KHIZAR HAYAT, J.-This appeal has been filed .By Jahangir (30/35), his cousin Muhammad Bakhsh (40/45), his nephew Allah Rakha (20/21) and his maternal-cousin Faiz Ahmad (40/45) who have been convicted by Sessions Judge, Bahawalnagar under section 302/34, P.P.C. For murdering Muhammad Sadiq (50) and his son Muhammad Bashir (24) vide judgment, dated 15-5-1982. Allah Rakha appellant has been sentenced to life imprisonment and fine of Rs.2,500, and the remaining three appellants have been sentenced to death and a fine of Rs.2,500 each. In default of payment of fine they shall undergo further R.I. For 6 months. The fine, if realised, shall be paid to the heirs of the two deceased. The complainant has filed a revision (Criminal Revision No. 41 of 1982) praying that the sentence of Allah Rakha be enhanced from life imprisonment to death. Reference under section 374, Cr.P.C. For confirming death sentence awarded to Jahangir, Faiz Ahmad and Muhammad Bakhsh is also before us. As they are connected matter, therefore, we propose to dispose them of by this consolidated judgment.
2. The incident took place at 5 a.m. On 8-3-1981 at the tubewell of one Baqir situate within the revenue limits of village Mari Mian Sahib at a distance of 15 miles from Police Station Takht Mahal, district Bahawalnagar. The occurrence was witnessed by Allah Ditta, Khan Muhammad and Mst.
Sharfan P.Ws. Report was lodged by Allah Ditta, brother of Mst. Sharfan P.W. Wife of Muhammad Sadiq deceased, at the police station the same day, at 11-30 a.m. Vide F.I.R. Exh. P.W.10/1 recorded by A.S.I. Ghulam Farid.
3. According to the F.I.R. Both the deceased and Jehangir, appellant, lived with their families in village Toba Jamal Din in District Bahawalnagar. About 1-1/2 years before the occurrence Khushi Muhammad and Zaman, brothers of Jahangir, appellant, were murdered and Jehangir had accused Muhammad Sadiq and his son Bashir Ahmad (both deceased persons) besides 6 others of committing these murders. Sadar Police Bahawalnagar challaned them but 3 months before this occurrence they were acquitted by the learned Sessions Judge, Bahawalnagar. Muhammad Sadiq and Bashir Ahmad in order to avoid wrath of the opposite party, shifted their residence to Mari Mian Sahib and started living at the tubewell of Baqir Arain.
4. On 7-3-1981, at evening time Allah Ditta first informant and his sister's son Khan Muhammad (P.W.12) came to the tubewell of Baqir just to meet the deceased. They stayed there for the night.
They, slept besides the two deceased and Mst. Sharfan P.W. Under a Chappar. At about 5 a.m. Early in the morning when they were awake and talking to each other all of a sudden Muhammad Bakhsh armed with pistol, Faiz Bakhsh and Jehangir armed with hatchets and Allah Rakha empty handed entered the Chappar. Allah Rakha picked up licensed .12 bore double barrel gun No. 1753 of Muhammad Sadiq lying by his side anal fired at him with that gun. Muhammad Bakhsh fired a pistol shot on the face of Bashir Ahmad. Jahangir and Faiz Bakhsh gave hatchet blows to them. The witnesses did not intervene out of fear and the assailants after murdering Muhammad Sadiq and Bashir Ahmad escaped towards the river side and took away gun of Muhammad Sadiq as well with them. Leaving the dead bodies in the care of Khan Muhammad and Mst. Sharfan P.Ws Allah Ditta went on foot to Takht Mahal Police Station and lodged F.I.R. Exh.P.W.10/1 there.
