SADIQ MAHMUD KHURRAM, J. The appellants namely Noor Ahmad son of Bashir Ahmad and Allah Bakhsh alias Bakhshu son of Muhammad Ali were tried along with their co-accused namely Bashir Ahmad son of Ahmad and Muhammad alias Mamand son of Ahmad (both since acquitted) by the learned Addl. Sessions Judge, Sahiwal, in case FIR No.151 of 2006 dated 17.03.2006 registered at Police Station Farid Town, District Sahiwal, under Sections 302, 324, 148, 109 and 149 P.P.C. for committing the Qatl-i-Amd of Nosher Ali (deceased), Muhammad alias Mamand son of Thraj .(deceased) and Hamid Ali (deceased). The learned trial court vide judgment dated 06.07.201 1 convicted Not Ahmad (convict) and Allah Bakhsh alias Bakhshu (convict) and sentenced them as infra: 1) Noor Ahmad : i) Death under section 302(b), P.P.C. as Tazir on three counts, for committing Qatl-i-Amd of Nosher Ali (deceased), Muhammad alias Mamand son of Thraj (deceased) and Hamid Ali (deceased) and pay Rs. 3 Lac as compensation under section 544-A, Cr.P.C. to the legal heirs of each deceased separately and in default, thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead . ii) Rigorous imprisonment for three years under section 148, P.P.C. and directed to pay fine of Rs.50,000/- in case of default in payment of fine, directed to further undergo simple imprisonment for three months (The learned trial court has sentenced Noor Ahmad, appellant twice under section 148, P.P.C., however , the fine to be paid was once mentioned as Rs.50000/- and then as Rs.10000/-). iii) Rigorous imprisonment for ten years under section 324, P.P.C. and fine of Rs.25,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months .
2) Allah Bakhsh alias Bakhshu: i) Death under section 302(b), P.P.C. as Tazir on three counts for committing Qatl-i-A md of Nosher Ali (deceased), Muhammad alias Mamand son of Thraj (deceased) and Hamid Ali (deceased) and pay Rs.3 Lac As compensation under section 544-A, Cr.P.C. to the legal heirs of each deceased separately and in default thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead . ii) Rigorous imprisonment for three years under section 148, P.P.C. and directed to pay fine of Rs.10,000/- in case of default in payment of fine, directed to further undergo simple imprisonment for three months . iii) Rigorous imprisonment for ten years under section 324, P.P.C. and fine of Rs.25,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months .
The benefit available under Section 382-B, Cr.P.C. was also extended to Noor Ahmad (convict) and Allah Bakhsh alias Bakhshu (convict).
2. Feeling aggrieved, Noor Ahmad (convict) and Allah Bakhsh alias Bakhshu (convict) lodged Criminal Appeal No.652-J of 2012 against their conviction and sentences. The learned trial court submitted Murder Reference No. 115 of 2011 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellants Noor Ahmad and Allah Bakhsh alias Bakhshu. We intend to dispose of both the Criminal Appeal No.652- J of 2012 and Murder Reference No.1 15 of 201 1, through this single judgment.
