1997 P Cr (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This appeal is directed against the order, dated 17-11-1994, passed by Special Judge for Suppression of Terrorist Activities Court, Quetta, whereby each of the appellant has been convicted and sentenced to death and under section 302 read with section 120-B/34, P.P.C. and under section 324, P.P.C. to seven years' R.I. with fine of Rs.50,000 each, which is to be paid to legal heirs of Sallal Akbar Bugti. In default in payment of fine, they were to undergo another term of one year's S.I. each. Facts of the prosecution case, as stated, are that on 2-6-1992, P.W. Khurshid Alam, A.S.-I., Police lodged report vide Fard-e-Biyan (Exh. P.B.) at Police Station Civil Lines, in respect of incident of firing at Jinnah Road at 7-20 p.m. between Manan Chowk and Farah Hotel, by persons wearing civilian clothes as well as uniform of Levies Force, who were on the board of a black coloured Datsun, which resulted in the death of Sallal Akbar Bugti, who was found lying dead on driver's seat of Car No.DB-7, whereas his one Bodyguard P.W. Payara Bugti, sitting behind the said seat was injured. Besides a passerby Major Tariq Tikka also received injuries. Appellants were arrested by P.W. Syed Sheharyab Ali, S.H.O., City Police Station, from the office of Mir Muhammad Nawaz Marri (the then Advocate, now Honourable Judge of Balochistan High Court) situated on first floor of Haji Fateh Khan Market, Jinnah Road, Quetta. Following arms and ammunition were recovered from their possession:-- Name of accused/appellant Arms and ammunition 1 Khair Jan (i) One Rifle Bore 223 No.310658, Article 143. (ii) 3 Magazines, Articles 145 to 147. (iii) 86 Cartridges, Articles 148 to 233. (iv) One leather bag Article

224. Produced by P.W: Amanullah and Syed Sheharyab Ali asExh.P.14/A. 2 Khawand Bux (i) One China Rifle 7.62 bore No.1509827 Article 236. (ii) 199 Cartridges, Articles Exhs.P.238 to 436. (iii) One leather bag Article Exh.P.437. Produced by above witnesses as Exh.P.14/B. 3 Sabz Ali (i) One China Rifle 7.62 bore No.10031446, Article Exh.P.439. (ii) 104 Cartridges, Article Exh.P.441 to 544. (iii) One Hamayal (Bandolier), Article Exh.P.545. Produced by same witnesses as Exh.P.14/C Nothing was recovered from possession of appellant Bangul Khan. P.W. Resham Khan, I.P./S.H.O., Civil Lines Police Station, inspected place of occurrence and took into possession incriminating 42 empty cartridges, one lead of bullet, vide investory Exh.P.9/B. Besides a lead of klashnikov bullet and three other empties being incriminating articles vide Exhs. P.9/N and 12-A and a lead of bullet lying on footmat in front of driving seat of the car vide Exh.P.9/O, were also taken into possession. On search of Car No.DB-7, following arms/ammunition, besides other articles stained with blood, were taken into possession:-- (i)???????? One Rifle No.G-3-AZ-POF-191/G-96792 with one slang; (ii)??????? Six loaded Magazines, out of which four had 15 rounds each, one 16 rounds and one had 20 rounds; (iii)?????? 15 separate rounds were found in a militia bag; These articles were taken into possession vide Exh.P.9/D (iv)?????? One pistol T.T. No.MA 18521944 loaded with 8 rounds vide investory ?????????? Exh.P.9/E; and (v)??????? Two magazines of klashnikov out of which, one was empty and other was loaded vide recovery memo. Exh.P.9/F. On completion of investigation; appellants were sent up to answer the charge before Sessions Judge, Quetta, from where, case was transferred on the file of Additional Sessions Judge-III, Quetta, who charge-sheeted the appellants on 23-12-1993, under section 302/324/147/148/149/120-B/34, P.P.C. As accused-appellants, pleaded not guilty and claimed trial, therefore, prosecution led the evidence of P.Ws. Maqbool Ahmad, D.S.P. Circle, Mushtaq Ahmad, S.-I./Additional S.H.O., Civil Lines Police Station, Muhammad Tariq, S.-I., Police, Shabbir Ahmad Shah, Magistrate, Malik Muhammad Ismail, Advocate, Muhammad Shabbir, Head Constable, Dr. Muhammad Amin Mengal, Police Surgeon, Khurshid Alam, complainant/eye-witness, Sultan Ali, Qazi Ehsanul Haq, Bank servant, Ejaz Hussain, Government servant, Muhammad Tufail, A.S.-I. Police, Muhammad Tahir, Photographer, Amanullah, S.-I. Police, Piyara Bugti, Arsala Bugti, Musa Farman, eye-witnesses, Sardar Khalid Mehmood, an Engineer, Dr. Muhammad Saeed, Syed Abdullah Shah, Chemical Analyser, Mazhar Mehmood, Magistrate, Rasool Bakhsh, Inspector Police/S.H.O. Sariab, Rafiullah, S.-I. Police, Malik Resham Khan, I.P./S.H.O., Ghulam Farid, S.I. and Sheharyab Ali, D.S.P., then S.H.O. City Police Station. The appellants were examined under section 342, Cr.P.C. wherein they denied the accusation and pleaded innocence. They also made statements on oath, which are stereotype, therefore, for reference the statement of one of the appellants Khawand Bakhsh is reproduced hereinbelow:-- "My relative Haniza was murdered at Sui by Saleem Bugti who remained present at Sui for about few days in order to take Fatiha from the peoples. Thereafter we came to Quetta and visited the then Chief Minister Mir Taj Muhammad Jamali and the then Governor Gul Muhammad Khan Jogezai in connection to the murder case of late Amir Hamza Bugti. Absconding accused Azizullah on phone took appointment from Mir Muhammad Nawaz Marri, Advocate in order to consult him about the murder case of late Amir Hamza Bugti. In consequent upon the said appointment we reached to the office of Mr. Muhammad Nawaz Marri before Maghrib prayer for consultation and handed over him some papers including an application addressed to the Chief Justice, High Court of Balochistan by the late Amir Hamza Bugti, wherein it was mentioned that whenever he is murdered, Nawab Akbar Khan Bugti and his son Saleem Bugti will be responsible for his murder. Meanwhile there was a call of Maghrib prayer and I asked one of the colleagues