1. BASHIR A. MUJAHID, J.---Taj Muhammad, Imtiaz Ali, Abdul Ghani, Allah Ditta, Muhammad Iqbal and Zulfiqar Ali have challenged judgment dated 28-12-1995 passed by learned Sessions Judge, Bahwalnagar whereby Taj Muhammad was convicted under sections 302/149, P.P.C. and sentenced to death on two counts for commission: of murder of Muhammad Ashraf and Muhammad Aslam. He was further imposed fine of Rs,50,000 on each count, in default of payment of fine to further undergo one year's R.I. and if the fine is recovered was ordered to be paid to the legal heirs of the deceased. Imtiaz Ali was convicted under sections 302/149, P.P.C. for commission of murder of Muhammad Akram, Muhammad Aslam and Shan Muhammad and sentenced to death on three counts. He was also imposed tine of Rs,50,000 on each count, in default thereof to suffer one year's R.I. and if the same is realised to be paid to the legal heirs of deceased.
2. Allah Ditta was convicted under sections 302/149, P.P.C. for causing death of Muhammad Aslam and Shan Muhammad and was sentenced to death on two counts and a fine of Rs,50,000 on each count, in default of payment of fine to suffer one year's R.I. and the fine if recovered was to be paid to the legal heirs of the deceased.
3. Abdul Ghani was convicted under sections 302/149, P.P.C. for committing murder of Shan Muhammad and sentenced to death with a fine of Rs,50,000. in default thereof to further undergo one year's R.I. and the fine if realized to be paid to the legal heirs of the deceased. He was further convicted under sections 324/149, P.P.C. for causing injuries to Munawar Hussain, P.W. and sentenced to five years' R.I. with a fine of Rs,10,000 and in default thereof to undergo six months' R.I.
4. The tine if realised was ordered to be paid to the injured.
5. Zulfiqar was convicted under sections 302/149, P.P.C. for commission of murder of Shan Muhammad deceased and sentenced imprisonment for life with a tine, of Rs,50,000 to be paid to the legal heirs of the deceased and in default thereof to undergo one year's R.I.
6. Muhammad Iqbal was convicted under sections 324/149, P.P.C. for causing injuries to Munawar Hussain, P.W. and sentenced to five years' R.I. with a fine of Rs,10,000 and in default of payment of fine to undergo six months' R.I. The fine if realized was ordered to be paid to the legal heirs of the injured P.W., as compensation.
7. All the above accused were also convicted under section 148, P.P.C. and sentenced to one year's R.I.
8. Zulfiqar and Muhammad Iqbal were given benefit of section 382-B, Cr.P.C.
9. Through the same judgment, Gulzar Hussain was acquitted of the charge by giving benefit of doubt.
10. The unfortunate occurrence for murder of Shan Muhammad and his three sons namely, Ashraf, Muhammad Aslam, and Muhammad Akram took place at 8-30 a.m. in Chak No,53/4R, Tehsil Haroonabad at a distance of 3 K.M. from Police Station City Haroonabad and F.I.R. No,230 of 1993 Exh.P.H was got recorded by Shaukat Ali, P.W.2 (nephew of Shan Muhammad deceased) with Mohib-ur-Rehman, S.-I. P.W.12, alleging therein that he was resident of Chak No,53/4R and residing in his land and had a shop at Haroonabad city. On the day of occurrence, his shop was closed due to Friday. At 8-30 a.m. he had come to see his paternal uncle Shan Muhammad and was only at a distance of 50 paces from the house of his uncle, when Muhammad Jameel son of Falak Sher, Muhammad Sarwar son of Sultan, Saeed Muhammad son of Ali Muhammad were present there and he exchanged greetings with them. His maternal uncle Shan Muhammad alongwith his sons namely Ashraf, Asghar with Munawar Hussain, nephew of Shan -Muhammad were standing outside his house in a lane, when all of a sudden he heard hue and cry and saw that in front of house of Shan Muhammad accused persons namely, Taj Muhammad armed with rifle 222, Imtiaz armed with rifle 222, Zulfiqar with gun .12-boxe, Abdul Ghani with Revolver, Allah Ditta with gun 12- bore Gulzar Hussain armed with gun .12-bore, and Muhammad Iqbal armed with Revolver came from the house of Taj Muhammad in the street and they were shouting that they will teach lesson to Shan Muhammad for pursuing the case of lhata' and they started firing. Taj Muhammad, Imtiaz and Allah Ditta fired at Muhammad Aslam, Imtiaz fired at Muhammad Akram, Allah Ditta, Abdul Ghani. Imtiaz and Zulfiqar fired at Shan Muhammad, Abdul Ghani and Iqbal fired at Munawar Hussain and Asghar P. Ws. Taj Muhammad accused also fired at Ashraf Ali. As a result of firing Shan Muhammad, Muhammad Akram, Muhammad Aslant' died at the spot while Ashraf Ali ran towards his house after receiving the injuries where he fell down and succumbed to the injuries. Asghar Ali and Munawar Hussain were also seriously injured.
