1. IFTIKHAR MUHAMMAD CHAUDHRY, J. -- The appellants were tried by Additional District and Sessions Judge, Usta Muhammad under section 302/34, P.P.C. And vide judgment, dated 21-6-1990 accused Wahid Bakhsh and Muhammad Rahim alias Rahim Bakhsh were sentenced to life imprisonment and to pay a fine of Rs.5,000 in default of payment of fine to further undergo six months' R.I., whereas accused Hussain Bakhsh was awarded seven years and a fine of Rs.1,000 and in default of payment of fine to undergo one month's R.I. However, benefit of section 382-B, Cr.P,C, was extended to them.
2. According to the story of prosecution, on 28-12-1987 at 9/10 a.m. The complainant Manzoor Ali P.W.1 and his brother deceased Niaz Ali were present in their ---Otak--- in Goth Zulfiqar Ali Jamali when Hussain Bakhsh accused came there and asked the deceased to accompany him to his house in order to repair electric connection which had gone out of order. On this deceased with aforementioned accused left for his house, the complainant also followed them. As soon as they reached near heap of ---Palal--- accused Wahid Bakhsh and Rahim Bakhsh emerged there and as they were armed with shot guns, therefore, they opened fire at Niaz Ali resulting in his instantaneous death, in the meanwhile Hussain Bakhsh accused dragged out Mst. Shafi wife of his brother Amir Bakhsh from her house and other two accused persons also fired at her, resulting in her death. All the accused persons left the place of occurrence declaring that they had committed murder of both deceased on account of ---Siakari---.
3. The incident was witnessed by P.W.2 Gul Hassan, P.W.3 Mst. Amiran and P.W.6 Didar Ali besides the complainant, the motive for committing murder of Niaz Ali deceased was that he was not obeying the dictates of accused persons as being ---Motbars---. The complainant reported the incident at Police Station Usta Muhammad which is situated at a distance of 14/15 miles from Goth Zulfiqar Ali Jamah on same day whereupon F.I.R. Exh.PA. Was recorded by P.W.10 S.H.O. Jamil Asghar.
4. After recording F.I.R., S.H.O. Proceeded to the place of incident and found dead bodies of Niaz Ali and Mst. Shari lying at the place of Wardat, he inspected the site and prepared inspection note, Exh.P.E. And site plan as Exh.P.O., inquest report of dead bodies was also prepared as Exh.P.M. And Exh.P.N. Of Niaz Ali and Mst. Shafi respectively. Blood-stained earth beneath the dead bodies was also procured and sealed parcels were prepared vide inventory Exhs.P.F. And P.G. Six empties of .12 bore from the place o1 occurrence were also recovered as Articles 10 to 15 and sealed in a parcel vide inventory Exh.P.M. Dead bodies were removed to the civil hospital for post--mortem examination. The doctor handed over clothes of both deceased to S.H.O. Which were taken into possession vide memo. Exh.P.B. And Exh.P.C. The statements of witnesses were recorded under section 161, Cr.P.C.
5. P.W. Jamil Asghar S.H.O. Arrested accused Wahid Bakhsh and Rahim Bakhsh on 30-12-1987, on 4-1- 1988 Wahid Bakhsh accused led the police to the recovery of shot gun as Article 9, which was taken into possession vide memo. Exh.P.D. Similarly on the following day i.e. 5-1-1988 accused Rahim Bakhsh led the police to the recovery of shot gun as Article 17 which was taken into possession vide memo Exh.P.9, whereas Hussain Bakhsh was arrested on 2-1-1988 and on 9-1-1988 he led the police to recovery of hatchet as Article No.18 which was taken into possession vide memo. Exh.P.1.
6. The weapon of offence with empties, recovered were sent to Ballistic Expert for report which is Exh.P.Q., whereas the report of Chemical Examiner relating to blood-stained earth, clothes of deceased is Exh.P.R.
7. On completion of investigation the appellants were challaned to answer the charge of murder of Niaz Ali and Mst. Shafi. The Court framed charge under section 302/34, P.P.C. On 28-2-1988 to which accused did not plead guilty, however, after recording evidence and completing all other formalities the accused were found guilty for commission of offence as such vide impugned judgment they were convicted and sentenced.
