1. MUHAMMAD HALEEM. J.-This appeal has arisen from a Petition for Special Leave to Appeal No. 80 of 19?3, filed by Mokha, a prosecution witness, to assail the judgment dated 7-2-1973 of a Division Bench of Lahore High Court, Lahore.
2. Fourteen persons, namely, Zulfiqar Sarwar, Salabat son of Jahana, Allah Yar, Azam, Hota, Sooja, Mathela, Murad son of Walia, Bahadur, Salabat ton of Momand, Murad son of Karam, Rajada and Ahmad were tried by the Additional Sessions Judge, Lyallpur for the murders of Wali Dad and Ahmad, causing the evidence to disappear, dishonest misappropriation of deceased's property and rioting with deadly weapons. Out of them Zulfiqar. Sarwar Salabat son of Jahana, Allah Yar, Aaam. Hota, Sooja and Rajada were con. Victed on charge under under sections 148, 302 and 201 read with 149 of the Pakistan Penal Code. On the charge under section 404, P. P. C. Only Sooja was convicted. On the capital charge Zulfqar, Sarwar, Sxlabat son of Jahana, Azam, Rajada and Ahead were sentenced to death on two counts while Sooja. Hota, and Allah Yar were sentenced to tranaportntion for life on two counts. On the other charges they were sentenced to various terms of Imprisonment by judgment dated 21-12-1970.
3. On appeal and reference the Division Bench upheld the convictions of Zulfiqar, Rajadh and Azam on the capital charge but acquitted them on other counts, i.e., sections 201 and 148, P. P. C. The others, namely Sarwar, Salabat. Ahead Allah Yar, Hota and Sooja were acquitted. File Division Bench further substituted transportation for life for the capital sentence passed on Zalfiqar, Asam and Rajada.
4. Leave to appeal was granted against the acquittal of respondents Nos.4 to 9 to re-examine the evidence in the context of the inconsistent finding of the High Court about the veracity of P. Ws.
5. Chakar, Kamir, Ghulam and Sada. In one paragraph of the judgment it was hold that their evidence was worthy of belief and in the succeeding paragraph it was stated they were interested as they belonged to the party of Zulfiqar P. W. The next question posed for consideration was as to whether for the reasons stated, the High Court was justified to substitute the lesser penalty of transportation for life In the case of Zulfiqar, Azam and Rajada.
6. It is the prosecution case that Muhammad Nawas, father of Zulfiqar, tire first respondent was murdered by Amir son of Sultan, Wali Dad, brother of P. W. Zulfiqar, Muhammad Nawas son of Asarn, Nawaz son of Ahead and Ghulam son of Mahmood on the 8th January 1956, and a case of murder was registered against them at Police Station Arouti, District Lyallpur. They were tried and acquitted. The murder of Walidad was committed to avenge that murder. It was stated that on the 3rd February 1968, Zulfiqar, Walidad and Ahead went to see the bullock race at a place near the well 'Kali Wala Daehli Jawaya Panwar'. At Digarwela when they were on their way to their well, Zulfiqar, Sarwar. Salabat son of Jabana, Allah Yar, Azam, Hota, Sooja, Rajada and Ahmad suddenly emerged from the ambush. Out of them Hota, Sooja, and Allah Yar had longs while the others were armed with guns. Zulfiqar gave a Lalkara that he would take revenge that day from Walidad for the murder of his father and no one shout l come near him. Thereupon Zulfiqar, Sarwar, Ahmad, Rajada, Asam and Salabat son of lahana opened fire at the deceased injuring Walidad and Ahead who was near him. Walidad fell down while Ahmad ran for some distance and ho too fell on the ground. Those armed with dangs caused injuries with it to Walidad who expired at the spot. Ahmad also died. The respondents and the acquitted accused thereafter took the body of deceased Walidad on a mare and so also his '12 bore gun and the bandolier containing cartridges. The incident was also witnessed by Kamir, Chakar, Ghulam and Sada. Leaving Kamir and Sada at the Ppot Zulfiqar went to lodge the report and on the way he met Inayatullah A. S. 1. Police Post Arouti at 7 p.m. At Adds Arouti who recorded his statement which was treated as F. I. R. Form there the A. S. I.