of Mir Muhammad Nawaz Matri for providing me Jae-e-Namaz and then I stood for offering my Maghrib prayer and as soon as I stood for prayer we heard gunshots outside the office on Jinnah Road, Quetta. After the said firing Mir Muhammad Nawaz Marri, Advocate directed us to leave his office but we refused that there is firing outside the office. Then he himself left his office, we remained present in his office for about 15 minutes and bolted his office from inside. After 15 minutes Mr. Muhammad Nawaz Marri knocked the door of his office from outside and asked me in Balochi for opening the door, So I opened the door. Mir Muhammad Nawaz Marri alongwith police entered into his office and police arrested me and the other accused persons present in the Court. We are not the murderers of Sallal Akbar Bugti and the murderers of Sallal Akbar Bugti were someone else from whom the revenge has already been taken by the heirs of late Sallal Akbar Bugti, as in this regard Saleem Akbar Bugti stated in the interview given to B.B.C. and the News of same was published in Daily Mashriq, Quetta, dated 3-3-1994. I produce the same News Item as Exh. D.I/A (subject to objection of A.D.A.). The Rifle recovered from me was legally possessed by me under Rahdari of the same as Exh. D.I/B. I am innocent and falsely implicated in this case." No defence was produced by appellants During pendency of trial, case was transferred on the file of Special Judge for Suppression of Terrorist Activities, by this Court on 12-10-1994. Learned Special Judge vide impugned judgment convicted/sentenced the appellants, as detailed hereinabove. As such, instant appeal has been filed. Sardar Zaheer Ahmad Khan, Advocate appeared on behalf of appellants, whereas Chaudhry Ejaz Yousaf, Additional Advocate-General, pleaded the case of the State and Mr. Amanullah Kanrani appeared on behalf of the heirs of deceased. It has been contended on behalf of appellants that:-- (A) ????? P.W. Khurshid Alam (complainant) failed to furnish trustworthy evidence, because as per the contents of F.I.R. and his testimony before the Court, he had not stated that occurrence was witnessed by him nor he had seen the culprits firing upon the deceased as well as P.W. Payara ' Bugti (injured). (B)?????? The F.I.R. was registered' after conducting investigation, therefore, it has lost its evidentiary value; (C)?????? P.W. Khurshid Alain identified the culprits after a considerable delay for which, no explanation has been offered by the prosecution; (D)?????? The prosecution case is full of improbabilities, because neither the names of accused nor of eye-witnesses were mentioned in the F.I.R. Inasmuch as site plan does not indicate the place of witnesses, where they were standing at the time of incident; (E)?????? The recoveries of empty cartridges from place of incident had not been shown correctly in the site plan; (F)?????? Even if it is believed that empties were recovered but in view of the circumstances of the case; it was not possible to collect them from the points, shown in the site plan; (G)?????? The recovered incriminating articles were sent for the report of Chemical Analyser and Forensic Science Laboratory, after considerable delay, for which no explanation has been offered; (H)?????? The alleged incident took place in Bazar, but no civilian witness was ????? associated to prove the case without any doubt; (J)??????? the statement of witnesses under section 161, Cr.P.C. were recorded after delay but without any explanation as time and again instructed by Superior Courts; (K)?????? The confessional statement of appellant Bangul Khan also suffers from inordinate delay, for which prosecution owes an explanation, but in absence thereof, such statement is not admissible; (L)?????? Prosecution witness P.W. Ejaz Hussain has proved the presence of appellant Bangul Khan in the office of Mir Muhammad Nawaz Marri, the then Advocate, at the time of firing, therefore, his evidence belies P.Ws. Khurshid Alain, Payara Bugti, Arsala Bugti and Musa Farman. (M)????? Prosecution could not prove common intention and conspiracy of the ??? accused to commit the murder, therefore, they are entitled for acquittal. Chaudhry Ejaz Yousaf, learned Additional Advocate-General, urged that P.W. Khurshid Alam, being an independent and non-interested witness, had fully supported the prosecution case. His testimony gets corroboration from the ocular statements of P. Ws. Payara Bugti, Arsala Bugti and Musa Farman. In addition to it, the report of Chemical Analyser as well as positive opinion expressed by Fire-arms Expert, establish that the bullets were fired from China Rifles recovered from possession of all the appellants, except Bangul Khan. Similarly medical evidence has also supported the ocular testimony of eye?witnesses. Law had not specified time for conducting identification test parade, therefore, if at all delay in this behalf has been noticed, that would not be fatal for prosecution case. He stated that on account of previous enmity between appellants and Nawab Muhammad Akbar Bugti, in respect of murder of deceased Mir Hamza Bugti, all the appellants hatched a conspiracy and to accomplish the object, they alongwith absconding accused, came to Quetta and succeeded in committing cold-blooded murder of deceased Sallal Akbar Bugti, during broad daylight. In this behalf confessional statement of appellant Bangul Khan fully supports prosecution version. The trial Court having regard to facts and circumstances of case had rightly convicted .the appellants. He prayed for dismissal of appeal. Mr. Amanullah Kanrani, Advocate, supported the contentions of learned Additional Advocate-General, and also added that presence of eye?witnesses had not been challenged by defence, at the place of occurrence. The medical evidence supports the prosecution version, as far as it relates to the manner, in which, offence was committed by them. He also stated that accused came from Sui in a black coloured Datsun and stayed in the house of Amir Hamza Bugti, as this vehicle has been recovered from there vide Exh.P.2/C. Per se delay in recording confession is not fatal for the prosecution case. Appellants have failed to establish the defence plea, therefore, trial Court rightly found them guilty for the commission of offence. We have heard the parties' counsel and have also gone through record of the case, carefully. Prosecution case hinges upon ocular testimony of P.W. Khurshid Alam, Payara Bugti, Arsala Bugti and Musa Farman, besides the medical evidence, circumstantial evidence, confessional statement of appellant Bangul Khan, as well as motive. P.W. Khurshid Alam, A.S.