ABDUL SUBHAN vs RAHEEM BAKHSH and another

' SAEEDUZZAMAN SIDDIQUI, J.---The above Criminal Appeal with the leave of this Court is directed against the judgment of Lahore High Court, dated 16-2-1991, whereby the appeal filed by respondent Raheem Bakhsh against his conviction and sentence under section 302, P.P.C. By Additional Sessions Judge, D.G. Khan was allowed and he was acquitted in the case. The leave granting order in the case is as follows:--- "The petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 16-2- 1991 whereby the conviction of the respondent No,1 under section 302/34, P.P.0 on two counts was set aside and he was acquitted.

(2) The main ground on which leave to appeal is sought is that there has been a serious misreading of the statement of the investigating officer with regard to the crime empties recovered from the spot. Liaqat All S.I./S.H.O. (P.W.10) made the following statement with regard to the empties:- 'The empties of bullet are P.9, P.10 and P.11 which were lying at the spot. These were taken into possession vide memo. Exh.PE and were made into sealed parcel... ... I know nothing about jacketed bullet. I had not taken into possession any jacketed bullet and nor sent the same to Forensic Science Laboratory and during my posting at P.S. Kot Mubarak, the said empties or their result was not received. It is correct that the said three empties of .7 MM rifle were not before me and they are not produced in Court till to-day.'

(3) The High Court while scrutinizing this statement in the impugned judgment observed as hereunder:- `The only piece of evidence on the basis of which the trial Court convicted the appellant is that the crime empty found at the spot matched with the gun recovered at his instance. This most important piece of evidence has been demolished by the admission of the investigating officer, that neither he had taken into possession any bullet from the spot, nor sent the same to Forensic Science Laboratory for comparison.'

(4) We consider that this is a fit case for grant of leave to appeal in order to ensure that the principles applicable to the safe administration of criminal justice have been duly observed in the case. Hence, leave to appeal is graded.

(5) Bailable warrants in the sum of Rs,25,000 with two sureties in the like amount to the satisfaction of District Magistrate/Duty Magistrate, Dera Ghazi Khan shall issue against respondent No,1/Raheem Bakhsh.

(6) Mr. Talib Hussain Rizvi, Advocate accepts notice on behalf of the respondent No,1/Raheem Bakhsh."

' Respondents, Raheem Bakhsh and Allah Wasaya were tried for the murder of Abdur Rehman and Faqir Bakhsh under section 302/34, P.P.C. By the Additional Sessions Judge, Dera Ghazi Khan. The learned trial Court acquitted Allah Wasaya in the case giving him the benefit of doubt but convicted respondent No,1 (Raheem Bakhsh) under section 302, P.P.C. On two counts and sentenced him to death on each count plus fine of Rs,30,000 on each count or in default R.I. For 5 years. It was also directed by the trial Court that on recovery of the fine, a sum of Rs,40,000 out of it was to be paid to the heirs of the deceased in equal shares by way of compensation.

' According to F.I.R. Which was lodged by Abdul Subhan (P.W.5) in the case there existed enmity between the complainant party and the accused on account of local bodies elections in which deceased Abdul Rehman contested election against the accused Raheem Bakhsh and lost the election but had declared his intention to contest the election against Raheem Bakhsh again. One day before the incident, Raheem Bakhsh through one of his party-men Amanullah got a case of abduction of minor girl Mst. Tasleem registered against the complainant and his 4 other relatives at Police Station, Batil on account of which deceased Abdur Rehman and accused Raheem Bakhsh had exchanged hot words and Raheem Bakhsh had threatened the deceased of dire consequences. On the day of incident the complainant and the deceased were to go to Police Station, Batil in connection with the investigation of the abduction case registered against them.

Deceased Abdur Rehman asked the complainant to proceed to Police Station Batil and he was to follow the complainant on a motorcycle. The complainant accordingly started from his house and stopped at the hotel of Ibrahim alias Nikri to take tea where Amir Bakhsh son of Muhammad Bakhsh alias Mamdo and Muhammad Bakhsh son of Allah Ditta, both residents of village Yaroo were already sitting. While the complainant was sitting in the hotel of Ibrahim alias Nikri Raheem Bakhsh accused armed with a .7 MM rifle and Allah Wasaya son of Pandhi armed with revolver passed in front of the hotel of Ibrahim alias Nikri and went towards east and sat on the 'Thalia' of shop belonging to one Allah Dad. After some time at about 7-00 a.m. Deceased Abdur Rehman passed in front of the hotel where complainant was sitting on a motorcycle alongwith Faqir Bakhsh who was sitting behind Abdur Rehman on the pillion. No sooner deceased Abdur Rehman reached near the place where accused Raheem Bakhsh was sitting, the latter got down from the `Thalia' of shop of Allah Dad and fired from his rifle at Abdur Rehman which hit him on his right shoulder near the neck. The deceased Abdur Rehman fell down alongwith his motorcycle in front of the gate of Union Council. After he fell down, Raheem Bakhsh accused made a second fire with his rifle which landed on the back of the deceased near shoulder. Allah Wasaya also fired from his revolver on the deceased Abdur Rehman which missed. Raheem Bakhsh accused then opened a third fire on Faqir Bakhsh which hit on his chest and he also fell down after receiving the fire shot injury. The complainant alongwith Amir Bakhsh (not produced) and Muhammad Bakhsh (P.W.6) tried to apprehend the accused but Allah Wasaya fired at them which missed. The accused also threatened them that if any one of them came near them, he will be killed. Out of fear they kept away and the accused made good their escape. The injured Abdur Rehman and Faqir Bakhsh were removed in critical condition to Civil Hospital D.G. Khan by the complainant in wagon. Faqir Bakhsh died on the way while Abdur Rehman died in the hospital. The F.I.R. Was recorded at Police Station Batil at 9-40 a.m. After usual investigation, the two accused in the case were sent up to stand trial before the Additional Sessions Judge, D.G. Khan.

' The trial Court found the ocular testimony of the two P.Ws. (Abdul Subhan, complainant, and Muhammad Bakhsh) as confidence inspiring and consistent, as they stood the test of long cross- examination. The motive alleged against respondent No,1 was also found proved as the accused had not challenged the same. The recovery of the licensed rifle of the accused Raheem Bakhsh and the positive report of ballistic expert provided corroboration to the ocular testimony of the two P.Ws. The medical evidence was also found confirmatory of the injuries alleged on the person of the two deceased persons in the F.I.R. The trial Court relying on the ocular testimony, the motive, the recoveries and the medical evidence convicted respondent No,1 under section 302, P.P.C. And sentenced him in the case as aforesaid but acquitted the co-accused Allah Wasaya giving him the benefit of doubt.

' The learned Judges of the High Court while hearing the murder reference against respondent No,1 and the appeal filed by him against his conviction and sentence by the trial Court, came to the conclusion that the two eye-witnesses examined in the case by the prosecution were chance witnesses and their presence at the spot was doubtful as the reason given by them for their presence at the spot was not convincing. It was also found by the learned Judges that both the eye-witnesses were interested and inimical to the accused and as such their evidence could not be relied upon. It was also found by the learned Judges of the Appellate Bench that the ocular account of the incident furnished by the two eye-witnesses was contradicted by the medical evidence in the case. The precise reasons given by the learned Judge for the above conclusion were as follows:--- "In the present case, we find the ocular version is being contradicted by the medical evidence, as per admission of the doctor, the bullet pierced through the body of Abdul Rehman deceased, still it did not cause any injury to Faqir Bakhsh deceased who was sitting with him on the pillion. In addition to this, nature and dimension of the injuries Nos.1 and 2 sustained by Abdul Rehman show that these were not caused by the rifle allegedly used by the appellant. As per postmortem report, there is one wound of entry and three wounds of exit, which lends support to the defence version, that the deceased did not meet his death by rifle shot, but by cartridge from .12 bore gun fired from a close range."

' The learned Judges of the High Court finally concluded the case as follows:--- "13. The only piece of evidence on the basis of which the trial Court convicted the appellant is that the crime empty found at the spot matched with the gun recovered at his instance. This most important piece of evidence has been demolished by the admission of the investigating officer, that neither he had taken into possession any bullet from the spot, nor sent the same to Forensic Science Laboratory for comparison. Muhammad Bakhsh (P.W.6) has also supported the I.O. That he did not notice any crime empty at the spot, even this is not mentioned in the F.I.R. Which was lodged promptly so no reliance can be placed upon this evidence."

' We have carefully examined the reasons given by the learned Judges of the High Court while reversing the judgment of the trial Court and acquitting respondent No,1 in the case, and are of the view that their conclusions are based on misreading of the evidence on record. The learned Judges of the High Court while reversing the judgment of the trial Court also failed to take into account the reasons given by the trial Court in holding the respondent No,1 guilty of offence under section 302, P.P.C. And convicting him for the same. We will, therefore, now proceed to examine each of the above reasons, given by the High Court in acquitting the respondent Raheem Bakhsh in the case, in order to find out if these reasons are supported by the evidence on record.

