' MUNAWAR AHMED MIRZA, J.---These appeals, by leave of Court, are directed against judgment of Lahore High Court dated 8-2-1992 passed in Criminal Appeal No,134 of 1989, Murder Reference No,183 of 1989 and Criminal Revision No,100 of 1989.
2. Facts disclosed from F.I.R. Briefly mentioned are that at the request of deceased Munsha in the afternoon of 1.7th December, 1987, the complainant Muhammad Yar alongwith injured Sultan, injured Jan Muhammad and deceased Bagh Ali and Jan Muhammad assembled at his house for discussing the ways and means to procure golden ornaments weighing 20 Tolas from Mst. Anwar Bibi. Around 4-30 p.m. While sitting in the house of deceased Munsha they heard noise and Lalkaras, from the direction of Bazar, and went out towards the Chowk for ascertaining the reason and found that accused Muhammad Ali, Abdur Rehman, Habib and Siddiq armed with guns, Nazar Muhammad armed with 12-Bore pistol, Muhammad Hussain, Ghulam Nabi and Bashir Ahmed armed with sotas arrived there in a tractor. They all alighted there from the tractor; however, seeing deceased Munsha and others the accused Muhammad Ali shouted that they had come to avenge insult caused to them yesterday and started firing. Description showing part ascribed to each accused and manner of injuries inflicted by the assailants while attacking the complainant party has been mentioned in F.I.R. These details are also mentioned in the impugned judgment, therefore, need not be reiterated here. Mansha and Bagh Ali expired on receiving fire-arm injuries whereas P.Ws. Sultan and Jan Muhammad were severely wounded.
3. It is the case of prosecution that Mst. Anwar Bibi wife of deceased Munsha had developed illicit relations with appellant Muhammad Ali, and at his instance instituted suit for dissolution of marriage which was later decreed. Subsequently appellant Muhammad Ali got married with said Mst. Anwar Bibi. Deceased Munsha demanded return of golden ornaments weighing twenty Tolas from Mst. Anwar Bibi, which was given to her at the time of marriage, but appellant Muhammad Ali has been causing obstruction whereupon deceased Munsha had publicly abused and slapped the appellant Muhammad Ali a day prior to said occurrence. On the statement of Muhammad Yar F.I.R.
No, 414 of 1987 was registered at Qabula Sharif Police Station. After completion of investigation appellants Muhammad Ali, Nazar Muhammad and Muhammad Siddique in Criminal Appeal No,251 of 1993 besides Ghulam Nabi, Bashir. Muhammad Hussain, Rao Habib Ahmed and Abdul Rehman (since acquitted) and arrayed as respondents in Criminal Appeal No,252 of 1993 were sent up for trial before learned Additional Sessions Judge, Sahiwal. At the commencement of proceedings on 3nd May, 1989, they were indicted for having formed unlawful assembly and armed with deadly weapons causing murder of Munsha and Bagh Ali besides launching murderous attack upon Sultan and Jan Muhammad. They refuted the charge and pleaded not guilty.
4. Prosecution during trial had adduced thirteen (13) witnesses to substantiate accusations against the appellants, co-accused (since acquitted). Positive reports Exhs. PU, PV and PW from Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence. Recovery memos, site plan and all connected documents and Articles were provided through witnesses.
Post-mortem reports, medical certificates of deceased and injured respectively were also brought on record during deposition of the doctors.
5. .P.W. 2 Dr. Muhammad Aslam on 18-12-1987 had conducted postmortem of deceased Mansha and Bagh Ali. Relevant details are given below:-
(i) Deceased Mansha son of Dara
(1) Multiple lacerated fire-arm wounds 1 c.m. x 1 c.m. With charring and blackening on the wounds on the front of chest, side of neck, front of shoulder on left side in an area of 24 c.m. x 18 c.m. (ten wounds in number).
' On dissection the wounds on chest had gone into chest cavity, into the left lung and one of the pellets had pierced the left auricle of heart. One of the wounds had broken the second rib on back.
There were multiple exit wounds on back of chest, back of neck and shoulder. Multiple pellets were recovered from the chest cavity and muscle of the back of chest.
