' SALIM DIL KHAN, J.--- There are four appellants, namely, Haider Zaman, Akhtar Nawaz, Masood and Aslam, who have assailed the judgment and order of conviction, dated 20-10-1991 passed by learned Additional Sessions Judge-I, Haripur, by way of preferring this appeal to this Court. These appellants were tried by the learned Additional Sessions Judge-I, Haripur alongwith equal number of other co-accused, named. Muzaffar, Mir Afzal, Riasat and Muhammad Bashir under section 302/307/148/149, P.P.C. In Sessions Case No,28/8 of 1990. On conclusion of the trial, the learned trial Court, while extending benefit of doubt, acquitted co-accused, Muzaffar, Mir Afzal, Riasat and Muhammad Bashir but accepted the prosecution evidence against the present appellants and convicted them under section 302, P.P.C. However, the learned trial Court held that appellants Haider Zaman, Akhtar Nawaz, Aslam and Masood were attributed distinct roles of firing on each deceased and, therefore, they were responsible for the individual act committed by each one of them. On the basis of this finding, each of the appellants was individually convicted under section 302, P.P.C. And were awarded sentences as under:--
(1) Haider Zaman appellant was convicted under section 302, P.P.C. And sentenced to death for causing the murder of Zulfiqar deceased and was also sentenced to a fine of Rs,50,000 or in default of payment of fine to 5 years' R.I.
(2) Akhtar Nawaz appellant was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs,50,000 or in default of payment of fine to 5 years' R.I. For causing the murder of Nisar Ahmad.
(3) Both Masood and Aslam appellants were convicted under section 302, P.P.C. Separately and sentenced to death and a fine of Rs,50,000 each or in default of payment of fine 5 years' R.I. Each for causing the murder of Jawaid Iqbal.
' In addition, it was ordered that the amount of fine, if recovered, shall be paid to the legal heirs of the deceased as compensation.
2. Alongwith this Criminal Appeal No,44 of 1991, a Reference No,2 of 1992 was sent to this Court by the learned trial Court for confirmation of death sentence under section 374, Cr.P.C. Similarly, there is also Criminal Revision No,51 of 1991 filed by Muhammad Banaras for award of enhanced compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And there is yet another Criminal Revision bearing No,52 of 1991 with the prayer that the order of acquittal of the four co-accused may be set aside. We propose to decide all these four matters by our single consolidated judgment.
3. The prosecution story, as revealed in the F.I.R. And adhered to by the witnesses during the trial, is that on 6-3-1990 Khalid P.W.10 fell in a quarrel with one Amjad son of Haider Zaman appellant at Hassan Abdal and apprised his father Banaras Khan and other relations of the said quarrel on return to his village. The father of Khalid summoned Mehboob Khan P.W.8 and Muhammad Anwar P.W.9, Jawaid and Nisar and asked them to go to Rawalpindi an inform his other son, namely, Zulfiqar about the quarrel at Hassan Abdal, and accordingly they arrived at Rawalpindi and posted Zulfiqar details of the quarrel referred to above. After doing the needful, they alongwith Zulfiqar and Nisar deceased and Jawaid Iqbal started back to Village Pedian in a Suzuki Carry bearing No,Karachi 291-606. When they turned on the Katcha Road leading to Village Pedian they proceeded for some distance and on the curve in the road they saw one Bashir son of Rahim Dad seated in driver seat of a white Suzuki Pick-up. On approaching the said Suzuki they saw appellant Haider Zaman alongwith Nawaz, Masood, Mir Afzal, Muzaffar, Riasat and Aslam alighting from the said Suzuki. Haider Zaman appellant signalled the complainant Mehboob Khan Py.8 and the deceased to stop their vehicle which they accordingly did. At that time, Haider Zaman was armed with a .12 bore pistol and so were Masood and Akhtar Nawaz appellant with similar firearm, while Mir Afzal acqUitted accused. Carried a .7 m.m. Rifle and Muzaffar, Riasat acquitted accused and Aslam appellant were armed with .12 bore shot guns. Zulfiqar deceased got down from the Suzuki Carry had a talk with Haider Zaman appellant and then the latter fired at him effectively with .12 bore pistol. On so seeing, Nisar deceased also came down from Suzuki Carry, but Akhtar Nawaz appellant fired at him with his .12 bore pistol. Likewise when Javed Iqbal deboarded, he too was fired at, hitting him on right eye, followed by Aslam appellant injuring him on his abdomen with their respective shotguns with fatal result. However, complainant Mahboob P.W.8 and Anwar P.W.9 managed to make good their escape from the spot and while they were fleeing towards their village, shots were showered on them but went amiss. The complainant and his surviving companions distinctly identified the assailants in the light of the headlights of the vehicle and also the moonlight. On reaching their village they informed their relations and then came back to the spot and then made way for police station to lodge the report. While, on way, they met Qazi Ghulam Asfia, S.H.O. Police Station Kot Najibullah P.W.12 near the check post barrier and Mehboob lodged the report Exh.PA./1. This report was recorded in shape of Murasila and was sent' to the police station where it was incorporated in the F.I.R. Exh.PA. By A.S.I. Muhammad Aslam P.W.1 then Muharrir Police Station.