-I. Police, is the most important witness. According to his version, on the day of incident he was present on duty at Farah Chowk, Jinnah Road, Quetta, alongwith B.R.P. Personnel, when a Datsun, black in colour, came from the side of Manan Chowk towards Farah Chowk, from where it took turn and went back in the same direction. (As per the site plan Exh.P.24/B Jinnah Road has been shown as dual track). In the pick-up, there were eight armed persons, out of them some were wearing Levies Uniform. After a while he heard voice of firing and rushed towards that place. He followed the culprits but they ran. away. Then he returned back towards the motor car bearing Registration No.DB-7, where he found the guard of deceased Sallal Akbar Bugti firing and he himself was lying dead on his seat inside the car. He also saw P.W. Payara Bugti lying injured in the same vehicle. On this, he called the Police Nafri and informed the high officials about the situation. He further explained that in the Datsun, except driver, others were holding China Rifles and klashnikovs with them, and a man with white beard was sitting, besides the driver who was a young man with small beard. He also stated that he can identify those persons, if they are brought before him. He recognized the appellants present in Court. The contents of Fard-e-Biyan, Exh.P.8/A (F.I.R.) corresponds to his deposition in the Court therefore, consistency in narrating facts, in view of 1968 SCMR 1025, is established. A careful perusal of his statement persue us to believe that incident took place at about 7-20 p.m. Therefore, it was quite possible, for him to identify the black coloured vehicle and the persons sitting therein, being Bugtis with description i.e. some of them were wearing civilian Balochi dress whereas remaining were in Levies Uniform. P.W. Khurshid Alam admittedly had no connection of whatsoever nature with anyone out of both the parties, as in this behalf, nothing is alleged against him. Since he stated that accused after making fire ran away from the place of incident and he could not apprehend them, therefore, he got another fair chance to see them, for the purpose of identification. Another inference can also be drawn from his this version that out of the persons, in the Datsun, some fired upon the deceased on getting alighted from it, whereas remaining made firing from its board. Being stranger, he had rightly described two eye-witnesses in F.I.R. by giving details with reference to their positions at the relevant time i.e. P.W. Payara Bugti, who being injured remained in hospital from 2-6-1992 to 15-6-1992, as per Medical Certificate Exh.P.19/B and P.W. Arsala Bugti, bodyguard of deceased who was also seen by him firing, is sufficient to repel the objection of appellants' counsel, that F.I.R. does not contain the names of eye-witnesses. Though it is not the requirement of law, but to ensure that on a subsequent stage false witnesses are not planted to wrongly involve an innocent person in a case, in the interest of justice, it is insisted that names of eye-witnesses must be mentioned in F.I.R. particularly when it has been lodged with unexplained delay, which is not the case here. Similarly objection of registration of F.I.R. after investigation by P.W. Malik Resham has no force, because it being an irregularity puts the Court on guard to scrutinize the prosecution case more consciously, as it has been held in 1988 MLD 484 and 1989 PCr.LJ

809. P.W. Khurshid Alain, A.S.-I. on 16th June, 1992, also identified appellants Khair Jan, Khawand Bakhsh and Sabz Ali, under the supervision of. P.W. Shabir Ahmad Shah, Magistrate First Class, during course whereof, in Exh.P.4/A, (identification test. parade form), he got recorded without the objection of appellants that Sabz Ali and Khawand Bakhsh alias Lala, were seen by him, duly armed running away, 'after the murder of Sallal Akbar Bugti, from the place of incident. This part of Exh.P.4/A, has not been questioned during statements of P.Ws. Shabir Ahmad Shah or Khurshid Alam itself. This fact is consistent with complainant's statement recorded in Court and incorporated in Fard-e-Biyan Exh.P.8/A. On scrutiny of the statement of P.W. Khurshid Alam read with the contents of Fard-e-Biyan, as well as Identification Test Parade Form Exh.P.4/A, one can draw inference that all the culprits who were on the board of black Datsun adopted such device of firing on deceased and injured, that few persons got down from the vehicle, whereas few remained on it and they all resorted to indiscriminate firing on Car No.DB-7. This fact gets support from the contents of Exh.P.2/B i.e. Fard of inspection of car, as well as photographs produced by P.W. Muhammad Tahir, though admissibility of his evidence has been doubted but for safe administration of justice, if both the documents, referred to hereinbefore, are considered together, there will be no reason to draw a contrary inference. In this connection reference to site plan Exh.P.24/B, would also be relevant, because it indicates the location of the empty cartridges, found lying in different directions as well as the points from where, car was fired upon. As far as objection regarding delay of 14 days in conducting identification parade in view of authorities reported in 1976 PCr.LJ 74, PLD 1981 SC 142 and 1987 MLD 1003 and its reply by State Counsel that delay stands explained, is concerned, it can be viewed under Article 22 of the Qanun?