ZIA MAHMOOD MIRZA, J---This appeal by leave of the Court is directed against the judgment of High Court of Baluchistan, Quetta dated 9-9-1991 whereby the appeal filed by the present appellants against their convictions and sentences recorded by the trial Court was dismissed.
2. The appellants Wahid Bukhsh, Muhammad Rahim alias Rahim Bukhsh (hereinafter called Rahim Bukhsh) and Hussain Bukhsh were put on trial on the charge of committing the murder of Niaz Ali and Mst. Shafi. Additional Sessions Judge, Usta Muhammad by his judgment dated 21-6-1990 convicted all the three appellants under section 302/34, P.P.C., sentenced Wahid Bukhsh and Rahim Bukhsh appellants to life imprisonment and fine of Rs.5000 each and Hussain Bukhsh appellant to 7 years R.I., and fine of Rs.1000. The appellants were also given the benefit of section 382-B, Cr.P.C.
3. The convicts preferred an appeal (Cr.A. 31 of 1990 in the High Court of Baluchistan which as stated above was dismissed vide the impugned judgment. Learned Judges of the High Court upheld the conviction of Wahid Bukhsh and Rahim appellants under section 302, P.P.C., for causing the murder of the to deceased persons and maintained their sentences awarded by the trial Court but as regards Hussain Baksh appellant, the learned Judges held that in view of medical evidence, he "cannot be found guilty for causing murder" though it was found that he had abetted/facilitated the commission of murder of Niaz Ali and Mst. Shaft "in furtherance of common intention with co- accused persons." It was accordingly observed that the sentence awarded to Hussain Bakhsh by the lower Court was not commensurate with the gravity of the offence for which he was charged.
Nonetheless, his sentence was maintained as neither the State nor the complainant moved the Court for enhancement of his sentence.
4. Case of the prosecution as set out in the impugned judgment of the High Court is that "on 28-12- 1987 al 9-10 a.m., the complainant Manzoor Ali (P. W.1) and his brother deceased Niaz Ali were present in their "Otak" in Goth Zulfiqar Ali Jamah when Hussain Bukhsh accused came there and asked the deceased to accompany him to his house in order to repair electric connection which had gone out of order, on this deceased with aforementioned accused left for his house, the complainant also followed them, as soon as they reached near heap of "Plal", accused Wahid Bakhsh and Rahim Balchsh emerged there and as they were armed with shot guns therefore opened fire at Niaz Ali resulting in his instantaneous death, in the meanwhile Hussain Bakhsh accused dragged out Mst shafi wife of his brother Amir Bakhsh from her house and other to accused persons also tired at her, resulting in her death. All the accused persons left the place of occurrence declaring that they had committed murder of both the deceased on account of "Siakari"."
The incident was also stated to have been witnessed by Gul Hassan P.W.2, Mst. Amiran P.W ,3 and Didar Ali P.W.6, The move for committing the murder of Niaz Ali deceased set up by the prosecution was that he was not obeying the dictates of the appellants as "Motbars". The incident was reported by the complainant at Police Station, Usta Muhammad which is situated at a distance of 14/15 miles from Goth Zulfiqar Ali Jamali.
5. After completion of usual investigations, all the three appellants were challaned. Prosecution sought to prove its case at the trial by producing ocular evidence, medical evidence and the evidence of recoveries. Ocular testimony was furnished by Manzoor Ali complainant/P.W.1, Gul Hassan P.W.2, Mst. Amiran P.W.3 and Didar Ali P.W.6. Didar Ali P.W., also proved the recovery of crime empties from the spot while Muhammad Sudheer Constable, P.W.5 testified to the recovery of a shot-gun and a licence from Wahid Bakhsh appellant and Abdul Razzaq Constable appeared as P.W.9 to prove the recovery of a shot-gun and a licence from Rahim Bakhsh. Rashid Ahmed Head Constable P.W.7 deposed about the recovery of hatchet from Hussain Bakhsh appellant. Jamil Asgher S. H. O. Who had conducted the investigation appeared as P.W.10.