4. After recording the report Exh.PA./1 Qazi Ghulam Asfia P.W.12 proceeded to the spot where he prepared the injury sheets and inquest reports of all the three deceased and then sent the dead bodies to the mortuary for post-mortem examination. Thereafter, he inspected the scene of occurrence and prepared the site plan Exh.P.W.12/1. During the spot inspection, he also took into possession one empty shell P.1 lying near the dead body of Zulfiqar, another empty shell P.2 lying close to the dead body of Nisar Ahmad and one other empty shell P.3 from near the dead body of Jawaid Iqbal. Two cardboard disks Exh.P.4 were also recovered and taken into possession by him from near the dead body of Nisar Ahmad. The Suzuki Carry bearing Registration No,291- 606/Karachi which was in the use of the deceased was also taken into possession by S.H.O. He found blood on the three places where the three deceased were allegedly lying and took into possession the blood-stained earth therefrom. The blood-stained earth was packed and sealed on the spot in presence of the marginal witnesses vide recovery memo. Exh.P.W.6/1. He raided the house of Haider Zaman appellant where he found one Suzuki Pickup having Registration No,MA-2171 parked in the courtyard of his house. On search of Suzuki Van, the S.H.O. Affected recovery of two card board disks Exh.P.4 from the switch-board and an empty shell of .12 bore Exh.P.6 from the floor thereof. After the post-mortem, the doctor had sent through F.C. Muhammad Anwar P.W.2 the blood-stained clothes of all the deceased which were produced before the S.H.O. Who took them into possession and sealed them in separate parcels. The S.H.O. Also took into possession three bottles sent by Doctor, containing bullet lead. He prepared a proper sketch Exh.P.W.12/2 in respect of the place of recovery of the Suzuki Van bearing No,MA-2171. He arrested the accused and interrogated them. On 15-3-1990 Muhammad Aslam appellant pointed out the place where he had concealed the crime weapon and he led the police party to the said place and got recovered a .12 bore shotgun bearing No,158645 from a bush "Berry". This firearm Exh.P.16 was accordingly taken into possession by the S.H.O. On the same day Haider Zaman appellant also led the police party to the recovery of a .12 bore pistol a crime weapon Exh.P.14. Similarly Akhtar Nawaz appellant, while in custody, also led S.H.O. To the fields belonging to one Ahmad Khan and therefrom got recovered a .12 bore pistol Exh.P.15. The S.H.O. Prepared the sketch of the places of these recoveries in the shape of Exh.P.W.12/3. On 25-3-1990 one Sarfraz son of Ghulam Hussain resident of Plasar of Police Station Hassan Abdal produced one registration copy Exh.P.17 pertaining to Suzuki No,MA-2171 and also a driving licence in the name of Bashir accused which has been placed on record as Exh.P.18 vide recovery memo. Exh.P.W.11/1. The local police had sent the crime weapons and empty shells referred to the Forensic Science Laboratory through applications Exh.P.W.12/7 and Exh.P.W.12/8 respectively. The blood-stained earth was also sent through the same application for chemical analysis. The reports of the Chemical Examiner and that of the F.S.L. Were received and placed on file as Exh.P.W.12/10 and Exh.P.W.12/11 respectively. After recording the statements of the P.Ws. And completion of the investigation, the challan against the accused was submitted to the Court concerned.
