P L D 1961 (W (PLP)

SHABIR AHMAD, J.‑Muzaffar, his brothers Sardar Khan, Gul Sher, Hakam and Sahib, along with Inayat and his son Muhammad Khan, and Ali were tried by the learned Additional Sessions Judge, Lyallpur at Jhang, under sections 302, 302/149, 201 and 148 of the Pakistan Penal Code with the result that while the other six were acquitted, Muzaffar and Sardar Khan were found guilty under sections 302 and 302/114 of the Pakistan Penal Code and sentenced to transportation for life each. Muzaffar and Sardar Khan have presented this appeal jointly, while the State has presented a petition for revision (Criminal Revision No. 1092 of 1959) for enhancement of the sentences of the two convicted persons to death. The state has also presented an appeal (Criminal Appeal No. 915 of 1959) against Ali and Muhammad Khan with a view to having their acquittal set aside. In addition there is another matter arising out of the trial and this is Criminal Revision No. 1147 of 1959 which has been presented by Hakam Khan, one of the prosecution witnesses in the case, against Gut Sher, Hakam, Sahib and Inayat with a view to having the acquittal of these four set aside and a re‑trial directed. Notice was issued on the 28th of October 1959 by a Division Bench of this Court in the petition for enhancement of sentence, and the appeal presented by the State, but with regard to the petition of Hakam Khan (Criminal Revision No. 1147 of 1959) the order passed by the same Bench on the same date was that it should be heard by the Bench that hears the criminal appeal presented by the State. As all the above matters arise out of the same judgment, they will be disposed of together by this order.

2. The case arises out of an incident which was stated to have occurred on the 4th of February 1958 on the road connecting Jhang City and Shorkot and is alleged to have culminated in the death of two persons, namely, Zulfiqar Khan and his brother Muzaffar Khan, both rich landlords of a near‑by village known as Kot Khaira. The main motive for the offence was stated to be that about sixteen years earlier the two victims of the present incident and some others had killed five relations of the appellants, dead bodies of some of whom were not recovered at all. That heinous offence did not go unpunished as fifteen persons were sentenced, three of them to death and twelve to transportation for life. The two victims of the present incident were two of the twelve persons who were sentenced to transportation for life and would appear to have returned to their homes after serving the sentences that had been imposed on them. It was further alleged that some time in August 1957 there was an exchange of taunting words between some members of the, two parties who had gone to a grave‑yard at the time of Moharram which is customary among the Muslims. It was stated that Zulfiqar Khan one of the present victims had said something which indicated that the other party were too supine to take revenge for what had been done to their relatives a decade and a half earlier.

3. The prosecution case with regard to the incident under consideration was that Zulfiqar Khan and Muzaffar Khan, the victims, were returning to their village from Jhang City where they had gone in connection with the registration of a sale deed of some land executed by them, when the two tongas on which they were returning and which carried some other passengers also were stopped by Ali, one of the acquitted accused against whom the State has presented an appeal. When the tongas stopped, the two convicted accused and Muhammad Khan, who is one of the respondents in the appeal against acquittal presented by the State, came out of some pits near the road. All three of them were armed with rifles and on coming to the tongas asked the passengers other than the two victims, one of whom was in one tonga and the second in the other, to get down from the Tongas. When the only person left in each Tonga was the intended victim, Muzaffar appellant fired, with the rifle he carried, at Muzaffar Khan and Sardar Khan fired at Zulfiqar Khan with his rifle, from a point‑blank range. As was but to be expected, the persons hit fell down in the body of the Tonga and after this both the victims were taken out of the Tonga and dragged towards a secluded place near a band on the River Chenab. Attempts at recovering the bodies, which because of the fact that three of the assailants were armed with rifles had but to be feeble, failed and the bodies were carried away. Seeing that attempts to recover the bodies of the victims could bear no fruit, Hakam Khan, who was one of the passengers in one of the two tongas, went to Police Station Sadar, Jhang, which is at a distance of five miles from the scene of the, occurrence, and there made a report in which the details of the occurrence given above were mentioned. This report was recorded by Sardar Khan Sub‑Inspector of Police who at once despatched two Assistant Sub‑Inspectors of Police and about ten Foot Constables to the scene of the occurrence with a view to recovering the bodies of the victims. The attempts of these police officers did not succeed and after investigation the police sent up the eight accused persons for trial, the charge against persons other than those who were present at the time of the firing at .the victims being that the offences were committed with their help and they had assisted in doing away with the evidence of the crime.

