1. ' QURBAN SADIQ IKRAM, J.-- This is an appeal by Khan Muhammad (50), Ghulam Rasool (18), Akhtar Nawaz son of Alam Sher (24) and Muhammad ljaz (20) against their conviction under section 302/34, P.P.C. For the murders of Muhammad Shafi, Allah Bakhsh and their father Sikandar Khan and under section 307/34, P.P.C.
2. For making murderous assault on Qamar Abbas P.W. By learned Additional Sessions Judge, Sargodha vide judgment, dated 27-3-1982. All the four appellants were sentenced to death and a fine of Rs,5,000 or in default six months' R.I. Each under section 302/34, P.P.C. They were ordered to pay Rs,5,000 each and in default six months' R.I. As compensation equally to the heirs of the deceased. They were sentenced to suffer seven years'
3. R.I. And a fine of Rs,2,000 or in default three months' R.I. Under section 307/34, P.P.C.
4. ' Their co-accused Ata Muhammad (65/7), Allah Bakhsh (40), Mazhar Hayat (18), Ghulam Jilani (43), Said Rasool (50), Ahmad Sher (30), Ata Rasool (52), Mansab (43), Akhtar Nawaz son of Muhammad Yaqoob (30) and Altaf Hussain (18) were acquitted by the same judgment.
5. ' Falak Sher, another accused in this case, died before the commencement of trial.
6. ' The four appellants having been sentenced to death, the proceedings are also before us for confirmation of their sentences. Alam Sher P.W. Filed Criminal Revision against the acquitted accused which was ordered to be heard alongwith this appeal. All these matters will be disposed of together by this judgment.
2. The occurrence in this case took place at 8-30 a.m. On 19-2-1980, in Bus No, LEH-5111 by the road side in the area of Chak No, 81/Janoobi, about three miles from Police Station Bhagtanwala, District Sargodha. The F.I.R. Exh.PCC. Was recorded at the police station at 9-05 a.m. On the same day by S.I. Ghulam Qasim P.W.14 on the statement of Alam Sher P.W.11. It was stated by Alam Sher P.W. In his First Information Report that his brother Muhammad Sher had two squares of land in Chak No, 23/Janoobi and, therefore, lived there. He went to see his brother two days before the occurrence. On 19-2-1980, at about 8-00 a.m., he boarded a bus from Adda Chak No, 23/J for going back to his village Botala. Muhammad Shafi deceased, Allah Bakhsh deceased and their father Sikandar Khan deceased who had to attend hearing of a case at Sargodha also boarded the bus alongwith Qamar Abbas P.W.12, Ghulam Hussain and Mst. Sabhrai (both given up P.Ws.). Javaid Akhtar P.W.13 was already present in the bus. When the bus reached the Morr of Chak No, 23/Alif Janoobi, Ata Muhammad, Akhtar Nawaz son of Alam Sher, Ghulam Rasool, Mazhar, Altaf and Khan Muhammad accused boarded the bus from there. They had wrapped Chaddars on their bodies. The bus reached Adda Chak No, 80/J, in the area of Chak No, 81/J, at about 8-30 a.m. Ata Muhammad accused who was sitting near the driver, asked him to stop the bus. The moment bus stopped, Ata Muhammad, Akhtar Nawaz, Ghulam Rasool and Mazhar accused took out their carbines and Khan Muhammad' accused took out his .12-bore gun from under their Chaddars. They shouted a Lalkara saying that excepting Muhammad Shafi, Allah Bakhsh and Sikandar Khan (the three deceased), all the passengers should get down from the bus. Accordingly, the passengers came out of the bus. In the meantime, Ghulam Jilani armed with .12-bore gun, Said Rasool armed with a hatchet, Ahmad Sher armed with .12-bore gun, Ata Rasool empty handed, Mansab armed with .12-bore gun, Allah Bakhsh armed with .12-bore gun, Akhtar son of Yaqoob empty handed, ljaz armed with hatchet and Falak Sher armed with rifle came from the Southern side of the bus shouting Lalkaras. They all entered the bus. Ata Muhammad accused fired with his carbine at Muhammad Shafi hitting him at the chest. Muhammad Shafi fell down in the bus whereafter Allah Bakhsh and Ghulam Rasool accused fired at Muhammad Shafi deceased hitting him on head. Ijaz accused gave hatchet blow to Allah Bakhsh deceased. He tried to ward off the blow and got his hand injured. Ghulam Jilani fired on the chest of Allah Bakhsh who also fell down in the bus.
7. Thereafter, Said Rasool gave two hatchet blows on the calf of Allah Bakhsh deceased. Alta and Ata Rasool accused caught Sikandar Khan deceased from his hair. They dragged him out of the bus. Akhtar Nawaz son of Yaqoob accused shouted a Lalkara whereafter Ahmad Sher fired at Sikandar Khan hitting him on the calf. He fell down. Thereafter, Mansab and Mazhar Hayat accused fired on the head of Sikandar Khan deceased. Qamar Abbas P.W. Started running towards the South of the bus. Khan Muhammad and Falak Sher accused fired at Qamar Abbas resulting in injuries on his foot and thigh. All the accused remained firing at the spot. It was further stated by Alam Sher complainant that Muhammad Shafi, Allah Bakhsh and Sikandar Khan died at the spot as a result of the injuries. The accused ran away towards the North. The motive was stated to be the murder enmities between Sikandar Khan deceased and the accused.
8. ' Leaving the three dead bodies and Qamar Abbas P.W. At the spot, Alam Sher went to police station and lodged the F.I.R. As stated above.
3. S.I. Ghulam Qasim P .W.14 after registration of the case, proceeded to the spot. He sent the three dead bodies for post-mortem examination after necessary formalities which was conducted by Dr. Muhammad Abaid Ullah P.W.3 on 19-2-1980, at about 4-30 p.m.
9. ' On external and internal examination of Muhmmad Shafi deceased, the Medical Officer noted the following injuries:-
(i) A gunshot wound 2" x 11/2" x chest cavity deep on the front of chest in about the middle. His right lung was lacerated. The wound edges were blackened.
(ii) Six wounds of exit on the back of upper most part of right side of chest and right shoulder joint. Size of each wound was about 1/3" x 1/4". Two metallic pieces were removed from the back of right side of chest, which were handed over to police in a sealed cover.
(iii) A gunshot wound 4" x 3" on the left side of head. The skull bones i,e, occipital parietal and temporal bones were fractured into pieces. The wound edges were blackened.
(iv) A gunshot wound of exit 4" x 4" on the right side of head. The brain matter was coming out of the wound.
10. The left parietal, temporal and occipital bones were fractured.
11. ' He also found 3rd right rib fractured, The pleura and the right lung had been pierced through and through. In his opinion, the death was due to shock and haemorrhage and injuries to the vital organs i,e, brain and right lung. In his opinion, injuires Nos. 1 to 4 were sufficient in the ordinary course of nature to cause death individually and collectively. All the injuries had been caused by fire-arm. The probable duration between injuries and death was immediate and between death and post-mortem was 6 to 10 hours.
12. ' On external and internal examination of Sikandar Khan deceased, the Medical Officer noted the following injuries:-
(i) A gunshot wound 4" x 3" on the right side of head. The parietal, temporal and the frontal bone were fractured.
