1. ' MUHAMMAD NAWAZ ABBASI, J.---This Criminal Appeal No,67 of 1999 by special leave of the Court has been preferred against the judgment, dated 2-7-1999 passed by a Division Bench of Lahore High Court in Criminal Appeal No,1072 of 1991 filed by the present appellants and Murder Reference No,444 of 1991 sent by learned Additional Sessions Judge, Khushab to the High Court under section 374, Cr.P.C.
2. ' The appellants and 11 others were tried for the charge under sections 302/148/149/324, P.P.C. By learned Additional Sessions Judge, Khushab and having found the appellants and 2 others namely Sher Ahmed and Ulfat Hussain guilty of the charge convicted and sentenced them to death under sections 302/149, P.P.C. And also directed them to pay fine of Rs,50,000 each on each count and in default of payment of fine, to undergo R.I. For three years on each count. The appellants were also convicted under section 148, P.P.C. And sentenced to two years' R.I. Each with a fine of Rs,1,000 each and in default of payment of fine to undergo R.I. For three months each. The remaining accused were acquitted by the trial Court. The High Court in appeal while maintaining the conviction and sentence awarded to the appellants acquitted their co-convicts namely Ahmed Sher and Ulfat Hussain giving them the benefit of doubt. The Murder Reference was, accordingly, disposed of. The appellants have challenged their conviction and sentences through Criminal Appeal No,67 of 1999.
3. ' Sehna Khan the complainant of the case, being aggrieved of the acquittal of Ahmed Sher and Ulfat Hussain filed connected appeal bearing No,68 of 1999 and leave was granted by this Court vide order, dated 11-3-1999 in both these connected appeals, therefore, these appeals are proposed to be disposed of through this single judgment: ' The occurrence in the present case took place on 29-5-1991 at 9-30 a.m. In village Aine in the area of Police Station Jaura Kalan, District Khushab and the report of the occurrence was lodged by Sehna Khan at 11 a.m. At the police station situated at a distance of six miles from the place of occurrence. The relevant facts as contained in the F.I.R. Are that on the fateful day at 7 a.m. Ghulam Hassan, paternal cousin of Sehna Khan was slapped by Sher Samand and Muhammad Abdullah near Middle School Aine. Ghulam Hussain paternal uncle of Ghulam Hassan on coming to know about the incident in retaliation while passing through the school on a mare and coming across with Muhammad Khan, uncle of Sher Samand and Muhammad Abdullah gave him beating with a cane stick. The above two incidents made the atmosphere tense between the parties and as a result thereof at about 9 a.m. On the fateful day, the complainant and his companions namely Ghulam Hussain (deceased), Gehna Khan (deceased), Ghulam Hassan (P.W.16), Sher Muhammad (deceased), Muhammad Khan (deceased), Lal Beg and Mumtaz (given up P.Ws.) were proceeding towards their Dera on a mare and tractor respectively when accused armed with deadly weapons while raising Lalkara that they would not spare the complainant party on that day suddenly emerged from behind the Tibba and attacked on the complainant party. Muhammad Khan appellant fired at Ghulam Muhammad which hit on his chest on the left side and Muhammad Afzal fired a shot which hit Gehna Khan on right side of his forehead. Ahmed Sher while armed with gun fired a shot which hit Ghulam Hussain on his right flank and simultaneously Muhammad Abdullah fired a shot which hit Muhammad Khan on right side of his chest. Ulfat Hussain was carrying gun with which he fired at Gehna Khan hitting him on right side of chest. During the occurrence, the mare of Ghulam Hussain was also injured as a result of firing of the accused. The acquitted accused namely Ahmed Khan, Amanullah, Sher Samand, Mausam Khan, Shah Sarwar, Aamer, Muhammad Sher, Azhar Ali and Mehr Khan, allegedly instigated the present appellants, and the respondents in the connected appeal to commit the crime and also extended threats of life to the companions of the deceased. The motive behind the occurrence was that on the same day Muhammad Khan uncle of Sher Muhammad and Muhammad Abdullah was given beating with cane stick by Ghulam Hussain uncle of Ghulam Hasan who was slapped by Sher Samand and Muhammad Abdullah. Prior to the above incident, a case under section 337, P.P.C. Was registered against Mausam Khan and Amer at Police Station Noorpur, Thal at the instance of the complainant party which was still pending for trial due to which the parties were inimical to each other. Four persons of the complainant party namely, Ghulam Muhammad, Ghana Khan, Ghulam Hussain and Muhammad Khan having sustained injuries in the occurrence lost their lives.
