' MUHAMMAD MUNIR KHAN, J.--These two Criminal Appeal s Nos. 92 of 1984 by Mushtaq Ahmad (37) son of Bashir Ahmad and Muhammad Tufail (40) and No,93 of 1984 by Faiz Rasul (18/19), Muhammad Hanif (26) and Mushtaq son of Mehr Din (37), connected Murder Reference No,57 of 1984, Criminal Revision by Muhammad Yousaf i,e, No .642 of 1984 for imposing fine on the appellants and enhancement of compensation under section 544-A. Cr.P.C, and Criminal Revision No,643 of 1984 against the acquittal of Muhammad Abbas and Muhammad Ilyas co-accused, arise from the judgment of learned Additional Sessions Judge, Sialkot, whereby he on 25-2-1984 while acquitting Muhammad Abbas and Muhammad Ryas co-accused, convicted the appellants under section 148, P.P.C. And section 302/148, P.P.C. For triple murder of Muhammad Anwar, Muhammad Ashraf and Muhammad Shafi and under section 307/149, P.P.C. For murderous assault on Muhammad Yousaf, Muhammad Siddique, Rehmat, ' Ghulam Rasool and Muhammad Sharif P.Ws. And sentenced them as under:--
(i) Under section 148,P.P.C. To one year R.I. Each.
(if) Under section 302/149, P.P.C. To Mushtaq son of Bashir Ahmad, Mushtaq Ahmad son of Mehr Din, Faiz Rasool alias Fiaz and Muhammad Hanif to death and Muhammad Tufail to imprisonment for life.
(iii) Under section 307/149, P.P.C. Seven years R.I. And a fine of Rs,2,000 or in default thereof further R.I. For one year, each.
' It may be noted that no fine was imposed and no compensation was awarded under se ion 302/149, P.P.C. The judgment also does not disclose that The sentence of death to four appellants were on one count or on three counts.
' Strangely enough, the fine imposed under section 307/149, P.P.C. Was directed to be paid to the legal heirs of the deceased.
2. The occurrence took place at 10-30 a.m. On 15-6-1982 in a field in the area of village Basiwala at a distance of four miles from Police Station Pasrur. F.I.R. Exh. P.A. Is statement of Muhammad Yousaf P.W.1 brother of Muhammad Anwar deceased, recorded by Chaudhry Mushtaq Ahmad S.I. P.W.16 at Pull Basiwala on the same day at 11-30 a.m. The distance between Pull Basiwala and the place of occurrence is two Furlongs. Formal F.I.R. PA/1 was drawn up on the same day at 12 Noon by Muhammad Rafiq, Naib Moharrar (not produced).
3. Mushtaq Ahmad son of Bashir Ahmad, appellant, Muhammad Ilyas and Muhammad Abbas acquitted accused and Gul Nawaz absconder and brothers inter se. Muhammad Tufail, Hanif, Bashir Ahmad son of Mehr Din, appellants are the paternal cousins of Mushtaq Ahmad appellant.
Faiz Rasool is maternal nephew of Mushtaq son of Bashir appellant.
4. The motive as alleged by the prosecution was that Mst. Said Bibi a widow owned about 9 Acres of agricultural land. For 6/7 years before occurrence Mushtaq son of Bashir appellant was supplying water from his tubewell for irrigation of 9 Acres of land in consideration thereof used to receive one-third of the produce of those 9 Acres of land from Mst. Said Bibi. It so happened that one year before the occurrence, Muhammad Khan, the real brother of Muhammad Yousaf complainant got this land from Mst. Said Bibi on lease for 10 years. He paid her the advance lease money for one year and started boring for the installation of the tubewell in this land. ,On this Mushtaq Ahmad son of Bashir Ahmad filed civil suit and got stay order which was subsequently vacated on the statement of Mst. Said Bibi to the effect that she had permitted Muhammad Khan to install tubewell in the land. On this the appellants became annoyed, hence this occurrence.