3. The brief facts of the prosecution case, as per the written application (Exh.P A) submitted by Riaz Ahmad (PW-1) to Muhammad Abbas SI (PW-14), are that on 17.03.2006 Riaz Ahmad (PW-1) along with Nosher Ali (deceased), Muhammad alias, Mamand son of Thraj (deceased), Hamid Ali (deceased), Hash mat Ali (PW-3) and Muhammad Nawaz (PW-2) were returning to their village on their motorcycles after attending the proceedings in the case FIR No.524 of 2001 before the court of learned Additional Sessions Judge, Sahiwal . It was further recorded in the written application (Exh.P .A) that Nosher Ali (deceased) and Muhammad alias Mamand son of Thraj. (deceased) were travelling on one motorcycle whereas Riaz Ahmad (PW-1) and Hamid Ali (deceased) were riding on the motorcycle of Riaz Ahmad (PW-1) where as Hashmat Ali (PW-3) along with Nawaz (PW-2) were riding on the third motorcycle and reached within the vicinit y of the land of Rana Mahboob Ahmad at 12.00 p.m. when a white car without number plate crossed the witnesses and stopped in front of them. It was further recorded in the said written application (Exh.P A) that all of the complainant party stopped their motorcycles due to the road being blocked by the said car and within their view Noor Ahmad appellant, Zahoor Ahmad (proclaimed offender), Irshad Ali (proclaimed offender), Asghar Ali (proclaimed offender), and one unknown driver of the car while armed with rifles came out of the same. It was further recorded in the said written application (Exh.PA) that Noor Ahmad appellant fired at Nosher Ali deceased with his rifle hitting at various parts of his body whereas Zahoor Ahmad, Irshad Ali, Asghar Ali fired with their own rifles hitting Muhammad alias Mamand (deceased at various parts of his body whereas Asghar Ali and the unknown car driver also fired with their respective rifles at Hamid Ali (deceased) hitting him at various parts of his body . It was further recorded in the said written applic ation (Exh.P A) that Riaz Ahmad (PW-1) remained safe due to falling of his motorcycle and after the occurrence the accused fled away on their car.
It was further recorded in the said written application (Exh.P A) that as a result of firing made by the accused, Nosher Ali (deceased) and Muhammad alias Mamand (deceased) died at the spot whereas Hamid Ali was seriously injured. It was further recorded in the said written application (Exh:P A) that the complainant Riaz Ahmad (PW-1) leaving the dead bodies as well as Hamid Ali (then injured now decease d) at the spot, left to report the matter to the police. As per prosecution case Riaz Ahmad (PW-1) met Muhammad Abbas SI (PW-).4) who received his application (Exh.P A) and sent the same for the registration of the FIR Ali Sher ASI (PW-7) on the receipt of written application (Exh.P A) recorded the formal FIR Exh.P A/1. The motive as mentioned in the written application (Exh.P A) was that in the year 2001 Noor Ahmad appellant and Zahoor Ahmad co-accused injured Hamid Ali (deceased) and Hashmat Ali (PW-3) whereas in the said occurrence of 2001, brother of Noor Ahmad appellant namely Laal lost his life for which Noor Ahmad appellant lodged the FIR and a cross version was also got registered by Riaz Ahmad (PW-1). It was further mentioned in the written application (Exh.P A) that both the cases relating to the year 2001 were fixed for hearing in the trial court and during the course of proceedings the, bail application of father of Noor Ahmad appellant namely Bashir Ahmad, was dismissed. It was recorded in the application (Exh.P A) that all the accused in prosecution of their common object to take the revenge of the murder of Laal committed this of fence.
4. The learned trial court framed charges against the appellants on 19.09.2007 to which they pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.
5. The prosecution/complainant in order to prove its case got recorded statements of eighteen witnesses. Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) gave evidence regarding the ocular account.