4. ' Khuda Bakhsh, S.-I./S.H.O. (P.W.7) having prepared injury statement and inquest report of all the deceased took into possession empty cartridges and blood-stained earth from the place of occurrence. The Sub-Inspector also took into possession the last-worn clothes of the deceased alongwith a sealed bottle containing pellets delivered to him by a constable which were handed over to the said constable by the doctor after post-mortem examination of the dead bodies. The mare of Ghulam Hussain was examined in the veterinary hospital of Mitha Tiwana and three pellet injuries were found on her body. The pellets recovered from the body of mare were handed over to a constable in a bottle who delivered the same to the Investigating Officer . The accused were arrested on 1-6-1991 by the Sub-Inspector and at the time of arrest, Muhammad Khan appellant produced gun (P-9) with its licence (P-10) and Muhammad Afzal produced gun (P-11) with its licence (P-12) before the Sub- Inspector. Ulfat Hussain (since acquitted) disclosed that gun (P-22) with its licence (P-23) belonging to his brother Zulqarnain was used by him in the occurrence which was produced by Zulqarnain on 12-6-1991 before the Sub-Inspector. Ahmed Sher acquitted accused, led to the recovery of .12 bore gun (P-24) with its licence ,(P-25) belonging to his son Muhammad Sher from the house of said Muhammad Sher. Muhammad Abdullah appellant got recovered .12 bore, gun alongwith 6 cartridges on 16-6-1991 from an open place in the Sarkandas.
5. ' Dr. Muhammad Akhtar Majoka conducted post-mortem examination on the dead body of Gehna Khan and found following injuries on his person:--- "(1) One fire-arm wound of entry 3/4 x 3/4 c.m. x going to skull, circular in shape with burnt inverted edges on right side of forehead, just above right eye-brow.
(2) One fire-arm wound of entry 3/4 x 3/4 c.m. x going into chest cavity, circular in shape burnt inverted edges on upper part of right side of chest.
(3) One fire-arm entry wound on the inner part of right upper arm 3/4 x 3/4 c.m. With the exit wound on posterior side of right upper-arm.
(4) One fire-arm entry wound 3/4 x 3/4 c.m. Circular, with burnt edges (inverted) on proximal part of outer side of palm of left hand."
6. ' All the injuries were found to have been caused with fire-arm. The injuries 1 and 2 were grievous and fatal in nature and were found sufficient to cause death in ordinary course of nature, individually as well as collectively. Death occurred immediately after the receipt of injuries and the time between death and post-mortem examination was .6 to 7 hours.
7. ' On the same day, the same doctor conducted post-mortem examination of the dead body of Ghulam Hussain deceased and found the following injury on his person:--- "(1) One fire-arm entry wound 1/4 x 3/4 c.m. Going into abdomen on left side of abdomen near left iliac crest."
8. ' Death, in the opinion of the doctor, occurred due to above firearm injury which was grievous in nature and fatal to life. Time between injury and death was immediate while between death and post-mortem was 6 to 7 hours.
9. ' On the same day, Dr. Muhammad Akhtar Majoka, Medical Officer also conducted postmortem examination on the dead body of Sher Samand deceased, and traced the following injuries:--
(1) One fire-arm entry wound on upper part of left side of chest, 3 c.m. Below left clavical, measuring 1 c.m. x 3/4 c.m. Going into chest. The masgins were charret and inverted.
