' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No, 20 of 1997 and Criminal Appeal No, 66 of 1997 filed by Zahoor Hussain Shah, Mehmood Hussain Shah and Khairat Hussain Shah appellants who were convicted and sentenced by learned Additional Sessions Judge, Bahawalpur vide his judgment, dated 19-5-1997 as under:--
1. Zahoor Hussain Shah Under section 302, P.P.C. To undergo death for the murder of Ghazanfar Ali, under section 324/149, P.P.C. To undergo ten years R.I. With a fine of Rs,10,000 and default thereof to undergo six months R.I., and under section 337-F(1), P.P.C. To undergo one year R.I. With demand of Rs,1,000.
2. Mehmood Hussain Shah, appellant under section 302/149, P.P.C. To undergo life imprisonment for committing the murder of Ghazanfar Ali and Muhammad Ali deceased, under section 324/149, P.P.C. To undergo ten years R.I. With a fine of Rs, 10,000 and in default thereof to undergo six months R.I. And under section 337-F(1), P.P.C. To undergo one year R.I, with demand of Rs,1,000.
3. Khairat Hussain Shah, appellant under section 302/149, P.P.C. To undergo life imprisonment for the murder of Ghazanfar Ali and Muhammad Ali, under section 324/ 149, P.P.C. To undergo ten years R.I., with a fine of Rs, 10,000 and in default thereof to undergo six months R.I. And under section 337-F(1), P.P.C. To undergo one year R.I., with demand of Rs,1,000.
' All the sentences awarded to the appellants were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
' It may be noted here, that two co-accused of the appellants, namely, Maqbool Hussain Shah and Ikhlaq Hussain were acquitted by the learned trial Court through the same judgment against which complainant has filed Criminal Appeal No,74 of 1997, which shall also be disposed of through this single judgment. It is also important to note here that Majid Hussain Shah, co-accused of the appellants, who was arrested, absconded during the trial and is still at large having been declared proclaimed offender on 7-8-1994.
2. Occurrence took place on 7-8-1994 at 1-00 p.m. In the fields situated in Mauza Ablani ten k.Ms away from Police Station, Qaimpar, District Bahawalpur while the matter was reported to the police by Ghularn Muhammad complainant and father of one of the deceased, namely, Ghazanfar Ali, vide F.I.R. Exh. P.A. Which was recorded by Zahid Majeed P.W.12. In the instant case, there were two deceased persons, namely, Ghazanfar Ali Shah son of Ghulam Muhammad, complainant and one Muhammad Ali, while there are five injured eye-witnesses, namely, Noor Muhammad (not produced), Ghulam Rasool (P.W.2) AFIi Ahmad (P.W.3), Ghulam Hussain (P.W.4) and Hassan Ali (not produced).
3. Brief facts of the case are that on the day of occurrence, that is, 7-8-1994 at about 1-00 p.m.
Ghulam Muhammad complainant alongwith his sons namely Ghazanfar Ali, Hassan Ali, Muhammad Ali son of Muhammad Sharif, Ali Ahmad son of Ghulam Qadir, Noor Muhammad son of Faqeer Muhammad, Ghulam Hassan son of Munshi and Ghulam Rasool son of Muhammad Sharif were working in their fields at Mauza Ablani Patti Bagh Shahi when Zahoor Hussain Shah, armed with 12 bore gun, Majid Hussain Shah armed with rifle 222, Maqbool Hussain Shah armed with rifle, Mehmood Hussain Shah armed with carbine, Khairat Hussain Shah, armed with rifle 7-MM and Ikhlaq Hussain Shah armed with carbine came there and raised Lalkara that they would be taught a lesson for purchasing the land. Zahoor Hussain Shah fired with his 12 bore gun which hit Ghazanfar Ali Shah on his chest, Majid Hussain Shah fired with his 222 rifle hitting Muhammad Ali on his chest and both the accused namely Zahoor Hussain and Majid Hussain Shah also fired with their firearms at Hassan Ali, Ali Ahmad, Noor Muhammad, Ghulam Hussain and Ghulam Rasool. The complainant saved his life by lying on the ground. All the accused while firing and raising Lalkaras went away. The complainant and Ghulam Rasool when watched Muhammad Ali and Ghazanfar Ali, both had succumbed to the injuries.
