' Appellants Muhammad Hanif, aged 48 years, Muhammad Ashraf, aged 28 years and Abdul Majeed, aged 28 years, in Criminal Appeal No,199/88, Muhammad Yusuf, aged 35 years and Muhammad Younas, aged 18 years, in Cr Appeal No,200/88 were tried by Additional Sessions Judge, Sialkot, for having formed an unlawful assembly with the common object of murdering Sultan Ahmad. The learned trial Judge convicted all of them under sections 148, PPC and 302/149, PPC, vide judgment, dated 22nd November, 1987 and awarded sentences as follows:-- ' Under section 148, P.P.C. All sentenced to undergo R.I. For two years each, plus to pay a fine of Rs,500, in default whereof to suffer LI. For one month each.
' Under section 302/149, P.P.C. All sentenced to imprisonment for life each, plus to pay a fine of Rs,5,000, in default whereof to suffer R.I. For six months each.
' The sentences have been ordered to run concurrently. They have also been given the benefit of the provisions of section 382-B, Cr.P.C.
' The complainant has filed Cr. Revision No,253/88, wherein prayer has been made for enhancement of sentences of the convicts from life imprisonment to death.
' As all the matters arise from the same judgment, they are being disposed of by a consolidated judgment.
2. The occurrence had taken place in the fields in the area of village Nangal Mirza, at a distance of two miles from Police Station Pasrur, at Peshiwela on 23rd August, 1986. F.I.R. (Ex. PJ) was recorded at the police station on the same day by Muhammad Ashfaq, SI/SHO (PW 10), on the statement of Mahmood Ahmad (PW 8), brother of the deceased.
' According to FIR, the deceased, who was resident of Mohallah Islampura, Pasrur Town, used to graze his cattle on Pasrur-Satrah road. The land on the north western side of the said road belonged to the residents of village Nangal Mirza. The land beyond some arta from the road belonged to Muhammad Hanif alias Allah Ditta etc. Muhammad Hanif etc. Suspected that Sultan Ahmad destroys their crop while grazing his cattle.
' On the day of occurrence, Muhammad Hanif (appellant) came to Pasrur at 8 a.m. To lodge protest to the deceased. He told the deceased in the presence of Bashir Ahmad and Muhammad Ratnzan PWs that he will have to face the consequences for destroying their crops. Bashir Ahmad and Muhammad Ramzan intervened and got them separated. Hanif went away while issuing threats that he will teach a lesson for destruction of crops.
' On the same day, Sultan Ahmad was grazing his cattle at Peshiwela at Pasrur-Satrah road. He was armed with his licensed gun. While grazing cattle, he entered the vacant fields of village Nangal Mirza, opposite to Murshadabad. The complainant also reached there by chance. PWs Riaz, Bashir and Munir were also grazing their cattle nearby. In the meantime, Muhammad Ashraf, Muhammad Hanif, Muhammad Younas and Abdul Majeed armed with Kulharis, accompanied by Muhammad Yusuf, armed with a revolver, came from the side of village Nangle Mirza. Muhamtnad Yousaf raised a Lalkara to Sultan Ahmad that he will teach him a lesson for destroying the crops, and fired a shot, which struck him (deceased) on the left eye. ,Sultan Ahmad fired a shot from his gun, which struck Muhammad Hanif, whereupon, all the accused launched attack on him, and started giving blows with the Kulharis. Muhammad Ashraf gave a Kulhari blow on the head of Sultan Ahmad. Muhammad Hanif gave Kulhari blow on the left thigh. Abdul Majeed gave a Kulhari blow on the left arm. Muhammad Younas gave a Kulhari blow on the left ankle. The deceased made attempts to save himself from Kulhari blows with the help of his gun. The gun was broken.
Sultan Ahmad fell down. He was given more blows with the Kulharis by the accused armed with Kulharis. As a result of the blow given by Muhammad Ashraf, the left foot of the deceased was completely cut off from the main trunk. He died at the spot. The complainant and the PWs raised hue and cry but nobody came there for fear. The accused then went away.