(2) One fire-arm entry wound on middle of lower part of front of chest near lower and of sternum measuring 1 c.m. x 3/4 c.m. x going in the cavity."
10. ' The injuries were found sufficient to cause death individually and collectively which were grievous in nature and fatal to life. Death occurred immediately after the receipt of injuries and time between the death and post-mortem was 6 to 8 hours.
11. ' Dr. Umar Ali Shah, Medical Officer, P.W.8 on 29-5-1991 examined Muhammad Khan deceased and found the following injuries on his person:- "(1) A fire-man wound of entry 1 c.m. x 3/4 c.m. x depth not probed, with blackening of edges on right side of chest (front), 6 c.m. Above and medial to nipple.
(2) A lacerated wound of entry 2 c.m. x 1 c.m. On left hypecandrium (abdomen), 9 c.m. Above amblicus (wound not probed), blackening present.
(3) A lacerated wound of entry 1 c.m. x 1 c.m., just above left scrotum, 3 c.m. From the root of penis (wound not probed) blackening present.
(4) A lacerated wound of entry 1 c.m. x 1/2 c.m. On from of middle of left upper arm.
(5) A lacerated wound of exit 1 c.m. x 1 c.m. On palmer aspect of left hand. Blackening present.
(6) A lacerated wound of exit 1 c.m. x 1 c.m. On back of left hand, near base of middle finger (exit of injury No,5).
(7) A lacerated wound of exit (of injury No,4) 1 c.m. On back of left upper arm.
(8) A lacerated wound with blackening 1/2 c.m. x 1/2 c.m .Superficial on medial side of middle of right upper arm.
(9) Swelling 6 x 3 c.m. In right femoral area (femoral triangle).
(10) A lacerated wound of entry with blackening 1 c.m. x 1. c.m. On left lateral side of the chest (14 c.m. Lateral to left nipple)
(11) A lacerated wound 4 c.m. x 1/2 c.m. x superficial on back of left shoulder.
(12) Patient in shock, pulse not recordable, B.P. Not recordable.
12. ' All injuries, except injury No,12, were found to have been caused with fire-arm weapon and duration of injuries was within 1 to 4 hours.
13. ' Muhammad Khan expired in the hospital at about 1-30 p.m. On the same day and the same doctor conducted post-mortem examination on the dead body of Muhammad Khan deceased.
14. Injuries 1 to 3 caused with fire-arm, were found grievous and fatal which were sufficient to cause death in ordinary course of nature individually as well as collectively. The probable time between injuries and death was 2 to 5 hours and between death and post-mortem was 17 to 19 hours.
15. ' Dr. Muhammad Akhtar Majoka, Medical Officer, P.W.9 examined Muhammad Khan appellant on 1- 6-1991 and found the following injuries on his person:-- "(1) One bruise 6 c.m. x 1 c.m. Situated on outer part of right forearm.
(2) One abrasion 1.5 c.m. x 1.5 c.m on outer part 9f right forearm.
(3) Tip of little finger of right hand was swollen.
(4) One bruise 3 c.m. x 7 c.m. In transverse directions on lower part of back near left iliac crest."
16. ' The injuries were deseribed as Ghy-Jaifa Daimah which were caused by weapon, within 3 to 4 days.
17. ' Dr. Mushtaq Ahmad Sheikh, Veterinary Officer, (P.W.10) on 31-5-1991, at about 6-30 p.m., examined the mare belonging to Ghulam Hussain deceased and found the following injuries on the body of mare:-- "(1) One wound of gunshot was on the breast about 4 c.m. In diameter below neck, which was 4 mm in diameter and 3 c.m. Deep in the muscle, bear ribs. The lips of the wound were burnt and inverted inside. One lead shot was traced and searched from this wound.
(2) Second wound was about 4 c.m. Below the first wound and 4 mm in diameter and 3 c.m. In depth. The lips of wound were also burnt and inverted inside, and one lead shot was also traced and was searched from this wound. This wound was very serious.