5. A.S.I. (now Head Constable) Ghulam Farid (P.W.15) having registered the case visited the spot. He prepared injury statement Exh. P.W.1/7 and inquest report Exh. P.W.1/8 of Muhammad Sadiq (deceased) and injury statement Exh. P.W.1/3 and inquest report Exh. P.W.1/4 of Bashir Ahmad (deceased) and sent both the dead bodies for post-mortem examination under police escort. He collected blood-stained earth from underneath the cots of both the deceased and made them into separate sealed parcels. Ejaz Ahmad Constable (P.W.4) brought from the doctor two sealed phials P.3 and P.4 containing pellets extracted from the dead bodies of Muhammad Sadiq and Bashir Ahmad and produced them before the Investigating Officer who seized them under memo.
Exh. P.W.4/1.
6. On 10-3-1981 Head Constable Ghulam Farid (P.W.15) arrested all the accused. On 13-3-1981 Jahangir led to the recovery of blood-stained hatchet P.17 buried under a Kikar tree in a wheat field while Allah Rakha got recovered gun P. 18 bearing No. 1753 (belonging to Muhammad Sadiq deceased) buried under a Bairi tree in a wheat field, which were seized vide Memos. P.W.6/1 and 2, witnessed by Muhammad Ramzan (P.W.6) and Ali Muhammad (P.W.7), both cousins of Muhammad Sadiq deceased. On the same day, Faiz Ahmad got recovered blood-stained hatchet P.19 lying under a Charpoy in his Kotha and Muhammad Bakhsh led to the recovery of pistol P.20 from a wheat-bin in his courtyard, which were seized vide memo. Exh. P.W.8/1 and Exh.P.W.8/2 attested by Basara (P.W.8), real brother, and Muhammad Bakhsh (P.W.9), nephew of Muhammad Sadiq deceased. It may be mentioned that these fire-arms at the time of recovery were unserviceable. The blood-stained earth collected from the spot and the two hatchets P.17 and P.19 recovered from the accused were found stained with human blood by the Chemical Examiner and Serologist vide their reports Exh. P.A. And Exh. P.B. After investigation the case was sent to Court.
7. Dr. Capt. Abdul Majeed, Medical Officer, D.H.Q. Hospital, Bahawalnagar, (P.W.1) conducted the post-mortem examination on the dead body of Bashir Ahmad on 9-3-1981 and found the following injuries thereon:-
(1) An incised wound 2" x 1/2" x bone deep on the left side of forehead just above the left eye-brow.
The direction was oblique.
(2) An incised wound 1" x 1/6" x 1/6" on the left side of forehead just close to injury No. 1. The direction was oblique.
(3) An incised wound 1-1/2" x 1/2" x bone deep on the frontal region about 1-1/2" above the left eye- brow. Direction was oblique.
(4) An incised wound 1-1/2" x 1/2" x bone deep on the right side of the forehead 1" above right eye- brow. The direction was oblique.
(5) An incised wound 1-1/2" x 1/4" x bone deep on the right side of the forehead about 3/4"above injury No. 4.
(6) An incised wound 3" x 3/4" x bone deep on the right side of forehead 1" above the right eye- brow. The direction was oblique. Underlying bone (right frontal bone) was fractured.
(7) An incised wound 5" x 1-1/2" x bone deep on the right side of the face starting from a point on the right side of the forehead just close t9 the outer part of right eye-brow and extending obliquely towards the right temporal region reaching a point just in front of right ear. The underlying muscles, vessels and nerves were cut and exposed. The underlying bones (right frontal and temporal bones) were fractured.
(8) An incised wound 1-1/4" x 1/4" x 1/4" on the right side of face about 1" below and medial to the right ear. The direction was oblique.
(9) An incised wound 1-1/2" x 1/4" x 1/6" on the bridge of the nose 1- 1/2" above the tip of the nose.
The direction was oblique and the underlying bones (nasal bones) were fractured.
(10) An incised wound 1" x 1/4" x 1/6" on the left side of the face just above left upper lip. The direction was oblique.
(11) An incised wound 1" x 1/2" x 1/4" on the left upper lip just close to the left nostril. The direction was oblique.
