MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal 369 of 1984, connected Murder Reference No.190 of 1984 and Criminal Revision No.511 of 1984 filed by the complainant against the acquittal of Fateh Muhammad and for the enhancement of sentence of four appellants namely, Hakim Khan, Ahmad Yar, Zafar Iqbal and Muhammad Muzaffar from imprisonment of life to death for the murder''43.f Saleh Muhammad deceased, arise from the, judgment of the learned Sessions Judge, Khushab whereby he, on 2-4-1984 while acquitting Fateh Muhammad convicted Hakim Khan (32), Muhammad Khan (26), Ahmad Yar (35), Zafar Iqbal (14) and Muhammad Muzaffar (40) under section 148, P.P.C. And section 302/1,49, P.P.C. For the tripple murder of Ahmed Sher (25), Sultan (38) and Saleh Muhammad (35) and sentenced them as under:-
(i) Under section 148, P.P.C..--All the appellants to two years, R.I.
(ii) Under section 302/149 P.P.C. For the murder of Ahmad Sher and Sultan.--All the appellants to death and a fine of R s . 5 0 , 0 0 0 ,each or in default thereof 4 years, R.I. Each on each count.
(iii) Under section 302/149, P.P.C. For the murder of Saleh 1Tuhammad.- Muhammad Khan appellant to death and the ramaining four appellants namely Hakim Khan, Ahmad Yar, Zafar lqbal and Muhammad. Muzaffar to imprisonment for life and a ,fine of Rs.50,000 or in deafult thereof four years, R I. Each. It was directed that the fine, if realized, half of it be paid as compensation to the legal heirs of the deceased. We propose to dispose of them through single judgment. It may be noted that Fazal Elahi co-accused is still an absconder.
2. The occurrence took place on 20-7-1983 at Peshiwela in the area of village Ukhli Mohla, six miles away from Police Station IGanlial, District Khushab. F.I.R. Exh. P.M. Was lodged by Sher Ahmad P.W.9 brother of Saleh Muhammad deceased at Police Station Khushab on the same day at 4-30 p.m. Which was recorded by Gul Jahan S.H.O. P.W.12.
3. Hakith Khan, Ahmad Yar, Zafar Iqbal, Muhammad Muzaffar and Muhammad Khan appellants are the son, sister's son, first cousin and servant of Fazal 'Elahi absconder respectively. Ahmad Sher deceased was son of the maternal-uncle of Saleh Muhammad deceased. Muhammad Saleh deceased was a friend of Saleh Muhammad deceased.
Sher Ahmad complainant P.W.9 is brother of Saleh Muhammad deceased. Jahan Khan P.W.10 is brother of Ahmad Sher deceased. Fazal absconder is first cousin of the father of Saleh Muhammad deceased. The parties are thus inter-related.
4. The motive as alleged by the prosecution in the F.I.R was that Saleh Muhammad deceased had developed illicit relation with Mst. Nasreen daughter of Fazal Elahi absconder accused. So, ten months before the present occurrence, Fazal Elahi alongwith others, launched murderous assault on Saleh Muhammad and a case under section 307, P.P.C. Was registered at Police Station Ganjial against them on 20-9-1982. Thereafter, on the intervention of Brothery, compromise was effected between the parties. Fazal Elahi feeling still unsatisfied, was keeping the grudge in his mind, hence this occurrence.