3. Muhammad Ashfaq, SI (PW 10), after recording the FIR, reached the spot. He entrusted the dead body to Shamoon Khan and Muhammad Irshad constables, after preparing injury statement (EL PB/2) and inquest report (Ex. PB/3).
' During spot inspection, he took into possession blood-stained earth vide memo. Ex. PD. .12 bore gun (P.5) (of the deceased), cover of gun (P.8), licence of gun (P.9), bandolier (P.6) containing 17 live-cartridges (P.7/1-17) and a pair of shoes of the deceased (P.10/1-2), vide memo. Ex.PE.
Statements of the PWs were also recorded by him on the same day.
' Ashraf, YOunas, Yousaf and Abdul Majeed were arrested by him on 31st August, 1986 while Hanif was arrested on 1st October, 1986.
' Muhammad Yousaf led to the recovery of his licensed revolver (P.12), with empty (P.14) in its chamber, and four live cartridges (P.13/-1-4) from his residence on 9-9-1986. The said articles were taken into possession vide memo. Ex.P.G. On 13-9-1986, Muhammad Ashraf led to the recovery of bood-stained hatched (P.11) from his cattic-shed, which was taken into possession vide memo.
Ex.PF. Muhammad Hanif led to the recovery of blood-stained hatchet (P.15) from his cattle-shed on 1-10-1986, which was taken into possession vide memo. Ex.P.H.
' The challan was submitted to Court after completion of necessary investigation.
4. Statements of 10 P.Ws were recorded at the trial.
' Dr.Muhammad Sarwar, who had performed autopsy on 24-8-1986 appeared as PW-2. He had noted following injuries on the body of the deceased:-
(1) An inside wound 6.5 c.m: x 0.5 c.m. x bone deep on top of left side of head starting from upper border of forehead going backward vertically.
(2) An oval wound, 1.3 c.m. x 1 c.m. x bone deep on outer side of left eyebrow. Edges of the wound were, inverted. There was blackening around the wound.
(3) An oval wound 1 c.m. x 1 c.m. x bone deep on lower eyelid (left eye).
(4) An incised wound 5 c.m. x 3 c.m. On outer aspect of left shoulder.
(5) An incised wound 8 c.m. x 2 c.m. On upper part of dorsum of left forearm. All the underlying structures including bone were cut.
(6) An incised wound 11 c.m. x 6 c.m. On front of lower part of right forearm. All the underlying structures including bone were cut.
(7) An incised wound 12 c.m. x 6 c.m. On dorsolateral aspect of lower part of right forearm, wrist and upper part of right hand, underlying bone was cut.
(8) An incised wound 10 c.m. x 4 c.m. x 3 c.m. On inner side of uppermost part of left thigh.
(9) An incised wound 7 c.m. x 2 c.m. x bone deep on front of upper part of left leg just below the knee-joint.
(10) An incised wound 1 c.m. x 1 c.m. x bone deep on upper part of left leg, 1 c.m. Blow injury No,9.
(11) An incised wound, 11 c.m. x 8 c.m. On front of upper part of left leg, below injury No,10. All the underlying structures including bone were cut.
(12) An incised wound, 7 c.m. x 3 c.m. x bone deep on outer aspect of left leg in the middle.
(13) An incised wound, 7.5 c.m. x 7 c.m. On front of left leg in the middle. All the underlying structures including tibba and fibula were cut.
(14) Left foot was amputated at the level of ankle with cut wound of 13 c.m. x 9 c.m. x 7 c.m.
(15) An incised wound 15 c.m. x 5 c.m. x bone deep on inner side of lower part of right thigh underlying bone was partially cut.
(16) An incised wound, 9 c.m. x 6 c.m. On front of right ankle. All the underlying structures including talus bone were cut.
' Death, according to his opinion, had occurred due to hemorrhage and shock resulting from injuries Nos.1 to 16. Injuries 2 and 3 were opined to have been caused by fire-arm while the rest were opined to have been caused by sharp-edged weapon.