Riaz Ahmad son of Ahmad (PW-4) identified the dead bodies of the deceased, Muhammad alias Mamand and Nosher All and was also a witness to taking into possession the last worn clothes of both the deceased vide recovery memos Exh.PJ and PK. Bakhat war Ali 885/C (PW-5) took the blood-stained earth and a sealed parcel of crimes empties to the concerned Analyst, Khadim Hussain (PW-6) stated that he had heard father of the accused Noor Ahmad direct his sons to murder the family of Nosher Ali. Manzoor Ahmad, Patwari (PW.-8) prepared the scaled site plan of the occurrence Exh.PM. Zakir Hussain 1176/C (PW.-9) was posted as Moharrar and on 17.03.2006 received three parcels of blood-stained earth and one parcel of crime empties which he handed over to Bakhatwar Ali 885/C (PW-5) mentioned above. Zakir Hussain 1176/C (PW-9) also received a parcel of a rifle on 14.06.2006 which he handed over to Nosher Ahmad 742/HC (PW-13). Mohamma d Amir 835/C (PW-10) escorted the dead body of deceased Hamid Ali for its post mortem examination on 26.03.2006. Muhammad Abbas SI (PW- 14) investigated the case from 17.03.2 006 till 22.07.2006 and detailed about the same while recording his statement. Muhammad Javaid Tariq ASI (PW-15) witnessed the alleged recovery of rifle 7 min (P12) along with six live bullets (P-13/1-6) from the possession of Noor Ahmad appellant taken into possession through recovery memo Exh.PMM. Ahmad Saeed, Judicial Magistrate (PW-16) supervised the test identification parade with respect of Allah Bakhsh alias Bakhshu appellant and recorded the proceedings dated 27.05.2006 regarding the above mentioned test identification parade. Niaz Ahmad, SI PW.-17 conducted the investigation of the case on 10.08.2006 till 20.09.2006. Muhammad Usman Ghani SI (PW-43) conducted the investigation of the case from 28.04.2007 and detailed about the investigation conducted by him before the learned trial court.
6. The prosecution also got examined Dr. Saeed Ahmad (PW-11) who was posted as Medical Officer at DHQ Hospital, Sahiwal, and on 17.03.2006 conducted the postmortem examination of Muhammad alias Mamand (deceased): Dr. Saeed Ahmad (PW. 11) while examining Muhammad alias Mamand (deceased) observed as under: "INJURIES: 1.A A lacerated wound 1 cm x 1 cm with blackening of margins, deep going, present back upper Part of right fore arm, 6 cm below elbow .
1.B A lacertated wound 1 cm x 1.5 cm x deep going with everted margins present on front upper part of right fore arm, 8 cm below elbow .
2.A A lacerated wound deep going 1 cm x 1 cm with blackening present on back mid of right side of chest, 12 cm from the mid line.
2.B A lacerated wound, everted edges 2 cm x 1.5 cm present on front left side of abdomen 7 cm lateral to the umbilicus.
3.A A lacerated wound inverted edges 8 cm medial and inferior to the injury No.2.A, on back of right chest deep going measuring 1/2 cm x 1/2 cm.
3.B A lacerated wound everted edges, measuring 2-1/2 cm x 1/2 cm, deep going present on front upper part of left side of abdomen 12 cm below left nipple.
4.A A lacerated wound 1 cm x 1/2 cm x deep going with inverted edges present on front lower part of left side of chest, 8 cm below the left nipple.
4.B A lacerated wound 3 cm x 2 cm with everted edges present on the front left side of abdomen 2 cm below injury No.2.B.
5. A lacerated wound, inverted edges deep going present on back lower part of right side of chest.
OPINION: All the injuries were ante-mortem caused by fire arm weapon. Injury No. 1 was muscle deep, all other injuries were cavity deep. The cause of death in this case was haemorrhage and shock. The injuries Nos. 2, 3, 4 and 5 were sufficient to cause death in the ordinary course of nature individually and as well as collectively .
The duration between injuries and death was 5 to 10 minutes whereas between death and postmortem was 6 to 10 hours."
Dr. Saeed Ahmad (PW.-11) also conduct ed the postmortem examination of Noshe r Ali (deceased) on 17.03.2006 Dr. Saeed Ahmad (PW . 11) while examining of Nosher Ali (deceased) observed as under: "INJURIES: 1.4 A lacerated wound 1 cm x 1 cm with blackening of margins, deep going, present on front of right arm, 5 cm above elbow (wound of entry).
1.B A lacerated wound everted margins 4 cm x 1 cm x muscle deep present on anterolateral aspect of right arm, 9 cm above elbow .
2.A A lacerated wound 1 cm x 1/2 cm with blackening of margins, deep going present on upper lateral aspect of right side of chest, 15 cm inferrolateral to the right nipple.
2.B A lacerated wound 2.5 cm x 2 cm with everted edges, present on outer upper part of left side of chest, deep going.