4. At the trial the prosecution produced Hakam Khan (P. W. 16), Wali Muhammad (P. W. 19), Muhammad Yar (P. W. 20), Sultan (P. W. 21), Dilmir (P. W. 22) and Shamun (P. W. 23) as eyewitnesses of the occurrence which took place on the road, while Allah Bakhsh (P. W. 24), Adila (P. W. 25) and Muhammad Hayat (P. W. 26) were produced with regard to the disposal of the bodies. The names of the witnesses with regard to the incident on the road were mentioned in the first informa tion report. Besides them, two other persons were stated to have witnessed the occurrence and they were Mst. Dalian and Mst. Fateh Bibi who were real sisters of the two victims. The names of these two ladies were not mentioned in the first information report and this omission was evidently due to the fact that the informant who is related to them did not want the ladies to appear as witnesses in Court. Though Mst. Fateh Bibi was not produced as a witness in Court, Mst. Dalian was. She was the 37th witness for the prosecution at the trial, and though she was asked no question in examination‑in‑chief by the learned counsel in charge of the prosecution, opportunity was afforded to the accused to cross‑examine her with regard to the incident if they chose to do so but this opportunity was not availed of on behalf of the defence.

5. Besides the direct evidence to which a reference has been made above, the prosecution relied on a few other pieces of evidence. One of these was that during the course of, investiga tion, Muzaffar appellant gave information which led to the recovery of a rifle which, according to the prosecution, was the weapon which this appellant had used at the time of the incident on the road. Evidence was led that three empty rifle cartridges were recovered from the scene of the occurrence and that the percussion cap of one of these cartridges was found to bear marks which indicated that it had been fired from the rifle recovered at the instance of Muzaffar appellant. I might mention here that this appellant was tried under the Arms Act for being in possession of a firearm without a licence, but an order of discharge was passed in his favour. Another piece of evidence on which the prosecutor relied was that Sardar Khan appellant and Ali had given information which led to the recovery from the river, which is at a distance of about a mile and a half from the scene of occurrence, of some human flesh and bones of human beings which, according to Dr. H. M. Afzal, who appeared as the 36th witness for prosecution, were of a person who was about 25 years of age. These bones and pieces of flesh were recovered from a bag which contained some other things such as coal etc. Two shoes, each of a different pair, were also recovered from the river at the instance of the accused mentioned above, and the prosecution case was that one of these shoes belonged to Muzaffar Khan, one of the victims, and the other to Zulfiqar Khan, the other victim.

6. When questioned at the close of the prosecution evidence to explain the circumstances appearing in that evidence against them all the accused persons denied their guilt and ascribed the case against them to the enmity of the prosecution witnesses. No evidence was produced in defence.

7. Before I take the consideration of the case on merits, I will dispose of a point which can be deemed to be a preliminary objection because if it is accepted, the appeal of the convicts must succeed wholly or partly. This point, which was raised by Mr. M. Sleem, who argued the case on behalf of the two convicted accused, was that the trial was vitiated by reason of the fact that though there were two commitment orders, there was only a single trial. On facts, this contention is correct because Sardara, one of the accused persons, was an absconder and, therefore, the commitment proceedings against him could not be taken along with those regarding the other seven accused. Sardara was arrested before the trial started and the case against him was committed to the Court of Session and consequently all the eight accused were tried jointly for all the offences. Mr. M. Sleem urged that every trial in a case triable by a Court of Session has to be preceded by a commitment and two or more commitments for trial cannot be the subject of a single trial. This is not the first time that this point has been raised because one finds that it has been dealt with in Sardara v. Emperor (A I R 1945 Lah. 286 (F B)) and Ibrahim Bhak v. The Crown (P L D 1955 F C 113) in both of which cases it was held that joint trial of accused persons who could be tried at one trial does not, become vitiated if instead of one commitment order there are;" more than one. Mr. M. Sleem urged that some aspects of the question under discussion had not been dealt with in those two decisions and for that reason they could not be said to have concluded the matter. One of the points that Mr. Sleem raised was that it had been overlooked that if two commit ment orders resulted in one trial, anomalous results were likely to follow in certain cases. For example, it may be necessary to transfer the statement of a witness before the committing Magistrate as substantive evidence at the trial by resort to section 288 of the Code of Criminal Procedure and if this course has to be followed with regard to one of the two commitment proceedings, the result would be that evidence which could not have been brought on the record against a set of accused persons would be evidence in the case. It is true that in the above hypothetical case an anomalous position is likely to arise but the fact that this is so cannot lead to the conclusion that two commitments by Magistrates to the Court of Session with regard to the same offence could not form the basis of one trial. If the anomaly contemplated by Mr. Sleem arises, there is nothing in law to prevent the trial Court from dealing with the cases separately and if that were done no provision of law could be held to have been violated. Another argument of Mr. Sleem on this point was based on the language of section 239 of the Code of Criminal Procedure, the relevant part of which reads as under :‑ "The following persons may be charged and tried together (a) (b) (c) * * * * * * * *. The contention raised was that this section, which was an exception to the rule that every person accused of offences shall be tried separately for each offence, contemplated that only those persons could be tried at one trial who had been charged in one proceeding and in this connection his reliance was on the word "and" which occurs between "charged" and "tried" in the opening line of section 239 of the Code of Criminal Procedure. This point as far as I am aware, has not been dealt with in any decided case I am clear in my mind that the contention of Mr. Sleem cannot be accepted because the word "and" that occurs between the words "charged" and "tried" has not the restricting meaning which the learned counsel would want to have attached to it and that "and" can, without doing violence to any recognised canon of interpretation of statutes, be substituted by the word "or" in section 239 of the Code of Criminal Procedure. It is of course true that if some persons have been charged together, they will ordinarily be tried together but I cannot accept the contention raised by Mr. Sleem that it is only in those cases where the accused have been charged jointly that a joint trial can be held by virtue of section 239 of the Code of Criminal Procedure. But even if the contention of Mr. M. Sleem be accepted, it is clear that at the worst the joint trial of persons who were committed to the Court of Session by different commitment orders would amount to an irregularity. As is manifest from section 537 of the Code of Criminal Procedure, no irregularity can vitiate a trial unless it is established that prejudice to an accused person had resulted. There was no proof, and not even a suggestion, that any prejudice to the accused persons had resulted from the joint trial and I would, therefore, hold that the trial was not defective.