' During cross-examination, he admitted that 12 injuries were noted in the injury statement prepared by the police. He admitted that he had not mentioned that injury No,2 was an entry wound and injury No,3 was an exit wound. He volunteered that according to his view injury No,2 was entry wound while injury No,3 was exit wound. He gave out that he had not mentioned that fact, particularly as the said injuries were simple and had not contributed to death. He denied the suggestion that there was no fire-arm injury on the body of the deceased and that he had fabricated injuries Nos.2 and 3 at the instance of heads of Gujjar 'party.
5. The ocular account was deposed to by Mahmood Ahmad complainant (PW 8) and Muhammad Riaz (PW 9).
' Mahmood Ahmad while repeating the facts given by him in the F.I.R., explained that he had gone after his deceased brother at the command of his mother to call him home. During cross- examination, he admitted that he was undergoing sentence on conviction in a case under section 307, P.P.C. He admitted that he was on hail in a Hudood case. He denied the suggestions that he and his deceased brother was named as accused in case F.I.R. Nos.182/86, 68/81 dated 5-4-1981, 26/87, dated 1-2-1987 of Police Station, Pasrur. He admitted that he along with his deceased brother was named as accused in case F.I.R. No,137/81, dated 23-6-1981 of Police Station Pasrur. He denied knowledge about his deceased brother having been named as accused in case F.I.R. Nos.220/82, 5/80, dated 5-1-1980, 30/81, dated 24-2-1981, 152/81, dated 8-7-1981 and 173/81, dated 5-8-1981 of Police Station Pasrur. He stated that his deceased brother used to take his gun with him while going for grazing his cattle. He admitted that he was employed as Security Watchman in Sugar Mills, Pasrur and was to report on duty on the day of occurrence at 2 p.m. He could not say as to why his mother had sent for the deceased. He denied the suggestions that he had not witnessed the occurrence and that in fact Allah Rakha, Nazir, Mehnga, Din Muhammad Lambardar, Bilal Haider, Fazal Abbas and Allah Rakha son of Imam Din had actually witnessed the occurrence and had totally belied his version during investigation. He also denied the suggestion that the deceased, in fact, was given injuries by Yousaf and Hanif with the help of other owners of the surrounding field when the deceased had started damaging their crops at gun point.
' MuhammadRiaz (PW 9) while corroborating, the account of occurrence given by the complainant (PW 8), stated that he had witnessed the occurrence, while grazing his cattle along with Munir and Bashir P.Ws near the place of occurrence since 9 a.m. During cross-examination he stated that he had no connection with the deceased except of being caste fellow. He stated that Yousaf had fired at the deceased from a distance of two feet. He expressed inability to give number of injuries given by each of the accused. He admitted that he was tried in a case of abduction. He also admitted having been named as accused in a case under section 411, P.P.C., in another case under section 325, P.P.C. And yet in another case under section 13 of the Arms Ordinance, 1965 of Police Station, Pasrur. He denied the suggestions that he had not witnessed the occurrence and that the occurrence was witnessed by Allah Rakha, Nazir, Mehnga, Din Muhammad Lambardar, Bilal Haider, Fazal Abbas and Allah Rakha son of Imam Din. He also denied the suggestions that the occurrence had started when the deceased had refused to desist from damaging the crops, on the request of Yousaf and Hanif and that they had caused him injuries after having been fired at by him (deceased) and that some other persons whose crops the deceased used to damage had also joined them in the infliction of injuries.