' The incident took place on 21-6-1987 at 7-00 a.m. And the F.I.R. Was promptly lodged by the complainant at 9-30 a.m. Which contained vivid details of the incident. The seat of injuries on the persons of the two deceased persons and the manner in which the incident took place found full corroboration from the medical evidence in the case. The promptitude with which the F.I.R. Was lodged and the details of the incident mentioned in the F.I.R. Do show that it was lodged by a person who had witnessed the incident personally. The learned Judges of the High Court firstly found that the two eye-witnesses produced by the prosecution in the case were chance witnesses and their presence at the spot was doubtful as the explanation given by them for their presence at the spot was not convincing. The learned Judges of the High Court while discarding the evidence of two eye-witnesses on the ground that they were only chance witnesses, did not advert at all to the following reasons given by the trial Court for believing their presence at the scene of the offence:-- - "Both the eye-witnesses claim that they were sitting in front of the tea stall of one Ibrahim alias Nikri and were having tea there when the deceased were fired at by Rahim Bakhsh accused in their view. It is in their evidence that the deceased and the P.Ws. Offered morning prayers in one mosque and chalked out a programme of joining investigation in the abduction case of Mst.

Tasleem registered against Abdul Subhan complainant and others. According to the programme both the deceased were going to the police station on a motor-bike whereas the complainant and P.W.6 were having tea at the said tea-stall and were waiting for transport for reaching the police station. The important question which needs serious thought is as to whether the presence of the eye-witnesses at the scene of occurrence was plausible or not. For two reasons I believe that both the eye-witnesses were present on the spot of murder, at the time of occurrence, (i) that a criminal case under section 363, P.P.C. (Exh.DA) had been registered against Abdul Subhan complainant and others a day before the present occurrence and it is under standable that Abdul Subhan and P.W.6 had to go to the Police Station for joining the investigation; (ii) that as per statements of both the P.Ws. Their residential houses were at a distance of about 150 to 170 feet away from the place of murders and this very short distance also justified their presence at the spot of murder."

It is no doubt open to the First Appellate Court to reach a conclusion different from the one arrived at by the trial Court on re-appraisal of the evidence on record on a point of fact but in doing so the First Appellate Court cannot totally ignore the reasonings given by the trial Court in support of its conclusions. The First Appellate Court while disagreeing with the conclusion of the trial Court, on a point of fact, will have to take into account the reasons advanced by the trial Court and if it disagrees with the reasonings of the trial Court it must give its own reasons for such disagreement which should proceed on some logical basis. If the First Appellate Court merely says that it does not agree with the conclusion of the trial Court without adverting to the reasons given by the trial Court in support of the conclusion and without disclosing any logical basis for such disagreement, such finding by the First Appellate Court, which is at variance with trial Court's finding, cannot be binding. In the case before us the reasons given by the trial Court for holding that the two eyewitnesses in the case were present at the time of occurrence at the spot, were not only convincing but the evidence of these two witnesses remained totally unshaken in spite of a very lengthy and searching cross-examination by the counsel for respondents. The learned Judges of the High Court, however, totally ignored the reasons given by the trial Court in believing these two witnesses while disagreeing with the trial Court. The trial Court, in our view for good reasons reached the conclusion that the evidence of the two eye-witnesses in the case inspired confidence.

' The next reason given by the learned Judges of the High Court in disbelieving the evidence of eye- witnesses in the case was that there existed contradiction between the ocular testimony and the medical evidence in the case. According to learned Judges, the medical evidence shows that the bullet fired by the respondent had pierced through the body of Abdur Rehman deceased but it did not cause any injury to the other deceased Faqir Bakhsh who was sitting behind him on the motor- cycle which according to learned Judges was not possible. It was also found by the learned Judges that injuries Nos.1 and 2 sustained by Abdur Rehman could not have been caused by the rifle allegedly used by respondent Raheem Bakhsh as the post-mortem report showed three exit wounds corresponding to one entry wound which proved that the deceased was shot at by .12 bore gun from a close range. The learned Judges of the High Court once again failed to take into consideration the reasoning of trial Court in this regard and also misread the evidence on record.

The site plan (Exh.PJ) shows the place where the deceased Abdur Rehman was first fired at by the respondent as point No,(1). It also shows the place where the deceased Abdur Rehman was fired at second time when he fell down after receiving the first shot as point No,(2). The place shown in the site plan as point No,(2) is also the place where the other deceased Faqir Bakhsh was fired at by the accused. The place from where the accused fired at the two deceased persons is shown as point No,(3) on the site plan. The distance between point Nos. (2) and (3) is stated to be 38-1/2 feet.

If the deceased persons were fired from such a long distance by 12 bore gun, the entry wound could not be a single one. The learned Judges of the High Court, however, held that the deceased were fired at from a close range. This conclusion of the learned Judges is contrary to the medical evidence on record which did not show any laceration or blackening at the point of entry wound and there were also no signs of unburnt powder present in the body of the deceased. The trial Court while considering this aspect of the case observed as follows, which was totally ignored by the learned Judges of the High Court:-- "18. The prosecution case is that both the deceased were fired at with a rifle .7 MM. The learned defence counsel while cross-examining the doctor and the eye-witnesses has created confusion as to whether the fire-arm injuries had been caused by a rifle or a .12 bore gun. Learned defence counsel has pointed out that the entry wound No,1 on the dead body of Abdul Rehman deceased had three exit wounds and the same was the position of injury No,3 which has also three exit wounds. Learned counsel is of the view that had Abdul Rehman deceased been fired at with a rifle, the entry wound of Abdul Rehman deceased would have only one corresponding exit wound.

Presence of more than one exit wounds indicates that Abdul Rehman was fired at with a gun .12 bore. The point raised is of technical nature, therefore, it seems proper to seek guidance from the Book on this subject written by Modi an eminent writer. At page 225 of Mode's Text Book Medical Jurisprudence (Pakistan Edition), the author observed as under:- `The effects produced by small shot fired from a shot gun vary according to the distance of the weapon from the body, and choking device. A charge of small shot, fired very close to, or within a few inches of, the body enters in one mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greatly !Acetate and rupture the deeper tissues. Particles of unburned powder expelled from the weapon behind the missile are driven to some distance through the wound and some of them are found embedded in the wound and surrounding skin which is also signed and blackened by the flame and smoke of combustion. The exit wound of a close range shot shows greater damage of tissues than the entrance wound. The margins are averted, but there is no evidence of blackening or singeing. At a distance of one to three feet small shot makes a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enters as one mass but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wound is blackened, scorched and tattooed with unconsumed grains of powder. On the other hand, at a distance of six feet, the central aperture is surrounded by separate opening in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to ei ht inches in diameter but without causing blackening. Scorching or tattooing of the surrounding skin. This scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body. As the distance increases, the damage caused by a single pellet diminishes, until at about thirty feet, it is only capable of penetrating the clothes and the skin of the victim'."

' The learned Judges of the High Court were unduly swayed by the presence of 3 exit wounds corresponding to one entry wound on the person of deceased Abdur Rehman while concluding that the deceased was fired at by .12 bore gun and not by a rifle. We have already pointed out that the distance from where the deceased were fired at could not produce one single entry wound if the weapon used was a .12 bore gun as from such a long distance there would have been several entry wounds within an area of 5 to 8 inches without causing any blackening. The trial Court while examining this aspect of the case further observed as follows:- "Now I proceed to examine the entry and exit wounds of Abdul Rehman deceased with reference to the argument of the learned defence counsel and in the light of the expert opinion reproduced above. In the instant case the deceased were not hit from a close range. The post-mortem examiner did not notice any blackening, scorching and tattooing which leads to the conclusion that the deceased were fired at from a distance of more than three feet. The one entry wound of each fireshot without blackening, scorching and tattooing indicates that Abdul Rehman deceased was not fired at with a .12 bore gun. Had he been fired at with .12 bore gun, the pellets would have produced separate openings. I have minutely examined the exit wounds of Abdul Rehman deceased which are not in fact independent and separate as argued by the learned defence counsel. The exit wounds were intermingled and possibility of causing intermingled exit wounds with a rifle cannot be ruled out. Besides this I prefer to rely upon the ocular account given by the eye-witnesses, who are consistent on the point that Abdul Rehman was fired at with a .7 MM rifle."

The above reasonings of the trial Court were not taken into consideration by the learned Judges of the High Court. We have examined the above reasonings given by the trial Court in the light of the evidence of the doctor and do not find any conflict between the two. The doctor in reply to a Court question stated in his evidence as follows:-- "Court Question:---If a bullet gets fragmented inside the body whether there is a possibility of multiple exit wound and a single entry wound?

A. Yes."

' The above explanation of the doctor fully explained the existence of three intermingled exit wounds corresponding to one entry wound. Similarly, the reasoning of the learned Judges of High Court that Faqir Bakhsh deceased was not hurt although he was sitting behind Abdul Rehman on the pillion, who was killed by the fireshot which 'passed through his body, is only conjectural. Firstly, the evidence on record shows that the bullet after entering the body of the deceased Abdul Rehman had probably fragmented which caused three intermingled exit wounds. Thus, the effectiveness of the bullet which though passed through the body of the deceased was lost after fragmentation. Secondly, the deceased Abdul Rehman and Faqir Bakhsh were not static targets who would not move after they were fired at. As a natural instinct after Abdul Rehman was fired at by the respondent, the deceased Faqir Bakhsh who was sitting behind him must have moved a little in different direction to save himself, and therefore, the possibility that the bullet which passed through the body of Abdul Rehman after fragmentation, did not hit him, could not be ruled out. The last reason assigned by the learned Judges of the High Court for acquitting the respondent in the case was as follows:- "13. The only piece of evidence on the basis of which the trial Court convicted the appellant is that the crime empty found at the spot matched with the, gun recovered at his instance. This most important piece of evidence has been demolished by the admission of the Investigating Officer, that neither he had taken into possession any bullet from the spot, nor sent the same to Forensic Science Laboratory for comparison. Muhammad Bakhsh (P.W.6) has also supported the I.O. That he did not notice any crime empty at the spot, even this is not mentioned in the F.I.R. Which was lodged promptly so no reliance can be placed upon this evidence."

