' MIAN SHAKIRULLAH JAN, J. The convict-appellant Ghulam Rabbani son of Muhammad Daud aged about 33 years, resident of Phalkot, Police Station Nara, Tehsil and District Abbottabad, alongwith his other acquitted co-accused namely Muhammad Tayyab son of Muhammad Daud, aged 28 years, Aziz-ur-Rehman son of Ahmed, aged 90 years, Naeem-ur-Rehman son of Khalil-ur-Rehman, aged 20 years, Habib-ur-Rehman son of Aziz-ur-Rehman aged 44 years, Daud son of Ahmed aged 85 years, was tried by Additional Sessions Judge, Abbottabad on charge under section 302/148/149 read with section 337-A(I), P.P.C., for having committed the murder of Muhammad Saleh deceased and causing injuries to P.Ws. Abdul Baqi, Abdul Malik and Manzoor. The learned Additional Sessions Judge vide his judgment, dated 2-5-1998 found Ghulam Rabbani guilty for the murder of Muhammad Saleh deceased and convicted him and sentenced to death under section 302(b), P.P.C., while rest of the accused were acquitted of the charges.
3. Aggrieved by his conviction, the appellant assailed his conviction and sentence through Cr.A.
No,24 of 1998 while the case has also been referred to this Court under section 374, Cr.P.C., vide Murder Reference No,1 of 1998. Abdul Baqi complainant has filed Cr.R. No,17 of 1998 against Ghulam Rabbani appellant for awarding compensation and confiscation of immovable property, and imposition of fine and also filed an appeal against rest of the acquitted accused vide Cr.A. No,25 of 1998. This judgment shall dispose of all the matters i,e,, the two criminal appeals, murder reference and criminal revision.
4. At the very outset, the learned counsel for the appellant Ghulam Rabbani has taken a preliminary objection with regard to the competency of Additional Sessions Judge to hold a trial of the appellant/accused. According to F.I.R. Habib-ur-Rehman co-accused resorted to aerial firing with a kalashnicov and which fact has also been stated by the witnesses in their Court statement and the two empties of the kalashnicov have also been recovered from point No,10 in the site plan Exh.P.B., as per statement of P.W.1 Ba Zamir S.H.O./I.O. According to the learned counsel it would be a Special Court established under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) (hereinafter referred to as the Act) to try the accused as under paragraph (ii)(a) read with paragraph (c) of the Schedule to the Act, and is only the Special Court which have the exclusive jurisdiction and no other Court.
5. In the present case the challan was put in Court on 27-5-1995 in the Court EAC/MIC who sent the case under section 190(3), Cr.P.C., to the Sessions Judge Abbottabad, who then entrusted it to Additional Sessions Judge, Abbottabad on 17-9-1995. After the entrustment of the case to Shahid Naseem Khan, Additional Sessions Judge, Abbottabad, the charge was framed on 25-9-1995 under section 302/148/149. P.P.C., read with section 337-A(i), P.P.C. At the time of framing of the charge the aforesaid Additional Sessions Judge was not empowered to act as a Judge of the Special Court established under the Act, however, such powers were bestowed upon him on 14-4-1997. Phool Pir Shah P.W.1 was examined in the case on 30-4-1997 (after the A powers given to ADJ under the Act), who registered the F.I.R. After the relinquishment of charge of Shahid Naseem Khan as Additional Sessions Judge, Abbottabad, the remaining proceedings were taken up and completed by Mr. Milayat Ali Khan, Additional Sessions Judge, Abbottabad, and who had been empowered to act as a Judge of the Special Court under the Act on 19-6-1997. P.W.2 Mumtaz Hussain, A.S.-I. Was examined by the new Presiding Officer/ successor-in-office on 2-8-1997 i,e,, the proceedings were conducted by him when he had already been empowered under the Act to act as a Judge of the Special Court, Though the Additional Sessions Judges were having the jurisdiction under the Act to try the accused yet all the order-sheets, statements of witnesses, statements of accused and the judgment have been signed by them as Additional Sessions Judge, Abbottabad and not as a Judge of the Special Court.