7. Proceeded to the spot where he recorded the statements of the eye-witnesses and thereafter dispatched the dead body of Ahmad for post--mortem examination. He took into possession '12 empty cartridges (P. 7/1-12), at .Rood (P. 6) and blood-stained earth from the place where Walidad was said to have been shot at and killed. It was the Kills No. 18 of Square No. 15. He also secured blood-stained earth from the place where the body of deceased Abroad lay which was Killa No. 10 of Square No. 15. Zulfiqar, Adam, Sarwar, Salabat son of Jahana, Allah Yar, Hota and Sooja were arrested on 14-2-1968, and Ra)ada and Ahead on 19-2-1968. At the time of their arrest Zulfiqar, Asam. Rajada, Sarwar and Salabat son of Jahana were armed with guns and their ;funs were taken into possession. On 2'-2-1968 Azam led to the recovery of 10 pieces of skull bones and six teeth, buried at a place near Chah Kachiwala on the bank of river Ravi. A mare belonging to Rajada was produced by Waliah son of Jahanan and taken into possession.
8. The medical evidence disclosed that deceased Ahmad had suffered five gun ehot injuries which caused his death. The bones and the teeth were sent for examination to Dr. Muhammad Hayat Malik after a year and half and his opinion was that the teeth were of human origin and of one and the same person aged about 30 to 45 years. As to the bones, he stated that three pieces were of skull but he was unable to say whether they were of human origin. He was unable to give the cause of death. However, he gave the probable time of death as over six months.
9. The crime empties were sent to the Forensic Laboratory on the 9th February 1968, while the seized guns were delivered in the office on the 4th March 1968. The guns of Zulfiqar. Rajada and Azam matched with some of the crime empties but not the guns of Salabat and Sa:war. Blood-stained earth secured from the three places was stated to be stained with human blood.
10. Lastly, the dead-body of Abdul Wahab was brought for post-mortem examination on 20-2-1968, and it transpired that he had suffered a gun shot injury on the thigh about which the duration was stated to be two weeks but the cause of death was said to be heart failure.
11. As the outset I may mention that the first three respondents had not preferred any appeal against their convictions which has assumed finality. It is the acquittal of respondents Nos.4 to 9 which is the subject matter of this appeal and so also the legality of the substituted sentence of those convicted.
12. The prosecution examined Zulfiqar (P. W. 24) Chakar (P. W. 25) Kamir (P. W. 26), Ghulam (P. W. 27) and Sada (P. W. 28) to furnish direct testimony in the case. As for Zulfiqar and Karim P. Ws,, the trial Court held that the former is the brother of deceased Walidad while the latter is distantly related to deceased Ahead through a common ancestor but despite their relationship he could not be regarded as interested witness as he had no motive to falsely implicate respondents Nos.4 to fl. As for Chaker (P. W. 25), he was of the same case as deceased Ahead but the other two namely, Ghulam and Sada were of a different case. They were neither related to the deceased nor to Zulfiqar and Kamir. No motive was suggested to them to show even a remote possibility of their being interested in the deceased or the other two prosecution witnesses and, therefore, the trial Court held that they were disinterested witnesses. In regard to their presence the trial Court held that there was nothing unnatural in their version that they had seen the incident while they were returning at Digarwela after witnessing the bullock race. As to the defect pointed out in their evidence, namely, that they had subsequently Involved Mathela. Murad son of Walia, Bahadur.
13. Salabat son of Momand. Murad son of Karam and Wabab whose names did not transpire in the First Information Report, the trial Court held : "Were the said P. Ws. To implicate accused Nos, 8 to 12 and Wahab deceased accused in the occurrence falsely, there was no necessity for them to say that they arrived at the later stage and they did not give even a single blow to any of the two deceased. In fact they seem to have stuck to the truth and have deposed that they arrived at the scene at a latter stage and in fact when at least Walidadde ceased had been done to death."
