JAVID IQBAL C.J.----Talib Hussain son of Barkat Ali, aged 26/27 armed with .12 bore gun, his brother Akbar Ali, aged 36 armed with carbine, Safdar Ali son of Fazal Muhammad, aged 35 armed with Dang, Muhammad Rafique son of Din Muhammad, aged 35 empty-handed, Saghir Ahmad, son of Abdul Rahim, aged 35 empty-handed, and Abdul Rahim son of Nizam Din, aged 75 also empty-handed, and father of Saghir Ahmad, have been convicted and sentenced by the Additional Sessions Judge. Lahore, vide his judgment, dated 31-3-1982 as follows: all of them were convicted under section 302!149, P.P.C. For the murder of Khushal Khan, aged 50/55, and Talib Hussain was sentenced to death plus fine of Rs.5,000 or in default to undergo two years' rigorous imprisonment, whereas each of the rest of the convicts was sentenced to life imprisonment plus fine of Rs.5,000 or in default to undergo two years' further rigorous imprisonment. Each of them was also convicted under section 148, P.P.C. And sentenced to two years' rigorous imprisonment plus fine of Rs.500 or in default to undergo six months' rigorous imprisonment further. Muhammad Rafique and Saghir Ahmad convicts were further convicted under section 404, P.P.C. For removing cash and articles from the body of the deceased and each of them was sentenced to three years' rigorous imprisonment plus fine of Rs.2,000 or in default to undergo six months' further rigorous imprisonment. The sentences of imprisonment awarded to them were ordered to run concurrently.
The fine if realised from the accused party was ordered to be paid as compensation to the heirs of the deceased. The following co-accused against whom the charge was of criminal conspiracy were given the benefit of doubt and acquitted: Munir Ahmad son of Fateh Muhammad, Muhammad Saghir son of Fateh Muhammad, Rehmat son of Muhammad Bakhsh, and Ramzan son of Muhammad. It may be noted that amongst the convicts Talib Hussain and Akbar Ali are brothers, whereas Saghir Ahmad is son of Abdul Rahim. Amongst the acquitted co-accused Munir Ahmad and Muhammad Saghir are brothers, whereas Rehmat and Ramzan are also brothers. All of them are stated to be belonging to the same faction. Talib Hussain and Akbar Ali convicts have filed Criminal Appeal No.220 of 1982, whereas Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim convicts have filed Criminal Appeal No.241 of 1982. Both these criminal appeals alongwith Murder Reference No.100 of 1982 are being taken up and disposed of together by this judgment.
2. The occurrence took place on 16-4-1980 at 8.30 a.m. Near Dera Mussaddi within the area of village Dera Chahal at a distance of 7 kilometre from Police Station Burki, District Lahore. Statement (EXh.P.W.4/1) was made by Muhammad Qayyum (P.W.12) son of the deceased at 11.00 a.m. On the same day and it was recorded by Fazal Dad S.I. (P.W.16) on the Burki bridge of B.R.B. Canal while he was on his way to the police station and happened to meet the police officer who was present there in connection with the investigation of some other case. On the basis of the aforesaid statement, formal F.I.R. (Exh. P.W.4/2) was registered at the police station by Muhammad Ashiq Hussain M.H.C. (P.W.4) at 11.25 a.m. On the same clay.
3. The motive for crime as stated in the F.I.R. Is that some time before the present occurrence Munir Ahmad, acquitted co-accused, was one of the candidates in Local Council elections. His opposing candidates were the deceased and one Ismail. Munir Ahmad, acquitted co-accused was declared successful on which Ismail is stated to have filed a writ petition against him. The case of the prosecution is that thereupon Munir Ahmad acquitted co-accused, had suspected that the deceased was instrumental in getting the writ petition filed. This is the motive against Munir Ahmad acquitted co-accused. So far as Rehmat and Ramzan, acquitted co-accused are concerned, they were stated to be locked-up in litigation with the complainant side. As for the remaining members of the accused party it was stated that they belonged to the faction of Munir Ahmad acquitted co- accused. Two motive were subsequently introduced at the investigation stage and trial stage. First it was stated that Talib Hussain appellant had robbed one of the sons of the deceased, namely, Muhammad Azam (P.W.10) in December, 1970 of a sum of Rs.192 as well as his wrist watch and also caused injuries to him. Thereupon, Talib Hussain appellant was tried, convicted and sentenced to one year's rigorous imprisonment. However, he was acquitted on appeal. The second motive was that there existed a dispute regarding possession of a graveyard between Muhammad Husain (P.W.11) and 21 others including the deceased on the one side and Ramzan, acquitted co-accused on the other. They were proceeded against for criminal trespass on a case lodged by Ramzan, acquitted co-accused. Thereafter the deceased is stated to have moved an application to the higher authorities apprehending danger to his life from Ramzan acquitted co-accused. The trial Court has relied upon the motive version in the instant case.