-e-Shahadat, which provides that to explain or introduce a fact in issue or relevant fact which supports or rebuts an inference suggested by a fact in issue or relevant fact which establishes the identity of anything or person whose identity is relevant, the test of identification parade is carried out. As we have seen that the substantive law, no time has been prescribed, however, unexplained delay in holding identification test parade is always discouraged so the ability of a witness to identify an accused may not vanish, as it has been held in AIR 1942 All.

339. But in another judgment of Indian Jurisdiction, reported in AIR 1948 All. 241, it was observed that lapse of some months between commission of crime and identification of accused is not in itself a ground for disbelieving a witness. In the judgment, relied upon by appellants' counsel PLD 1981 SC 142 crime was committed on 9-8-1973, whereas identification lest parade was held on 28-12-1973. In the other case, 1987 MLD 1003, it was held that such delay could be fatal for prosecution case. In PLD 1983 Lah. 649, delay of four months was considered fatal for the prosecution in view of circumstances discussed therein. In this context judgment of Honourable Supreme Court, cited by State Counsel reported in 1985 SCMR 1834, provides valuable guidance. Relevant para. therefrom is reproduced hereinbelow:-- "As to the second test of corroboration in this case, the strongest item is the eye-witnesses account coupled with the identification parade. It needs to be clarified that it was not such a case that without approver's testimony the prosecution had no legs to stand upon. The eye-witnesses are highly responsible (two of them are educated men dealing With accounts of the Mills) and the third a watchman. A lot importance is to be given to them. They being independent, is beyond doubt and their presence at the spot is beyond challenge and so is of Siraj Din P.W. The only question is of opportunity to identify at the parade after a year. There is no hard and fast rule that delayed parade due to late arrest/discovery of the culprit is always to be rejected. It depends upon a host of circumstances including the type, witnesses and other factors. In this case they had seen the killing. The killers', features were fixed in their memory due to many reasons some of them have been recorded in the high Court judgment with which we agree on this point. Regarding the formalities at the identifying parade suffice it to observe that all necessary precautions were taken. So much so that the suspects did not raise any objection before the Magistrate prior to the parade. They thought that they had, in the arrangement made for the parade by the Magistrate, a chance of not being identified. It was only after the parade that protests were made. Similarly there is no hard and fast rule that even where sufficient number of under-trials in the jail is not available, the parade cannot be conducted or that it should not be conducted at all or that if conducted it would be valueless. This also depends upon all the relevant features involved in the case. The delay per se, particularly where the accused are apprehended after a long time, would not prejudice the capability, if otherwise enough, of the eye-witnesses to identify the culprits. It is not uncommon that even fleeting glimpse of a person, specially placed in a position of immense importance, would be revived in memory after a long time, provided the bond of event and embedding in memory were of permanent character. In this case they were so. The point regarding failure of eye?witnesses to utter same words at the time of pointing out a culprit at a parade, though of some importance is not of any inviolable right or rule. That also depends upon the facts of each parade and the type of witnesses. In this case they were, as already indicated, highly responsible persons. They already stood committed in their statement recorded in the lawful proceedings that they were there in the parade so as to identify the culprits of this case. The description of the culprits in the previous statements of the witnesses in this case is the one, which might be expected in a normal daylight dacoity. The discrepancies pointed out at the bar do not furnish enough reason for rejecting the identification. The parade in a case like the present one is only a test regarding a corroboratory factor. Otherwise the substantive evidence is the statement of the eye-witnesses and the identification done during the deposition at the trial. This evidence in the present case is enough for conviction independent of the availability of other equally valuable evidence. Moreover, in absence of substantive provisions of law, concerning the period in conducting identification parade, and also for the reason that even delay has been explained because as per Exh.P.4/B, S.H.O./Investigating Officer. P.W. Malik Resham made request to concerned Court for holding identification parade on 8-6-1992, which was allowed on 10-6-1992, but on account, of holidays for Eid?