1. ' SALAHUDDIN AHMED, J.-The petitioner and his brother Mohabat Khan and his maternal uncle Qaim Khan, were convicted by the Additional Sessions Judge, Campbellpur, under section 302 read with section 34 of the Pakistan Penal Code for causing the death of Karam Khan and Alam Khan and sentenced to death, each. In a separate trial they were also convicted under the same section of the Code for the murder of Nur Muhammad and sentenced to death, each. They were also convicted under section 307 read with section 34 of the Code for causing injuries to two of the witnesses. On appeal and reference before the Lahore High Court a Division Bench of the Court maintained the conviction of the petitioner alone in respect of his conviction for the murder of the three aforesaid persons and confirmed the death sentences passed upon him for the aforesaid murders, but acquitted the two other co-accused Mohabat Khan and Qaim Khan. The petitioner was, however, acquitted of the charge under section 307 read with section 34 of the Code.
2. ' There were two incidents on the 12th of September, 1969, at about 6-30 a.m. Which led to the murder of three persons. The first incident took place in a lane in course of which Karam Khan and Alam Khan were killed. The second incident took place inside the house of Nur Muhammad, and Nur Muhammad was killed therein. Alam Khan was taken to the hospital in an injured condition and his statement was recorded by Dr. Abdul Jabber on the same day at 7-45 a. m. And on the basis of this statement a first information report was recorded at the police station at 8-05 a.m. The Investigation Officer arrived at the spot at 11-30 a.m. And he, inter alia, recoveied from the spot three '32 bore empties (Exhs. P. 12 to P. 14) from a place near the body of Karam Khan. He also secured a blood-stained '32 bore spent bullet (Exh. P. 23) from a place near the body of Nur Muhammad, and 12 feet off from the spot he recovered two more `32 bore empties (Exhs. P, 16 and P. 17). Petitioner Munawar Khan and the other two co-accused were produced by one Maulvi Abdul Khanan before the police on the same day and they were taken into custody. On the same day petitioner Munawar produced his licensed 32 bore revolver (Exh. P. 18) along with a bandolier containing live bullets and the licence (Exh. P. 9). It may be mentioned here that the five empties (Exhs. P. 12 to P. 14 and P. 16 and P. 17) and a lead bullet (Exh. P. 23) recovered from the spot were subsequently found to match the revolver (Exh. P. 18) produced by petitioner Munawar Khan. During the post-mortem examination of the three deceased, Alam Khan, Karam Khan and Nur Muhammad two lead bullets (Exhs. P. 24 and P. 25), three lead bullets (Exhs. P. 19 to P. 21), and a lead bullet (Exh. P. 15), respectively, were recovered from their bodies. Subsequently Exhs. P. 24, P. 19 to P. 21 and P. 15 were found to match Exh. P.
3. 18.
4. ' According to the prosecution case petitioner Munawar Khan and his brother Mohabat Khan were each armed with a pistol while their co-accused Claim Khan was armed with a chhuri. The medical evidence disclosed that Alam Khan had been injured by a fire-arm as well as a chhuri.
5. ' As regards the murder of Karam Khan and Alam Khan the evidence of P.W. 6 Sarwar Khan and P. W. 7 Said Ghulam were relied on in conjunction with the dying declaration of Alam Khan deceased and certain circumstantial evidence connecting petitioner Munawar Khan's revolver (Exh. P. 18) with the crime empties and the lead bullets. It is true that these two witnesses had resiled from their previous statements made before the committing Magistrate in which they fully supported the prosecution case. Their statements were transferred under section 288 of the Code of Criminal Procedure and were used as evidence for all the purposes. In his statement under section 342 of the Code of Criminal Procedure Munawar Khan admitted the motive attributed to him by the prosecution but said that he had been falsely involved because he had not permitted Alam Khan deceased to compromise the murder of Muhammad. The motive attributed by the prosecution was that Mastan Khan, son of Alam Khan, had murdered Muhammad, husband of sister of petitioner Munawar. As regards the recovery of revolver (Exh. P. 18) petitioner Munawar Khan admitted this in course of his statement before the committing Magistrate. At the trial, however, in course of his statement under section 342 of the Code of Criminal Procedure he only admitted the ownership of the said revolver, but denied its recovery at his instance.
6. The petitioner stated that he had given the revolver to one Hafiz Khuda Bakhsh for the protection of his daughters and it was the latter who had produced the same before the Investigating Officer. No defence evidence was led on behalf of the petitioner.