11. The motive for the occurrence was that Shan Muhammad deceased had dispute over Ihata of 8 Marlas situated in 'the same village and civil suit was pending between the parties at Haroonabad.
12. Mohib-ur-Rehman, S.-I/S.H.O. P.W.12, after registration of F.I.R. arrived at the place of occurrence.
13. Hameed-udDin, D.S.P. also arrived at the spot and P. W.12 took into possession dead bodies of Shan Muhammad, Muhammad Aslam, Muhammad Akram from the street and while dead body of Muhammad Ashraf Ali from his Ihata.He also took into possession blood-stained earth from the place where dead body of Muhammad Aslam was lying through memo. Exh.P.N and Muhammad Ashraf, Exh.P.O. and from the place where the dead body of Muhammad Akram was lying through memo. Exh.P.P. and from the place where dead body of Shan Muhammad was lying through memo. Exh.P.Q. He also took into possession 7 empties of 12-bore gun P.15/1-7 and 11 empties of 222- rifle P.16/1-11 and three empties of pistol 32-bore P.17/1-3 which were taken into possession through memo. Exh.P.M. He also prepared inquest report of Shan Muhammad through memo. Exh.P.A/2 and injury -statement Exh.P.A/3, and of Muhammad Aslam, Exh.P.B/2, Exh.P.B/3, of Ashraf All Exh.P.C/2, Exh.P.C/3, and of Muhammad Akram Exh.P.D/2, and Exh.P.D/3, respectively and dispatched the dead bodies for post-mortem examination through -Wali Muhammad, A.S.-I. He prepared the injury statement of Munawar Hussain, Exh. On the same day, Wali Muhammad, A.S.-I. produced the last- worn clothes of Muhammad Aslam deceased before him which he took into possession through memo. Exh.P.J. that of Shan Muhammad Exh.P.K. and Muhammad Ashraf, Exh.P.L. Muhammad Asghar and Munawar Hussain injured were referred to BVH Hospital, Bahawalpur by the Medical Officer. He got prepared the site plan through Ghulam Yasin, P.W. 10 and recorded the statements of prosecution witnesses under section 161, Cr. P.C. On 26-12-1993 he arrested Taj Muhammad who was also in injured condition and he prepared his injury statement Exh.P.G/1 and got him medically examined. On 29-12-1993. Muhammad Iqbal and Zulfiqar were arrested by him and on 2-1-1994 he arrested Gulzar, Imtiaz, Allah Ditta and Abdul Ghani. Thereafter, the investigation was entrusted to Namet Ali Arshad, Inspector, P.W.
13. On 7-1.1984, Taj Muhammad while in police custody led to the recovery of rifle P.18. and licence P.19: which were taken into possession through memo. Exh.P.R On 15-1-1994 while in police custody Allah Ditta led to the recovery of gun P.20 and licence P.21 which were taken into possession through memo. Exh.P.S. On 16-1-1994 Gulzar while in police custody led to the recovery of gun P.22 which was taken into possession through memo. Exh.P.T. On the same day, Imtiaz accused while in police custody led to the recovery of rifle P.23 which was taken into possession through memo. Exh.P.U. On the same day. Abdul Ghani while in police custody led to the recovery of Revolver P.24 which was taken into possession through memo. Exh.P.V. He recorded the statements of the prosecution witnesses and completed the investigation and submitted the challan.