(3) Third wound about 3 c.m. Below the second wound, 2 c.m. Deep and 6 mm in diameter. One lead shot was also traced out from this wound."
18. ' Sehna Khan complainant (P.W.15), Ghulam Hassan (P.W.16) the eye-witnesses of the occurrence while narrating the incidence in the manner as given in the F.I.R. Without any describable omission, contradiction and discrepancy, have stated that parties were inimical to each other and a case under section 337, P.P.C. Was registered against Mausam Khan (since acquitted) at the instance of Muhammad Abdullah (P.W.14) and Mumtaz given up, an injured- in the said incident. The witnesses have corroborated each other on each material particular and further their deposition was seeking full support from the medical evidence. Muhammad Abdullah (P.W.14) the complainant in the case under section 337, P.P.C. Registered against the accused side admitted the enmity between the parties.
19. ' The appellants and their acquitted accused in the statements under section 342, Cr.P.C. Denied the charge and pleaded false implication due to enmity.
20. ' The trial Court having found the appellants and their co-accused namely, Sher Ahmed and Ulfat Hussain guilty of the charge convicted and sentenced them as stated above. However, the High Court acquitted Sher Ahmed and Ulfat Hussain giving them the benefit of doubt with the observations (a) that the injuries on the person of Gehna Khan and Ghulam Hussain deceased were of the same measurement and size, therefore, the possibility that the said injuries were the result of shot fired by Muhammad Afzal appellant could not be ruled out and (b) that the gun allegedly used by Ulfat Hussain appellant being belonged to Zulqarnain his brother, was produced by said Zulqarnain and similarly the gun allegedly used by Ahmed Sher was licensed gun of his son Muhammad Sher which was recovered from the house of Muhammad Sher, therefore, the recovery of these weapons of offence would create doubt regarding the correctness of allegation against the above said two accused.
21. ' Mr. Muhammad Latif Khan Khosa, learned Advocate Supreme Court appearing on behalf of the appellants in Criminal Appeal No,67 of 1999 and respondents in Criminal Appeal No,68 of 1999 submitted that in addition to the points noted by the High Court, the false implication of Ahmed Sher and Ulfat Hussain was also supported by other circumstances, therefore, the High Court has rightly acquitted them by extending the benefit of doubt. The learned counsel has sought dismissal of appeal bearing No,68 of 1999 and acquittal of appellants in Criminal Appeal No,67 of 1999 on the following grounds:--
(1) That the eye-witnesses namely Sehna (P.W.16) is son and Ghulam Hassan is nephew of Ghulam Hussain and they being closely related to all the deceased were interested witnesses and that they were also witnesses in the case under section 337, P.P.C. Against the accused party, therefore, their enmity with the accused was established on record and further their presence at the spot was doubtful as none of them was injured.
(2) That the evidence of eye-witnesses was not given any importance qua eleven acquitted accused by the trial Court and High Court, therefore, they cannot be believed as against appellants without strong independent corroboration.
(3) That recovery of gun from Muhammad Sher son of Ahmed Sher would not be used as an incriminating evidence against Ahmed Sher and High Court has rightly excluded the said recovery from consideration. Similarly, the gun (P-22) produced by Zulqarnain, brother of Ulfat Hussain, would not be relevant as supporting evidence against Ulfat Hussain respondent in the connected appeal.
(4) That Muhammad Khan (P.W.12) is cousin of the deceased and was an interested witness.
22. Similarly, Muhammad Abdullah, (D.W.14) the witness of the recovery of gun from Muhammad Afzal is related to the deceased and was also complainant in a case registered under section 337, P.P.C.
23. Against the accused party in which Sehna Khan and Ghulam Hussain were witnesses and that recovery of gun from Abdullah appellant was effected on the 'last day of his remand which was witnessed by Ghulam Muhammad (P.W.13) the real . Brother of Ghulam Hussain (P.W.16) and cousin of Sehna Khan complainant therefore, they all were interested witnesses.