4. In the F.I.R., the occurrence is reported to have taken place in the following manner: On the fateful day Muhammad Qayyum (P.W.12) alongwith his father, the deceased, were proceeding to Lahore in order to make purchases for the wedding of his sisters and himself. While they were on the bank of Rohi Nala near Dera Mussaddi from the western side suddenly appeared the appellants armed as described above and empty-handed. Abdul Rahim appellant raised a Lalkara that the deceased should not be spared alive. On this, Muhammad Rafique and Saghir Ahmad appellants got hold of Muhammad Qayyum P.W., felled him down and overpowered him. Then Talib Hussain appellant with his .12 bore gun and Akbar Ali appellant with his carbine fired shots at the deceased which hit on the right flank of the deceased. As a result the deceased fell down on the ground and while he was in the fallen condition he was given a Dang blow by Safdar Ali appellant which fell on the front of his right shin. Thereafter, Muhammad Rafique and Saghir Ahmad appellants left Muhammad Qayyum P.W. And Muhammad Rafique appellant removed Favore Luba wrist watch from the wrist of the deceased and Saghir Ahmad appellant took out Rs.7,000 from the pocket of the shirt of the deceased. Then both of them dragged the body of the deceased and threw him into the Rohi Nala.
At a distance of about 20 Karams behind Muhammad Qayyum P.W. Were coming, Abdul Ghani (P.W.14), Manzoor (not produced) and Akram (not produced). They are stated to have witnessed the occurrence and it was on their alarm that the accused party had decamped. Muhammad Qayyum P.W. Then attended to his father, the deceased, but found that he had already died on the spot. 3t was stated in the F.I.R. That the appellants had committed the murder of the deceased with mutual consultation on 'the conspiracy and at the instigation of Munir Ahmad, Muhammad Saghir, Rehamt and Ramzan, acquitted co-accused.
5. The prosecution has produced two eye-witnesses of the occurrence. These are Muhammad Qayyum (P.W.12) son of the deceased, and Abdul Ghani (P.W.14) who according to the accused party is stepbrother of the deceased, whereas, he does not admit so. Two other eye-witnesses cited namely, Manzoor and Akram were given up as won over. There is also evidence of a Vaj.
Takkar witness namely, Muhammad Feroze (P.W.8) who has not been named in the F.I.R. As such and whose statement was recorded 17 days after the occurrence on the point of Vaj Takkar. He is stated to be inimical to Talib Hussain appellant. So far as witnesses of conspiracy are concerned as against the four acquitted co-accused, these are Muhammad Siddique (P.W.7) and Muhammad Ramzan (P.W.13) who both had been disbelieved by the trial Court for the reasons given at pages 86,87 and 88 of the judgment.
6. Munir Ahmad, acquitted co-accused, Safdar Ali, Abdul Rahim appellants and Rehamt, acquitted co-accused were arrested by Fazal Dad S.I. (P.W.16) on 19-4-1980. Saghir Ahmad appellant was arrested by him on 23-4-1980. Akbar Ali appellant was arrested, on 7-5-1980 by Ghayur Ali I.P.
(P.W.15) who also arrested Talib Hussain appellant on 19-5-1980. Muhammad Saghir and Ramzan, acquitted co-accused, remained on pre-arrest bail until their acquittal. From the spot crime empty (P.W.13/1) was picked up and taken into possession, vide Memo. Exh.P.W.13/A on 16-4-1980. The attesting witnesses are Muhammad Ramzan (P.W.13), Mehraj Din (not produced) and Fazal Dad S.I.