8. During trial the prosecution examined P.W.1 Manzoor Ali son of Faqir Ali who is brother of deceased Niaz Ali. According to his version at the time of incident at 9-00 a.m. When he alongwith his brother Niaz Ali was sitting in their Otak while Didar Ali and Mumtaz Ali were sitting on heap of Palal and his another brother Gul Hassan was at his home, the accused Hussain Bakhsh came to his Otak and told to his brother Niaz Ali to accompany him to his house to repair electric connection. When his brother and Hussain Bakhsh left towards house of Hussain Bakhsh he also followed them and when his brother reached near heap of Palal, accused Rahim Bakhsh and Wahid Bakhsh came out alongwith shot guns from heap of Palal and fired at his brother while accused Hussain Bakhsh gave blows of hatchet to his deceased brother. According to him his brother after receiving shot gun fires and blows of hatchet died at the spot. After murdering his brother accused Hussain Bakhsh went into the house of his brother Amir Bakhsh and dragged his wife towards the place of incident. Accused Rahim Bakhsh and Wahid Bakhsh also fired at Mst. Shafi and killed her. On firing reports his brother Didar Ali, Mumtaz Ali, Gul Hassan and Mst. Amiran came on the place of incident.
9. According to him the motive behind murder of Niaz Ali was that he was not carrying orders of accused being Motbars. In cross-examination he stated that his deceased brother used to work as Electrician at Dargah Mashoori Sharif which is 50 miles from the place of occurrence and his brother Niaz Ali was living there, however, he occasionally visited their house. In cross-examination this witness further clarified that he followed his brother and Hussain Bakhsh due to suspicion as Hussain Bakhsh had told him that he was taking his brother to his house while he was taking him to some other house i.e. House of Amir Bakhsh. He further stated that he did not remember whether he had mentioned in the F.I.R. That accused Hussain Bakhsh took hatchet from heap of Palal and gave three blows of hatchet injuries to his brother Niaz Ali. This witness had not seen electric instrument at the place of incident. According to witness he went to police station to lodge report and he covered a distance of 2/3 miles on foot and thereafter he boarded on a bus. However, he denied that he had not stated in F.I.R. That at the time of incident other people of the village had come at the place of incident.
10. P.W.2 Gul Hassan son of Faqir Ali who is brother of deceased, according to his statement, at the time of incident he was present in his house at Goth Zulfiqar Ali Jamali. Hussain Bakhsh who is co- villager asked deceased Niaz Ali to accompany him to his house as there was electric failure in their house and when his brother deceased Niaz Ali went with him, after about half a minute of departure of his brother, his other brother Manzoor Ali (complainant) followed them and when reached near heap of Palal, accused Rahim Bakhsh and Wahid Bakhsh came out and fired at his brother. He stated that at the time of firing he was in his house and after hearing gun shot reports he alongwith Mst. Amiran and his other brother Mumtaz Ali reached at the place of occurrence and they saw Hussain Bakhsh giving hatchet blows to his brother then Hussain Bakhsh went to his brother's house namely Amir Bakhsh and dragged out his wife Mst. Shafi at the place of incident and accused persons also murdered her at the place of incident. He further stated that accused has killed my brother as he was not accepting their leadership.
11. P.W.3 Mst. Amiran is aunt of deceased Niaz Ali, she deposed that on the day of incident at 9/10 a.m.
12. Manzoor Ali and deceased Niaz Ali were sitting in `Otak', Mumtaz Ali and Didar Ali were present at Dera (paddy crop) when accused Hussain Bakhsh came in the Otak of Manzoor Ali and asked Niaz Ali to come with him to repair electric connection of their house Manzoor Ali also followed them and when Niaz Ali and Hussain Bakhsh reached near heap of Palal, the accused Wahid Bakhsh and Rahim Bakhsh came out alongwith shot gums and fired upon deceased Niaz Ali. Manzoor Ali also reached there, in the meanwhile Gul Hassan, Mumtaz and Didar also reached there. Hussain Bakhsh also attacked on Niaz Ali with hatchet, whereafter Hussain Bakhsh went to the house of his brother and dragged out his wife to wards the place of incident, Rahim Bakhsh and Wahid Bakhsh also fired at her, she died at the spot. In the cros-examination she stated that her house is surrounded by hedge and the houses of other Mochees were also surrounded by hedge. According to her version Otak is situated at a distance of 30 to 40 paces from her house. However, she did not mark whether Niaz Ali had taken electric appliances with him or not. She further contended that when she heard the first shot gun report she was sitting in her house and thereafter she went towards the place of incident. Dera is sitauted at 40/50 paces from the place of incident on which Didar and Mumtaz were working. The accused fired at Niaz Ali and also gave him three blows of hatchet. The accused also fired 4 shots at Mst. Shafi. She also did not mark whether any appliances were lying near dead body or not.