(12) An incised wound 1" x 1/4" x 1/6" on the central part of lower lip. The direction was oblique.
(13) An incised wound 2" x 1/2" x 1/4" on the chin. The direction was oblique.
(14) One lacerated wound 1-1/2" x 1-1/4" x thoracic cavity deep on front of right side of the chest 3" above and medial to right nipple. (Fire-arm wound of entrance). The wound was oval in shape and margins were inverted. The shirt and jersey over wound were torn and blood-stained. Blackening and scratching of the cloth around the wound was present. Underlying muscles, vessels and nerves extensively lacerated and expected. Underlying bones (4th and 5th ribs on the back) were fractured.
(15) An incised wound 1" x 1/4" x muscles deep on the front of left upper arm 6" below the shoulder- joint. The direction was oblique. The jersey over the wound was cut and blood-stained.
(16) An incised wound 1" x 1/4" x 1/6" on the front of left upper arm 2" below injury No. 15. The direction was oblique and the jersey over the wound was cut and blood-stained.
(17) An incised wound 1-1/2" x 1/2" x bone deep on the front of left upper arm 3/4" below injury No. 16.
The direction was oblique and the jersey over the wound was out and blood-stained. The underlying bone (left humerus) was fractured.
(18) An incised wound 2-3/4" x 1-1/2" x bone deep starting from a point on back of right forearm 1- 1/2" above wrist joint and extending obliquely towards the front of forearm about 1- I/2" above the wrist joint. The underlying banes (right radius and ulna) were fractured.
(19) An incised wound 1-1/2" x 1/4" x muscles deep on the back of right forearm 2-1/2"above the wrist joint Direction was oblique.
(20) An incised wound 1-1/2" x 1/2" x muscles deep on the outer part of right forearm 3" above wrist joint. The direction was oblique.
(21) An incised wound 5" x 2" x bone deep starting from a joint on the back of right forearm and extending obliquely towards the back of hand reaching the bases of thumb and index finger. The underlying bones (1st, 2nd, 3rd, 4th and 5th metacarpal bones) were fractured.
(22) An incised wound 3" x 1/2" x bone deep on the back of right hand just close to the wrist joint and extending obliquely towards the bases of ring and middle fingers.
(23) An incised wound 1-1/2" x 1/2" x bone deep on back of right hand just close to the base of thumb. The direction was oblique.
(24) An incised wound 2-1/2" x 1" x muscles deep on the outer part of right upper arm 4-1/2" above the elbow joint. The direction was oblique.
(25) An incised wound 2" x 1/2" x muscles deep on the outer part of right thigh 10"above the knee joint. The direction was oblique.
(26) An incised wound 3-1/2" x 2" x bone deep (right femur) on the outer and lower part of right buttock 1-1/4"above injury No.24. The direction was oblique and underlying muscles, vessels and nerves were cut and exposed. The underlying bone (upper part of right femur) was cut.
(27) An incised wound 1-1/2" x 1/4" x 1/4" on the front of left knee---joint. The direction was oblique.
The doctor observed that the stomach was healthy and contained traces of semi-digested food.
Small intestines were healthy and contained gases. Similarly large intestines contained gases and faecal matter. Left humerus, right radius, right ulna, right femur and right Ist to 5th metacarpal bones were found fractured. Skull was found fractured at right frontal. In the opinion of the doctor, the death was caused due to severe haemorrhage and shock which was the result of injury No. 14 caused with a firearm. All the injuries were ante-mortem. Injury No. 14 was sufficient to cause death in the ordinary course of nature. The death was instantaneous and the time which elapsed between death and post--mortem examination was about 24 hours.