14. And at best the absence of their names from the first Information Report may entitle them to the benefit of doubt but it could not be said that these witnesses had falsely implicated them and, therefore, their evidence was unreli--able. As to Zulfiqar not having mentioned their names in the First Informa--petition Report the trial Court held that on some account of doubt about their participation in the crime he had omitted to mention them, for, it is probable that they would have appeared at the scene either on hearing the gun shots or while returning from the races and joined the others because of their connec--petition with them giving an impression that they had not taken part in the crime. But, subsequently when it transpired that they had accompanied the respon--dents they were also Implicated. Accordingly the trial Court did not regard it as a fatal mistake.
15. The trial Court next relied on the testimony of Machia P. W. 15 and Allah Yar P. W. 17 who were independent witnesses and had seen the body of deceased Walidad being taken on a mare towards river Ravi which found assurance from the recovery of blood-stained earth from a place near Chack Kachiwala where it was alleged that his body was cut to pieces and the discovery of human teeth and some skull bones which in all probability were of human origin.
16. As to Wahab having been seen limping after the incident, the trial Court held that he must have been accidentally hit by the shots fired by the respon--dents and this feature would not affect the prosecution case despite the fact that the prosecution witnesses did not say as to how he had suffered the injury.
17. Lastly, as to the discrepancies and contradictions in their evidence, it was held that the witnesses had given evidence after the lapse of more than 21 years and it seems that they had not been able to recall correctly certain facts In their evidence due to lapse of memory. And this feature would not affect their credibility as human memory is not infallible. Accordingly, the trial Court recorded convictions against respondents Not. 4 to 9 as before mentioned.
18. The Division Bench while scrutinising the testimony of Chakar, Kamir, Glhulam and Sada held "The statements of these witnessess are consistent and but for small discrepancies here and there which are not of any material consequence, they have narrated the prosecution story consistently." "much interested in the avenging the death of the father of Zulfiqar and Sarwsr as those two boys themselves.
19. Therefore, Zulfiqar P. W. Was interested against all of them, because they were the enemies of Walidad. They further held "The other four witnesses belonged to his party and therefore, it is not safe to base any conviction upon the statements of these witnesses unless some corroboration can be found."
20. Accordingly the Division Bench acquitted respondents Nos.4 to 9 as no such evidence was available against them.
21. Evidently, therefore, the acquittal of these respondents was based on the above conclusion. To dislodge it the learned counsel for the appellant vehemently urged that it was based on a misreading of evidence and was factually incorrect. He invited our attention to the evidence of Chakkar (P. W. 25), Kamir (P. W. 26), Ghulam (P. W. 27) and Sada (P. W. 28) who were cross- examined at length but no interest was elicited from them to make them interested qua Zulfiqar P.
22. W. To Sada (P. W. 28), it was suggested in cross-examination that he was a tenant of deceased Walidad and Zulfiqar (P. W. 24) in 1968-69 in Square No. 20 of Nawab Bhooti. He was not con-- fronted with Exh. D. B. (Khasra Girdawari) nor with Exh. D. L. (Jamabandi).. In Exh. D. B. His name is not mentioned whereas in Exh. D. L. One Sid& is shown as a tenant but his parentage is different.
23. Without such confrontation these extracts can hardly serve any evidentiary purpose but in spite of it they also do riot establish his status as tenant of either deceased Walidad or, 7.Ulfiqar. The denial of the suggestion by Sada wag sufficient to repudiate its correctness. Hence no inference could be drawn to show his leaning towards Zulfiqar P. W. Or deceased Walidad. This is equally true in the case of Chakar, Kamir and Ghulam. Apart from the relationship of Kamir with deceased Ahmad though a common ancestor, there is nothing on reccord to show that they were inimically disposed towards respondents Nos.4 to 9. For, not even a suggestion was made to them in this behalf in their cross-examination. Mere relationship of Kamir with deceased Ahmad would not make him an interested witness in the absence of any malice against these respondents. Therefore, to all intents and purposes he was a disinterested witness.