5. As for the main occurrence, it has been stated that at the eventful time Muhammad Yousaf complainant P.W.1 and the three deceased namely Muhammad Anwar, Muhammad Shafi and Muhammad Ashraf, Muhammad Sadiq P.W.2, Ghulam Rasool P.W.4, Muhammad Sharif P.W.7 and Ismail (not produced) were present in the cotton crop when the appellants alongwith Muhammad Ilyas and Muhammad Abbas acquitted accused and Gul Nawaz absconder variously armed came there. Mushtaq Ahmad son of Bashir Ahmad, appellant, Muhammad Ilyas and Muhammad Abbas acquitted accused, Mushtaq Ahmad son of Mehr Din and Muhammad Hanif were armed with guns.
Faiz Rasool appellant and Gul Nawaz absconder were carrying carbine and Muhammad Tufail appellant had a Sota in his hands. On seeing them, the three deceased and the person sitting with them, ran towards the canal to save their lives but at a little distance they were surrounded by the accused. Mushtaq Ahmad son of Bashir Ahmad gunned down Muhammad Anwar deceased. Gul Nawaz absconder ducked down Muhammad Shafi deceased. Mushtaq Ahmad son of Mehr Din fired shot on Muhammad Ashraf deceased who on receiving the wound, fell down on the ground.
Muhammad Abbas acquitted accused then fired shot on the left ear of Muhammad Siddiq P.W.2.
Muhammad Hanif appellant fired at Muhammad Siddiq P.W. Hitting him on the left side of his buttock. Mushtaq Ahmad son of Bashir Ahmad fired with his gun which hit Rehmat P.W. On the right side of his buttock. Muhammad Ilyas acquitted accused fired shot at Muhammad Sharif P.W.7 and injured him. Mushtaq Ahmad son of Mehr Din fired shot which hit Ismail P.W. Over his left eye.
Muhammad Ilyas acquitted accused fired at Muhammad Yousaf P.W. Causing injury to him. Faiz Rasool fired from his carbine which hit Muhammad Yousaf P.W. Muhammad Tufail caused injuries with his Sota on the persons of Ghulam Rasool P.W.4., Muhammad Sharif P.W. 7 and Ismail (not produced). Ghulam Rasool P.W.4 in self-defence, hurled brickbats on Muhammad Hanif and Faiz Rasool appellants causing injuries to them. The occurrence was also seen by Nazar Hussain P.W.8 and Muhammad Ashraf (not produced).
6. Dr. Muhammad Sarwar P.W.15 medically examined Rehmat. P.W.3 on 15-6-1982. He found five simple fire-arm wounds on his person. On the same day, he examined P.W. Muhammad Siddiq and found two lacerated wounds and multiple gun shot wounds on his person. The gun shot wound on his left buttock was declared grievous. The rest of the injuries were simple and were caused by blunt weapon.
' On the same day, he examined Ghulam Rasool P.W.4 and found five injuries on his person. One injury was caused with fire-arm and the rest with blunt weapons. The injury on outer aspect of middle of left lower chest was declared grievous. The rest of the injuries were simple in nature.
' On the same day, he examined Muhammad Yousaf P.W. And found 11 injuries on his person. Out of which seven injuries were caused by fire-arm and the rest with blunt weapon. All were simple.
' On the same day, he examined Ismail P.W. (not produced) and found two injuries on his person.
Out of which injury on the forehead was caused by fire-arm and the other one, by blunt weapon.
The injuries were simple in nature.
' On the same day he examined Muhammad Sharif P.W.7 and found five simple injuries on his person. One injury on the left leg was caused by fire-arm and the rest with blunt weapon. On 16-6- 1982, the same Doctor conducted post-mortem examination on the dead body of Muhammad Shafi and found following injury:-- "A gunshot wound oval in shape, of size, 0.8 c.m. x 0.7 c.m. Deep to abdominal cavity on front of abdomen in left iliac fossa, 13, 8 c.m. From mid line. Tattoing mark was present around the wound.
Edges of the wounds were inverted. There was no exit wound. Direction of the wounds was transversely oblique, invert and posteriorly."
