' AMAN ULLAH KHAN, J.---Appellant Abdul Aziz was tried by learned Special Judge, Suppression of Terrorist Activities Act (S.T:A.), Quetta under sections 302 and 324, Qisas and Diyat Ordinance for committing murder of Haji Muhammad Isa and Gul Muhammad and injuring Hazrat. Vide judgment dated 15-9-1997 the learned Sessions Judge/Special Judge, S.T.A., Quetta convicted the appellant under section 302, P.P.C. For committing murder of Haji Muhammad Isa; however, exonerated him from the murder of Gul Muhammad and sentenced him to death and a fine of Rs,1,00,000, after recovery to be paid to the legal heirs of the deceased. The appellant has challenged his conviction by preferring the instant appeal and the learned Special Judge, S.T.A. Has also referred to us this Murder Reference No,16 of 1997 under section 374, Cr.P.C. This judgment shall dispose of both the appeal and the reference.
2. The unfortunate incident took place at Suraj Ganj Bazar, Quetta in front of Dakkan Pansar Store at about 7-30 a.m. On 29-6-1994. P.W.12 Syed Hazrat was taking his cart for repairs. While crossing Suraj Ganj Bazar, the appellant and another person coming on a bicycle hit the cart on which a scuffle took place between the appellant and Syed Hazrat. Deceased Haji Muhammad Isa intervened to separate them. Appellant fired at him and in the meanwhile Gul Muhammad tried to save Haji Muhammad Isa but he was also fired at by the appellant. Both the deceased persons were shifted to hospital; later on they succumbed to injuries. After completion of investigation, challan was submitted before the Special Judge, S.T.A., Quetta. Charge was framed on 3-4-1995 which was denied by the appellant. To substantiate its case the prosecution produced 18 witnesses. A summary of the evidence is reproduced as follows.
3. P.W.1 Amir Muhammad lodged report Exh.P/1-A with City Police Station alleging therein that he. Is doing business of dry fruit at Chohar Mal Road, Quetta. His cousin Haji Muhamamd Isa had a shop on the crossing of Suraj Ganj Bazar and Circular Road, Quetta. Today at about 7-30 a.m. He was sitting with his cousin Haji Muhammad Isa in his shop. In the meanwhile three persons who appeared to be Hazara from their appearance were beating a bearded person who was apparently a Pathan, with fists acid kicks and the Pathan was dragged towards Dakkan Pansar Store. In the meanwhile Muhammad Isa went to intervene and he heard fire-arm shots and people started running hither and thither. When he went there he saw Haji Muhammad Isa and another person lying on the ground. From the accused person he identified one (the appellant) who was apprehended by the traffic sergeant alongwith a pistol. It is further alleged that the incident was seen by many people and that he shifted Haji Muhammad Isa to the hospital.
4. P.W.2 Rafiullah Shah, S.I. Who was informed by the Moharrar of City Police Station about the said incident, came to the place of incident. He preserved the place of occurrence through Jan Muhammad, S.I. And other police personnels and went back to the police station where Fard-e- Bayan Exh.P/1-A was brought to the hospital by Muhammad Tariq, S.I. Dumig this period the appellant was brought to the police station by Sardar Ali Khan, Head Constable and Faheem Akhtar, Traffic Sergeant. Sardar Ali, Head Constable produced a pistol to Muhammad Tafiq, S.I.
(P.W.18). On unloading the same the pistol contained two bullets. The pistol was taken into possession vide recovery memo. Exh.P/2-A and from there he proceeded to the place of occurrence alongwith Muhammad Tariq, S.I. And took blood-stained earth of deceased Muhammad Isa vide memo. Exh.P/2-B and Exh.P/2-C. Four empty cartridges of .30 bore pistol were also taken into possession vide memo. Exh.P/2-D and from the place of occurrence he accompanied the I.O. To Civil Hospital, Quetta where clothes of deceased Gul Muhammad was taken into possession vide inventory memo. Exh.P/2-E; thereafter on 4-7-1994, the appellant disclosed that the pistol was a licensed one and the licence was lying in the shop. On the pointation of the appellant, the licence of the pistol was also taken into possession vide Exh.P/2- F.
