' KHAWAJA MUHAMMAD SHARIF, J.--'-Mian Muhammad, Atta Muhammad sons of Ladha, Muhammad Azam, Noor Muhammad sons of Sher Muhammad, Muhammad Feroze son of Noor Muhammad, Muhammad Yaqoob son of Muhammad Yousaf and Muhammad Hayat son of Nabi Bakhsh were tried by learned Judge, Special Court, constituted . Under the Anti-Terroism Act, 1997, Sargodha for committing murders of Falak Sher, Muhammad Feroze Muhammad Ashraf, Muhammad Aslam sons of Muzaffar Khan, Yar Muhammad, Muhammad Shameer and murderous assault upon Ahmad Sher. The said learned Judge by virtue of his judgment dated 14-3-2002, found Atta Muhammad, Muhammad Azam, Noor Muhammad, Muhammad Feroze and Muhammad Yaqoob guilty of the said charges, convicted and sentenced them as under:-
(i) Under section 302(b)/149 P.P.C.
' To death each on six counts with further direction to pay a sum of Rs,1,20,000 each on each count to legal heirs of each deceased by way of compensation as envisaged by the relevant provisions of section 544-A. Cr.P.C. Or in default thereof to suffer rigorous imprisonment for six months each on each count.
(ii) Under section 324/149 P.P.C.
' To rigorous imprisonment, for ten years each for causing injuries to Ahmad Sher P.W with a fine of Rs,20,000 each or in default thereof to further undergo rigorous imprisonment for two years each.
(iii) Under section 337-D/149 P.P.C.
' To rigorous imprisonment for ten years each for causing injuries to Ahmad Sher P.W. With further.
Direction to pay one third of Diyat each collectively or in default thereof to further suffer simple imprisonment till payment of Arsh.
(iv) Under section 148 P.P.C.
' To rigorous imprisonment for three years each with a fine of Rs,5,000 each or in default thereof to further undergo rigorous imprisonment for two months each.
' Sentences under sections 324/337- D/149/148 P.P.C. Shall run concurrently with benefit of section 382-B Cr.P.C.
' The learned trial Judge, however, by giving benefit of doubt to Mian Muhammad and Muhammad Hayat accused, acquitted them of the charges.
2. Murder Reference ' No,21/T of 2002 seeks, confirmation of said sentence of death awarded to the above said convicts, whereas they by filing Criminal Appeal No,407 of 2002 have called in question convictions and sentences passed against them by the learned trial Judge. We propose to dispose of both these matters together through this single judgment.
3. Occurrence of the alleged incident took place on 2-23-1999 at 6-30 a.m. And the matter way reported to ljaz Hussain, S.1 (P. W.28) by Muhammad Amir-complainant (P.W.1) at the police station on the same day at 8-15 a.m. The said police official as per dictation of the complainant drew up (Exh.P.A) without any addition or substraction on his part.
4, Brief facts of the case as enumerated in F.1.R. (Exh.P.A) are that on 29-8-1999 in the morning, the complainant, his son Muhammad Nazir, his nephew Ahmad Sher were going to irrigate land situate in the area of Mouza Hadali, by boarding a car bearing No, Katichi i1845, whereas his other nephews Falak Sher, Muhammad Feroze, Muhammad Ashraf, Muhammad Aslam, his brother Yar Muhammad and one Muhammad Shameer by Tractor No,.GAG-2064. The tractor was moving ahead of the Car and at about 6-30 a.m. When they reached near the land of Ch. Habib-ur- Rehman on a katcha road, known as Loani-wali, all' of a sudden, the accused, namely, Muhammad Yagoob, Muhammad Feroze, armed with klashnikoves, Muhammad Azam, Fateh Muhammad, Atta Muhammad, Noor Muhammad and two unknown, who could be identified on confrontation, carrying rifles emerged from the shrubs and came in front of them while raising Lalkaras. Accused Muhammad Yagoob made shot; with his kalashnikov hitting Muhammad Aslam on his head.