6. Muhammad Ashfaq, S.I. (PW 10), while giving the account of registration of case and the investigation conducted by him, stated that after having despatched the dead body for post- mortem examination, he had collected blood-stained earth from the place of occurrence and had also taken into possession gun (P.5) of the deceased (in broken condition), cover of the gun, licence of the gun, bandolier containing 17 live cartridges and a pair of shoes of the deceased. He stated that he had arrested Ashraf, Younas, Yousaf and Abdul Majeed appellants on 31-8-1986 while Hanif was arrested on 1-10-1986. He stated that Yousaf had led to the recovery of revolver (P.12), with empty (P.14) in its chamber, four live cartridges along with licence of the revolver, on 9- 9-1986, which were taken into possession on his pointation, while Ashraf had led to the recovery of blood-stained hatchet (P.11) from his cattle shed on 13-9-1986 and Hanif had led to the recovery of hatchet (P.15) (blood-stained) from his cattle-shed on 1-10-1986. During cross-examination, he stated that neither any empty was found lying near the gun of the deceased taken into possession from the spot nor any empty was found in the barrel of the gun. He admitted that he had noted, in column No,12 of Ex.PB/3 (in quested report. He also admitted that he had not mentioned any fire- arm injury in the injury statement (Ex.PB/2). He stated that according to his investigation Younas and Abdul Majeed accused were empty handed at the time of occurrence and that they had professed innocence before him. He added that the investigation was verified by Riaz Ahmad, D.S.P., who too had found Younas and Abdul Majeed to be empty handed at the time of occurrence.
He denied the suggestion that persons other than the eye-witnesses named in the FIR had actually witnessed the occurrence. He conceded that affidavits of Mehnga, Bilal Haider, Fazal Abbas, Din Muhammad, Allah Rakha son of Imam Din, Muhammad Din, Muhammad Bota, Sardar and Yaqub were placed on the police file, wherein they have alleged to have witnessed the occurrence. He also conceded that Ashraf had pleaded alibi. He stated that he had not investigated as to who was the owner of the field in which the occurrence took place nor had he investigated as to in whose cultivating possession it was.
' Muhammad Siddique (PW 5) corroborated his statement with regard to the recoveries effected from the spot and the recovery of hatchet (P.11) on the pointing out of Ashraf.
' Muhammad Alam (PW 7) corroborated the statement of the SI with regard to recoveries effected at the instance of Yousaf and hatchet (P.15) at the instance of Hanif.
' Both P.Ws 5 and 7 denied the suggestion of being related to the deceased and of having made incorrect statements. They, however, admitted to be his caste fellows.
' Muhammad Bashir (PW 6) deposed about motive for the occurrence. In that he stated that he had seen Hanif accused and Sultan deceased quarrelling near the shop of Muhammad Akram at 8 a.m. On 23-8-1986, on account of the fact that Sultan deceased while grazing his cattle in the fields used to damage the crops of Hanif. He stated that they were about to grapple when he along with Akram had separated them. He added that Hanif while leaving had threatened the deceased that if in future he brought his cattle to his field, he would be taught a lesson. He added that on the same day at 3 p.m. He learnt about Sultan having been murdered at the place of occurrence. He went there and saw the dead body lying there. He denied his relationship with the deceased, but admitted that he was his caste fellow. During cross-examination, he stated that he had alighted from the bus at the place where he had seen the deceased and Hanif quarrelling. He stated that he had appeared before the S.I. On 23-8-1986 and had identified the dead body on 24-8-1986, but his statement with regard to the incident of quarrel was recorded by the S.I. On 25-8-1986.
' The statements of the remaining P.Ws. Are more or less of a formal nature.
7. Positive reports from the offices of the Chemical Examiner and the Serologist about the stains of blood on hatchets (P.11 and P.15) were tendered in evidence. Report from the office of the Forensic Science Laboratory, about empty found in the chamber of the revolver recovered at the instance of Yousaf having been fired from the revolver was also tendered in evidence. The other witnesses named in the F.I.R. Were given up as unnecessary.