He also signed the site inspection of the place of occurrence prepared by the Investigaing Officer vide memo. Exh.P/2-G. P.W.3 Pir Muhammad handed over the clothes of deceased Haji Muhammad Isa and taken into possession vide Exh.P/3-A..P.W.4 Faiz Muhammad Patwari prepared scaled sketch of the place of occurrence on the pointation of the police, vide Exh.P/4-A. P.W.5 Sardar Ali Shah apprehended the appellant with pistol when he was crossing from Masjid Road to Qandhari Bazar, while he was going on a bicycle soon after the occurrence and took him alongwith the pistol to the police station with the help of Fahim Akatar, Traffic Sergeant.
5. P.W.6 Dr. Umar Baloch examined Haji Muhammad Isa iri the Casualty Department, Civil Hospital, Quetta and issued certificate Exh.P/6-E and found the following injuries on his person:-- "(1) Gunshot wound entrance left laterally in anterior chest circular 1-1/2 x 1-1/2 c.m.
(2) Entrance gunshot wound parabolic region of abdomen circular 1-1/2 x 1-1/2 c.m.
(3) Lacerated wound anterior aspect of left arm.
(4) Entrance gunshot wound supra starnal region 1-1/2 x 1-1/2 c.m. With bleeding.
' After emergency treatment shifted to emergency operation theatre. Deceased died during operation at about 12-00 noon in the Operation Theatre. The probable cause of death was injury on thorax and abdominal contents, excessive haemorrhage, shock and death. Kind of weapon fire- arm."
' The body of the deceased was handed over to the heirs without postmortem on the Order of S.D.M., Quetta. He also examined deceased Gul Muhammad on the same day and issued certificate Exh.P/6-B and found the following injuries:-- "(1) Entrance gunshot wound 1-1/2 x 1-1/2 c.m. Circular in shape with bleeding of the right side of back of the chest of the (scapular region).
(2) Entrance gunshot wound on the anterior aspect of neck below the chin circular 1 x 1 c.m. With bleeding. After emergency shifted to Male Surgical Unit I.
' The deceased expired on 3-55 a.m. On 20-6-1994. The probable cause of death was injury on upper respiratory tract, internal bleeding, synosis, asphysia and death."
6. P.W.7 Muhammad Iqbal Inspector Fire-arm Expert carried out microscopical examination of the pistol and the four empty cartridges and issued certificate Exh.P/7-A, opined that the four empty cartridges had been fired from the said pistol. P.W.8 Dr. Manzoor Hussain examined Syed Hazrat and found the following injuries:-- "(1) Confused swelling above the right eye-brow 5 x 2 c.m.
(2) Blunt injury on left side of mandible region.
(3) Scratching on right wrist joint." and issued Certificate Exh.P/8-A.
7. P.W.9 Hadran Zarkoon E.A.C./M.F.C.1, Quetta supervised the identification parade of the appellant on 3-7-1994 in City Police Station at the request of Muhammad Tariq, S.I. In his presence P.Ws. Syed Hazrat, Haji Muhammad Ayyub, Namatullah and Abdul Bari were called to identify the appellant wherein Syed Hazrat could not identify the appellant. However, the other P.Ws. Identified the appellant. He issued Identification Parade memos. Exh.P/9-A, Exh.P/9-B, Exh.P/9-C and Exh.P/9-D.
