1. ' ABDUL QADEER CHAUDHRY, J.---These appeals by leave of the Court are directed against the judgment of the High Court dated 15-12-1990.
2. ' The facts to be noted are that Qudrat Ullah, P.W. Lodged the report of occurrence wherein he stated that on 13-8-1983 at about 3 p.m. He saw accused Sadiq armed with a gun, Maqsood, Nazar and Kaloo armed with carbines came from the village side and ambushed themselves near the bridge of the Sem Nala. After a short while, Muhammad Iqbal, P.W. Reached near the said place.
3. The accused Sadiq and Kaloo alongwith Nazar and Maqsood started firing. Muhammad Iqbal was injured and fell down. Ghulam Rasool and Noor Muhammad also saw this incident. Thereafter, the accused Sadiq and Kaloo alongwith their co-accused ran towards the village. The complainant apprehending the danger also ran towards the village from his tube-well. He saw that Sadiq and Kaloo alongwith their co-accused entered the Haveli of the complainant where Muhammad Latif the father of the complainant was lying on a cot. The complainant saw from the door that accused Sadiq and Kaloo started firing at Muhammad Latif as a result of which Muhammad Latif was seriously injured. Muhammad Aslam and Syed Muhammad Sadiq had witnessed this occurrence.
4. The complainant apprehending further damage ran towards Chah Tahli Wala to warn his brother Iftikhar Ahmad, lest, he may also be killed. When the complainant reached near the Dera, he saw accused Sadiq and Kaloo alongwith co-accused coming to that side. On account of fear, the complainant concealed himself in the sugarcane crop. All the accused started firing at Iftikhar Ahmed and after killing him ran towards village Hallu Kay. Iftikhar Ahmed also died at the spot.
5. Sadiq son of Hayat and Bashir Ahmad son of Fateh Ali also saw this occurrence.
6. ' The motive for the commission of the offence was a dispute over land. It was stated by the complainant that Hafeez son of Ghulam Rasool and Nawaz Patwari had conspired and abetted the murders of Muhammad Latif and Iftikhar Ahmed. Muhammad Iqbal and Muhammad Latif injured were rushed to Daska Civil Hospital but Muhammad Latif died near the hospital. Maqsood and Nazar absconded after the occurrence. Their case was separated under section 512, Cr.P.C. From all the other accused. Sadiq son of All Muhammad and Kaloo son of Rehmat were tried alongwith Hafeez Rasool and Muhammad Nawaz Patwari by the learned Additional Sessions Judge by judgment dated 20-12-1984. The learned trial Judge acquitted Muhammad Nawaz Patwari and Hafeez Rasool. Sadiq and Kaloo were found guilty of the charges on two counts and each of them was convicted under section 302/34, P.P.0 and sentenced to death on each count and fine of Rs.5,000 each on each count or in default thereof to undergo R.I. For one year each on each count.
7. They were also convicted under section 307/34, P.P.C. And each of them was sentenced to undergo for a term of seven years and to pay fine of Rs.1,000 each or in case of default to suffer further R.I.
8. For a term of six months. They were also convicted under section 449, P.P.C. And each of them was sentenced to undergo R.I. For a term of seven years and fine of Rs.1,000 each or in default to suffer further R.I. For a period of six months each.
9. ' On the arrest of Muhammad Nawaz and Maqsood, they were tried on the aforesaid charges. The learned Additional Sessions Judge by means of judgment dated 30-6-1986 convicted both Nawaz and Maqsood on two counts under section 302/34, P.P.C. And each of them was sentenced to imprisonment for life and fine of Rs.5,000 each or in default thereof to suffer further R.I. For a term of one year each. They were also convicted under section 307/34, P.P.0 and sentenced to R.I. For a term of seven years each and fine of Rs.1,000 or in default to suffer further R.I. For a term of six months each. In case of recovery of fine under section 307/34, P.P.C. It was directed that half of the same be paid to injured Muhammad Iqbal P.W. As compensation while the fine, if recovered under section 302/34, P.P.C. Half of the same was to be paid to the legal heirs of the deceased as compensation. They were also convicted under section 449, P.P.C. And ech of them was sentenced to undergo R.I. For a term of seven years each and fine of Rs.1,000 and in default thereof to further suffer R.I. For a period of six months each.
10. ' To bring home the charge against the appellants, the prosecution relied upon the ocular testimony of P.W.8, Qudratullah, P.W. 11 Muhammad Sadiq qua the murder of Muhammad Latif deceased and in respect of the murder of Iftikhar Ahmad, P.W. 8 Qudratullah and P.W. 12 Sadiq son of Hayat, the motive, the medical evidence, the recovery of weapons of offence and the empties.
11. ' The learned High Court through impugned judgment disposed of the appeal of Sadiq, Kaloo, Muhammad Nawaz and Maqsood and the criminal revision brought by the complainant for the enhancement of sentence of Muhammad Nawaz and Maqsood. The conviction and sentence of accused on all the charges were maintained and death sentence awarded to Sadiq and Kaloo was confirmed. The criminal revision filed by the complainant was dismissed.
12. ' As regards the first occurrence relating to the injuries received by P.W. 9, Muhammad Iqbal, P.Ws.
13. Qudratullah and Ghulam Rasool had seen the occurrence and they supported the statement of injured P.W. Muhammad Iqbal. Muhammad Iqbal had received three injuries caused by means of firearm.
14. ' According to Dr. Hasan Mahmood, P.W., the deceased Muhammad Latif had received thirteen injuries. Out of these thirteen injuries, nine were caused by means of fire-arm and one injury No.6 was exit wound of injury No.5. Injuries Nos. 12 and 13 were caused by blunt weapon. According to the doctor, injuries Nos. 7 and 8 were fatal. Injury No.5 was grievous and all others were simple. The post-mortem was also performed on the dead body of Iftikhar Ahmad and nine injuries were found on his person. Injury No. 6 was exit wound of injury No.5 and injury No.2 was sufficient to cause death. Injury No.2 was fatal and all others were simple.