8. On the same day at 8 a.m., the same doctor conducted autopsy on the dead body of Muhammad Sadiq (deceased) and found following injuries on his person:--
(1) One lacerated wound 2" x 1" x bone deep (vertebral column) on the left side of the neck 2" below the left ear. (Firearm wound of entrance). The wound was oval in shape and the margins were inverted. Blackening and scratching of the skin around the margins of the wound was present. The underlying muscles, vessels and nerves were extensively lacerated. The underlying bones (cervical 2nd and 3rd vertebrae) were fractured. Five pellets were recovered from the back of chest under the skin, sealed and handed over to the police.
(2) One lacerated wound 2/3" x 1/3" x thoracic cavity deep on the front of right side of the chest about 2" medial to the right nipple. The wound was oval in shape and margins were inverted.
Blackening and scratching of the skin around the margins of wound was present. Jersey over the wound was torn and blood-stained (fire--arm wound of entrance). Six pellets were recovered from the back of chest under the skin, sealed-and handed over to the police.
(3) The left index finger cut through and through at the level of proximal interphalageal joint and attached to the hand by means of a small tag of skin on its palmer surface.
The doctor observed that the stomach contained a small quantity of whitish material. Small intestines were healthy and contained gases while large intestines contained faecal material.
Injuries Nos. 1 and 2 were caused with fire-arm and injury No. 3 was caused with sharp-edged weapon. All the injuries were ante-mortem. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. The death was instantaneous and the time which elapsed between death and post---mortem examination was about 24 hours. In cross-examination the doctor did not agree with the suggestion that the gun was fired by placing its barrel on the chest of the victims. He stated that the direction of pellets was downward and inward. Both the deceased according to him had taken their meals 3 to 4 hours prior to their death.
9. At the trial 15 witnesses were examined in all. The prosecution relied on the following pieces of evidence:
(a) Evidence of motive furnished by Allah Ditta (P.W. 10) and Mst. Sharfan (P.W.13).
(b) Eye-witness account given by Allah Ditta (P.W.10) Khan Muhammad (P.W.12) and Mst. Sharfan (P.W.13);
(c) Recovery of weapons sought to be proved through Muhammad Ramzan (P.W.6), Ali Muhammad (P.W.7), S.I. Khalid Ahmad (P.W.14) Basara (P.W.8), Muhammad Bakhsh (P.W.9) and H.C Ghulam Farid (P.W.15); and the
(d) Medical evidence provided by Dr. Capt. Abdul Majid (P.W.1).
10. Allah Ditta (P.W.10), the first informant proved F.I.R. Exh P.W.10/1 which bore his thumb impression.
He stated that Allah Rakha appellant is nephew of Jahangir appellant and Faiz Ahmad and Muhammad Bakhsh appellants are maternal and paternal cousins of Jahangir respectively. He admitted that Muhammad Sadiq (deceased) was his maternal cousin and husband of his sister Mst. Sharfan (P.W.13). He also admitted that Khan Muhammad (P.W.12) is his sister's son and nephew of Muhammad Sadiq (deceased).
10-A. Allah Ditta first informant (P.W.10) and Khan Muhammad (P.W.12) stated that they went to see the deceased at the tube-well of Baqir in village Mari Mian Sahib on the evening preceding the morning of occurrence. They stayed there for the night. They slept under a Chappar with the two deceased and Mst. Sharfan P.W. Which did not have four walls around it. At Fajar prayer time they were awake and talking to each other when all of a sudden the appellants came there.
Muhammad Bakhsh was armed with a pistol, Jahangir and Faiz Ahmad were armed with hatchets while Allah Rakha was empty handed. Muhammad Bakhsh fired with his pistol at Muhammad Sadiq, then Allah Rakha picked up the gun of Muhammad Sadiq lying by his side and fired with it at him. Faiz Ahmad and Jahangir started giving hatchet blows to Bashir Ahmad (deceased) and then Muhammad Bakhsh, appellant, fired with his pistol at him. They (appellants) also threatened them with dire consequences and out of fear they did not intervene. The appellants, then decamped and took away gun of Sadiq also. Muhammad Sadiq and Bashir Ahmad died instantaneously and Allah Ditta went to inform the police. In cross--examination they admitted that Allah Ditta and Khan Muhammad P.Ws had come to the place of Muhammad Sadiq deceased without any specific business. A pair of bullocks was tethered outside the Chappar but there was no house-hold goods lying underneath the Chappar. Khan Muhammad P.W. Unlike other P.Ws added that although it was dawn time. Yet a lantern was burning there. The police arrived at the spot at Peshiwela. He denied to have stated in his police statement Exh. D.A. Than Sadiq was given hatchet blow first and then Allah Rakha fired from the gun at him and thereafter Muhammad Bakhsh fired at him from the pistol but it was found so recorded in his police statement Exh. D.A.