6. The learned counsel for the appellant Ghulam Rabbani has stressed that from the very beginning up to the end the case was treated as a Sessions case and not as a Special Court case; i,e,, the challan was put in Court by the prosecution in the Court of M.I.C., who then sent the same under section 190(3), Cr.P.C., to the Court of Additional Sessions Judge, Abbottabad; the case was entrusted initially to Shahid Naseem Khan, Additional Sessions Judge, who at that time was not notified as a Judge of Special Court. However, later on, having jurisdiction, none of the Presiding Officers has described himself as a Judge Special Court anywhere while signing the order sheets, statements of witnesses or of accused and even at the time of delivery of the impugned judgment.
7. On the contrary, the learned counsel for the complainant Mufti Muhammad Idris has taken a stand that it is an ordinary Sessions case and mere use of kalashnicov for aerial firing would not bring the case within the ambit of the Act and the case was rightly treated as Sessions case by the trial Court and disposed it of as such. He also made a reference to the preamble of the Act of 1975 and that law was enacted with the purpose and object of suppressing acts of sabotage.
Subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with such acts and that the offence does not show any of the things mentioned in the preamble and, thus, the offence has got no nexus with the purpose and object of the act for which it has been enacted. However, this matter has been set at rest by the Honourable Supreme Court in case "Allah Din v, State" (1994 SCMR 717) wherein it was held as under:--- "We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of F.I.R., and other material which is produced by the prosecution at the time of presentation of the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye-witnesses and on our query whether the witnesses have supported the allegation in F.I.R., about use of Kalashnicov the weapon, learned counsel for petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court."
8. This case in view of its facts and circumstances and also in the light of the judgment of the honourable Supreme Court referred to above it is a Special Court case and requires to be dealt with under the provisions of the Act and ought to have been tried by the Judge of Special Court established under the Act. After holding it as such to be a case of Special Court then the question arises as to whether the learned Additional Sessions Judge (Shahid Naseem Khan), who has taken cognizance of the case and framed the charge and who at the time of framing of the charge was not conferred with the powers under the Act to try the case and that he and his successor-in- interest, the other Additional Sessions Judge (Wilayat Ali Khan) have not described themselves anywhere as a Judge of Special Court but have described themselves as Additional Sessions Judge, would vitiate the trial and the appellant would be entitled .To acquittal or the case would require its remand to the trial Court again for de novo trial.
9. The learned counsel for the appellant in this respect has sought the support 'of the judgment of this Court (functioning as S.B.) in case "Muhammad Ashraf v. Ghulam Rabbani alias Bani" (1998 PCr.LJ 773) whereby the Honourable Judge while accepting the revision petition against the acquittal, set aside the order of acquittal on the ground that the trial was held by a Sessions Judge and not ,by the Special Court and who had got no jurisdiction in the matter. On the point of misdescription by the Presiding Officers he placed reliance on a case "Muhammad Riaz v. State"
(PLD 1985 FSC 420) where the trial of an accused charged under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 having been found in possession of 30 grams of heroin and punishable with imprisonment for life and triable by the Sessions Court or by a Magistrate empowered under section 30, Cr.P.C., was held by a Magistrate though empowered under section 30, Cr.P.C., but described himself as a Magistrate 1st Class at the time when the charge was framed and also when the statements of the witnesses were recorded. The Federal Shariat Court set aside the order of conviction of the accused only on the ground that the Magistrate has not described himself as a Magistrate empowered under section 30, Cr.P.C., and the case was remanded back for de novo trial. .
10. The learned A.A.-G. Has contended that despite such defects in the case i,e,, the Presiding Officers have not described themselves as a Special Court would not vitiate the trial unless the accused showed some prejudice to have been caused to him.
11. The point of misdescription was dealt with by the Honourable Supreme Court in a case "Piao Gul v. The State" (PLD 1960 Supreme Court (Pak.) 307), whereby it was held that the misdescription of the authority is of no effect on legality of trial on the principle of false demonstration on notice and it was observed as under:--- "In view of the matter, the solitary misdescription in the charge, i,e,, where the Court described himself as District Magistrate would be without effect upon the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstratio non-nocet. It would, therefore, be without effect upon the validity of the proceedings provided that the person conducting those proceedings possessed in himself the capacity to do so."