14. The trial Court framed the charge which was denied by the accused and they claimed the trial.
15. During the trial, the prosecution examined as many as 17 witnesses to prove the guilt of the accused.
16. Medical evidence was furnished by Dr. Muhammad Aslam Tahir, P.W.1, who on 24-12-1993 at 1-30 p.m. conducted 'the post-mortem examination on the dead body of Shan Muhammad and found the following injuries:-- ( 1) A lacerated wound measuring 11. x . 8 c.m. extending from angles of mandible to the upper border of thyroid cartilage. Lower part of lower jaw, lower to angles of mandible and anterior part of the neck above the thyroid cartilage is missing. Major blood vessels from both sides of upper neck are severely damaged. Burning and tattooing on the left side of wound present. Margins on the left are inverted and on right side are everted.
(2) A punctured wound 1/2 x 1/2 c.m. into anterior aspect of right middle forearm. Margins are inverted and burned (entrance wound). A punctured wound 1-1/2 c.m. in diameter on the posterior aspect of right middle forearm. Margins are everted. Exit wound of injury No .2 .
(3) A lacerated wound 4 x 3 c.m. on the antrolateral aspect of right middle thigh.Injury is muscle deep. Margins on the medial side are burned. (Kissing injury by fire-arm).
17. (4)A lacerated wound 1 x 1/2 c.m. on the posterior aspect of middle phalanx of right little finger.
18. Margins of the wound are on the ulner side are burned. (Kissing injury by fire-arm) On the same day , the same doctor at 2-30 p.m. conducted the post-mortem examination on the dead body of Muhammad Aslam and found the following injuries:---
(1) A destructive lacerated wound 12 x 8 c.m. extending from left supra orbital region to left temporal region. Parts of left frontal and parietal bone are missing making a hole in the skull. Brain matter is coming out of it. Margins of the wound on frontal region are. burned and everted.
(2) A punctured wound 1-1/2 x 1-1/2 c.m. on the posterior side of skull 2 c.m. left to the occiput, Margins of the wound are everted. It is exit wound of injury No, 1 .
(3) A punctured wound 1/2 x 1/2 c.m. on anterior aspect of left forearm at its middle part. Margins of the wound are burned and inverted. It was wound of entrance.
19. (3-B) A punctured wound 1-1/2 x 1 c.m. on posterior aspectd of left forearm. Margins of it are evened. It is exit wound of injury No,3. Situated 2 c.m. lower to entrance wound.
(4) A lacerated wound 4 x 1 c.m. on the lateral aspect of right middle thigh. It is oblique in direction.
20. Margins of the wound on the anterior side of burned. Injury is skin deep. On the same day, the same witness at 3-20 p.m. conducted the post-mortem examination on the dead body of Muhammad Ashraf and found the following injuries:---"
(1) A punctured wound 1 x I c.m. on the left side of anterior chest. just lower the medial _ end of left clavicle. Margins of the wound everted. Burning present around the wound.
(2) A lacerated wound 3 x 2 c.m. on the posterior part of left chest, on the middle part of left scapula. Margins of the wound are everted.
21. On the same day, he also conducted the post-mortem examination on the dead body of Muhammad Akram at 4-20 p.m. and found the following injuries:-
(1) A punctured wound 1-1/2 X 1 c.m. on anterior side of chest adjacent to sternum in 5th intercostal space. Margins of the wound inverted and burned.
(2) A punctured wound 2-1/2 x 1-1/2 c.m. on the right lumber region. Margins of the wound are everted.
22. Earlier on the same day, said witness also medically examined Muhammad Asghar injured 'at 11-30 a.m. and found the following injuries on his person:---
(1) A punctured wound 1 x 1 c.m. on the medial aspect of right upper forearm margins of wound burned and inverted (entrance wound).
23. (1-A) A lacerated Wound 5 x 3 c.m. on the antrolateral aspect of right upper forearm margins of the wound are everted. It is exit wound of injury No,1.K.U.0 X-ray advised.