(5) That the crime-empties were allegedly recovered on 29-5-1991 which were sent to the Fire-arm Expert on 3-6-1991 whereas Muhammad Afzal and Muhammad Khan on their arrest on 1-6-1991 produced their guns, therefore, it could safely be said that at the time of recovery of guns, the crime-empties were still with police and the positive report of Fire-arm Expert would be of no consequence. The reliance has been placed on PLD 1977 SC 557 and 1982 SCM R 49.
(6) That the ocular account is in conflict to the medical evidence which would be a rich source to suggest that innocent persons were involved in the case by the complainant party. The learned counsel in the alternate argued that the individual responsibility of causing death by the accused being not ascertainable, the capital punishment to the appellants was not proper and legal.
24. ' Learned counsel for the appellants while summing, up his arguments added that the High Court as well as the trial Court overlooked that the parties were inimical to each other and, the eyewitnesses being interested were not independent that the presence of eyewitnesses at the spot were highly doubtful as none of them sustained even a single injury in the occurrence that the injuries sustained by Muhammad Khan, deceased, were found with blackening whereas Gehna Khan deceased had burnt injuries and the injuries on the person of remaining two deceased had no such sign therefore, it could safely be concluded that the occurrence did not take place in the manner as suggested by the prosecution and the presence of the eye-witnesses at the spot was doubtful. Learned counsel further argued that medical evidence would be in conflict to the ocular account and the recovery of weapons of offence having been, witnessed by Muhammad Abdullah (P.W.14) an ' interested witness, would not be confidence-inspiring and reliable. In the nutshell, the learned counsel argued that the ocular account of inimical and interested witnesses was not seeking corroboration from any independent source therefore, the conviction and sentence for the capital charge on the basis of evidence of partisan witnesses would not be sustainable. The learned counsel has contended that out of fourteen accused eleven were acquitted, therefore, the conviction of appellant in the light of principle of sifting the grains from the chaff in the present case, would be offending the principle of safe administration of criminal justice.
25. ' Learned counsel for the complainant in connected Appeal No,68 of 1999 has contended that conviction and sentences awarded to the appellants and acquitted accused by the trial Court was based on the direct evidence of eye-witnesses which was seeking full corroboration from the medical evidence, motive and the evidence of recoveries and these circumstances, the acquittal of Ahmed Sher and Ulfat Hussain by the High Court was not supported by the sound reason to be sustained. Learned counsel while taking us to the statements of the eye-witnesses and the site plan, contended that the injury sustained by Ghulam Hussain could not be the result of shot fired by Muhammad Afzal and the High Court having drawn a wrong conclusion, has given undue benefit to the said accused. The learned counsel pointed out that as per site plan, Muhammad Khan was standing in between Ghulam Hussain and Gehna Khan, therefore, there was no chance of sustaining injury by Ghulam Hussain as a result of the shot fired by Muhammad Afzal. The learned counsel added that although the gun recovered at the instance of Ulfat Hussain belonged to his brother and the gun recovered at the instance of Ahmed Sher from the house of his son Muhammad Sher belonged to Muhammad Sher but the use of these guns as weapon of offence in the occurrence was proved beyond doubt as the crime empties recovered from the place of occurrence matched with these guns, therefore, mere fact that guns did not belong to the accused and were recovered from their their brother and son would not create any doubt in the prosecution case against these accused.