24. The trial Court upon scrutiny of their evidence, as before mentioned, held them to be impartial witnesses. The Division Bench without adverting to the reasons given by the trial Court concluded otherwise and that too without giving any reason to support the bald conclusion.
25. The learned counsel submitted that they are unreliable witnesses as they have falsely involved Mathela, Murad son of Walia, Babadur, Slabat son of Muhamand, Murad son of Karam and Wahab whose names were not mentioned in the First Information Report lodged by Zulfiqar P. W. Adverting to this contention I may state that the presence of these witnesses has not been doubted by the High Court as their names transpired in the First Information Report and they were examined at the spot by Inayatullah S. I, The Division Bench has not assessed their credibility from this angle. But their is nothing in their cross-examination to show that they had not involved these persons at the very outset. This is evident from the omission to elicit a contradiction from their 161, Cr. P. C.
26. Statements. In their testimony at the trial they have stated about the presence of these persons and the removal of the dead body of the deceased on a mare ridden by Hota and provided by Mathela. They have also mentioned about Wahab limping while accompanying the others. As to the others they have contributed specific parts, i.e. Of firing their guns to Zulfiqar, Sarwar. Rajada, Slabat son of Jahana, Ahmad and Azam at Walidad and Ahmed and of inflicting Dang blows on Walidad to Allah Yar, Hota and Sooja. They have also implicated Sooja of having taken away the gun of deceased Walidad and his bandolier containing cartridges. The number of the crime empties found at the spot is consistent with the participation of the persons who were armed and had fired heir guns. Equally there is nothing to disprove their venslon that Hota, Allah Yar and Sooja bad caused dang blows to deceased Walidad as his body was taken away from the spot and, therefore it was not subjected to post-mortem examination. They have withstood the lengthy cross-examination without letting out any material to doubt their veracity. The contention of the learned counsel. Therefore, rests entirely on the names of those persons not having been men-- tioned in the First Information Report. Such omission cannot be used to belie the credibility of these witnesses as the First Information Report can only be used to corroborate or to contradict its maker. As before mentioned A the trial Court has given reasons for holding that the omission on the part of Zulfiqar was on account of a bona fide mistake as to their participation but the evidence produced in Court established their presence though in the ultimate analysis they were given the benefit of doubt. Hence the contention is without substance.
27. The next criticism was that Chakar, Kamir, Ghulam and Sada had failed to mention the names of some of the eye-witnesses either in their Police or Committal Court Statements and for that reason they cannot be regarded as reliable witnesses. The contention in this form was raised before the trial Court and repelled for the reasons given as under "It has also been argued that the P. W. 25 to P. W. 28 did not name all the eye-witnesses before the police in their statements recorded under section 161, Cr. P. C. And before the Committing Magistrate. How--ever, this is not a discrepancy in the evidence of the P. Ws. Because statements before the police are recorded just to see that innocent persons are not dragged into litigation and as such cannot be the complete record of evidence to be produced in the case and because the proceedings before the Committing Magistrate are in the nature of an enquiry for seeing that the cases are not committed to the Sessions Courts unnecessarily. Therefore, the record of evidence is not so completely prepared even at that stage. Further, the P. Ws. Are to answer the questions put by the prosecutor, may be a P. S. H. Or an A. P. P. And if he does not put all the questions relating to the case, the witness has got to omit something which has not been asked from him. For such an omission the case of the prosecution. Cannot suffer in any manner. P. W. 25 to P. W. 28 have now where either before the police or before the Committing Magistrate excluded the presence of any P. W. It would have been a different case if any of them had -.Toted that such and such person was not present at the time of occurrence. To repeat it, none of them has stated so. Besides that it has been laid down in Syed Sharykddin Pirzada v. Sohbat Khan 1968 P Ca. L J 1720 that mere omission of a particular fact in a previous, statement cannot be treated as contradiction. As such the omission of the names of some of the P. Ws. By the said eye-witnesses in their previous statements before the police and before the Committ--ing Magistrate does not injure the case of the prosecution and cannot shake the credit of the said P. Ws."