' Motive behind the occurrence was that the complainant party had purchased land measuring 72 Kanals, 9 Mamas in Mauza Ablani in the year 1984 from Zahoor Hussain etc. Against this purchase, Hassan Shah filed a suit for pre-emption which was dismissed. Two years earlier the said land was entered in the name of the complainant party during the consolidation proceedings against which Zahoor Hussain Shah had filed appeal before Additional Deputy Commissioner, Bahawalpur which too had been decided in favor of the complainant party and thereafter, Zahoor Hussain Shah had filed a revision petition before the Additional Commissioner, Bahawalpur which was decided on 17- 7-1994 in favour of the complainant party. Due to this grudge, all the accused with their common object while armed with fire-arms had killed Ghazanfar Ali and Muhammad Ali.
4. After registration of the formal F.I.R., Zahid Majeed, S.H.O., P.W.12 visited the place of occurrence and took into possession blood-stained earth underneath the dead bodies of both the deceased vide memo. Exh. P.K. And Exh. P.L. He also took into possession eight empties of 12 bore gun Exh.P/1/1- 8 and seven empties of rifle P.6/1-7 vide memo. Exh. P.M. He arrested Zahoor Hussain appellant and Majid Hussain Shah (P.O.) on 9-8-1994. Zahoor Hussain Shah while in, police custody on 17-8-1994 led to the recovery of 12 bore double barrel gun P.7, which was taken into possession vide memo.
Exh.P.N. On the same day, Majid Hussain led to the recovery of 222 rifle P.8 with its licence P.9 from his house which were taken into possession vide memo. Exh.P.O. Maqbool Hussain Shah and Ikhlaq Hussain accused were also arrested on the same day. The Investigating Officer also arrested Khairat Hussain Shah and Mehmood Hussain Shah, appellants on 21-8-1994. Khairat Hussain accused while in police custody on 26-8-1994 led to the recovery of 7-MM rifle P.10, which was taken into possession vide memo. Exh. P.Q. On the same day, Mehmood Hussain Shah appellant also led to the recovery of 12 bore carbine P.11 which was taken into possession vide memo. Exh. P.R.
Report of Chemical Examiner is Exh. P.I, while reports of the .Serologist and Forensic Science Lab: are available on pages 20 and 21 of the paper book. According to report of the Fire Arms Expert, one 12 bore empty recovered from the spot matched with the carbine P.11 got recovered by Mahmood Hussain Shah, appellant while remaining empty cartridges did not match with the gun or pistol of any accused. It may be noted here that 7 empties of rifle 222 matched with the rifle of Majid Hussain Shah (P.O.). As far as recoveries of gun Wand 7 MM rifle from Zahoor Hussain and Khairat Hussain, appellants, those did not match with the empties of 12 bore gun or rifle 7-MM taken into possession by the Investigating Officer from the spot on the day of occurrence.
5. Prosecution in order to prove its case produced 13 witnesses in all. Amongst them, Ghulam Muhammad (P.W.1) was not injured witness while Ghulam Rasool (P.W.2), Ali Ahmad (P.W.3) and Ghulam Hussain (P W .4) were injured witnesses. Dr. Muhammad Younas Javed who conducted the post-mortem examination on the dead bodies of Muhammad Ali and Ghazanfar Ali and also medically examined Ghulam Hussain, Noor Muhammad, Ali Ahmad and Hassan Ali was examined as P.W.6. After conclusion of the trial, learned trial Court convicted and sentenced the accused as stated above.
6. Learned counsel for appellants has read before us the prosecution evidence, statements of the appellants under section 342, Cr.P.C. And submits that the eye witnesses produced by the prosecution are interested and inimical towards the appellants, they are co-related to the deceased; there is civil as well as criminal litigation going on between the parties, he specially referred to complaint, Exh. D.L. Filed by Syed Ittefaq Hussain Shah, brother of Ikhlaq Hussain Shah acquitted co-accused who was looking after the land of Zahoor Hussain Shah, appellant. Further submits that the complaint was filed on 13-9-1992 and in the list of witnesses, Zahoor Hussain Shah appellant was cited as a witness and that in the complaint both the deceased Ghazanfar Ali and Ali Muhammad were respondents/accused. Complainant was under section 337-A read with sections 148/149 and 506, P.P.C. Which is still pending. Learned counsel submits that there is no independent corroboration to the ocular account furnished by the prosecution against the present appellants, only one injury each is present on the persons of both the deceased; as far as injured P.Ws. Are concerned, they were standing close to each other and they received one pellet injury each and the same was caused by 12 bore pistol. Further submits that although there are injured P.Ws. But they cannot be termed as truthful witnesses; motive is not attributed to the present appellants; appellants have not been awarded any sentence regarding murder of Ali Muhammad because he received only one shot which was attributed to Majid Hussain Shah (P.O.). Learned counsel also submits that according to medical evidence, occurrence had taken place at 6/7 a.m.