13. P.W.4 Amir Khan, whoa is Head Constable in police and in his presence Medical Officer, Usta Muhammad delivered blood-stained clothes of both deceased Mst. Shafi and Niaz Ali to S.H.O. He prepared inventory Exhs.P.B. And P.C. Which bear signature of the witness. In the Mashirnama it is mentioned that parcel of clothes of both the deceased was prepared at the spot.
14. P.W.5 Muhammad Sudhir is a constable of police, in his presence S.H.O. On the pointation of accused Wahid Bakhsh recovered shot gun alongwith a copy of licence from his house on 4-1- 1988, he produced Mashirnama as Exh.P.D. Which bears his signatures. According to inventory, parcel of shot gun Article 7 was also prepared at the spot by S.H.O. This witness has identified the shot gun and also his signatures on inventory. In the cross-examination the witness stated that S.H.O. Summoned Ghulam Rasool from village who is also witness of recovery.
15. It is pertinent to mention here that during trial second Mashir Ghulam Rasool was dropped by District Attorney on the ground that another Mashir has supported the prosecution, therefore, there is no need to examine him.
16. P.W.6 Didar Ali is also real brother of deceased Niaz Ali. According to his testimony on the day of incident he with his other brother Mumtaz Ali were present at Dera. His other brother Gul Hassan was in the house. Niaz Ali and Manzoor Ali were also his brothers, who were sitting in Otak (Guest Room), at 9/10 a.m. Accused Hussain Bakhsh came to Otak and asked that there is some defect in the electricity in Amir Bakhsh's house, on this pretext Hussain Bakhsh asked Niaz Ali to accompany him, Manzoor Ali his other brother was also there. When they reached near heap of Palal near Amir Bakhsh's house, Rahim Bakhsh and Wahid Bakhsh came out and fired upon his brother Niaz Ali with shot guns and Hussain Bakhsh also attacked with hatchet. His brother fell down. Hussain Bakhsh went to the house of his brother and brought his wife dragging her and Wahid Bakhsh and Rahim Bakhsh fired at her and she died at the spot. All the three accused Rahim Bakhsh, Wahid Bakhsh and Hussain Bakhsh ran away.
17. In the presence of this witness police inspected the site, prepared inspection memo which was produced by this witness as Exh.P.P. Blood-- stained earth near the body of deceased was procured vide Exhs.P.C. And P.D. Whereas he produced blood-stained earth Article 1 of deceased Niaz Ali and Article 2 of deceased Mst. Shafi. In the presence of this witness vide memo. Exh.P.E.
18. Police recovered crime empties which were produced as Articles 3 to 8 in the Court. Parcels of recovered articles were also prepared at the place of incident as mentioned in inventory memo. All these parcels were opened in Court in his presence. In cross-examination this witness has stated that when he and his brother Mumtaz Ali were at Dera and cleaning Dera (paddy) accused Hussain Bakhsh and Niaz Ali reached the heap of Palal and in their presence Wahid Bakhsh and Rahim Bakhsh fired two shots each at his brother.
19. P.W.7 is Rashid Ahmed who is Head Constable of police in his presence accused Hussain Bakhsh led the police party to recovery of hatchet on 9-1-1988 which he had used in the offence. He accompanied S.H.O. Jamil Asghar and in his presence hatchet was recovered from heap of Palal vide inventory Exh.P.1. According to the contents of inventory parcels of the articles were prepared at the spot.