11. Mst. Sharfan (P.W.13) wife of Muhammad Sadiq (deceased) stated that some 10/12 days after the acquittal of Bashir Ahmad and Sadiq from the murder case, they shifted from Toba Jamal Din to Mari Mian Sahib She stated that in the early hours of the fateful morning they were awake and talking with each other when the appellants duly armed came there, excepting Allah Rakha who was empty handed. Muhammad Bakhsh fired from his pistol at her husband (Muhammad Sadiq) and Allah Rakha having picked up her husband's gun lying by his side also fired at him with that gun. Jahangir and Faiz Ahmad gave hatchet blows to her son Bashir and then Muhammad Bakhsh fired from his pistol which hit on the face of Bashir Ahmad. Jahangir also gave a hatchet blow to Muhammad Sadiq. None of the eye-witnesses intervened out of fear as they were empty handed.
After the accused had left Allah Ditta repaired to the police station for making report of the occurrence. In cross-examination Mst. Sharfan P.W. Stated that Allah Ditta P.W. Lived in village Sanatteka at a distance of 2/3 miles from the place of occurrence and the Abadi of village Mari Mian Sahib is about 3/4 miles from there. She denied the suggestion that Muhammad Sadiq and Bashir Ahmad alone lived at the tubewell of Baqir and that neither she nor her daughters lived there. She also denied that in the days of occurrence, she was living with her brother Allah Ditta in village Sanatteka. All the witnesses denied the suggestion that these murders were unseen. It may be stated that all the eye-witnesses in sharp contrast to their statements before the police had changed the sequence of inflicting injuries to the deceased at the trial. They were successfully confronted by the defence with their police statements.
12. At the conclusion of prosecution evidence, the appellants when examined under section 342, Cr.P.C., controverted the prosecution allegations and pleaded innocence, and stated that they have been involved due to enmity. No witness was produced in defence.
13. Learned trial Court believing the prosecution story convicted and sentenced the appellants as indicated above.
14. Learned counsel appearing on behalf of the appellants argued that the eye-witnesses in this case are chance witnesses. They lived miles away from the place of occurrence; they are inimically disposed towards the appellants and no independent corroboration of their evidence is available and above all their evidence is in direct conflict with the medical evidence, therefore, such evidence cannot be made basis for conviction on capital charge. As against this, learned State counsel submitted that both the deceased were challaned for murdering two brothers of Jahangir, appellant, and were acquitted, therefore, the appellants had a motive to kill both the deceased. He next submitted that gun P.18 recovered at the instance of Allah Rakha, appellant, belonged to Muhammad Sadiq, deceased, and its recovery from Allah Rakha appellant provides strong corroboration to the prosecution case. He further submitted that because the occurrence took place at the residence of the deceased, therefore, it is quite natural that the relatives of the deceased were present there and witnessed the occurrence and that the trial Court rightly believed them and convicted the appellants on the basis of their evidence.