28. The names of all the eye-witnesses transpire in the F. I. R. And it is no--body's case that some of those not mentioned in the statements wore discovered later. On this view of the matter the omission is inconsequential and the trial Court rightly did not give any effect to it.
29. The Division Bench also did not consider the testimony of Machia (P. W. 15) and Allah Yar (P. W. 17).
30. Both these witnesses bad seen Hota riding a mare and carrying on it the dead body of Walidad and the other respondents following the mare on foot. The former had seen them while coming from Mirma Shah towards his house in Nawab Bhooti and the latter while sitting at his Dhari in his Chak. Machia went to the spot on being in formed at his house that Ahmed had been killed. Allah Yes stated that he also went home and from there to the spot as he was attracted by the alarm and noisefrom the side of Chah Ramkali. Both these witnesses had volun--tarily appeared before the S. I. To give their statements. They had no enmity against respondents Nos.4 to 9 and others nor were they in any way con--nected with Zulflqar or deceased Walidad. No doubt Allah Yar was related to Ahmad but principally his evidence relates to respondents Nos.4 to 9 and others accompanying the mare and proceeding towards Chah Kachiwala. He is, therefore, to all intents and purposes, a disinterested witness and so is Machia.
31. It is true that their evidence is discrepant in certain respects but that would not affect their credibility as the discrepancies are not of a kind to create a reasonable doubt in the version put across by them. The discrepancies t; pointed wet in their evidence and also noticed by th-, trial Court are the result of a slip due to passage of time and nothing turns on them. The trial Court while rejecting this contention observed thus "The learned counsel for the accused have pointed out that while P. W. 15 says that the accused had five guns, P. W. 17 says that they had seven guns. P. W. 15 does not mention the gun of Aaam accused. But this in fact is not a contradiction because powers of observation differ from person to person. While P. W. 17 could observe all the seven including the one taken by Sooja accused from the spot. It was a ghastly scene and P. W. 15 could very well omit to observe the remaining two guns. It is also argued that none of the said two P. Ws. Claimed to have talked to any of the accused when they saw them talking away the dead body. In fact they could not talk to them and they should not have talked to theca because the accused were armed and in a desperate mood because they were taking away the dead body of a murdered man. As such the evidence of P. W.
32. 15 and P. W. 17 suffices to prove that the accused took away the dead body of Walidad deceased towards river Ravi."
33. It was next contended that Machia had omitted to mention about Wabab being amongst those whom he had seen. But this is not a crucial point upon which his evidence can be discarded. I may here point out that the fate) of the case does not hang on mere omissions and discrepancies if otherwise they are not of a substantial nature to create reasonable doubt in the prosecution case.
34. It was further contended that the prosecution witnesses had deliberately suppressed as to how Wahab suffered the gun shot injury. To support the contention that this injury could have been caused by deceased Walidad the learned counsel invited our attention to the fact that some of the crime empties had not matched with the seized guns and, therefore, it was likely that those crime empties could have been fired from the gun of deceased Walidad. If at all Wahab had been injured by the firearm of deceased Walidad, then he would not have failed to lodge a counter-complaint.
35. His silence gives an impression that it would have exposed some weakness. Therefore, it was likely as the trial Court has held, that he was injured by the shot of one of the persons firing the guns at the deceased. The range as deposed to by the Doctor is consistent with this finding as he must have been near them. I have no reason to differ from this finding. In any case, this feature has no importance, for, Wahab was not tried and no case of self---defence was raised at the trial. As for the crime empties, it is conjectural to assume that since they had not matched, therefore, they were likely to have been fired from the gun of Walidad.
36. The factum of the homicidial death of Walidad cannot also be in doubt. There is direct evidence to point that he was shot at and killed and that dead body was removed on a mare.