The above conclusions of the learned Judges of the High Court are based on a misreading of the evidence on record. The relevant part of the evidence of I.O. In this regard is as follows:-- "I know nothing about jacketed bullet. I had not taken into possession any jacketed bullet and nor sent the same to Forensic Science Laboratory for any comparison. Three bullet empties lying at the spot were taken into possession and were made into a sealed parcel These empties were sent to the. Forensic Science Laboratory and during my posting at P.S. Kot Mubarak, the said empties or their result was not received."

It is, therefore, quite clear that the I.O. Had only denied the recovery of jacketed bullet which was never the case of the prosecution. The trial Court also referred only to crime empties which were sent to Forensic Science Laboratory and not jacketed bullet. The High Court, therefore, completely misread this part of the evidence of I.O. In the case.

' It is also not correct to say that the trial Court convicted the respondent only on the basis of the evidence of recovery of crime empties from the spot and the positive evidence of the ballistic expert. The trial Court firstly, weighed the ocular testimony in the case and having found it confidence inspiring sought its corroboration from the motive, medical evidence, recoveries and the positive report of ballistic expert. The recovery of rifle in the case from respondent could not be doubted as it was a licensed arm of the respondent. The empties were also recovered from the spot on the day of incident within a few hours. There was thus no possibility of plantation or substitution in the circumstances of the case as the empties which were seized on 21-6-1987 were sent to ballistic expert on 25-6-1987 while the rifle was recovered from the respondent on 30-6- 1987 and was sent to the expert on 13-7-1987. The recovery of blood from the spot and motor-cycle proved that the incident had taken place on the spot mentioned in the F.I.R. The probable time of death mentioned in post-mortem report also coincided with the time of death of the two deceased given in the F.I.R. We are, therefore, satisfied that the ocular testimony in the case was fully corroborated by the circumstantial evidence in the case. The defence theory that the deceased- were killed by one Ghulam Abbas and Faiz Muhammad, the maternal-uncle and uncle of the abductee Mst. Tasleem and that the respondent was involved in the case at the behest of the elite of the area was rightly disbelieved by the trial Court as there was no worldly reason for the brother of the deceased/complainant to let the real culprit known to him, go free and involve an innocent person in the heinous crime. We would also like to mention here that there is no rule of law that a Court cannot rely on the testimony of an interested witness to base the conviction in a criminal case, however confidence inspiring that evidence may be. The Courts, however, as a rule of prudence and caution and in order to exclude every possibility of involvement of an innocent person in the case by the prosecution alongwith the guilty, always look for corroboration of the interested testimony in the case with some other independent circumstances in the case to create a probable basis to base the conviction on the basis of such evidence. Corroboration in such cases may come either from the words of an independent witness supporting the prosecution story or such corroboration may also be found from anything in the circumstances of the case which would sufficiently satisfy the mind of the Court that the witness has spoken the truth. Once the Court reaches the conclusion that the witness has spoken the truth, the fact that such statement came from the mouth of an interested witness would not deter the Court from basing the conviction on such evidence.

' In the present case we are satisfied that besides the fact that the trial Court found that the ocular account of the incident given by the two P.Ws. Was sufficiently corroborated by the motive, recoveries, medical evidence and the report of ballistic expert, the trial Court in the circumstances of the case also rightly reached the conclusion that the two eye-witnessed were truthful. We, therefore, hold that the reversal of the judgment oriel Court by the High Court was totally unjustified and arbitrary and resulted in the miscarriage of justice. Accordingly, the appeal is allowed and the judgment of the High Court is set aside. The judgment of the trial Court, convicting respondent under section 302, P.P.C. Is restored.

' We have given our anxious considerations to the question whether as a result of upholding the conviction of the respondent under section 302, P.P.C. By the trial Court, the death sentence awarded to him be also restored. We have carefully considered the circumstances of the case and find no mitigating circumstances to justify award of lesser penalty in the case. This Court in the case of Abdullah v. Muhammad Ali PLD 1971 SC 541 while allowing the appeal of complainant against the acquittal of all the accused persons by the High Court in a murder case, awarded the death penalty to the principal accused, after restoring the judgment of trial Court. Following the precedent case, we impose the death penalty on respondent on two counts and direct that he be hanged by the neck till he is dead. The sentence of fine imposed by the trial Court and the direction that on realization of the amount of fine a sum of Rs,40,000 out of it, be paid to the heirs of the deceased in equal share by way of compensation is also restored.

' SAJJAD ALI SHAH, J.---I have gone through very carefully draft judgment proposed to be delivered by my learned brother Saeeduzzaman Siddiqui, J. Allowing appeal by setting aside judgment of acquittal passed by the High Court and restoring death sentence awarded to respondent Nod Rahim Bakhsh in a double murder case. With regret I say that I am unable to subscribe to the view taken by my learned brother and after appraisement of evidence, I have arrived at the conclusion and the finding that the judgment of the High Court is correct and according to law with which no interference is warranted and this appeal is liable to be dismissed and is dismissed as such for reasons, which are stated hereafter.

2. Briefly stated the relevant facts in the background are that Abdul Subhan, appellant herein, who is complainant in the case and brother of deceased Abdul Rehman filed F.I.R. On 21-6-1987 at 9-30 a.m. At P.S. Batal in District Dera Ghazi Khan, in which detailed facts of incident are stated.

According to the F.I.R. Abdul Rehman was driving a motor-cycle with Faqir Bakhsh sitting behind and in front of shop of Allah Dad Kholol, they were attacked by Rahim Bakhsh armed with rifle .7 MM and Allah Wasaya with revolver. Rahim Bakhsh fired at Abdul Rehman hitting him on the neck and in the result the latter fell down from the motor-cycle. Rahim Bakhsh again fired at Abdul Rehman who was hit on the back of his shoulder. Allah Wasaya fired at Abdul Rehman but without success.

Rahim Bakhsh fired at Faqir Bakhsh, who was hit on the chest. Complainant Abdul Subhan, Muhammad Bakhsh and Amir Bakhsh saw the incident from hotel of Muhammad Ibrahim alias Nikri, where they were having tea. Witnesses protested and attempted to apprehend the assailants and Allah Wasaya fired at them but luckily they escaped injuries. Assailants fled away from the scene of offence. On the way to the hospital Faqir Bakhsh died, while Abdul Rehman breathed his last on reaching the hospital. Complainant then went to the police station and filed F.I.R.

3. The motive is mentioned in F.I.R. To the effect firstly that there is political rivalry between deceased Abdul Rehman who lost local bodies election to Rahim Bakhsh and wanted to contest again. Secondly, Amanullah had filed one day earlier case of kidnapping in respect of his minor daughter Mst. Tasleem against Abdul Subhan, complainant in this case and four others and in that connection deceased persons and complainant and other witnesses in this case were about to leave for police station when incident took place. Thirdly, complainant party in this case being Qureshis and accused party being Qasais (butchers) maintained between them tense relationship and proceedings were pending against them under section 107/151, Cr.P.C.

4. Sub-Inspector Liaquat All commenced investigation and after registering F.I.R. Went to the hospital and from there to the place of occurrence. He recovered three bullet empties which were put into a sealed parcel. He arrested both the accused on 30-6-1987 and Rahim Bakhsh led to the recovery of his licensed rifle and five live cartridges, which were sealed. Allah Wasaya led to the recovery of revolver .32 bore with two empties and three live bullets which were sealed. Prosecution examined 10 witnesses in support of its case in the trial Court. Ocular evidence is furnished by two witnesses namely P.W.5 complainant Abdul Subhan and P.W.6 Muhammad Bakhsh, who are both admittedly related to the deceased persons. P.W.8 Dr. Capt. Ghulam Fareed deposed that both deceased persons died due to firearm injuries. Report Ex.P.Q. Of Fire Arms Expert is positive to the effect that three crime empties recovered from the spot were fired from the rifle and two crime empties were fired from .32 bore revolver.

5. In the trial Court both the accused denied prosecution allegations in their 342, Cr.P.C. Statements and claimed that they had been falsely involved in this case and in fact both deceased persons were done to death by Ghulam Abbas and Faiz Muhammad, uncles of Mst. Tasleem. Political rivalry on account of local bodies election contested between the parties is admitted. Registration of kidnapping case was admitted to the extent that Rahim Bakhsh accompanied complainant to the police station in the capacity as Councillor of the area. He further stated that otherwise complainant party in the kidnapping case was not related to him and was from a different caste.

Rahim Bakhsh also admitted that his licensed rifle was recovered by the police but was tampered with before being sent to the Laboratory. He proclaimed false implication due to political rivalry.

Both accused were examined on oath also. No witness was examined in defence. Rahim Bakhsh tendered in evidence copy of F.I.R. No,53 of 1987 Exh.DA. And copy of judgment dated 7-10-1976 in case F.I.R. No,9/74 Exh. D.B. In the trial Court supplementary statements under section 342, Cr.P.C. Of both accused were recorded and seemingly such need arose on account of finding in the report of Fire Arms Expert.