8. P.W.10 Haji Muhammad Ayyub is an eye-witness and saw the appellant Abdul Aziz firing upon deceased Muhammad Isa and had taken deceased Muhammad Isa to Civil Hospital, Quetta and he was called by the police to identify the appellant during the identification parade in presence of P.W.9. He also recorded his statement under section 164,.Cr.P.C. Before the E.A.C. In presence of the appellant. P.W.11 Rahim Shah Abdullahzai EAC/MFC-VIII, Quetta recorded statement of P.W. Syed Hazrat under section 164, Cr.P.C. On the letter of SDM/MFC, Quetta vide Exh.P/11-B in presence of the appellant vide Exh.P/11-C and appended his Certificate Exh.P/11-D and sealed the said statement in an envelope vide Exh.P/11-A. P.W.12 Syed Hazrat who was taking his cart to Circular Road, Quetta on the day of incident for repair when his cart was hit by the appellant alongwith another person coming on a cycle and a scuffle started between them and while scuffling, they reached Dakkan Pansar Store where Haji Muhamamd Isa intervened and the appellant fired at him and Gul Muhammad. P.W.13 Arbab Abdul Zahir, EAC/MFC, Quetta on the letter of AC/SDM, Quetta Exh.P/13-B, recorded the confessional statement of P.W. Ayyub vide Exh.P/13-C and appended his Certificate Exh.P/13-B and sealed the same in envelope vide Exh.P/13-A. P.W.14 Amanullah is an eye-witness and saw the appellant firing at the deceased person and identified the appellant in the Court.
P.W.15 Abdul Bari is also an eye-witness and at the relevant time was passing near Dakkan Pansar Store at Suraj Ganj Bazar, Quetta where he saw that the appellant fired two/three shots at Haji Muhammad Isa and during this period when Gul Muhammad came near Haji Muhammad Isa, he was also injured. He also identified the appellant during identification parade vide Exh.P/9-D. P.W.16 Syed Abdul Jabbar, Chemical Expert, F.S.L. Crimes Branch, Quetta carried out chemical analysis of the blood-stained shirt, Shalwar, vest {{URDU TEXT}} and issued Certificate Exh.P/16-A. P.W.17 Namatullah is an eye-witness. He at the relevant time was crushing ice-cream in the shop situated at Qandhari Bazar, Quetta where he saw the appellant and other persons beating the Rehriwala. In the meanwhile when deceased Muhammad. Isa and others also reached near Dakkan Pansar Store, the appellant fired at the deceased and another person and after the firing made their escape good from the place of occurrence. He also identified the appellant in Identification Parade held in City Police Station.
9. P.W.18 Muhammad Tariq, S.I. Was entrusted with the investigation of the case. He recorded statement of the witnesses, made recovery of the licence at the instance of the appellant, visited the place of occurrence and prepared the sketch of the Pistol Exh.P/18-A, Inquest Report Exh.P/18-C, Site Plan Exh.P/18-B and handed over body of the deceased Muhammad Isa to his heirs vide receipt Exh.P/18-D, prepared inquest report of the deceased Gul Muhammad, Exh.P/18-E and handed over his body to his heirs vide Receipt Exh.P/18-F, conducted identification parade of the appellant in City Police Station and the pistol was sent to Fire-arm Expert and the blood-stained clothes of the deceased persons to analyst and prepared interim challan Exh.P/18-G and thereafter, submitted Challan Exh.P118-H.
10. The appellant' was examined under section 342, Cr.P.C. In which he denied the prosecution case and also recorded his statement under section 340(2), Cr.P.C. And produced D.W. Sajjad Hussain.
11. The learned Special Judge, S.T.A., Quetta after assessing the evidence on record convicted the appellant as mentioned hereinabove.
12. We have heard M/s. Muhammad Aslam Chishti and Akhtar Zaman Advocates for the appellant, Mr.Ehsan-ul-Haque, Advocate for the complainant party and Mr.Noor Muhammad Achakzai, learned Additional Advocate-General for the State.
13. Mr.Muhammad Aslam Chishti, Advocate contended as follows:
(i) That the Trial Court has misread the evidence and the eye-witnesses who claim to have witnessed the incident were actually interested and chance witnesses and without corroboration, their statements cannot be relied upon.
(ii) That the identification parade by the eye-witnesses cannot be relied upon as none of the witnesses has given any description of the appellant in their statements before the police.
(iii) Reliance on the statements of witnesses under section 164, Cr.P.C. Was not proper.
(iv) Recovery of pistol is defective, thus, it has been wrongly relied upon.
(v) Report of ballistic expert has been wrongly relied upon as prosecution failed to give any explanation for sending the empties and pistol to the expert after a considerable delay.