37. The securing of blood-stained earth from the place where he is alleged to have fallen, the seizure of his Jooti from the spot, hit dead body having been seen being taken on a mare towards Chah Kaehiwala, the discovery of human teeth at the instance of Azam at a place where ordinarily human teeth are not be found and the securing of the blood-stained earth from there, cumula-- tively lead to the only inferential conclusion that his dead body was removed and cut to pieces and later disposed of. The modus operandi is the sum as in the case of Muhammad Nawas whose body was also disposed of without being discovered in retaliation of whose murder deceased Walidad was killed. The trial Court also held that Walidad was not only murdered but his del body were taken away and dealt with and disposed of, in the mariner stated. Above, i.e.. Cut into pieces on the bank of river Ravi and thrown into it. However the Division Bench held that conviction under section 201, P. P. C. Could not be sustained for, there was no "corroboration of the ocular testi-- mony in this respect of the interested witnesses." The Division Bench also expressed doubt as to whether the teeth had anything to do with the body of Walidad and were also uncertain as to why the teeth would be buried while the other pieces of the body would be disposed of. These reasons appear to me to be without substance, for in the context of the evidence produced it is not possible to deny the seizure of the teeth and the blood--stained earth. Again, as observed earlier, it was not a place where dead bodies were buried and therefore the discovery of the teeth from that place had some meaning which could not be lightly brushed aside merely on con--jectural reasoning. In the case no foundation was laid to show that the teeth could be of some other human being about which Azam had knowledge as to the plat: where they were buried. The fact of its discovery at the instance of Azam goes to show that they were of deceased Walidad as he was himself concerned in the commission of the offence and had taken part in the disposal of the dead body. Therefore, it was futile to insist on the identification of the teeth as the Division Bench has held.
38. Both the Courts have held that Zulfiqar and Sarwar bad motive to avenge the murder of their father Muhammad Nawaz. Zulfiqar's sister is married to Allah Yar. Selabat and Ahmad are cousins Inter se while Hots Is a nephew of Ahmad. Sonja is maternal uncle of Mathela. Rajada and Ahmad are the friends of Zulfiqar. Therefore, even if the others had no personal motive to kill Walidad, yet they had by actively participating in the crime shown that they were out to help Zulfiqar to avenge that murder. Accordingly the prosecution has established that respondents Nos.4 to 9 had acted in aid of Zulfiqar.
39. The basis of the acquittal of respondents Nos.4 to 9 therefore, had no foundation. The tt:st'imony of Zulfiqar stands duly corroborated by disin--terested testimony of Chakar, Kamir, Ghulam, Sada.
40. Machia and Allah Yar not only as to the killing of the two deceased but also as to the subsequent disposal of the dead body of Walidad. The Division Bench without scru--tinising the evidence of Ghakar, Kamir, Ghulam and Sada held them to be interested witnesses. Similarly they did not even advert to the evidence of Machia and Allah Yar who had subsequently seen the respondents Nos.4 to 9 and others taking the dead body on a mare which was ridden by Hate. The Division Bench also failed to consider as to whether those witnesses could be said to be interested qua the murder of deceased Ahmad against whom no enmity is either suggested or established. Accordingly the acquittal of respondents Nos.4 to 9 rests not only on misreading of evidence which has led to an erroneous appraisal of evidence, but also failure to consider material evidence on record. The conclusion, therefore has led to a grave miscarriage of justice.
41. Accordingly, I would convict respondents Nos.4 to 9 under sections 30 road with 149, P. P. C. For the murder of the two deceased on two counts. As to the charge under section 201 of the P. P. C. I will refrain from convicting them on this charge as they have boon convicted on the principal charge of murder. I further convict them under section 148, P. P. C. Sooja alone was convicted under section 404, P. P. C. By the trial Court and I would convict him accordingly.