8. The consideration of the case on merits may now be taken up. The incident on the road was, as mentioned already, supported at the trial by Hakam Khan (P. W. 16), Wali Muhammad (P. W. .19), Muhammad Yar (P. W. 20), Sultan (P. W. 21), Dilmir (P. W. 22) and Shamu (P. VV. 23). Besides these persons and the two sisters of the two victims, some other persons were mentioned as eye‑witnesses, but they were not produced at the trial on the ground that the prosecution believed that having been won over, they were not likely to support their case. Of the witnesses produced, Hakam Khan (P. W. 16) is a cousin of the two victims, Sultan (P. W. 21) can be said to have some connection with the family of the victims because the father of the witness, though acquitted on appeal, was one of the accused persons in the cases, relating to the five murders which occurred about sixteen years previous to the present occurrence, Dilmir (P. W. 22) is a kardar of one of the victims as well as of Hakam Khan and some others. However, the other three witnesses, namely, Wall Muhammad (P. W. 19), Muhammad Yar (P. W. 20) and Shamu (P. W. 23) are not shown to have had any connection with the victims or any of the other eye‑witnesses. The evidence of these three witnesses, who were not shown to have had any connection with the victims was sought by Mr. M. Sleem and Chaudhri Nazir Ahmad Khan, the latter of whom argued the case on behalf of the two accused whose, acquittal has been questioned in the appeal presented by the State, to be held unreliable on the ground that they were men of no position and could be easily made to support the prosecution case. If by men of position the learned counsel meant landholders the contention is correct as Wali Muhammad is a shoemaker, Muhammad Yar a boatman and Shamu is a tonga driver and none of them can be called a man of much substance. The mere fact, however, that a person is not well‑to‑do does not lead to the conclusion that he is a liar as well, just as the fact that a witness who claims to have seen an occur rence is related to the victim is .no ground for holding that the evidence given by him' is false. Whether or not a person is to be relied upon by a Court must necessarily depend on the circums tances of each case and no hard and fast rule can be laid down with regard to the credence which Courts should attach to state ments of persons in any walk of life. It must be the experience of all those who are connected with the administration of justice that while some very rich persons have given false evidence in Courts, some very poor ones have not deviated from truth. The fact therefore, that Wali Muhammad (P. W. 19), Muhammad Yar (P. W. 20) and Shamu (P.W. 23) were not well‑to‑do persons, cannot be accepted, as ground for discarding their statements on oath in Court. No such interest of these witnesses in the victims or their relatives or against the accused persons has been established as to make one look at their depositions with suspicion. It can hardly be doubted that these three witnesses were in one or the other of the tonga in which the victims were on their way from Jhang to their village Kot Khaira, and I find it difficult to believe that these witnesses will have the temerity of giving false evidence , against any of the party of the accused who are quite well‑to‑do and influential persons and indeed one of the acquitted accused namely, Gul Sher, is a Lambardar of his village. I might make it clear that I find no ground for not placing implicit reliance on the depositions of Hakam Khan ((P. W. 16), Sultan (P. W. 21) arid Dilmir (P. W. 22) with regard to the manner of the assault and the identity of .the assailants, but even if there had been any doubt, it could not but have been dispelled by the depositions of Wali Muhammad (P. W. 19), Muhammad Yar (P. W. 20) and Shamu (P. W. 23).