(2) Multiple fire-arm lacerated wounds (seven in number) in an area of 16 c.m. x 9 c.m. On the back of left hand fingers and wrist. There was fracture of carpal and metacarpal bones of left hand.
There were multiple exist wound on the same area.
' Right lung was healthy. Chest cavity was 1/4th filled with blood. Left chest cavity was half filled with blood.
' The cause of death in my opinion was injury No,1 which resulted injury to heart, a vital organ and was sufficient to cause death in the ordinary course of nature."
(ii) Deceased Bagh Ali son of Mahango
(I) Lacerated fire-arm wound 1 c.m. x 1 c.m. On the bridge of nose with fracture of nasal bone.
(II) A lacerated fire-arm wound 3/4 c.m. x 3/4 c.m. On the outer side of right upper arm at mid area with an exit wound on the inner side was seen at the same level.
' The cause of death in my opinion was injury No,1 which resulted in injury to brain, vital organ and was sufficient to cause death in the ordinary course of nature.
6. P.W.6 Dr. Muhammad Sabir has given description and location of injuries on the persons of Sultan, Jan Muhammad and accused Ghulam Nabi, which are mentioned hereunder:--
(i) Sultan son of Khan Muhammad examined on 18-12-1987 vide certificate (Exh.PJ):--
(1) Lacerated wound 6 c.m. x 0,7 c.m. x scalp deep on the left side of head, 8 c.m. Above the left year.
(2) Lacerated wound "Y" shape 4.5 c.m.
2.3 c.m. x scalp deep on the top of the head.
(3) A circular wound 0.4 c.m. x.04 c.m. x depth not probed on the back left shoulder joint.
(4) An abrasion 2.2 c.m. x 1.4 c.m. On the top of left shoulder.
(5) A contused swelling 16 c.m. x all around the left fore-arm.
(6) An abrasion 3 c.m. x 1 c.m. On the back and medical (sic) side of right fore-arm lower part.
' Injuries Nos.1, 2, 3 and 5 were kept under observation. X-Rays were advised. Rest injures were declared as simple.
' Injury No,3 was caused by fire-arm but initially the weapon used for the same was kept under observation. All the other injures were caused by blunt weapon. Duration between injuries and examination was about 9 to 11 hours.
' According to X-Ray Report injury No,3 was declared as grievous and by fire-arm as no bony injury was seen at the site of injuries Nos.1, 2, and 5 so those were declared as simple.
(ii) Jan Muhammad son of Khan Muhammad was examined on 18-12-1987, vide Certificate (Exh.PK):--
(1) A lacerated wound 1.2 c.m. x 0.2 c.m. x skin deep on the left side of the head, 10 c.m. Above the left ear.
(2) An abrasion 1.5 c.m. x 1 c.m. On the lateral side of left knee joint.
' Both the injuries were declared as simple and caused by blunt weapon. Duration was about 9 of 11 hours.
(iii) Accused Ghulam Nabi was examined on 29-12-1987, vide Certificate (Exh. PL):-
(1) A scar mark of stitched wound (healed) 3 c.m. x 0.5 c.m. On the right side of the head, 8 c.m.
Above left eye-brow.
(2) A healed wound 3 c.m. x 0.5 c.m. (stitched) on the back of head, 13 c.m. Above the left ear.
' Both the injuries were kept under observation. X-Ray of the skull was advised. The kind of weapon used was not mentioned as injures were healed and stitched. Duration of injuries was about 12 days."
7. The ocular evidence comprises of two witnesses - namely, P. W.1 Complainant Muhammad Yar and P.W.8 injured Sultan, whereas Jan Muhammad was given up. Complainant in his deposition has narrated entire incident. He deposed that Mst. Anwar Bibi former wife of deceased Mansha had procured decree for dissolution and subsequently contracted marriage with convict-appellant Muhammad Ali. However, deceased Mansha demanded return of 20 Tolas of gold from Mst. Anwar Bibi, but appellant. Muhammad Ali has been causing hurdles. A day prior to the occurrence, there was altercation when deceased Mansha had abused and slapped appellant Muhammad Ali.