(P.W. 16). Gun (Exh.P.6) alongwith 8 live cartridges (Exhs. P.7 to P.14) were recovered from the person of Talib Hussain appellant at the time of his arrest and these were taken into possession, vide Memo. Exh.P.W.9/A on 19-5-1980. The attesting witnesses are Mukhtar Ahmad (P.W.9), Sher Muhammad (not produced) and Ghayur Ali I.P. (P.W.15). No other recovery was effected in the instant case. In other words, carbine and Dang alleged to have been carried by Akbar Ali and Safdar Ali appellants were not recovered. Similarly, no watch was recovered as well as the sum of Rs.7,000 from any member of the accused party. According to the report of the Firearms Expert (Exh.P.A.) at page 22 of the printed paper-book the crime empty (Exh.P.W.13/1) picked up from the spot matched with gun (Exh.P.6) recovered at the instance of Talib Hussain appellant. The recoveries have been relied upon by the trial Court in the instant case.
7. The appellants as well as the acquitted co-accused denied having participated in the occurrence. Those from whom recoveries were effected disowned the same and generally speaking their case is that they had been falsely implicated due to enmity. Two D.Ws. Have been produced in the instant case. Sultan Ahmad A.S.I. Was produced as D.W.1 in order to depose in favour of alibi of Safdar Ali appellant who was F.C. In the police force and according to Sultan Ahmad A.S.I. D.W. Was on duty, on the day of occurrence. Nazir Sherazi, D.S.P. Was produced as D.W.2. He recorded the statements of those who appeared in defence of Muhammad Rafique, Abdul Rahim and Sabhir Ahmad appellants as well as Munir Ahmad acquitted co-accused. It may be pointed out at this stage that according to Nasir Sherazi D.S.P. (D.W.2), Munir Ahmad and Muhammad Saghir sons of Fateh Muhammad, acquitted co-accused were found innocent and, therefore, they were placed in column No.2. Needless to say that they were both subsequently acquitted by the trial Court.
8. Dr. Sabir Ali (P.W.6) conducted the post-mortem examination on the dead body of the deceased at 10.45 a.m. On 17-4-1980 and found on his person the following injuries:- (1)Five fire-arm wounds of entrance in area 9 c.m. x 6 c.m. On the right lateral side of abdomen over the iliac bone (bone over and below the iliac crest).
(2)All the wounds were going deep and ranged in size from 1 c.m. x 1 --, to 1 -- c.m. x 1 -- c.m. Fire- arms wounds of exit 1 -- c.m. x 1 c.m. Just above the pubes.
(3)Three fire-arm wounds of exit 1 -- c.m. x 1 c.m. Each on the left lower abdomen side by side 13 c.m. Below the naval at 5.00 o'clock position.
(4)Fire-arm wounds of entry 1 c.m. x 1 c.m. Front upper and left thigh.
(5)Gutter shaped laceration 2 -- c.m. x 1 -- c.m. Outer to injury No.4 at the distance of 2 c. m.
(6)Two contusions 4 x 2 cm., 6 x 2 cm. Front inner lower right thigh (black in colour).
(7)Contusion 4 c.m x 2 c.m. Front lower half right leg.
Stomach contained 8 ounces of semi-digested coarse particals of food. The small intestine contained chyme and the large one had faeces. The bladder was full of urine. In his opinion all the injuries were ante-mortem. Injury No.1 was inflicted by fire-arm and it was sufficient to cause death in the ordinary course of nature. The cause of death was haemorrhage and shock. Injury No.5 was caused by fire-arm and injuries No.6 and 7 were caused by blunt weapon. In the cross- examination he stated that it was correct that injury No.5 could not be caused from the direction of right or left of the victim. Either it could be from above or below. He could not say whether injuries Nos. 4 and 5 were two separate injuries. Injury No.4 could be caused if the victim was lying and the assailant fired from his head side and injury No.5 could be caused if the victim was lying and the assailant was either on the head side or two girds the leg side. It was correct that injury No.5 could be caused when the assailant was either on a higher padestal or on the lower footing in the missile of the firearm was almost parallel to the body. He did not agree that injuries Nos. 6 and 7 could be caused by a fall. 'These injuries also could not be caused by a single blow.