On the fateful day and not at 1 p.m. As stated by the complainant in the F.I.R. And also before the trial Court and that the version put forward by Zahoor Shah, appellant during the investigation and also before the trial Court in his statement under section 342, Cr.P.C. Is more plausible than the version put forth by the prosecution. Learned counsel submits that if both the versions, one of the prosecution and other put by Zahoor Hussain Shah, appellant are put in juxtaposition, version of Zahoor Hussain, appellant is more plausible. Further submits that report of the Fire-arm Expert does not corroborate the version of the prosecution because according to that report empties recovered from the spot of 7 mm matched with the fire-arm of Majid Hussain (P.O.) and one empty of 12 bore shot pistol matched with pistol of Mehmood Hussain Shah, appellant and that as far as recoveries from Zahoor Hussain Shah and Khairat Hussain Shah, appellants are concerned same did not match with any empty recovered from the spot. Learned counsel lastly submits that the prosecution has failed to prove its case against the appellants.
7. On the other hand, learned counsel for the state assisted by learned counsel for the complainant submits that appellants are named in the F.I.R. With specific rules, it was a broad daylight occurrence, so there was no question of mistaken identity, ocular account is corroborated by medical evidence and the recoveries from the appellants; two innocent persons were killed in this case and that there are five injured witnesses in this case amongst whom 3 have been produced by the prosecution. Learned counsel for the complainant submits that opinion of the doctor about duration between the death and post-mortem is not binding on the Courts and cannot be taken into consideration for just decision of a case. He has relied on 1990 SCM R 1272 and 1996 SCM R 908.
8. We have heard learned counsel for parties and have carefully gone through the prosecution evidence recorded by the trial Court and statement of Zahoor Hussain, appellant recorded under section 342, Cr.P.C. For the just decision of this case, statement of the doctor who conducted postmortem examination on the dead bodies of two deceased and also examined the injured P.Ws. Is very important which is reproduced hereunder:--- "On 7-8-1994 I was posted as Medical Officer at R.H.C., Qaimpur. On the same day at 5-00 p.m. I conducted post-mortem examination on the dead body of Muhammad Ali son of Muhammad Sharif caste Arain aged 3,5 years resident of Mouza Ablani, Tehsil' Hasilpur, District Bahawalpur. The dead body was identified by Ghulam Rasool son of Muhammad Sharif resident of the same Mouza and Ghulam Muhammad son of Bhola. The dead body was brought by Muhammad Amjad 1063/C of Police Station Qaimpur.
EXTERNAL APPEARANCE ' Having following injuries on the body:---
1. An oval shape lacerated injury measuring 2.5 c.m. x 1 c.m. x cavity deep present on right side of chest anteriorly in IInd intercostal space in anterior axillary line. Wound was slightly burnt. Edges inverted. No tattooing or smoking present.
2. A lacerated wound measuring 5 c.m. Circular with everted edges present on left side of abdomen just below the 12th rib. Wound has slightly burnt. No smoking or tattooing present.
' CRANIUM AND SPINAL CORD.
' THORAX.
' ABDOMEN.
' MUSCLES, BONES AND JOINTS.
' REMARKS BY MEDICAL OFFICER.
' After thorough internal and external post examination I am of the opinion that injury damaged the heart, leading to blood loss 'Haemorrliagic shock' and death. Injury was anti-mortem in nature and insufficient to cause death in ordinary course of nature and was caused by the firearm. Time elapsed between the injury and death within few minutes. Time between death and postmortem within 24 hours on the same day, at 5-30 p.m. I conducted postmortem examination on the dead body of Ghazanfar Ali son of Ghulam Muhammad.
' EXTERNAL APPEARANCE.
' Having the following injures on the body.
1. There was a lacerated circular wound measuring 0.5 c.m. Diameter present in IIIrd intercostal space of right angle of sternum anteriorly. Wound was cavity deep. Edges of the wound were inverted and slightly burnt. No smoking or tattooing present.
' CRANIUM AND SPINAL CORD.
' REMARKS BY THE MEDICAL OFFICER.
' After thorough external and internal post-mortem examination I am of the opinion, that injury of the right lung caused loss of blood 'Hemorrhagic shock' with led to death. Injury was ante mortem in nature and was sufficient to cause death in ordinary course of nature. Injury was caused by fire arm. Probable time elapsed between injury and death within few minutes, between death and postmortem within 24 hours.