5. Autopsy on the three deceased was conducted by Dr. Iftikhar Ahmad Khan P.W.5, Medical Officer, Rural Health Centre, Kot Najibullah. He has testified that on 7-3-1990 at 8-30 a.m. He performed P.M.
Examination of Nisar Ahmad and found the following:-- ' External ' Stout.
(1) Fire-arm entrance wound of the size of 2" x 2" entering into the neck on left side.
(2) Fire-arm exit wounds five in number each of them 1/2" x 1/2" on right neck continuous with injury No,1.
' Internal ' Oesophagus injured. Stomach healthy and contained liquid food. Bladder healthy and contains small amount of urine. Trachea injured. Neck muscle injured. Neck muscles and bones injured.
' In his opinion, the cause of death was on account of shock and haemorrhage due to the injury to the neck vessels, oesophagus and trachea by fire-arm means. Five copies of post-mortem report, blood-stained clothes, two pellets recovered from neck muscles weighing 6.5 grams were handed over by him to the police. According to him, the probable time that elapsed between injury and death was instantaneous and between death and post-mortem 6 to 12 hours. The post-mortem report alongwith pictorial consisting of five pages Exh.P.W.5/1 were in his writing and bore his signature correctly. The inquest report Exh.P.W.5/2 and injury sheet Exh.P.W.5/3 were also signed by him.
' On the same day at 10 a.m. He also performed post-mortem examination of Jawaid Iqbal and found the following injuries:-- ' External appearance:-- Stout External injuries:
(1) Fire-arm injury to right side skull with skull depressed, eyeball depressed, face skeleton depressed with bleeding from right ear.
(2) Fire-arm entrance wounds 9/10 in number each of size 1/2" x 1/2" on right loin with charring around and corresponding cuts on shirt, Banyan and Shalwar.
(3) Fire-arm entrance wounds 2 in number each of size 1/2" x 1/2" on back and medial side of right forearm upper 1/3".
(4) Fire-arm exit wounds two in number in front and medial of right forearm upper 1/3 continuous with number 3.
' Internal injuries:- ' Skull fractured, brain injured, abdominal wall injured, stomach healthy and containing liquid food, small intestine injured, large intestine injured, liver, spleen kidney and bladder injured. In his opinion, the death was the result of shock and haemorrhage by direct injury to kidney, intestine, spleen, liver by fire-arm and also injury to the skull. Dead body alongwith six copies of postmortem report, blood-stained clothes, shirt, Shalwar and Banyan alongwith six pellets extracted from abdomen weighing about 20-45 grams were handed over by him to the police. According to the doctor, the probable time that elapsed between injury and death is instantaneous and between death and post-mortem 6 to 12 hours. The post-mortem report Exh.P.W.5/4 (six sheets) is in his handwriting and bears his signature correctly. The inquest report Exh.P.W.5/5 and injury sheet Exh.P.W.5/6 were also endorsed by him.
' On the same date at 9 a.m. He performed post-mortem examination on the dead body of Zulfiqar and found the following injuries on external examination:-
(1) Fire-arm entrance wound 8 in number in an area of about 8" x 4" on back of right loin each 1/2" x 1/2" with charring around corresponding cut in shirt, sweater and Jarsi.
(2) Fire-arm exit wounds three in number about 4" apart from each other in front of left abdomen with corresponding cut on shirt and sweater.
' On internal examination, the doctor found abdominal wall and peritoneum injured, stomach healthy and contained liquid food, sma ll intestine, large intestine, liver, spleen and kidneys injured.
Bladder healthy and contained small quantity of urine. In his opinion the cause of death was on account of shock and haemorrhage due to the injuries to intestines, kidneys, liver, and spleen by fire-arm. The doctor handed over the dead body alongwith bloodstained clothes, shirt, Banyan and Jarsi having corresponding cut marks alongwith five copies of post-mortem report and one pellet weighing about 3.77 grams recovered from abdominal cavity to the police. The probable time that elapsed between injury and death immediately and between death and postmortem 6 to 12 hours.