5. As for the main occurrence, it has been stated that on the morning of eventful day, Sher Ahmad P.W.9, Saleh Muhammad deceased, Ahmad Sher deceased, Muhammad Sultan deceased and Jan Muhammad P.W. (not produced) came to the Dera of Jahan Khan P.W.10 situated in village Shumar. Saleh Muhammad sent for a taxi car, which was brought by Fateh Muhammad Taxi-driver, the acquitted accused. Sher Ahmad P.W.9 and Jan Muhammad P.W. (not produced) rode on the motor-cycle while three deceased and Jahan Khan P.W.10 sat in the taxi-car and all of them left for the house of .Mushtaq situated in village Sheikhu for lunch. Mushtaq and Ahmad Sher deceased had been living together in Saudi Arabia, so the former had invited Ahmad Sher deceased and his companions to a lunch. At Peshiwela on the same day when the three deceased, Sher Ahmad P.W.9 Jahan Khan P W.10 and Jan Muhammad P.W. (not produced) were returning from village Sheikhu after having lunch and Sher Ahmad, and Jan Muhammad were on the motor-cycle 30/35 Karams behind the taxi-car, in which the thi.Ee deceased and Jahan Khan P.W.10 were travelling; that wagon No.T.S. 54 of light blue colour driven by Fazal Elahi absconder appeared from the front side and struck against the taxi car. Immediately thereafter Fazal Elahi, Hakim Khan and Ahmad Yar armed with guns alighted from the front side of wagon and simultaneously Zafar Iqbal and Muhammad Muzaffar armed with rifles and Muhammad Khan armed with gun came out of the rear seat of the wagon. Fazal Elahi raised Lalkara that they had come to take revenge of their insult. Fazal Elahi absconder and the appellants opened fire at Saleh Muhammad. The shots hit him while he was in the car. On this Ahmed Sher and Muhammad Sultan opened the door of taxi car, came out of it and started running to save their lives but were gunned down by the appellants and Fazal Elahi co-accused.
Jahan Khan P.W. However escaped unhurt and reached the place where Sher Ahmad P.W.9.And Jan Muhammad P.W. (not produced) were standing and watching the incident. The accused then removed licensed rifle of Jahan Khan P.W.10 from the car and left the spot in the same wagon shouting that they had finished their enemies. They also took away Fateh Muhammad taxi driver acquitted accused with them. After the departure of the accused from the place of occurrence, the aforesaid eye-witnesses came to the spot. They found that Saleh Muhammad, Ahmad Sher and Muhammad Sultan had succumbed to their injuries. Sher Ahmad P.W.9 also saw that licensed gun and licensed pistol of Saleh Muhammad deceased were lying in the car. It has also been stated in the F.I.R. That while going to village Sheikhu, Fateh Muhammad acquitted accused was given money by Jahan Khan P.W.10 for purchasing petrol but he took considerable time to come bakk and when enquired as to why this delay, he replied that the man at petrolpump was not present.
So, Fateh Muhammad was suspected as a conspirator/abettor who had informed the appellants and Fazal Elahi, about the movements of the deceased.
6. Dr. Pirzada Syed Muhammad Alam Shah P .W.11 conducted post-mortem examinations on the three dead bodies on 21-7-1983. He found following injuries on the person of Muhammad Sultan deceased: -
(1) A circular fire-arm lacerated wound of entry I" x 1" x deep chest on the front of right side of chest 1" lateral to sternum slight below the level of right nipple.
(2) A circular fire-arm lacerated wound of entry 4" x x deep x chest through and through at the left nipple on front of chest.
(3) Circular fire-arm lacerated wound of entry 1" x +" x deep chest through and through on the front lower side of left chest.
(4) A fire-arm lacerated wound circular exit 1" x i" x deep chest through and through on the back of right lateral side of chest.
(5) A fire-arm lacerated wound of exit 1" x I" x deep chest through and through on the right side back of chest the level of lower 1/3rd level of right scapula.
(6) A fire-arm lacerated wound exit 1" x I" x deep chest through and through on the back right side chest 4" below the injury No .5 .
(7) A circular fire-arm lacerated wound of entry 1" x 1" deep thigh muscle on the left lateral side in the middle. There was deformity of left thigh (fracture of the shaft of left femer bone).
Note: On palpation medial side of left thigh had the same level of the injury, arounded foreign body palpable. By giving incision at this site (a pellet recovered under the muscular layer) pellet sealed in a bottle.
(8) A fire-arm lacerated wound 11" x 1" x muscle deep making a furrow on the lateral side of left thigh.
(9) An abrasion 1" x i" on the left side of chin."
On the internal examination, he found the sixth rib on the front fractured, the right scapula in the lower 1/3rd level perforated, the parietal and visceral pleura perforated on . The left side of the chest and right side of the chest at the level of the injuries. The chest wall cavity contained blood clots/one litre on each side. The trachea was perforated. The right lung was lacerated and punctured and the left lung was also lacerated and punctured. Ascending aorta was punctured and lacerated. Blood vessels corresponding to the injuries were lacerated. The stomach was punctured and full of partially digested food. In his opinion, the cause of death was shock and haemorrhage as a result of injuries Nos. 1 to 7 which caused damage to the vital organs, right lung, left lung, ascen aorta, trachea, liver, stomach and also caused fracture of left femer shaft. Injuries Nos. 1 to 6 were grievous and dangerous to life. Injury No.7 was grievous. The rest of the injuries were simple. Injuries Nos. 1 to 8 were caused by the fire-arm. Injury No.9 was caused by blunt weapon.