-ul-Azha, Courts were closed, as such, needful was done by P.W. Shabbir Shah on 16-6-1992, it is held that no inordinate delay has been caused. Though under Article 22 of the Qanun-e-Shahadat, 1984, no substantive period is prescribed, but from time to time, instructions have been issued by the Administrative Authorities or superior Courts, for guidance of Investigating Agencies as well as the Courts. On the basis whereof, it is the consensus of the authorities that in absence of unavoidable circumstances, as discussed in 1985 SCMR 1834, identification parade must be held as early as could be possible after the arrest of accused, but not latter than 15 days as held in 1989 PCr.LJ ,2227. The objection of appellants' counsel to declare identification report fictitious with reference to cross-examination of P.W. Khurshid Alain, that except four accused (appellants), no other person was present at the time of identification test parade, diminishes on careful perusal of his whole statement with Exh. P.1 l/A (Identification Test Parade Form), as such, is repelled. It is cardinal principle of Criminal Administration of Justice, that independent corroboration if available to the evidence furnished by a witness on whose statement, the foundation of the prosecution case is laid, provides extraordinary re-enforcement to the prosecution case and also furnishes assistance to Court for coming to a just and fair decision. As such; to further test the truthfulness of the statement of P.W. Khurshid Alam; reference to incriminating official Fire-arms Articles 143, 236 and 439, recovered from Khair Jan, Khawand Bakhsh and Sabz Ali, respectively, vide recovery memos. Exhs.P.14/A and 13-C, after their arrest, on the date of occurrence, alongwith empty cartridges taken into possession by P.W; Malik Resham, from the scene of incident can be made to determine; whether empty cartridges match with the fire-arm, in the light of F.S.L. Report Exh.P.26/A,, tendered by P.W. Sheharyab Ali. It may be noted that appellants Khawand Bakhsh and Khair Jan are employees of Levies Force and they had Service Rifles/ammunition in their possession, for which, they had produced "Rahdaris" before trial Court. Similarly appellant Sabz Ali, has also admitted in his statement under section 342, Cr.P.C. that he was also in possession of official rifle. On the date of incident, S.H.0./Investigating Officer, Malik Resham vide Exh.P.9/B, recovered 42 empty cartridges and a lead of bullet from point 7 shown in site plan Exh.P.24/A. Three other empty cartridges vide Exh.P.12/A, produced by P.W. Muhammad Tufail were found lying at points 5 and

6. These articles were duly sealed in parcels at the relevant time, which were sent for the report of Fire-arm Expert, alongwith the arms and ammunition recovered from appellants as well as from inside the Car No.DB-7. All the three rifles were marked by Expert for examination purpose as "A", "B" and "C", whereas 42 crime empties were marked as C/1 to C/42, one metallic core of bullet was marked as "M", three empties separately recovered from points 5 and 6 were marked as C-43 to C-45 and crime bullet, found lying by Investigating Officer in-between 42 crime empties, was marked as "B". Similarly other recovered articles were allotted different marks. According to his opinion out of these articles, empty cartridges C/1 to C/42 and crime bullet (lead) Mark "B", were fired from Rifle No.1509827. which was recovered vide Exh.P.14/B from possession of appellant Khawand Bakhsh and empty cartridges C/8 and C/20 were found to be fired from Rifle No.10031446, recovered from possession of appellant Sabz Ali, vide recovery memo. Exh.P.14/C. He also expressed that one rifle bore 223 mark "A" recovered from possession of appellant Khair Jan, revealed that it has also been fired. But in our opinion matching of empty cartridges with the rifle recovered from possession of appellant Khair Jan would not mean that he had not fired upon the deceased. This aspect of the case can be examined with reference to the statement of P.W. Khurshid Alam incorporated in identification parade report Exh.P.4/A, wherein he stated that after firing he saw two accused Khawand Bakhsh and Sabz Ali, running away. Therefore, inference would be that Khair Jan accused made firing upon the deceased from Datsun, due to which the empty cartridges of his rifle might have dropped in the body of vehicle. It means that remaining empty cartridges Mark C/A to C/7, C/9 to C/19, C/21 to C/41, C/43, C/44 and C/45 were not fired from these rifles, therefore, Fire-arm Expert did not express his definite opinion for want of sufficient identification data, as far as these empties were concerned. Since for want of data, Ballistic Expert could not express his opinion in respect of empty cartridges therefore, possibility is that might these cartridges were fired by absconding accused. The evidence of -P.W. Khurshid Alain also gets strong corroboration from Chemical Analyser's Report Exh.P.20/A, produced by Syed Abdullah, Chemical Expert who opined that articles sent to him were stained with blood of human being. Learned counsel for appellants, objected on the admissibility of the report of Chemical Analyser, as well as of Fire-Arm Expert, on the grounds of delay in despatching incriminating articles to both the Agencies and also for the reason that due to delay the blood might have disintegrated from blood-stained articles. Reliance was placed on PLD 1994 SC 592 and 1979 PCr.LJ Note 144 at p.92. Learned Additional Advocate-General, opposed the objection and stated that judgments relied upon by appellants' counsel are distinguishable, because in the case in hand, no mala fide has been attributed to the prosecution to allege that after recovery of incriminating articles they were changed before despatching to concerned quarter. He also stated that in this context, it was obligatory upon the defence to have obtained explanation of S.H.0./Investigating Officer Malik Resham Khan, who did appear in witness- box, but no such question was put to him. Therefore, in view of the principle enunciated by Honourable Supreme Court in the case of Zulfikar Ali Bhutto v. The State PLD 1979 SC 53 and Muhammad Iqbal v. Muhammad Tahir and others PLD 1985 SC 361, the objection has no substance. The appellants' counsel categorically admitted that no