6. The appellants in their statement under sections 342 and 340(2), Cr.P.C. Denied the charge levelled against them and stated that they were implicated in the case falsely. They also produced in their defence Ghulam Rasool and Muhammad Malook who were the witnesses of recovery of shot-gun and the liceneces but were given up by the prosecution. Appearing as P.W.1 and D.W.2, they denied that any shot-gun was recovered from Wahid Bakhsh and Rahim Bakhsh accused in their presence.
7. Leave to appeal ,was granted in this case on a petition received from Jail. Leave-grant order is reproduced herender in extenso:- "The prosecution has relied upon the evidence of Eye-witnesses, who are inter se related and were also related to the deceased. Besides that reliance was also placed on motive and recoveries of to licensed guns and empties. Ballistic Experts report (which is positive). The motive has not been relied upon by the High Court. D.Ws. 1 and 2 Ghulam Rasool and Muhammad Malook who were listed as the witnesses to the, recoveries by the prosecution were given up, but they were examined as Defence witnesses who supported the defence. Since there is no independent Eye-witnesses, in my view the case requires re--examination. "
8. Learned counsel appearing for the appellants has vehemently contended that all the eye- witnesses were closely related to the deceased and, therefore, their evidence could not be relied upon without independent corroboration which was not forthcoming. He has also submitted that the site plan Exh.PO was defective. It was also contended that the empties said to have recovered from the spot were not consistent with the medical evidence. Learned counsel argued that the recovery of shot-guns was belied by Ghulam Rasool and Muhammad Malook who were cited by the prosecution as witnesses of recovery but were given up and they appeared as D.Ws. And denied the factum of recoveries in question. Learned counsel also assailed the recovery of shot- gun from Rahim Bakhsh by pointing out that Abdul Razzaq P.W.9 was unable to identify Rahim Bakhsh as the person from whom shot-gun was recovered.
9. We have considered the submissions of the learned counsel for the appellants and find no substance in them. It is true that the eye-witnesses were closely related to the deceased but there is nothing on the record to show that they were inimically disposed towards the appellants. That being so, they cannot be said to be interested witnesses whose testimony would require independent corroboration. It is by now a settled proposition that testimony of a witness related to the deceased is not to be discarded merely because of his relationship the deceased because lie would not normally allow the real murderer to escape by implicating an innocent person. Eye- witnesses in the present case are not shown to have any reason for falsely implicating the appellants. Their evidence, therefore, did not require independent corroboration. Be that as it may, participation of to of the appellants namely Wahid Bakhsh and Rahim Bakhsh finds enough corroboration from the positive report of the Ballistic Expert showing that the empties collected from the spot were fired from the shot-guns recovered from the said appellants. Needless to observe that the recovery of shot-guns though denied by the public witnesses has been amply proved by the police officials whose testimony has been accepted by the Courts below for good reasons. Mere fact that Abdul Razzaq P.W.9 was unable to identify Rahim Bakhsh appellant in Court would not render the recovery doubtful more so for the reason that the gun recovered from Rahim Bakhsh was licensed in his name. As regards the objection of the learned counsel with respect to the site plan, suffice it to observe that the original site plan was shown to him and he was unable to point out any defect or deficiency therein.
10. Before concluding, we would like to observe that the learned trial Judge having found Hussain Bakhsh appellant also guilty under section 302, P.P.C., acted wholly illegally in awarding him only 7 years imprisonment. This was not a legal sentence. The learned Judges of the High Court also took note of this illegality but maintained the sentence awarded to Hussain Bakhsh appellant for the reason that neither the State nor the complainant moved for the enhancement of the sentence.
Before us also, no one has taken any exception to the sentence awarded to Hussain Bakhsh appellant nor was leave granted to examine this question. In the circumstances, we do not feel inclined to interfere in this matter.
11. Upshot of the above discussion is that we find no merit in this appeal which is accordingly dismissed.