15. The medical evidence fully corroborated the direct evidence.
16. ' The second occurrence had taken place in the Haveli of the deceased. The first informant Qudratullah and Muhammad Sadiq son of Bahawal had seen the occurrence. P.W. Sadiq son of Bahawal was present in the Haveli when the accused persons duly armed came there and fired at the deceased.
17. ' The third occurrence was witnessed by P.W. Qudratullah and P.W. Sadiq son of Hayat. Three empties of .12 bore had been secured by the police from the place where Muhammad Latif was done to death. Similarly, three empties were secured by the police from Jai Wardat in respect of deceased Iftikhar Ahmed. The accused Muhammad Sadiq son of All Muhammad produced .12 bore gun. Accused Kaloo son of Rehmat also produced a carbine .12 bore and a revolver 30 bore. The empties secured from the two places of occurrence were examined by the expert. And according to his opinion, the crime empties were fired from a shot-gun of .12 bore and a shot pistol of .12 bore.
18. The revolver was in working condition but no fouling was recovered from the barrel. It is thus clear that shot gun and the carbine which is also commonly known as shot pistol were used in the commission of the offence.
19. ' The two Courts have appraised the evidence and rightly convicted Sadiq and Kaloo on the basis of unimpeachable evidence against them. Through a separate trial, Muhammad Nawaz and Maqsood were convicted by the learned trial Judge. The same set of witnesses had appeared against them.. All the eye-witnesses produced by the prosecution implicated these appellants in the commission of the offence.
20. ' According to the prosecution, Maqsood and Nawaz also led to the recovery of one carbine each on 14-6-1985. The six empties secured from the two places had matched with the two weapons recovered from the co-accused. As egards the recovery of arms from these two persons, it is immaterial as the empties recovered from the spots did not match with the weapons recovered from these two accused. The High Court has taken the view that this fact is immaterial as the appellants were arrested after about a year and ten months of the occurrence and certainly the appellants must have destroyed their weapons. But it may be pointed out that the weapons recovered from the accused were considered to be the weapons of offence.
21. ' The abscondence of the accused for a period of one year and ten months was considered an additional factor against these persons. Their explanation for abscondence has not been accepted by the two Courts. These two accused have stated that as they had been falsely implicated in the case, therefore, out of fear, they did not come to the village.
22. ' The learned trial Court did not impose extreme penalty of death in view of the fact that they had no direct motive against the deceased and had participated in the occurrence at the instance of the co-accused. The learned High Court while dimissing the Criminal Revision filed by the complainant, observed that "because all the six empties recovered from the two spots had matched with the weapons of appellants Sadiq and Kaloo, therefore, on this score, the award of lesser penalty to the appellants Muhammad Nawaz and Maqboos is in consonance with the safe administration of criminal justice". The High Court while dealing with the case of Muhammad Nawaz and Maqsood has observed that "it is immatrial whether the shots fired by them had injured anyone or not". P.W. 13 Ghulam Rasool father of injured Muhammad Iqbal stated that Sadiq and Kaloo accused had fired at him (Muhammad Iqbal) within his view. He has not stated that Muhammad Nawaz and Maqsood had also fired at him, but the fact remains that in spite of being armed with carbine they did not fire at Muhammad Iqbal. The other eye-witnesses specifically stated that all the four accused had fired at the deceased. The plea of Sadiq and Kaloo was that they in order to defend their possession of land and acting in self-defence had caused injuries to the deceased Iqbal P.W. According to these accused, deceased Muhammad Latif purchased 7-1/2 acres of land from his paternal-aunt and wanted to take its forcible possession. The deceased Muhammad Latif, his son Iftikhar Ahmad and Muhammad Iqbal came fully armed to take forcible possession of the disputed land on the day of occurrence and resorted to violence. This plea was rejected by the two Courts on the ground that the deceased Muhammad Latif and Iftikhar were put to death at two different places. The recovery of blood-stained earth and empties fully supported this fact. No weapon was recovered at the place where these two were done to death. The plea of the defence that occurrence had taken place at one place only i.e. At the disputed land is not supported by any material. As the deceased were not armed with any weapon, the right of private defence did not accrue to the accused.
23. ' The case of Muhammad Nawaz and Maqsood is distinguishable. According to the father of Muhammad Iqbal injured, these appellants had not fired at Muhammad Iqbal. Therefore, he contradicted Muhammad Iqbal and Qudratullah that all the four accused had fired at Muhammad Iqbal. It is stated that all the four accused had fired at Muhammad Latif and Iftikhar. The injuries received by them were the result of spread of pellets. The witnesses had made general statements that all the accused had made shots....From their respective weapons. But three empties were secured from the place of murder of Muhammad Latif and three from the place of murder of Iftikhar. The three empties matched with the gun produced by Sadiq and three with the carbine recovered from Kaloo. No other crime empty was secured. The report of the C Forensic Expert saddled the two accused. It has been admitted by the two Courts that these appellants had no motive against the injured and the deceased. It is, therefore, possible that they have been roped in being the relations of the co-accused. In view of the long-standing enmity of the complainant and the deceased, it is not safe to rely upon the uncorrobrated evidence of the eye-witnesses qua the present appellants. The case against these appellants (Muhammad Nawaz and Maqsood) is not free from doubt. Giving them the benefit of doubt, their appeal is accepted and they' are acquitted.
24. They shall be released forthwith, if not required in any other matter. The appeal of Sadiq and Kaloo is dismissed for the above-stated reasons.