13. The wound edges blackened. Corresponding marks on the turban found.
(ii) A gunshot wound of exit 4" x 4" on the left side of head. The skull bone was fractured and the brain was coming out of the wound.
(iii) Three gunshot wounds 1/2 x 1/2 deep on the inner side of left leg. The lower part, the tibia and fabula bones were fractured. Two metallic pieces and one card-board removed from the left leg and handed over to police in a sealed cover.
(iv) An abrasion 1/4" on the right middle finger which was blackened.
(v) An abrasion 1/6" on the left upper arm.
(vi) Three abrasion marks 1/6" each on the right upper arm. The margins were blackened.
14. ' In his opinion, the death was due to shock and haemorrahage and injuries to vital organs i,e, brain caused by injuries Nos. 1 and 2 which were sufficient in the ordinary course of nature to cause death. Injury No,3 was also grievous in nature. The injuries Nos. 1 to 3 had been caused by fire-arm. Injuries Nos. 4 to 6 were of simple nature. The duration between injuires and death was immediate and between death and post-mortem was 6 to 10 hours.
15. ' On external and internal examination of Allah Bakhsh deceased, the Medical Officer found the following injuries:-
(i) A gunshot wound 2k" x 2k" on the front side of chest in the lower part in about the middle. The wound edges were blackened. The shirt, Bunyan and Jacket had corresponding marks. The sternum was fractured.
(ii) Six gunshot wounds 1/4" each on the back of right side of chest.
(iii) An incised wound 3" x 1" on the front of left wrist. The muscles and tendons were cut and the wrist joints were dislocated.
(iv) An incised wound 1" x 1/3" on the outer side of left knee joint.
(v) Two incised wounds 1" x 1/3" and 3/4" x 1/3" on the left leg in the lower part.
(vi) An incised wound I" x 1/3" on the left buttock.
16. ' He also noted that the sternum and 10th rib on the right side was fractured. Both the pleurae were injured. The right lung was perforated at many places. Heart was also perforated. Three metallic pieces were removed from the back of right side of chest and handed over to the police. In his opinion, the death was due to shock, haemorrhage and injuries to vital organs i,e, heart and right lung which had resulted on account of injuries Nos.
17. 1 and 2. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 had been caused by fire-arm while injuries Nos. 3 to 6 had been caused by sharp-edged weapon. Injury No, 3 was grievous in nature while injuries Nos. 4 to 6 of simple nature. The duration between injuries and death was immediate and between death and postmortem about 6 to 10 hours.
18. ' Dr. Shah Qutab Hamdani P.W.2 on 19-2-1980 at 11-25 a.m., medically examined Qamar Abbas P.W. And found five injuries on his person. Injuries Nos. 1, 2 and 3 were lacerated wounds on the back upper part and lower part of left thigh. Injuries Nos. 4 and 5 were on the surface of right foot and on the back of right heel. All the injuries had been caused by fire-arm. Injuries Nos. 1 to 3 were simple and injuries Nos. 4 and 5 were kept under observation. These were X-rayed by Dr. Abdul Manan P.W.1 whereafter both these injuries were declared grievous in nature.
4. S.I. Ghulam Qasim, during spot inspection on 19-2-1980, collected six crime empties P.19/1-6 from inside the bus vide memo. Exh.P.L. He also collected four crime empties P.20/1-4 from near the bus vide memo. Exh.P.M.
19. Bus No, LEH-5111 was taken in possession vide memo. Exh.P.S. Blood-stained earth where Sikandar Khan deceased had died was taken in possession from near the bus vide "memo. Exh.P.N. The blood-stained earth where Allah Bakhsh and Muhammad Shafi deceased had fallen inside the bus was taken in possession respectively vide memos. Exh.P.O. And Exh.P.Q. The Investigating Officer on the same day took 14 pellets P.22/1-14, 13 carb-board pieces P.21/1-13 and 19 pieces of glass and plastic P.23/1-19 vide memo. Exh.P.R.
20. The pair of Chappal of Qamar Abbas P.W. P.24/1-2 was taken in possession vide memo. Exh.P.T. All the above memos. Were prepared by S.I. Ghulam Qasim P.W.14 and attested by Allah Bakhsh P.W. 8 and Sher Ali given up P.W.
5. Khan Muhammad, Muhammad Ijaz appellants and their co-accused Ghulam Jilani, Ahmad Sher and Falak Sher (since dead) were arrested on 25-2-1980.
21. ' Muhammad Ijaz accused while in custody, led the police to the Dera of his co-accused Said Rasool and got recovered blood-stained hatchet P.25 from under the cotton wood lying inside the cattleshed vide memo.
22. Exh.P.U. Khan Muhammad accused while in custody led to the recovery of gun P.34 alongwith four live cartridges P.35/1-4 from beneath a heap of Sarkandah lying in front of his residential Kotha vide memo. Exh.P.Z.
23. Ahmad Sher accused at the time of his arrest was seen lying on a cot at the Dera of Muhammad Ishaq Manda.
24. He was arrested and gun P.26 alongwith three live cartridges P.27/1-3 was found lying under his pillow and taken in possession vide memo. Exh.P.V. Ghulam Jilani accused at the time of his arrest produced his licenced gun P.28 alongwith two live cartridges P.29/1-2 and licence book P.30 vide memo. Exh.P.X. Falak Sher accused at the time of his arrest produced his licensed rifle P.31 alongwith five cartridges P.32/1-5 and licence book P.33 vide memo. Exh.P.Y. All the above memos. Were prepared by S.I. Ghulam Qasim P.W. 14 and attested by Muhammad Sher P.W.9 and Mureed Hussain given up P.W. On 25-2-1980.
25. ' Akhtar Nawaz accused son of Alam Sher was arrested on 26-2-1980. On his personal search at that time, carbine P.38 and 2 cartridges P.39/1-2 were recovered from the Dabb of his loin-cloth vide memo. Exh.P.AA.
26. Ghulam Rasool accused was arrested on 26-2-1980. On his personal search at that time, carbine P.36 and 3 cartridges P.37/1-3 were recovered from the Dabb of his loin-cloth vide memo. Exh.P.ZZ. Both these memos.
27. Were prepared by S.I. Ghulam Qasim P.W.14 and attested by Gul Muhammad P.W.10 and Muhammad Iqbal given up P.W.
28. ' Mansab accused was arrested on 27-2-1980. At that time he was found in possession of gun P.40 and 4 cartridges P.41/1-4 which were taken in possession vide memo. Exh.P.BB. By S.I. Ghulam Qasim P.W.14 in the presence of Gul Muhammad P.W.10 and Muhammad lqbal given up P.W.