' In his opinion, the death was due to shock and haemorrhage on account of the aforesaid injury which was caused by fire-arm and was sufficient to cause death in ordinary course of nature. The death was immediate. The time between death and post-mortem was 12 to 24 hours.
' On the same day, he conducted post-mortem examination on the dead body of Muhammad Anwar and found following injury:-- "A fire-arm wound 8 c.m. x 10 c.m. Deep to muscle on front of lower part of abdomen in hypogastrium. Edges of the wound were inverted. Tattoing mark present around the wound.
Direction of the wound was downwards and backwards through inguinal ligament into left thigh.
There were 5 exit wounds present in left inguinal region and front of upper part of the left thigh of size 2 c.m. x 1 c.m. Edges of these wounds were averted. All the major nerves and blood vessels in femoral canal and triangle were torn. The cartridges (sic) and small slugs were penetrated deep to middle of thigh adjacent to shaft of left femur bone. The cartridge (sic) and slugs were removed from the thigh, Stomach contained 4/6 ounces semi-digested food and urinal bladder was empty.
All other organs were found healthy and in tact".
' In his opinion, the death had occurred due to shock and hemorrhage on account of damage to femoral artery and vein which was sufficient to cause death in the ordinary course of nature. The death was immediate and injury was caused by fire-arm.
' On the same day, he conducted the post-mortem examination on the dead body of Muhammad Ashraf and found following injuries on his person:--
(1) 3 gun shot wounds oval in shape of size 0.2 to 0.3 c.m. In diameter in left parietal region of head, edges of the wound were inverted. All were deep to scalp.
(2) 2 gun shot wounds oval in shape of size 0.2 c.m. x 0.3 c.m. Into deep to skin left temporal region of head at a distance of 3 c.m. From each other. Edges of the wound were inverted.
(3) A gun shot wound of size 0.2 c.m x 0.3 c.m. Into skin deep on left cheek.
(4) Gun shot wound small in size on left side of upper lips.
(5) A gun shot wound of small size in sub mandibular region.
(6) 5 gun shot wounds on left side of neck.
(7) Multiple (10 to 14) gun shot wounds on the front of chest.
(8) Multiple (18) gun shot wounds on the front of abdomen.
(9) Seven small gun shot wounds on right shoulder and arms.
(10) 10 to 12 small gun shot wounds on the left arm and hand.
' In his opinion the death was due to shock and haemorrhage due to gun shot wounds which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm.
The death was immediate and the time between the death and post-mortem was 18 to 36 hours.
' In cross-examination, he stated that tattooing can result from a distance of 6 inches; that blackening and charring is same thing; that the shot was fired at Muhammad Anwar deceased from a distance of not more than 2/3 inches; that this injury was not possible if the person firing at Muhammad Anwar was in front of the deceased at an equal level; that he could not exclude the possibility of the injury having been caused by a carbine fire incidentally from the fold of the loin cloth of the deceased and that it was quite possible that Rehmat P.W. And Muhammad Shafi deceased might have been hit by one fire. He also stated that all the injured P.Ws. Arrived in the hospital at 2 p.m and were privately examined. He stated that although the three dead bodies were brought to the hospital on 15-6-1982 yet no inquest reports or any other documents was handed over to him along with dead bodies but were delivered to him 12 hours thereafter. He stated that the pellet injuries suffered by Ashraf deceased might have been caused by one fire.
7. Faiz Rasool appellant was arrested on 17-6-1982. Mushtaq Ahmad son of Mehr Din, Muhammad Hanif, Mushtaq Ahmad son of Bashir Ahmad appellants and acquitted accused namely, Muhammad Ilayas and Abbas were arrested by Mushtaq Ahmad S.I. On 2-7-1982. Muhammad Tufail appellant was arrested by him on 8-7-1982. On 30-6-1982 Faiz Rasool appellant led to the recovery of carbine P.I. From his Dera which was taken into possession vide memo. Exh. P.D.