20. P.W.8 Dr. Saifullah conducted post-mortem examination of dead bodies and following injuries were noticed in case of each deceased:-- Mst. Shafi wife of Amir Bakhsh: EXTERNAL INJURIES:
(1) A fire-arm wound of entrance on right side between scapular region 1" in diameter. Blackening was present around the wound.
(2) A fire-arm wound of entrance on left side of back of chest 1" in diameter. Blackening present around the wound.
(3) A fire-arm wound of entrance on right lumber region on 1" in diameter. Blackening was present around the wound.
(4) Fire-arm wound of exit 7 in number on right side of chest and above nipple (breast).
(5) Fire-arm wounds of exit on left side of chest above breast 1" in diameter, two wounds of 1/4" in diameter.
(6) A fire-arm wound of entrance on right upper arm 1/2" x 1/4".
21. One pellet recovered and handed over to police.
22. INTERNAL INJURIES: Wall of Thorax: Pleurae damaged, right and left lungs lacerated, Heart lacerated, small and large intestines lacerated, right kidney damaged. Right abdomen damaged.
23. According to the opinion of the doctor death resulted due to injury on vital organs i.e. Heart, lung, haemorrhage and shock, all injuries were ante--mortem in nature and homicidal in character, all have been caused by discharge of fire-arm. The probable time between injuries and death was shown instantaneous. The post-mortem certificate was produced as Exh.P.J. Which bears signature of doctor.
24. Niaz Ali son of Faqir Ali: EXTERNAL INJURIES
(1) A fire-arm wound of entrance on right side of chest at 5th inter costal space 1" in diameter.
25. Blackening was present around the wound.
(2) A fire-arm wound of entrance on right side of chest at 7th inter costal space 1" in diameter.
26. Blackening was present around the wound.
(3) A fire-arm wound of exit on left side of chest 17 in number each 1/6" in diameter.
(4) A fire-arm wound of entrance on back of chest over spinal cord 1" in diameter. Blackening was present around the wound.
(5) A fire-arm wound of entrance over left side of back of chest 1" in diameter.
(6) An incised wound on right side of neck 3" x 1/2" skin deep.
(7) An incised wound on right side of neck below injury No. 6, 2" x 1/4" skin deep.
(8) An incised wound on left shoulder 1" x 1/2" skin deep.
27. Two pellets recovered and handed over to the police.
28. INTERNAL INJURIES: Thorax: Wall, pleaurae damaged, right and left lung lacerated, Heart lacerated.
29. According to the opinion of doctor death resulted due to injuries on vital organs i.e. Heart, lung, haemorrhage and shock. This witness further certified that injuries Nos.1 to 5 are ante-mortem and injuries Nos. 6 to 8 are post-mortem in nature and homicidal in character. According to witness injuries Nos.1 to 5 have been caused by fire-arm and injuries Nos.6 to 8 by sharp weapon. The death has been shown instantaneuous. Post-mortem certificate was produced as Exh.P.K. Which bears signature of the witness.
30. In cross-examination the witness stated that two or one shot were fired at Mst. Shafi whereas one or more than one shot were fired at Niaz Ali.
31. P.W.9 Abdul Qazzaq is constable of police. In his presence accused Rahim Bakhsh disclosed that he would produce the shot gun which was used in the offence and this witness alongwith other police officers including S.H.O. And private witnesses namely Malook went to the house of accused to Goth Zulfiqar Ali Jamali and at the pointation of accused Rahim Bakhsh's shot gun was recovered from his residential house on 5-1-1988 which was taken into possession vide Exh.P.L which bears signature of the witness and shot gun was produced as Article 17. The private witness Malook was not examined by the prosecution on the ground that he was won over by other side. According to the contents of inventory i.e. P.C. Parcel of recovered shot gun was prepared at the spot.
32. P.W.10 is Jamil Asghar, S.H.O., Usta Muhammad who conducted investigation, arrested accused persons and on completion of other formalities submitted challan Exh.P.P. Against the appellants in the lower Court. In cross--examination he stated that when he reached the village at the place of occurrence, at that time so many people had gathered there, witness tried to secure attendance of the witnesses from Usta Muhammad before proceeding to Goth Zulfiqar Ali Jamah, but he could not succeed. However, he stated that I called one private witness namely Ghulam Rasool from that Goth who is witness of recovery. Similarly one Muhammad Malook was also called from village as private witness at the time of recovery.