The post-mortem report Exh.P.W.5/7 is in his handwriting and bears his signature correctly. Inquest report Exh.P.W.5/8 and injury sheet Exh.P.W.5/9 were also correctly endorsed by him.
' The doctor further opined that injury on the person of Nisar i,e, No,1 and injuries Nos.1 and 2 on the person of Jawaid and injury No,1 on the person of Zulfiqar were sufficient in ordinary course of nature to cause their death. The other injuries on the person of Jawaid Iqbal were contributory in causing his death. The above-mentioned documents were correctly signed by him.
6. Muhammad Anwar F.C. No,704 P.W.2 had escorted the three dead bodies from the spot to the mortuary and after the post-mortem examination received the clothes and the three bottles from the doctor which he handed over to the Investigating Officer on the spot. Malik Mumtaz P.W.4 had identified the dead bodies of the three deceased at the time of post-mortem examination.
Muhammad Saeed, I.H.C. P.W.3 is marginal witness to the memo. Exh.P.W.3/1 through which the revenue papers were taken into possession by the Investigating Officer Malik Ghulam Murtaza P.W.6 was present with the Investigating Officer during the investigation and in his presence the Investigating Officer recovered blood-stained earth from the spot, three empty shells of .12 bore, two cardboard disks and these articles were packed and sealed in separate parcels in his presence. This witness has also testified that the recovery memo. Exh.P.W.6/1 correctly bears his signature. The Suzuki Carry Van was also taken into possession by the Investigating Officer in presence of this witness. The Suzuki recovered from the house of Haider Zaman appellant was also recovered in the presence of this witness and he has also witnessed the recovery of two cardboard disks and one empty shell from the said Suzuki. This witness has stated that he is one of a respectable of Mota Village and was elected as Councillor. Muhammad Anwar son of Mir Dad, Caste Gujjar P.W.7 is witness to the recoveries of the crime weapons on the pointation of Haider Zaman appellant, Akhtar Nawaz appellant and Muhammad Aslam appellant. This witness has deposed that the said recoveries were made on the voluntary pointation of the accused- appellants and he has also confirmed the correctness of the recovery memo. Made in this behalf.
All Asghar P.W.11 is witness to the recovery of registration copy pertaining to Suzuki Pick-up No,MA- 2171 and driving certificate of Bashir son of Roshin Din accused. Khalid Mehmood son of Malik Banaras Khan P.W.10 has been examined to prove the motive because he is the person who had quarrelled with the son of Haider Zaman appellant at Hassan Abdal.
7. The appellant professed innocence, repudiated the prosecution allegations and ascribed the case to enmity. No specific plea was taken up by them nor have chosen to adduce any evidence in defence.
8. The learned trial Court convicted the present appellants on the basis of ocular account given by two eye-witnesses, namely, Mehboob P.W.8 and Muhammad Anwar P.W.9, medical testimony, circumstantial evidence comprising of the recovery of empties from the spot and as also of empty and cardboard from the Suzuki Pick-up used by the appellants at the time of occurrence, together with that of pistols and gun at the pointation of Haider Zaman, Akhtar Nawaz and Muhammad Aslam appellants and motive of previous enmity between the rival parties. Consequently the appellants have been sentenced to death in view of absence of any extenuating circumstance in their favour, while the rest of their confederates were acquitted as already stated.
9. The learned counsel for the appellants has assailed the impugned judgment on the grounds next to be set forth.
(1) There is inordinate delay in lodging the report and in the absence of any accessible explanation it must be inferred that the complainant has utilized the intervening period to fabricate a story and to ascribe particular part to each culprit after deliberation and consultation.
(2) The delay thus caused demonstrates that the eye-witnesses were not present at the time and place of occurrence and they have been procured subsequently and planted in the going transaction to secure conviction.
(3) There is conflict between the medical evidence and ocular account and this circumstance alone is enough to discard the version offered by eye-witnesses:
(4) There is no independent corroboration of the version offered by eyewitnesses who are inimically disposed towards the accused. The recoveries of various fire-arm affected in this case are false and fictitious and do not furnish corroborative piece of evidence of distented account of occurrence.
(5) The alleged tragedy was enacted in pitch darkness and it was well-nigh impossible to identify each accused and observe the role ascribed to them individually. They have been charged at random with the result that four of them have been acquitted and the same evidence is hardly convincing to secure the conviction of the appellants.