29. ' The crime empties, blood-stained earth etc. Collected from the place of occurrence were deposited in the Malkhana of Police Station by the Investigating Officer with H.C. Muhammad Yousaf P.W.S. These parcels were given by the M.H.C. To F.C. Muhammad Inayat P.W.4 on 21-2-1980. He took these parcels to the police office for getting a docket but could not get the same and, therefore, on that very day, deposited the five parcels back in the Malkhana of Police Station. F.C. Muhammad Inayat again received those parcels from the M.H.C. On 23- 2-1980. He delivered the three parcels containing blood-stained in the office of the Chemical Examiner, Lahore and two parcels containing crime empties in the office of Director, Forensic Science Laboratory. An objection was raised that the two parcels had only three seals. The P.C. Was directed to take back the parcels for affixation of three more deals by the Investigating Officer. He took them back to the Investigating officer. The objection was removed by affixing three additional seals on the two parcels whereafter F.C. Muhammad Inayat delivered them in the Forensic Science Laboratory intact on 24-2-1980. The hatchet and he fire-arms recovered from or at the instance of the accused were also deposited in the Malkhana immediately after their recoveries from the respective accused. These were taken by F.C. Muhammad Inayat P. W.4 to Lahore. He delivered one parcel containing blood-stained hatchet in the office of Chemical Examiner, Lahore and the six parcels containing fire-arms in the Office of Director, Forensic Science Laboratory on 3-3-1980. The hatchet P.25 (Ijaz accused) was found to be stained with human blood vide report of Chemical Examiner Exh.P.00. And that of Serologist Exh.P.RR. The blood-stained earth collected from three places was also found to be stained with human blood vide report the Chemical Examiner Exh.P.NN and that of Serologist Exh.P.SS.
30. ' The Director, Forensic Science Laboratory, Lahore vide report Exh.P.MM., opined that two crime empties P.19/3, 6 and two crime empties P.20/3, 4 had been fired from gun P.34 (Khan Muhammad accused); that one crime empty P.19/1, and two crime empties P.20/1, 2 had been fired from .12-bore pistol P.36 (Ghulam Rasool accused); and that two crime empties P.19/4, 5 had been fired from .12-bore pistol P.38 (Akhtar Nawaz son of Alam Sher accused). He could not express any opinion about crime empty P.19/2 because the points of identification on its base had been intermingled.
6. The case was investigated by S.I. Ghulam Qasim P.W.14. The investigation was verified by A.S.P. Shaukat Javaid P.W.15. They came to the conclusion that Khan Muhammad, Ghulam Rasool, Akhtar Nawaz son of Alam Sher, Muhammad ljaz appellants and Altaf Hussain acquitted accused were guilty. These accused were placed in column No,3 of the challan. The remaining ten accused were found innocent during investigation and, therefore, placed in column No,2.
31. ' The accused were challaned after completion of the investigation.
7. The prosecution during the trial examined 15 witnesses in all. Alam Sher P.W.11, Qamar Abbas P.W. 12 and Muhammad Javaid Akhtar P.W.13 were examined as eye-witnesses in this case. Ghulam Hussain and Mst.
32. Sabhrai, the two eye-witnesses named in the F.I.R., were given up as unnecessary. The medical evidence was furnished by Dr. Abdul Manan P.W.1, Dr. Shah Qutab Hamdani P.W.2 and Dr. Muhammad Abaid Ullah P.W.3.
33. The recoveries from the spot were witnessed by Allah Bakhsh P.W.8 and the recoveries from the accused or at the instance of the accused were witnessed by Muhammad Sher P.W.9 and gul Muhammad P.W.10. The investigation was conducted by S.I. Ghulam Qasim P.W.14 and it was verified by A.S.P. Shaukat Javaid P.W.15.
34. ' The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. Excepting Ghulam Jilani, the other accused denied the recoveries of crime weapons at their instance. They stated that all the accused are not inten related and did not have a common motive in the instant case. The accused, however, did not examine any witness in their defence. However, they tendered a copy of the challan pertaining to F.I.R.
35. No, 4, dated 17-3-1970, P.S. Mitha Tiwana, under section 302, P.P.C. Exh.D.C.; a copy of the challan in case F.I.R. No, 140, dated 17-10-1947, P.S. Sadar Sargodha, under section 302, P.P.C. Exh.D.D.; a copy of Secondary School Certificate of Mazhar Hayat accused Exh.D.E.; a copy of F.I.R. No, 56, dated 18-3-1981, P.S. Bhagtanwala, under section 440/379, P.P.C. At the instance of Mst. Sahib Khatoon widow of Sikandar Khan deceased Exh.D.F.; a copy of F.I.R. No,254, dated 6-8-1976, P.S. Bhagtanwala, under section 411, P.P.C. At the instance of Sher Muhammad Exh.D.G.; a copy of F.I.R. No, 217, dated 9-7-1976, P.S. Bhagtanwala, under section 379, P.P.C. On the statement of Asmat Ullah Exh.D.H.; a copy of special power-of-attorney by Muhammad Zaban in favour of Malik Ghulam Abbas, dated 23-5-1972 Exh.D.J.; a copy of school leaving certificate of Altaf Hussain accused Exh.D.K.; and a copy of Secondary School Certificate of Ghulam Rasool accused-appellant Exh.D.L.
36. ' The learned trial Judge held that the F.I.R. Had been lodged promptly by Alam Sher P.W. He placed reliance on the evidence of motive, recoveries of crime empties from the spot, recoveries of crime weapons from and at the instance of the accused, eye-witnesses and the report of Fire-arms Expert and convicted the four appellants as stated above.
8. We have gone through the record of this case minutely and have also heard the learned counsel for the appellants, the learned counsel for the complainant and also the learned counsel appearing on behalf of the State at great length.
37. ' It was contended by the learned counsel for the appellants that the prosecution has failed to prove motive against the appellants; that the evidence regarding recoveries of crime weapons from the accused is interested and not reliable; and that the three eye-witnesses were not present at the spot at the time of occurrence. It was further contended by him that the evidence of the three eye-witnesses was not divisible. He pointed out that on the same evidence ten accused were found innocent by the police and acquitted by the learned trial Judge. It was, therefore, argued that the appellants also deserve acquittal.
38. ' The learned counsel appearing on behalf of the complainant controverted the above contentions. He argued that the prosecution has proved motive against the accused; that there was chain of murder enmities between the parties; and that the accused had a common motive to murder the three deceased and attack the complainant party. It was contended by him that the eye-witnesses though related have been fully corroborated by the evidence of recoveries of crime empties from the spot and the crime weapons at their instance. He, therefore, argued that the prosecution has proved its case against the appellants beyond any reasonable doubt.
39. The learned counsel for the State adopted the arguments of the learned counsel appearing on behalf of the complainant.
9. Before commencement of the arguments in this case we pointed out to the learned counsel appearing on behalf of both sides that the learned trial Judge in the concluding part of para. 43 of his judgment, came to the conclusion that "the case is fully proved against Khan Muhammad, Ghulam Rasool, Akhtar Nawaz son of Sher and Muhammad Ijaz having committed the murders of Sikandar Khan, Allah Bakhsh and Muhammad Shafi and for having made murderous assault on P.W. Qamar Abbas in the same occurrence. Since all the three murders were committed in the same sequence, only one charge under section 302/34, P.P.C. Will be deemed to have been proved against the said four accused."
