' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,382 of 1998 filed by Muhammad Waris and Ghulam Hussain, appellants, who were convicted and sentenced by the learned Additional Sessions Judge, Layyah. Vide his judgment, dated 21-10-1998 as under:
(1) Muhammad Waris, appellant, death and to pay compensation in accordance with prescribed rate of Silver as on 1-4-1998, in default six months' S.I. On two counts under section 302(b), P.P.C.
(2) Ghulam Hussain, appellant, Imprisonment for Life on two counts under section 302/34, P.P.C.
With the benefit of section 382-B, Cr.P.C.
Murder Reference No,451 of 1998 for confirmation of death sentence or otherwise of Muhammad Waris, appellant shall also be replied through this single judgment.
2. Occurrence in this case took place at 3/4. p.m. On 30-6-1996 within the revenue estate of Chak No,278/TDA at a distance of 9 k.Ms. From Police Station Chowk Azam, District Layyah while the matter was reported to the police through complaint Exh.P.A. At 4-45 P.M. By Muhammad Amin complainant/first informant and the formal F.I.R. Exh. P.A./1 was recorded by Aziz Ahmad Head Constable.
3. According to the F.I.R. The facts of the prosecution case are that Muhammad Amin is a shopkeeper, on 30-6-1996 at about 3/4 p.m. He alongwith Muhammad Hanif, Muhammad Riaz, Ghulam Abbas and Muhammad Ramzan were going to Chak No,284/TDA after making purchase of house hold articles, when they reached on the Pacca road within the revenue estate of Chak No,278/TDA, at that time, Ghulam Abbas and Muhammad Ramzan were going few karams ahead, when the first informant alongwith others saw that four persons namely Muhammad Waris armed with rifle, Ghulam Hussain, armed with dagger, Noor, armed with pistol and Gulzar, armed with 12 bore gun emerged by raising lalkara, Muhammad Waris shot three fires at Muhammad Ramzan which hit on his chest, back side of the head and left hand, he fell down on the ground in an injured condition, Ghulam Abbas tried to run away towards east but he too was fired three shots by Muhammad Waris hitting on his chest, belly and left arm, the sooner, the first informant alongwith others stepped forward to rescue the victims, all the four accused exhorted lalkara that if anyone came near he will be done to death, Ghulam Abbas and Muhammad Ramzan succumbed to the injuries at the spot, and Muhammad Waris, Ghulam Hussain, Noor and Gulzar accused ran away from the spot by brandishing their weapons in the air. The motive alleged was that Muhammad Waris had suspicion about illicit relations of Muhammad Ramzan with Abida Parveen, sister of Muhammad Waris.
4. After registration of the formal F.I.R. Exh.P.A./1 Ghulam Shabbir, S.I. P.W.10 proceeded to the place of occurrence, took into possession the dead bodies of Ghulam Abbas and Muhammad Ramzan, prepared injury statement and inquest report Exh.P.J and Exh.P.K. Respectively of Ghulam Abbas, deceased, also prepared injury statement and inquest report as Exh.P.H. And Exh.P.I. Of Muhammad Ramzan deceased, took into possession bloodstained earth from the places of both the deceased vide memo. Exh.PM. And Exh.P.N. Prepared the site plan Exh.P.O. On 16-7-1996. Arrested Muhammad Waris and Ghulam Hussain, on the pointation of Muhammad Waris on 20-7-1996 rifle P.7 was taken into possession vide memo. Exh.P.E., dagger P.16, got recovered by Ghulam Hussain was taken into possession vide memo. Exh.P.Q., got prepared site plan Exh.P.B./1 and B/2, recorded the statements of P.Ws. And after completion of the remaining investigation, challaned, all the four accused to face the trial.
' At the trial, prosecution in order to prove its case produced 10 witnesses in all, then the learned ADA tendered in evidence, reports of the Chemical Examiner Exh.P.R. Exh.P.S., reports of the Serologist Exh.P.T., Exh.P.0 and closed the prosecution case, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. In their defence, the accused also produced Sardar Muhammad Iqbal, D.S.P. As D.W. I. After conclusion of the trial, Noor and Ghulzar were acquitted while the present appellants were convicted and sentenced as stated above by learned trial Court.