' On the same day, I examined Ali Ahmad son of Ghulam Qadir... Following injuries were found on his body.
1. Lacerated wound edges present 0.5 c.m. Circular X deep going with inverted edges present on right side of abdomen latterly.
' The injury was caused by fire-arm.
' On the same day, I examined Hassan Ali son of Ghulam Muhammad. Following injuries were found on his person.
1. There was a lacerated wound measuring 2 c.m. Circular with burnt edges present on anteromedial surface of lower 1/3rd of right upper arm, edges inverted. No smoking or tatooing present (Entrance wound).
2. Another lacerated wound measuring 2 c.m. x 1 c.m. Present on postromedial surface of lower 1/3rd of right upper arm, edges were everted, no smoking or burning was present (exist wound).
This would (entrance wound) was continuous with the exit wound through a track damaging the muscles of the upper right arm. ASD done. Advised X-Ray. Right upper arm AP and later. Injury was caused by fire arm.
' On the same day, I examined Ghulam Hassan son of Munshi.
' Following injuries were present on the body.
1. There was a lacerated wound 1 c.m. x 0.5 c.m. With burnt and inverted edges present in middle of dorsal surface of left foot.
2. Another lacerated wound measuring about 7 c.m. x 5 c.m. Irregular with everted edges present in the middle of medial surface of left foot (exist wound). Entrance wound was continuous with the exit wound through a track damaging the body of the left foot. Injuries were caused by fire-arm.
' On the same day, I examined Noor Muhammad son of Faqeer Muhammad.
' Injured had following marks of identification.
' Following injuries were found on his person.
1. A lacerated wound measuring 0.5 c.m. Into circular into deep going having invested edges present over left side of vertebral column in lumber region Injury was caused by fire-arm.
9. A bare perusal of the above said statement of the doctor would show that he conducted the post-mortem examination on the dead bodies of Ghazanfar Ali and Muhammad Ali at 5-00 p.m.
On 7-8-1994, the same day, when the occurrence took place. According to doctor, the duration between the death and the post-mortem examination was 24 hours and at least 13 hours. It shows that the occurrence had not taken place at 1 p.m. On 7-8-1994 assorted by the complainant as well as by the P.Ws. But it took place at 6/7 a.m. On 7-8-1994 as stated by Zahoor Hussain, appellant, in his statement recorded under section 342, Cr.P.C., so the duration given by the doctor between the death and post-mortem examination coincide with the version of Zahoor Hussain Shah, appellant.
The five injured P.Ws. Have received only one injury each with the dimension of 0.5 cm as is evident from the medico-legal reports of the injured P.Ws. So the possibility cannot be ruled out that all those injuries were the result of shot fired with 12 bore shot pistol, recovered at the potation of Mehmood Hussain Shah, appellant. The distance between the injured P.Ws. And the assailants was 20 feet, according to site plan, Exh. P.B. And when a 12 bore fire is made from such a long distance, pellets would spread. Moreover, one crime empty taken from the spot matched with 12 bore shot pistol, recovered on the potation of Mehmood Hussain Shah, appellant. Seven empties of rifle 222 recovered from the spot matched with the rifle recovered on the potation of Majid Hussain Shah (P.O.) and he was attributed the fatal shot on the person of Muhammad Ali. The recoveries affected from Zahoor Hussain, appellant of gun and 7 mm rifle from Khairat Hussain Shah, appellant, did not match with the empties recovered from the spot. Man can tell lie but the circumstances do not.
There being no independent corroboration to the statements of the eye-witnesses either from any independent source or from the medical evidence coupled with the report of the Fire Arm Expert, we are of the considered opinion that implication of Mehmood Hussain Shah, appellant, only is proved.
10. It is very important to note here that Syed Ittefaq Hussain, a Munshi, who was looking after the lands of Zahoor Hussain Shah, appellant had filed a complaint (Exh.D.L.) in the year 1992, 2 years prior to the present occurrence under section 337-A read with sections 148/149 and 506, P.P.C.
Against Ghazanfar Ali and Muhammad Ali, both deceased, complainant of the F.I.R. And the prosecution witnesses in the instant case. The complaint is still pending and Zahoor Hussain Shah, appellant, is one of the witnesses in the said complaint. Moreover, complainant of the complaint namely Ittefaq Hussain Shah is real brother of Ikhlaq Hussain Shah, acquitted co accused of the appellants.