40. ' The point involved was that all the accused had been charged under four heads. They were charged separately for the three murders under section 302/149, P.P.C. And fourthly for the murderous assault on Qamar Abbas P.W. Under section 307/149, P.P.C. However, it appeared from the judgment as reproduced above, that in the opinion of the learned trial Judge only one charge under section 302/34, P.P.C. Will be deemed to have been proved against the said four accused. The question was as to whether the death sentence to all the four accused will be considered on one count or on all the three counts each. Mr. Ljaz Hussain Batalvi, the learned counsel for the appellants, Mr. Ehsan Qadir Shah, the learned counsel for the complainant and the learned counsel for the State stated at the Bar that the sentences to the four appellants would be considered on three counts each in spite of the above observation of the learned trial Judge. They drew our attention to para. 44 of the judgment wherein the learned trial Judge recorded as follows:- "I, therefore, hold them guilty of charges under section 302/34, P.P.C. And also under section 307/34, P.P.C."
41. ' The learned counsel appearing on behalf of both the parties, therefore, submitted that the four appellants will be deemed to have been sentenced under section 302/34, P.P.C. To death on three counts each. We need not say anything more on this subject. We agree with the learned counsel for the parties on this point and, therefore, need not advert further in this matter.
10. We have considered the contentions of learned counsel for the appellants as well as the learned counsel appearing on behalf of the complainant.
42. ' Alam Sher complainant in his First Information Report stated that the accused committed the murders on account of their murder enmities with Sikandar Khan deceased. He, in his statement during the trial, gave details of the murder enmities. It was stated by him that:
(i) one Gaman was murdered long time ago. A grandfather of the said Gaman was a first cousin of the gradfather of Ghulam Jilani accused. In that case, Muhammad Nawaz, father of Alam Sher complainant and Sultan were challaned;
(ii) after the above murder, Ghulam Muhammad was murdered. Sardar Khan father of the said Ghulam Muhammad was maternal-cousin of Lunger Khan father of Sikandar Khan deceased of this case. Ata Muhammad accused, Sher Muhammad father of Allah Bakhsh accused alongwith Sher Ali, a first cousin of Said Rasool accused were challaned for the said murder;
(iii) after the above murder, Fateh Ali, a brother of Sher Ali above-mentioned was murdered. Sikandar deceased of the present case and Sultan above-mentioned were challaned for the murder of Fateh Ali; and
(iv) Muhammad Khan was murdered three years before the present occurrence. This Muhammad Khan was a brother of Said Rasool and Ata Rasool accused. In that case, Nadir son of Sultan who was challaned for the murder of Gaman aforementioned was challaned alongwith others. Sikandar deceased of the present case had helped Nadir in this murder case. Ghulam Jilani, Ata Muhammad, Allah Bakhsh, Ahmad Sher and Akhtar Nawaz son of Yaqoob accused were witnesses in the case pertaining to the murder of Muhammad Khan.
43. ' It was contended by the learned counsel for the appellants that the details of murder enmities were not given by the complainant in the F.I.R.; that there were three sets of accused in this case and their inter se relationship is not proved on the record and as such, the motive alleged by the complainant cannot be said to be relatable to all the accused; that according to Alam Sher complainant, no incident of murder or any other litigation took place between Sikandar Khan and his sons on the one hand and the present accused or their close relatives on the other hand after the murder of Fateh Ali in the year 1947; that the complainant made material improvements on the point of motive in his statement during the trial; that it was stated by Alam Sher complainant that he apprehended no danger from the accused while travelling in the bus; that Sikandar deceased had other enemies as well. It was, therefore, argued that the evidence of Alam Sher does not inspire confidence as a result of which it cannot be said that the prosecution has proved motive against the accused in this case. These contentions were controverted by the learned counsel for the complainant and the State.
44. It is a fact that Alam Sher complainant did not give details of murder enmities in F.I.R. Exh.P.C. He, for the first time, gave details of the enmities in his statement during the trial. These enmities were not seriously disputed or considered factually incorrect on behalf of the appellants. The objection was that the detail of the murders was A not given in the F.I.R. We are not prepared to accept this argument because the First Information Report is never a detailed document. The fact of previous murder enmities was stated therein and if the details were not furnished, it would not amount to material improvement in statement during the trial. There are three sets of accused in this case. One set of accused comprised of Jilani, Ata Muhammad, Altaf Hussain, Mansab, Akhtar Nawaz son of Yaqoob, Akhtar Nawaz son of Alam Sher (appellant), Allah Bakhsh and Mazhar Hayat. Admittedly, they are all inter related. The second set of accused comprised of Said Rasool, Ata Rasool, Ghulam Rasool (appellant), Ijaz (appellant), Ahmad Sher and Falak Sher (all inter related) and the third set is Khan Muhammad (appellant). It is correct that the three sets of accused are not inter related but according to the prosecution they belonged to one party and Khan Muhammad accused is their friend. It will be noticed that in the case regarding murder of Muhammad Khan, which took place about three years before the present occurrence, Nadir was challaned alongwith other accused. Muhammad Khan was a brother of Said Rasool and Ata Rasool accused whereas Nadir was a son of Sultan who was prosecuted alongwith Muhammad Nawaz for the murder of Gaman many years ago. Sultan aforesaid was maternal-uncle of Lungar Khan father of Sikandar deceased. In that case, Ghulam Jilani, Ata Muhammad, Allah Bakhsh, Ahmad Sher and Akhtar Nawaz son of Yaqoob were prosecution witnesses. It will, therefore, be clear that although two main sets of the accused were not related inter se but they were partymen and, therefore, had a common motive to assault Sikandar Khan deceased and his two sons. The mere fact that there was incident of murder between the parties in between the murder of Fateh All in the year 1947 and the murder of Muhammad Khan, three years before the occurrence, would not mean that the accused would have no motive to commit the present crime. It cannot be said, in the facts and circumstances of the case, that the motive set up by the prosecution was not relatable to all the accused. It is correct that the fact that Sikandar Khan had helped Nadir in his trial for the murder of Muhammad Khan three years before the present occurrence, is not mentioned in the F.I.R. but, in our view, this omission is not material because the deceased Muhammad Khan was related to Said Rasool and Ata Rasool accused while Nadir Khan was related to Sikandar Khan deceased and even Sultan father of Nadir Khan was a co-accused with Muhammad Nawaz for the murder of Gaman. In this view of the matter, there was nothing improbable that Sikandar Khan helped Nadir in that case. As such, the improvement is not material. Alam Sher P.W. Admitted that while travelling in the bus he did not apprehend any danger from the accused when they boarded the bus at Morr Chak No, 23/Alif Janoobi. This was natural because Alam Sher did not see any weapon in the hands of the accused. They had concealed their weapons under the Chaddars wrapped round their bodies. This fact 'would, therefore, not mean that the parties had no enmity or that the evidence on motive becomes in any way, doubtful.