Attested by Chaudhry Mubarik All P.W.10 and Muhammad Malik (not produced). Chaudhry Saeed Ahmad A.S.I. P.W.9 prepared the memo. On 12-7-1982, Muhammad Tufail and Mushaq Ahmad son of Bashir Ahmad, appellants led to the recovery of Sota P.12 (not blood-stained) and gun P.13 respectively, from their Deras which were taken into possession vide Memoranda P.M. And P.N.
Attested by Khurshid Ahmad P.W.14 and Muhammad Aslam (not produced). On 13-7-198.2 Muhammad Hanif, appellant led to the recovery of gun P.14 from his Dera which was taken into possession vide memo. P.O. Attested by Khurshid Ahmad P.W.14 and Muhammad Aslam (not produced). No recovery was effected from Muhammad Abbas and Muhammad Ilyas and Mushtaq Ahmad son of Mehr Din appellant. It may be noted that no crime empty was recovered from the place of occurrence and as such recoveries from the appellants are of no consequence.
8. To prove its case, prosecution examined 17 witnesses in all. Muhammad Yousaf P.W.1, Muhammad Siddiq P.W.2, Rehmat P.W.3, Ghulam Rasool P.W.4, Muhammad Sharif P.W.7 and Nazar Hussain P.W.8 have given the ocular account of the occurrence as detailed above. They claim to have seen the appellants, acquitted co-accused and Gul Nawaz absconder launching attack on the three decesaed and the injured P.Ws., resulting in the death of Muhammad Anwar, Muhammad Ashraf and Muhammad Shafi and injuries to the prosecution witnesses. Dr. Muhammad Sarwar P.W.15 has proved post-mortem examination reports of the three deceased and the medico-legal reports of the injured prosecution witnesses. Syed Ahmad A .S.I. P.W.9, Mubarik Ali P.W.10 Khurshid Ahmad P.W.14 Mushtaq Ahmad S.I. P.W.16 have proved the recoveries of the weapons of offence from the appellants and the acquitted co-accused. They stated that the appellants other than Mushtaq Ahmad son of Mehr Din had got recovered their respective weapons of offence in their presence. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P.C. Faiz Rasool and Muhammad Hanif appellants while admitting their participation in the occurrence, raised plea of self-defence of the property and person. The other appellants and the acquitted co-accused raised plea of false implication on account of enmity. Faiz Rasool in reply to question "Why this case against you?" stated:-- "I am innocent, and victim of maliciously prosecution launched at the behest of complainant side.
All the witnesses are inimical towards me. They all have ample motive to wish me maximum harm by deposing falsely and giving twist to the actual facts of the case. The stated version of the occurrence has been put forth by the complainant and his team of witnesses, in order to throw the entire blame on the accused side. As a matter of fact I and Hanif were busy in sloughing the Shamlat land while the complainant side variously armed came down there with a view to disposes us otherwise then by due course of law and launched a murderous assault upon us. We received a large number of injuries and many of them were on our vital organs. The deceased persons had taken the lead in assaulting us, and they were responsible for causing excessive and extensive wounds on our bodies. I was not armed with any weapon. We raised hue and cry which attracted Gul Nawaz at the spot. He had licenced gun with him and he resorted to indiscriminate firing in order to scare off the assailants toward of the blows in order to save our right to live under violent attack of the complainant side. The complainant side had also, resorted to firing, but luckily we did not get fire-arm injuries. We did not have a slightest motive to commit the crime in question. Hopelessly false explanation regarding our injuries has been put forth by the witnesses.
Since I was not armed with any weapon, so I did not cause any injuries to the complainant side."
' Muhammad Hanif appellant made almost same statement. In defence four witnesses were produced. Haji Atta Ullah Patwari D.W.1 stated that Mst. Said Bibi owned 72 Kanals and 19 Marlas of land in the village. 5 Kanals out of this land entered in Khasra Nos.764 and 794 and situated towards the south and at a distance of 40 and 80 Karams respectively from the village Abadi. The remaining land of Mst. Said Bibi is entered in Khasra No, 18 and is situated at a distance of 120 Karams towards the south from the village Abadi. A passage three Karams wide exists between Khasra Nos. 791 and 1016 owned by Mst. Said Bibi. He stated that in Khasra No, 1024 the then Patwari had shown cotton crop in Kharif 1982. Subsequently, this entry was scored off and this Khasra was stated to be vacant. At serial No,104 of the Roznamcha Waqiati, dated 31-10-1982 the Patwari had entered report about this correction. The witness further stated that Khasra No, 796 measuring 2 Kanals was entered in revenue record as Shamlat PAH KALA. This Khasra was shown in the cultivation of Mushtaq Ahmad son of Bashir Ahmad in Rabi 1982. This Khasra adjoins Khasra No, 797.