15. All the three eye-witnesses, namely, Allah Ditta (P.W.10), Muhammad Khan (P.W.12) and Mst.
Sharfan (P.W.13) are closely related to the deceased persons. Likewise, the recovery witnesses, namely, Muhammad Ramzan (P.W.6), Ali Muhammad (P.W.7), Basara (P.W.8) and Muhammad Bakhsh (P.W.9) are also kith and kin of the deceased. Muhammad Bakhsh P.W. Was challaned along with Muhammad Sadiq and Bashir Ahmad (deceased) for murdering Khushi Muhammad and Zaman, brothers of Jahangir, appellant, and was acquitted, a few months before the present occurrence. Obviously, therefore, the prosecution witnesses belong to the opposite camp of the appellants. At the same time we hold that Jahangir, appellant and his co-appellants who are related to him had a strong motive to kill Muhammad Sadiq and Bashir Ahmad, deceased.
16. As far Allah Ditta (P.W.10) and Khan Muhammad (P.W.11) the eye--witnesses are concerned, they lived in different villages situated at a distance of 3/4 miles from the place of occurrence. They had come to the deceased's place (tubewell of Baqir) simply to see them without there being any specific business. The two deceased after their acquittal from the murder case shifted to that place only a few days before. It is in evidence that the place of occurrence is a Chappar (a temporary thatched hut) not surrounded by four walls. Allah Ditta (P.W.10) stated that the said Chappar was open from the eastern side while Khan Muhammad (P.W.12) stated that there were no house-hold goods lying in the Chappar and that the unmarried young daughter of Muhammad Sadiq deceased too was not present there on the night of occurrence. All these circumstances indicate that the place of occurrence was not a regular dwelling place and the deceased appear to be temporarily staying there without their woman---folk in order to avoid possible attack on them by the opposite party.
17. Allah Ditta and Mst. Sharfan P.Ws. Do not say that there was any source of light at the time of occurrence but Khan Muhammad P.W. Stated that lantern was burning there. It seems queer that at dawn time the lantern would be burning under a Chappar having all sides open. Admittedly Allah Ditta and Khan Muhammad P.Ws. Besides being close relations of the deceased lived miles away from the place of occurrence. They claimed to have come to see the deceased on the fateful night and by coincidence they happened to see the occurrence. In this background we would examine if their presence at the relevant time on the spot is confirmed by other attending circumstances. According to their version the appellants attacked and killed the two deceased within their sight early in the morning at 5 a.m. The medical witness, Dr. Abdul Majeed who performed autopsy on the dead bodies of the two deceased found semi---digested food in their stomachs and in his opinion they had taken their last meals about 3 to 4 hours prior to their death.
They met instantaneous death after receiving injuries. If the eye-witnesses are believed then it would mean that the deceased took their last meals round about at 1 a.m. (mid--night) which is not the normal time for the villagers to take their meals. Post-mortem examination on the dead bodies of the deceased was carried out at 8 and 8-30 a.m. On 9-3-1981, about 24 hours after their death as indicated in the post-mortem reports. Calculating the time of their death with the aforesaid data it seems that the deceased were killed after they had taken their morning meals, whereas the eye-witnesses stated that the deceased were still enjoying their night sleep and had not yet risen from their beds in the morning when they were attacked and killed. The eye-- witnesses' version that the occurrence took place at dawn time is, therefore, belied by the medical evidence. Again presence of 27 injuries on the person of Bashir Ahmad, deceased shows that his assailants, whosoever they have been, were in no hurry, and they inflicted injuries at will. This would mean that they were not being observed by any person present at the spot. Furthermore, Allah Rakha appellant stated to have come empty handed to the spot and picked up gun P.18 lying by the side of Muhammad Sadiq, deceased, and fired with it at Muhammad Sadiq and killed him. It does not stand to reason that Allah Rakha having a design to kill the deceased would have gone to the spot empty handed in the hope that he would find the deceased's gun lying there in loaded condition for completing his mission. This circumstance has left us in no manner of doubt that Allah Rakha has been falsely involved in this case. We may add here that the unserviceable gun P.18 allegedly recovered from him has also not been proved as belonging to Sadiq deceased which was according to prosecution stolen away by the appellants on the night of occurrence.