explanation was asked from P.W. Malik Resham, S.H.O./Investigating Officer during his statement concerning delay in despatching both the incriminating articles to concerned quarter. Thus, the principle of law enunciated by Honourable Supreme Court in the case of Muhammad Iqbal, is applicable in entirety on the facts of instant case. Relevant observations therefrom are reproduced hereinunder, for guidance:-- . "We are, however, of the view, that in the circumstances of this case, even the mere recovery of the blood-stained knife was sufficient to corroborate the testimony of the eye-witnesses against him, in view of the fact that it was found concealed under a pile of rubbish in one of the room of Tahir respondent's house and he (Tahir) had exclusive knowledge as to where it was lying. Moreover, the result of the delay in examination of the knife recovered at the instance of Tahir, respondent, by Chemical Examiner, because of its having reached him late, could only be that the blood on it may be found to have been disintegrated due to passage of time (though it is not in this case). But this too, by itself is not sufficient to reject it as corroboratory evidence. This view is supported by the case-law enunciated by this Court in the State v. Fateh Sher and others, where the blood-stained weapons of offence, namely a Kassi, a Dang and 3 hatchets were recovered from the accused but blood on some of them had disintegrated this Court held that the fact that these implements which do not ordinarily bear stains of blood were found concealed by the accused unmistakably connected the said weapon with the crime in question which were, therefore, used as reliable evidence in the case to corroborate the testimony of the eye?witnesses. Similarly in Haji Ahmad v. The State where blood-stained Sotas had been recovered from the accused but had not been relied upon by the High Court as a corroboratory evidence because origin of the blood on them could not be ascertained. This Court observed that:

The trial Court was completely wrong in taking the view that because the origin of the blood on these Sotas could not be ascertained the recovery was useless...' It was held further by this Court that- The actual recovery has not been doubted by the trial Court. In the circumstances, we do not see why it should not be accepted that the Sotas recovered at the instance of appellants Ahmad Khan and Hayat Khan were in fact, blood-stained as certified by the Chemical Examine and that this corroborated the evidence of the eye-witnesses that the deceased and Ghulam Rasul were hit by the Sotas

This view was based on an observation made by this Court in an earlier case i.e. Ghulam Rasul v. Ali Akbar and others ? where it did not accept the proposition- that if the origin of the blood on the weapon of offence could not be ascertained due to disintegration by the time the weapon reaches the Chemical Examiner, the recovery of the blood?stained weapon is of no use. It may also be pointed out that no suggestion was made in the present case that the knife in question has been tampered with at any stage, either when it was in the custody of the police or that of the Chemical Examiner. Nor was the Investigating Officer or any other relevant witness cross-examined as to the reason for the delay in its reaching the office of the Chemical Examiner. Therefore, in view of the observations of this Court in Sikandar and 2 others v. The State, the recovery could have been used as corroborating the ocular testimony. Relevant portion of the judgment may be reproduced below:-- ' As in the case of Noor Alam, the evidence in the present case is the articles found stained with blood were secured under a proper Mashirnama and properly sealed and there was not even a suggestion of any tampering. The Investigation Officer was also not cross-.examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence.' As a result we are of the opinion that the recovery of this knife (P.X.) at the instance of Muhammad Tahir appellant constitutes sufficient corroboration of the testimony of the eye-witnesses qua him. He, too, must, therefore, be held guilty under section 302/34, P.P.C." (Sidelining is ours) As far as the judgment relied upon by the appellants' counsel is concerned, with utmost respect, it does not help him, because in that case, S.H.O., who despatched incriminating articles to concerned quarter did not appear before Court, therefore, the accused had no occasion to ask such explanation from him. Thus, the objection is overruled and it is concluded that Fire-arm and Chemical Experts' Reports have produced strong corroboration to the statement of P.W. Khurshid Alain, as far as appellants Khawand Bakhsh, Sabz Ali and Khair Jan, are concerned. There is yet another important corroborative evidence furnished by Dr. Muhammad Amin Mengal, who produced post-mortem report Exh.P.7/A. As per his evidence, the Kamiz of deceased was stained with fresh blood and it has two circular holes, one on the right side (chest part) and one on the midright (clevicular part) and these holes were also present on the back of Kamiz. The doctor noticed following injuries on the person of deceased:-- "The following injuries were found on the person of the deceased (i) one ovo-circular wound directing from left to right on the right cheek prominance, two centimetre from right eye can thus (entrance). The edges were inverted 1-1/2" in diametre. (ii) Its wound of exit was on the same side of skull posteriorly while brusting the whole perioto-?occipital part, with brain matter out alongwith fragments of skull bone, measuring 10 centimetre in length edges everted and irregular, confirmed by probing. (iii) One gutter wound 5 centimetre muscle deep on mid right clevicular region directing enteriorly. (iv) One ovo?circular wound 1 centimetre x 1-1/2 centimetre in the forth intercostal space