42. Now remains the question of sentence. In altering the sentence of death passed on Zulfiqar, Azam and Rajada the Division Bench held that Zulfiqar had committed the murder 'out of a sense of honour and self respect' placing reliance on the case of Ajun Shah v. State (l). As to the other two, the Division Bench held that 'they were his close associates and would be smarting under the grievance as much as did Zulfiqar and we do not find any material difference between the case of Zulfiqar sad these two co-accused. In the subsequent case of Mehr Muhammad v. The State (2), Ajin Shah v. State was considered and it was held that even if the murder was an out-come of family feud, private revenge cannot be regarded as a mitigating circumstance for awarding lesser penalty. Obviously, therefore. This consideration could not have of any general application. Besides, this consideration could no have been pressed in the case of Ahmad against whom there was no motive. P Accordingly the Division Bench on this basis was not justified to alter their sentence from death to transportation for life. It was next urged that on account of delay of over four years in the disposal of the appeal, capital sentence should not he imposed. A further contention was raised that those acquitted had earned the expectancy of survival which too was a material consideration for not imposing capital sentence.
43. PLD 1971 SC 541), it was held that the doctrine of expectation of life will not apply to an erroneous order causing grave miscarriage of justice but if inordinate delay occurs in the disposal of a appeal against the order of acquittal, the appellate Court may refrain fro exacting the extreme penalty of death. This would, however, depend on the facts of each case. In Samano v. The State (1973 SCM R 162), it was held that the mere length of time taken in concluding the trial and to deciding the appeals would] not by itself constitute an extenuating circumstance justifying the imposition of a lesser penalty. Abdul Rashid v. Umaid A.I and others (PLD 1975 SC 227), which was al case of an appeal against acquittal the lapse of six years and the expectancy of survival were not regarded as extenuating circumstances in the context of the murders having been committed in a brutal fashion. Mst. Razia Begum v. Hijarayat All (PLD 1976 SC 44), after reviewing the cases of Asadullah Khan v. Muhammad A.I and Muhammad Khan v. Dost Muhammad (PLD 1975 SC 607), it was bold that it would amount to a miscarriage of justice if on the basis of doctrine of expectancy of life the normal sentence of death was not imposed. It that case the respon--dent was an arch culprit and had the prime motive to kill his successful adversary in the matter of the allotment of an 'Khata' in dispute. This circum--stance was taken to exclude the case from the doctrine of expectancy of life. In Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452), it was held.
44. "As regards the doctrine of expectancy of life, in view of the chronic delays In commital, trial and disposal of appeals as also the deliberate tactics of the convicts to delay the proceedings in order to escape the gallows there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v. Muhammad All PLD 1971 SC 607 and Mat. Razia Begun v. Hijarayat AB and 3 others PLD 1976 SC 44 and the doctrine like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court."
45. But consideration of the circumstances which could be pressed to award lesser sentence have not been excluded so much so that in case the sentence was not enhanced as the convicts had secured their release from jail after having undergone the entire sentence of life imprisonment inclusive of the remission earned by them. The other reason being that no one had come forward to prosecute the appeal for the enhancement of the sentence.
46. Concluding therefore, the doctrine of expectancy of life has hardly any application, as pointed out in the case of Asadurlah Khan v. Muhammad Alt. As for the delay in the disposal of the appeal or private revenge, these consi--derations do not have any general application in the matter of awarding lesser sentence. It is the facts and circumstances of a particular case which can provide an extenuating circumstance.
47. The trial Court had failed to award compensation under section 544-A, Cr. P. C. The Division Bench while maintaining the convictions of Zulfiqar, Azam and Ralada also did not award any compensation. Accordingly, there was no compliance with the mandatory provision. If would, therefore, direct that the respondents shall pay a fine of Rs. 1,000 each as compensation to the heirs of the two deceased in equal shares, under section 544-A, Cr. P. C. Or in default, to suffer rigorous imprisonment for six months.
48. Accordingly, the appeal is allowed and the judgment of the High Court stands modified to the extent indicated above.
49. DORAB PATBL, J-I agree.