Muhammad Yaqoob A.S.I. D.W. 2 stated that case F.I.R. No,66/82, dated 14-3-1982 under section 364/302/201, P.P.C. Was registered against Muhammd Hayat A.S.I. Ilam Din A .S A.S.I. Muhammad Siddique constable and Muhammad Saleem S.I. Of Police Station, Pasrur. The challan was submitted in the Military Court. Mushtaq Ahmad son of Bashir Ahmad appellant was mentioned as a witness of the occurrence in that case. Muhammad Ishaque D.W.3 was owner and driver of Bus No,LEK 7897. He deposed about the alibi of Muhammad Abbas acquitted accused. He stated that on 15-6-1982 he and Muhammad Abbas had...............................
10 .
11. ... ...They are related to the deceased; that they are inimical with the appellants, that Mushtaq son of Mehr Din had appeared as witness against Ashraf deceased before a local commission in pre- emption suit and that there were proceedings under section 107/151, Cr.P.C. Between the parties one year before the occurrence; that they have not satisfactorily explained the injuries found on the persons of Muhammad Haneef and Faiz Rasool appellants; that the injuries found on their persons could not have been caused by the brickbats; that the ocular evidence is in conflict with the medical evidence; that Muhammad Siddiq P.W.2, Rehmat P.W.3, Ghulam Rasool P.W.4, Muhammad Sharif P.W.7 and Nazar Hussain P.W.8 are tutored witnesses as they have made statements similar to the statement made by the complainant; that it was not possible for the eye-witnesses to attribute specific injuries to the accused; that the eye-witnesses have been disbelieved to the extent of Muhammad Ilyas and Muhammad -Abbas co-accused, that the reasons given for the acquittal of Muhammad Ilyas and Muhammad Abbas co-accused were equally applicable to the case of Mushtaq son of Mehr Din; that the occurrence did not take place in the manner as alleged by the prosecution and that there is a reasonable possibility of the plea of self-defence raised by Muhammad Haneef and Faiz Rasool being true. Conversely the learned counsel for the State has supported the judgment of the learned trial Court. He maintained that the prosecution has successfully brought home the guilt to the appellants and that the learned trial Court has given sound and cogent reasons in support of its decision. The learned counsel for the complainant has challenged the judgment of the learned trial Court to the extent of the acquittal of Muhammad ,Abbas and Muhammad Ilyas. He submitted that they have been acquitted without any justification. The learned counsel also requested that the appellants shall not only be imposed fine but also be directed to pay compensation to the legal heirs of three deceased under section 544- A, Cr.P.C.
12. We have attended to the arguments addressed by the learned counsel for the parties carefully.
There were eight accused in all in this case. Gul Nawaz was absconder at the time of the trial. Out of the seven accused facing trial, the acquitted two accused and the appellants other than Faiz Rasool and Muhammad Haneef had denied their presence and participation in the occurrence.
Faiz Rasool and Muhammad Haneef had raised the plea of the exercise of the right of self-defence of person. Since it is a case of two versions, therefore, we propose to appreciate the evidence produced by the parties in accordance with the guidelines given by the superior Courts for the appreciation of evidence in such like cases. We proceed to discuss the prosecution case first in ord3r to arrive at an independent conclusion as to the truth or falsity of its case and evidence, more particularly the ocular testimony and would then discuss the statements made by the appellants under section 342, Cr.P.C. And the defence evidence and would review the entire evidence that has been produced by the prosecution and the defence, by placing them in juxtaposition and will esteem its total effect in relation to two questions. (i) Is the plea of appellants satisfactorily established by the evidence and circumstances appearing in the case? (ii) If answer be in the negative, is there yet a reasonable possibility that their plea might be true so as to cast a reasonable doubt upon the prosecution case?