45. The learned counsel laid much stress on the enmity of Sikandar deceased with Muhammad Shafi Gujjar and others. It was argued by the learned counsel for the appellants that Alam Sher though travelling with Sikandar deceased and related to him, was not able to give details of the case for which Sikandar deceased etc. Were proceeding to Sargodha in that bus and that the present occurrence took place near the land which was subject-matter of dispute between Sikandar Khan deceased and the Gujjars. We have considered these contentions of learned counsel for the appellants and find them without any substance. Alam Sher P.W. Had come to see his brother in Chak No, 23/Janoobi. He stayed there for two days. He was returning to his village Botala on the day of occurrence in bus. Sikandar Khan deceased etc. Also boarded the same bus. There is nothing in evidence to show that Alam Sher P.W. Visited the house of Sikandar before the present occurrence or that he was in any way concerned with the litigation between Sikandar deceased and the Gujjars. It was, therefore, not necessary for him to know the details of the case for which Sikandar Khan deceased etc. Were proceeding to Sargodha. The second point that the place of occurrence was near the land in dispute between Sikandar deceased and the Gujjars is not borne out from the record of the case. It is in evidence that Alam Sher P.W. Boarded the bus from Adda Chak No, 23/Janoobi for proceeding to Sargodha. Sikandar Khan deceased etc. Also boarded the bus from the same Adda. The land of Gujjars was near the said Adda Chak No, 23/Janoobi from where the complainant and Sikandar deceased etc. Boarded the bus. Ata Muhammad etc. Accused boarded the bus from the Morr of Chak No, 23/Alif Janoobi and the occurrence took place at Adda Chak No, 80/Janoobi in the area of Chak No, 81/Janoobi. The land in dispute between Sikandar deceased and the Gujjars was situated near Adda Chak No, 23/Janoobi from where Alam Sher P.W. Etc. Had boarded the bus and not near Adda Chak No, 80/Janoobi where the occurrence took place. The argument of the learned counsel for the appellants seems to be based on some misconception while reading the evidence on record. We are, therefore, of the opinion that the prosecution has fully established motive against the accused. We asked the learned counsel for the appellants that if Sikandar Khan deceased etc. Were assaulted by persons other than the present accused, why the real culprits were left out and the present appellants including their co-accused were substituted as accused in this case. The learned counsel for the appellants submitted that the appellants were not bound to explain this reason. Secondly, it was argued by him that the three eye-witnesses were not present at the spot and as such, they brought this case against the appellants and their co-accused on account of suspicion. According to the learned counsel, the persons who really saw the occurrence did not support the prosecution and as such, the accused in this case were involved falsely on account of enmity. These arguments are not acceptable as will be seen in the latter part of this judgment.
11. The learned counsel for the appellants contended that no reliance could be placed on the evidence of the three eye-witnesses because firstly, they were related to the deceased and were inimical towards the accused.
46. Secondly, they were disbelieved during the investigation as well as by the learned trial Judge against ten acquitted accused and as such, could not be relied upon against the present appellants. Thirdly, the witnesses have made material improvements in their statements which make them unreliable. Fourthly, the eye-witnesses could not have seen the occurrence which took place inside the bus while standing outside the said bus. Fifthly, the names of these eye-witnesses as the persons present at the spot were not mentioned in the three inquest reports and that the injuries on the person of Qamar Abbas P.W. Were fabricated. It was, therefore, argued that discarding the evidence of these witnesses, the appellants be acquitted.
47. ' It is Correct that Alam Sher and Qamar Abbas P.Ws. Were related to Sikandar Khan deceased. The injured eye-witnesses Qamar Abbas was a brother of the wife of Shafi deceased. Alam Sher P.W. Was a cousin of Sikandar Khan deceased. His sister was the wife of Sikandar deceased. These two witnesses were, therefore, related to the deceased and had enmity with the accused. Javaid Akhtar P.W. Was not related to the deceased.
48. It was admitted by him that Ghulam Abbas an uncle of Akhtar Nawaz accused son of Yaqoob had abducted a sister of Muhammad Arif. They were living as husband and wife. It was further admitted by him that Shahid Hussain, a brother of the said Arif was injured alongwith him by Ghulam Abbas aforementioned. It was further admitted by him that he was challaned for the murder of Arif in 1971 and that Ghaus Muhammad, a maternal- uncle of Akhtar Nawaz accused son of Yaqoob was cited as a witness against him. He, however, added that he had patched up the matter with Arif Hussain. Thus, Javaid Akhtar P.W. Was also on inimical terms with the accused. It will, therefore, be necessary to seek independent corroboration to their evidence before placing reliance on them. It is correct that ten accused were found innocent during investigation by the police but they were acquitted by the learned trial Judge on the ground that there was no independent corroboration by way of recoveries from them. The principle of sifting the evidence and seeking corroboration against each accused adopted by the learned trial Judge was correct and as such, we are of the view that mere fact that ten co- accused of the appellants were found innocent by the police or they were acquitted by the learned trial Judge would not mean that the same benefit be given to the present appellants. The case against the appellants was distinguishable from the one against their acquitted co-accused. Altaf Hussain, a co-accused of the present appellants though found guilty during investigation, was acquitted by the learned trial Judge because there was no independent corroboration to the ocular account against him. As such, the contention that in view of the acquittal of the ten accused, the present appellants be also acquitted is without any merits.
49. ' We have minutely gone through the evidence of the three eye-witnesses during the trial. In the F.I.R., the sequence of occurrence was stated in the following manner:- ' Ata Muhammad accused fired the first shot on the chest of Shafi deceased who fell down whereafter Allah Bakhsh accused and Ghulam Rasool accused fired on the head of Shafi deceased.
50. ' Ijaz accused gave hatchet blow to Allah Bakhsh deceased who warded off the blow and got injuries on his hand. Thereafter, Jilani accused fired on the chest of Allah Bakhsh who fell down. Then Said Rasool gave two hatchet blows to Allah Bakhsh deceased. Altaf and Ata Rasool caught Sikandar deceased from hair and dragged him out of the bus. Akhtar Nawaz accused son of Yaqoob exhorted his co-accused whereafter Ahmad Sher fired at the chin of Sikandar deceased who fell down. Thereafter, Mansab and Mazhar accused fired on the head of Sikandar deceased.
51. ' Qamar Abbas P.W. Started running towards South of the bus. Khan Muhammad accused and Falak Sher accused fired and injured him ' All the accused continued raising Lalkaras and firing.
52. ' The same sequence of occurrence was stated by the witnesses in their statements under section 161, Cr.P.C.
53. ' During the trial, the three eye-witnesses described the occurrence in the folliwng sequence:- ' Ata Muhammad accused fired on the chest of Shafi deceased who fell down. Allah Bakhsh and Ghulam Rasool fired on the head of Muhammad Shafi.
54. ' Ijaz accused gave hatchet blow to Allah Bakhsh deceased. He tried to ward off the blow and got injuries on his hand. Jilani accused fired on the chest of Allah Bakhsh who fell down. Said Rasool gave two hatchet blows to Allah Bakhsh. Ijaz gave hatchet blow on the thigh of Allah Bakhsh. Akhtar Nawaz accused son of Alam Sher fired on the scapula of Allah Bakhsh. Akhtar Nawaz son of Alam Sher and Khan Muhammad also fired in the bus.
55. ' Altaf and Ata Rasool accused caught Sikandar deceased from hair and dragged him out. Akhtar Nawaz accused son of Yaqoob exhorted his co-accused whereafter Ahmad Sher accused fired on the chin of Sikandar deceased. Mansab and Mazhar accused fired on the head of Sikandar deceased.