During this testimony the witness explained that on the fateful day they had assembled in the house of deceased Mansha for discussing measures to be adopted for arranging return of 20 Tolas of gold from Mst. Anwar Bibi when they were attracted by loud shouting and Lalkaras from the direction of Chowk located close about vicinity measuring about 5/6 Karams from the house of deceased Mansha as reflected from site plan Exh.PM and answer given by complainant during cross-examination. Complainant Yar Muhammad unequivocally stated that on hearing high pitched noise they all moved towards the Chowk and saw accused party coming from southern side on a tractor. They were armed with weapons and sotas, however alighting from the tractor it was held out that they had come for avenging the insult of previous day. The appellant and his companions started firing whereupon the witness alongwith Jan Muhammad took shelter behind the wall to save themselves from onslaught of the accused party. Appellant, Muhammad Ali, fired with his gun at deceased Mansha which struck on left side of his chest and he fell down. Accused Nazar Muhammad had fired at deceased Bagh Ali which hit on his nose and upper part of left arm, who also fell down. Muhammad Siddique fired at Sultan P.W. Which hit him on the back of left shoulder. They also ascribed Sota injuries and firing of Rao Habib Ahmed indicating participation of other accused who has since been acquitted. Thereafter the accused persons managed to escape. The complainant left Nawab with dead bodies and went to Police Station where he lodged report (Exh. PA). During cross-examination the witness has admitted that when he went at the Police station, for lodging F.I.R. Salam Khan, Amir Hamza and Riaz Hussain, Advocate, were there but he had not accompanied them. Some of the contradictions have also been brought on record which were proved. P.W. 8 injured Sultan had practically corroborated the statement given by complainant. Since he was not present at that time previous incident, constituting motive for unfortunate incident which took place on 17-12-1987, therefore, he did not mention about the same.
The witness had remained in hospital around 15/16 days for his treatment. The assertions with regard to stand taken by defence were specially disputed by this witness during cross- examination. P.W. 12 Irshad Ahmed, Sub-Inspector and P.W.13 Nazir Ahmad, Sub-Inspector have given detailed account of investigation carried out by them and also affirmed the recoveries which were affected in their presence. Strangely enough P.W.13 had made obligating statements in the case of cross-examination.
8. It may be mentioned that P.W.1 Muhammad Yar in the beginning of his deposition before trial Court gave details about relationship of accused inter se, while during cross-examination he had mentioned relationship amongst prosecution witnesses. For convenience said details are reproduced below:-- "I Bashir and Muhammad Ali accused are real brothers while Nazar accused is their sister's husband. Muhammad Hussain accused is, brother of Nazar accused. Wife of Bashir accused is 'Phoophizad' of Ghulam Nabi accused. Siddique accused is paternal-uncle of Ghulam Nabi accused. Abdul Rehman and Rao Habib Ahmed are friends of Muhammad Ali accused."
"II Khan Muhammad was my maternal grand-father whereas Mst. Saddan was my maternal grandmother. Nawab P.W. Is nephew of my maternal grandfather. Sharaf P.W. Is son of Sultan P.W.
Farid P.W. Is nephew of Bagh Ali deceased Yousaf and Ali Muhammad who identified the dead bodies and Sharif P.W. Are collateral of Jan Muhammad and Sultan P.Ws."
9.. After close of prosecution evidence, statements of all the accused were recorded under section 342, Cr.P.C. Wherein they had categorically denied the prosecution allegations, Accused also did not opt for making statements on oath in disproof of accusations as envisaged under section 340(2), Cr.P.C. Convict appellant Muhammad Ali and accused Ghulam Nabi admitted their presence and pleading self-defence explained circumstance and reason of said occurrence. The Answer to Question No,11 given by appellant Muhammad Ali is relevant which was, however, adopted by Ghulam Babi. The above referred reply/explanation of appellant Muhammad Ali is reproduced below:-- "Q:11. Why this case against you and why the P.Ws. Have deposed against you?
' Ans: I have been falsely involved in this case due to enmity. In fact Mansha deceased had been trying and demanding to get back twenty tolas' of golden ornaments allegedly given by him to Mst.
Anwar Bibi at the time of his marriage with her but on each occasion I refused its restoration to Mansha deceased. Mst. Anwar Bibi also instituted civil suits against Mansha deceased for the recovery of dower and ornaments and I was pursuing those cases on behalf of my wife Mst. Anwar Bibi, Mansha deceased had also instituted a suit for the custody of his minor daughter, Mst.
