QAZI MUHAMMAD FAROOQ, J.---This criminal appeal by leave of the Court, is directed against the judgment dated 9-3-2000 of a learned Division Bench of the Lahore High Court passed in Criminal Appeal No,671 of 1993.
2. The criminal through the impugned judgment was filed by the appellants Muhammad Ahmed alias Mahanni and Muhammad Ijaz alias Jaj, cousins inter se, against the judgment dated 22-9- 1993 of the learned Judge Special Court No,IV-Suppression of Terrorist Activities, Lahore Division, Lahore whereby having been found guilty of committing triple murder of Muhammad Siddique alias Baoo, Muhammad Sadiq and Muhammad Ilyas they were convicted under section 302/34, P.P.0 and sentenced to death on three counts each with direction to pay compensation, under section 544-A, Cr.P.C, amounting to Rs,1,00,000 each to the legal heirs of the deceased or suffer six months' S.I. Each in default. As a corollary to the dismissal of their appeal the sentence of death on three counts awarded to the appellants was confirmed and the Murder Reference was answered in the affirmative.
3. The gory incident had occurred on 17-6-1990 at 9-45 p.m. Near Goal Ground Karim Park, located at a distance of one kilometer from Police Station Ravi Road, Lahore. The F.I.R was drawn up at 11-30 p.m. On the basis of the statement of Muhammad Ali, uncle of the deceased Muhammad Siddique, recorded at 11-00 p.m. By Zahoor Ahmed S.-1. In the Emergency Ward of Mayo Hospital, Lahore.
4. The F.I.R discloses that the complainant's nephew Muhammad Siddique alias Baoo and appellant Ejaz alias Jaj were tonga drivers and about two years prior to the occurrence had picked up a quarrel at Paniwala Talab over loading of passengers. However, the matter was patched up through intercession of certain members of the Beradri. About 4/5 months thereafter deceased Muhammad Siddique, and the appellant Ijaz alias Jaj had altercated and exchanged abuses at 'Qazati Chowk as a result of which the latter was stabbed by the deceased and a case under section 307, P.P.C. Was registered against the deceased and his maternal uncle Heera at Police Station Ravi Road. Composition was once again brought about between the parties two days before Eid as a result of which the deceased and Heera were released on bail by the Court..On the fateful day the members of the Beraderi had assembled at about 9-45 p.m. In Karim Park in order to proceed to the house of Muhammad Ashraf alias Achha to finalize the compromise between the parties. Muhammad Siddique alias Baoo, Muhammad Sadiq and Muhammad Ilyas were chatting in front of the shop of Muhammad Sadiq. In the meantime Muhammad Ashraf, armed with a Kalashnikov, Muhammad Aslam and the two appellants, armed with mausers, came there on two motorcycles. They alighted from the motorcycles and-made indiscriminate firing as a result of which Muhammad Siddique, Muhammad Sadiq and Muhammad Ilyas sustained fire-arm injuries and later on expired in the Mayo Hospital, Lahore. The assailants were identified in the electric light.
5. At the trial, the prosecution, inter alia, examined Muhammad Ali (P.W.5) and Liaqat All (P.W.6), uncle and brother-in-law of the deceased Muhammad Siddique, as eye-witnesses. The appellants and their co-accused denied the prosecution allegations and professed innocence. The learned trial Court, acquitted the co-accused of the appellants, namely, Muhammad Aslam alias Achha and Muhammad Ashraf alias Papoo alias Bagari, but convicted and sentenced the appellants, as stated above, on the strength of the ocular evidence, motive, medical evidence, recovery of Kalashnikov from the appellant Muhammad Ahmed and positive report of the Fire-arms Expert.
6. Leave to appeal was granted to reappraise the prosecution evidence to ascertain as to whether it was appreciated in accordance with the principles laid down by this Court from time to time for the appraisal of evidence in criminal cases.
7. Sh.Khizar Hayat, learned counsel for the appellants, assailed the conviction and sentence of the appellants from different angles and in the. Process raised the following contentions:--
(i) The prosecution story with regard to composition was fabricated in order to justify presence of the eye-witnesses on the spot. It was evident from the F.I.R itself that the parties had already patched up the matter as a result of which the deceased Muhammad Siddique was released on bail.
(ii) The ocular evidence was not reliable. Both the eye-witnesses were not natural and probable witnesses because they were admittedly not the residents of the area where the occurrence had taken place. Had they been present on the spot they would have accompanied the three injured to the hospital instead of Punnoo and Haji Muhammad Yousaf. Besides, both were interested witnesses being closely related to the deceased Muhammad Siddique and inimically disposed towards the appellants.