6. After evaluation of evidence trial Court felt no hesitation in acquitting co-accused Allah Wasaya for the following reasons. Firstly, trial Court has held that participation of Allah Wasaya in this occurrence seems to be doubtful from which it appears that the eye-witnesses produced by the prosecution have not been believed to the extent that Allah Wasaya also participated in the incident and fired from his revolver as alleged. Secondly, revolver, which was buried in the earth was recovered after 9 days on 30-6-1987 but copy of objections (marked "D") showed that District Attorney directed I.O. To recover the same from Allah Wasaya on 8-9-1987. This fact negated the prosecution version that revolver P.14 was recovered on 30-6-1987 but no attempt was made to dispel that impression (please see page 100 of High Court Paper Book). Thirdly, Allah Wasaya had no motive to kill and being resident of Dera Ghazi Khan had no concern with local politics of village Yaroo. Fourthly, it was ineffective firing allegedly made by Allah Wasaya in which no one was injured. Fifthly, recovery of revolver was also doubted on the ground of inordinate delay that it was sent to the Laboratory 13 days after recovery and 22 days after incident for which no satisfactory explanation was furnished by the prosecution (see page 101 of HCPB).

7. It appears from the perusal of impugned judgment that no appeal was filed by the State or Revision by the complainant against the acquittal of Allah Wasaya by the trial Court. This fact is to be kept in mind when same evidence in the same case is taken up for appraisal by this Court to examine whether judgment of the acquittal in favour of respondent No,1 Rahim Bakhsh by the High Court vide impugned judgment is sustainable for various reasons. Trial Court after analysis of evidence brought on the record by the prosecution recorded conviction against respondent No,1 Rahim Bakhsh by believing ocular evidence' of the two eye-witnesses corroborated by motive, medical evidence and recoveries. According to the prosecution both eye-witnesses claimed that they were having tea in the hotel waiting for transport to go to the police station to join the investigation of kidnapping case. For recording conviction of one accused trial Court has believed them for reasons firstly, that case under section 363, P.P.C. Was registered at police station in which complainant Abdul Subhan had to attend the investigation. Secondly, house of both eye-witnesses was 150 paces away from the spot. Thirdly, both eyewitnesses stood test of cross-examination (see pages 104 and 105 of HCPB).

8. High Court has held that presence of both eye-witnesses at the spot at the time of incident is doubtful and has termed them as chance witnesses. High Court has pointed out conflict between ocular evidence and medical evidence and defects in the circumstantial evidence of recovery of rifle from respondent No,1 Rahim Bakhsh and matching report of Fire Arms Expert. High Court has held that prosecution has failed to prove case beyond reasonable doubt and, therefore, has allowed appeal and acquitted respondent No,1 Rahim Bakhsh.

9. Now before I go into evidence, I would like to point out that most pivotal and important piece of evidence in this whole case is that of eyewitnesses who claim to have seen the incident.

Admittedly, there is background of enmity between the parties and both eye-witnesses are related to the deceased persons and, therefore, they can be labelled as interested witnesses. There is no dispute about the fact that an interested witness can see the incident as natural witness if his presence at the spot is satisfactorily accounted for. It is held by this Court in the case of Nazir Ahmad and others v. The State PLD 1962 SC 269 that an interested witness is one who has a motive for falsely implicating an accused person. Ordinarily evidence of an interested witness is to be accepted, when it is supplemented with corroboration. There may be an interested witness, whom the Court regards as incapable of falsely implicating an innocent person and evidence of such an exceptional witness may be considered as safe to be relied upon but the normal rule is that it is not safe to rely upon testimony of an ordinary interested witness unless the corroboration is available and anxiety of the Court is satisfied that no innocent persons are being implicated alongwith guilty.

It is also held by this Court in the case mentioned above that corroboration does not necessarily mean that there should be word of independent witness supporting the story put forward by an interested witness but such corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness, has spoken the truth.

10. This Court has in another case of Bagh Ali' and others v. The State PLD 1973 SC 321 held that the appraisement of evidence of eye-witnesses is to be based upon full consideration and evaluation of all circumstances appearing in the case where there is total absence of physical circumstances to connect the accused with crime and there is background of enmity. In such a situation ocular evidence must in order to carry conviction on a capital charge come from unimpeachable source.

If such a source is not available then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt, which such evidence must necessarily create.##TE#

11. Now I take up evidence produced in this case for appraisement in the light of guidelines mentioned in the two cases cited above. From the two eyewitnesses examined by the prosecution, P.W.5 complainant Abdul Subhan is Qureshi by caste and brother of deceased Abdul Rehman. It is mentioned in F.I.R. That there is background of enmity between Qureshis on one side and butchers on the other side living in village Yaroo. Accused persons are butchers and it is not disputed that persistent conflict between the two parties is on account of political rivalry in which deceased Abdul Rehman contested and lost election of local bodies to Rahim Bakhsh and wanted to contest again as Member of Union Council. Litigation was going on between the two parties in which both parties were being led by deceased Abdul Rehman and respondent Rahim Bakhsh respectively.

One day before the incident in this case F.I.R. Was lodged by Amanullah in respect of kidnapping of his minor daughter Mst Tasleem in which four persons were named as accused including Abdul Subhan, who is complainant in this case. It is admitted fact that respondent Rahim Bakhsh had accompanied Amanullah to the police station for filing that report.

12. In this case it is claimed by the prosecution that the two eye-witnesses and deceased persons had planned to go to the police station to join investigation of kidnapping case which was filed on the previous day. Copy of F.I.R. In that kidnapping case is available in the record as Exh.DA at page 135 of LICPB. Perusal of that F.I.R. Shows that four persons named therein including Abdul Subhan forcibly kidnapped Mst Tasleem in presence of her father and other witnesses and while in the process of taking her away when they had covered a short distance, there was protest from labourers, who were working in Rice Factory and raised alarm, whereupon kidnaped was left behind and the culprits made good their escape. Amanullah father of kidnapee informed respondent Rahim Bakhsh, who accompanied him to the police station for the purpose of registration of F.I.R.

13. Now it is for consideration whether in view of contents of F.I.R. Of kidnapping mentioned above, was it likely that the deceased persons and the complainant would plan to go to the police station to join the investigation. It is likely that deceased Abdul Rehman being leader of group of Qureshis would like to go alongwith Abdul Subhan, who was named in F.I.R. Of kidnapping as one of the four accused persons. If that was so then both deceased Abdul Rehman and complainant Abdul Subhan, being real brothers could go together on motor-cycle from their house as both lived together in the same house. It is admitted by complainant Abdul Rehman in his cross-examination (at page 36 of HCPB) that he and his brother deceased Abdul Rehman resided together in the same house. In such circumstances there was no need for complainant Abdul Subhan to wait in the hotel for transport to be taken to police station and deceased Abdul Rehman to be driving motor-cycle with Faqir Bakhsh behind. Both complainant Abdul Subhan and deceased Abdul Rehman could go together from their house to the police station.

14. In F.I.R. Of this case (page 116 of HCPB) it is stated by the complainant that he was asked to go to police station Batil by his brother Abdul Rehman who was to follow him on motor-cycle. Abdul Subhan then left his house and came to tea stall of Ibrahim alias Nikri to take tea, where other witnesses namely Amir Bakhsh and Muhammad Bakhsh were already sitting after which incident took place. Complainant Abdul Subhan has taken great pains in his evidence in the trial Court to convince the Court that he was present in the tea stall of Ibrahim alias Nikri and saw the incident and in that anxiety made improvements in his explanation. It would not be out of place to mention here that testimony of complainant on the record runs into 16 pages out of which 2-1/2 pages are examination-in-chief and the remaining 13-1/2 pages are cross-examination. During the cross- examination (at page 40 of HCPB) complainant stated that on the day of incident, he and his deceased brother had offered morning prayers jointly. He came out from the mosque while his deceased brother was still busy in Tasbih. Then his deceased brother passed near him when he was sitting in the tea stall.

15. It appears that complainant Abdul Subhan was pressed to explain whether it was his habit to take tea in the morning in the tea stall and in that connection he has furnished explanation in his cross-examination (at page 39 of HCPB), which is reproduced as under:--- "Ordinarily I used to take tea from the tea stall of Ibrahim Nikri but there was no fixed time. Some times after two days and sometimes after 15 days I used to take from the said tea stall. There was no fixed time table of taking tea. Some times in the morning, sometimes after offering morning prayers and sometimes at noon time I used to take tea from the said tea stall. On the day of occurrence, I was taking tea by chance and saw the occurrence."

16. It is the case of the prosecution that incident took place outside the tea stall and at the relevant time no other shop was open except the tea stall from which the incident could be seen. It was, therefore, very essential for the complainant to show his presence in the tea stall at the relevant time. In this context it would be pertinent to reproduce one other paragraph from evidence of the complainant which is very relevant:- "My residential house was situating at a distance of about 150 feet from the place of occurrence. If one stands on the place of occurrence, my residential house does not come in view. My deceased brother was residing with myself in one house. The remaining eye-witnesses live about 170 feet away from the place of occurrence and their houses also do not come in view from the place of murders. The place of occurrence is a bazar having shops, banks and office of Union Council.

During day time this is busiest place of the village. Village Yaroo consists of 8,000 or 10,000 persons.

Lambardars, Councillors, Zamindars, businessmen of Village Yaroo reside in Village Yaroo. The street in which the occurrence took place was made of bricks but the surface was covered with mud and sand. Ordinarily the bazar of Village Yaroo opens at 9-30 a.m. And before that only tea stall begins working. Before sunrise the tea stalls start working. Before morning prayers time, the bazar remains deserted."