13. Starting with the prosecution case, we find that the occurrence took place on 15-6-1982 at 10-30 a.m. The F.I.R. Was recorded after an hour of the occurrence at about 11-30 a.m. On the same day.
Although Muhammad Yousaf complainant and Ch. Mushtaq Ahmad S.I. P.W.15 have been subjected to lengthy cross-examination yet nothing has been brought on record to show that F.I.R.
Exh. P.A. Was not genuine document or the same was not recorded at the time and place as it purports to be. The observation made by the learned trial Court in para. No,25 of its judgment that the F.I.R. Was not recorded at Pul Basiwala but was recorded on the spot does not seem to be correct; inasmuch as the reasons given by it are far-fetched and flimsy: In the peculiar circumstances of the case, the presence of Mushtaq Ahmad S.I. P.W.16 at Pul Basiwala at 11-30 a.m.
Does not appear to be unnatural. There is nothing on record to indicate that Muhammad Yousaf complainant had not met Ch. Mushtaq Ahmed S.I., P.W.16 at 11-30 a.m. On the day of occurrence when Exh. P.A. Was allegedly recorded. There is no direct /indirect evidence to the effect that F.I.R.
Exh. P.A. Was recorded on the spot after preliminary investigation. The finding of the learned trial Court that the F.I.R. Was recorded on the spot is based on surmises and conjectures e.g. He has stated:-- "Although according to P.W.1 Muhammad Yousaf whose evidence is solitary evidence on this point, the canal bank is not visible, from the place of occurrence as the visibility is obstructed by the intervening trees. According to him if there was not wind storm then the fire shots could be heard at the bridge. It appears as such that had P.W. 16 the 1.0. Been present at the bridge he could have heard a fire shot and if he had any sense of duty then he must have proceeded towards the direction of the fire shots for making an enquiry. It appears from the perusal of the evidence that the Investigating Officer was not present at the bridge at the relevant time."
' There was a distance of two Furlongs between the place of occurrence where the shots were fired and Pul Basiwala where F.I.R. Was recorded. This aspect of the case was not considered by the learned trial Judge who has based his finding on the opinion of the witness that if there be no wind storm, then the fire shot could be heard at the bridge. We are convinced that Exh. P.A. Is a genuine document and it was in reality recorded after an hour of the occurrence at Pul Basiwala. The names of the accused persons, the weapons carried B by them, the part played by them, the names of the eye-witnesses and the manner in which the occurrence took place have been detailed therein and as such the F.I.R. Can legally be used to corroborate the statement of its maker i,e, Muhammad Yousaf complainant.
14. As far the ocular testimony, we have appreciated the same in the light of guidelines given by the learned Supreme Court in case Niaz v. The State reported as PLD 1960 SC 397 wherein it has been laid down:-- ' Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration for,- substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their words cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence."
' We find that by the fact of injuries on their persons, the presence of Muhammad Yousaf P.W.1, Muhammad Siddiq P. W.2, Rehmat P.W.3, Ghulam Rasool P.W.4 and Muhammad Sharif P.W.7 at the time of occurrence is very much established. The appellants were previously known to them. The occurrence took place in the light of the day and as such there is no reason to doubt that they in fact saw the occurrence and were in a position to identify the culprits. Adverting to the further question as to whether they can be relied upon for convicting the accused or maintaining the conviction of the appellants without corroboration? We find that Nazar Hussain P.W.8 is not closely related to the deceased although he belongs to their brotherhood. He had no ill-will against the appellants. All the eye-witnesses have successfully faced the test of cross-examination. The statements made by them are in consonance with the probabilities and materially fit in with the rest of the evidence and the circumstances of the case. Their statements do not suffer from infirmities such as material contradictions/major discrepancies and dishonest improvements.