11. Rule for dispensation of criminal justice in a case where prosecution has put its own version and the accused have a different version of the same incident, the version which is more plausible and near to realities and common sense is to be accepted. In the instant case, statement of Zahoor Hussain Shah, appellant, is necessary to be reproduced for the just decision. He while getting his statement recorded under section 342, Cr. P.C. Deposed: "Q.1., Have you heard and understood the prosecution evidence recorded against you in your presence?
' A. Yes.
' Q.2. Have you anything else to say?
' A. I had no motive whatsoever or any other against the complainant party.
In fact the actual and true facts are that on 9-6-1965 one Noor Shah son of Ghous Muhammad Shah sold his land measuring 64 Kanalas which included 4-K of Killa No,10 of Rect. No,1064 (Exh.D.C.). One Zamin Ali Shah son of Qalandar All Shah (real uncle of Mehmood Hussain Shah accused of this case) filed preemption suit against said Jan Muhammad and Noor Shah and in order to defeat the pre-emption suit filed by Zamin Ali Shah the said Jan Muhammad transferred the above said land measuring 64 Kanals to Muhammad Shah real brother of Noor Shah through mutation No,1120 Exh.D.D sanctioned on 4-11-1966. The Zamin Ali Shah got included the name of said Muhammad Shah son of Ghuas Shah as one of the defendants in the preemption suit which was ultimately decreed in his favour on 16-3-1998 by Civil Judge, Hasilpur Exh. D.E. The said Muhammad Shah son of Ghous Shah filed an appeal against the above said decree in favour of Zamin Ali Shah in the Court of Additional District Judge, Bahawalpur which was accepted on 4-12-1977 vide Exh. D.F.
Zamin Ali Shah filed R.S.A. No,13!1971/BWP against the judgment of Additional District Judge, Bahawalpur dated 4-12-1970. On 12-3-1976 stay order Exh. D.G. Was issued by the Hon'ble High Court in the above said R.S.A. No,13 of 1971/BWP whereby the respondents were ordered not to sell the land in dispute to anybody else till the decision of the above said R.S.A. During the pendency of the above said R.S.A. Zamin Ali Shah appellant died and his legal heirs were duly made party as appellants who are Syed Ibrahim, Syed Amir Haider, Syed Fida Hussain sons of Zamin Ali Shah, Syeda Fazal Bibi D/o Zamin Ali Shah and Syeda Sultan Bibi widow of Zamin Ali Shah. The said Muhammad Shah respondent in clear violation of the stay order of the Hon'ble High Court dated 12-31976 transferred the entire land in dispute measuring 64 Kanals in the name of his real sons Zahoor Hussain Shah and Abid Hussain Shah through mutation No,1934 Exh.D.H sanctioned on 13-2- 1983. The said Zahoor Hussain Shah and Abid Hussain Shah sons of Muhammad Shah respondent in clear violation of the stay order of the High Court mentioned above further transferred the land in dispute vide mutation No,2172 Exh.D.I. In the name of the complainant party Fateh. Muhammad and others. For the abovementioned reasons the legal heirs of Zamin Ali Shah i,e, Ibrahim etc. Were the real effectees and the grievance against the complainant party who were dragging them in litigation since the last so many years. The above said R.S.A. Was ultimately accepted by the Humble High Court vide order dated 25-9-1994 Exh. D.J. And the decree of the learned Civil Judge, Hasilpur passed in Zamin Ali Shah was restored and against the judgment of the Lahore High Court dated 25-9-1994 no appeal has been filed by either of the respondents nor by anybody from the complainant party.
' My land is adjacent to the land of Ittefaq Hussain Shah son of Iqbal Hussain Shah who is real brother of Akhlaq Hussain Shah my co-accused. The above said Ittefaq Shah used to manage and look after my land also. On 22-3-1992 at about 10 a.m. 9/10 persons of the complainant party including Ghulam Muhammad, complainant of this case, Ghulam Rasool, Bagh All P.Ws. Of this case destroyed our crop by plugging through tractor whereupon Ittefaq Hussain objected and the complainant party gave him severe beating. Ittefaq Shah on the same day got registered Rappat No,8 at Police Station Qaimpur Exh. D.K. But the complainant party due to his influence prevailed upon the local Police which did not register the case against the complainant party. I was cited as a witness in the complaint filed by Ittefaq Shah against Ghulam Muhammad complainant and others under section 337-A/148/149/506, P.P.C., copy of the complaint is Exh. D.L. And its list of witnesses is Exh. D.M. The complainant party delayed and prolonged the proceedings of the above said complaint filed by Ittefaq Shah and the same were pending during the days of occurrence in the Court of Magistrate Section 30, Hasilpur.