16. There are so many discrepancies and inherent infirmities in the evidence of complainant which renders his claim to be doubtful that he has seen the incident. It was claimed by the complainant in his examination-inchief before the trial Court that at about 7 a.m. Rahim Bakhsh armed with rifle 7 MM and Allah Wasaya armed with pistol passed in front of them and waited in front of shop of Allah Dad near office of Union Council Yaroo and after about 10 or 12 minutes Abdul Rehman came on motor-cycle with Faqir Bakhsh behind upon whom the attack was made. In the cross- examination (page 39 of HCPB) complainant explained that both accused were holding their weapons of offence in their hands when they passed near him and he did not suspect and did not apprehend any danger on seeing them armed with deadly weapons. This assertion does not appear to be natural when it is read in the background of enmity between the parties described by the complainant in his evidence. Complainant stated (at page 34 of HCPB) that apart from political rivalry there was criminal litigation between the parties. Rahim Bakhsh got registered a criminal case of kidnapping of Mst. Tasleem against him and other family members. This case was registered two days before the incident in the instant case and both parties were bound down for keeping peace under section 107/151, Cr.P.C. One day before the incident complainant party joined investigation of the kidnapping case and hot words were exchanged between them and accused party. This assertion is belied by the record as F.I.R. In kidnapping case (at page 135 of HCPB) shows that it was recorded on 20-6-1987 which was one day before the incident and not two days as claimed by the complainant. It is also so mentioned in very clear terms in F.I.R. In this case (at page 117 of HCPB) that kidnapping case was filed one day before the incident and in the morning of the day of the incident complainant party wanted to go and join the investigation of kidnapping case at police station. This shows that complainant is not sure whether kidnapping case was filed one day or two days before the incident of this case and whether threats were extended or not and if yes, when and where.

17. Coming back to the allegation of threats, complainant in his evidence (at page 37 of HCPB) stated that one day prior to the incident, Rahim Bakhsh extended threats to his brother Abdul Rehman and in consequence thereof the latter was expecting danger to his life. Complainant further asserted specifically that threats were extended in front of his shop situated in Village Yaroo. Complainant deposed (at page 38 of HCPB) that one day before the incident complainant party did not join the investigation of kidnapping case and threats were not extended by accused persons and further volunteered that they and accused persons had gathered in Village Yaroo for proceeding to the police station for investigation of kidnapping case and before their departure accused persons extended threats. Complainant stated in his evidence that he could not explain the correct position about threats in his examination-in-chief due to misunderstanding and that no threats were extended when he saw both accused persons armed with deadly weapons and waiting in readiness. There appears to be no justification for confusion as evidence of complainant was being recorded on 14/15-5-1989 which was after a little less than 2 years and he had made claims about threats one day prior to the incident but was not sure whether it was at the police station or in front of his shop. It appears that this was done by the complainant in his anxiety to show his presence in the tea stall at the relevant time on the day of incident and he did not feel alarmed.

18. Another fact which is not clear from the deposition of the complainant is as to why he was so anxious to join the investigation of kidnapping case in which he was named as one of the accused.

F.I.R. In that case was filed one day before the incident and no steps were taken by the police to arrest him. It is admitted by the complainant in his evidence (at page 36 of HCPB) that neither he nor any other accused named in the F.I.R. Of kidnapping case was arrested and further Mst.

Tasleem was not recovered from any accused. It is also stated in F.I.R. Of kidnapping case (at page 136 of HCPB) that accused persons released Mst. Tasleem and ran away. In such circumstances it is not understandable as to why complainant was so eager and in such a hurry to go to the police station to join the investigation of kidnapping case in which he had been named as accused.

19. Since complainant has testified in the trial Court as eye-witness of the incident, relevant paragraph from his deposition with regard to the narration of the incident is reproduced hereunder:--- "When Haji Abdul Rehman and Faqir Bakhsh reached near the office of the Union Council, Rahim Bakhsh accused, who was armed with a rifle got up and fired at Haji Abdul Rehman hitting his breast near the shoulder. Haji Abdul Rehman was hit on the motor-bike and after covering a 'distance of few paces, he fell down from the motor-bike. Allah Wasaya accused fired shot with his pistol which remained ineffective. Rahim Bakhsh accused again fired at Abdul Rehman deceased when he was lying on the ground face downwards. Rahim Bakhsh accused fired at Faqir Bakhsh deceased hitting his breast. Faqir Bakhsh also fell down on the ground from his motor-bike. Myself, Muhammad Bakhsh and Amir Bakhsh P.Ws. Proceeded ahead for rescuing the deceased but we were fired at by Allah Wasaya accused but we were fortunately saved. Allah Wasaya accused extended threats of dire consequences. Thereafter the accused fled away with their respective weapons."

20. At the very outset it may be mentioned that second eye-witness P.W.6 Muhammad Bakhsh in his deposition before the trial Court contradicted complainant on the question of manner in which shots were fired by accused persons. According to Muhammad Bakhsh first shot fired by Allah Wasaya from his pistol at Abdul Rehman went amiss and then second shot fired by him hit Abdul Rehman on his back. (see page 49 of HCPB). During crossexamination P.W.6 Muhammad Bakhsh changed his statement and asserted that his earlier statement to the effect that shot fired by Allah Wasaya had hit Abdul Rehman was not correct. (page 57 of HCPB). Second glaring contradiction is that according to the complainant after being hit by the first shot on chest Abdul Rehman fell down from motor-cycle. As against that P.W.6 Muhammad Bakhsh deposed that Abdul Rehman was hit first by shot fired by Rahim Bakhsh in the chest and then Allah Wasaya fired two shots from which the first did not hit but the second shot hit Abdul Rehman on his back and after that he fell down on the ground. P.W.6 Muhammad Bakhsh in his evidence corrected himself and said that Abdul Rehman was not hit by the shot fired by Allah Wasaya and his earlier statement to that effect was incorrect.

21. An extract from the cross-examination of complainant (page 40 of HCPB) giving narration of the attack is reproduced as under:--- "I had seen both the deceased for the first time when they were fired at. Rahim Bakhsh accused came down from the platform and fired at Haji Abdul Rehman deceased. On receiving gunshot injuries, my deceased brother fell down with his motor-cycle to the left. I had not minutely noticed whether left leg of Abdul Rahman deceased was under the motor-cycle. However, the deceased was lying with his head on the handle of the motor-bike. Faqir Bakhsh deceased also fell down towards left side and his left leg was underneath the motor-bike. Motor-cycle remained start and the back wheel was in move. Myself reached the spot and switched off the motor-cycle after the occurrence. Rahim Bakhsh fired the second shot from the place where-from he had fired the first shot. Faqir Bakhsh deceased stood up when the third fire shot hit him on his breast. Rahim Bakhsh accused fired this third shot from the same place wherefrom he had fired the earlier two shots."

22. As against that second eye-witness P.W.6 Muhammad Bakhsh has given ocular version of the incident which is slightly different and relevant paragraph from his deposition (at page 51 of HCPB) is reproduced as under:--- "Rahim Bakhsh accused opened attack by firing at Abdul Rehman without raising any Lalkara.

Abdul Rehman deceased sustained two fireshot injuries from a distance of about 7/8 Karams.

Abdul Rehman deceased fell on the ground after receiving second fireshot on his back. At the time of receiving second fireshot, Abdul Rehman deceased was sitting on the seat of his motor-bike.

After fall of the motor-cycle, Faqir Bakhsh deceased also fell down. He was about to stand up from the ground when he received fireshot on his breast. It is incorrect to suggest that Faqir Bakhsh deceased received fireshot injury on his breast while lying on the ground with his one leg under the fallen motor-bike. The motor-bike was going towards west when they were fired at but on receipt of injuries, the motor-bike slightly turned. Again said the deceased were driving their motor-cycle from west to east and on receiving gun shot injuries, the motor-bike turned slightly towards north, Faqir Bakhsh deceased was fired at from a distance of about 6/7 Karams."

23. P.W.6 Muhammad Bakhsh further stated in his evidence (at page 53 of HCPB) that within minutes the occurrence was complete and when he reached the spot, the motor-cycle of deceased was start and no one was under fallen motor-bike. This eye-witness further made very strange disclosure to the effect that when he reached the spot he found Abdul Rehman semi- conscious whereas Faqir Bakhsh was unconscious and people enquired from Abdul Rehman about his assailants and in response Abdul Rehman disclosed the names of his assailants.

24. Complainant testified before the trial Court that after the incident and before proceeding to the police station, he had seen three empties lying at the spot. P.Ws. Muhammad Bakhsh and Amir Bakhsh remained at the spot to watch the place of occurrence, the motor-cycle and the empties.

He informed the Sub-Inspector that empties were lying at the spot. When he was confronted with F.I.R. Where he did not say about the availability of three crime empties at the spot complainant admitted that at the time of lodging of F.I.R. He had inadvertently omitted to mention this fact. As against this P.W.6 Muhammad Bakhsh took categorical stand in his evidence that he had not seen any empties or bullets lying at the spot or around it.