just above the right nipple with inverted edges (entrance wound). (v) Its exit was below the inferior angle of right scapular 5 centimetre in diameter with averted and torned edges, adjacent to the dorsal spine on same sides. Confirmed by probing. (vi) One gutter wound 1-1/2 centimetre x 1/2 centimetre skin deep on the base of right thumb dorsum. (vii) One incised wound 2 centimetre x 1 /2 centimetre lateral to the wound No. 1. " All the above injuries were caused with fire-arms. A careful perusal of above injuries suggest to believe that culprits resorted to indiscriminate firing from all the directions. This conclusion is also supported by the site plan Exh.P.24//A, produced by P.W. Malik Resham Khan. Its careful reading fully supports to the medical evidence as well as statement of P.W. Khurshid Alam, including the evidence of other witnesses, particularly P.W. Payara Bugti and Arsala Bugti. It is contended on behalf of appellants that post-mortem report itself is doubtful as P.W. Dr. Muhammad Amin Mengal, instead of conducting autopsy in Mortuary of Civil Hospital, carried out that same in the house of deceased (Bugti House), without permission of District Magistrate, in view of the rule announced by Honourable Supreme Court in PLD 1982 SC

429. It may be seen that ordinarily post-mortem is required to be conducted in mortuary but if a doctor decides for any cogent reason to conduct it at a place other than hospital, he should obtain permission in this behalf from concerned District Magistrate, as it has been laid down in the judgment cited by appellants' counsel. In the instant case, as Assistant Commissioner/S.D.M. according to the evidence of Dr. Muhammad Amin Mengal, was present, therefore, impliedly it would be deemed that necessary permission from concerned authority was obtained. Thus, for such discrepancy medical evidence cannot be discarded. It was also objected by appellants' counsel that in the site plan, P.W. Malik Resham had not indicated the position of P.W. Khurshid Alam, A.S.-I., therefore, in absence of same, it is not worthy of credence. The State Counsel to meet the objection referred to 1983 PCr.LJ 2394(2)' In criminal cases, no hard and fast rule has been laid down, either under Cr.P.C. or Police Rules, placing obligation on an Investigating Officer to record the position of witnesses in site plan, because it is always treated as supported document to understand the location of incident, therefore, it is held that objection has no merit. The black coloured Datsun was subsequently recovered vide memo. Exh.P.2/C, from the Bungalow of late Amir Hamza Bugti, situated in Railway Housing Society, Quetta, but it has not been exhibited before the Court. Inspection of Datsun by police, on which appellants came at the spot revealed that its engine was hot at the time of recovery. Therefore, it is another piece of corroborative evidence to test the correctness of Khurshid Alam's statement. Although prosecution also produced ocular testimony of other three eye-witnesses, but even if solitary statement of P.W. Khurshid Alam, which get independent corroboration from the evidence, discussed hereinabove, is accepted, it constitutes sufficient evidence to determine guilt against appellants, Khawand Bakhsh, Sabz Ali and Khair Jan, because under criminal administration of justice, it is not the plurality of the witnesses, but the quality of the evidence, which is to be considered. There are cases in which, on the statement of solitary witness, Courts have confirmed conviction/sentence. Reliance is placed on Allah Bakhsh v. Shammi PLD 1980 SC

225. Relevant observations therefrom reads as under:-- "The general principle, on the other hand, is that even in a murder case conviction can be based on testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the' quality of evidence, and not on its quantity." Chaudhry Ejaz Yousaf, learned Additional Advocate-General, in this context also referred to 1994 SCMR 37, 1994 SCMR 324 and PLD 1983 SC

27. In the last-mentioned case of Muhammad Yakub alias Nikka v. The State,? it was held that when there is no enmity of eye-witness, conviction can be based on their statements. In the case in hand, appellants in their statements under section 340(2), Cr.P.C. during cross-examination, admitted that eye-witnesses have no enmity with them. Mr. Amanullah Kanrani, Advocate to support the State Counsel, also made reference to 1981 SCMR 242, 1995 SCMR 1160 and 1187. Now we will examine the evidence of P.W. Payara Bugti and Arsala Bugti, who according to P.W.1, were present with deceased Sallal Akbar Bugti, at the time of murder. P.W. Payara Bugti, sustained injuries on his person, due to which, he remained admitted in Civil Hospital, Quetta with effect from 2nd June to 15th June, 1992, as per evidence of P.W. Dr. Ahmad Saeed, who produced his medical certificate as Exh.P.19/B. thus, due to this reason his presence at the scene of incident has not been denied by the defence. The witness in his testimony stated that on the day of incident he himself, P.W. Musa and Arsala were going alongwith Sallal Akbar Bugti and they all were sitting on the back seat of car. When they reached at Jinnah Road, a black coloured double door pick-up overtook the vehicle of deceased, in which 10/12 persons were sitting. Out of them, some were in civil Balochi dress and some were in Levies Uniform. The said black vehicle crossed them at Manan Chowk and when they reached near Farah Hotel at Jinnah Road, firing was done upon them. Out of the said black vehicle, four persons namely Qurban, Abdul Nabi, Asad and Kohdil fired upon them from front side of their vehicle and from back side, Bangui, Khair Jan, Lala and Sabz Ali fired upon them. He identified the appellants being the person, who fired from back side. Similar type of evidence was given by P.W. Payara Bugti as well as Musa Farman son of Farman Masih. At this juncture, it may be noted that P.W. Khurshid Alam had not shown presence of the third person i.e. Musa Farman with the deceased at the time of incident. Anyway for the safe administration of justice, it would be proper to take into consideration for the time being, the statements of P. Ws. Payara Bugti and Arsala Bugti. In their depositions, they had named all the four appellants being accused of firing. Whereas P.W. Khurshid Alam, A.S.