(vi) There is no motive for the commission of the offence.
(vii) The learned counsel in the alternative prayed that if the Court does not considej his contentions raised above, to be tenable than the death sentence be converted into life.
14. Mr.Ehsan-ul-Haq, Advocate for the complainant argued:-
(i) That the eye-witnesses have explained their presence at the place of occurrence and had no motive to falsely implicate the appellant in the commission of the offence.
(ii) That the witnesses have stated before the police that they can identify the appellant.
(iii) That the statements of the eye-witnesses under section 164, Cr.P.C. Cannot be discarded because the appellant was given full opportunity to cross-examine the witnesses.
(iv) That the appellant had killed two innocent persons, thus, no lenient view can be taken.
15. Mr. Nasrullah Khan Achakzai, Advocate for the State supported the judgment of the Trial Court and adopted the arguments of Mr.Ehsan-ul-Haque, Advocate.
16. With the assistance of the learned counsel for the parties we have gone through the record of the Trial Court, perused the impugned judgment and have considered the arguments advanced by the learned counsel for the parties.
17. It may be pointed out that the prosecution case hinges upon the following pieces of evidence:
(i) The ocular evidence furnished by P.W.1 Amir Muhammad, P.W.10 Haji Muhammad Ayyub, P.W.12 Syed Hazrat P.W.14 Amanullah, P.W.15 Abdul Bari and P.W.17 Namatullah.
(ii) The identification of the appellant by P.Ws. Nos.10, 14, 15 and 17.
(iii) The arrest of the appellant by P.W.5 Sardar Ali Shah Head Constable soon after the occurrence at a short distance from the scene of occurrence, and recovery of crime weapon from his possession.
(iv) Report of the ballistic expert regarding empties recovered from the place of occurrence to have been fired from the pistol recovered from the possession of the appellant.
(v) Statements of the prosecution witnesses recorded under section 164, Cr.P.C. In presence of the appellant.
18. The Trial Court has believed the ocular evidence, the identification parade and recovery of the crime weapon coupled with the positive report of the ballistic expert and has convicted the appellant.
19. Adverting to the arguments of Mr.Muhammad Aslam Chishti, Advocate for the appellant that all the eye-witnesses are interested and chance witnesses and their statements cannot be taken into consideration without strong corroboration. It may be observed here 'in interested witness is one who is related to the deceased and is also inimical to the accused'. The contention of Mr.Muhammad Aslam Chishti, Advocate has no substance. Admittedly in the case in hand only P.W.1 Amir Muhammad is related to the deceased and the other eye-witnesses have no relationship with either of the deceased persons and had no enmity with the appellant, inasmuch as that P.W.1 Amir Muhammad too had no enmity with the appellant. As such they cannot be termed as interested witnesses. Learned counsel for the appellant tried to argue that since a fight took place between Pathans and Hazaras, thus, the eye-witnesses being Pathans had strong motive to falsely implicate the appellant who belongs to Hazara Sect. The said argument advanced by the learned counsel being erroneous is repelled. Mr.Ehsan-ul-Haque, Advocate for the complainant pointed out that all the eyewitnesses had been cross-examined at length but they were not shaked despite a lengthy cross-examination and nothing beneficial was brought on record in favour of the appellant nor any enmity of the witnesses against the appellant was brought on record. We have no reason to disbelieve the witnesses merely because they are Pakhtoons when they had no reason or motive to falsely implicate the accused in the commission of the offence, even ethnic fight between Hazaras and Pathans was not proved.