25. Complainant was not clear as to who died where after the incident. In his examination-in-chief before the trial Court, complainant stated that after the incident Faqir Bakhsh died at the spot whereas Abdul Rehman breathed his last in the hospital and after that he went to the police station and lodged F.I.R. In F.I.R. Exh.PC (page 119 of HCPB) it is mentioned that Faqir Bakhsh died on the way while Abdul Rehman died after reaching the hospital. In the cross-examination complainant stated that soon after the occurrence both deceased were removed to the hospital. The dead bodies were transported to the hospital in different wagons because there was no space in one wagon for placing two dead bodies. It is for that reason that two wagons had to be hired. When the attention of complainant was drawn to the inconsistency, he attempted to explain by saying that in F.I.R. He stated that both deceased expired on way to the hospital and both statements were correct as Faqir Bakhsh died while being placed in the Wagon and Abdul Rehman died in the verandah of the hospital (see page 42 of HCPB).

26. Complainant averred in his testimony before the trial Court that from hospital he rushed to the police station to lodge F.I.R. He admitted that two eye-witnesses were left behind at the spot namely Amir Bakhsh and Muhammad Bakhsh and he did not instruct any one of them to rush to the police station to file F.I.R. Without any delay. Perusal of F.I.R. Shows that it was lodged after 2-1/2 hours when distance between spot and police station was hardly three miles. This delay is inordinate and not understandable in the light of assertion made by the complainant in his deposition that he went to the police station on a motor-cycle to lodge the F.I.R. Had one of the eyewitnesses left for police station immediately after the incident to lodge the report and the report had been lodged without any delay, then such circumstances would have supported the claim of the prosecution that incident was seen by the eye-witnesses and assailants were duly identified. It may be mentioned here that both eye-witnesses left at the spot after the incident are related to the deceased persons and complainant. P.W.6 Muhammad Bakhsh is maternal-uncle of the complainant and Amir Bakhsh who is not examined by the prosecution, is real brother of deceased Faqir Bukhsh. They should be expected to be anxious to take steps to have F.I.R. Lodged promptly without any delay, if they had really seen the incident.

27. P.W.6 Muhammad Bakhsh testified before the trial Court that after the incident accused persons ran away and no one from the witnesses dared to follow and apprehend the culprits. He and other witnesses were anxious to remove the injured persons without giving them any first aid. He remained present at the spot till Sub-Inspector arrived at 11 a.m. And he was examined. This witness also claimed that co-accused Allah Wasaya fired two shots from his pistol. First shot was fired at Abdul Rehman and second shot was fired at the witnesses and on both occasions firing was ineffective. After seeing rifle P-13 minutely in the Court this witness testified that he Was unable to say whether Rahim Bakhsh had fired at Abdul Rehman with that rifle. This witness also stated in his deposition before the trial Court that after the incident he remained present at the spot while complainant Abdul Subhan went to the police station. It is not clear from the evidence of these two eyewitnesses that when incident was seen and assailants were identified why complainant had to go first to the hospital and then to the police station and if he had to do that, why did he not send one of the other eye-witnesses to the police station for prompt lodging of F.I.R. Without delay.

28. Another important factor in the evidence of the prosecution is calculated attempt to withhold from production in the Court natural witnesses, who could have seen the incident. In F.I.R. Exh.PC (page 118 of HCPB), it is mentioned that apart from complainant, incident was seen by Amir Bakhsh and Muhammad Bakhsh who were taking tea in the stall of Muhammad Ibrahim Nikri. Prosecution vide statement of counsel for the State gave up Amir Bakhsh as unnecessary. Muhammad Ibrahim alias Nikri, who is owner of the tea stall, was not named in the challan as witness by the I.O. For the reason that he was satisfied that though Nikri was present making tea but did not see the incident.

Complainant Abdul Subhan in his deposition before the trial Court was adamant in his claim that Nikri did not see the incident and did not come out when firing was made. Complainant said in his evidence that when he reached the tea stall, Ibrahim alias Nikri owner of tea stall was present and serving the customers and he had no servant. Ibrahim alias Nikri only heard the gun report and did not see the incident as he was busy in making tea for the customers. Complainant also admitted in his cross-examination that apart from eye-witnesses named by him, there were two other persons sitting in the tea stall. Complainant remembered the name of one as Pir Bakhsh Baharani but did not remember the name of the other. He was also very categorical in his claim that at the time of incident no other shop in the Bazar was open excepting the tea stall.

29. In opposition to the evidence of complainant as mentioned in the preceding paragraph, second eye-witness P.W.6 Muhammad Bakhsh deposed before the trial Court that at the time of incident, some shops were being opened and some were closed. Shops of Ahmad Bakhsh Powali, Karim Bakhsh Kumhar and Hazoor Bakhsh were also open at the time of incident. These shops were away from the place of incident. However, from the tea stall of Nikri, shops of Ahmad Bakhsh Powali and Hazoor Bakhsh were visible. The witness further went on to say that besides the P.Ws. And the tea stall owner, 4/5 other persons were present in the tea stall when incident took place. From those 4/5 persons who were from Village Yaroo this witness knew Pir Bakhsh Umrani, Attaullah Qureshi, Addul Haq Qureshi and Haji Khan Esani. He and other customers were sitting on mats in front of the said tea stall. After the arrival of deceased persons on the motor-cycle, firing began without any conversation between the parties. At the time of the incident he and other P.Ws. And both deceased raised alarm. Nikri was preparing tea. All the shopkeepers including Nikri on hearing rifle report scattered. This witness further stated specifically if one stood near the place where Nikri was preparing tea, the place of occurrence would come in view. He further testified that many persons from Village Yaroo had come to the place of occurrence on hearing reports of fire-arms but were running helter-skelter. All the three eyewitnesses were facing East at the time of incident and Nikri was preparing tea while standing towards East of them. On hearing reports of fire-arms the eyewitnesses rushed to the spot for rescuing the deceased while other customers did not go there and took to their heels somewhere. This witness further stated that while running to the spot complainant Abdul Subhan was ahead of this witness and direction of Amir Bakhsh was not known.

This witness further stated in his testimony before the trial Court that his house was 40 or 50 feet away from the place of incident and every morning he offered prayers in the mosque. On the day of incident so many persons were present for morning prayers and few of them had come to the stall for tea but he did not remember their names. He was unable to remember as to who offered prayers in the mosque and came to the stall of tea.

30. P.W.7 Ghulam Sarwar prepared the site plans in triplicate Exhs. P.J, P.J./1 and P.J./2 on the asking of police and at the pointation of P.Ws. In the first line of cross-examination he stated that he retired from service in the year 1980 and it was admitted by him that the site plans did not bear the date on which he prepared them. Perusal of original record shows that date of retirement in 1980 is correctly written. Incident in this case took place on 21-6-1987. One thing is very conspicuous in the site plans that tea stall of Nikri is not mentioned therein but eye-witnesses have been shown at Point No,5 at a distance of 8-1/2 feet from Point No,1 where Abdul Rehman was hit by Rahim Bakhsh for the first time by his rifle 7 MM.

31. In this context reference to the deposition of Investigating Officer is necessary. P.W.10 S.I. Liaquat Ali testified before the trial Court that he got prepared site plans by Ghulam Sarwar, retired Draftsman. When he visited the spot, the shops, the tea stall and the Bank were all open. About 30/32 persons had gathered at the spot when he reached there. Ibrahim alias Nikri was also present. He interrogated all the persons who were present but did not record their statements separately. At this stage I consider that it would be very pertinent to reproduce relevant paragraph from evidence of this I.O. (page 69 of HCPB) which shows how predetermined he was in not citing Ibrahim alias Nikri as witness in this case:- "As per statements of the P.Ws. They were present at the tea stall of Ibrahim alias Nikri at the time of occurrence. It is correct that Ibrahim alias Nikri was independent person not related to both the sides. His presence at the spot of murder was not proved during the course of investigation. It did not come to my notice that any servant of said Ibrahim Nikri witnessed the occurrence. I had interrogated so many persons at the spot but no one had stated about the presence or absence of said Ibrahim Nikri. I had seen the tea stall of Nikri from where the eye-witnesses saw the occurrence. I had not inspected the place where the stove was placed upon which the tea was being prepared by Ibrahim Nikri at the time of occurrence. I did not consider it necessary to inspect that place. It was not brought to my notice about the presence of any one besides the eye- witnesses at the said tea stall when the occurrence took place. No one told me that any shop or hotel excepting the tea stall of Nikri was open at the time of occurrence. I do not agree that recording of independent statement in detail of Ibrahim alias Nikri was essential for right conclusion of the investigation. Volunteers that he did not see the occurrence, therefore, I felt no need to examine him as proposed. My this conclusion that Ibrahim alias Nikri did not see the occurrence and was not present at the spot of murder is based on the interrogation of said Nikri who stated that he only heard about it. I interrogated Ibrahim alias Nikri on 21-6-1987. I recorded his statement jointly alongwith others and it is in the joint statement that Nikri only heard about the occurrence."

32. Record shows that this Investigating Officer was in the witness box for a pretty long time. His testimony consists of 19 full-scape pages out of which only 2 pages are examination-in-chief and 17 pages are cross-examination. I.O. Was very effectively cross-examined in detail on the point as to why he considered Nikri as not a necessary witness to be cited for the prosecution. Once again I reproduce an extract from his cross-examination to show in his own words as what he had to say:- - "It is incorrect that I have intentionally deposed falsely against my record in order to favour the prosecution. I had not examined the eyewitnesses and the complainant on the point as to whether said Nikri saw the occurrence or not. Similarly I did not inquire from them about his presence at the spot of murder at the time of occurrence. It is correct that the eye-witnesses saw the occurrence from the tea stall of said Nikri. I had not examined said Nikri to ascertain the presence of the eye- witnesses at his tea stall. I do not know that where was said Nikri at the time of occurrence. As per statements of the P.Ws. The tea stall of said Nikri was open at the time of occurrence. The P.Ws.