The probable time between the injuries and the death was within 10 to 15 minutes and between death and post-mortem was about 15 to 16 hours. The doctor found following injuries on the dead body of Saleh Muhammad: -
(1) A fire-arm lacerated wound of entry (circular) i" x i" x brain deep on the left side of the skull.
(2) A fire-arm lacerated wound 14" x 4" x skull deep making a furrow on the upper side of the head.
(3) A fire-arm circular lacerated wound i" x i" x through and through on the front of left ear. The upper jaw and lower jaw fractured.
(4) A fire-arm lacerated wound of exit of injuries Nos.1, 3 measuring 5" x 2" whole thickness of the lower lip extending to the mendable and upto neck on the right side. The lower jaw was fractured and damaged badly. The blood vessels muscles on the right side of the neck were lacerated.
(5) A circular fire-arm lacerated wound of entry 14" x 1:" x deep x through and through on the front upper side of left shoulder.
(6) A fire-arm lacerated wound of exit 14" x 14" x through and through on the upper side back of left shoulder. The upper , part of the left humoros head, coracoid process and acromion process of the left scapula was fractured (the bone of left shoulder joint fractured).
(7) A fire-arm lacerated wound of entry 24" x 14" x through and through on the front right shoulder upper., side. The underlying upper ' part of the humoros head, coracoid process, acromion process of right scapula was fractured.
(8) A fire-arm lacerated wound of exit 24" x 1" x through and through on the back upper side of the right shoulder.
(9) Firearm lacerated wound of entry 1" x 1" deep left shoulder on the outer side.
(10) A fire-arm lacerated wound on the left -lower side of chest measuring 1" x 1" x chest deep.
(11) Multiple small lacerated wounds on front of chest and arms small glass pieces were impected in the wound. Small pieces recovered and sealed in a bottle."
On internal examination the doctor found that the scalp on the left side and upper side front was lacerated, punctured. The skull, brain, echymosed and damaged, the base of skull was fractured.
The pellets traversed to the right side of the face and lower jaw resulting in the fracture of upper and lower jaws. The skull was perforated on the left side. The left chest wall was punctured. The stomach was full of partially digested food. In his opinion the death had occurred due to shock as a result of injuries Nos. 1,,%.--to 8 which caused damage to the brain, base of skull, damage to the oral cavity and fracture of the right and left shoulder joints. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 3 and 4 were grievous and dangerous to life.
Injuries Nos. 5 to 8 were grievous. The rest of the injuries were simple. The Doctor found following injuries on the dead body of Ahmad Sher:-
(1) ' A circular fire-arm lacerated wound of entry 1" x 1" x deep neck on the left lower lateral side.
(2) A fire-arm lacerated wound of entry on the left lateral side of the neck 1" below the injury No.l.
(3) A fire-arm circular lacerated wound of entry 1" x 1" x deep muscle on the outer lateral side of left shoulder.
(4) A fire-arm lacerated wound of entry 1" x 1" x muscle deep on the back upper left side of shoulder.
(5) A circular fire-arm lacerated wound of entry 1" x 1" x deep chest on the upper right side front.
(6) A fire-arm circular lacerated wound of entry 1" x 1" x through and through on the front right axillary fold.
(7) A circular fire-arm lacerated wound of exit of injury No.6 measuring 1" x 1" x through and through on the back of right axillary fold.
(8) A circular fire-arm lacerated wound of the entry 1" x 1" x through and through on the front medial side of right arm 34" below the right axillary fold.
(9) A circular fire-arm lacerated wound of exit of injury No.8 measuring I" x x through and through on the outer side back of right arm at the same level. The humorus bone was fractured."