(iii) On account of interestedness and acquittal of two co-accused of the appellants the eye- witness account required strong corroboration which was lacking. The medical evidence and the motive could not serve as corroborative pieces of evidence.
(iv) According to the F.I.R Muhammad Aslam accused was armed with a Kalashinikov and Muhammad Ahmed appellant with a mauser but at the trial Muhammad Aslam was charged for firing from Kalashinikov and the empties recovered from the spot matched with the Kalashnikov allegedly recovered from the appellant Muhammad Ahmed. The appellants were arrested on 13-6- 1990 and the empties were sent to the Fire-arms Expert 'on 2-7-1990. The incriminating recovery was doubtful and the report of the Fire-arms Expert had no value on account of delay in sending the empties for examination and report.
(v) A case for taking a lenient view in the matter of sentence was made out in view of acquittal of two co-accused of the appellants and dismissal by the High Court of the appeal and revision petition preferred by the State and the complainant against their acquittal. Reliance was placed on Imtiaz Ahmed v. State (1999 SCM R 2830). Besides, compromise had been effected between some of the legal heirs of the three deceased and the appellants.
8. Chaudhry Ghulam Hussain, learned counsel for the complainant and Chaudhry Arshad Ali, learned counsel representing the State, defended the impugned judgment by contending that the ocular evidence was not only confidence-inspiring but was also fully corroborated by the promptly lodged F.1.R, motive, medical evidence, recovery of Kalashinikov from the appellant Muhammad Ahmed and positive report of the Fire-arms Expert. They also submitted that there existed no mitigating circumstance for awarding lesser sentence.
9. In our opinion, the prosecution case against the appellants stands proved beyond any reasonable doubt. The defence has not been able to impeach the ocular evidence which is confidence-inspiring by all standards. The eye-witness account is not only graphic and consistent but also does not suffer from any serious discrepancy or contradiction. There is also nothing in the unsheltered statements of the two eye-witnesses to make their credentials, credibility and integrity questionable. .Their names are mentioned in the promptly lodged F.I.R. And this fact goes a long way to establish their presence on the spot. They are natural and prelate witnesses being members of the 'Beradri' which had arranged a 'Panchayae on the eventful night to finalize the compromise between the appellant Muhammad Ijaz alias Jaj and the deceased Muhammad Siddique. The latter was released on bail on the basis of compromise at the initial stage of the case and his trial was in the offing, therefore, the prosecution story in regard to composition between the parties on the crucial day stands to reason and cannot be termed as fabricated. Mere fact that the eye-witnesses had not accompanied the three injured to the hospital cannot make them trumped-up witnesses. The three deceased in an injured condition were taken to the hospital on a '
Rehra' by Punnoo and Haji Muhammad Yousaf and this possibility cannot be excluded that there was no space available in the 'Rehra' to accommodate the eyewitnesses. The ocular evidence is fully augmented by the promptly lodged F.I.R, the motive set up in the F.I.R, which stands established on record, the medical evidence, recovery of the weapon of crime from the appellant Muhammad Ahmed and the positive report of the Fire-arms Expert. The incriminating recovery having been made in presence of witnesses from the public does not offend the provisions of section 103, Cr.P.C. The imbroglio created by the description of the weapon used by the appellant Muhammad Ahmed in the F.I.R. As mauser cannot demolish the prosecution case against him because this technicality is condonable in view of the blitzkrieg launched by four heavily armed assailants coming to the spot of occurrence on two motorcycles. In any case sufficient corroborative evidence is available from different independent sources, therefore. The ocular evidence qua the appellant. Muhammad Ahmed will not be rendered uncorroborated even if the recovery of the weapon of crime and the positive report of the Fire-arms Expert are kept out of consideration. No doubt the eye-witnesses are closely related to the deceased and two co- accused of the appellants have been acquitted but these factors cannot be overplayed for the reasons that the maxim ' falsus in uno falsus in omnibus' cannot be pressed into service having been discarded and substituted by the principle 'sifting the grain from the chaff' and the ocular evidence vis-a-vis the appellants is amply supported by the aforementioned corroborative evidence.
10. As to sentence, a lenient view cannot be taken as the murders committed by the appellants are brutal and gruesome. The appellants not only murdered the person they wanted to eliminate but also killed two unconnected persons in the process and there exists no mitigating circumstance.
The alleged compromise between the appellants and some of the legal heirs of the three deceased cannot serve as a mitigating circumstance. For the foregoing reasons, the appeal is dismissed.