9. The statements of the eye‑witnesses mentioned above were sought to be discredited by pointing out that Muhammad Khan, who is one of the respondents in the appeal presented by the State, though stated to have been armed with a rifle, was not alleged to have used it. It was contended by Chaudhri Nazir Ahmad Khan that if the prosecution case is accepted, two of the assailants, namely, the two who have been sentenced, were carrying rifles and it was not necessary to have another man with a rifle, and he went on to say that if Muhammad Khan had a rifle it was strange that he did not use it. I find nothing strange in Muhammad Khan being present with a firearm and yet not using it. It is to be remembered that the assault took place on a thoroughfare, which according to the evidence on the record is used by motor‑buses. In these circumstances, it is clear that the assailants would like to have as many armed persons as they could collect, because if they happen to be surprised when they were executing their illegal purpose the intending rescuers could scared away by show, or if need be, use of firearms. The fact that Muhammad Khan did not use. his firearm is easily explained by the circumstance that two of his companions used their weapons as effectively as any weapon could have been used. It was also pointed out as a strange circumstance by Chaudhri Nazir Ahmad Khan that though Ali was stated to be one of the four persons who participated in the assault on the road he had no weapon with him. The fact that Ali had no weapon is not significant at all because if he had one it is by no means improbable that the tonga‑drivers would not have stopped their tongas when called upon by him to do so.

10. Against Muzaffar appellant the evidence of the six eye‑witnesses mentioned above is supported by the fact that during the investigation of the case by the police, he gave information which led to the recovery of a rifle. The information and the recovery is deposed to by Allah Ditta (P. W. 27), Haji Faiz Bakhsh (P. W. 28) and Sardar Khan (P. W. 29) whose depositions I do not see any reason for doubting in the least degree. But here Mr. Sleem, learned counsel for the convicted accused, has urged that the fact that Muzafar was not convicted in the case under the Arms Act against him, has to be used in favour of Muzaffar. The contention was that if Muzaffar had been found not guilty of the offence of possessing a firearm without a licence by a Court, it could not be held by any other Court that he was in possession of that firearm. To support his contention, Mr. Sleem relied on a decision of their Lordships of the Privy Council Samhosivam v. The Public Prosecutor, Federation of Malaya (PLD 1950PC23.). The case was from Malaya and though I do not know whether the relevant provisions of law in that country and Pakistan are the same, I will assume that they are. The decision of their Lordship of the Privy Council can, however, be of no avail to Muzaffar appellant. There is first of all this difference between the case disposed of by the Privy Council and this case that Muzaffar was not acquitted of the offence but a mere order of discharge was passed in his favour and an order of discharge has not the same force as an order of acquittal. Then there is the fact that the trial in which it was held that Muzaffar was in possession of a firearm at the time of the incident under consideration was held by a Sessions Judge while the second case was disposed of by a Magistrate of the 1st Class. It is by no means unlikely that by the time the case under the Arms Act had been taken up the witnesses to the recovery had been won over and, therefore, they watered down their statements against Muzaffar. If a finding given by a Court at a subsequent trial can vitiate a finding given at an earlier trial, the results would in some cases be disastrous because in cases like the present where an accused person is charged with murder committed with a firearm for which he held no licence, a finding of a Court with regard to the murder committed could be set at naught by a subsequent order of an inferior Court to the effect that no arm was proved to have been recovered from the accused person, and I am clear in my mind that such disastrous results have to be avoided by Courts unless the law leaves them no option. Mr. M. Sleem could not point to any provision of law under which the order of discharge passed in favour of Muzaffar Khan in the case under the Arms Act could be used to the benefit of Muzaffar Khan in the case for murder which has been disposed of earlier and I know of no such provision. In view of what I have said, I have no hesitation in coming to the conclusion that the fact that an order of discharge passed in favour of Muzaffar Khan in the case relating to his possession of a firearm without a licence cannot, in any manner, go in his favour in the present case if, the Court comes to the conclusion that on the evidence on the record of the present case the recovery of the rifle in question is establi shed beyond all reasonable doubt.