56. ' Qamar Abbas P.W. Started running. Khan Muhammad fired which hit on the foot of Qamar Abbas. Falak Sher accused fired which hit the thigh of Qamar Abbas.
57. ' We have underlined the precise improvements made by the eye-witnesses. A perusal of these would show that there was no improvement with respect to the murders of Muhammad Shafi and Sikandar Khan. There was improvement regarding the injuries inflicted on the person of Allah Bakhsh deceased. There was no improvement so far as the firing by Khan Muhammad and Falak Sher accused on Qamar Abbas P.W. Was concerned though during the trial the eye-witnesses gave the location of the injuries as well. It was stated by Alam Sher complainant in the F.I.R. That all the accused continued firing during the occurrence. The fact that ljaz accused gave hatchet blow on the thigh of Allah Bakhsh deceased and that Akhtar Nawaz accused son of Alam Sher caused fire-arm injury on the scapula of Allah Bakhsh deceased are not mentioned in the F.I.R. Or in the statements under section 161, Cr.P.C. Similarly, the fact that Akhtar Nawaz and Khan Muhammad fired inside the bus is also not mentioned therein but it is stated in the F.I.R. That Khan Muhammad and Akhtar Nawaz fired at the spot.All the accused initially entered the bus. The two deceased namely Muhammad Shafi and Allah Bakhsh were murdered inside the bus. The eye-witnesses were present outside the bus at that time Both these deceased fell inside the bus after receiving injuries from the accused and those were described in the F.I.R. As well as in the statements under section 161, Cr.P.C. The accused continued firing after they fell in the bus: The injuries received by these two deceased inside the bus after they had fallen could not obviously be observed by the eye-witnesses and it was apparently for that reason that those injuries were not specifically attributed to the accused in the F.I.R. Or in the statements under section 161, Cr.P.C. We, therefore, find that the improvements made during the trial were not material and did not affect the merits of the case. Similarly, the improvements regarding the location of injuries on the person of Qamar Abbas P.W. Were not material. The learned counsel had contended that the eye-witnesses were standing outside the bus and, therefore, could not have seen the accused causing specific injuries to the two deceased inside the bus as they were at higher level.
58. As held above, the witnesses were present outside the bus when all the accused were inside the bus. The eye- witnesses were, therefore, able to see clearly those injuries which had been caused to Muhammad Shafi and Allah Bakhsh deceased before they fell on the floor of the bus. The accused after murdering Muhammad Shari and Allah Bakhsh came out of the bus with Sikandar Khan deceased who was Murdered outside the bus. It was at that stage of the occurrence when Qamar Abbas P.W. Started running to the South of the bus and was fired at by Khan Muhammad and Falak Sher accused. We do not find any improbability in the prosecution evidence on this point. It is correct that the names of the eye-witnesses are not mentioned in the three inquest reports prepared by S.I. Ghulam Qasim at the spot. This omission would not mean that the three eye-witnesses were not present at the spot at the time of occurrence. The witnesses were not present close to the dead bodies.
59. Qamar Abbas and Javaid Akhtar P.Ws. Were present near the dead bodies. Alam Sher P.W. Had come to the spot with the police after lodging the F.I.R. As such, the omission to record the presence of the eye-witnesses in the inquest reports did not materially affect the prosecution case.
60. ' Criticising the evidence of the three eye-witnesses individually, the learned counsel for the appellants contended that Alam Sher P.W. Was a resident of Botala, about 40 miles from the place of occurrence; that he was related to the deceased; and that the narration of facts given by him in the F.I.R. Indicates that he was a doubtful witness. Alam Sher P.W. Gave a reasonable explanation of his presence at the spot at the time of occurrence. He was resident of Botala and had come to Chak No, 23/Janoobi to see his brother who owned land in that Chak. There was nothing improbable in his this conduct. People do visit their relatives residing at different places. The occurrence in this case took place at 8-30 a.m. And the F.1.R. Was lodged at 9-05 a.m. i,e, after about 35 minutes of the occurrence at the police station, about three miles from the spot. Qamar Abbas P.W. Was medically examined at 11-25 a.m. i,e, after about three hours of the occurrence. He was sent for medical examination by the police. It was, therefore, not possible for the prosecution to send for Alam Sher P.W.
61. All the way from Botala to instal him as complainant in this case. If Alam Sher had not been present at the spot, the report could have been lodged by Qamar Abbas who was injured at the place of occurrence. Kri the presence of Qamar Abbas, there was no need to summon Alam Sher P.W. For lodging the F.I.R. In our view, he was present at the spot. He witnessed the occurrence. The narration in the F.I.R. Did not in any way, make him a doubtful witness, ' The learned counsel for the appellants argued that Qamar Abbas P,W. Was also not present at the spot; that he was not injured at the spot as stated by the eye-witnesses; and that he also is a chance witness in the instant case, We have considered these arguments and find them without any merits. Qamar Abbas P.W.
62. Received five fire-arm injuries on his person out of which two were of grievous nature. We are not prepared to accept the argument of learned counsel for the appellants that these injuries were fabricated. The evidence of Medical Officer is clear and we are of the view that Qamar Abbas P.W. Was injured with fire-arm. The injuries do not appear to be the result of rifle shots. These were caused by police which are attributed to Khan Muhammad accused. This witness being injured, his presence at the spot during the occurrence cannot, therefore, be doubted. It appears that Qamar Abbas witnessed the occurrence while standing outside the bus when all the accused were present inside the bus. At that stage, either after a Lalkara by the accused or even if there was no Lalkara, he started running towards south of the bus and was fired at by the accused. The injuries are on the back side of his body. This fact lends support to the eye-witness account that he was fired at by the accused when he was running away from the spot. We are, therefore, of the view that Qamar Abbas was also present at the spot and witnessed the occurrence. The learned counsel finally criticised the evidence of Javaid Akhtar P.W.
63. By contending that it was stated by this witness that he was proceeding to Sargodha for a telephone call to Rawalpindi. The learned counsel argued that there was a telephone exchange at Bhagtanwala and as such, the telephone call could have been booked from that place instead of going to Sargodha for that purpose. It was, therefore, argued that this witness was a chance witness and has come forward to depose against the accused on account of enmity. We have considered these contentions. It is correct that trunk call facilities were available at Bhagtanwala but it is well-known that direct dialing facilities are available from Sargodha to Rawalpindi. This facility makes the telephone call easy and one can talk to the other and without loss of time. If this witness had got a call booked from Bhagtanwala, it might have taken hours to connect the call for Rawalpindi. We, therefore, do not find any improbability in his claim that he was going to Sargodha for a telephone call to Rawalpindi. He was one of the passengers of the bus and as such, could not be considered to be a chance witness.