7. ' The trial Court did not rely upon the recovery of the said revolver and the crime empties matching the revolver on the ground that for no ostensible reason the Investigating Officer had kept them with him until the 14th of September, 1969. The trial Court evidently overlooked the explanation of the Investigating Officer that he had gone to the spot on the 12th of September, 1969, and remained there investigating the case and returned to the police station only on the 14th of September, 1969, and it was on that day that he had handed over the parcel to P.W. 11 Assistant Sub-Inspector Abdul Khaliq. This was quite a reasonable explanation and the High Court rightly accepted it and felt not satisfied that there was any reasonable ground for rejecting the relevance of the crime empties. In any case, the High Court rightly held that there is no such difficulty in the matter of lead bullets (Exhs. P. 19 to P. 21) recovered from the body of Karam Khan Deceased and Exh. P. 24 recovered from the body of Alam Khan deceased, Exh. P. 15 recovered from the body of Nur Muhammad deceased and Exh. P. 23 recovered from the place where Nur Muhammad had fallen. These bullets were found to match the revolver (Exh. P. 18) recovered at the instance of petitioner Munawar Khan.
8. ' The statement of Alam Khan (Exh. P/G) which was the basis of the first information report and which has since been considered as a dying statement also furnished good corroboration to the evidence of the two witnesses.
9. ' The medical evidence, too, fully supported the prosecution version of the occurrence.
10. ' These pieces of corroborative evidence were absent in the case of the other two accused, namely, Mohabat Khan and Qaim Khan who were acquitted by the High Court.
11. The High Court rightly felt that having regard to the fact that the two witnesses of occurrence had resiled from their statements made before the committing Couit, their evidence could only be accepted if corroborated by reliable evidence. The High Court found reliable corroboration in respect of petitioner Munawar Khan alone and, accordingly, maintained his conviction in respect of the murder of Karam Khan and Alam Khan deceased.
12. ' For similar reasons the petitioner's conviction for the murder of Nur Muhammad deceased was maintained. In the incident leading to the death of Nur Muhammad the prosecution alleged that petitioner Munawar Khan and Mohabat had fired revolver shots at Nur Muhammad. The medical evidence disclosed no less than 4 bullet wounds on his body. The number of injuries is not inconsistent with the prosecution case that two persons had fired at Nur Muhammad with their pistols. The prosecution case against Mohabat Khan who was alleged to have fired at Nur Muhammad along with petitioner Munawar Khan could not be sustained for lack of corroboration.
13. ' The mere fact that in the case of Karam Khan Deceased blackening of the skin around two of the fire-arm injuries were found by the doctor did not, in any way, detract from the prosecution case. It was not unlikely that the deceased was tired at from two different spots one being nearer the deceased than the other.
14. ' In the facts and circumstances of the case it was difficult for the witnesses to say exactly the distance from where the deceased was fired at.
15. ' Having regard to the facts and circumstances mentioned above we do not find any substance in the contention of Mr. Brohi, learned counsel appearing on behalf of the petitioner, that there is no distinction between the case of the petitioner and that of his two co-accused who were acquitted by the High Court.
16. ' Mr. Brohi has also contended that the production of the revolver (Exh. P. 18) was not legally proved. The seizure of the revolver (Exh. P. 18) has been proved by S.H.O. P.W. 12 Raja Musahib Khan. Besides, we have already mentioned the admission of the petitioner before the committing Court that the revolver was recovered from him. Petitioner Munawar Khan also admitted during trial the ownership of the said revolver. All these evidences were sufficient to prove that the revolver was, in fact, produced by petitioner Munawar Khan. In any event this relates to appraisal of a evidence, and is not, therefore, open to the learned counsel to raise it before this Court.
17. ' We are also unable to agree with the contention of Mr. Brohi that the provisions of section 342 of the Code of Criminal Procedure were not complied with inasmuch as the discrepancy in the two statements of the petitioner, namely, one before the committing Court and the other before the Court of Session had not been pointed out to him. Section 342 of the C Code of Criminal Procedure has reference 'to any circumstances appearing in the evidence' against the accused. The underlining* is ours. The statement of the accused before the Magistrate is not evidence. It is an admission under sections 17 and 18 of the Evidence Act, and is a relevant fact under section 21 of the said Act.
18. ' There is no substance in the petition and it is, accordingly, dismissed. *(Here in italics]