Accused Muhammad Feroze. Fired through his kalashnikove, which hit Falak Sher on his head. Fire made by Noor Muhammad with his rifle landed on left flank of Muhammad Feroze who was driving the tractor. Muhammad Azam fired a shot through his rifle hitting neck of Muhammad Ashraf. Shot made by Fateh Muhammad produced wound an right rib of Yar Muhammad. Fire shot of Atta Muhammad hit Muhammad Shameer on his chest while fire shots of two unknown culprits hit Muhammad Ashraf and Muhammad .Feroze. Thereafter, all the accused resorted to reckless firing with their respective weapons, which hit the afore-mentioned deceased persons on various parts of their bodies. The tractor went out of control and all the deceased persons fell down from the tractor. When Ahmad Sher (P.W.2) went forward, then accused Muhammad Yagoob fired with his kalashnikov, which hit Ahmad Sher on his left flank and he fell clown. The complainant and Muhammad Nazir (P.W 3) did not go ahead due to2tear. But witnet,ed the occurrence. All the accused leak KA from the spot while still raising Lalkaras and aimless firing.
' Reason for the outbreak of the incident was that about one and nalf years before this occurrence, there was a dog fight at Mauza Jabbi, where a dispute erupted in which Falak Sher and others had humiliated Muhammad Yagoob by putting string in his neck so the parties had grouse. Moreover, as per the custom of Illaqa the residents of the village of parties had recided that the animals of other villagers will not be let-to graze in the Shamlat of the village-and few days before this occurrence, the accused party had let loose the nitrites of one person from Mauza Hadal, had relation with accused persons in shamalat Deh while Falak Sher and others hAl'it.Trned those forcibly. Accused MAlAtmoqad Yagoob and others took that as titer insult, committed muders of aforesaid six persons and murderous assault upon Ahmad 'Sher. This horrible and terrorist act of the accused spread terror and sense of insecurity in the people of the area.
5. Consequent upon registration of the case, Ijaz Hussain, S.I (P.W.28) took over the uphill task of investigation, immediately went to Civil Hospital, Jauharabad, where P.W. Ahmad Sher was admitted. He moved an application (Exh.P.N.N) to seek opinion of the medical officer for recording statement of the injured, which was replied in the negative. Thereafter he proceeded to the venue of occurrence, inspected the same, prepared rough site "plan (Exhs.P.Q.Q). He also inspected dead bodies of Falak Sher,Muhammad Aslam, Muhammad Ashraf, Yar Muhammad, Muhammad Feroze and Muhammad Shameer, prepared their injuries statements (Exhs.P.G.G/3, P K. K t3 P. H. H/2, P.I.1./3, P.J.J/3. And P.L.L/3) inquest reports (Exhs.P.G.G/4, P.H.H/3, P.I.1/4, P.J .J/4 , P.K .K/4 and P. L. L/4), respectively and dispatched their dead bodies to the mortuary for autopsy purpose. Then he collected blood-stained soil from the place where Ahmad Sher P.W. Sustained injuries, made it into a sealed parcel and took into possession through memo. Exh.P.H. He also collected bloodstained soil from the places where Falak Sher, Muhammad Shameer, 'Muhammad Aslam, Muhammad Feroze, Muhammad Ashraf and Yar Muhammad, died, made the same into separate sealed ' parcels and prepared seizure memos. Exhs.P.B., P.C., P. D. , P. E. , P.F and P.G. , respectively. Thereafter, he collected two empty magazines (P.1/2.2), 23 empties of Kalashnikov (P.2/1.23), 12 empties of 7.Mrn rifle (P.3/1.12), 5 empties of rifle 8-MM (P.4/1.5), made the same into separate sealed parcels and took into possession through memo. Exh.P.I. Three Chadars (P.5/1.3), pitcher (P.6), a glass made of silver (P.7) were also taken took into possession by him from the place of occurrence through memo. Exh.P.J. He took tractor into possession vide memo. Exh.P.K., which had fire marks. Car No,0845 was also taken into possession from the place of occurrence vide memo. Exh.P.I., whose tyre had a fire shot mark. The aforesaid memos. Were attested by Muhammad Nazir (P.W.3) and Fateh Muhammad P.W. (not produced), He recorded statements of the relevant witnesses under section 161 Cr.P,C. He also recorded supplementary statement of the complainant: He got prepared site plan of the occurrence in duplicate (Exhs.P.M. And P.M/1) through Abdul Ghafoor, Revenue Patwari (P.W.4). He recorded statement of Ahmad Sher, injured P.W, on 23-9-1999. Thereafter, he was transferred and investigation into the crime was entrusted to Qaisar Raza Zaidi, S.I. (P.W.29). He arrested Noor Muhammad and Muhammad Azam appellants on 9-3-2000 and 29-11-1999, respectively, after fulfilling necessary formalities. They were subjected to necessary interrogation, during course of which Muhammad Azam appellant got recovered 8.M.M rifle (P.27) alongwith ten live bullets (P.29/1-10) and licence, which were made into sealed parcels and taken into possession by him through memo. Exh.P.V, duly attested by Aslam Hayat and Muhammad Hayat, constables (not produced). Noor Muhammad appellant also led to the recovery of 7-M.M rifle (P.25) along with three live bullets (P.26/1-3), which was made into sealed parcel and taken into possession through memo. Exh.P.U, duly attested by the same set of witnesses. He arrested Muhammad Hayat appellant on 11-7-2000 and subjected him to necessary interrogation, during course of which got recovered 7-M.M rifle (P.29) alongwith four live bullets (P.30/1-4), which was made into a sealed parcel and taken into possession through memo. Exh.P.Y, duly attested by Saifullah and Zafar Iqbal (P.W.15), constables Muhammad Yaqoob appellant was arrested by him on 29-11-2000. A Kalashnikov (P.35) along with a bag (P.36), 55 bullets (P.37/1-55) and two magazines (P.38/1-2) recovered from said appellant were taken into possession by the investigator through memo.