' On the day of occurrence at about 6/7-00 a.m. Ghazanfar Ali deceased Muhammad All deceased, All Ahmad, Hassan Ali, Ghulam Hussain, Noor Muhammad and Ghulam Rasool, P.Ws. Of this case duly armed with fire-arm reached in Killa No,6 near the house of Hassan Bukhsh Mochi along with a- tractor and Karah and they tried to carry earth and demolish the houses on the Western side of Killa No,6 in order , to establish their possession viz-a-viz. The land in dispute in above said R.S.A.
No,13/BWP pending in the High Court, because the complainant party was apprehending that the decision of the R S.A. Will be against them. On seeing the complainant party mentioned above with the tractor and Karah Shoukat Abbass son of Bashir Ahmad Shah, Zafar Shah son of Talib Hussain Shah (brother of Khairat Shah accused) Ibrahim son of Zamin Shah, Mukhtar Hussain son of Mehmood Hussain Shah (grand-son of Karam Hussain Shah) Majid Hussain Shah (since absconder) came there and forbade the abovementioned persons of the complainant party for interfering in their land or taking its forcible possession. Whereupon the above said persons of the complainant party started firing in order to harass the persons mentioned above of the accused party which resulted into an encounter between both the parties present at the place of occurrence. At that time both the deceased as well as the injured P.Ws. We're standing close to each other near the tractor. The abovementioned persons Shoukat Abbass and others took shelter behind the house of Hassan Mochi whereas the complainant party took shelter behind their tractor.
The above said persons of the accused party Shoukat Abbass and others only made one fire from 12 bore pistol and few fires from 222 rifle which was licensed one of Majid Shah accused (since absconder) in order to save their person and property. Thereafter, the complainant party leaving Ghazanfar Ali and Muhammad Ali deceased persons at the spot fled away from the place of occurrence. The residents of the locality and Shoukat Abbass and others mentioned above sent an information to the Police Station regarding the occurrence and at about 10/11 a.m. Police reached at the place of occurrence, took both the dead bodies and went to Police Station and on the following day in connivance with the complainant party, the Investigating Officer got registered the present case against us by widening the net and involving the entire prominent family members of Syed party. Ghulam Muhammad complainant was not present at the place of occurrence. I was neither present at the time of occurrence nor I had any motive what so ever to kill Ghazanfar Ali or Muhammad Ali deceased or to injure any of the P.Ws. Of this case. I am innocent...".
A bare perusal of the above quoted statement of Zahoor Hussain Shah, appellant, gets corroboration from medical evidence as according to appellant the occurrence had taken place at 6/7 a.Rn. And not at 1 p.m., as alleged by the complainant, and even according to opinion of the doctor, time elapsed between the death and post-mortem examination was 24 hours and at least 13 hours. So, the version put forward by Zahoor Hussain Shah, appellant, appeals to reasons and near to the truth and more plausible as to the version put by the prosecution.
12. Keeping in view the ocular account, post-mortem reports of both the deceased, medico-legal reports of the injured P.Ws. Report of the Fire-arm Expert and the version put by Zahoor Hussain Shah, appellant, we are of the considered opinion that possibility of false implication to the extent of Zahoor Hussain Shah and Khairat Hussain Shah appellants cannot be ruled out because in order to award the penalty of death sentence to any person, Court has to be very careful and has to see corroboration having come from an unimpeachable source which is lacking in the instant case. So, while extending the benefit of doubt, we acquit Zahoor Hussain shah and Khairat Hussain Shah, appellants from the charge of murder by setting aside the conviction and sentence recorded by learned trial Court. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. Death sentence of Zahoor Hussain Shah, appellant is not confirmed.
13. Now we take up the case of Mehmood Hussain Shah, appellant. He was armed with a carbine, one of the empty recovered from the spot matches with his carbine, he had fired at the time of occurrence, as alleged by the prosecution and the injuries on the persons of injured P.Ws. Show that those were pellet injuries. In this view of the matter, to the extent of Mehmood Hussain Shah, appellant, his appeal is dismissed and the conviction and sentence recorded by trial Court against him is maintained, in to.
' Murder Reference is answered in the negative. Death sentence awarded to Zahoor Hussain Shah, appellant is not confirmed.