10. Let us examine how far these contentions are worthy of acceptance and to what extent. We start to consider the question of delay in matter of lodging the report. The F.I.R. Vividly indicates that the occurrence took place at 23-45 p.m. While the report was made to police at 4-30 a.m. The same night. The time between the occurrence and the lodging of the F.I.R., when computed, comes to 4 hours and 45 minutes and the report was made near the tube-well situated at a distance of about 2/3 furlongs from the scene of occurrence. Ostensibly, there appears that the report has been delayed. But, the prosecution story, as it advances, explains this factor of delay quite plausibly and in a reasonable manner in the background of occurrence. According to the prosecution, the deceased party was waylaid at mid-night on the "Katcha" road leading to their Village Pedian and three, out of them, were murdered right before their eyes and they were also fired upon ineffectively. We find ourselves in agreement with the prosecution that in the circumstances of the case it was quite natural for the complainant and the eye-witnesses to have preferred to run for their lives in the first instance and then to think about setting in motion the process of law against the assailants. In the present case, right from the F.I.R. Down to the last statement recorded on behalf of the prosecution, it has been explained that after the occurrence the complainant and the P.Ws. Concealed themselves in the dark of the night for reason of safety and then stealthily made way to their village Pedian, situated at a distance of three and a half miles from the scene of occurrence. On reaching the village, they informed their other relations and returned to the scene of occurrence where they found the dead bodies of the three deceased and thereafter they proceeded to the police station to make a report.
11. Closely allied with the above narrative, is an important circumstance which lends support to the explanation of the prosecution that the scene of occurrence is situated in the territorial jurisdiction of Police Station Kot Najibullah while Village Pedian is located in the territorial jurisdiction of Province of Punjab and Police Station Hassan Abdal. This fact must have played some part in causing delay in lodging of the F.I.R. Furthermore, delay per se is not a circumstance to destroy the prosecution case root and branch but instead it shall be seen as to whether the delay was deliberate and for gaining some benefits or otherwise. In the present case we have not been persuaded to see any such circumstances to treat the time consumed between the occurrence and making of the F.I.R. As inordinate delay resulting in concoction or giving undue benefit to the prosecution.
12. Nevertheless it is urged by defence that there was a police barrier at a distance of two furlongs from the scene of occurrence and the witnesses were required to have made report over there. For, the witnesses belonged to a village which is situated in the Province of Punjab and within the territorial jurisdiction of Police Station Hassan Abdal but we cannot presume without any plausible supporting evidence to the contrary that they were in the know that there was a police barrier of Frontier Police on the main highway at a distance of two furlongs. The defence counsel in the trial Court has also not brought on record any material which can lead us to a conclusion that, in fact, these witnesses were in the know of the existence of the aforesaid barrier. At the same time we are not unaware of the fact that instinct of self-preservation is strong upon every individual and consistently therewith the first informant and his compeers should have run for their lives instead of exposing themselves to further danger while going for report. In this setting of facts, we do not attach any importance to an incorrect statement of F.C. Muhammad Anwar P.W.2 that he alongwith Investigating Officer reached the spot at 4 a.m., especially when it is established by credible evidence of Police Officers and other witnesses that report was scribed at 4-30 a.m. a concession made by a formal witness hardly enters into consideration when it is at tangent with other reliable testimony. Likewise insignificant inconsistency with regard to the timings of arrival and departure existing in statements of constables do not throw any doubt on the material evidence relating to matter of report and time of its recording. Analysing the entire evidence on this aspect of the case, we do not discern any delay in making the report of the occurrence, rather we regard it prompt in the ambient circumstances of the case. The second limb of contention linked therewith ipso facto disappears and it logically follows that eye-witnesses were not procured but were present at the time and place of occurrence.