64. ' We are, therefore, of the view that he was also present at the spot and witnessed the occurrence. The last argument of the learned counsel for the appellants regarding the ocular evidence was that the police during investigation recorded statements of many other persons residing near the place of occurrence. They were not cited as prosecution witnesses and as such, it will be presumed that they were not prepared to support the prosecution case. It was further contended by the learned counsel that the Investigating Officer joined three other persons as suspects in this case which fact also makes the prosecution case doubtful. It is correct that three persons other than the fifteen accused named in the F.I.R. Were made to join the investigation as suspected accused in this case. They were not challaned because there was no evidence to connect them with the present occurrence. Thus, mere fact that those three persons were associated in the investigation would not mean that the ocular account in the instant case should be discarded. The Investigating Officer did record statements of some persons residing near the place of occurrence. They might or might not have supported the prosecution case during investigation but it is well-known that people in such like cases do not come forward to appear as witnesses for or against the accused. The failure of the prosecution to cite or produce those persons as prosecution witnesses, therefore, did not materially affect the prosecution case.
65. ' The learned counsel for the appellants challenged the recoveries of crime empties as well as the crime weapons from the accused in this case.
66. ' It was contended by him that according to prosecution Ijaz accused got recovered hatchet P.25 from the Dera of Said Rasool accused. It was, therefore, argued that the recovery could not be said to have been effected from the possession of Ijaz accused which is supported by only Muhammad Sher P.W., and interested witness.
67. Regarding recovery at the instance of Khan Muhammad, it was pointed out by the learned counsel that the gun P.34 belonged to Shafi Gujjar and as such, Khan Muhammad appellant could not be held to be in possession of the same. According to the learned counsel, this recovery was witnessed by Muhammad Sher P.W.9 who was inimical towards the accused. It was contended by the learned counsel that the recovery from Ghulam Rasool of carbine P.36 and from Akhtar .Nawaz accused son of Alam Sher carbine P.38 was witnessed by Gul Muhammad P.W. Only who was an interested witness. It was, therefore, argued that the recoveries having been witnessed by interested witnesses could not furnish corroboration to the evidence of three interested eye- witnesses.
68. We have considered these contentions of learned counsel for the appellants. Ijaz accused on 25-2-1980 led to the recovery of hatchet P.25 from the Dera of his acquitted co-accused Said Rasool. According to the prosecution evidence, Said Rasool was also armed with a hatchet at the time of occurrence. As such, even if this recovery is believed, it could not be said nor is there any evidence that the precise hatchet P.25 was owned by ijaz accused. The said hatchet could also be the ownership of Said Rasool accused. Ijaz accused might be having only a knowledge that the hatchet was lying there. Mere knowledge of the hatchet lying at the place of occurrence would not mean that he was in exclusive possession of the same. As such, we find that the recovered hatchet P.25 i.t the instance of Ijaz accused could not be said to be exclusively owned or possessed by him. Moreover, the hatchet was recoverd on 25-2-1980 i,e, after about six days of the occurrence. It was, therefore, not possible that the hatchet P.25 could have remained stained with human blood during these days.
69. We, therefore, are of the view that the recovery of hatchet P.25 would not corroborate the ocular account of this case against Ijaz appellant.
70. Khan Muhammad accused led to the recovery of gun P.34 from beneath of Surkanda reeds lying in front of his house. Muhammad Sher P.W.9 who witnessed the recovery, no doubt was on inimical terms with the co- accused of Khan Muhammad but had no direct enmity with Khan Muhammad accused. As such, we do not find anything to disbelieve Muhammad Sher P.W. Against Khan Muhammad accused. It is correct that the gun P.34 was a licensed gun of Shafi Gujjar but the recovery S was effected from the possession of Khan Muhammad accused. He might have borrowed the same from Shafi Gujjar or Shafi Gujjar himself might have given the same to Khan Muhammad accused for use during the present occurrene. We, therefore, are satisfied that Khan Muhammad accused got recovered gun P.34 alongwith cartridges which were taken in possession vide memo.
71. Exh.P.Z. Ghulam Rasool and Akhtar Nawaz accused son of Alam Sher were arrested by the police on 26-2- 1980 Carbines P.36 and P.38 were respectively recovered from them in the presence of Gul Muhammad P.W.10. Gul Muhammad P.W. Admitted that Nadir, a cousin of his father was challaned for the murder of Muhammad Khan about 2/3 years before the present occurrence and that the said Muhammad Khan was related to Ghulam Rasool and Said Rasool accused, U but this fact alone would not mean that his evidence should be discarded.
72. We find that Muhammad Sher P.W.9 and Gul Muhammad P.W.10 were both supported by S.I. Ghulam Qasim P.W.14 who investigated the present' case. The Investigating Officer had no enmity with the accused nor any hostility was suggested against him. During investigation of this case, he and his Circle Officer A.S.P. Shaukat Javaid both V found ten co-accused of the four appellants innocent and placed them in column No,2 of the challan. He, therefore, appears to have investigated the case without usual prejudice or bias against the accused. We find him a reliable witness. He has fully supported the recoveries from the accused.
73. So far as the recoveries of the crime empties from the place of occurrence is concerned, these are supported by Allah Bakhsh P.W.8 and S.I. Ghulam Qasim P.W.14. Allah Bakhsh is, no doubt, an interested witness but as stated above, he has been supported by S.I. Ghulam Qasim whom we have no reason to disbelieve. S.I.
74. Ghulam Qasim cannot be disbelieved simply because he was a Police Officer and investigated the present case. Reliance for this is placed on Kamir v. Nazir Ahmad and others 1980 SCMR 791. It was held by their Lordships that:- "Even though witness Khushi Muhammad was not produced, and there might have been some litigation between the respondent and the recovery witness Sanata, yet the evidence of the Investigating Officer could not be brushed aside, specially when there was no motive on the part of the complainant party to falsely implicate the respondent. There is no rule that the evidence of a Police Officer as to the recovery of incriminating articles cannot be accepted, whatsoever the circumstances of the case."
75. ' The crime empties were firstly deposited in the Malkhana of the police station on 20-2-1980 i,e, next day of their recovery. These were sent to the Forensic Science Laboratory on 21-2-1980 but were re-deposited in the Malkhana on that very day because the Foot Constable could not obtain the required docket. These parcels were again given to F.C. Muhammad Inayat P.W.4 by H.C. Muhammad Yousaf P.W.5 on 23-2-1980. These were taken to the Laboratory on that very day but were returned with an objection that instead of three, there should have been six seals on the parcels. He brought them back to the Investigating Officer for getting the objection removed on 20-2-1980. The Investigating Officer removed the objection on 20-2-1980 and made a note to the effect on the bottom of recovery memos. Exh.P.L. And Exh.P.M. These were thereafter, as stated by F.C.
76. Muhammad Inayat P.W.4, delivered to the Forensic Science Laboratory on 24-2-1980. The crime weapons were recovered from the accused on 25-2-1980 to 26-2-1980 and 27-2-1980. These were delivered at the Forensic Science Laboratory on 3-3-1980. According to the report of Director, Forensic Science Laboratory Exh.P.MM.; the crime empties P.19/3, 6 recovered from inside the bus and crime empties P.20/3, 4 recovered from outside the bus were found to have been fired from gun P.34 (Khan Muhammad accused). The crime empty P.19/1 recovered from inside the bus and two crime empties P.20/1, 2 recovered from outside the bus were found to have been fired from the carbine P.36 (Ghulam Rassol accused) and the crime empties P.19/4, 5 recovered from inside the bus had been fired from pistol P.38 (Akhtar Nawaz accused son of Alam Sher). It was contended by the learned counsel for the appellants that the crime empties and the crime weapons were delivered in the Laboratory on 3-3-1980 and as such, the possibility of fabrication of evidence could not be ruled out. We have gone through the report Exh.P.MM.; and find the contention of the learned counsel as without any basis. The ten crime empties in two separate parcels were delivered vide Lab. No,208/80 whereas the crime weapons were delivered in the Laboratory vide Lab. No,224/80. If all these had been received at one and the same time, one Lab. No, must have been given. The two separate Lab. No, clearly support the evidence of B.C. Muhammad Yousaf P.W.5 and F.C. Muhammad Inayat P.W.4. In view of this, we are of the opinion that the recoveries of crime empties and the recoveries of crime weapons from the accused fully corroborate the eye-witness account in this case.