3.A A lacerated wound 1.5 cm x 1 cm with blackening of margins deep going present on posterolateral aspect of middle part of left side of chest.
3.B A lacerated wound 2.5 cm x 1.5 cm with everted edges, present on upper part of lateral aspect of right side of chest inside the right exilla.
4.A A lacerated wound 1.5 cm x 1 cm x deep going present on top side of left shoulder , midway between shoulder and the neck, blackening on the margins was also present.
4.B A lacerated wound 6 cm x 2 cm deep going with evened edges, present along with the medial wall of right axcilla.
5. A lacerated wound, muscle deep, 12 cm x 2 cm with the left one half of it was with black margins, the other one half had everted edges, it was present at mid of vertebral column, 20 cm below the nape of neck.
6. A lacerated wound 2.5 cm x 2 cm x deep going with blackening of edges present on upper part, of vertebral column, 10 cm below the nape of neck.
7.A A lacerated wound deep going 1 cm x 1 cm with blackening of margins present on back of right. shoulder .
7.B A lacerated wound 2 cm x 1 cm x deep going, present on back outer part of left shoulder with everted edges. .
OPINION: All the injuries were antemortem, caused by a fire arm weapon. Injuries Nos.2, 3, 4, 6 and 7 were cavity deep. The cause of death in this case was haemorrhage and shock. The injuries Nos.2, 3, 4, 6 and 7 were sufficient individually as well as collectively to cause death in the ordinary course of nature.
The duration between injuries and death was 5 to 10 minutes whereas between death and postmortem was 6 to 10 hours."
7. The prosecution also got examined Dr. Abdul Jabbar (PW.-12), who was posted as Medical Officer at DHQ Hospital, Sahiwal, and on 17.03.2006 conducted the medical examination of Hami d Ali alias Mamand (then injured now deceased). Dr . Abdul Jabbar (PW -12) observed as under: "INJURIES:
1. Fire arm lacerated wound 2 1/2 cm x 2 cm x deep going with inverted margins and blackening around was present on outer upper part of left arm (entry wound).
2. Fire arm lacerated wound 2-1/2 cm x 1-1/2 cm with everted margins on front upper part of left arm (exit wound of injury No.1).
3. Fire arm lacerated wound 8 cm x 4 cm x deep going with inverted margins and blackening around was present on right clavicular region (entry wound)
4. Fire arm lacerated wound 1 cm x 1 cm x deep going with evened margins present on back mid of chest x cm below nape of neck (exit wound of injury No.2).
5. Fire arm lacerated wound 2 cm x 1 cm x skin deep with inverted margins and blackening around was present on the front middle of left chest (entry wound).
6. Fire arm lacerated wound 2-1/2 cm x 1 cm x Skin deep on outer upper part of left chest (exit wound of injury . 5).
7. Fire-arm lacerated wound 3 cm x 1-1/2 cm x deep going with inverted margins and blackening was present around the wound, the wound was on back upper part of left shoulder (entry wound).
8. Fire arm lacerated wound 11/23 cm x 1 cm x deep going with everted margins present on front upper part of left shoulder (exit wound of injury No.7).
9. Fire arm lacerated wound 1-1/2 cm x 1 cm x skin deep on front middle of right chest 4 cm middle to right nipple with inverted margins and blackening was around the wound (entry wound).
10. A fire arm lacerated wound 2 cm x 1 cm x skin deep with everted margins present on front upper outer part of right chest, 5 cm above and lateral to right nipple (exit of injury No.9).
11. Fire arm lacerated wound 2-1/2 cm x 2 cm x deep going with inverted marg ins and blackening around the wound was present, the wound was present on right lumber region (entry wound).
12. Fire arm lacerated wound 1-1/2 cm x 1 cm x deep going with evened margins present on outer lower most part of left chest (exit wound of injury No.1 1).