9. We have heard learned counsel for the parties and carefully perused the record. Kh. Sultan Ahmad Advocate represents Talib Hussain and Akbar Ali appellants in Criminal Appeal No.220 of 1982, whereas Mr. M.B. Zaman, Advocate represents Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants in Criminal Appeal No.241 of 1982. First, we will consider the arguments of Kh. Sultan Ahmad. Advocate in respect of Talib Hussain and Akbar Ali appellants, both of them having been armed with gun and carbine respectively. Learned counsel states that both these appellants are not directly connected with the motive as given in the F.I.R. And that there is no evidence placed on the record that they had anything to do with or had any connection with the other appellants. Thus, apparently they had no motive to participate in the commission of crime.
According to learned counsel a motive was advanced in respect of Talib Hussain appellant only at the trial stage in which it was stated that he had robbed Muhammad, Azam (P.W.10) son of the deceased, of his wrist watch and a sum of Rs.192 in December, 1970, i.e. Ten years before the present occurrence and had also caused him injuries. He was tried, convicted and sentenced to one year's rigorous imprisonment but was acquitted on appeal. The reasoning of learned counsel is that this motive only as against Talib Hussain appellant was ten years old ant therefore, too remote as no untoward incident had taken place during these ten years between the parties. It was submitted that according to the prosecution both Talib Hussain and Akbar Ali appellants had fired shots simultaneously at the deceased through their respective firearms and these had hit on the right Wakhi (right flank) of the deceased. The contention is that this prosecution version is in conflict with the medical evidence. According to the medical evidence, there is only one firearm entrance injury on the right lateral side with exit wounds shown in the post-mortem examination report as injuries Nos. 2 and 3. Then there is injury No.4 caused by firearm of entry on the front upper end of left thigh and a gutter-shaped firearm wound outer to injury No.4 which. Is injury No.5.
Thus, according to learned counsel, injury No.1, the exit wounds of which are injuries Nos. 2 and 3, is the only injury on the right lateral side, whereas injuries Nos. 4 and 5 had also been caused by a firearm but they are on the left thigh and these are not attributed to anyone. The cause of death was injury No.1 in the opinion of the doctor and apparently this injury, according to the prosecution, is attributed to both Talib Hussain and Akbar Ali appellants, although it cannot be ascertained from the record as to who out of the two had caused the said injury. It was next argued by learned counsel that the two eye-witnesses produced in the instant case, were closely related to the deceased and in the background of enmity they had a motive to falsely implicate the appellants as they had not even witnessed the occurrence. Muhammad Qayyum P.W. Is son of the deceased, whereas Abdul Ghani P.W. Shows his ignorance to the fact that he was the son of the stepbrother of the deceased. Two other eye-witnesses cited in the F.I.R., namely, Manzoor and Akram, were given up as won over. Learned counsel submitted that both of them might have not been present at the time of the occurrence as there was major discrepancy in the medical evidence and the ocular testimony indicating that they might have not been present at the time of the commission of crime. So far as Vaj Takkar witness namely, Muhammad Feroze is concerned, his name has not been mentioned in the F.I.R. And he was produced 17 days after the occurrence. Consequently, no reliance can be placed on his testimony. In support of this argument, learned counsel pointed out that according to the medical evidence, the stomach of the deceased contained 8 ounces of semi-digested coarse particals of food. The small intestine contained chyme and the large one had faeces. The bladder was full of urine. Thus according to learned counsel this indicated that the occurrence might have taken place early in the morning un witnessed by anyone and not at the time as alleged by the prosecution. It was next argued that four other co-accused of these appellants namely, Muhammad Saghir son of Fateh Muhammad, his brother Munir Ahmad, Rehmat and Ramzan had been falsely implicated in this case and were given the benefit of doubt and acquitted. Besides that, there were three other co-accused who were empty-handed namely, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants against whom no corroboration from any independent source was coming forth and that in such circumstances independent corroboration was required for the part ascribed to Talib Hussain and Akbar Ali appellants for proper dispensation of justice. It was next submitted that the report of the Firearms Expert to the effect that gun recovered from Talib Hussain appellant matched with the crime empty picked up from the spot should not be relied upon in this case as the said expert had merely given his opinion and this opinion had been given without being a --by any reasons. In support of his argument, learned counsel has relied upon Manzoor alias Mujan v. The State PLD 1979 Kar. 276 in which it was held that opinion of expert which was