Exh.P.D.D, duly attested by Muhammad Manzoor, A.S.I. (P.W.21) and Muhammad Azam, A.S.I. (not produced).
' According to this witness, investigation into the crime was carried out by Tanveer Amjad, Inspector, - who arrested Atta Muhammad on 26-9-1999, whereas Muhammad Feroze, and Muhammad Hayat appellants were arrested by him on 3-7-2000. They were subjected to necessary interrogation, 'during course of which Atta Muhammad and Muhammad Feroze appellants got recovered 8-M.M rifle (P.34) along with its licence and Kalashnikov (P.31) along bag (P.32) containing 84 live bullets (P.33/1-84) and two magazines (P.39/1-2), which were made into sealed parcels and taken into possession through memos. Exhs. P.C.0 and P.Z., respectively. After completing investigation, challan was prepared and submitted to the Court for trial of the accused in accordance with law.
6. On receipt of challan, the trial Court framed charge and put the same to the accused, to which they pleaded not guilty and claimed to one tried. The prosecution in order to prove its case produced as many as twenty nine witnesses, Thereafter the accused were put to examination under section 342 Cr.P.C., who proclaimed their absolute innocence in the matter and alleged their involvement in the case due to enmity. After culmination of trial, the trial Court pronounced verdict of guilty to the appellants and punished them as aforementioned.
7. Learned counsel for the appellants in support of this appeal submits that the occurrence had not taken place at 6-30 am., but it took place in the early hours of the said day, when sun had not risen yet; that stomachs of all the six deceased persons were empty, which also suggests that the occurrence had taken place in the early hours of the day, so it was an unwtinessed one that the place of occurrence is full of cluster of trees and the accused were sitting in an ambush, so it was difficult to identify the accused persons; that the trial Court has disbelieved Muhammad Ainir- complainant and his son Muhammad Nazir (P.Ws.1 and 3) and the reasoning ;given by the trial Court was that they were not injured and there was deep-rooted enmity bet,-zen the parties was justifiable. He has relied upon Falak Sher and another v. The State (1987 PCr.LJ 610). He further submits that neither Muhammad Amir-complainant nor his son Muhammad Nazir had any land, where the deceased persons were going. Adds that although Ahmad Sher (P.W.2), who had been believed by the trial Court was injured, but it does not mean that this occurrence had been committed by the present appellants. He has placed reliance on case Bashir Ahmad v.
Muhammad Azam and another (PLD 1969 SC 469-at page 475). Learned counsel further submits that Ahmad Sher's statement was recorded by the Investigating Officer on 23-9-1999 i,e, 25 days after the occurrence; that though four real brothers of Ahmad Sher P.W. Were murdered in this case, but he has made this statement on the asking of the complainant because already F.I.R. Was lodged and he toed the line of the complainant and Muhammad Nazir P.W; that in spite of the fact that said Ahmad Sher P.W. Came from the hospital to his house, but he made his statement before Ijaz Hussain, S.I (P.W.28) three days thereafter and according to the said. P.W.., he gave statement in the police station while Ijaz Hussain, S.I. (P.W.28) stated that statement of Ahmad Sher was recorded at his Dera and that there is conflict between the ocular account and the medical evidence. While elaborating his arguments, learned counsel stated as under:-
(i) That according to the F.I.R. And statement of Ahmad Sher P.W. Before the police, Muhammad Azam appellant fired' a shot, which hit Muhammad Ashraf deceased of his neck, but before the trial Court, Ahmad Sher P.W. Stated that it hit on the mandible.