(2) A punctured wound 1 x I c.m. on the medial aspect of right elbow joint. Margins of the wound inverted and burned. (Entrance wound).
24. (7-B). A lacerated wound 7 x 4 c m. on the lateral aspect of right arm 2 c.m, above the elbow joint margin of wound everted. It is exit wound -of injury No,1. X-ray advised.
(3) A punctured wound 4 x 4 c.m. on the right hypo-chondrum. Omentum is coming out of it.
25. Margins of the wound burned. Tattooing present around the wound.
26. (4)A punctured wound 1 x 1-1/2 c.m. on the posterior part of chest, on the vertebral column in midscapular region. Margins of the wound are inverted and burned. KUO X-Ray advised.
27. On the same day, the doctor at 11-40 a.m. medically examined Munwar Hussain and found the following injuries on his person:--- (1)A punctured wound 1-1/2 x 1 c.m. on the middle part of posterior chest over the vertebral column. Margins of the wound are inverted. Blackening present on the margins.
28. (2)A punctured wound 3/4 x 3/4 c.m. on the lateral aspect of right middle thigh. Blackening are margins present. Margins are inverted.
29. On 26-12-19.93 at 7-00 p.m. the same witness medically examined Taj Muhammad, accused and found the following injuries on his person:--- (1)A lacerated wound 3 x 1 c.m. x skin deep on the left side of forehead. 2 c.m. above the left eyebrow. Pus present at the edges of wound.
30. (2)An abrasion 1-1/2 x 1 c.m. on the lateral side of left elbow joint. Brownish scab formation present on the wound. Movements of the elbow joints are normal.
31. (3)An abrasion 1 x 1 c.m. on the posterior aspect of middle phalanx of left thumb. Scab formation present on it. Movement of the thumb are normal.
32. The ocular account was furnished by Shaukat, Ali, P.W.2 who was complainant of the case. He supported the version of F.I.R. and also narrated the motive for the alleged occurrence. Muhammad Jameel was examined as P.W.3, who stated that at 8-30 a.m. he alongwith his maternal uncle Shan Muhammad and his sons Muhammad Aslam, Muhammad Asghar, Muhammad Ashraf and Muhammad Sarwar (his maternal cousin) were present in the lane in front of their Ihata: Shan Muhammad called Saeed Muhammad and Munawar Hussain and told that Gulzar Hussain had come there Tractor to put earth spread in the disputed Ihata who was forbidden by him to send back. After some time, he alongwith Saeed Muhammad, and Muhammad Sarwar went towards their lands and had covered only 50 paces when Shaukat, complainant met them and there were standing with him and heard noise from the house of Taj Muhammad and saw the accused armed with their respective weapons attacked Shan Muhammad and his sons and committed the instant offence. His statement is in line with statement of Shaukat Ali, complainant. Munawar Hussain, P.W.6 was injured in the same occurrence and he also ipported the prosecution story as an eye witness of the occurrence. Muhammad Sarwar P.W.7 also supported the complainant. Muhammad Asghar, P.W.9 was another injured witness of the case. He also supported the prosecution story as narrated by the complainant P.W.2, Munawar Hussain, P.W.6 and Muhammad Jameel P.W.3. All these four witnesses narrated the whole story alleging that the accused armed with their respective weapons caused injuries and murdered Shan Muhammad, Muhammad Aslam, Muhammad Ashraf and Muhammad Akram and injured Munawar Hussain and Muhammad Asghar. Walt Muhammad, A.S.- l. was examined as P.W.4 who had escorted the dead bodies for post-mortem examination and produced last-worn clothes before the Investigating Officer Muhammad Ishaque, P.W.5 had delivered the sealed parcels of bloodstained earth and crime empties at the office of Chemical Examiner and F.S.L. Lahore. Muhammad Sabir, P.W.8 had attested the recovery memos. Ghulam Yasin, P.W. 10 had prepared the site plan.. Abdul Jabbar, H.C. P.W.14 had kept the sealed parcels in police Malkhana deposited by the Investigating Officer. Muhammad Ishaq. P.V.15 on 7-1-1994 also deposited sealed parcels. containing blood-stained earth and empties at the office of Chemical.