not supported by reasons did not carry any weight. Reliance was also placed on Shah Muhammad etc. v. The State 1980 P Cr. L J 257 in which it was held that the opinion of the Firearm Expert not containing reasons in such a case prosecution was required to produce the expert for cross-examination. Reliance was likewise placed on Yaqoob Shah v. The State PLD 1975 Pesh. 205 in which it was held that the opinion which was not backed by reasons was valueless. Learned counsel in support of his argument to the effect that if there was material conflict in the ocular testimony with the medical evidence, then the medical evidence should be preferred, he cited Muhammad Iqbal and Bashir Ahmad v. The State 1978 P Cr. L J 670 in which it had been held that in a case of conflict in the medical evidence and ocular testimony, medical evidence would be preferred. He also placed reliance on Anwar v. State 1978 P Cr. L J 664 in which it was laid down that if the statement of the maker of the F.I.R. Was in conflict with the medical account then this indicated that maker of the F.I.R. Was not present at the time of occurrence In the light of these arguments learned counsel submitted that so far as Talib Hussain appellant was concerned, the recovery of gun from him and its matching with the crime empty picked up from the spot should not be relied upon as a corroborative piece of evidence. So far as Akbar Ali appellant is concerned, learned counsel submitted that nothing was recovered from him. It was also pointed out that so far as Talib Hussain and Akbar Ali appellants are concerned, the motive set up by the prosecution was against the co-accused who had been acquitted and there was no evidence brought on the record to link them, With those co-accused who had been acquitted.
Learned counsel also pointed out that Muhammad Qayyum P.W. Complainant and his brother Azim Ali, both sons of the deceased, had submitted an affidavit to the effect that they had for given Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants only because they had taken an oath on the Holy Quran before them to the effect that they had not participated in the commission of crime and that their oath had been accepted by the complainant side. On the basis of this contention, it is submitted by learned counsel that if according to the complainant side Safdar --Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellant had stated on oath that they were innocent and had not participated in the occurrence and this had been accepted by Muhammad Qayyum P.W. Son, of the deceased, it was also proof of the fact that he was not Present, at the time of the commission of crime as it was he himself, attributed specific parts to them In brief the reasoning of learned, counsel is that his clients namely, Talib Hussain and Akbar Ali appellant had been falsely implicated in this case and that it was an un witness occurrence, that Talib Hussain and Akbar Ali appellants were innocent and that they should be given the benefit of doubt and acquitted.
Mr. M. B. Zaman, Advocate, learned counsel for Safdar Ali Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants in Criminal Appeal No.241 of 1982 placed on the record sworn statements of Muhammad Qayyum P.W. Complainant and his brother Nazim Ali both sons and heirs of the deceased, to the effect that they have forgiven Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants by, accepting their oath of innocence. This affidavit is, dated 19-1-1985 and it is being supported by another affidavit of the respectables namely, Malik Talib Hussain, Malik Shah Muhammad Awan, Malik Muhammad Yusuf Awan, Malik Muhammad Rashid Awan, Haji Asghar Ali. Malik Ghulam Rasul, Ch. Noor Ahmad and Ch. Muhammad Siddiq. Two of them are ex- Chairman and Vice-Chairman of Zila Council, Lahore. On the basis of these affidavits, learned counsel submitted that since the innocence of Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants had been accepted by Muhammad Qayyum P.W. Complainant, case was made out for their acquittal in the instant case. It was further submitted by learned counsel that these affidavits also find support from the fact that Criminal Revision No.337 of 1982 which was formerly filed for enhancement of sentence awarded to the appellants, other than Talib Hussain to death, has been withdrawn. We may point out at this stage that in the prosecution version only Lalkara is attributed to Abdul Rahim appellant who is 75 years old. So far as Muhammad Rafique and Saghir Ahmad appellants are concerned, they are stated to have first held Muhammad Qayyum P.W. And then dragged the dead body of the deceased and threw it into the Nala. They are also alleged to have removed the wrist watch and Rs.7,000 from the person of the deceased which were never proved nor recovered. There were no drag marks on the dead body of the deceased nor where there any injuries on the person of Muhammad Qayyum P.W. So far as Safdar Ali appellant is concerned, he is stated to be armed with Dang and he caused blunt weapon, injuries on the person of the deceased. Thus according to Muhammad Qayyum P.W. Who was an eye- witness of the occurrence, specific parts had been attributed to Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants, whereas now according to his affidavit he has accepted their innocence on oath and has forgiven them.