On internal examination, the chest wall was found perforated on the right and left side of chest, the right and left chest cavity contained 11 litres blood on each side. The parietal and visceral pleura was perforated on left and right side of the chest Right and left lungs were punctured and perforated. The blood vessels corresponding to the injuries were lacerated and damaged. The stomach was full of partially digested food. In his opinion, death was due to shock and haemorrhage as a result of injpries Nos. 1, 2, 3, 5, 8 and 9 which caused damage to the left and right lungs, left croted artery and jugular veins and fracture of right humrous bone. 'The injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 3 and 5 were grievous and dangerolis for life. Injuries Nos 8 and 9 were grievous. The rest of the injuries were simple. All the injuries were caused by fire-arm. In cross-examination, the doctor stated that injuries Nos. 1, 2, 3, and 7 on the person of Sultan deceased were result of one shot while injury No.8 was an exit wound of injury No.7. Injury No.9 was an abrasion which could be the result of fall on the ground. In his case, the assailants should have fired from the front of the victim. All the injuries were caused with .12 bore gun and a pellet was also extracted from injury No.7. The Doctor also stated that the injuries Nos. 1, 2, 3 and 5 on the person of Saleh Muhammad deceased can be the result of one shot. Injury No.7 was result of a separate shot and as such the injuries found on the person o, Saleh Muhammad were result of two shots. The Doctor stated that injuries Nos.1, 2, 3, 4, 6 and 8 of Ahmad Sher deceased were result of one shot. The assailants in his case should be in his front while he fired at him. The injuries received by Ahmed Sher were caused by one shot from .12 bore gun. A pellet was also recovered from right side of his chest.
7. Gul Jahan S.H.O. P.W.12 inspected the place of occurrence on 20-7-1983. He removed gun P.15 and pistol P.16 of Saleh Muhammad deceased, bandolier P.17 containing 28 live cartridges of .32 bore Exhs. P.18/1 to 28, separate magazine P.19 and bag P.20 containing 20 live cartridges P.21/1-20, Pistol's licence P.22 and gun licence P.23 from inside the taxi car vide Memo. Exhs.P.N. Attested by Jahan Khan P.W.10 and Jan Muhammad P.W. (not produced).
The S.H.O. Also recovered six empties of 7 M.M. Rifle Exh.P.24/1 to 6, seven empties of .12 bore gun P.25/1-7 and one empty of .303 Rifle P 26 from the spot vide Memo. Exh.P.T. Attested by the same witnesses.
8. On 25-7-1983, one Alam Sher produced Muhammad Khan, Hakim Khan, Ahmad Yar and Zafar Iqbal appellants before Gul Jahan S.H.O. P.W.12 who arrested them.
Muhammad Muzaffar appellant was produced by one Rab Nawaz before the S.H.O. On 26-7-1983.
9. On 30-7-1983 Zafar lqbal appellant led to the recovery of 7 M.M. Rifle P.10 from his Dera which was taken into possession vide Memo: P.G. On the same day Muhammad Muzaffar appellant led to the recovery of 7 M.M. Rifle P.11 from Kotha of his tubewell which was taken into possession vide Memo P.H. On the same day, Muhammad Yar appellant got recovered gun P.12 from his Kotha which was taken into possession vide Memo. P.J. On the same day Hakim Khan appellant led to the recovery of gun P.13 from his residential Kotha which was taken into possession vide Memo. P.K. On the same day Muhammad Khan appellant led to the recovery of gun P.14 from his Kotha which was taken into possession vide Memo. P.L. The aforesaid Memoranda were attested by Ahmad Yar P.W.8, Muhammad. Yaqoob and Alam Khan (both not produced). The forensic science laboratory report Exh.P.H.H. Revealed that crime empty C-11 was fired from gun P.14 of Muhammad Khan appellant. The crime-empties P.7 and P.10 were fired from gun recovered from Hakim Khan. The crime empties C.8 and C.9 were fired from gun P 12 recovered from Ahmad Yar.
The crime empties C.12 and C.13 had been fired from guns recovered from Muhammad Khan and Ahmad Yar appellants. The crime empty of .303 bore, marked C.14 was fired from Rifle recovered from Muhammad Muzaffar appellant. As far Rifle recovered from Zafar Iqbal accused, it has been stated in the report that no test empties could be prepared from it for comparison with crime empties of 7 M.M. Marked at C.1 to C.6.
It may be noted that the learned trial Court has excluded evidence of the recovery of weapons from the appellants from consideration for the reason that, "corroboration by means of the empties is, however, not available to the prosecution because the sealed parcel of the same was withheld by the police until the recover of the fire-arm".