8. Appellants Muhammad Younas, Abdul Majeed and Muhammad Ashraf during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
' Muhammad Yousaf while denying the prosecution case stated as follows in answer to the question, "Why this case against you":- "Sultan deceased was a bad character and history-sheeter. He and his family members were involved in so many criminal cases. He used to damage the crops of others, I and Muhammad Hanif entreated him not to damage our standing crops but he was adamant. On the day of occurrence, he was grazing his cattle in our standing crops while standing by the side of his cattle armed with a gun. None of the alleged eyewitnesses were present at the spot. In fact, seven persons namely, Allah Rakha, Nazir Mehnga, Din Muhammad, Balal Haider, Fazal Abbas, and Allah Rakha son of Imam Din were present near the place of occurrence. In their presence, I and Muhammad Hanif accused entreated him but the deceased did not desist from damaging our crops, by forcibly letting loose his cattle on gun point in our standing crops. When I and Hanif accused objected and tried to prevent him from doing so, the deceased instead resorted to firing and his, first fire hit Hanif accused but thereafter he was not given time to re-load his gun and we both caused him some injuries to snatch the gun and in the exercise of the right of the person and property and subsequently the other persons whose crops, the deceased had damaged also joined and all of them extensively gave injuries to the deceased. Ashraf, Majeed and Younas, co- accused, were not present at the spot. Majeed co-accused was at Narowal at the time of occurrence. Ashraf accused was at Lahore in Kot Abdul Malik. Led evidence before the I.O. To prove our, innocence."
' Muhammad Hanif while denying the prosecution case owned the statement made by Muhammad Yousaf, in answer to the question, "why this case against you".
' Muhammad Yousaf while admitting that he had produced his licensed revolver and a few live cartridges, denied that the empty belonged to him. Muhammad Ashraf and Muhammad Hanif denied to have led to the recoveries of hatchets.
' The appellants also produced evidence in defence. All the appellants except Younas made statements in defence on oath also.
9. Muhammad Zulifqar, Inspector, who was examined as DW-1, stated that he had investigated the case from 23-8-1986 to 28-8-1986. He stated that Muhammad Afzal, Abdul Qayyum, Ibrahim, Muhammad Iqbal and Umar Din, residents of village Lala had produced affidavits before him. He also admitted that Allah Rakha, Mehnga, Nazir, Din Muhammad, Allah Rakha son of Imam Din, Bilal Haider, Fazal Abbas, Muhammad Bota, Muhammad Din and Sardar had also appeared before him and had produced affidavits. During cross-examination, he admitted that nobody had challenged the investigation carried out by Muhammad Ashfaq. S.I. Before him. He admitted that he had not investigated the case on the basis of the affidavits nor had verified their contents and neither had formed any opinion in that regard. He also admitted that neither the accused nor anyone from the complainant side were joined in the investigation on the day the affidavits were produced before him.
' Appellants Abdul Majeed, Muhammad Hanif, Muhammad Yousaf and Muhammad Ashraf while appearing as DWs. 2,6,7 and 8 respectively, reiterated the stand taken by them during statements u/s 342, Cr.P.C.
' Abdul Qayyum (DW 3) resident of village Lala stated that Abdul Majeed was in his village on 23-8- 1986, where he had entered into an agreement with Ibrahim, his co-villager, about the sale of a house.
' Muhammad Yaqub (DW-4) resident of Kot Abdul Malik, Lahore, stated that Ashraf accused had come to Kot Abdul Malik on 22-8-1986 and had stayed with him till 23-8-1986.
' Sardar Ali (DW-5) corroborated his statement.
10. Learned counsel for the appellants after taking me through the evidence criticized the impugned judgment and contended that both the eye-witnesses do not appear to have witnessed the occurrence and that in any case no reliance can be placed on their testimonies because of their questionable conduct and character, that the alleged recoveries of weapons of offence from the appellants appear to have been planted, that the prosecution has failed to prove the motive for the occurrence and that the version put forth by Yousaf and Hanif appellants is more probable and nearer the truth than the prosecution version.