Nasreen adjacent my wife Mst. Anwar Bibi but I defended that case as well. Mansha deceased was determined to get back the ornaments from me and as such he alongwith Bagh Ali deceased, Sultan and Jan Muhammad P.Ws. Armed with gun, pistol and dangs' way-laid me when I was coming on my tractor after ploughing my land and was proceeding to my house. They launched a murderous assault on me, fired at me in order to snatch my tractor forcibly in lieu of the ornaments and to kill me as well. The fires of the two deceased hit the tyres of my tractor which got burst.
Sultan and Jan Muhammad P.Ws. Hit my tractor with their dangs', damaged the same and removed its battery. On my alarm Ghulam Nabi accused was attracted to the spot who tried to save my life and the snatching of my tractor by the deceased party and to desist them from snatching my tractor. He was also dealt 'Sota' blows on his head and he in order to save my life and his own life caused injuries with 'sots' to Sultan and Jan Muhammad P.Ws. In self-defence. I fired with the gun is order to save my life and to save the snatching of my property (tractor) which hit the two deceased persons and Sultan P.W. My co-accused Muhammad Hussain, Bashir, Nazar.
Muhammad Siddique, Abdul Rehman and Rao Habib Ahmed were not present at the spot at the time of occurrence. Muhammad Yar P.W. Was also not present at the spot at the time of occurrence. Salam Khan Rath. Amir Hamza and Riaz Hussain Advocate after due deliberation got the present case registered against us on 1812-1987 due to their enmity with us. The police colluded with them and the complainant party out of ulterior motive and falsely challaned us. The P.Ws.
Have deposed falsely against us due to enmity and being close relatives of the deceased persons."
10. No defence was led by the accused. Learned Additional Sessions Judge on the appraisement of evidence by means of judgment dated 3-6-1989 found that case was made out against Muhammad Ali, Nazar Muhammad, Muhammad Siddique, Muhammad Hussain, Ghulam Nabi and Bashir beyond any reasonable doubt. Whereas Abdur Rehman and Rao Habib Ahmed were at- quitted. Operative portion of the judgment reads:- "35. For what has been said above I am of the considered opinion that prosecution has succeeded in proving its case against Ghulam Nabi, Muhammad Ali. Bashir, Nazar Muhammad, Muhammad Hussain and Muhammad Siddique accused beyond any shadow of doubt. They are accordingly convicted under sections 148,302/149 and 307/149 of the Pakistan Penal Code. Muhammad Ali accused fired at Muhammad Mansha deceased as a result of which he died at the spot. Nazar Muhammad accused killed Bagh Ali deceased with his pistol. They committed cold-blooded murder, therefore, they deserve extreme penalty provided under the law. Muhammad Ali and Nazar Muhammad accused are accordingly sentenced to death under section 302/149 of the P.P.C. On two counts. They shall be hanged by necks till they be dead. They are also sentenced to pay fine of Rs,10,000 each and in default whereof they shall further suffer rigorous imprisonment for two years each. However, death sentence awarded to them shall be subject to confirmation by the Hon'ble High Court for which a separate reference under section 374, Cr.P.C. Shall be made. They have been informed that they can file appeal against this judgment within seven days from today. They can get copies of judgment free of costs, if so like or apply therefor.
36. However, case of Bashir, Muhammad Hussain, Muhammad Siddique and Ghulam Bibi accused is distinguishable. They did not cause injuries to Bagh Ali and Muhammad Mansha deceased, therefore, they deserve leniency. They are accordingly sentenced to suffer imprisonment for life each under section 302/149 of the P.P.C. On two counts as charged and with fine of Rs,10,000 each and in default whereof they shall suffer further rigorous imprisonment for two years each. All the six convicts are further sentenced to suffer rigorous imprisonment for seven years each under section 307/147 of the P.P.C. And with fine of Rs,1,000 each on two counts as charged and in default of payment of fine they shall further suffer rigorous imprisonment for one year each. All the convicts are further sentenced to suffer rigorous imprisonment for one Year each under section 148 of the P.P.C. All the convicts are directed to pay compensation of Rs,5,000 each to the legal heirs of both the deceased and in default whereof they shall further suffer simple imprisonment for six months each. The case property i.e, guns and pistol shall stand confiscated in favour of State and remaining case property shall be destroyed after the disposal of reference by the Hon'ble High Court. Muhammad Ali, Nazar Muhammad and Muhammad Siddique accused are present in custody. They be sent to Jail to undergo the sentences awarded to them today. Bashir, Muhammad Hussain and Ghulam Nabi accused are present on bail. They be taken into custody forthwith and sent to Jail to undergo the sentences awarded to them. The sentences of imprisonment shall run concurrently. Abdul Rehman and Rao Habib Ahmed accused are present on bail and are discharged of their bail bonds."