13. We now proceed to examine the off-repeated argument advanced by defence that conflict between the ocular account and medical evidence renders the prosecution story unworthy of acceptance. In order to appreciate this aspect of the case, it is useful to recall the manner of assault disclosed by the eye-witnesses during their examination. In substance, both Mahboob Khan P.W.8 and Muhammad Anwar P.W.9 have stated that Haider Zaman appellant while having talk with Zulfiqar deceased, initiated the attack by firing a shot with .12 bore pistol at this deceased, hitting on back and front and killing him at spot. Then Akhtar Nawaz appellant fired a shot with likewise pistol, injuring Nisar deceased on neck left side, felling him dead. Thereafter, Masood appellant fired with .12 bore pistol wounding Javed Iqbal deceased on right eye, followed by Aslam appellant, injuring him on belly; with fatal result. So far as Nisar deceased is concerned, no discrepancy is pointed out by defence in matter of situs of injury and weapon used and number of shots. As far as, attack on Zulfiqar deceased goes, it is pointed out that, while engaged in talk, he should have received injury on front and not at back. A combined study of medical testimony and pictorial does show that entrance wound on this deceased is on back of right loin but it at the same time reveals that distance between right loin and right front of abdomen is of a few inches. It is however, not rash to assume that the deceased in a moment of consternation, must have turned round, on seeing pistol aimed at him, to divert the track of firing. A human being is not immobile object but is possessed of ever changing movements of body guided by flexes of mind in risky situation confronting him. There is no indication that the deceased was pinpointed and could not move about to change direction for safety from murderous assault. The deceased has one wound of entrance and one of exit and eye-witnesses have described them as such in a simple way as a rustic villager does. Moreover it is not a case of prosecution that two shots were fired on this deceased. We do not find any conflict, so far as assault on this deceased is concerned both as regards number of shots and weapon used, locale of injuries apart.
14. However, we find some force in the plea taken by defence that role ascribed to Masood is enveloped with element of doubt inasmuch as medical evidence discloses right side skull and eyeball of Javed Iqbal deceased depressed which cannot be accomplished by a pellet or graze of a missile. The complicity of this appellant is open to doubt and his case will be further discussed in sequence. Suffice it to say here that so far as the part ascribed to Aslam appellant goes, no such suspicion arises. The shot fired by him hit the said deceased on his loin and forearm right side. A look at pictorial will at once show that right forearm in a standing position hangs on right loin in normal posture of a human being. Very naturally, Javed Iqbal facing his assailant will be hit on right loin and right forearm, if fired with a shotgun from some distance. The role attributed to Aslam appellant is compatible with medical evidence and not contrary to it, as is contended. It will have been seen that the manner of attack with attribution of one shot gun by all the appellants except Masood from their respective fire-arms as asserted by eye-witnesses is substantially corroborated by medical evidence. In this way, point No,3 raised by defence stands disposed of.
15. While dealing with point No,4, we have to see if there is further corroboration forthcoming from independent quarters. The Investigating Officer P.W.12 recovered .During inspection of spot, one empty each, Exh.P.1, Exh.P.2 and Exh.P.3 from the place where dead bodies of Zulfiqar, Nisar and Javed Iqbal were lying respectively, the blood-stained earth apart. All these empties were packed and sealed in the presence of marginal witnesses. Significantly these incriminating articles were picked up from places assigned to appellants, namely Haider Zaman, Akhtar Nawaz and Aslam.
Further Haider Zaman appellant led the Investigating Officer on 15-3-1991 to a field of one Ahmad Khan from where a .12 bore pistol Exh.P.14 was recovered at his pointation. Similarly, Investigating Officer recovered a .12 bore pistol Exh.P.15 at the pointation of Akhtar Nawaz appellant, besides a .12 bore shot gun Exh.P.16 at the pointing out of Aslam appellant. The recovery of these firearms is fully supported by Muhammad Anwar P.W.7, who is totally a disinterested witness. Nothing was extracted from him if he had a special interest in the prosecution or inimically disposed to appellants. Thus, no infirmity exists in recovery relating to fire-arms. All the above empties were found wedded with the fire-arms so recovered, by the Ballistic Expert. Likewise the blood-stained clothes and earth in case of each appellant were found of human origin and of the same group by the Chemical Examiner. In the manner thus described above, both the venue of occurrence and complicity of appellants except Masood stand established by extraneous evidence to which no taint is attached.