12. This Court before a Division Bench at D.I. Khan Circular Bench faced with a like objection in case "Alam Khan v. State" decided on 3-7-1995 while overruling the objection in respect of the incompetency of the Court it was observed that neither such an objection was taken before the trial Court nor any prejudice was shown to have been caused to the accused and the Court was otherwise competent. In para.12 of the judgment it was held:--- "that it was pointed out that the Sessions Judge, Bannu has been notified under section 3 of Act XV of 1975 as a Special Court and mere failure to use the nomenclature of Special Court would not vitiate the trial. In this context, reliance was placed on Piao Gul v. State (PLD 1960 SC (Pak.) 307)."
' In para.13 of the judgment it was further held as under:--- " In the present case, the trial had concluded, no objection to the jurisdiction was raised at any stage nor any prejudice is alleged to have been caused by the trial of the Sessions Judge"....In view of the rule laid down in Piao Gul's case, (ibid), mere failure of the Sessions Judge to describe himself as a Special Court would not affect the legality of the trial as he was competent to try the case. Piao Gul's case has been based on the maxim 'falsa demonstratio non-nocet' that is, false description does not vitiate. The trial was, thus, competently held."
' We also hold that this objection is not sustainable.
13. The situation where the proceedings have been initiated or some proceedings have been taken by a Sessions Judge who otherwise was competent to take the proceedings but for want of a formal notification which was done a few days later and the rest of the proceedings have been taken by a competent Court, the earlier proceedings so taken, when have not been concluded and final verdict has not been given and which has caused no prejudice to the accused would also be of no consequence. In this respect reliance can be placed on "Mrs. Salal Akbar Bugti v. Khawand Bakhsh and 4 others" (1995 61). In the cited case the complainant party submitted an application for transfer of the case from the Court of Additional Sessions Judge to the Special Court at a stage when nearly the proceedings were at the final stage, though the case was transferred, yet it was ordered that the transferee Court shall record proceedings from the stage onwards where the matter was pending. In this judgment a reference has also been given to another judgment "Muhammad Aslam v. The State" (PLJ 1993 (Cr: Cases) 177), whereby such a view was upheld by the Honourable Supreme Court in Criminal Petition No,7/Q of 1992 "Abdur Rehman Shah v. The State", decided on 7-4-1993. The relevant observations in the judgment are as follows:--- "The learned counsel for petitioner, however, challenged the order of conviction on a technical ground that on the transfer of the case from the Court of Sessions Judge (Ad hoc) to the Court of Special Judge, it was incumbent upon him to have tried the accused de novo and not to have based conviction on the already recorded evidence which is illegal and vitiates the petitioner's conviction. We have heard the learned counsel and not been impressed by the contention. The relevant section of law dealing with the situation is section 350, Cr. P.0 No doubt previously un transfer of case the transferee Court was to record fresh evidence but through amendment brought about in the section by Law Reforms Ordinance, 1972 it is now permissible for the succeeding Court to rely on the evidence partly or wholly recorded at the trial by his predecessor.
No such objection can be raised unless it is proved that the accused has been prejudiced thereby.
The succeeding Court in the instant case is also presided by a Sessions Judge. No objection was raised at the relevant time nor any prejudice was shown to have been caused to the petitioner. The objection as such cannot be entertained at this stage.
' Similar view has been expressed in judgment Liaqat Ali and others v. The State, 1992 PCr.LJ 998" For the foregoing reasons, I am inclined to hold that Special Court constituted under Suppression of Terrorist Activities Act, has exclusive jurisdiction to try instant case which shall, however, record proceedings from the stage onwards where the matter is presently pending."
14. We, therefore, hold that the trial Court was a Special Court under the Act, has competently held the trial and proceedings, which do not suffer from any legal defect and, in the absence of prejudice to have been caused to the appellant, are not to be vitiated.