33. Examiner and F.S.L. Lahore. Muhammad Ashraf. P.W.16 had deposited the parcels of weapons of offence in Maalkhana of Police Station. Jamshed IqbaL F.C. P.W. 17 had also delivered the sealed parcels at the office of F.S.L., Lahore.
34. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.Z. that of Serologist Exh.P.A.A and Forensic Science Laboratory Exh.P.B.B.
35. Towards the end of the trial, the statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Taj Muhammad to the relevant question No,18 as to why the case against them and they want to say anything else, stated as under:--- "I am innocent. The real facts are that I, Allah Ditta and Siraj Muhammad, my brother had purchased the share of the disputed Ihata from Sardar Muhammad brother of Shan Muhammad deceased on 5-6-1978 in the sum of Rs,2,000. The entire amount had been paid to him and an agreement to sell in this respect was executed alongwith the receipt of the money by Sardar Muhammad in our favour. He had delivered the possession of the purchased Ihata to us and since then we are in possession, of the disputed Ihata. We had constructed a room and also installed machine etc. for ;cutting the fodder there. The mutation of the Ihata was not sanctioned in our favour because the Patta Malkiat was not issued in favour of Sardar Muhammad. Few days before this occurrence. we had put earth in the disputed Ihata and on the day of occurrence a little before the occurrence, Gulzar Hussain my co-accused was spreading and levelling the earth with the help of the tractor because the marriage ceremony of my sons Abdul Ghani and Zulfiqar was to be solemnized after some days. A stay order had been issued by Civil Court, Haroonabad in our favour and on our request the Civil Court had appointed local commissioner for the verification of the possession over the disputed Ihata. The said report of the local commissioner was summoned for 2-1-1994. The complainant party stopped the tractor and objected not to level the earth. The complainant party wanted to take forcible possession of the disputed Ihata in order to get report of the local commissioner in their favour. Gulzar Hussain resisted whereupon a quarrel took place. On hearing the noise, I came out of my house and went to the disputed Ihata. I forbade them but the complainant party attacked upon me and caused injuries on my person with their weapons. Then there was melee and the complainant party also received injuries. Thereafter, I went to the police station to lodge the report but the police refused to register the case, whereupon the police came to the spot. As 4 persons from the complainant party had died, therefore, the police registered the case against us falsely at the instance of the complainant party."
36. They have produced in defence copy of plaint Exh.D.D and application for grant of temporary injunction Exh.D.E and copy of application for appointment of local commission Exh.DF: copy of order dated 12-12-1993 Exh.D.G whereby status quo order was issued copy of order dated 12-12-1993 of Civil Judge Haroonabad Exh.D.H and Invitation Card Exh.D.I.
37. The trial culminated into conviction and sentence of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No,4 of 1996. The complainant has filed Criminal Appeal No,5 of 1996 against acquittal of Gulzar Hussain and for enhancement of sentence of Zulfiqar and Muhammad lqbal. While the trial Court has sent up Murder Reference No,2 of 1996 for confirmation of death sentence under section 374, Cr.P.C. All the matters are being decided by this single judgment.
38. Learned counsel for the appellants has argued that the appellants were in possession of Ihata in dispute. Civil litigation pending between the parties is also admitted. The complainant party was the aggressor and Taj Muhammad, appellant was injured by the deceased, and Gulzar in exercise of self-defence fired and the complainant party was injured in the occurrence; that there is clear contradiction in the medical evidence and the ocular account that the diamention of the injuries shows that the deceased were not caused any injury from gun that the recoveries of weapons of offence have been planted; that Muhammad Iqbal and Zulfiqar were found innocent during successive investigations and weapons of offence were not recovered from their possession and the plea of alibi was found correct, therefore, both of them be acquitted and that it was not a case for capital punishment.
39. Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment. Learned counsel for the complainant has placed reliance on 1999 SCM R 1668 titled Abdul Wahab alias Rehra v. The State 1990 SCM R 276 titled Falak Sher v. State. 1996 SCM R 908 Muhammad Iqbal and other v. M. Akram and another 1998 PCr.LJ 114, Sajid and another v. State 1990 M LD 678 titled Zulqarnain v. The Stat 1992 SCM R 2055 titled Farman Ali and 2 other. v. The State and 2001 SCM R 223 titled M. Aslam and others v. State in support of his arguments and pressed his appeal against acquittal of Gulzar Hussain.
40. Heard. Record perused.
41. The dispute over Ihata originally owned by Sardar ,Muhammad, brother of Shan Muhammad, deceased has been admitted between the parties. Filing of the suit by the accused and issuance of the status quo order has also been admitted, however, no order for appointment of local Commissioner was passed by the trial Judge when this occurrence took place. It is also 'admitted by the parties that Gulzar accused was levelling the earth dumped in the disputed Ihata before the occurrence when the deceased objected him from levelling the earth and quarrel took place.
42. Although the defence plea was that complainant party launched attack on Taj Muhammad and caused him injuries but no weapon of offence was taken into possession from near the dead bodies which shows that deceased were empty-handed. The accused attacked the deceased by fire-arms and caused death of Shan Muhammad and his three sons namely. Muhammad Ashraf Muhammad Aslam and Muhammad Akram' at the spot while Muhammad Asghar, P.W.9 his fourth son was also injured who died during the pendency of the trial. Munawar Hussain, P.W.6 was also injured in the same occurrence. The injuries on Taj Muhammad, appellant are of minor nature and have not been specifically attributed to any of the deceased. Presence of Taj Muhammad, appellant has been admitted and he has been attributed fire-arm injuries caused to Muhammad Ashraf and Muhammad Aslam from his licenced rifle-.222 which was got recovered by him and three empties taken into possession by the Investigating Officer from the spot tallied with his rifle through report of Forensic Science Laboratory Exh.P.B.B. Likewise, three empties taken into possession from the spot were matched with the rifle got recovered by Imtiaz accused.
43. Imtiaz appellant has been attributed having caused injuries to Muhammad Akram, Muhammad Aslam and Shan. Muhammad. Likewise three empties taken into possession from the spot also tallied with rifle got recovered by him. Allah Ditta has also been attributed injuries caused to Muhammad Aslam and Shan Muhammad and two empties taken into possession from the spot tallied with the gun got recovered by him. Abdul Ghani has also been attributed injuries caused to Shan Muhammad deceased and to Munawar Hussain, P.W.6. Zulfiqar and Iqbal have been attributed injuries to Shan Muhammad, deceased and Munawar Hussain, P.W.6 respectively. It was a daylight occurrence took place at 8-30 a.m. and F.I.R. was lodged at the police station at 10-00 a.m. at a distance of 3 k.ms. from, the place of occurrence. All the appellants have been nominated with specific role in promptly recorded F.I.R. The ocular account has been B furnished by the eye- witnesses who are Shaukat, P.W.2 (complainant), Muhammad Jameel P.W.3 and Munawar Hussain, P.W.6 and Muhammad Sarwar, P.W.7. Munawar Hussain was injured in the same occurrence. His presence at the spot cannot be doubted. Shaukat Ali, P.W.2 author of the F.I.R. has also explained his presence at the spot. The stand of the learned counsel for the appellants that statement of Munawar Hussain under section 161, Cr.P.C. was recorded after 16 days of the occurrence and he became unconscious after the occurrence, therefore, his statement cannot be believed and the complainant has widened the net to implicate the whole family of the accused, has no force.
44. Munawar Hussain was admitted in hospital due to his serious condition and the delay in recording his statement by the Investigating Officer has been sufficiently explained. He has implicated all the accused for their active participation in the occurrence. Shaukat Ali P.W.2 Jameel Ahmad, P.W.3 and Munawar Hussain, P.W. 6 and Muhammad Sarwar, P.W .7 are natural, truthful and confidence- C inspiring witnesses. There is no chance of mistaken identity of accused. Muhammad Iqbal and Zulfiqar had pleaded their alibi which according to law was believed correct in successive investigations and the opinion of the Investigating Officer cannot be brushed aside completely and some weight is to be given, but we do not find any force in his arguments. The plea of alibi was to be proved before the Court but both Muhammad lqbal and Zulfiqar, appellants failed to substantiate their plea of alibi before the trial Court by examining any witness. The arguments of the learned counsel that nothing was recovered from their possession and their case is at par with Gulzar acquitted co-accused has also no force. The opinion of the police about the guilt or innocence of the accused if based on statement of the witness not produced before the trial Court is inadmissible in evidence as laid down by the Honourable Supreme Court in 1996 SCM R 908 titled Muhammad Iqbal and others v. Muhammad Ikram and others. We also do not find any contradiction in medical evidence and the ocular account as argued on behalf of the appellants.