11. I have already indicated that the recovery of the rifle at the instance of Muzaffar was deposed to by Allah Ditta (P. W. 27), Haji Faiz Bakhsh (P. W. 28) and Sardar Khan, Sub‑Inspector of Police (P. W. 38). The recovery was made on the 27th of February 1958, though, according to the evidence on the record, Muzaffar was arrested on the 18th of that month. This lapse of nine days between the arrest of Muzaffar and the alleged recovery of the rifle at his instance was sought to be used to discredit the evidence of the‑recovery. It was urged that it was improbable that a person who makes a statement which leads to the recovery of an incriminating article should not make that statement at the earliest opportunity that offers itself for making it. This argument cannot be accepted, because the time that elapses between the arrest of an accused person and the inform ation he gives depends on his power of resistance. It appears that the police officer had at last succeeded on the 27th of February 1958, by cajoling, or offering a promise, or even a threat to Muzaffar appellant, to make him give an information with regard to the hiding place of the weapon, and even if I were to assume that a threat or a promise was held out by the investigating officer, the recovery does not stand vitiated because section 27 of the Evidence Act is clearly a proviso to sections 24, 25 and 26 of that Act. I have already said that there is no reason to doubt the correctness of the depositions of the three witnesses of the recovery of the rifle and I would, therefore, hold that the recovery is established beyond ,all reasonable doubt.

12. The prosecution produced Abdul Mastan (P. W. 12) as ballistic expert to depose that one of the empty cartridges found near the scene of the occurrence had been fired from the rifle produced by Muzaffar appellant. Two objections were raised with regard to the evidence of P. W. 12, who is the Director of Central Forensic Science Laboratory, Lahore. The first was that that part of the deposition of the witness, which was to the effect that empty, cartridges had been received by him on the 7th of February 1958 was incorrect and that in fact the rifle and the empty cartridges which were the basis of the opinion of the expert had been received on the same day, namely, the 1st of March 1958. The second objection was that even if the deposition of the witness be accepted, it could not prove that the rifle in question had been used at the scene of the occurrence. In connection with the first of these two objections, attention was drawn to Exh. P. PP., dated the 11th of June 1958, which was an examina tion report prepared by P. W.

12. In this report it was mentioned that the parcels containing the rifle and the used cartridges were received on the 1st of March 1958. The prosecution produced the letter which the Superintendent of Police Jhang sent along with the empty cartridges through Muhammad Bashir, Foot Constable;(P. W. 3): This document, which is on the record as Exh. P. W. 12A, is dated the 6th of February 1958, and the evidence of Muhammad Bashir (P. W. 3) was to the effect that the empty cartridges were delivered by him at the office of the Arms Expert either on the 6th of 7th of February 1958. I am clear in my mind that the official in the office of the Director of Central Forensic Science Laboratory, who typed out the report Exh. P. PP. was under some mistake with regard to the date of the receipt of the empty cartridges and appears to have taken the date of the receipt of the rifle in the office to be the, date on which the empty cartridges had been received also. This mistake was not unlikely to be committed and in view of the clear deposition of Muhammad Bashir (P. W. 3) and that of Abdul Mastan (P. W. 12) and the contents of the letter Exh. P. W. 12A, I unhesitatingly come to the conclusion that the empty cartridges were received in the Central Forensic Laboratory at Lahore on the 7th of February 19,58, i.e. within a couple of days of the incident and about three weeks before the rifle, from which they are alleged to have been fired, was recovered. The evidence of Abdul Mastan (P. W. 12) shows that the empty cartridges remained in his custody all, along and it is, therefore, clear that the cartridge which connects the rifle with the crime could not have been fired after the recovery of the weapon on information given by Muzaffar appellant, with a view to creating evidence against him.

13. The second contention of Mr. M. Sleem, learned counsel for the convicted appellants, on this point, namely, the one with regard to the weight of the evidence of the Arms Expert, may now be taken up. It was contended that the mere fact that some peculia rities were found on one of the empty cartridges which could make it appear that it was fired from the rifle in question could not be sufficient to prove that the cartridge was fired from the rifle and to support his contention learned counsel relied on pages 113 and 116 of the Book on Identification of Firearms by Major Sir Gerald Burrard. The book no doubt lends some support to the contention of the learned counsel but cannot be conclusive in the present case, because one finds that it is not only on one mark of the striker that the expert based his opinion His evidence shows that he noticed ten peculiarities, which were common between one of the three empty cartridges recovered on the 4th of February 1958, and a cartridge which he fired from the rifle in question for the purposes of the tests undertaken by him. It is difficult to believe that two different, weapons would contain ‑as many as ten common features and I have, therefore, arrived at the conclusion that the prosecution had succeeded in establishing that the weapon recovered at the instance of Muzaffar appellant had been used at the time of the occurrence.