11. Convict/appellants Muhammad Ali Muhammad Siddique, Nazar Muhammad, Ghulam Nabi, Bashir and Muhammad Hussain aggrieved from above convictions and sentences had filed Criminal Appeal No,134 of 1989 before Lahore High Court. Murder Reference No,163 of 1989 seeking confirmation of the death penalty awarded to appellants Muhammad Ali and Nazar Muhammad by the Trial Court also came up for hearing alongwith said appeal. The High Court on thorough reappraisal of the evidence and considering arguments addressed on behalf of the parties allowed the appeal pertaining to accused (i) Bashir, (ii) Muhammad Hussain and (iii) Ghulam Nabi by setting aside their convictions and sentences under section 302/149 and 307/149/148, P.P.C.
Recorded against them. They were, however, convicted under section 323/34, P.P.C. And sentenced to imprisonment for the period already suffered. Whereas the appeal of convict/appellants (i)
Muhammad Ali, (ii) Nazar Muhammad and (iii) Muhammad Siddique were dismissed. However, conviction was altered into section 302/34, P.P.C. And 307/34, P.P.C. Relevant observations in the impugned judgment reads:- "33. Having, thus, examined all aspects of the case minutely, we feel no hesitation in observing that there is enough evidence on record to hold that all the appellants had participated in the occurrence. Before coming to such conclusion we had considered the contention of learned counsel for Muhammad Hussain appellant that apart from the fact that he had been involved on account of relationship with Muhammad Ali, the part assigned to him of having inflicted injury to Sultan P.W. On the left wrist, stood contradicted, in view of the medical evidence, and the sota recovered from him was not found stained with blood.
' He was.Not so closely related to Muhammad Ali. He was rather related distantly. Although the doctor who examined Sultan. P.W. Did not state that he had noted any injury on his left wrist, yet he did not injury on his left arm. The diagram of injury prepared by him shows that the injury was near the wrist joint. Obviously there is little bit confusion in description of the injury caused by Muhammad Hussain appellant to Sultan P.W. Such a position cannot be termed as contradiction of the ocular account by the medical evidence. None of the injuries suffered by the witnesses with the sota, appeared to have bled and so the sota could not have found stained with blood.
34. Still another aspect of the case is that none of the two eye-witnesses had any specific personal enmity with Muhammad Hussain.
35. Notwithstanding the fact that we have come to the conclusion that all the appellants had participated in the occurrence, we are not inclined to accept the verdict of the trial Judge that Bashir, Muhammad Hussain and Ghulam Nabi shared common intention with their co-accused to commit the murders of Mansha and Bagh Ali nor in our opinion, they shared common intention with them to launch murderous assault on Sultan or any other P.W. In that, what has impressed us, is that on their own they had no deep rooted enmity with any of the two deceased, as well as the injured P.Ws. The weapons they were wielding also are not so dangerous, and the manner in which they used those weapons also does not show that they had any idea to share the common intention with their co-accused to commit the murders of the two and launch murderous assault on the P.Ws. The injuries caused by them to the P.Ws. Were found simple, which shows that they did not use their weapons with the amount of force which could indicate their intention to commit murders or share common intention of committing murders or the murderous assault. Their appeals are, therefore, allowed, and their convictions under sections 302/149, 307/149 and 148, P.P.C.
Are set aside. They are, however, convicted under section 323/34, P.P.C. For having caused simple injuries to the P.Ws. As they had already suffered sentences of imprisonment for a period of more than one year which is provided for commission of offence under section 323, P.P.C., they shall be deemed to have undergone the sentences for their convictions under section 323, P.P.C.