15. Now we proceed to discuss the merits of the case and before embarking upon such discussion it is necessary to give a,brief account of the relationship of the accused inter se and that of the complainant, deceased and the P.Ws. According to the statement of P.W.7 Abdul Baqi accused Ghulam Rabbani and Muhammad Tayyab are brothers inter se, accused Aziz-ur-Rehman, Naeem- ur-Rehman is the son of Khalil-ur-Rehman while deceased Muhammad Saleh was his (Abdul Baqi) son, P.W. Abdul Malik is also his son, P.Ws. Muhammad Ayub and Muhammad Siddique are the maternal uncles of the deceased Muhammad Saleh, P.W. Manzoor is his first cousin as well as maternal cousin.
16. The prosecution case summarised in the impugned judgment is that "on 2-8-1994 at about 19- 30 hours Abdul Baqi reported to Muhammad Farid, A.S.-I. At the graveyard of village Phalkot to the effect that on the previous night his aunt had died and her funeral prayer was made at 4-00 p.m.
And after her burial at about 4-30 p.m., he and his son Abdul Malik made a 'Talqeen' on the grave of deceased and 'Daha' was offered, whereafter, Muhammad Tayyab, Ghulam Rabbani, substituted the appellant for the real culprit. Who was armed with .30 bore pistol, Habib-ur-Rehman, Aziz-ur- Rehman and Muhammad Daud armed with sticks, stood up and Muhammad Tayyab said that why he recited "Talqeen" and suddenly caught hold of Muhammad Saleh and Ghulam Rabbani fired at him with .30 bore pistol which hit him and as a result of which he expired at the spot. That, thereafter, Naeem-ur-Rehman injured Manzoor Ahmed with stick, Tayyab injured him on his head with stick while Muhammad Daud and Aziz-ur-Rehman pelted stones, as a result of which, Abdul Malik was injured on his head and Habib-ur-Rehman made aerial firing with kalashnicov. That the occurrence was seen by Manzoor Ahmed, Abdul Malik, Muhammad Ayub, Muhammad Siddique and other people who had come to offer funeral prayer. The motive for the offence was stated to be the recital of alqeen'. Talqeen, as stated by P.W. Abdul Baqi is as under:--- "recital of first Rakuh of Sura-eBaqra and the last Rakuh of the same Sura Sharif, by two persons standing on either side of the grave of the deceased after the burial of the deceased."
17 The prosecution has examined 11 witnesses, out of whom P.W.7 Abdul Baqi, P.W.8 Abdul Malik, P.W.7 Manzoor Ahmed and P.W .10 Muhammad Siddique are the eye-witnesses. Ba Zamir Khan, S.H.O. P W .11) is the Investigating Officer, who conducted the investigation in the case. Muhammad Fareed P.W.4 A.S.-I., who after getting information about the occurrence while he was on 'Gasht' in the area arrived at the spot, drafted the Murasila at the instance of the complainant, prepared the injury sheet and the inquest report of the deceased and also the injury sheets of the injured P.Ws.
And sent them to the hospital for postmortem/medical examination. Ishtiaq, F.C. (P.W.3) who had accompanied Muhammad Farid (P.W.4) to the spot and also then escorted the dead body and the injured to the hospital.
18. P.W.5 Dr. Jumma Khan, Medical Officer, D.H.Q. Hospital, Mansehra, medically examined the three injured persons. He examined Abdul Baqi son of Abdur Rehman on 3-8-1994 at 12-15 p.m. And found the following:--- "(1) Lacerated wound 1-1/2 "bone deep on right partial aspect 2" from the mid-line.
(2) Complains of pain all over the body."
' He also examined Abdul Malik son of Abdul Baqi, aged about 30/35 years on 3-5-1994 at 12-00 noon and found the following:
(1) Lacerated wound 2" x 1/2" bone deep on the posterior one/third left partial aspect of the scalp and 4" from the left ear.
(2) Complains of pain all over the body.
' The doctor on the said date at 11-55 p.m. Also examined Manzoor Ahmed son of Abdul Qadir aged 35/36 years and found the following on his person:-
(1) Bleeding from nose which is contused.
(2) Lacerated wound /4" x 1/4" bone deep on the left side forehead 1/2" from the mid-line and 3" above the medial one-third, left eyebrow.