(ii) That Atta Muhammad accused fired a shot through his rifle, which hit Muhammad, Shameer deceased on his chest, bon the said shot first hit armpit and then the chest.
(iii) That Noor Muhammad appellant fired with his rifle which hit Muhammad Feroze deceased on his right flank, but this injury is on the lumber region.
' Learned counsel further submits , that as far as recoveries are concerned, Atta Muhammad and Muhammad Azam appellants were armed with 8.M.M. Rifles, whereas five crime .Empties of 8.M.M rifle were recovered from ,the ., place of occurrence, but all were matched with the rifle of Muhammad Azam appellant and none of the empties matched with the 'rifle of Atta Muhammad appellant, according to the report of Fire-arm Expert (Exh .P. E. E. E) ; that Noor Muhammad appellant allegedly got recovered 7.M.M rifle (P.25), which was taken into possession through memo. Exh.P.U, and that when this rifle was recovered three live bullets were also recovered. Adds that the said rifle was taken to the Forensic Science Laboratory by Qaisar Raza Zaidi, S.I (P.W.29) and according to report of Firearm Expert (Exh.P.F.F.F), there was an empty cartridge of the said rifle and the same was marked as C.41. Learned counsel submits that C.41 was fabricated by Qaisar Raza Zaidi, S.I. (P.W.29). Further submits that there is no evidence on record about taking the rifle to the Forensic Science Laboratory, which was recovered from Muhammad Azam appellant. Reliance is placed on the case of Arif Nawaz alias Goldy and 2 others v. The State (PLD 1983, Lahore 594).
' Learned counsel forcefully argues that there is no independent corroboration to the statement of Ahinad Sher, injured P.W.; that Muhammad Aslam Hayat (P.W.8), who was witness of recovery from Muhammad Azam appellant had stated that main gate of his house was locked, the lock was broken, hut the same was not taken into possession, while Qaisar. Raza Zaidi, S.I (P.W.29) stated that the lock was there, but it was in the chain and was not locked one; that there is no evidence of taking this weapon to the. Laboratory, although Qaisar Raza Zaidi P.W. Had been taking these weapons to the Forensic Science Laboratory and also bringing back the same; that Muhammad Azam appellant was also present in his Unit on the day of occurrence and in this regard he has placed reliance upon letter (Exh.D.F); that Muhammad Azam-appellant has also taken the plea of alibi in his statement recorded under section 342 Cr.P.C. At page 176 of the paper book. Learned counsel further submits that according to F.I.R. Noor Muhammad appellant had fired a shot on the person of Muhammad Feroze, which hit on his right flank, but the said injury is on the back of Muhammad Feroze that Noor Muhammad had also taken plea of alibi and this plea of both the appellants also created a reasonable doubt against the prosecution version. In this regard, he has relied upon the case Aminullah v. The State (PLD 1982 S.0 429). Learned counsel further submits that Investigating Officer, Ijaz Hussain, S.I (P.W.28) had also stated that participation of Atta Muhammad was also doubtful in the instant case.
' Learned counsel also submits that as far as Muhammad Yaqoob appellant is concerned, a Kalashnikov (P.35) was recovered from him through memo. Exh.P.D.D. But the number given in the recovery memo. Is different to that, which has been mentioned in the report of the Forensic Science Laboratory (Exh.P. G.G.G.). Lastly, learned counsel submits that no case is made out against Muhammad Azam and Noor Muhammad appellants, who had taken the plea of alibi and as far as Atta Muhammad appellant is concerned, no crime empty of 8.M.M rifle was matched with the rifle allegedly recovered on his pointation and that as far as Muhammad Feroze appellant is concerned, he has no relation with his co-accused; that case of Muhammad Yaqoob appellant is covered by section 302 (c) P.P.C. And not under section 302 (b) P.P.C. Because one and half years prior to the present occurrence, all the deceased including Ahmad Sher, injured P.W. Had put a Patta around the neck of Muhammad Yaqoob and he had in order to vindicate his family honour had acted under provocation. He has relied on the case Noor Muhammad alias Noora and others v. The State and others (1992 SCMR 2079).