33. In the statements under sections 342 and 340(2) of Cr.P.C. The accused persons pleaded that they have been implicated in commission of murder falsely. The defence produced D.W.1 Ghulam Rasool son of Saifal who stated that in his presence no recovery of shot gun was effected by police.
34. It is mentioned here that shot gun of accused Wahid Bakhsh bearing No.5144 Article 7 is a licensed one vide licence No.276/SK, dated 26-2-1971 issued by S.D.M. Shahdad Kot and this licence was also produced by accused Wahid Bakhsh to police when recovery of shot gun was effected.
35. D.W.2 Muhammad Malook stated that in his presence recovery of shot gun from the possession of accused Rahim Bakhsh was not effected by the police. It is again pertinent to observe that shot gun recovered from the possession of accused Rahim Bakhsh was also a licensed one and licence bearing No.6/26/JPAT, dated 29-12-1969 issued by District Magistrate Jaccobabad was produced at the time of recovery of shot gun.
36. The defence witnesses were originally cited as prosecution witnesses for the recovery of shot guns but they were not produced m Court as they were given up.
37. The learned counsel for the appellants argued that testimony of prosecution eye-witnesses is not worthy of acceptance as they have not stated truth in Court and the offence has not been committed in the manner as disclosed by these witnesses, the, recovery of crime weapons as well as empties is also doubtful because prosecution failed to produce independent civilian witnesses.
38. Likewise if the recovery of incriminating articles is disproved against the appellants the report of Ballistic Expert as well as Chemical Examiner would also lose its value. Thirdly he contended that as there is inconsistency on the point of motive, which gives rise to doubt and benefit whereof may be extended to accused/appellants.
39. It was further explained that accused Hussain Bakhsh gave blows of hatchet to deceased Niaz Ali as alleged by prosecution, according to Dr. Saifullah injuries were caused with sharp weapon i.e. Injuries Nos.5 to 8 are post-mortem in nature, therefore, accused has not committed any offence and as such is liable for acquittal.
40. On the other hand Mr. Salahuddin Mengal, Assistant Advocate General, Baluchistan urged that all witnesses are natural witnesses and they have stated whole truth in their testimony and their deposition have been rightly believed by trial Court. The recovery of crime articles have been effected in accordance with provision of law and appellants have failed to show any mala fide on the part of prosecution, although prosecution and Investigating Officer have affected recoveries of shot guns in presence of private witnesses namely Ghulam Rasool and Muhammad Malook, but subsequently they were given up for the reasons stated by the District Attorney before the trial Court. However, these witnesses in fact have been won over, therefore, they were not produced in the Court. The Ballistic Expert's report and Chemical Examiner's report being positive have provided strong corroborative support to prosecution case, there is no inconsistency in the motive, the accused Hussain Lakhsh though according to the medical certificate caused injuries with hatchet on person of Niaz Ali which were found post-mortem in nature but he has also facilitated commission of murder of deceased Niaz Ali and Mst. Shafi, therefore, Court has rightly awarded punishment to him.
41. We have considered the arguments put forth by the learned counsel of appellants as well as by Assistant Advocate-General, Baluchistan.
42. Now, reverting to the first contention of counsel for the appellant that the eye-witnesses have not stated correct facts in Court, and offence has not been committed in the manner as narrated by prosecution witnesses, according to him the statement of P.W.1 complainant Manzoor Ali is not worthy of acceptance because he has not mentioned about the hatchet or injuries of hatchet when he lodged report, thus this witness has made case of prosecution doubtful. The witness also had no occasion to follow deceased Niaz Ali and Hussain Bakhsh when they were going to repair electricity connection and near dead body of Niaz Ali no instrument for repair of electricity was found. Learned counsel for appellant further elaborated that in fact the murder of Niaz Ali and Mst.