10. To prove its case the prosecution produced 12 witnesses in all. Sher Ahmad P.W.9 and Jahan Khan P.W.10 have given the ocular account of the occurrence. They have supported the version of the occurrence of the murders as detailed in the early part of the judgment. They claim to have seen the appellants and Fazal Elahi absconder. Firing shots from their respective weapons hitting the three deceased resulting in their death. Sher Ahmad P.W.9 has also deposed about the alleged motive of the appellants and Fazal Elahi to do away with Saleh Muhammad. Dr. Pirzada Muhammad Alam Shah P.W.11 has proved the post-mortem reports of the three deceased Ahmad Yar P.W. Has supported the recoveries of weapons of offence from the appellants. Jahan Khan P .W.10 has also supported the recoveries of fire-arms etc. From inside the taxi car and the recoveries of crime empties from the place of occurrence. Gul Jahan S.H.O. P.W.12 had recorded the F.I.R He effected recoveries from inside the car and from the spot and also recovered weapons of offence from the appellants. The rest of the evidence is more or less of formal nature.
11. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They however admitted their relationship inter se.................................. As far the relationship,pf the parties, Hakim Khan appellant stated that his grandfather and grandfather of Saleh Muhammad deceased were stepbrothers. The appellants have also admitted that Mst. Nasreen daughter of Fazal Elahi absconder was engaged to Saleh. MuhamMad deceased and in exchange Mst. Alam Khatoon a niece of Saleh Muhammad deceased was betrothed to Karam Elahi son of Fazal Elahi three years before the occurrence. Fateh Muhammad acquitted accused disclosed a different version of the occurrence. In reply to question No.7 he stated:- "On the day of occurrence Saleh Muhammad deceased had to get money from Mushtaq Mohajir on loan as he had purchased a car. It was, therefore, that he hired my taxi car and went to village Sheikhu alongwith Ahmad Sher who was known to Mushtaq Mohajir being his friend and Saleh was to get loan through his good offices. Sultan deceased just accompanied them as their friend. Jehan Khan P.W. Was not with them nor did he travel by my car.
Sher Ahmad P.W. And Jan Muhammad P.W. Also did not accompany us on any motor cycle. After getting the money from Mushtaq Mohajir we were coming back and when we reached near the spot at about 11/12-00 noon a car came there and three or four strangers who were clad in Malashia cloth suits started firing at our car after getting down their car. I out of fear left the car and concealed myself in the Surcandas close by and ran away through the Surcandas and informed the police at the police station. The absconder Fazal Elahi and the other accused present in Court had not come there nor did I see them at the spot. The police took me to the spot late at night. Some persons from Bandial also reached there at the spot. The police investigated at the spot for the whole night and after preliminary inquiry and gavair at the spot registered the case on the following day. The police and the complainant party put pressure on me to become a witness against the accused and the absconder but I refused. At this I was also made an accused. I offered the police and the complainant party to take my oath and Nian about my innocence and record my defence evidence but the police and the complainant party did not agree to this."
12. In defence, no witness was produced. Ahmad Yar appellant tendered Exh. D.E. Certified copy of his secondary school examination certificate. Zafar Iqbal appellant tendered Exh. D.F. Certificate of his F.A. Examination, in evidence.
13. The learned trial. Court acquitted Fateh Muhammad for want of evidence in proof of charge of conspiracy/abetment against him and while believing motive, ocular testimony and the medical evidence has convicted and sentenced the appellants as stated above. The learned trial Court has not believed the version of the occurrence given by Fateh Muhammad acquitted accused.