Further stated that they were sitting at the tea stall for taking tea. The statements of the P.Ws. Are silent about the fact whether the P.Ws. Had already taken tea before the occurrence, were taking tea at the time of occurrence or had to take tea. Similarly the P.Ws. Had not stated in their statements that Nikri was preparing tea at the time of occurrence. It is correct that these details were immaterial for the purposes of investigation. Said Iqbal Khan, Musa Khan and Abdul Rehman Israni with whom said Nikri was jointly interrogated are not the eye-witnesses of this case. As the said persons came to me jointly, therefore, I recorded their joint statement. I investigated this case and Sardar Karam Hussain Khan D.S.P. Verified my investigation. The D.S.P. Did not record the statement of said Nikri. The D.S.P. Had not interrogated said Nikri. Sardar Karam Hussain Khan D.S.P.

Has died on 14-5-1989. After recording the said joint statement of Nikri and others, I did not summon again said Nikri for interrogation. It is incorrect to suggest that the said Nikri was not supporting the present prosecution version, therefore, I deliberately avoided to record his statement under section 161, Cr.P.C. It is further incorrect that I did not record the statement of Nikri correctly in his own words and in collusion with the complainant party I recorded a fictitious statement of said Nikri in line with the prosecution case:

33. From what is stated above, it appears somehow or the other that I.O. Had made up his mind not to cite Nikri as a prosecution witness, about whom there is ample material on the record suggesting that he was a natural witness and was present at the tea stall where at the relevant time other eye-witnesses of the incident claimed to be present. Not only that but incident took place near the tea stall from where eye-witnesses could hear the reports of rifle and see the beginning of the attack. I.O. Should have recorded 161, Cr.P.C. Statement of Nikri and should have mentioned his name in the calendar of witnesses to be included in the challan. In the trial Court it was open to counsel for the State to examine this witness or not and if he decided not to examine him, then he could give reason for doing so in his statement in writing. If the reason was not acceptable to the Court, it was open to the Court to examine this witness as Court witness or even defence could have examined this witness. It is alleged by the defence that I.O. Is partisan and has obliged Sardars of Khosa tribe who are powerful and influential. I.O. Has admitted in his cross- examination (see page 65 of HCPB) that Sardar Zulfiqar All Khan Khosa, MPA and Education Minister of Punjab is chief of Khosa tribe. Irfanullah Khan Khosa, Risaldar, BMP, D.G. Khan is first cousin of Sardar Zulfiqar Ali Khan Khosa. He expressed ignorance when question-was put to him that all the Union Councils in the area were headed by Chairmen belonging to the party of Sardar Zulfiqar Ali Khan Khosa. He admitted that in the Union Council of Yaroo, Iqbal Khan Khosa was Chairman and Rahim Bakhsh Qasai was Member. He also admitted that Iqbal Khan Khosa and Moosa Khan Councillor joined the investigation of this case from complainant side. I.O. Denied the suggestion that Rahim Bakhsh accused belonged to the opposite political group of Sardar Zulfiqar All Khan Khosa. I.O. Admitted that he was commonly known as Ch. Liaquat All and Sardar Zulfiqar All Khan Khosa and other Sardars used to write letters to him in connection with different affairs.

34. It is the case of the prosecution that three letters were recovered from the pocket of one of the two deceased persons in this case and these letters marked A, B and C are placed on the record.

Letter marked A is addressed by Zulfiqar All Khosa to Sardar Karam Hussain in connection with a theft case. Letter marked B is addressed to Choudhry Saheb (S.I. Liaquat Ali) by Zulfiqar Ali Khosa in connection with investigation of a case. Both letters marked A and B are on the pad of Provincial Assembly of the Punjab. Letter marked C is addressed by Irfanullah Khan Khosa to Choudhry Saheb in connection with investigation of a case. During the cross-examination I.O. Stated that he had not received original letters marked A, B and C. Without going into the question of legal proof these letters in conjunction with cross-examination of I.O. Clearly show that he could be partisan in the investigation. From whatever evidence is covered so far and appraised as above, I have come to the conclusion that two eye-witnesses produced by the prosecution do not inspire confidence with regard to their credibility and their claim to have seen the incident is not free from doubt. Since the eye-witnesses are interested and L related to the deceased and there is also background of recorded enmity, corroboration is required from independent sources to satisfy the mind of the Court that ocular version is truthful and prosecution case is proved beyond doubt.

35. So far as motive is concerned, I would like to say that as it appears from the record, there is political rivalry between the two parties, which is so persistent that it has matured into the form of enmity. Both parties have indulged in litigation, proof of which is available in the form of criminal cases and proceedings under section 107/151, Cr.P.C. In such circumstances enmity as motive can become double-edged weapon which can cut both ways. Enmity can prompt a person to commit crime and also on the other hand can be used for false implication in the case. In the instant case on the point of enmity there is evidence of the two eye-witnesses, whose credibility with regard to the claim of seeing the incident is doubted by me. If I doubt these two witnesses as eyewitnesses, I can hardly rely upon their assertion on the point of motive as truthful because the source is not independent.

36. There is no dispute about the fact that medical evidence can provide corroboration of confirmatory nature in appropriate cases where questions involved relate to number of assailants, types of weapons used and nature of injuries. Medical evidence cannot be used as corroboration qua accused to say that such and such accused has committed crime and caused such and such injuries. In the instant case according to the prosecution case there are two accused persons Rahim Bakhsh armed with rifle and Allah Wasaya armed with revolver and there are two deceased persons about whom the doctor has stated that they died due to fire-arm injuries sustained by them. It is also the case of the prosecution that shots fired by Allah Wasaya proved ineffective and did not hit deceased persons. It is also beyond dispute that from rifle and revolver bullets are fired and from pistol and gun pellets are fired. It is the case of the prosecution that from the spot three crime empties of rifle 7 MM were seized and sealed. Ocular version is that Abdul Rehman was riding motor-cycle with Faqir Bakhsh sitting behind and when they reached the spot Rahim Bakhsh fired at Abdul Rehman hitting his breast near the shoulder. Shot fired by Allah Wasaya went amiss.

Rahim Bakhsh fired another shot at Abdul Rehman, who had fallen and the shot hit him on his back.

Rahim Bakhsh then fired straight at Faqir Bakhsh and hit him on the chest. Allah Wasaya fired shots at witnesses but could not hit. So, Rahim Bakhsh fired three shots hitting Abdul Rehman with two and Faqir Bakhsh with third. Now it is to be seen whether medical evidence supports the ocular version or contradicts it.

37. Prosecution has examined P.W.8 Dr. Ghulam Farid Medical Officer, D.H.Q. Hospital, Dera Ghazi Khan. Evidence of the doctor runs into 16 pages out of which first three pages are examination-in- chief and remaining 13 pages are cross-examination by the defence. Doctor found on the dead body of Abdul Rehman 5 injuries out of which the first four were caused by fire-arm and fifth was contusion on the forehead. Death was due to fire-arm injuries. Injury No,1 was entry wound caused by fire-arm on the chest. Injury No,2 indicated three wounds of exit at the back side of the chest.

Injury No,3 is wound of entry on the back side of upper part of the chest. Injury No,4 is three fire-arm injuries in an area of 6" x 5" on the upper arm and upper chest forming axillary wall. The same doctor conducted post-mortem examination on the dead body of Faqir Bakhsh and found one fire-arm injury on the chest and the bullet went backward on the posterior side and was recovered from under the skin. According to the doctor this bullet was put in the phial and was sealed and sent to the police with the clothes of the deceased. This bullet was not sent to the Laboratory by the police and was reportedly misplaced. However, it was produced in the Court and exhibited as P.W.8/1. Doctor was unable to explain how entry wound caused by one bullet could make three exit wounds unless pellets were used. In this context Court questions put by the trial Court about possible fragmentation of the bullet inside the body and its reply with reference to the book of Medical Jurisprudence are hypothetical in nature and do not apply to the facts of this case for the reason that it is not the finding of the doctor in this case that fragmentation of bullet took place in the human body. Finding of the doctor is as under (page No,23 of HCPB):-- "Fragmentation of bullet in the human body is rare phenomenon. If the pieces of defragmented bullets are found in the dead body, then the opinion about fragmentation can be given with certainty otherwise the medical examiner cannot give his opinion about fragmentation. In the present case, I had not found pieces of fragmented projectile in the dead body of Abdul Rehman deceased, therefore, I did not opine about fragmentation of the projectile."