8: On the other hand, learned counsel for the complainant assisted by learned counsel for the State submits that it was broad daylight occurrence; that the F.I.R. Was lodged promptly; that there is no conflict between the ocular account and the medical evidence; that a suggestion was put to Ahmad Sher, injured P.W. (at page 80 of the paper book) whereby the prosecution has admitted his presence on the tractor; that the eye-witnesses had no enmity with the appellants; that the trial Court has wrongly not relied upon the evidence of the complainant and Muhammad Nazir (P.Ws. 1 and 3) that merely on the answer of Muhammad Nazir P.W. That there was enmity between them and the appellants for the last one and a half years is no reason to discard'their evidence; that reasoning given by the trial Court for not relying on evidence of Muhammad Amir and Muhammad Nazir (P.Ws. 1 and 3) is a perverse one; that Muhammad Azam and Noor Muhammad appellants failed to prove their plea of alibi in accordance with law; and that the plea of alibi raised by Noor Muhammad and Muhammad Azam appellants is absurd. It was held in case Alam Sher and 5 others v. The State (1975 PCr.LJ 11R8) that statement of a witness recorded after 1.3/4 months after the occurrence during investigation can, b. Believed. In this regard, he has place reliance on the case Hamid Javed alia Hamidi v. The State (1988 S.C.M.R. 39-a page 41). He submits that eight person were firing, during course of which si persons had lost their lives and on mino contradictions, evidence of eye-witnesses cannot be disbelieved. In this regard, he has placed reliance on the cases, Sharif and another v. The State (1973 S.C.M.R. 83at page 89); Zakir Khan and others v. The State (1995 S.C.M.R. 1793) and Muhammad Sarwar v. The State (1999 S.C.M.R. 2428). At the end, they both support judgment of the trial Court.
9. We have heard learned counsel for the parties at great length and have also gone through the record with their able assistance. In the instant case, seven accused were named in the F.I.R. Five have been convicted, who are appellants before us. Two of them, namely, Mian Muhammad and Muhammad Hayat have been acquitted, while two, namely, Sher Ali and Fateh Muhammad are still proclaimed offenders there are six deceased persons in this case. Amongst them four are real brothers while Ahmad Sher injured P.W. Is real brother of the said four deceased persons. In this case, occurrence had taken place on 29-8-1999 at 6-30 a.m., when it was a broad daylight. The matter was reported to the police on the same day at 8-15 a.m. In the police station, though distance between the police station and the place of occurrence was eighteen miles, so one can say that it was a case of promptly lodged F.I.R. Names of the accused persons, the role played by them, and the weapons which they used were mentioned in the F.I.R.
10. Three eye-witnesses, namely, Muhammad Amir-complainant (P.W.1), his son Muhammad Nazir (P.W.3) and Ahmad Sher P.W.2), who was maternal nephew of the complainant, were examined by the prosecution. Two magazines (P.1/1-2), 23 empties of Kalashnikov (P.2/1-23), 12 empties of 7.M.M.
Rifle (P.3/1-12), five empties of 8.M.M rifle (P.4/1-5) were taken into possession by the Investigating Officer from the spot. The accused, namely, Atta Muhammad, Muhammad Azam, Muhammad Feroze, Muhammad Yaqoob and Noor Muhammad were arrested on 26-9-1999, 29-11-1999, 2-7- 2000, 20-11-2000 and 9-3-2000, respectively. The arrest of Muhammad Yaqoob, Muhammad Feroze, Noor Muhammad and Muhammad Azam accused would show that they were fugitive from lavl and according to different interim orders page 2 and 3 of the paper book, proceedings under section 87/88 Cr.P.C. Were initiated against them and their case was separated as required under section 512, Cr.P.C. But unfortunately, the learned Judge, who had dealt with the same, has not mentioned the same because the case was pending before different Judges after submission of the challan. There was no conflict between the ocular account and the medical evidence. We have seen the diagrams of the deceased persons, namely Muhammad Ashraf, Muhammad Feroze, so the contention of learned counsel for the appellants about this fact that there was conflict is over ruled.
11. As far as the delay in recording statement of Ahmad Sher (P.W.2) is concerned, we will mention here that he was seriously injured. Dr. Abid Ali Makhdoom (P.W.30) had operated upon him on 29- 8-1999 and according to his statement at page 47 of the paper book, due to his operation and serious condition, his statement could not be recorded, so the delay in recording his statement is not fatal-to the prosecution. Ahmad Sher was a star witness of theirs Caution. Half no enmity whatsoever ,against the appellants. His presence at the spot is fully established. He along with his four brothers was going to their lands at 6-30 a.m., when they were attacked and six persons were killed. During inspection of the spot, Ijaz Hussain, S.I. (P.W.28), Investigating Officer, had taken into possession, chadars, pitcher and a glass made of silver, which proves that they were going to their lands and the appellants who were sitting in ambush fired indiscriminately, killed six innocent young perons and inflicted injuries on the person of Ahmad Sher P.W. Crime empties recovered from the spot matched with weapons recovered from Muhammad Azam, Noor Muhammad, Muhammad Yaqoob and Muhammad Feroze except Atta Muhammad appellant, according to reports of the Forensic Science Laboratory (Exhs.P.D.D.D., P.E.E.E., P.F.F.F. And P.G.G.G). Minor discrepancies in this regard in the statements of the witnesses is no criteria to discard their evidence as far as recoveries are concerned.