11. Learned counsel for the State/complainant defended the judgment of the trial Court.
12. The evidence regarding motive part of the occurrence has been deposed to by Muhammad Bashir (PW 6). Mahmood Ahmad informant (PW 8) also stated about that. No connection of Muhammad Bashir (PW 6) with the deceased except of being caste-fellow has been brought on record. He had no enmity or differences, even, with any of the appellants. In fact, no suggestion was put in that regard. He had not only witnessed the incident of quarrel, which has been narrated as a motive for the occurrence, but had also visited the spot while the dead body of the deceased was lying at the spot and had also appeared before the police on that day as well as on the following day. The fact of his statement having not been recorded, in that context, by the S.I. Till 25-8-1986 cannot diminish the value of his testimony. The argument of the learned counsel for the appellants has not impressed me because mere slip of S.I. Not to record the statement of the witness at the earliest is no ground to throw away his testimony, particularly when the name of this witness was mentioned in the F.I.R. And he had been appearing before the police from the first day and assisting in the investigation also. In that, this witness had, on being directed, accompanied the constables to the mortuary, where he had identified the dead body. There appears to be no reason to disbelieve the narration of the incident given by him that took place at 8 a.m. On the day of occurrence between the deceased and Hanif appellant, particularly so when the case of the defence, is also, that the accused had grievance against the deceased of destroying their crops while grazing cattle.
13. The evidence of recoveries of hatchets at the instance of Ashraf and Hanif and the recovery of licensed revolver with an empty in its chamber at the instance of Yousaf appellant, deposed to by S.I. (PW 10) has been fully corroborated by Muhammad Siddique (PW 5) and Muhammad Alam (PW 7). As mentioned in the narration of evidence in the earlier part of the judgment, both these witnesses were neither connected with the deceased, nor had any animosity with the appellants.
The mere fact, of their being not residents of the village wherefrom the recoveries were effected, in my opinion, is no ground to throw away their testimonies. The hatchets recovered from Ashraf and Hanif were found stained with human blood. The empty found in the chamber of the licensed revolver of Yousaf, ownership of which he did not deny, was also found to have been fired from the said revolver.
14. Out of the two eye-witnesses only Mahmood Ahmad (PW 8) is related to the deceased, being his brother. The other witness, Riaz, although was caste-fellow of the deceased, but otherwise had no relationship with the deceased. Both these witnesses had no enmity with any of the appellants.
In fact, no question was put to any of them. Although it is on record that both these witnesses were challaned in quite a few cases, the deceased also was admitted to have been challaned in quite a few cases, but the appellants could not say, in fact, they did not even allege, that any of them was a complainant or a witness in any of those cases. If a false F.I.R. Had to be lodged and innocent persons had to be involved, the first preference of the informant would have been to involve some of the persons who had involved them as accused in different cases or in some case. But no such thing was done by him.
15. The argument of the learned counsel for the appellants that the eyewitnesses do not appear to have witnessed the occurrence and their presence at the spot appears to be doubtful, has not impressed me, particularly for the reason that the occurrence was reported promptly. In that, the occurrence is stated to have taken place at Peshiwela, which sets it after about 1.30 p.m. The occurrence was reported at 2.45 p.m., i.e, only 45 minutes after the occurrence. The informant had to cover a distance of two miles after composing himself, on having witnessed the butchering of his brother.
16. The argument of the learned counsel that the complainant would have been at the place of his duty in the sugar mills and must have been called from there for reporting the matter, if had any substance, the F.I.R. Of the occurrence could not have been recorded so promptly. Similarly, if he had been called from his duty, he could not have immediately been in a position to name Riaz as an eye-witness without meeting him and getting his consent, which in so short a time, he could not have done.