' According to the doctor the injuries caused to aforesaid three persons were by blunt weapons and the duration of injuries were shown from 6 to 12 hours.
'
19. P.W.6 Dr. Muhammad Irshad, Medical Officer, Rural Health Centre, Havelian on 3-8-1994 at 7-30 a.m. Conducted the autopsy on the dead body of Muhammad Saleh son of Abdul Baqi and found the following injuries:--- ' External ' Entrance wound 1/3" x 1/3" at mid axiliary line 3" below the roof of right axilla.
' Internal ' Cranium and spinal cord--8th vertibra damaged. Spinal cord damaged. Thorax---wall damaged.
Pleurae and right lung damaged and chest cavity full of blood. Blood vessels damaged at the site of injury. Abdomen--stomach contained semi-digested food. Liver was damaged. Large and small intestines contained feacal matter. Bladder empty.
' According to the doctor injuries to the vital organs i,e,, lung, liver, spinal cord led to haemorrhage and shock and then death. Duration- between injuries and death was shown as 15 to 20 minutes and death and post-mortem examination was 10 to 14 hours. The weapon of offence used is fire- arm.
30. The ocular version has been furnished by four witnesses namely Abdul Baqi complainant, Abdul Malik, Manzoor Ahmad and Muhammad Siddique. Out of the former three have sustained injuries during the occurrence. All the witnesses have given almost the same version as has been given by the complainant at the time of lodging of the report.
31. The first attack of the learned counsel for the appellant was over the delay of lodging of report and being recorded allegedly after, conducting the preliminary investigation by the 1.0., and also on the ground that it (investigation) being a dishonest one, the benefit of which must go to the appellant/accused.
32. According to the F.I.R., and the witnesses the occurrence has taken place on 2-8-1994 at 16-30 hours in the vicinity of Phalkot graveyard with a distance of about 9/10 kilometres from the Police Station and the report was lodged on 19-30 hours when P.W.4 Farid Khan arrived at the spot and the cash was registered at 22-30 hours. The reasons given by the complainant and the witnesses for this delay in lodging the report was that they were "weeping and wailing" over the incident and which according to the learned counsel for appellant by itself is not a plausible explanation and particularly when the father and brother of deceased Muhammad Saleh were present at the spot alongwith, other relatives and so many other people but no effort was made by anyone of them to go to the Police. Station for lodging the report. The learned counsel for the appellant while driving conclusion from this delay in lodging of the report and the manner in which it has been made on the spot, has submitted that either the witnesses were not present on the spot or if they were present they were engaged in consultation, and deliberation in order to plan the involvement of the persons whom they wish instead of the real culprit(s). However, if this fact is looked into the facts and circumstances of the case then it is not such a delay which caused serious doubt on the veracity of the witnesses and particularly when Abdul Baqi complainant has stated that on the arrival of the police officials he enquired about him by asking who is Abdul Baqi and after which he asked him about the lodging of the report and who did accordingly. Had it been the case i,e,, of consultation etc., and it would have been decided earlier as who would make the report and the moment the police officials reached the complainant would have come forward and would have narrated the story as already pre-planned. There is no blood-feud or other enmity of the like gravity, between the parties except some "hostility" or in the form of dispute over path which led to civil litigation. The absence of this grave hostility is negated by the accused present at the funeral prayer of the deceased, a close relative (aunt) of the complainant. Thus, there is no reason that the complainant and, the witnesses who have stamps of injuries on their persons would change a person in case of single fire shot for the real culprit. Hence neither their presence can be excluded nor it is a case where the consultation can be expected for involvement of the innocent persons.