12. Now we take up the case of Muhammad Azam and Noor Muhammad appellants about their plea of alibi. They have failed to produce any cogent evidence to prove their plea. Mere production of a letter (Exh.D.F), which was addressed to Malik Masood Akhtar, Advocate, Sargodha, cannot prove the plea of alibi raised by Muhammad Azam appellant. As far as plea of alibi of Noor Muhammad appellant is concerned, he has also failed to prove the same. The reasoning given by the trial Court in this regard in its judgment appeal to reason, so we discard their plea of alibi and so rightly has been done in this regard by the learned trial Judge.
13. However, we are not in agreement with the trial Court for not relying upon evidence of Muhammad Amir complainant (P.W.1) and his son Muhammad Nazir (P.W.3). Muhammad Amir complainant had got recorded the F.I.R. Within one and a half hours ;at the police station though it was eighteen miles away from the place of occurrence. Reasoning given by the trial Court that both these witnesses were not injured is ridiculous one because it is not necessary that everybody who was present at the spot, should have also been murdered or injured, when already six persons were killed and one was injured. Was it necessary that these persons should have also received injuries and the other reasoning given by the trial Court that why they were accompanying the deceased. Persons, when they had not got their lands. Both the witnesses are real maternal uncle and cousin of Ahmad Sher, injured P.W., respectively and the four deceased persons. They had no enmity whatsoever with the appellants except that one and a half years prior to the occurrence in Mauza Jabbi during fight of the dogs, a quarrel took place between the accused and Falak Sher, one of the deceased, wherein Falak Sher deceased and others put string in the neck of Muhammad Yaqoob accused and disgraced him, so there was grudge in. The mind of accused persons. Even some days prior to the occurrence, the cattle of the accused persons had come to the village Hadali, which were turned out by Falak Sher and others. The motive has been furnished by Muhammad Amir-complainant (P.W.1) and Ahmad Sher (P.W.2), which has also corroborated the ocular account.
14. The Court has also to see the quality of evidence and not quantity of evidence. Even a solitary statement of a witness can be relied upon, like in the instant case statement of Ahmad Sher, injured P.W. Reliance in this regard has been placed on the case Allah Bakhsh v. Shammi and others (PLD 1980 SC 225), wherein it is held that "even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence and not on its quantity." Reference is also made to cases Muhammad Ashraf v. The State (1971 S.C.M.R. 530) and Fazal Divan v. The State (1.973 S.C.M.R, 473).
15. In our considered view, the prosecution has proved its case against the appellants through promptly lodged F.I.R., ocular account, duly corroborated by medical evidence, positive reports of Forensic Science Laboratory with regard to matching crime empties with the weapons recovered from all the appellants except Atta Muhammad, and then the proceedings bout absconsion of Muhammad Yaqoob nd Noor Muhammad accused persons, so prosecution in our considered view has proved its case against all the appellants except Atta Muhammad, so conviction and sentences of Muhammad Azam, Noor Muhammad, Muhammad Feroze and Muhammad Yaqoob appellants are maintained. Death sentence awarded to them on six counts is also confirmed and Murder Reference to their extent is answered in the affirmative. This appeal qua them is dismissed.
16. However, case of Atta Muhammad appellant is distinguishable from the other appellants.
According to the F.I.R., Atta Muhammad and Muhammad Azam appellants were armed with 8.M.M.
Rifles. Five crime empties of 8.M.M rifle were recovered from the spot. None of them is matched with the rifle alleged to have been recovered on the pointation of Atta Muhammad appellant. Even the Investigating Officer, Ijaz Hussain, S.1 (P.W. 28) had also stated that his. Presehce at the spot was also doubtful. So, while granting benefit of doubt, convictions and sentences of Atta Muhammad appellant are set aside. This appeal to his extent is allowed and he is acquitted of the charges. He is directed to be released from jail forthwith if not required to be detained in any other case.