20. As far as the contention of Mr.Aslam Chishti, Advocate that all the eye-witnesses are chance witnesses is concerned, the same is devoid of force. It may be observed that presence of the eye- witnesses at the time of occurrence could not be disputed as all of them had satisfactorily explained their presence at the place of incident. For example P.W.1 Amir Muhammad stated that he had a shop at Chohar Mal Road but before going to shop he came to see his first cousin Muhammad Isa and his presence at the place of occurrence has not even been challenged by the defence. He was cross-examined at length but nothing was brought on record to show that he was not present at the scene of occurrence at the relevant time. P.W.10 Haji Muhammad Ayyub stated that on the date of incident he came to his shop at about 7-00 to 7-30 a.m. And he was present in Suraj Ganj Bazar when the incident took place and he saw the appellant firing at the deceased Muhammad Isa. This witness was also cross-examined at length and in cross-examination it has been brought on record that the appellant had his own shop at Suraj Ganj Bazar, Quetta and since he knew the appellant prior to the incident, thus, he had rightly identified him and also got recorded his statement under section 164, Cr.P.C. In presence of the appellant. The evidential value of statement of P.W.4 under section 164, Cr.P.C. Shall be taken up at a later stage alongwith other witnesses who had recorded their statements. P.W.12 Syed Hazrat stated that before the incident of firing the appellant had a scuffle with him and his presence cannot be disputed. Syed Hazrat further stated that he was injured by the appellant and his statement was further corroborated by the medical evidence. Presence of Syed Hazrat was also admitted by the other eyewitnesses who stated that prior to the incident of firing the appellant alongwith two other persons had a scuffle with Syed Hazrat,
21. P.W.14, Amanullah stated that he was working in a hotel and at the time of incident he was serving tea to a Chapalwala and at that time he saw the appellant firing at deceased Haji Isa and Gul Muhammad and also identified the appellant during the identification parade. This witness was also cross-examined at length but his testimony could not be shaken and nothing was brought on record to show that he had any enmity with the appellant. P.W.15, Abdul Bari stated that he was employed in Insaf Hotel situated at Munsafi Road and at the time of incident he was passing near Suraj Ganj Bazar when he saw the accused firing at deceased Muhammad Isa and other deceased Gul Muhammad who came to save him. This witness was also cross-examined at length but his testimony could not be shaken. Similarly P.W.17, Namatullah also satisfactorily explained his presence as he was working in an ice-cream shop and was crushing ice at the relevant time when the incident took place and he saw the appellant firing at both the deceased persons and also identified the appellant during the identification parade. All the eye-witnesses have satisfactorily explained their presence at the place of occurrence and have fully corroborated each other on material points, and despite a lengthy cross-examination the intrinsic value of evidence has not been shaken. They were not inimical towards the appellant, and their testimony cannot be discarded merely because they were Pathans and the appellant was a Hazara, thus, they cannot be termed as chance witnesses. The learned Trial Court has rightly believed their testimony. In this regard reliance is placed on:-- ' Muhammad Akbar v. The State 1995 SCM R 693 wherein the following observations were made: "We have considered the submissions made by the learned counsel with care and do not feel persuaded to agree with him. Rindo Khan (P.W.2) and Amir Bakhsh (P.W.3) although related to the deceased, yet had no motive to involve the petitioner falsely in the case. They live close to the place of occurrence and have given plausible cause of their attraction to the spot at the time of occurrence. The statements made by them are in consonance with the probabilities and materially fit in with other evidence and circumstances appearing in the case. The powerful engine invented for the discovery of truth i,e, cross-examination has not been able to elicit material contradictions, major discrepancies, dishonest improvements or any conflict between their statement and the medical evidence."
22. Mr. Muhammad Aslam Chishti, Advocate further attempted to argue that since a fight had taken place between the Pathans and the Hazaras, thus, the appellant has been substituted for the real culprits. In our considered opinion the said contentions of Mr. Muhammad Aslam Chishti, Advocate is misconceived. In the first place as we have already observed nothing was brought on record that an ethnic fight took place between Hazaras and Pathans. The prosecution has proved that the initially a fight started between the appellant and P.W.12, Syed Hazrat who by chance happened to be a Pathan, and later on the said fight ended in the unfortunate death of deceased person. Had it been an ethnic fight the witnesses could have nominated as many Hazaras as possible. As we have already expressed that the witnesses have given plausible explanation about their presence at the scene of occurrence at the relevant time and further have no relationship with deceased persons and no enmity with the appellant, and further corroborated each other on material facts, thus, the substitution of the appellant for the real culprits is ruled out. It may be mentioned here that it has been time and again held by the superior Courts that substitution of the real culprit with an innocent person is a very rare phenomenon. In this regard reliance is placed on PLD 1996 SC 138 wherein the following observations were made:-- "Undoubtedly, the substitution is a phenomenon of the rare occurrence, because even the interested witnesses would not normally allow the real murders of their relations to escape by involving innocent persons. In these circumstances, the evidence of Mst. Bashiran Bibi cannot be discarded merely because she was the widow of the deceased and inimical towards the appellants."