' Muhammad Hussain appellant is already on bail. His sureties shall stand discharged. Ghulam Nabi and Bashir appellants shall be released forthwith, if not required in any other case.
36. The appeals filed by Muhammad Ali, Nazar and Siddiq appellants are dismissed. However, their convictions under section 302/149 on two counts for having committed murders of Mansha and Bagh Ali and their convictions under section 307/149, P.P.C. For having launched murderous assault on Sultan and other P.Ws. Are altered to under section 302/34, P.P.C. On two counts and under section 307/34, P.P.C. The sentences of death awarded to Muhammad Ali and Nazar on both the counts are confirmed. Whole of the fine, for conviction under section 302/34, P.P.C., on recovery from all the appellants, shall also be paid as compensation in equal share to the heirs of both the deceased.
37. Since Muhammad Hussain, Ghulam Nabi and Bashir appellants have not been held to be the members of unlawful assembly and their convictions have been set aside, the convictions of Muhammad Ali, Nazar and Siddiq under section 148, P.P.C. Are also set aside.
38. No case for enhancement of sentences of Siddiq appellant (respondent in Crl. Revision) under section 302/34, P.P.C. Is made out nor there seems to be any justification to enhance the sentences of imprisonment of Muhammad Ali, Nazar and Siddiq under section 307/34, P.P.C. As we have already ordered that amount of fine on recovery from the three appellants/convicts for their conviction under section 302/34, P.P.C, on both the counts, shall be paid as compensation to the heirs of the deceased, we do not think, there is any justification to award enhanced amount of compensation. The revision petition, which is still at motion stage, is, therefore, dismissed."
12. Above judgment was assailed by convicts/appellants before this Court through Criminal Petition for Leave to Appeal No,105-L of 1992, whereas complainant Muhammad Yar also filed Criminal Petition for Leave to Appeal No,113-L of 1992 challenging acquittal of Ghulam Nabi, Muhammad Siddique and Bashir besides claiming enhancement of sentence. Leave was granted on 20-3-1993 in the following terms:-- "Leave to appeal is granted to the convicts as well as to complainant to reappraise the entire evidence, inter alia, for the following features appearing in the judgment:--
(1) The veracity of the F.I.R. Has been seriously doubted, the High Court observing as hereunder:-- " We find no difficulty in agreeing with learned counsel for the appellants that the sanctity attached to F.I.R. Cannot be extended to the F.I.R. Of this case and at the best it can only be treated as a statement made by one of the eye-witnesses to the Investigating Officer.'
(2) Rao Habib Ahmed accused of effective firing at the deceased stands acquitted.
(3) Corroborative evidence of recovered empty was found only against Muhammad Ali and Siddique convicts but not against Nazar sentenced to death.
(4) Investigation was held to be not unbiased, the Court observing as hereunder:-- "The investigation had also not remained for him, a matter of routine, because the Police had started collecting evidence of defence, of the accused. Actually two of the accused had their way and were declared innocent. In such like situation to expect that the site plan must have been prepared correctly vis-a-vis the distances, in our view, may not be the correct approach."
2. Bailable warrants of arrest in the sum of Rs,50,000 each with two sureties in the like amount to the satisfaction of Duty Magistrates concerned to issue against respondents in Criminal Petition for leave to Appeal No,113-L of 1993 who are not in jail."
13. Firstly, Learned counsel for appellants had greatly stressed that F.I.R. Had been recorded after consultation with Amir Hamza, Salam Khan and Riaz Hussain Advocate, who had political enmity with Rao Habib Ahmed and Abdul Rehman and were admittedly present in police station at the relevant time. He thus argued that F.I.R. Having lost its sanctity, and was actually incorporated in the relevant register on 18-12-1987 as its recording on the same in the given circumstances was highly improbable.
14. Having considered all relevant factors and minutely noticing different steps taken by the Investigating Authorities on the same day, we feel persuaded to agree with following conclusions on this aspect, drawn by the High Court in the impugned judgment:-- "In the circumstances we find no difficulty in agreeing with learned counsel for the appellants that the sanctity attached to F.I.R. Cannot be extended to the F.I.R. Of this case and at the best it can only be treated as a statement made by one of the eye-witnesses to the Investigating Officer.