14. The learned counsel for the appellants have contended that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt in that; the F.I.R. Was in fact recorded after preliminary investigation; that the two eye-witnesses namely Sher Ahmad P.W.9 and Jahan Khan P.W.10 are related as well as chance witnesses; that the eye-witnesses were not present on the spot and had not seen the occurrence; that Mushtaq, the host has not been produced by the prosecution to confirm the visit of the eye-witnesses to his house immediately before the occurrence; that their evidence is in conflict with the medical evidence inasmuch as the eye-witnesses have stated that the accused had fired at Ahmad Sher and Muhammad Sultan from behind whereas the post-mortem reports show that they had received injuries on the front of their chest; that the eye-witnesses have stated that the accused had fired about 25 shots whereas the medical evidence shows that the three deceased had received four shots in all and that the eye-witnesses have stated that two of the appellants had fired from their rifles at the deceased but the wounds found on the dead bodies were caused by pellets and not by bullets; that Jahan Khan P.W.10 is a self condemned person who has admitted in his statement before the learned trial Court that he had sworn a false affidavit in one criminal case under section 307, P.P.C.; that the eye witnesses have already been disbelieved to the extent of Fateh Muhammad; that effect of the acquittal of Fateh Muhammad is, that an important link as to how the appellants/accused had come to know about the movements of the deceased, stands severed; that had Jahan P.W.10 been there, he would also have been killed on the spot; that the story of his escape is highly doubtful; that Sher Ahmed P.W.9 had no licence for driving motor cycle; that there were no tyre marks of the motor cycle on the spot when the Investigating Officer inspected it; that there was no fun to take away rifle of Jahan Khan P.W. And leave pistol and gun of Saleh Muhammad in the car; that the recoveries of crime empties from the spot as well as of weapons of offence from the appellants are doubtful and that there is no independent corroboration of the statements, of the eye-witnesses' qua each appellant. In the alternative the learned' counsel for the appellant requested for lesser penalty on the around of family honour and influence of Fazal Elahi absconder on the appellants Conversely the learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the complainant argued that the prosecution has also brought home the guilt to Fateh Muhammad acquitted accused and that the appellants other than Muhammad Khan should also have been sentenced to death for the murder of Saleh Muhammad.
15. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have also reviewed the entire evidence that has been produced by the prosecution, the documents tendered by the two appellants in defence and the attending circumstances. With care. On our independent assessme nt of the evidence and circumstances appearing in the case, we find that it is a case of promptly lodged F.I.R. Containing 'the alleged motive names of the eye- witnesses, the weapons .Carried by them and the manner in which three persons were killed. There is'no evidence on record to show that the F.I.R. Exh. P.M. Is not a genuine document or was not prepared at the time and place as it purports to be. It was not even suggested to the complainant that the F.I.R. Was lodged after preliminary investigation. No doubt, suggestion to this effect was given to Gul Jalhan S.H .0. P.W.12 but he denied the same. Thereafter no attempt was made by the defence to prove this fact. The foundation of the case is, therefore, concrete and can safely be used to corroborate the statement of its maker i.e. Sher, Ahmad P.W.9.
16. Adverting to the main pillar of the prosecution structure i.e. The ocular testimony furnished by Sher Ahmad. P.W.9 and Jahan Khan P.W.10, we find 'that their names are mentioned in the F.I.R., the authenticity whereof is not open to doubt. The making of the F.I.R. With great promptitude gives rise to the conclusion that the eye-witnesses mentioned therein could not have been procured in such a short interval if they had not witnessed the occurrence and that the maker of the F.I.R. Must have either seen the occurrence or was otherwise very much connected with it. While explaining cause of their presence on the spot, Sher Ahmad P.W.9 has stated:- "Ahmad Sher deceased was invited to a 'lunch by Mushtaq Mohajir of village Sheikhu because of their association of remaining together in Saudi Arabia. I did not accompany Ahmad Sher being his relative but I was also invited to the lunch in view of the fact that I used to meet Mushtaq when he visited Ahmad Sher at his Dera because I used to go there for meeting Saleh Muhammad deceased. Mushtaq and Ahmad Sher remained together in Saudi Arabia for 2/3 years. Ahmad Sher had come home from Saudi Arabia one month before the occurrence. He and Mushtaq had come to Pakistan together."
Jehan Khan P.W.10 has stated that:- "I had no personal relation with Mushtaq. However, he was a friend of my brother Ahmad Sher. I had seen Mushtaq for the first time about two days before the present occurrence. At that time he had come to extend us invitation to a lunch."