14. Against the two convicted accused, therefore, the evidence consists of the depositions of no less than six eye‑witnesses, namely, Hakam Khan (P. W. 16), Wali Muhammad (P. W. 19), Muhammad Yar (P. W. 20), Sultan (P. W. 21), Dilmir (P. W. 22) and Shamu (P. W. 23) and against one of them, namely, Muzaffar, there is in addition the evidence that he had given information which led to the recovery of a rifle which is proved to have been used at the time of the incident. In my view, this evidence establishes beyond all reasonable doubt that the two convicted accused had taken part in the incident which was the subject of the trial at which they were convicted. What offence is made out against the two convicted accused will be considered after I have dealt with the appeal presented by the State against Ali and Muhammad Khan, two of the six acquitted accused.

15. Before dealing with the merits of the appeal of the State against the acquittal of Ali and Muhammad Khan appel lants, I might dispose of an objection raised by Ch. Nazir Ahmad Khan, Advocate, who appeared for these two accused, who were respondents in the appeal presented by the State (Criminal Appeal No. 915 of 1959). He pointed out that in the second ground of appeal the name of one of the persons, whose acquittal was sought to be questioned, was stated to be Muhammad Hayat and, therefore, the appeal against Muhammad Khan appellant merited dismissal on the short ground that the appeal was not directed against his acquittal. The names of the respondents are clearly mentioned as Ali and Muhammad Khan in the heading of the. memorandum of appeal and it would, therefore, appear that the mistake that had crept in ground No. 1 of the appeal was but a slip and could not be fatal. Any significance which the mistake may have vanished when one bears in mind that none of the eight accused was named Muhammad Hayat and, therefore, nobody could reasonably suppose that the person appealed against was not Muhammad Khan. I am not saying that the mistake that had crept in in ground No. 2 did not disclose some degree of carelessness on the part of Maulvi Mushtaq, Husain, the present Additional Advocate‑General, West Pakistan, who had on the 19th of September 1959, signed the memo. of appeal evidently in his capacity as an Assistant Advocate‑General of West Pakistan, but I am clear that the slight error cannot be availed of on behalf of Muhammad Khan for having the appeal against him‑ thrown out on the ground that it was not intended to be directed against him.

16. The ocular evidence against Ali and Muhammad Khan, the two accused whose acquittal is questioned by the State, was precisely the same as against the two convicted accused and ordinarily it would appear illogical to consider the evidence of the witnesses unreliable against these two accused, though it had been considered reliable as far as the two convicted accused are concerned. This evidence consists of the depositions of Hakam Khan (P. W. 16), Wali Muhammad (P. W. 19), Muhammad Yar (P. W. 20), Sultan (P. W. 21), Dilmir (P. W. 22) and Shamu (P. W. 23). There was in addition the evidence of Allah Bakhsh (P. W. 24). Adila (P. W. 25) and Muhammad Hayat (P. W. 26) to the effect that these three witnesses had seen these two accused in the company of the six other accused at a place near Bela Bungas engaged in doing away with two human bodies. The arguments of Ch. Nazir Ahmad Khan with regard to the weight that should be attached to the evidence of the witnesses who deposed to the incident on the road, as well as of the witnesses who deposed to the doing away of the evidence, has already been dealt with by me in detail, and I need say no more about the matter. It should not be overlooked that Ali is not such an important person as to make it appear that he had been falsely implicated by reason of his importance. The evidence shows that he is a shoemaker with whom the eye‑witnesses who deposed about the incident at the road are not established to have enmity, and the mere fact that he was stated to be a friend of one of the accused would, in my view, not be sufficient for holding that he had been falsely involved in the case simply because he happened to be a friend of another accused person.