38. Assertion of the prosecution that both assailants were together and fired from the same place is belied by the medical evidence showing exit wound in the dead body of one deceased and retention of bullet in the dead body of the other. In this context doctor deposed that whenever a bullet remains in the body, it gives rise to two possibilities which are either the victim is fired at very long distance or there was external resistance in the body relating to the bullet. Doctor expressed the view that the shape and dimension of entry wounds on the person of Abdul Rehman were different from that of Faqir Bakhsh and was unable to say whether Faqir Bakhsh and Abdul Rehman sustained injuries from two different fire-arms and places away from each other. Noticing disparity on comparison of size of bullet P.W.8/1 and mouth of barrel of rifle P-13 the doctor opined that he could not say whether the said bullet was fired from rifle P13 or not. The doctor also stated in the trial Court that if wounds of Exit Nos.2 and 4 of the body of Abdul Rehman deceased are kept in view the possibility of use of shotgun .12 bore cannot be ruled out. Further, if entry wounds alongwith exit wounds are kept in view jointly, there is possibility that these injuries could have been caused with rifle. The doctor also noticed in the trial Court that phial containing bullet Exh. P.W.8/1 produced in the Court was not sealed as sent by him. Doctor also observed that bullet Exh.P.W 8/1 was bigger in size and length than that of bullet of 7 MM rifle. Medical evidence discussed above clearly shows that it does not support ocular version but contradicts and belies it. If medical evidence leaves room for doubt, the benefit of that doubt should go to the accused and not to the prosecution.

39. So far evidence of recovery of crime weapon and empties is concerned, reference can be made to Memo. Exh. P.D. (page 124 of HCPB) showing seizure of three crime empties from the spot.

Vide Memo. Exh.P.G. (page 127 of HCPB) rifle 7 MM and five cartridges were recovered from Rahim Bakhsh. Rifle stood licensed in his name. Likewise revolver was recovered from acquitted co- accused Allah Wasaya. Strangely enough Investigating Officer made these recoveries in presence of two eye-witnesses namely complainant Abdul Subhan and Amir Bakhsh son of Muhammad Bakhsh. Both these eye-witnesses signed recovery memos. Exhs. PE, PF (of motor-cycle), PG (of rifle) and PH (of revolver). Recoveries were proved through complainant Abdul Subhan and the other recovery witness Amir Bakhsh was not examined and was given up as unnecessary by counsel for the State vide his closing statement (page 18 of HCPB). Joining eye-witnesses, who are closely related to the deceased, in the investigation of the case as recovery witnesses does not demonstrate independent and impartial attitude of the Investigating Officer, who is required under the law to use witnesses who are not related to the parties in the case. Impact of this legal lapse does not decrease on account of the fact that crime weapon was recovered which was licensed. In this context Rahim Bakhsh in his statement under section 342, Cr.P.C. Stated that rifle P13 produced in the Court was not his licensed rifle. Police recovered only five bullets from him and his licensed rifle could not be recovered as it was not in working condition. Police procured another rifle and put number on it after consulting licence book. There is no gainsaying about the fact that Rahim Bakhsh was unable to substantiate his plea and prove tampering of rifle by the police because burden on the prosecution to prove the case against accused beyond doubt does not shift to the accused. Accused may take any defence plea or not or may take a false plea but that would not reduce the burden of the prosecution to prove its case beyond doubt. The question is why recovery witnesses were not taken from the locality who were independent persons. Prosecution case is that rifle was produced by Rahim Bakhsh from his house situate in Village Yaroo.

40. P.W.5 Abdul Subhan complainant who is also witness of recovery of rifle stated in his cross- examination before the trial Court that in Village Yaroo lived 8,000 to 10,000 persons. Recovery of rifle was made on 30-6-1987 and complainant has explained in the cross-examination that because recovery was made at 3-45 a.m. And at that time no person from public accompanied the police party so he and Amir Bakhsh were summoned from their house and joined as witnesses for arrest of Rahim Bakhsh and recovery of rifle from him. If that was so then why at the time of recovery of crime empties from the spot also same two witnesses, who are related to the deceased, were used and not anybody else from public. Moreover, I.O. Has not explained that even at that odd hour he tried to get independent witnesses from the locality but nobody was prepared to come forward. On the other hand there is admission of complainant Abdul Subhan in his cross- examination (page 45 of HCPB) that house of Rahim Bakhsh is surrounded and inhibited by other houses and police did not summon any other persons from vicinity to witness the recovery proceedings. It would be worthwhile to produce an extract from the evidence' of I.O. On the point which is as under:-- "The rifle P.13 was recovered early in the morning, however, after sunrise. I did not summon any independent and respectable person from the locality to witness the recovery proceedings about rifle P.13. The recovery witnesses were already with me and I do not remember from which place they joined the investigation. The recovery witnesses were relieved from the place of recovery after effecting the same. Both the recovery witnesses are close relatives of the deceased."

41. There appears to be a great deal of confusion about how and when sealed parcels were made and sent to the Laboratories from the police station.

' Record shows that three crime empties were recovered from the spot and put into a sealed parcel vide Memo. Exh.PE on 21-6-1987. P.W.1 Muhammad Saqlain F.C. Deposed before the trial Court that on 24-6-1987 he received a sealed parcel containing three empties from Gul Muhammad Muharrar H.C. Of P.S. Batil for onward transmission to the office of S.P. Technical Services Lahore. P.W.9 GuI Muhammad A.S.I. Deposed that on 24-6-1987 he was Muharrar H.C. Of P.S. Kot Mubarak (Batil) and had received sealed parcel containing empties from Sub-Inspector and kept the same intact in the Malkhana. On the same day he delivered the sealed parcel to Muhammad Saqlain Constable for onward transmission to the Forensic Science Laboratory. P.W.10 Liaquat All S.I. Has deposed that on 21-6-1987 he recovered three crime empties from the spot vide Memo. Exh.PE and put them into a sealed parcel. Now the question arises as to where was this parcel containing three crime empties for 3 days from 21-6-1987 to 24-6-1987 when it was deposited in Malkhana. Did it remain with the I.O. For 3 days? In any case no explanation is available on the record as to where this parcel was from the date of sealing up to the date when it came to Malkhana. This is a serious lapse in the prosecution, which cannot be brushed aside lightly.

42. Another intriguing feature of this case is that on 21-6-1987 after the post-mortem examination the doctor sent a bullet recovered from the dead body of Faqir Bakhsh alongwith his clothes. He put the bullet in a sealed phial and sent it through P.W.4 Muhammad Ismail Constable, who has deposed that he handed over the phial to the I.O., who took the same vide Memo. Exh. P.B. Which is dated 27-6-1987. Where was this sealed phial for 6 days when postmortem examination was performed in D.H.Q. Hospital, Dera Ghazi Khan and the police station is also in the same district? I.O.

Insisted in his deposition that he had directed the Muharrar to send the said sealed phial to the Forensic Science Laboratory. Muharrar was examined as P.W.9 and he has denied having received sealed phial containing bullet from S.H.O. Alongwith clothes of deceased. He has accounted for 5 empties out of which three were in one parcel recovered from the spot and two came alongwith revolver. He denied knowledge about jacketted bullet. Likewise I.O. Also denied emphatically having taken into possession jaceketted bullet or sending it to Forensic Science Laboratory for comparison.

43. Report Exh.P.Q. Of Fire Arms Expert (page 27 of HCPB) shows that in one parcel there were three crime empties of 7MM bore and in second parcel there was rifle 7 MM, one crime jacketed bullet, one revolver .32 bore and two crime empties. Now important question arises as to from where this crime jacketted bullet has come? Is it the same bullet recovered by the doctor from the dead body of Faqir Bakhsh and sent in a sealed phial to the police? There are no answers provided by the prosecution of these questions. Doctor while deposing in the Court expressed doubt whether bullet was same as sent by him in the phial. There is no need of devoting more time to this jacketted bullet because the finding of Fire Arms Expert is that this jacketted bullet lacked sufficient data, hence it was not possible to express an opinion whether the same was fired from rifle 7 MM bore or not. It will suffice to say that the manner in which investigation of this case was conducted was far from satisfactory and did not fulfil legal requirements.

44. For all what is stated above, I am of the view that this is a fit case in which it can be said that prosecution has failed in its duty to prove the case against respondent Rahim Bakhsh beyond doubt. The most important piece of evidence in the case is ocular but the two eye-witnesses produced by the prosecution are interested and closely related to the deceased persons and their evidence is to be considered in the background of recorded enmity. There are so many discrepancies and lapses in the evidence of the eye-witnesses that impression is unavoidable that they have not seen the incident and are set up witnesses. Natural eye-witnesses including Ibrahim alias Nikri have not been produced by the prosecution. Remaining pieces of evidence do not and cannot provide corroboration of the nature required to satisfy the mind of the Court that eye- witnesses had seen the occurrence and had spoken the truth. Motive, medical evidence and recovery of weapons and empties with positive finding of Ballistic Expert are all defective and tainted pieces of evidence which cannot be relied upon to support conviction on a capital charge.

It is well-established rule now that one tainted piece of evidence cannot support or corroborate another tainted piece of evidence. Two persons were put on trial and the trial Court has already acquitted one accused after analysis of the evidence produced before it. It is almost the same evidence which is to be evaluated in respect of the other accused who is respondent No,1 before us. For facts and reasons stated above, I hold that prosecution has failed to prove its case beyond doubt and benefit of doubt is to go to respondent No,1 Rahim Bakhsh. Resultantly appeal is dismissed and impugned judgment of High Court granting acquittal is upheld.

' ORDER OF THE COURT ' By majority the appeal is allowed. Judgment of the High Court is set aside and the judgment of the trial Court, convicting the respondent under section 302, P.P.C., is restored. The respondent is directed to be hanged by the neck till he is dead. The other sentence of fine imposed by the trial Court on the respondent is also restored, so also the direction by the trial Court that a sum of Rs,40,000 out of fine amount, if recovered, be paid as compensation to the legal heirs of the deceased in equal share, stands restored.