43. Shafi was unwitnessed incident and subsequently when it was learnt by the eye-witnesses they involved the appellants falsely in the case and concocted a story which does not appear to be true; learned counsel further emphasised that Mst. Amiran had also no occasion to witness the incident as according to her version she was present in her home and she came out on the report of shot gun, the witness P.W.2 Gul Hassan who is also brother of complainant has not followed Amiran because he was present in his house and had not seen the incident. So much so Didar Ali has also not seen the incident, he contended that according to F.I.R. At the time of incident so many people had gathered at the place of incident, but none of them was produced by the prosecution.
44. P.W. Manzoor Ali (complainant) in his testimony before Court stated, that when his brother reached near heap of Palal, Rahim Bakhsh and Wahid Bakhsh came out alongwith shot guns from the house, again stated that they came out from the heap of Palal and fired at his brother, while accused Hussain Bakhsh gave blows of hatchet to his deceased brother who after receiving shot gun injuries and hatchet blows died at the spot. Whereas in cross-examination he deposed that he does not remember whether he had mentioned in F.I.R. That accused Hussain Bakhsh took hatchet from heap of Palal and caused three hatchet injuries to his brother Niaz Ali. However, omission noticed in statement of Manzoor M has not been proved because no question was asked from P.W.10 Jamil Asghar whether complainant while recording F.I.R. Had stated that Hussain Bakhsh took out hatchet from the heap of Palal and caused injuries to deceased Niaz Ali. In absence of proof, presumption would be that whatever has been stated by P.W.1 in his statement is correct and his testimony will not be discarded on account of the fact that an omission has been made by him.
45. Even otherwise, First Information Report in itself is not a substantive piece of evidence and omission of certain details in A F.I.R. Would not reflect on testimony of complainant which otherwise does not suffer from infirmities and contradictions. It is a settled principle of law that I F.I.R. Need not contain each and every detail of the facts. However, it is to be examined whether prosecution story subsequently told by the witness is the same which was mentioned in F.I.R. Or altogether different version has been introduced in the Court. In the case in hand the narration of facts in F.I.R. As well as evidence recorded in Court of P.W. Manzoor Ali is not inconsistent in its nature and there is no contradiction in both the versions. In this context I am fortified by a reported judgment from the jurisdiction of Peshawar High Court reported in 1968 P Cr. L J 495 titled Mazan and others v.
46. State/respondent.
47. Although so-called omission has not been proved in the Court in accordance with law, even otherwise non-mentioning of the hatchet and injuries of the hatchet by P.W. Manzoor Ali in his statement is not of much significance because according to statement of P.W.8 Dr. Saifullah injuries Nos. 6, 7 and 8 on person of Niaz Ali are post-mortem in nature, therefore, the accused Hussain Bakhsh has not been found for causing hatchet blows to deceased as if a person caused injuries to a dead person, under the law it would be deemed that he has not committed any offence as held in PLD 1960 SC 340.
48. Hussain Bakhsh/appellant in fact has abetted commission of offence as he brought deceased Niaz Ali at the place of occurrence on the pretext that he should come alongwith him to repair connection of electricity and when he reached with accused near heap of Palal, other two accused namely Wahid Bakhsh and Rahim Bakhsh opened fire on him and caused injuries Nos.1 to 5 and according to medical certificate i.e. Exh.P.K. Injuries Nos.1 to 5 were caused with fire-arm and accused Hussain Bakhsh also in furtherance of common intention with other accused persons dragged out Mst. Shafi from her house and brought her near dead body of Niaz Ali who had already been murdered by other two accused persons.
49. The learned counsel for appellants objected that there was no occasion for complainant Manzoor Ali to follow deceased and Hussain Bakhsh when they were going to repair electricity connection and if it was so, why the instruments for repairing electricity connection like screw driver and pliers etc. Were not found near dead body of Niaz Ali. In this context it may be seen that P.W.1 Manzoor Ali explained in cross-examination that he followed his brother and Hussain Bakhsh due to suspicion that Hussain Bakhsh had told him that he was taking his brother to his house while he was taking him to some other house i.e. House of Amir Bakhsh. This explanation of the witness appears to be reasonable because accused Hussain Bakhsh instead of taking deceased Niaz Ali to his house had started moving towards the house of Amir Bakhsh, this can give rise to a reasonable suspicion in the mind of witness P.W.1 that why his brother is being taken towards the house of Amir Bakhsh.