23. Adverting to the next contention of the learned counsel that the identification parade by the defence cannot be relied upon as the witnesses have not given description of the appellant. It has come on record that during the identification parade P.W.10 Haji Muhammad Ayyub, P.W.14 Amanullah, P.W.15 Abdul Bari and P.W.17 Namatullah participated in it and they fully identified the appellant. Only P.W.12 Syed Hazrat could not identify the appellant. The witnesses though in their Police statement have not given description of the appellant but during the identification parade the appellant was properly identified by the witnesses and it may be mentioned here that the incident took place in broad daylight and it has come on record that prior to the incident of firing the appellant had a scuffle with P.W.12 Syed Hazrat at the crossing of Suraj Ganj Bazar and Circular Road and from there the appellant and his two companions dragged Syed Hazrat towards Dakkan Pansar Store where the appellant fired at the deceased persons. The eye-witnesses, who have otherwise explained their presence, had ample time to have properly seen the appellant; besides, it was stated that because of the peculiar features of the appellant as he was squint-eyed; therefore, he could be easily identified. Moreover, the witnesses have stated in their statement that they can identify the appellant. It may be pointed out that the appellant was also known to one of the eye- witnesses namely P.W.10 Haji Muhammad Ayyub who stated that he knew the appellant prior to the incident as he (appellant) had a shop at Suraj Ganj Bazar, Quetta Thus, the possibility of false identity of the appellant is ruled out. Mr. Muhammad Aslam Chishti, learned counsel for the appellant emphasised that as alleged by the prosecution, initially a fight started between P.W.12 Syed Hazrat and the appellant but the appellant could not be identified by Syed Hazrat. The learned counsel stated that no other witness than P.W.12 could have better identified the appellant; hence the possibility cannot be ruled out that the appellant was falsely implicated. It may be pointed out that Syed Hazrat has given explanation that at the time of identification parade his eyes were swollen and could not identify the appellant. His statement is also corroborated by the medical evidence. The explanation seems to be plausible. There is no cavil to the proposition that before the identification parade the witness must disclose the context in which he identified the accused i,e, the part played by the accused during the commission of the offence , and as to how and under what circumstances he identified the accused. However, if identity of the accused persons is proved by other convincing evidence, non-identification or absence of identification test will be immaterial. In the instant case, the identity of the appellant was also proved through the other eye-witnesses, and the statement of P.W. Haji Muhammad Ayyub who knew the appellant even before the incident cannot be discarded. Thus failure to identify the appellant by Syed Hazrat would be immaterial. Despite failure to identify the appellant, we have reason to believe the statement of Syed Hazrat as his statement was also recorded under section 164, Cr.P.C. By a Magistrate in presence of the appellant which will be discussed later. In this regard reliance is placed on Muhammad Afzal and another v. The State 1982 SCM R 129 wherein the following observations were made:-- "In practice, however, it is not safe to accept the statement of witness about complicity of an accused in a crime if he did not describe him by name or other particulars during the investigation and still was not made to identity him out of a group. If, however, the identity of the accused is proved by other. Convincing evidence direct or circumstantial, the absence of the identification test proceedings will be immaterial."
24. Besides the identification parade of the appellant, there is other strong and convincing evidence about the identification of the appellant which is discussed below.