13. The three eye-witnesses implicated the appellants and their co-accused in their evidence during the trial.
77. Their testimony is supported by the evidence on recoveries and motive as well as by the medical evidence. We are not prepared to accept the argument of learned counsel for the appellants that the present appellants and their co-accused were substituted for the real culprits. If the complainant or the eye-witnesses wanted to implicate Muhammad Shafi Gujjar and others, they could easily have added their names alongwith the accused of this case. They were also enemies and if they had been present at the place of occurrence, the complainant or the eye-witnesses would not have excluded their names from this case. The ten accused were acquitted by the learned trial Judge because there was no independent corroborating evidence in the form of recoveries against them. The occurrence took place during day time. The F.I.R. Was lodged within 35 minutes of the occurrence and all the accused were named therein. The eye-witnesses made consistent statements so far as the present four appellants are concerned. Even if there were one or two improvements in their statements during the trial, it would not materially affect the merits of this case against the appellants. The presence of crime empties inside and outside the bus clearly proves that these were fired by the three appellants who were armed with fire-arms at the time of occurrence. It was contended by the learned counsel for the appellants that no one of the four appellants is said to have caused any injury to Sikandar Khan deceased and as such, they could not have been convicted for his murder. It was further contended that according to the F.I.R. Only ljaz appellant caused injuries on the hand of Allah Bakhsh deceased. No injury to Allah Bakhsh deceased was attributed to the remaining three appellants. It was, therefore, argued that the appellants could not be punished for the alleged murder of Allah Bakhsh deceased as well. We have considered these arguments of the learned counsel. Muhammad Shall deceased was fired at firstly by Ata Muhammad acquitted accused whereafter he fell down. Allah Bakhsh and Ghulam Rasool then fired at Muhammad Shafi on his head. The eye-witnesses were consistent in this version of prosecution case. There was one inlet wound and other exit wound on the head of Muhammad Shafi besides a fire-arm injury on the chest. The presence of crime empty which has been found to have been fired from the carbine P.36 recovered at the instance of Ghulam Rasool accused, corroborates the ocular account as well as the medical evidence that this injury was caused as a result of fire by Ghulam Rasool.
78. Allah Bakhsh deceased was given the first hatchet blow by ljaz. Thereafter, he was fired at by Jilani and then Said Rasool accused gave hatchet blows to him whereafter according to the improved version, Akhtar Nawaz accused son of Alam Sher fired on his scapula. According to the report Exh.P.MM., two crime empties P.19/4, 5 recovered from inside the bus had been fired from the gun P.38 of Akhtar Nawaz. As stated above it was not possible for the eye-witnesses to judge in that melee the appellant. It is in F.I.R. That all the accused remained firing. This precise location of the injuries caused by the fire of Akhtar Nawaz improvement, therefore, does not affect the veracity of the eye-witnesses. Sikandar Khan deceased was fired at after he had been dragged out of the bus. According to the report Exh.P.MM., crime empties P.20/1, 2 had been fired from pistol P.36 recovered from Ghulam Rasool accused. It is correct that the eye-witnesses did not attribute any injury to Ghulam Rasool on Sikandar Khan deceased. The presence of three accused namely, Khan Muhammad, Ghulam Rasool and Akhtar Nawaz son of Alam Sher at the spot at the time of occurrence is established and as such, we are of the view that Sikandar Khan deceased was also killed by the fires of these accused.
14. So far as Muhammad ljaz accused is concerned, the recovery of hatchet P.25 at his instance has not been established beyond reasonable doubt. The said hatchet, therefore, could not be used as a corroborating piece of evidence against him. We, therefore, gave him the benefit of doubt, accept his appeal and acquit him of all the charges. His sentence of death is not confirmed.
79. Ghulam Rasool, Akhtar Nawaz son of Alam Sher and Khan Muhammad accused were present at the spot at the time of occurrence. They caused intentional murders of Muhammad Shafi, Allah Bakhsh and Sikandar Khan deceased and made murderous assault on Qamar Abbas P.W. Their convictions under section 302/34, P.P.C.
80. On three counts and under section 307/34, P.P.C. Are maintained. It was argued by the learned counsel for the appellants that specific injuries to the three deceased having not been specificaly attributed to all the accused, they should be acquitted of the charges. This argument of learned counsel is not tenable. In the circumstances of this case, if a particular accused has not given the fatal blow or that.His liability is only vicarious, may be a good ground for imposing lesser penalty but cannot be a ground for complete acquittal of the accused. The appellants alongwith their co-accused committed the three murders and made murderous assault on Qamar Abbas P.W. With an intention of causing death in a brutal manner. They all, therefore, will be considered to have shared common intention punishable under section 34, P.P.C. Reliance is respectfully placed on Fateh Khan v.
81. The State PLD 1963 SC 89. The evidence against Ghulam Rasool accused is consistent. It is proved on record that he fired inside and also outside the bus. We, therefore, maintain his sentences under section 302/34, P.P.C. On three counts as well as under section 307/34, P.P.C. His sentences of death on three counts are confirmed.
82. So far as Akhtar Nawaz accused son of Alam Sher is concerned, he is said to have fired at Allah Bakhsh deceased after the fire by Jilani accused on the chest of Allah Bakhsh. It is not clear from the medical evidence as to which of these two injuries was individually fatal to cause death. In this view of the matter, we are of the opinion that capital punishment be not awarded to him for the murder of Allah Bakhsh deceased. Lie did not cause any injury to Muhammad Shafi and Sikandar Khan deceased. We, therefore, alter his sentences under section 302/34, P.P.C. On three counts from death to imprisonment for life each. Khan Muhammad accused also fired inside and outside the bus. The shots fired by him from outside the bus hit Qamar Abbas P.W. There is evidence that he fired inside the bus as well though it is not stated whether those shots hit any of the deceased or not. In view of this, we are of the opinion that capital sentence be not awarded to him. Accordingly, we alter his sentences under section 302/34, P.P.C. On three counts from death to imprisonment for life. The sentences of death of Akhtar Nawaz accused son of Alam Sher and Khan Muhammad are not confirmed. The sentences of fine and compensation under section 302/34, P.P.C. On each count are maintained. The sentences under section 307/34, P.P.C. Are maintained. The sentences of imprisonment shall run concurrently.
15. In view of the above, Criminal Revision No,457 of 1982 which was only ordered to be heard alongwith the appeal, is dismissed in limine.