5. Learned counsel for the appellants after having gone through the entire prosecution evidence and other relevant material available on record submits that the appellants have been falsely implicated in this case, it was an unwitnessed occurrence, the deceased were vagabonds and were men of bad character, in fact it was a gang who used to deal in narcotics, the complainant was their partner, Muhammad Hand P.W.8, the alleged eye-witness was not the resident of place of occurrence and in fact he was resident of Okara, this witness was also brother-in-law of Muhammad Ramzan deceased, in fact the witnesses were not present, there are material contradictions in the statements of the witnesses, no crime empty was recovered from the spot, the complainant himself in the F.I.R. Had stated that Waris appellant was suspecting illicit relations of Muhammad Ramzan deceased with his sister which itself is a mitigating circumstance in favour of Waris appellant and that the prosecution has miserably failed to prove its case against the appellant. So far as, Ghulam Hussain appellant is concerned, though he was allegedly armed with dagger but he did not cause any injury to either of the deceased. Further submits that Ghulam Hussain is a first cousin of Waris appellant so the possibility of his false implication cannot be ruled out. Lastly submits that case of Ghulam Hussain, appellant is on similar footing to that of Gulzar and Noor, the acquitted co-accused.
' On the other hand, learned counsel for the State supports judgment of learned trial Court by submitting that it was a case of promptly lodged F.I.R., that there was no question of false implication, ocular account is corroborated by medical evidence and that it was a broad-daylight occurrence in which two innocent persons were murdered.
' We have heard learned counsel for the parties at a great length and have gone through the evidence recorded by learned trial Court with their assistance. In the instant case, occurrence took place at 3/4 p.m. On 30-6-1996, matter was reported through complaint Exh.P.A. At 4-45 p.m. At Adda Kot Murad and the formal F.I.R. Was registered at 5-15 p.m., the same day so it was a case of promptly lodged F.I.R. Names of tile accused, the weapons they were carrying and the roles they played have been specifically mentioned in the F . I. R .
' The motive alleged in the F.I.R. Was that Waris appellant had suspicion that Muhammad Ramzan deceased was carrying on with his sister. If the motive as alleged is taken into consideration then it may be seen why Ghulam Abbas was also murdered. It B was not a case of grave and sudden provocation. Even otherwise weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute a mitigating circumstance if otherwise the eye-witness account was worthy of credence, unimpeachable, confidence inspiring and the accusation was established beyond any shadow of doubt.
' Muhammad Amin eye-witness P.W.9 is real brother of Ghulam Abbas deceased while Muhammad Hanif P.W.$ is brother-in-law of both the deceased. They had got no enmity with the appellants.
There was no reason for them to falsely implicate the convicts. The occurrence took place in broad daylight so there was no question of mistaken identity. Muhammad Waris appellant while armed with 12 bore rifle fired three shots each on the persons of two deceased. Had there been any false implication, it was very easy for the complainant to ascribe one shot each to any of the accused, who were three in number apart from Muhammad Waris when admittedly three shots each were fired on the persons of two deceased persons. What the witnesses witnessed, they stated the same in truthful manner.
' The post-mortem examination on the dead bodies of two deceased was conducted by Dr. Qazi Muhammad Munir P.W.6 at 12-00 midnight on 1-7-1996 while the occurrence had taken place at 3- 4 p.m. On 30-6-1996. The duration given by the doctor between the death and post-mortem was about 24 hours which coincide with the time of occurrence. The ocular account is fully corroborated by medical evidence. Non-recovery of empty from the spot does not advance the case of defence because it could be due to rush of the people, who had gathered at the place of occurrence and merely on the basis that no crime empty was recovered from the spot, the prosecution cannot be made to suffer.
' In our considered view it was Muhammad Waris appellant, who committed the murder of both the deceased namely, Muhammad Ramzan and Ghulam Abbas. He fired three shots each on the persons of the deceased rather murdered them in a brutal manner so neither he deserves any leniency nor there is any mitigating circumstance in his favour so far as quantum of sentence is concerned. In this view of the matter, appeal to his extent is dismissed, conviction and sentence recorded by the learned trial Court is maintained, his death sentence on two .Counts is confirmed and the murder reference is replied in affirmative.
' Now we take up the case of Ghulam Hussain, appellant. According to F.I.R. Itself he was though armed with dagger but did not cause any injury to either of the deceased persons. Waris appellant having 12 bore rifle in his hands, carrying of a dagger by Ghulam Hussain to attack the opposite party does not appeal to reasons. He is otherwise cousin of Waris appellant. To implicate the close relation of the actual culprit has become a call of the day specially in the area where the occurrence had taken place. Noor and Gulzar co-accused of Ghulam Hussain, who were armed with pistol and 12 bore gun respectively but did not cause any injury to any deceased like Ghulam Hussain, appellant, have been acquitted by the learned trial Court. So the case of Ghulam Hussain appellant is similar to those of acquitted co-accused. Following the rule of consistency, conviction and sentence recorded against Ghulam Hussain, appellant is set aside, to his extent this appeal is allowed. He is on bail and his bail bonds shall stand discharged.