Dr. Abdul Jabbar (PW-12) also conducte d the post mortem examination of Hamid Ali (deceased) on 26.03.2006 wherein he observed the above mentioned injuries and opined as under: "OPINION: The cause of death in this case in my opinion was fire arm injuries leading to sepsis and death which was sufficient to cause death in an ordinary course of nature. All the injuries were antemortem.
The duration between injuries and death was about 10 days and between death and postmortem was within about 12 hours."
8. On 09.10.2010 the learned DDPP gave up PWs Muhammad Yar and Naik being unnecessary and then on 27.04.201 1 gave up PW. Saeed ASI being unnecessary . The learned DDPP closed the prosecution evidence on 13.05.201 1 after tendering the reports of Serologist (Exh.PTT), the report of Chemical Examiner (Exh.PRR) and the report of Punjab Forensic Science Agency (Exh. PSS).
9. After the closure of prosecution evidence the learned trial court examined Noor Ahmad appellant under section 342, Cr.P.C. and, in answer to question why this case against you and why the PWs have deposed against you he gave the following reply: "The complainant party committed the murder of my brother Lal deceased and injured my brother Zahoor Ahmad, father Bashir Ahmad, and paternal uncle Muhammad for which they were facing the trial. We were the PWs in the murder case of Lal deceased against complainant party of present case. In fact Nosher Ali deceased, Hamid Ali deceased, Muhammad alias Mamand deceased were done to death by unknown dacoits. It was an un-witnessed occurrence, no eye-witness was present at the place of occurrence. The complainant and the PWs were summoned/informed by the police later on from their houses. The complainant party and police had been tracing actual culprits but could not succeed, thereafter false case was registered against us due to enmity and in order to put pressure upon us for compromise in the murder of Lal deceased. First Information Report was lodged after preliminary inquiry and postmortem examination on the dead bodies of deceased were conducted with delay as till then actual culprits were not known to the complainant party and FIR was not registered. The PWs are closely related inter se as well as with all the deceased and all the PWs are inimical towards me and my family . They are interested witnesses and have deposed falsely against me for the reason mentioned above."
Similarly , learned trial court examined Allah Bakhsh alias Bakhshu appellant under section 342, Cr.P.C. and in answer to question why this case against you, he gave the following reply .
"Neither in FIR nor in the statements of the eye-witnesses under section 161, Cr.P.C. they mentioned my name, my features, colour of clothes, height, age and colour and also did not mention the kind of weapon. No specific role is attributed to me. I have no previous enmity with the complainant party . I am innocent. I was not present at the place of occurrence on the fateful day and I did not know about the occurrence. There is partisan and brotherhood in the Chak who being friend of the complainant party falsely got implicated me in this case. I was kept at P.S. after my arrest and the police showed me to the complainant and the PWs and thereafter sent me to the Jail for Identification parade."
Neither the appellants opted to get themselves examined under Section 340(2), Cr.P.C. nor adduced any evidence in their defence.
10. On the conclusion of the trial, the learned Addl. Sessions Judge, Sahiwal, convicted and sentenced the appellants as referred to above.
11. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false.
That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. He further contended that the statements of Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) are not worthy of reliance as being chance as well as highly inimical witnesses. He also argued that the medical evidence was not supportive of the prosecution case. He also contended that had Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) been present they would not have been let off. He also argued that the recoveries were result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
12. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
They further submitted that there was no untoward delay in lodging the FIR. Learned counsel further argued that three deceased died as a result of injuries suffered at the hand of the appellants. They further contended that the medical evidence also corroborated the statements of Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3). They further argued that the recovery of rifle 7 mm (Exh.P-12) from Noor Ahmad appellant and the recovery of rifle 7 mm (Exh.P-2) from Allah Bakhsh alias Bakhshu appellant also corroborated the ocular account. They contended that the appel lants had enmity with the deceased and there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. They further argued that Allah Bakhsh alias Bakhshu appellant was duly identified in the test identification parade. Lastly they prayed for the rejection of appeal.