16. Nevertheless, to demolish the effect of the above finding, learned defence counsel has vehemently urged that empties although recovered on 7-3-1990 were not despatched to the Amrs Expert and sent after recovery of fire-arms and this delay introduces a stain in the report of expert, inasmuch as element of tampering with and substitution of empties to secure favourable result cannot be excluded. In this context, reliance is placed on a document Exh.P.W.12/D-1, which indicates that the expert did not receive empties alleged to have been sent to him on 7-3-1990 as alleged by the Investigating Officer.
17. On close scrutiny of the record we find that the Investigating Officer had recovered the empty shells from the spot on 7-3-1990 and after packing and sealing the same in the presence of the witnesses he despatched these empties to the F.S.L. With the request that these empties be kept in safe custody in the laboratory till the time when the crime weapons were recovered and sent for comparison to the F.S.L. The application of the Investigating Officer in this behalf has been exhibited in evidence as Exh.P.W.12/8, dated 7-3-1990. This request of the Investigating Officer did not find favour with the Arms Expert and, instead, he sent back these empty shells to the Investigating Officer with the direction that the same should be kept in the police station for safe custody. This direction was made on 14-3-1990 which is endorsed on Docket No,119-5A, Exh.P.W.12/8. In view of this direction by the expert the empty shells were transmitted physically back to the police station. The record further transpires that the crime weapons were recovered at the pointation of the three appellants on 15-3-1990 and were sent by the Investigating Officer to the F.S.L. For comparison with the crime empties which he had already sent. As discussed above, the crime empties were sent back to the police station as per direction of the arms expert on 14-3-1990 while the Investigating Officer, oblivious of this position, had sent the crime weapons on 15-3-1990 through docket No,147- 5A which has been exhibited in evidence as Exh.P.W.12/7. The logical result of the aforesaid position was that the crime empties reached the police station while the crime weapons reached the F.S.L.
The docket of the crime weapons Exh.P.W.12/7 contained the request that the weapons be examined and compared with the crime empties which the Investigating Officer had already sent to the F.S.L. As detailed above, the Arms Expert had already sent back the crime empties and, therefore, he was not seized of any crime empty. Obviously, he had to write that no empties were lying in safe custody with the Arms Expert and this endorsement was made on Exh.P.W.12/D-1. The record further reveals that the crime weapons were also sent back to the Investigating Officer who had already received the parcel of the crime empties which had been sent to him by the F.S.L. On 14-3-1990. It is also evident on record that after the receipt of the crime weapons the Investigating Officer again prepared necessary documents and sent the crime weapons alongwith crime empties to the arms expert for examination and comparison. The record which we have detailed in the foregoing lines fully resolves the enegmatic situation, out of which much premium was attempted to be derived by the learned counsel for the appellants. Thus, the ambiguity stands resolved and we find no defect in the prosecution evidence on this score. Thus, nothing substantial has been placed on record nor pointed out which may inject any element of taint or suspicion in the reliability of report of the Arms Expert, which, on the contrary, proceeds on credible premises.
18. As we stated above that originally eight persons were charged and put on trial by the learned trial Court but 4 of them namely Muzaffar, Mir Afzal, Riasat and Muhammad Bashir were extended the benefit of doubt because no recovery of empty shells was made from the spot nor was any fire-arms' recovery made from their possession and on their pointation. From a perusal of the record we find that the case of Masood appellant also stands at par with the case of the 4 acquitted accused. As discussed above, only three empty shells have been recovered from the spot, and, on the pointation of the three appellants namely Haider Zaman, Akhtar Nawaz and Aslam, three crime weapons have been recovered which have been found wedded with these empty shells by the Arms Expert, thereby establishing the culpability of the three appellants in the commission of the murder of the three deceased. The absence of empty from place assigned to Masood and non-recovery of any fire-arm weapon at his instance or pointation create a doubt and dent in the prosecution case regarding his participation in the occurrence. This suspicion is further deepened by the fact that the injury imputed to him as a result of shot allegedly fired by him cannot ex facie be a result of missile. Depression of eyeball and right skull could be result of fall on stoney blunt object and not the creation of a missile as already discussed above. The case of Masood appellant is governed by the same considerations which were applied to roles of acquitted accused. So extending this benefit of doubt, we hold Masood appellant not guilty of the offence charged with and acquit him. This finding does not by any means destroy the prosecution case as a whole. If five persons are acquitted on account of benefit of doubt by way of abundant caution, it does not throw any doubt in the testimony of eye-witnesses with regard to the complicity of the three appellants, when it is established by independent corroborative evidence of unimpeachable nature, though it was lacking in respect of acquitted accused, who were however not involved at random due to darkness. For, the area of occurrence was illuminated by headlight of vehicles and moonlight. Furthermore, villagers being not used to bright light have stronger eyesight than people residing in cities. The acquitted accused may have been present at the spot but mere presence not backed by any overt positive act or use of lethal weapon does not fasten guilt on them. However, fact remains that the witnesses in this case were fully aware of the features and familiar with voices of the accused known to them from before and they could make no mistake in identifying them in bright moon light supplemented by head lights of vehicles from short distance as alleged. To sum up it is not a rule of law that if benefit of doubt is extended to some culprits on account of lack of corroboration legally required, the other culprits, in whose case independent corroboration exists, should also be set free despite trustworthy ocular evidence qua them.