50. Non-recovery of electric repairing instruments is also not of much importance as it has not been brought on record that deceased Niaz Ali was a qualified electrician, as such he might have intended to repair electricity connection by borrowing any instrument from the appellant Hussain Bakhsh. This question was also not asked from P.W.10 Jamil Asghar, S.H.O. As to whether any instrument for repairing electricity was lying near the dead body of deceased or not. Even otherwise, such discrepancies being minor in nature would be of inconsequential nature. In order to attach legal weight with testimony of other witnesses it may be seen that according to Exh.P.O.
51. Which is a sketch of place of occurrence, that Otak belonging to complainant party, in which Niaz Ali and Manzoor Ali were sitting when accused Hussain Bakhsh called the deceased, is situated near house of Mst. Amiran. Similarly heap of Palal is also not situated at a far flung distance. It has also come on record that house of Mst. Amiran and that of other accused person is covered by hedge, therefore, it is quite natural and possible for the P.Ws. To witness the incident. It is pertinent to mention here that house of Amiran is situated in front of place of incident, therefore, it was possible for her to reach on the place of occurrence on hearing of report of fire of shot gun, and heap of Palal is also not far away, as the offence had been committed in broad daylight at about 9/10 a.m., therefore, the complainant party had full opportunity to witness the incident, as such the version of eye-witnesses appears to be true and correct.
52. While appreciating the evidence, deposition of relevant witnesses is to be considered accumulatively in order to find out the truth. Therefore, there is no force in the contention of the counsel for appellant that the prosecution has not correctly stated the manner in which murder was committed. The ocular testimony of eye-witness coupled with medical evidence of P.W.8 has established that appellants caused death of deceased Niaz Ali and Mst. Shah; therefore, reliability of prosecution witnesses cannot be doubted in any manner.
53. The next contention of counsel for appellants was that recoveries have not been effected in the presence of independent witnesses. In this behalf it may be seen that prosecution recovered two shot guns from the possession of accused Rahim Bakhsh and Wahid Bakhsh and both these shot guns are licensed one and at the time of recovery, licences were produced by the accused persons. The Investigating Officer attempted to procure the attendance of civilian witnesses, and two witnesses namely Ghulam Rasool and Muhammad Malook who had witnessed the recovery of shot guns were taken as unofficial witnesses. However, later on one witness Ghulam Rasool was dropped, whereas other witness Muhammad Malook was also dropped because he was not supporting the case of prosecution having been won over by the other party. In spite of this fact, no enmity has been shown by the prosecution against the recovery witnesses, as such in absence of any enmity and mala fides on their part, the official witnesses are bound to receive same credence which is normally given to unofficial witnesses. Now-a-days due to lamentable attitude of citizens, it is becoming difficult to procure attendance of civilian witnesses, therefore, due to this reason the accused persons cannot be allowed to go scot free. As such official witnesses have to be believed subject to close scrutiny of their evidence. On the basis of independent assessment of evidence it is proved that prosecution has fully established recovery of incriminating) articles against the appellants. In this context reliance can be placed on:--
(1) PLD 1982 Lah. 344 and (2) PLD 1987 SC 467.
54. The report of Ballistic Expert Exh.P.Q. Has also provided strong corroboration to the evidence of recoveries, because out of six, four empties were fired from shot gun No.5144 which was recovered from the possession of accused Wahid Bakhsh, whereas two empties were fired from shot gun No.19792 which was recovered from possession of accused Rahim Bakhsh.
55. The learned counsel for appellants argued that Ballistic Expert's report is not believable as according to him the alleged recovery of incriminating articles was made by the Investigating Officer up to 9th of January, 1988, whereas he sent these articles for expert opinion on 16-3-1988 after a lapse of about two months. The Investigating Officer should have despatched these articles on the same day when recoveries were effected in order to minimise chances of false implication of accused persons particularly in those cases where prosecution has recovered licensed rifles.