13. We have heard the learned counsel for the appellants and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
14. The whole prosecution case revolves around the statements of Riaz Ahmad (PW-1), Muhammad Nawaz (PW- 2) and Hashmat Ali (PW-3). They also stated about the motive of the occurrence. All these witnesses namely Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) were brothers inter se. Their relationship with the deceased is also on record. During the cross-examination Riaz Ahmad (PW-1) admitted that he was maternal nephew of the two deceased namely Muhammad alias Mamand son of Thraj (deceased) and Hamid Ali (deceased). During the cross-examination Riaz Ahmad (PW-1) further revealed that Nosher Ali (deceased) was son of Hamid Ali (deceased) and all were closely related. During the cross-examinat ion Riaz Ahmad (PW-1) further admitted the existence of enmity between him, Muhammad Nawaz (PW-2) and Hashmat (PW-3) on one part and the accused of the case on the other part. During the cross-examination Riaz Ahmad (PW-1) in answer to questions replied as correct that case FIR No.524 of 2001 dated 23.09.2001 was registered against his brother namely Muhammad Yar (PW of this case), Hashmat Ali (PW-3), Qutab brother of Riaz Ahmad (PW-1), Ashraf brother of Riaz Ahmad meternal (PW-1), his father Qutab and his maternal cousin Ali Sher, who was also the son of Hamid Ali (deceased), and the allegation was that they had committed the murder of Laal son of Bashir who was the brother of Noor Ahmad appellant. Riaz Ahmad (PW-1) further admitted in his cross-examination that the Bashir Ahmad and Muhammad alias Mamand son of Ahmad (both since acquitted) were the injured witnesses in the case FIR No.524 of 2001 and the appellant Noor Ahmad himself appeared as PW.-10 in the trial of the above mentioned FIR No.524 of 2001. Riaz Ahmad (PW-1) also admitted during the cross-examination that he himself got registered the cross version in the above mentioned case FIR No.524 of 2001 and in the said cross, version his brother Hashmat Ali (PW.-3) and Muhammad Nawaz (PW.-2) appeared as witnesses and deposed against Noor Ahmad appellant. Riaz Ahmad (PW-1) also admitted during the cross-examination that on the conclusion of trial Noor Ahmad appellant was acquitted in the said cross version case of FIR No.524 of 2001. We have also minutely scanned the statements of Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3). Muhammad Nawaz (PW-2) during his cross-examination stated that the accused were at a distance of about 1-1/2 karams when they were firing indiscriminately . This witness further stated that he along with the other witnesses was at a distance of about 1-1/2 karams from the assailants when the occurrence was taking place. Muhammad Nawaz (PW-2) also stated that all the PWs and the deceased persons were face to face with the assailants at the time of firing. We have also perused the sealed site plan of the place of occurrence (Exh.PM) as prepared by Manzoor Ahmad Patwari (PW-8) and also the un-sealed site plan (Exh.PZ) as prepared by Muhammad Abbas SI (PW.-14). A perusal of the scaled site plan (Exh.PM) and the un-scaled site plan (Exh.PZ) reveals that the occurrence took place on an open road.
As per the witnesses namely Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) the common object of the accused was that no one of the family of the deceased should escape. These three witnesses namely Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) were supposed to be the prime targets of the assailants. As per the statement of Riaz Ahmad (PW-1) it was he who was the one who had deposed against the accused person s. In fact all the three witnesses had been vigorously pursuing the case against the accused. Furthermore these witnesses were nominated accused in the case relating to the murder of Laal who was brother of Noor Ahmad appellant. Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) by their own admission were in clear view, at a meager distance of 1-1/2 karams, from the assailants and un-armed. The above mentioned witnesses stated that all the accused were armed with rifles so much so that the driver of the car was also carrying a rifle and neither there was any dearth of ammunition nor that of intent and opportunity . In this scenario it is hard to believe that the prosecution witnesses would have been shown the courtesy of being not fired at. Riaz Hussain (PW-1) was himself conscious of this flaw in the evidence and hence he got recorded that he was saved as his Motorcycle fell on the road. This explanation, as it is, is erroneous.