31. With regard to the preliminary investigation the learned counsel for the appellant has referred to the statement of P.W.3 Ishtiaq, F.C. Wherein he has stated that the report was written after inspection of the spot. This witness accompanied P.W.4 Muhammad Farid, A.S.-I., who on getting information, while he was on 'Gasht', about the occurrence went to the spot. On reaching the spot he drafted the Murasila at the instance of P.W.7 Abdul Baqi complainant, prepared the injury sheet and inquest report of deceased Muhammad Saleh; injury sheets of the injured persons (P.Ws.) and sent the dead body of the deceased for post-mortem examination and the injured persons for medical examination under the escort of P.W.3 Ishtiaq, F.C. However, he left the remaining investigation to be conducted by the S.H.O., i,e,, the recovery of the pistol, preparation of the site plan, the recoveries from the spot including the blood-stained earth and that of the empties etc. From this statement of P.W.3 Ishtiaq, F.C. That the report was written after the spot inspection by itself does not amount to the preliminary investigation as nothing of the sort is deducible from the evidence on record.
34. The other emphasis which has been laid by the learned counsel is upon the dishonest investigation. While elaborating his view point he has submitted that the crime weapon, the pistol was recovered by the P.Ws. On the spot from the accused by snatching it from him but the same was not taken into possession by P.W.4 Muhammad Farid, A.S.-I., when he has written down the Murasila and also prepared the inquest report and the injury sheets on the spot and it was deferred till the arrival of the "Thanedar" I.O., and it was also not produced during the trial. The blood-stained earth was also not recovered and the empties of 7.62 bore allegedly recovered from the spot were not taken into possession through any recovery memo. Similarly some columns of the inquest report which are necessary to be filled in were not done so, which lacunae about inquest report by itself is not so fatal to the prosecution case if otherwise the case has been proved through other evidence. If these circumstances are taken to be the result of dishonest investigation then the same instead of strengthening the prosecution story has damaged it and rather some effort has been made to favour the accused. Due to these certain defects these recoveries have not been relied upon by the trial Court in favour of the prosecution against the accused and similarly by this Court, which will be discussed later on.
35. P.W.11 Ba Zamir Khan, I.O. Has stated that he has also taken into possession .30 bore pistol, the weapon of offence, vide recovery memo. Exh.P.W.19/1 on 3-8-1994, and in which a cartridge was stock in the chamber and a magazine having 3 live cartridges which were produced by P.W.
Muhammad Siddique. The pistol allegedly belonged to accused Ghulam Rabbani, which was taken/snatched from him at the time of occurrence. He registered the case under section 13, A.O.
Against appellant Ghulam Rabbani on 9-8-1994. The pistol was sent to the Arms Expert for analysis on 23-8-1994 with a negative report. He also prepared the site plan at the instance of the complainant on 3-8-1994. He has also taken into possession two empties of kalashnicov on the spot shown in the site plan as point No,10. As the pistol was not handed over to/recovered by the police on the first instance i,e,, on the arrival of P.W.4 Muhammad Farid, A.S.-I., but it was so recovered/handed over to the police on the next date and also per statement of the I.O., that when the D.S.P. Visited the spot on the next day at 2-00 p.m. He was instructed by him to recover weapon of offence and also with a negative report of the arms expert, this piece of evidence would be of no help to the prosecution case and it was rightly disbelieved by the trial Court. Similarly though it is alleged that the two empties of the kalashnicov have been recovered from the spot but as no recovery memo. Has been prepared qua the said recovery, the same cannot be taken to support the prosecution story in that respect.
36. The learned counsel for the appellant has strenuously contended that the venue of occurrence has not been proved i,e,, that the occurrence as alleged by the prosecution has not taken place in graveyard as no bloodstained earth has been recovered from the spot and similarly no other incriminating article. However, his this contention is untenable in view of the overwhelming ocular version given by the eye-witnesses and also by other witnesses i,e,, the police officials and mere non-recovery of the blood-stained earth on the next day when the I.O., has inspected the spot can be explained by the disappearance of the blood from the spot due to the lapse of time in-between the occurrence and the spot inspection or that the same has been sucked in the clothes of the deceased or in view of the medical report that the inner cavity of the body was full of blood.