It is thus very much obvious that the two eye-witnesses have given plausible cause of their presence on the spot at the time of occurrence. They had gone to the house of Muhammad Mushtaq in village Sheikhuc at a lunch and were returning therefrom when the occurrence took place in the way. So their presence on the spot at the time of occurrenc was quite natural. The post-mortem examination report reveals that the stomachs of the three deceased were full of partially digested food. This, confirms the story told by the eye-witnesses that they were returning from the feast when this . Occurrence took place. It is not disputed that Muhammad Mushtaq of village Sheikhu and Ahmad Sher deceased had been living together in Saudi Arabia and that they had come to their homes in Pakistan on month before the occurrence. Ahmad Sher deceased was brother of Jahan Khan P .W.10 and maternal-uncle's son of Saleh Muhammad deceased. Sher Ahmad P.W.9 is brother of Saleh Muhammad deceased. Muhammad Sultan deceased was a friend of Saleh Muhammad. So, the three deceased and the two eye-witnesses were are the persons expected to have been invited to a lunch arranged by Muhammad Mushtaq in his house situated in village Sheikhu and as such the presence of the eye-witnesses on the spot at the time ,of occurrence does not run counter to the natural probabilities. The occurrence took place in the broad daylight. The appellants and Fazal Elqi absconder were fully known to the eye-witnesses, therefore, there was - no difficulty in the identification of the assailants We ar convinced that there is no reason to doubt that Ahmad Sher and Jahan Khan P.Ws. In fact witnessed the occurrence and identified the offenders. Coming to the question as to whether they can be relied upon for convicting the appellants without corroboration ? We find that they had no animosity against the appellants; that they had no motive whatsoevert to involve them falsely in the case; .That they are also related to the appellants other than Muhammad Khan and that but for the motive part of the prosecution case there was no enmity between the parties. The criticism made by the learned counsel for the appellants with regard to the credibility of the eye-witnesses is devoid of force. It is well-settled that statement of a witness cannot be discarded merely because of hisE relationship with the deceased except for minor and immaterial discrepancies here and there which are but natural in the statements of truthful witnesses. The learned counsel has not been able to point out material discrepancies or dishonest improvements in their statements. (.3. There can be no two opinions that the fate of a criminal case does not depend on vague discrepancies and minor contradictions.- We also do H not see any conflict of consequences in the medical evidence and the statements of the eye-witnesses. The eye witnesses were watching the occurrence from a distance of 30/35 Karams from the place of occurrence, therefore, the possibility of honest errors in their observations, cannot be excluded. The possibilities that shots fired by Zafar. Lqbal and Muhammad Muzaffar from their rifle might have missed the target and that Ahmad Sher and Muhammad Sultan deceased while running away from the spot to save their lives might have turned back to look towards the accused and received injuries on the front of their chest are very much there, in the instant case. The opinion of doctor Pirzada Muhammad Aslam Shah P.W.11 that 28 wounds found on the persons of the three deceased were result of four shots cannot be accepted as a gospel truth. The opinion of the doctor is after all an opinion. Dr. Pirzada Muhammad Aslam Shah P.W.11 was also not a Ballistic Expert. It is .a matter of common experience that people do drive motor cycles/vehicles without licence therefore, it would be too much to hold that since Sher Ahmad P.W.9 had no driving licence, therefore, he was not present on the spot.
Undisputedly people had gathered on the spot immediately after the occurrence, therefore the tyre marks of the motor cycle on the spot might have disappeared by the time the Investigating Officer reached the spot. Jahan Khan P.W.10 has given reasonable version of his having escaped unhurt. It seems to us that he while admitting before the trial Court that he had sworn a false affidavit in a criminal case under section 307, P.P.C. In which the parties had arrived at compromise, had spoken nothing but truth. It is a matter of common knowledge that whenever compromise is effected between the parties in non compoundable cases then false affidavits exonerating the accused persons are procured from the witnesses as a device to get acquittal. The case of Fateh Muhammad accused was quite distinguishable. The eye-witnesses have not been disbelieved to his extent. He has been acquitted of the charge because of the lack of sufficient evidence to prove the charge of conspiracy against him. The statements made by the two eye- witnesses are in consonance with the probabilities and materially fit in with the other evidence. The number of the accused named by them commensurate with the number of th injuries found on the person of the three deceased and the number o the crime empties recovered from the spot. The eye-witnesses ar confidence inspiring witnesses. They are wholly dependable and can safely be relied upon for convicting the, appellants without furthe corroboration. In case the rule of prudence still requires independent corroboration of their testimony, the same is available in the shape of circumstances which point to the inference that the appellants did participate, in the commission of the crime. Those circumstances are, the promptly lodged F.I.R. Containing the names of the appellants and Fazal Elahi co-accused; that the crime empties recovered from the spot conforms with the nature of the weapons and the number of shots fired by the accused, as stated by the eye-witnesses; that the number of the persons whom the eye-witnesses have named does not exceed that whith appears from circumstances not open to doubt to be the true number of the culprits and that in view of the motive deposed by Sher Ahmad P.W.9 who has already been believed by us, the appellants were the persons who were expected, to join in attack on Saleh Muhammad and others. Me feel satisfied that the trial Court has rightly assessed and appreciated the evidence and has given sound and cogent reasons in support of the conclusion arrived at by it.