18. The F.I.R. In this case was 4.Lodged about 6 hours after the occurrence at the police station which is 15 miles away from the scene of offence. About 2 miles away from the scene, there is a metalled road. Buses ply on that route, yet Allah Ditta P.W., first informant, chose to travel on foot.
May be that the complainant has coined this excuse in his own scheme to explain the delay occasioned on account of deliberations and consultations held by the members of the complainant party before lodging the F.I.R. There is yet another circumstances which indicates that at the time of occurrence nobody was present at the spot, that is; the police have claimed to have reached by 11-30 a.m. At the spot but the post---mortem on the dead bodies had been conducted the next day, which means that dead bodies were despatched from the spot late in the night, indicating that the police had reached the scene towards fag end of the day.
19. The eye-witnesses are not only closely related to the deceased but also belong to the opposite camp, therefore, they are interested witnesses. For the safe administration of criminal justice their evidence cannot be accepted without independent corroboration. In this connection the prosecution has banked on the recovery of weapons effected from the appellants. Muhammad Ramzan (P.W. 6) and Ali Muhammad (P.W.7) are witnesses of recovery of hatchet P.17 from Jahangir and .12 bore gun P.18 (bearing No. 1753) from Allah Rakha. Muhammad Ramzan P.W. Is nephew of Sadiq deceased and Ali Muhammad P.W. Is his brother-in-law, who lived 10/12 miles away from the place of recovery. The other recoveries are of hatchet P.19 from Faiz Ahmad and pistol P.20 from Muhammad Bakhsh appellants, which are sought to be proved by Basara (P.W.8) real brother of Sadiq (deceased) and Muhammad Bakhsh (P.W.9) his nephew. Muhammad Bakhsh P.W. Was also challaned with Sadiq deceased for murdering brothers of Jahangir appellant. It would be seen that all the recovery witnesses are closely related to the deceased and are belonging to opposite faction of the appellants. They do not live at the place of recovery as well. So their evidence can hardly provide the desired corroboration to the ocular testimony of the interested witnesses as one tainted piece of evidence cannot corroborate another tainted piece of evidence. Furthermore, no empty had been recovered from the place of occurrence so, gun P.18 and pistol P.20 are not connected with the crime. Gun P.18 (bearing No. 1753) allegedly belonged to Sadiq deceased who held licence for the same but strangely enough, no licence to show that it was Sadiq's licensed gun had been produced either. We have seen the number of his gun 1753 which has been given in the F.I.R. By Allah Ditta, first informant, who thumb marked the F.I.R. Exh.
P.W.10/A which means that he is an illiterate person and could not, therefore, give the number of the gun from his memory, that too of a gun which did not belong to him. We think it was only possible to give its number in the F.I.R. Either from the licence or from the gun itself. Since no licence has been produced, therefore, we are of the view that gun P.18 was present before the police at the time of registration of the F.I.R. And was later planted on Allah Rakha to strengthen the prosecution case. All these facts knock out all the recoveries and that of gun P.18 from Allah Rakha appellant in particular. It also cast grave doubts as to the genuineness of the F.I.R. And the investigation.
20. The sum total of the above discussion is that prosecution evidence consists of interested witnesses whose testimony lacked corroboration. The ocular testimony is also found in conflict with the medical evidence. F.I.R. Appears to have been drawn up after deliberations and consultations and the investigation is not above board, particularly the recoveries appear to be fake. Conviction on the basis of motive alone cannot be recorded moreso on a capital charge. In short for the above discussion there is no satisfactory evidence connecting the appellants with the crime, therefore, their conviction recorded by the learned trial Court cannot be sustained. Consequently, we allow this appeal, set aside the conviction and sentence of the appellants and acquit them.
They shall be released forthwith, if not wanted in any other case. Death sentence is NOT confirmed and the revision petition seeking enhancement of sentence of Allah Rakha appellant automatically fails. Reference is rejected.