45. The nature and diamension of the injuries show that more than one weapon of offence were used in the crime. The suggestion was put to the doctor in cross-examination and the possibility of injuries having been caused by one fire-arm was denied. It was argued that the F.I.R. was lodged with delay as in inquest report role attributed to each of the accused was not mentioned. The allegation of general firing was levelled against them and the detail given in the F.1. R. shows that the same was recorded after deliberation and consultations is also repelled as in the inquest report minute detail is not essential/requirement of law.
46. Non-mentioning of the empties in the inquest report or any lacuna left by the Investigating Officer is not fatal to the prosecution case. The appellants are responsible for cold-blood murder in brutal manner of four innocent persons at the spot and causing injuries to Muhammad Asghar and Munawar Hussain, P.W.6. The defence plea that Taj Muhammad was injured by the deceased which caused provocation to the accused who caused injuries in Malli has also no force as the injuries on Taj Muhammad, appellant were of minor nature and the appellants caused brutal murder of innocent persons without justification. Another argument advanced by the learned counsel for the appellants that Taj Muhammad was stated to be present at the roof wherefrom he fired at as per allegation in the F.I.R. but Shaukat Ali, P.W.2 and other prosecution witnesses had stated before the trial Court that Taj Muhammad also fired at the deceased from near distance.
47. The contradiction if any has not been brought on record by the defence as they were not cross- examined or confronted with their statements or with the F.I.R. The motive for the occurrence about pendency of suit is admitted. The Civil Judge had only issued status quo order on 12-12-1993 on the same day on the application moved by the accused party, for appointment of local Commissioner a notice was issued to the complainant party and it appears that accused party tried to establish its possession over Ihata for confirmation of status quo order and to obtain favourable report through local Commissioner before the next day of hearing. It is case of appellants that complainant party was aggressor by restraining Gulzar from levelling the earth and they were forbidden by Taj Muhammad appellant but they attacked the accused party and caused injuries to Taj Muhammad is not correct. The occurrence took place in lane and not in disputed Ihata but in front of house of deceased and Taj Muhammad appellant which shows that it was cold-blood murder in brutal manner outside the Ihata.
48. After deep reappraisal of the evidence, we are convinced that the prosecution has proved its case against all the appellants beyond shadow of doubt by ocular account corroborated, by medical evidence and motive and recovery of weapons of offence from all the accused except Zulfiqar and Muhammad Iqbal. Their guilt has also been proved by direct evidence of confidence-inspiring and truthful witnesses, and we do not find any reason to interfere in the conviction recorded or the sentence awarded to the appellants. Their Criminal Appeal No,4 of 1996 is dismissed. Death sentence of Taj Muhammad. Imtiaz Ali, Abdul Ghani and Allah Ditta is confirmed.
49. Murder Reference No,2 of 1996 is answered in the affirmative.
50. As far as Criminal Appeal No,5 of 1996 .filed against Gulzar is concerned, although specific role having fired from his gun at the spot has been attributed and report of the Forensic Science Laboratory is also in positive. His presence has also been admitted by the accused / appellants but he has not been attributed any injury having been caused to the deceased or to the injured prosecution witnesses, and he was given benefit of doubt and was acquitted by the trial Court, we do not find any force in the appeal filed by the complainant so the same is dismissed.
51. However, the fine imposed by the learned Trial Judge under section 302(6), P.P.C. is not legal and the said amount of fine is altered to the compensation under section 544-A. Cr.P.C. and if recovered is to be paid to the legal heirs of the deceased.