17. The learned trial Judge did not choose to place reliance on the evidence of Allah Bakhsh (P. W. 24), Adila (P. W. 25) and Muhammad Hayat (P. W. 26). He appears to have overlooked that under section 161 of the Code of Criminal Procedure the state ments of these witnesses were recorded soon after Sardar Khan (P. W. 38) reached the scene of the occurrence after taking down the first information report. It is true that the names of these three witnesses were not mentioned in the first information report, but the reason was that Hakam Khan (P. W. 16) had left for the police station before the activities of the accused to which these three witnesses deposed had started. In these circumstances, the fact that these three witnesses were not mentioned in the first information report was entirely immaterial. However, as the learned trial Judge has chosen not to rely on them, I will in spite of the fact that I find no sufficient grounds for not accepting the depositions of Allah Bakhsh (P. W. 241, Adila (P. W. 25) and Muhammad Hayat (P. W. 26) keep those depositions out of consideration. But even if these depositions are kept out of consideration, the case against Ali and Muhammad Khan was established beyond all reasonable doubt on the evidence given by Hakam Khan (P. W. 16), Wali Muhammad (P. W. 19), Muhammad Yar (P. W. 20), Sultan (P. W. 21) Dilmir (P. W. 22) and Shamu (P. W. 23). I would, therefore, hold that the acquittal of Ali and Muhammad Khan, the two respondents to the appeal presented by the State, was unjustified.

18. This leads me to the question what offence, or offences, are established against the four accused whose participation I have held to have been established beyond all reasonable doubt. That the two victims were fired at with rifles from a close range is hardly open to question, nor can there be any doubt that each of them fell is the body of the tonga in which he was sitting and started bleeding profusely The evidence of Shamu (P. W. 23) is to the effect that each of the two victims was hit in the chest. Mr. M. Sleem, learned counsel for the two convicted accused, urged that at worst the offence disclosed was one of attempted murder and not of murder, because according to him the death of the two victims could not be said to have been established. He relied on some remarks made in Bandhu and another v. King Emperor (A I R 1924 All. 662.) and at pares 1309 and 1310 of Howell's State Trials 1700‑1708, Volume

14. The remarks relied upon from the latter book were those of Lord Hale to the effect that he would never convict an accused of murder unless the dead body of the victim were found. The remarks in Bandhu and another v. King Emperor were to the general effect that on facts in that case it could not be held that the offence established against the assailants was one of murder. Whether the facts in the Allahabad case established an offence of murder or not is entirely irrelevant for the purposes of the present case, because the question what is established from the facts which are proved is essentially a question of fact in each case and no decision given by any other Tribunal, be the Tribunal even one whose decisions on points of law are binding on a Court, can be binding on any other, however humble the latter Tribunal may be. The evidence in the present case is that the victims were fired at with deadly weapons from point‑blank range. And that is not all because there is an addi tional piece of evidence that one foot of the pair of shoes of each of the two victims was recovered from the river at the instance of two of the accused persons and that these shoes appeared to have been partly burnt and that some burnt human flesh and some singed human bones were also recovered from the river. It is not without significance that the evidence of Allah Bakhsh (P: W. 24) Adila (P. W. 25) and Muhammad Hayat (P. W. z6) is to the effect that the human bodies which were brought by those four of the accused who are stated to have taken part in the incident on the road, were thrown in a fire which was lit and after some time the ashes and the other remains were collected in bags which were taken towards the river. I have said already that I will not take into consideration the evidence of the three eye‑witnesses on whom the learned trial Judge did not choose to rely, but the recovery of the shoes as well as of burnt human flesh and singed human bones would indicate that the bodies of the victims were destroyed by means of fire. In these circumstances, there can be no manner of doubt that the four accused who took part in the incident had thrown the bodies of the victims into fire and as a result they were almost completely burnt to ashes. This would clearly establish that the four accused, who have been held to have taken part in the incident on the road, had caused the death of two human beings. But even if the evidence. with regard to the recovery were to be kept out of consideration, it can be safely presumed that, the victims had died as a result of the firearm injuries that were given to them on one of the most vulnerable parts of the body, namely, the chest, by means of firearms fired from very close range. Death of the victims, in these circumstances, was a certainty and if anybody wanted the Court to hold that death had not occurred in spite of the fact that the victims had not been seen or heard of since the date of the incident, he has to produce cogent evidence in support of his contention, of which evidence there is a complete absence on the present record. With the profoundest respect to the learned Lord who expressed the view that he would be reluctant to convict a man of murder if the dead body of the alleged victim was not forthcoming, I would say that the recovery of dead body is not necessary for convicting an accused person of murder because if the Court comes to the conclusion that it is established that the victim was killed by the accused, the non‑recovery of the dead body can be of no importance. If, for example, the evidence were that soon after killing a person the assailant had destroyed the dead body completely and the Court believes this evidence, I do not see why a conviction for murder should not be recorded. It cannot, therefore, be laid down as a hard and fast rule that before any person can claim the conviction of another on a charge of murder, the dead body of the victim must have been recovered. In this connection, the definition of the word "proved given in section 3 of the Evidence Act should be kept in view This definition reads as follows : ‑ "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." From this definition it is clear that if the Court comes to the conclusion, that a person was killed, the fact that the dead body was not recovered could not Qutweigh the evidence which other wise proves the death of the victim. As I have no doubt in my mind that the victims of the incident under consideration had died as a result of the assault, I have no hesitation in holding that all the four accused who have been held to have taken part in the incident on the road were guilty of the two murders, which were clearly committed in prosecution of their common intention. The conviction of the two convicted accused is therefore, upheld and I would, accepting the appeal of the Provincial Government against Ali and Muhammad Khan, accused, convict them on two counts under section 302/34 of the Pakistan Penal Code.