We have asked Mr. R.A. Awan, Advocate who has appeared for Muhammad Qayyum P.W.
Complainant as to whether his client supports the said affidavit. He has produced before us Muhammad Qayyum P.W. Complainant as well as his brother Nazim Ali, both sons of the deceased, who state that their signatures were obtained on the said document fraudulently and that they were not aware of its contents. In other words, they at present are not supporting the said affidavit.
We have passed a separate order calling upon the S.H.O. Police Station, Burki, District Lahore, to appear before us so that we can order an investigation into the matter as to whether the affidavit supported by another affidavit of respectables is genuine or false and then to take proper action against the accused persons, who may have been responsible for making the same. We have also asked Mr. R. A. Awan, Advocate as to why he has withdrawn Criminal Revision No.337 of 1982 and he stated before us that he has withdrawn the same in accordance with the instructions of his client Muhammad Qayyum P.W. Complainant.
Now we proceed with the arguments of. Mr. R.A. Awan, Advocate for the complainant. He stated that so far as Abdul Ghani P.W. Was concerned, he had no motive to falsely implicate the appellants, that he was an independent witness and that if he was ignorant of the allegation that he was son of stepbrother of the decease, this must not be taken against him as a piece of evidence against his independence. He further submitted that the occurrence was not an un witnessed one and that it had been witnessed by two eye-witnesses, namely Muhammad Qayyum P.W. Complainant and Abdul Ghani P.W. Alongwith two others who had been cited as eye- witnesses but given up. According to learned counsel there was no conflict in the testimony of the eye-witnesses and the medical evidence. In support of his arguments to this effect he relied upon Sultan Ahmad v. The State PLD 1970 SC 206: Sabz Ali v. The State 1980 SCMR 309 and Muhammad Urs etc. v. The State 1971 SCMR 92. He also stated that the ocular testimony, in the instant case, was being corroborated by the recovery evidence from Talib Hussain appellant and the opinion of the Fire-arms Expert and further supported by the medical evidence and the motive version.
We have carefully considered the arguments of learned counsel for the parties. We note that there are different groups of the members of the accused party and the probability cannot be ruled out that they had been implicated only complainant there may have been some enmity existing of them with the complainant side. We will, therefore, proceed with the principle that if we were to consider it as a witnessed occurrence, then we will accept the testimony of the two eye-witnesses produced, in the instant case, only so far as corroboration of their testimony was coming forth from an independent source of evidence. We may say at the outset that we do not agree with the argument of Kh. Sultan Ahmad, Advocate, learned counsel for Talib Husain and Akbar Ali appellants that it was an un witnessed occurrence. In our view,it was a witnessed occurrence and two of the eye-witnesses namely, Muhammad Qayyum and Abdul Ghani P.Ws. Have been produced in the instant case. It is a separate matter that we would prefer to consider their testimony on the principle of abundant caution as they are related to the deceased and may be inimical towards the accused` side. In the background of their testimony, we will first take up the case of Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants. Against Abdul Rahim appellant only Lalkara is attributed. The part ascribed to Muhammad Rafique and Saghir Ahmed appellants is that they overpowered Muhammad Qayyuf P.W., then they took out wrist watch and Rs.7,000 from the person of the deceased and, dragging the deceased, threw his dead body into the Nala.
But the ocular testimony in respect of them does not find corroboration as there were no injury markson the person of Muhammad Qayyum P.W. Who had not been medically examined nor were there any drag marks on the dead body of the deceased. Similarly no wrist watch belonging to the deceased or Rs.7,000 had been recovered in the instant case. So far as Safdar Ali appellant is concerned, it is alleged that he was armed with Deng and he caused simple blunt weapon injuries on the person of the deceased. According to the medical evidence, there are blunt weapon injuries on the right thigh and right leg of the deceased. These are simple in natureand are contusions. The Medical Officer has stated in the cross-examination that he could not deny that contusions could be caused by a fall. Furthermore, no recovery had been effected from Safdar Ali appellant.