26. ' With a view to ascertain the correctness and legality of the findings of the High Court qua guilt of appellant in Criminal Appeal No,67 of 1999 and acquittal of respondents in Criminal Appeal No,68 of 1999, we have gone through the record in detail with the assistance of the learned counsel for the parties. The appellants and their co-accused namely Ahmed Sher and Ulfat Hussain have been assigned specific role of causing the fire-arm injuries to the deceased. Sehna Khan (P.W.15) and Ghulam Hassan (P. W.16) having furnished the ocular account of the occurrence have narrated the complete picture of the scene of occurrence and supported the prosecution case in each material and have also deposed in support of the motive part of the prosecution story. It is their evidence that Sher Samand deceased sustained injuries at the hand of Muhammad Khan and Muhammad Afzal was responsible for causing death of Gehna Khan. Ghulam Hussain deceased was caused fire-arm injuries on left flank by Ahmed Sher and Muhammad Abdullah fired at Muhammad Khan which proved fatal to his life. Ulfat Hussain was held by the eye-witnesses responsible for causing injuries to Ghulam Hussain deceased on his forehead, chest, right upper arm and palm of left hand and the perusal of medical evidence shows that all these injuries being of the size of 3/4 c.m. Were caused in the manner as stated by the eyewitnesses and similarly out of 10 injuries sustained by Muhammad Khan 7 injuries were entry wounds and two injuries were with blackening and the remaining three injuries were swelling and lacerated wounds whereas the injuries on the person of Muhammad Khan were of different size and the single injury on the person of Ghulam Hussain deceased on left side of abdomen was of the size of 3/4 x 3/4 and thus it is evident from the position of injuries that there was no describable conflict of the medical evidence with the ocular account. The perusal of site plan would show that Gehna Khan deceased and Ghulam Muhammad were at Point No,1 and whereas Muhammad Khan and Ghulam Hussain were at Points Nos.3 and 4 in the site plan at the time of sustaining injuries and the above position of the deceased shown in the site plan was not challenged by the defence, therefore, keeping in view their position at the spot, it can be visualized that Muhammad Khan and Ghulam Hussain would not be in the range of fire of Muhammad Afzal. In the light of position of medical evidence and site plan, there was no possibility of sustaining injuries by Ghulam Hussain and Muhammad Khan at the hand of Muhammad Afzal as contended by the learned counsel and the observation made by the High Court in this behalf would be based only on presumption. The injuries on the person of Muhammad Khan with blackening and the burnt injury on the person of Gehna Khan deceased would indicate that the said injuries were not result of one shot and thus there was no conflict of ocular account rather medical evidence would provide corroboration to the eye-witnesses account to the extent of use of weapon of offence by the appellants and the sustaining of injuries by the deceased at their hands. The prosecution evidence is that crime empties recovered from the place of occurrence were dispatched to the Forensic Science Laboratory before recovery of guns from the appellant which were found matched with the recovered guns and mere fact that Muhammad Abdullah (P.W.14) the recovery witness, was complainant in the case under section 337, P.P.C.
27. Registered against Mohsan Khan, an acquitted accused, would not be a valid reason to disbelieve the recoveries and exclude the same from consideration. We may point out that Khuda Bux, S.-I.
28. Who effected these recoveries, was as good witness as any other person and his evidence was not suffering from any disqualification to be disbelieved. Thus the contention that since the recovery of guns allegedly used by Ahmed Sher and Ulfat Hussain did not belong to them, therefore, the positive report of ballistic expert to the effect that crime-empties recovered from the spot were fired from these guns, would be of no significance, has no substance. It is not necessary that the weapon of offence should necessarily be belonged to the accused who used it and the use of guns in question in the occurrence in present case, was proved through the positive report of fire-arms experts, therefore, the eye-witnesses account would also be seeking corroboration from the evidence of recovery of weapon of offence. The objection that crime-empties were despatched after the recovery of weapon of offence therefore, the positive report of Fire-arm Expert would be of no consequence and the recoveries would have no evidentiary value, would be without any substance in view of the fact that accused namely Muhammad Khan and Muhammad Afzal, produced guns at the time of their arrest on 1-6-1991 i.e, after the depatch of empties to Forensic Science Laboratory.
29. ' The detail of injuries sustained by the deceased given by the eyewitnesses would find mention in the medical evidence, therefore, it can safely be concluded that the appellants and the acquitted accused namely Ahmed Sher and Ulfat Hussain while armed with the weapons allegedly used by them participated in the occurrence and played the role assigned to them by the eye-witnesses.