19. The question of sentence may now be taken up. Regard ing the petition for enhancement of sentence passed on the two convicted accused, their learned counsel urged that as a long time had elapsed since the lesser penalty for the offence of murder was awarded, the sentence should not be enhanced. In my view, the circumstance relied upon is not a conclusive ground for allowing a sentence which is clearly inadequate to remain because if the Court did that, it would be perpetuating an injustice which has been perpetrated. It may be that Government would because of the lapse of the time, between the occurrence and the imposition of the extreme penalty, exercise its powers under section 401 of the Code of Criminal Procedure for com muting the capital sentence, if passed, to some other sentence; but that consideration, as I have said in State v. Sir Edward Snelson (P L D 1961 Lah. 78) is entirely irrelevant for the Court. An argument about the sentence of transportation for life being an adequate sentence for the offence established against the four accused addressed by their learned counsel was that the accused persons appear to have been smouldering under the effect of the five murders in which the two victims of the present case had participated. Those murders, as I have already, mentioned, were committed about fifteen years earlier than the present ones and had not gone unpunished because three persons lost their lives on the gallows and twelve others were sentenced to transportation for life. The mere fact that a person considers the sentence imposed by a Court of law insufficient for the offence proved cannot be used as al mitigating circumstance in favour of the person who takes the law in his own hand and tries to correct what he considers an error which he believes the persons who had to administer the law had committed. It was also urged that the exchange of taunting remarks in the graveyard was to some extent responsible for the present assault on the two victims. That incident took place about six months before the doable murder and if a person keeps on nursing grievance for a small matter for such a long time and thereafter takes human lives, Courts cannot be justified in treating him leniently. For all these reasons, I am of the view that a sentence of death, which is the only appropriate sentence in the circumstances of the ease, should be passed against the persons who have been held to have been guilty of the double murder. Consequently, I would accept the revision petition for enhancement of sentence presented by the State and enhance the sentence of Muzaffar and Sardar Khan to death and would impose the sentence of death on Ali and Muhammad Khan, the State appeal against whom has been accepted. Each of these four shall be hanged by the neck till he be dead.

20. I will now take up the petition for revision presented by Hakam Khan (P. W. 16) against the acquittal of four of the six acquitted accused. As there is no appeal by the Provincial' Government but only a revision by a private person, the acquittal cannot be set aside but a retrial can be ordered. The power of the High Court to order a retrial in a case in which an accused person has been acquitted is unlimited, because it is not circum scribed by any provision of the relevant law. It is, however, obvious that when a person has been acquitted after the entire evidence against him has been considered by a. Court of competent juris diction and after that this Court orders a retrial, the finding of this Court amounts almost to one of conviction of the accused. For these reasons, I am reluctant to order a retrial a case in which the entire evidence has been considered by the subordinate Court which passed an order of acquittal. If the acquittal has been ordered on a technical ground, setting it aside does not amount virtually to a direction to convict which, in my view, an order of retrial in a case in which the entire evidence has been considered by the trial Court does. The acquittal of the accused against whom the criminal revision of Hakam is directed was as far as I can see, not justified, but for the reasons given above I am not inclined to order a retrial. It may be that the fact that four persons have been sentenced to death for two murders is also weighing with me in considering the case of the four of the six acquitted accused, but I have come to the conclusion that a retrial should not be ordered in this case. The criminal revision presented by Hakam Khan, therefore, stands dismissed.

21. The result, therefore, is that while Criminal appeal No. 461 of 1959 is dismissed and Criminal Appeal No. 915 of 1959 is accepted, Criminal Revision No. 1092 of 1959 is accepted and Criminal Revision No. 1147 of 1959 is dismissed, and as a consequence Muzaffar, Sardar Khan, Ali and Muhammad Khan are sentenced to death for offence of double murder proved against them. A. R. KHAN J. ‑I agree. K. B. A. Order accordingly.