Moreover , Muhammad Nawaz (PW-2) as mentioned above admitted in his cross-examination that all the witnesses were facing the accused at the time of the firing being made by them. None of these three Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) even received a single scratch on their person. The three deceased received eighteen entry wounds on their person. If the three witnesse s namely Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) had been present, then they would not have been spared as the number of injuries on the persons of the deceased showed the degree of venom and design the killers had for the deceased. All these three Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) even did not depose that they were fired at during any time of the occurrence. They all were miraculously saved in the midst of all the firing. Blessing them with such incredible consideration and showing them such favour is implausible and opposed to natural behavior of the accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive they would depose against the accused even then the assailants did not cause any injury to them. Such behavior , on part of the accused, runs counter to natural human conduct and behavior . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus presume the existence of this fact, by virtue of the Article 129 of the Qanun-e- Shahadat Order , 1984, that the conduct of the assailants as deposed to by the three witnesses namely Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) was opposed to common course of natural events and human conduct. We hence are holding that these three Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) were not present at the time of occurrence at the place of occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them notwithstanding being within the range of their firing would reveal that the said witnesses were not present at the place of occurrence. The august Supreme Court of Pakistan in case Rohtas Khan v . The State (2010 SCMR 566 ) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq and another v. The State (2006 SCMR 1707 ) at page 1712 held as under:-- "Had P. W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the August Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum and others v. Sajjad Ahmad and others (2017 SCMR 596) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accuse d encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other PWs were at the mercy of the assai lants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
We thus are satisfied that the evidence of Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW- 3) has no worth and is to be rejected outright.
15. Learned Deputy Prosecutor General along with the learned counsel for the complainant have laid much stress on the promptitude in reporting the matter to the police. Riaz Ahmad (PW-1) submitted a written application (Exh.P A) to Muhammad Abbas SI (PW-14). We have perused the said written application (Exh.P A). The time of the occurrence, as recorded in the written application (Exh.P A) is 12.00 noon whereas as per the endorsement made by Muhammad Abbas SI (PW-14), at the time of receiving the said application (Exh.P A), mentioned the time of receiving the same as 12.00 noon. This proves that the said application is just a compromised and fake document.
We have also noted that despite the disapproval of the August Supreme Court of Pakistan, the same method was adopted in this case also that when Muhammad Abbas was present at Adda Ratti Tibbi on patrolling Riaz Ahmad (PW.1) produced before him the written application (Exh.P A). The August Supreme Court of Pakistan in the case of Mst. Rukhsana Begum and others v . Sajjad Ahmad and others (2017 SCMR 596 ) observed at page 601 as under: "In the ridder to the FIR, the Investigating Officer has mentioned that the complainant Muhammad Faazal met him somewhere in the, way while proceeding to the police station. In past, it had beco me routine practice of the police that indeed in such like crimes, the FIR/ written complaints were being taken on the crime spot after preliminary investigation, however , after this court had disapproved this practice, they have invented a new way of misleading the court of law because invariably in every second or third case, same and similar practice is adopted."
16. We have also observed that while appearing before the learned trial court, the three witnesses namely Riaz Ahmad (PW-1), Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) made dishonest improvement to their statements. The said witnesses were duly confronted with the said improvements to their previous statements.
Riaz Ahmad (PW-1) made the improvements to bring his statement in line with the ocular account and attributed specific injuries, with specific seat to each of the assailants. Allegedly all the assaila nts were standing close to each other and so were the victims and it was humanly impossible to discern who fired the shot and whose shot hit the deceased in a situation which was reigned by dread, chaos and pandemonium. Riaz Ahmad (PW-1) was duly confronted and offered no explanation, except a bare denial, for the said improvements made by him to his former written application (Exh.P A). Similarly , Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) made improvements to bring their statements in line with the ocular account and also attributed specific injuries to each of the assailants with specific seat. Muhammad Nawaz (PW-2) and Hashmat Ali (PW-3) were also duly confronted and could offer no explanation, except a bare repudiation, for the said improvements made by them to their former statements recorded during the investigation of the case. These improvements impeached the character of the witnesses making them unworthy of being trusted.