37. The learned counsel for the appellant has pin-pointed certain alleged contradictions/ discrepancies in the statements of the eyewitnesses. According to the eye-witnesses the deceased died instantaneously while according to the medico legal evidence the time between injury and death is 15-20 minutes. However, this is not such a contradiction to discredit any one of the witnesses. After hitting the deceased with the fire shot of appellant then the other accused started beating the witnesses and, thus, a scuffle ensued and which left the witnesses with no opportunity to see the deceased immediately. The time mentioned by the doctor is based on his opinion and which is generally given with certain margin. This is not such a contradiction to discredit any of the witnesses and to disbelieve their evidence. Some witnesses stated that the cot has been brought and the deceased was put on it while the other says that the cot was not available. Similarly, the discrepancies in the statements of the witnesses qua the manner of snatching or taking of the pistol from appellant Ghulam Rabbani is also not of the type to disbelieve the witnesses altogether qua their version in respect of the happening of the incident.
The discrepancies with regard to getting information of the incident by the two P.Ws. i.e:, P.W.4 Farid and P.W.3 Ishtiaq in Police Station or while they were on 'Gasht' would be having no bearing upon the ocular version of the witnesses. The ocular version of all the witnesses is consistent on the material points and they have shown unanimity over the manner of occurrence, the involvement of the accused and the role attributed to them. Their version has been supported by the medical evidence as what they have alleged, that was found in the medical examination. Mere non- recovery of the blood-stained earth from the spot which can be explained, as already mentioned, i,e,, sucking of the blood in the clothes or the blood being found in the cavity of the body would not be of any consequence to disbelieve the entire evidence that the occurrence has not taken place where it has been alleged. The presence of the witnesses also cannot be disbelieved as most of them having the stamps of injuries during the occurrence showing their presence on the spot and also from the fact when Alif Noor the aunt of the complainant has died and they have gone to the graveyard, where the occurrence has taken place, for her burial. They have also got no blood-feud enmity etc., which prompted them to substitute the appellant for the real culprit.
38. The submissions of the learned counsel for the appellant on the point that the witnesses were not believed by the trial Court qua the 'injuries sustained by them during the occurrence hence they were not worthy of credit and cannot be believed against the appellant. However, the learned trial Court while acquitting 'the co-accused responsible for causing injuries to the witnesses and convicting the appellant for the murder of the deceased Saleh Muhammad has rightly proceeded on the principle laid down by the superior Courts that "falsus in uno falsus in omnibus" is not of universal application and the higher Courts have always emphasised on sifting of grains from chaff, and held the appellant to be responsible for the murder of the deceased while rest of the accused were not found so hence they were acquitted. Moreover, their acquittal is also under consideration in an appeal. Filed by the complainant against their acquittal order and if we would have not found the appeal legally as incompetent then we would have proceeded to discuss that aspect of the case also and this Court might have arrived at a different conclusion.
39. Resultantly we are of the view that the appellant is guilty of the offence and he was rightly held so and was convicted accordingly.
40. However, the question of quantum of sentence requires consideration. As has been discussed earlier there was no previous blood-feud enmity between the parties and rather both the parties were present at the burial prayer of Alif Noor, aunt of the complainant, and as per prosecution story the occurrence has taken place over the recital of 'Talqeen' and which indicates the absence of any premeditation and that by itself is a mitigating circumstance and the appellant deserves a lenient view to be taken while awarding the sentence.
41. Consequently while partly accepting the appeal, the sentence of death awarded to appellant is reduced to that of imprisonment for life with a benefit under section 382-B, Cr.P.C., to be extended to the appellant. It is also directed that the appellant shall pay a compensation amoqnting to Rs,50,000 to the legal heirs of the deceased and in case of nonpayment the same shall be recoverable as arrears of land revenue. In case of default he shall suffer R.I. For a period of six months further. The murder reference is answered in the negative.
42. As we have held that it is a case of Special Court and to be tried under the provisions of the Act and in case of acquittal no appeal is competent as per judgment Faiz Muhammad v. Mehrab Shah etc. (PLD 1997 Pesh. 166), hence the appeal against the acquittal is dismissed.
43. The Criminal Revision Petition No,17 of 1998 filed by the complainant for awarding compensation and confiscation of immovable 'property as well as imposition of fine is also incompetent in view of the judgment reported as "Quaid-e-Azam v. The State" (2000 PCr.LJ 216) hence the revision petition is also dismissed.