patent on the record in this case, this Court could have suo motu issued notices to those of the respondents who had secured an acquittal from the High Court as the result of the above-mentioned error. These respondents are represented by Mr. Saleem appearing before us and he accepts notice on their behalf. The position, therefore, is that the case against these five respondents calls for consideration by us alongwith the appeal of seven convicts."
28. The approach in all these cases leads to one conclusion that this Court in matter of doing complete justice has not been handicapped by any technicality nor by a rule of practice. The observation relied upon. By the learned Assistant Advocate-General in the case of Muhammad Aslam, already noted above,, does not in any way go against the above analysed position. In that case the effect of grants of leave to appeal was stated in that once leave is granted, the whole case becomes open for examination. It was, however, clarified that the opening of the whole case for examination by the Court would not entitle a party as of right to urge any point on which leave was refused. The observation does not in any way change or review the law declared in the case of Mst. Shamim Akhtar from which detailed observations have already been reproduced.
29. Therefore notwithstanding the fact that a party would not be entitled as of right to urge a point which having been considered, leave . Was not granted thereon, this Court would be com-- petent in exercise of its power to do complete justice to examine point other than those on which leave was granted. The reliance of the learned counsel for the appellants thus,/on Article 187 of the Constitution read with' rules 5 and 6 of Order XXXIII of the Supreme Court Rules is not misplaced.
30. Therefore, in the present case we hold that the grant of leave to appeal to Muhammad Nawaz, who has otherwise been found entitled to acquittal o extension of benefit of reasonable doubt, to examine only the question o his sentence, cannot operate as a bar for this Court to the acceptance of hi appeal on merits regarding of guilty.
31. We accordingly while allowing the appeal of Sardar as also Muhammad Nawaz appellant, acquit them. The result is that while the appeal of Khushdil and Muhammad Anwar stands dismissed; that of Sardari and Muhammad Nawaz is allowed. The latter two shall be set at liberty, if not required in any other matter.