30. The enmity between the parties due to the criminal litigation in the background is admitted and further the happening of the incident of giving slaps to Ghulam Hussain by the accused and in retaliation inflicting of blows with cane stick to Muhammad Khan by Ghulam Hussain shortly before the occurrence on the fateful day was also proved. The accused party being revengeful with full preparation, arranged an attack on the complainant party on the same day as a result of which four persons of the complainant party were murdered.
31. ' The main question raised in the present case relates to the independence of the witnesses and the requirements of corroboration. The rule of corroboration is applied as an abundant caution and is not a mandatory rule to be always and necessarily insisted in each case. The true test is that if the direct evidence furnished by the witnesses contains exaggerations and is of doubtful veracity, the independent corroboration should be insisted. The rule of corroboration is also attracted, in a case in which the evidence is creditworthy but not of such a degree as to result in conviction of the accused. However, the requirement of corroboration depends upon the facts and circumstances of each case and in the nature of evidence in the said case. If the evidence does not suffer from any major or significant contradiction, the corroboration is not insisted but in a case of interested evidence, the corroboration either from direct or circumstantial source is sought and in such case, corroboration by medical evidence, motive and recovery of weapon of offence is enough to maintain the conviction. In the present case, the occurrence took place in broad daylight in which the accused with specific role in the F.I.R. Were nominated and the eye-witnesses account was not found suffering from any material contradiction which was receiving full support from medical evidence, motive and recovery of weapon of offence but even if as contended by the learned counsel, the evidence of recoveries and motive would be excluded from consideration, the rest of the evidence was good enough to prove the guilt of the accused.
32. ' We having scrutinized the evidence with the help of learned counsel for the parties, find that it is truthful and confidence-inspiring and prosecution has been successful in proving charge against the appellants in Criminal Appeal No,67 of 1999 and the respondents in Criminal Appeal No,68 of 1999. Consequently, we uphold the judgment of High Court to the extent of appellants in Criminal Appeal No, 67 of 1999 and while maintaining their conviction and sentence dismiss their appeal.
33. ' The acquittal of Ahmed Sher and Ulfat Hussain from the charges under section 302(b) P.P.C. Read with section 148, P.P.C. Being not based on sound reasons is not sustainable. The recovery of weapons even if, as observed by the High Court is excluded from consideration, still there was ample evidence in the form of ocular account, the medical evidence and motive to establish their active participation in the occurrence, therefore, their acquittal by the High Court is set aside and the conviction awarded to them by the trial Court for the charge under section 302(b), P.P.C. Is upheld. However, keeping in view the confusion regarding the injuries attributed to Ulfat Hussain, we are not in favour of awarding him extreme penalty of death and are of the view that sentence of life imprisonment to him shall sufficiently meet the ends of justice but we in view of the facts of the case do not consider it a fit case for grant of benefit of section 382-B, Cr.P.C. And therefore, the said benefit is not allowed to Ulfat Hussain convict.
34. ' The case of Ahmed Sher is distinguishable as he is attributed the role of causing the fire-arm injury of the size of 3/4 x 3/4 c.m. To Sher Samand on his abdomen which proved fatal to his life.
35. The ocular account of eye-witnesses regarding sustaining of injury by Sher Samand as a result of shot fired by Ahmed Sher is supported by the medical evidence, therefore, he would stand at par to the appellants in Criminal Appeal No,67 of 1999. We having found no mitigation in his favour for lesser penalty uphold the conviction and sentence awarded to him by the trial Court on all charges. The net result is that we while maintaining the conviction and sentence of the appellants in Criminal Appeal No,67 of 1999 dismiss the said appeal and uphold the Conviction awarded to Ahmed Sher and Ulfat Hussain by the trial Court on all charges. The sentence of death awarded to Ahmed Sher is maintained whereas the sentence of Ulfat Hussain is altered to life imprisonment and their sentence under section 148, P.P.C. Is also maintained. The fine under section 302, P.P.C.
36. Awarded to the above named accused by the trial Court is converted into compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. The sentences of imprisonment on different charges shall run concurrently. The Criminal Appeal No,67 of 1999 is dismissed and Criminal Appeal No,68 of 1999 is allowed.