17. We have also observed that there was a delay in conducting the postmortem examination of the deceased which time, in our conclusion, was taken in procuring the witnesses to the occurrence. Dr. Saeed Ahmad (PW-11) who conducted the postmortem on the person of Nosher Ali and Muhammad alias Mamand during his cross- examination stated that as soon as the bodies were produced he immediately conducted the postmortem without any delay on his part. However , the perusal of the report of the postmortem examination Exh.PN and Exh.PR relating to Muhammad alias Mamand and Nosher Ali deceased reveals that the postmortem of Nosher Ali deceased was conducted at 08.00 p.m. and that of Muhammad alias Mamand deceased was conduct at 08.30 p.m. after a delay of seven hours of registration of FIR (Exh.P A/1). The august Supreme Court of Pakistan in the case of Khalid alias Khalidi and 2 others v . The State (2012 SCMR 327 ) as held as under: "The incident in the instant case took place at 2.00 a.m. FIR was recorded at 4/5 a.m., Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m. i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
18. Learned Deputy Prosecutor General along with the learned counsel for the complainant have also relied upon test identification parade conducted with respect to Allah Bakhsh alias Bakhshu. The fact remains that neither the name of Allah Bakhsh alias Bakhshu was mentioned in the written application (Exh. PA) nor any descriptive features through which he could be identified. As such the test identification parade loses its authenticity and has no evidentiary value. Reliance is placed upon a binding judgment of the august Supreme Court of Pakistan in the case titled Muhammad Afzal alias Abdullah v. The State and others (2009 SCMR 436) wherein it has been held as under: "Absence of such details in FIR militated against the bona fides of prosecution and greatly marred evidentiary value of test identification parade."
19. Learned Deputy Prosecutor General along with the learned counsel for the complainant have also relied upon the recovery of rifle 7 mm (Exh.P12), from Noor Ahmad appellant. However , the said rifle was never sent to the Forensic Science Laboratory for its comparison with crime empties present at the spot. Hence such recovery has no evidentiary value. With respect to Allah Bakhsh alias Bakhshu, a recovery of 7 mm rifle (Exh.P2) was shown to be effected from him. A perusal of the report of Forensic Science Laboratory , Punjab (Exh.PSS) reveals that two crime empties of 7.62 mm bore and one rifle of 7 mm bore were received. As is evident, the two crime empties were of 7.62 mm bore whereas the rifle was of 7 mm bore, hence no comparison was made.
20. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character , cannot recognize a culprit in case of an unobserved incidence. As all the, other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellants' conviction cannot be upheld on the basis of medical evidence alone. The August Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. The State" (2017 SCMR 986 ) has enunciated the following principle of law: "The medical evidence is only confirmator y or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Noor Ahmad and Allah Bakhsh alias Bakhshu, appellants, in the present case. It is settled principle of law that for giving benefit of doubt it is not necessa ry that there should be so many circum stances rather if only a single circumstance creating reasonable doubt in the mind of a prudent man is available then such benefit is to be extended to an accused not as matter of concession but as of right. Reliance is placed on the binding judgment of the august Supreme Court of Pakistan Muhammad Akram v. State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace: It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
"The medical evidence is only 22. For what has been discussed above, Criminal Appeal No. 6524 of 2012 filed by Noor Ahmad and Allah Bakhsh appellants is accepted and the conviction and sentences of the appellants awarded by the learned trial court through the impugned judgment dated 6.7.201 1 are hereby set-aside. Noor Ahmad and Allah Bakhsh appellants are ordered to be acquitted. They are directed to be released forthwith if not required in any other case.
23. Murder Reference is answered in Negative and the death sentence of Noor Ahmad and Allah Bakhsh alias Bakhshu appellants is Not Confirmed.