17. Now we proceed to consider the extent to which the appellants ' were responsible for what occurred at Peshiwela of 20-7-1983. According to the prosecution, Muhammad Khan, Hakim Khan and Ahmad Yar appellants were armed with .12 bore guns and they fired at the three deceased.
The medical evidence shows that there were 28 wounds caused by the pellets. The injuries on the person of the three deceased speak for themselves and proved that the shots fired by these appellants from their guns had caused the death of the three deceased. As far Muhammtid Muzaffar and Zafar lqbal appellants, the eye-witnesses have stated that they had also fired shots with their rifles at the deceased. The medical evidence however shows that no bullet injury was found on the persons of the three deceased. It, seems to us that it is wholly immaterial if the shots fired by them hit the deceased or not becaus they had accompanied the co-accused in a car to the spot; that they were admittedly armed when they appeared on the scene of occurrence; that the co-accused were also carrying .12 bore guns at that time; that they fully knew that Saleh Muhammad and others might be killed in the occurrence; that they used their rifles though ineffectively; that crime empties of the rifle were recovered from the spot; that the were members of the unlawful assembly sharing common object with co-accused who caused the death of the three deceased and that b virtue of the provisions of section 149, P.P.0 they are vicariously liable for the offences committed by their co-accused. For all these reasons, we are convinced that the learned trial Court has rightly recorded the convictions of the appellants under section 148, P.P.C.
And section 302/149, P.P.C. On three counts.
18. This brings us to the question of sentence. Since there is a wide difference between the Lwo alternative, sentences, under section 302, P.P.C., so we have carefully considered this question in the light 0 of circumstances surrounding the guilt. As far Muhammad Khan Ahmad Yar and Hakim Khan appellants, we have not been able to lay our hands on any mitigating/extenuating circumstances in their favour for lesser penalty for the murders of Muhammad Sultan and Ahmad Sher. So far as the murder of Saleh Muhammad is concerned, the trial Court has already extended benefit of the family honour to the appellants other than Muhammad Khan who was not related to Mst. Nasreen with whom Saleh Muhammad had developed illicit relations. Since Muhammad Sultan and Ahmad Yar deceased had not injured the family honour o p the appellants in any manner and Fazal Elahi had thrown challenge t Saleh Muhammad deceased alone and had not asked the appellants t fire at or kill Ahmad Sher and Muhammad Sultan, therefore, it cannot be said that the appellants while causing their death had either acted in vindication of their family honour or under the influence of Fazal Bahl absconder. Despite aforesaid observations, we feel inclined to' impose lesser penalty on Muhammad Muzaffar and Zafar lqbal appellantsQ on the ground that the shots fired by them had not hit the deceased, muchless to have contributed towards their death.
19. The upshot of the above discussion is that there being satisfactory basis to uphold the convictions of the appellants recorded by the learned trial Court under sections 148 and 302/149, P P.C. For the murders of Ahmad Sher, Muhammad Sultan and Saleh Muhammad, we maintain the same and while confirming the sentences of death awarded by the learned trial Court to Muhammad Khan, Hakim Khan and Ahmad Yar we alter s the sentences of death of Muhammad Muzaffar and Zafar lqbal for the murders of Muhammad Sultan and Ahmad Sher, to imprisonment for life on each count. The sentences awarded to them shall run concurrently. The fine imposed by the learned trial Court on the appellants and the sentences in lieu thereof and directions for payment as compensation, are also maintained. Muhammad Muzaffar and Zafar lqbal will get the benefit of the provisions of section 382-B, Cr.P.C. Resultantly the connected revision filed by the complainant is dismissed. The death sentences of Hakim Khan, Muhammad Khan and Ahmad Yar are confirmed. Whereas death sentences of Muhammad Muzaffar and Zafar Iqbal are not confirmed.