However, we are not prone to accept the argument of learned counsel for the appellants that the Police had not been informed about the occurrence on the same day by the complainant, nor do we find any substance in the claim made by the appellants while making statements under section 342, Cr.P.C. That the F.I.R. Had been registered on the following day, i.e, 18-12-1998, as in that case neither the post-mortem examinations could have been conducted at the time stated nor the injured witnesses could have been got admitted to the hospital for medical examinations during the same night, i.e, between 17th and 18th December, 1987."
15. Mr. Ejaz Batalvi, learned counsel for appellant, strenuously urged that presence of complainant Muhammad Yar at the place of occurrence was highly doubtful because if alleged firing spree by the assailants is believed wherein Jan Muhammad was injured, whether despite unpredictable situation complainant could continue microscopically witnessing entire events. He stressed hard that if complainant could implicate Rao Habib Ahmed and Abdul. Rehman (since acquitted) at the instance of somebody then his tendency to rope others could not be ruled out and at least this aspect seriously affected his creditability. Whereas Mirza Masood-ur-Rehman, Advocate Supreme Court, learned counsel for complainant and Ch. Muhammad Akram appearing for State opposed the above contentions and professed that presence of complainant was fully established by all the circumstantial factors including P.W.8 who was admittedly injured at the scene of occurrence.
16. Thorough scrutiny of record, pre-eminently establishes presence of complainant on the spot.
However, intrinsic value of his testimony requires to be reappraised keeping in view other available material. Learned Counsel for appellant emphatically argued that primary burden of proving responsibility of accused heavily lay upon prosecution, irrespective of any special plea raised by the accused. It was stressed that mere failure of accused to substantiate his stand does not entail adverse consequences, rather if he succeeds in raising reasonable doubt regarding prosecution accusations, the accused becomes entitled to benefit of acquittal. Learned counsel canvassed that onus of prosecution for establishing the guilt against accused is not shifted merely because complainant party got worst of fight. The Court to arrive at correct conclusions must determine as to the party, which was aggressor in the given circumstances of the case. It was pressed hard that version of accused has to be placed in juxtaposition with the prosecution stand, and unless same is proved to be false benefit invariable should be granted to the accused. To supplement above submissions reliance was placed on the observations in cases (i) PLD 1953 FC 93 (Safdar Ali v. The Crown), (ii) 1971 SCM R 432 (Hakim Ali v. The State) and (iii) 1993 SCM R 208 (Noor Muhammad v. The State).
17. Mirza Masood-ur-Rehman, learned counsel appearing for complainant vehemently refuting the stand taken on behalf of appellants, contended that ocular evidence, strong motive and attending circumstances, sufficiently establish that appellants were aggressor, therefore, they cannot plead self-defense on the principle enunciated in PLD 1983 SC 204 (Abdul Rashid v. The State). It was argued that P.W.8 Sultan was equally affiliated with appellants being their collateral. His presence at the time of occurrence has not been disputed, besides his testimony is natural and confidence inspiring. According to learned counsel minor discrepancies or alleged delay in. The F.I.R. Was inconsequential. Reliance was placed on the observations in case 1970 SCM R 797 (Muhammad Gul v. The State).
18. It may be seen that presence of injured Sultan at the place and time of incident wherein Mansha and Bagh Ali were murdered has been unequivocally confirmed even by appellant. Testimony of complainant Yar Muhammad corroborated the deposition of P.W. Sultan on material particulars.
Both these witnesses have with-stood searching and extensive cross-examination by the defence counsel. Nothing substantial could be elucidated whereby their veracity could by any stretch be doubted. P.W. Sultan maintained that he was collateral of appellants and other co-accused which fact has not been effectively repelled. Balanced statement of injured Sultan apparently indicates that he was equally poised towards both parties. This witness in his testimony has attributed to appellant Muhammad Ali causing of main injury to deceased Mansha on his chest. Similarly he further specifically stated that shot fired by appellant Nazar Muhammad had struck deceased Bagh Ali. Needless to mention here, that even solitary statement of witness when appearing reliable and confidence inspiring is deemed sufficient for bringing home guilt of the accused. ' For authority reference may be made to observations in cases (i) 1971 SCM R 530 (Muhammad Ashraf v. The State. (ii) 1971 SCM R 659 (Muhammad Siddique v. The State (iii) 1972 SCMR 620 (Mehmood Khan v.