Consequently, the part ascribed to him in the ocular testimony is no being corroborated by 'any evidence coming forth from and independent course. At this stage we do not want to express any opinion as to what may be the effect of the affidavits alleged to have been made by Muhammad Qayyum P.W. And his brother Nazim Ali as well as respectables mentioned above. Anyway, we are ignoring them as Muhammad Qayyum P.W. Complainant and Nazim Ali who were produced by their counsel, have disowned the affidavit pertaining to them. Since the ocular testimony does not find corroboration in respect of the parts ascribed to Safdar Ali, Muhammad Rafique, Saghir Ahmad and Abdul Rahim appellants, in our view their conviction under section 302/149, P.P.C. As well as sentence awarded thereunder were improper and these are accordingly set aside.
Similarly, their conviction and sentence awarded to them under section 148, P.P.C. Are hereby set aside. Likewise, the conviction of Muhammad Rafique and Saghir Ahmad appellants as well as sentence awarded to them under section 404, P.P.C. Are hereby set aside. In short, Safdar Ali, Muhammad Raffique, Saghir Ahmed and Abdul Rahim appellants are given the benefit of doubt and they are acquitted of all the charges. Their appeal (Criminal Appeal No. 241 of 1982) is accepted. They are already on bail Their bail bonds shall stand discharged.
So far as the case of Akbar Ali appellant is concerned, the part ascribed to him is that he was armed with a carbine and he simultaneously fired a shot alongwith Talib Hussain appellant at the deceased and thus hit him on the right flank. No recovery has been effected from him and the crime empty recovered from the spot, in the instant case, matched with the gun which had been recovered from Talib Hussain appellant. Consequently, the part ascribed to Akbar Ali appellant also does not find any corroboration of the ocular testimony. We, therefore, are of the considered opinion that his conviction under section 302/149, P.P.C. Find sentence awarded thereunder were improper and are hereby set aside. Similarly his conviction as well as sentence awarded to him under section 148, P.P.C. Were improper and are accordingly, set aside. We also give him .To benefit of doubt and acquit him. His appear (Cr. Appeal No. 220 of 1982) accepted. He is already on bail. His bail bonds shall stand discharged.
Now we take up the case of Talib Hussain appellant. According to the ocular testimony he and his brother Akbar Ali appellant had simultaneously fired shots at the deceased which hit him on the right flank. Talib Hussain appellant was alleged to be armed with a gun And the said gun was recovered from him. This gun matched with the crime empty which was picked up from the spot.
The opinion of the Firearms Expert is to the effect that it had been fired from the gun recovered at the instance of Talib Hussain appellant. The opinion is Exh.PA. At page 22 of the printed paper-book.
We are aware of the principle that while giving an opinion the Firearms Expert must also give reasons. In the instant case, if the reasons had not been given, the defence could have certainly put in an application before the trial Court to summon the Firearms expert for cross-examination as has been held in Shah Muhammad v. The State 1980 P Cr. L J 257. This is a requirement of section 510 of the Code of Criminal Procedure. We depreciate the practice d of giving an opinion which is not being supported by reasons. However, we are of the view that it is more important to give reasons if 9egotive opinion has been given by the Firearms Expert rather than positive. In the present case, we accept the opinion of the Firearms Exert. Thus, in our considered view, the part ascribed to Talib Hussain appellant by the ocular testimony does find corroboration from evidence coming from an independent source. The only point, which requires consideration here is, that there is uncertainty as to whether the fatal shot had been attributed to him or to Akbar Ali appellant because according to they prosecution version, both of them had fired simultaneously at the deceased and had hit on his right flank and it was this injury which proved fatal. In the light of the above discussion, we have come to the following conclusion. Since the prosecution has succeeded in establishing its case only against Talib Hussain appellant his conviction under section 148, P.P.C. And sentence awarded thereunder were uncalled for and they are accordingly set aside. In his case section 149, P.P.C. Cannot be made applicable however, maintain his conviction under section 302, P.P.C. But alter his sentence from death to that of imprisonment for life. The sentence of fine in maintained. In case the fine is recovered from him, it should be pair as compensation to the heirs of the deceased. With this modification his appeal is dismissed. The sentence of death awarded to Talib Hussan appellant is not confirmed.