56. We are quite in agreement with the learned counsel for appellants, that incriminating articles should be sent as early as possible for the report of Ballistic Expert and for Chemical Examiner, but at the same time it would also be seen whether there is allegation by the appellants of tampering with the Ballistic report or not. The perusal of evidence of P.W.10 Jamil Asghar reveals that no such allegation was levelled, therefore, Ballistic Expert report cannot be discarded. There are cases where articles were sent for the report of Ballistic Expert after a considerable delay, but Superior Courts have not doubted the value of such reports. In this behalf reference can be made of 1977 SCMR 330, PLD 1985 SC 361.
57. The learned counsel further objected that as recovery of shot guns and hatchet was effected after sufficient delay from the date of arrest of the accused persons, therefore, reliance of such recovery from this point of view would not be safe.
58. We have examined statement of Investigating Officer P.W.10 Jamil Asghar which indicates that no question was asked from this witness to the effect that why recoveries were not effected from accused persons as early as possible after their arrest. Even otherwise, in view of other corroborative evidence available on record whereby accusation has been established against the accused persons and recoveries have also been proved, undoubtedly this objection is not convincing.
59. The last contention of learned counsel was that there is inconsistency in the motive because according to complainant the accused have committed murder of Niaz Ali as he was not accepting Motbari of accused party. The learned counsel stated that as deceased Niaz Ali was residing in a place known as Dargah Mashoori Sharif at a distance of 50 miles from the place of incident, therefore, the accused party could not have any grievance against him in not accepting their Motbari. Even otherwise Motbari is not that of much importance which will result in causing murder of Niaz Ali and Mst. Shaft wife of Amir Bakhsh real brother of accused, and according to learned counsel, prosecution also attempted to set up motive that deceased had illicit relations with Mst. Shaft, therefore, on account of Siakari murder has been committed. The object of advancing this argument was that the case of prosecution is not free from doubt, and it was reiterated by the learned counsel that the murder of deceased has not taken place in the manner as it is narrated by prosecution.
60. We have also considered this aspect of the case, although there is no doubt that the prosecution eye-witnesses Manzoor Ali, Gul Hassan and Didar Ali insisted that motive of murder was not accepting leadership of accused party by the deceased, but at the same time the accused persons are also charged for committing murder of their sister-in-law Mst. Shaft. It is settled law that motive is not to be accepted true as alleged by the complainant in F.I.R., but motive is to be gathered from the evidence which is available on record. There is possibility that at the time of commission of murder, the complainants have considered that due to non-acceptance of Motbari of accused persons, murder of their brother has been committed, this view could have been tentative, but evidence indicates that on account of Siakari, murder has been committed. The effect of prosecution's failure to prove motive at the best would be to create mitigating circumstances for reduction in sentence. In this behalf reliance can be placed on cases reported in PLD 1983 SC 197 and 1984 SCMR 1006. Thus, in view of the principles discussed in above two judgments even if motive put forth by the prosecution is not accepted, the accused persons shall be entitled for reduction of sentence. As appellants were tried for offence of murder and trial Court while awarding punishment taking into consideration mitigating circumstances of the case instead of awarding capital punishment has sentenced two accused for life imprisonment and Hussain Bakhsh for 7 years imprisonment, therefore, it is held that on the question of motive the accused are not entitled for acquittal.
61. The learned counsel for appellants contended that the judgment of the lower Court does not indicate the circumstances for which sentence of 7 years has been awarded to accused Hussain Bakhsh, because according to doctor, injuries which are allegedly caused by hatchet are post- mortem, therefore, he is not guilty for committing murder.
62. On the other hand, learned Assistant Advocate-General has stated that accused Hussain Bakhsh has abetted commission of murder as this fact is indicative from the evidence on record.
63. We are inclined to agree with the contention of the learned Assistant Advocate-General, because accused Hussain Bakhsh cannot be found guilty for causing murder in view of the medical evidence referred to above, but he has facilitated the commission of murder and in our opinion sentence awarded to him by the lower Court does not commensurate with the gravity of offence for which he was charged. But as State has not moved this Court for enhancement of his sentence, nor there is any request from the complainant party in this behalf. Thus, in such view of the matter, sentence awarded to Hussain Bakhsh is maintained considering him an accused for facilitating murder of deceased Niaz Ali and Mst. Shaft in furtherance of common intention with co-accused persons.
64. In view of circumstances discussed above, we see no force in the I J appeal which is accordingly dismissed and impugned order is upheld.