Ahmad) and (iv) 1973 SCM R 473 (Fazal Diyan v. State)
It may, thus, be seen that testimony of P.W.8 Sultan corroborated by version of complainant Yar Muhammad fully supported by medical evidence supplemented by recoveries motive and circumstantial factors firmly establish involvement of appellants concerning offences for which they have been found guilty. And convicted by two Courts below. For the above reasons we are satisfied that prosecution has discharged its onus about placing responsibility on the appellants for causing two murders and launching murderous attack on the injured.
19. Now in the above background placing the defence stand, asserted by convict appellant Muhammad Ali, in juxtaposition with prosecution case, it would be manifest that factually time and place of incident has not been refuted. Factum of appellant Muhammad Ali armed with gun arriving near the Chowk in a tractor alongwith certain companions is not disputed. Similarly presence of deceased Bagh Ali, deceased Mansha, injured Sultan and injured Jan Muhammad at the relevant time has been unequivocally admitted. Appellant Muhammad Ali during his statement under section 342, Cr.P.C. Which is also adopted by acquitted co-accused Ghulam Nabi, however, asserted that above persons of complainant party had attacked him and damaged his tractor, therefore, to save his life and protection of property he fired in self-defence hitting deceased and injured. The site-plan (Exh. PM) and statement of Farooq Ahmed Draftsman coupled with other evidence disclose that tractor was stopped about 15 to 20 Karams away from the Chowk where two deceased had received fire-arm injurees. Record, which has not been challenged by appellants, reveals that place from which gun/pistol shots were fired at deceased was located about 5/6 Karams ahead of tractor being point (4) of site-plan which falls at distance of approximately 10 to 14 Karams from the Chowk where deceased Mansha and deceased Bagh Ali had fallen after receiving injures. The two shops referred in the evidence where complainant and injured Jan Muhammad were statedly concealing themselves are on the eastern side within a close vicinity of Chowk where occurrence had taken place. It is quite apparent that tractor was far away from the reach of complainant party. It may be noticed that place of occurrence is hardly 5 to 7 Karams from the house of deceased Mansha as reflected from Exh. PM and statement of injured Sultan. There is no conceivable method whereby complainant party could approach the place where tractor was stopped and launch attack on the appellants or damage the tractor.
Therefore, on the recorded details, the stand projected by appellant appears to highly improbable.
Additionally, according to appellant Muhammad Ali and acquitted accused Ghulam Nabi, both the deceased were armed with gun and pistol. It is surprising that they expired instantaneously but no weapon was found or recovered from the scene which also creates serious doubts regarding correctness of defence story, specially when manner of investigation and obliging statement made by Sub-Inspector Nazir Ahmed (P.W.13) seem to be considerably favourbale towards accused party. From above discussed circumstances only legitimate inference would be that after accused had escaped leaving the tractor that relatives or acquaintances of deceased might have damaged it under frustration. We are satisfied that in the peculiar circumstances stand taken by the appellants about manner of attack by the complainant party is neither probable nor believable. The prosecution has substantially established the guilt, therefore, responsibility rested upon the appellant to support its stand to rebut accusations made against them. Reference to minor omissions or discrepancies in the statements of witnesses is not fatal.
' As a sequel of above discussions we are satisfied that conclusions of both the Courts below regarding conviction and sentence of appellants in Criminal Appeal No,251 of 1993 do not suffer from any impropriety or legal infirmity.
Additionally, it may be seen that respondents Ghulam Nabi, Bashir and Muhammad Hussain in Criminal Appeal No,252 of 1993 at the time of incident were merely armed with 'Sotas' and prosecution evidence does not indicate their common intention or direct involvement for causing murder of deceased Mansha and Bagh Ali, as rightly held in the impugned judgment. Therefore, Criminal Appeal No,252 of 1993 filed against them by complainant Muhammad Yar has no substance.
' Accordingly both the appeals having no merits are dismissed.