17. The argument advanced by the learned counsel for the appellants to create doubts and dents in the prosecution story on the basis of the contradiction between the inquest report and the injury statement on the one side and the postmortem report on the other side, with regard to the fire arm injuries found on the body of the deceased at the time of post-mortem examination, in my view, does not advance the case of the appellants by any means. In that, if as contended by the learned counsel for the appellants, the post-mortem had been performed prior to the registration of the F.I.R., the S.I. Would not have missed to record about the use of fire arm weapon in the inquest report and fire arm injuries in the injury statement, and even the other hypothesis that the inquest report and injury statement might have been prepared before the F.I.R. Was recorded, also does not help the appellants in any manner, as the summary of facts part of the inquest report does not contain the allegation against the accused of having fired at the deceased with revolver .The examination of the prosecution version in juxtaposition with the defence version put forth by two of the appellants, also does not advance the case of the appellants. In support of the argument that the defence version appears to be more probable and nearer the truth, learned counsel raised three contentions. Firstly, he pointed out that the occurrence had taken place in the field of the appellants and so they had a right to oppose the trespasser. Secondly, he contended that if the deceased had been hit, as alleged by the prosecution, by a shot fired from the revolver by Yousaf appellant, he (deceased) could not have fired his gun at Hanif. The third argument he raised in this connection was that seven other persons of the village had also witnessed the occurrence, but they were not named as eye-witnesses to hide the real position.
18. There is nothing on record to hold that the field in which the occurrence took place belonged to the appellants. The argument raised in this connection that the Patwari had stated that the field was in cultivating possession of the appellants is based on a statement made without reference to the record. Even if that argument was to be true, no benefit can be drawn by the accused, as there is nothing on record to say that there was any crop on that field which could provoke appellants to stop the deceased from destroying that.
19. The argument that' if the deceased had been fired at and injured, he could not have even fired his gun at Hanif also is of little use to the appellants. In that, the injuries of fire arm found on the body of the deceased were simple and it cannot be assumed that he (deceased) had been incapacitated on receipt of those injuries to an extent that he could not have fired a single shot from the gun, he was holding. It is not the prosecution case that he had entered into regular battle with the appellant. All that the eye-witnesses had stated, is, .That on being fired at by Yousaf, the deceased also fired once in self-defence, which struck Hanif. There is no evidence as to what type of injury or injuries Hanif had suffered. If he had been fired 'at by way of aggression, he could have easily got himself medically examined and come forth with the version properly armed. He was arrested some 40 days after the occurrence.
20. The contention that seven other persons had witnessed the occurrence but they were not named as eye-witnesses is based on just an hypothesis. There is no evidence that those seven persons had actually witnessed the occurrence. The Inspector, who was examined in defence, did not verify that fact. The appellants, who had entered into defence and produced witnesses did not examine them for that. Yet another aspect which attracts my mind in this regard is that if so many persons had been at the spot, the deceased would not have been allowed to be caused such a large number of injuries. They could have definitely intervened at least by way of beseeching to save him from such a merciless beating.
21. After having carefully examined the defence version in juxta-position with the prosecution version, I do not find any sufficient material to hold that the defence version is probable and nearer the truth. In fact, the same appears to have been set up as an afterthought.
23. The rejection of the defence version, however, does not mean that the prosecution story automatically stands proved. The credentials of the prosecution story and its worth has to be seen at its own face value. As noted in the earlier part of the judgment, both the eye-witnesses in this case admittedly did not have sound credentials. Both of them were involved in cases of ordinary nature and as well as of moral turpitude. In my view, the accused should not be convicted on capital charge on the testimonies of such witnesses, without corroboration of their testimonies from other independent sources. In the case in hand no evidence in corroboration of their testimonies is available against Younas and Abdul Majeed appellants. No weapon of offence was recovered from them, nor any other incriminating article was recovered from them. There is no evidence that they had any motive against the deceased. The appeals filed by them are, therefore, allowed by way of abundant caution and they stand acquitted. The appeals filed by Muhammad Ashraf, Muhammad Yousaf and Muhammad Hanif are, however, dismissed, as in their case the testimonies of the eye-witnesses stand fully corroborated from the evidence of recovery of weapons from them. Their convictions under section 148, P.P.C. Are, however, set aside, in view of the fact that the charge of forming an unlawful assembly stands disproved.
24. Two of the respondents in the criminal revision have been acquitted. The question of enhancement of their sentences, therefore, does not arise. No case for enhancement of the sentences of others is made out. In fact, learned counsel for the petitioner/complainant also did not seriously press the revision petition. The revision petition stands dismissed.