Except for minor and immaterial discrepancies and contradictions in statement of eye-witnesses and with the medical evidence, the learned counsel has not been able to point out major conflict of the ocular account of occurrence given by the eye-witnesses with the medical evidence. We are sure that the fate of a criminal case does not depend on vague discrepancies.
' The prosecution never suppressed the injuries found on the person of Muhammad Haneef and Faiz Rasool appellants. In the F.I.R. The complainant explained that Ghulam Rasool P.W. Had hurled brickbats hitting Muhammad Haneef and Faiz Rasool. The eye-witnesses have also explained the injuries of the two appellants in their statements before the Court. The injuries found on the two appellants were simple in nature, and caused by blunt weapon, therefore, the same could have been caused by brick-bats. Furthermore, the number of the persons i,e, 8 whom the eye-witnesses have named does not exceed that which appears from independent evidence and from circumstances not open to doubt to be the true number of the offenders. The number of the persons named by the eye-witnesses as assailants and the number of the deceased, number of the injured witnesses and the number of the injuries received by them, do commensurate. In view of the motive deposed by Muhammad Yousaf complainant who has already been found reliable by us, the appellants were expected to join in attack on the complainant party. For all these reasons we feel inclined to hold that the eye-witnesses are absolutely dependable and can be relied upon without corroboration. There is thus no force in the attacks of the learned counsel for the appellants, on the credibility of the prosecution case and the ocular testimony.
15. This brings us to the two questions formulated by us in para. 12 of the judgment. We find that the plea of the two appellants namely Faiz Rasool and Muhammad Haneef that they were sloughing the land at L the time of occurrence; that the three deceased and the injured witnesses came there variously armed and launched murderous assault on them; that the alarm raised by them attracted Gul Nawaz absconder accused to the spot who was carrying his licensed gun at that time and that Gul Nawaz resorted to indiscriminate firing in order to save them, has not satisfactorily been established by evidence and circumstances appearing in the case. The appellants did not care to prove the defence version by producing any witness. The defence plea is also not spelt Ii out from the prosecution case; its evidence and the attending circumstances. So, question at No,1 is answered in negative. Dealing with the second question i,e, "Is there yet a reasonable possibility that their plea might be true so as to cast a reasonable doubt upon the prosecution case?" We find that the two appellants have stated that they were empty handed at the time of occurrence and they did not cause any injury to anyone and that Gul Nawaz alone had indiscriminately. Fired at the complainant party to save them whereas the medical evidence shows that the three deceased and six prosecution witnesses had received more than 27 fire-arm wounds and about 15 injuries were caused by blunt weapon. The number and nature of the injuries received by the complainant side falsifies the version of the occurrence disclosed by the two appellants. It seems to us that since Gul Nawaz co-accused was absconder at the time of the trial of the appellants, therefore, a false story was concocted attributing indiscriminate firing at the complainant party to him. Since the plea raised by the two appellants seems to us totally false, therefore, the question of the possibility of the defence version being true and of any reaction on prosecution case does not arise. Question No,2 is answered accordingly. For all these reasons, we are of the view that the appellants have rightly been convicted by the trial Court.
16. As for the acquittal of Muhammad Abbas and Muhammad Ilyas co-accused we find that their case was quite distinguishable and the learned trial Court has given cogent reasons for their acquittal. We do not see any substance in the submissions made by the learned counsel for complainant. We feel satisfied with their acquittal.
17. This brings us to the question of sentence. The appellants have been found guilty of designed and preplanned brutal triple murder and murderous assault on several persons. We do not see any extenuating/ mitigating circumstance in favour of Mushtaq son of Bashir Ahmad, Mushtaq son of Mehr Din, Faiz Rasool alias Faiz and Muhammad Haneef appellants for lesser penalty. Since Muhammad Tufail had not caused the fatal injuries, therefore, no case for the enhancement of his sentence is made out. In the peculiar circumstances of case, we do not feel inclined to award sentence of fine and compensation at this stage.
18. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellants, we dismiss the appeal in toto and confirm the death sentence of the four appellants. The connected revisions are dismissed.