19. The upshot of discussion given above is, that we have no hesitation in holding that prosecution has established its case against Haider Zaman, Akhtar Nawaz and Aslam appellants beyond reasonable doubt and we maintain their conviction. The question of sentence survives to be considered. In this regard we have to go back to the origin of initial quarrel culminating in the present going transaction.
20. The prosecution has alleged the motive for the offence that Khalid son of Banaras had a quarrel with Amjad son of Haider Zaman appellant at Hassan Abdal and this information was communicated by Khalid to his father in his village. According to the prosecution, his father sent the three deceased and the P.Ws. To Rawalpindi to bring back Zulfiqar to his home. The counsel for the complainant and the learned AA.-G. Were repeatedly asked by us to explain as to what serious matter had happened of such a gravity that father of Khalid was so scared as to close down his entire family to his home; but, they could not answer this question. As a rule of common sense, this motive does not appeal to reason that mere grappling between the two young members of the rival families would be such an alarming matter that Malik Banaras father of Khalid and Zulfiqar deceased would send 5 persons after his (Banaras') son to Rawalpindi in order, to escort him back to his village. These circumstances lead us to the conclusion that the prosecution is definitely concealing some material facts vis-a-vis alleged motive attending the crime. The genesis of the quarrel is shrouded in mystery and obscurity.
21. There is some thing more to be said in the matter of sentence of death awarded to the appellants. Admittedly, there are only two eye-witnesses of the occurrence namely Mehboob Khan P.W.8 and Muhammad Anwar P.W.9. In his statement given at the trial, eye-witness Muhammad Anwar P.W.9 has stated:-- "Haider Zaman, Nawaz and Masood accused were armed with .12 bore pistol. Mir Afzal accused was armed with a seven mm rifle while accused Muzaffar, Riasat and Aslam were armed with .12 bore shot guns. The moment Zulfiqar got down from the vehicle Haider Zaman Asked from him about his son who showed his ignorance and replied to Haider Zaman that he had come from Rawalpindi."
Similarly, the other eye-witness namely Mchboob Khan P.W.8 has also spoken of some talk between Haider Zaman appellant and Zulfiqar deceased immediately before the firing. A perusal of the two statements clearly indicates that some thing serious had happened to the son of Haider Zaman appellant which is not luminous on the record of the case. Therefore, we are forced to conclude that the circumstances immediately preceding the occurrence are undisclosed and shrouded in obscurity. As a sequel to our aforesaid observations we find these circumstances sufficient for avoiding the penalty of death passed against the three appellants and, replacing the same by one of imprisonment for life.
22. Pursuant to the aforesaid discussion we accept this appeal qua Masood appellant and acquit him of the charge under section 302, P.P.C. While we dismiss the appeal of Haider Zaman, Akhtar Nawaz and Aslam and maintain the judgment and conviction of the learned trial Court to this extent but alter the penalty of death to that of life imprisonment in the case of each such appellant.
As discussed in the foregoing lines, we decline to confirm the death sentence and, therefore, Murder Reference No,2 of 1992 is answered in negative.
23. For the reasons recorded in the foregoing paragraphs of this judgment we do not find any substance in Criminal Revision No,51 of 1991 and also Criminal Revision No,52 of 1991 and, therefore, dismiss both these revision petitions.