' The appellant soon after the occurrence was arrested by P.W.5 Sardar Ali Shah Head Constable with the help of a Traffic Sargeant and a pistol was also recovered from his possession. He Was brought to the police station. The testimony of Sardar Ali Shah was also.Not shaken. He had no motive to have falsely implicated the appellant. The recovery of the pistol from the possession of the appellant has matched with the empties recovered from the place of occurrence. Reliance is placed on Akhtar Muhammad v. The State 1998 SCM R 1011 wherein it was held as under:-- "We, therefore, fail to understand as to why the arrest of a person by unbiased Police Officers just after the occurrence within a short distance of the scene of crime with a pistol in his hand giving fresh smell of discharge which according to laboratory report matched the empties recovered from the spot and ultimately supported at the trial by confidence inspiring testimony of those who arrested the accused, would not constitute substantive or direct evidence of the crime. We are satisfied that the Police Officer who caught hold of the accused with a pistol had no axe of their own to grind or any malice of the type to go to the extent of involving the appellant in a capital offence."
25. Mr. Muhammad Aslam Chishti, learned counsel for the appellant further argued that the report of the ballistic expert cannot be believed as the empties were sent to Forensic Science Laboratory after a considerable delay. It may be noted that during cross-examination no such question was put to the Investigating Officer about delay in sending of empties nor any allegation of tampering with the empties have been alleged against him. Thus, in absence of any allegation about tampering we are not inclined to accept the argument put forth by the learned counsel for the appellant.
26. Reverting to the contention that the statements of the eye-witnesses recorded under section 164, Cr.P.C. Are of no significant value, it may be observed that the statement of P.W.10 Haji Muhammad Ayyub, P.W.12 Syed Hazrat were recorded under section 164, Cr.P.C. Before the Magistrate in presence of the appellant and the appellant was given opportunity to cross-examine both the witnesses. Even in his statement under section 340(2), Cr.P.C. The appellant has not disputed his presence before the Magistrate. The statements of both the witnesses recorded under section 164, Cr.P.C. Further leads to the conclusion that both the witnesses were present at the place of incident. In his cross-examination before the Magistrate the appellant has not denied the incident nor taken plea of alibi. Thus, from the statement of the witnesses recorded under section 164, Cr.P.0 it can be safely held that the appellant fired at the deceased persons and possibility of false implication is ruled out, as he himself has admitted his presence.
27. Reverting to the contention that there are contradictions in the statements of the witnesses, it may be observed here that while going through the evidence, the learned counsel for the appellant pointed out minor contradictions in the statements of the eye-witnesses. The statement of the eyewitnesses were recorded in the Court after a period of more than one year of the incident and such minor contradictions are but natural. It may be noted that the intrinsic value of the evidence has not been shaken despite a lengthy cross-examination, by the accused for the appellant; thus, the minor contradictions pointed out by the learned counsel for the appellant are not of such nature which can disprove the prosecution case in toto.
28. Coming to the alternative prayer of the learned counsel for the appellant regarding conversion of death sentence into life imprisonment, we have considered this aspect of the matter but we do not feel persuaded to agree with the learned counsel on this points as well. There are no extenuating circumstances to take a lenient view. The appellant has committed murders of two innocent persons. The appellant made three fires at deceased Isa Khan and two fires at deceased Gul Muhammad. Thus, the mode and manner in which the deceased persons were done to death would not warrant any leniency in favour of the appellant.
29. It may be noted here that the learned Special Judge, S.T.A. Court has exonerated the appellant from the death of deceased Gul Muhammad. We do not agree with the findings of the learned Special Judge to this extent. As discussed hereinabove the appellant intentionally committed murder of both the deceased persons. As no appeal has been filed by the State regarding exoneration of the appellant from the death of deceased Gul Muhammad, thus, we do not think it appropriate to dilate upon the findings of the learned Special Judge, S.T.A. Court to this extent.
30. The upshot of the above discussion is that the prosecution has successfully proved its case against the appellant beyond any reasonable shadow of doubt. The appellant has been rightly convicted by the learned Trial Court. The sentence of death imposed on the appellant is justified.
Murder Reference No,16 of 1997 is answered in affirmative and Criminal Appeal No,251 of 1997 filed by the appellant is hereby dismissed.