-I., who is a police official and otherwise and independent witness, had not identified to appellant Bangui Khan, as per identification test parade report Exh.P.4/A, contents whereof, reveal that accused Bangui Khan was not put to identification parade, for the reasons known to prosecution. Therefore, in such view of the matter, their evidence can only be accepted, on following the principle enshrined in the maxim "Falsus in uno falsus in omni bus". It is a settled position of law that same set of evidence can be believed against a particular number of accused, if it Il get strong corroboration from other evidence and simultaneously, it can be disbelieved against another set of accused, who are also facing proceedings in same trial. This principle has been elaborated by Honourable Supreme Court in a number of cases. However, we would make reference to the case of Ghulam Sikandar and another v. Mamma Raz Khan and others PLD 1985 SC

11. Sardar Zaheer Ahmad, Advocate, contended that evidence furnished by both these witnesses is not worthy of acceptance, as it suffers from material contradiction, particularly with regard to assigning role to appellants of firing from the back side of vehicle of deceased. In our opinion the contradiction being pointed out, is not important, because if for sake of arguments during process of sifting grains out of chaff, this portion of alleged contradiction is kept out of consideration even then a careful reading of both the statements, keeping in view the statement of Khurshid Alam, no other conclusion can be drawn, but the one, that except appellant Bangui Khan, all others including absconders, were seen making fire on the deceased, in which, P.W. Payara Bugti also sustained injuries. Then how it is possible that injured will tell lie and allow the real culprits to go escot free and involve innocent persons, as it has been held in the judgments cited by Mr. Amanullah Kanrani, Advocate, referred to herinabove. Learned counsel also contended that both these witnesses are eye?witnesses, but their statements have been recorded after a considerable delay, for which, no explanation has been offered. Therefore, their deposition may not be considered as incriminating evidence. He made reference to 1993 SCMR

550. In this report Honourable Supreme Court has laid down that if statements of eye-witnesses have been recorded with delay, for which, no explanation is coming forward, in the interest of justice, such statements should not be accepted against the accused. But in our opinion, in this case, sufficient explanation in recording statements of P.W. Payara Bugti and P.W. Arsala Bugti, with delay, is available on record. Because P.W. Payara Bugti, was discharged from hospital on 15th June, 1992, whereas he got recorded his statement on 16th June, 1992, although during his admission, P.W. Resham Khan being S.H.O./Investigating Officer had been approaching the concerned authorities of Civil Hospital for recording his statement and in this behalf he had also submitted an application Exh.P.24/C. Likewise P.W. Arsala Bugti, was not present in Quetta, as he had gone to Dera Bugti, alongwith the dead body of deceased and his statement was recorded over there by P. W . Raflullah Shah under the supervisions of Abdul Majid, D.S.P., C.I.A. Thus, it is held that in the cases, where prosecution had placed explanatory material on record, to satisfy the conscience of the Court that delay in recording the statement of an eye-witness had occasioned on account of unavoidable circumstances, the evidence furnished by such witness may not be discarded. As such, the objection is overruled. The appellants' counsel also argued that prosecution witnesses Payara Bugti and Arsala Bugti, were the bodyguards of deceased, whereas admittedly P.W. Musa Farman, was his friend, therefore, their deposition being of interested witnesses, deserves to be disbelieved. Reliance was placed on 1968 SCMR 1361 and 1985 SCMR

453. The first case cited by the counsel, is distinguishable, as besides the eye-witnesses named hereinabove, there is independent evidence of P.W. Khurshid Alain, whose statement has been corroborated by circumstantial evidence, discussed hereinabove. As far as the second judgment is concerned, it is also distinguishable, because during cross-examination on the statement of eye-witnesses, no enmity has been alleged by defence against them. Contrary to it, appellants in their statements on oath, admitted that there is no enmity between the parties. In a recent case reported in 1994 SCMR 1, the Honourable Supreme Court surveyed a good number of judgments available on the subject and laid down the principle that an interested witness would be a person, who had personal interest to involve the accused in the case. Following the said principle we are satisfied to hold that all these three eye-witnesses have no personal reasons to involve the appellants in crime. Now we would advert to examine the case of appellant Bangul Khan, who admittedly has neither been identified by P.W. Khurshid Alam, during identification test parade, nor identified in the Court by deposing that he was the person, who was sitting besides the driver in black coloured Datsun, at the time of incident. Inasmuch as, the trial Court at the time of recording evidence of Khurshid Alain P.W. had not left a note; whether accused Bangul Khan is a bearded person. Admittedly no arms/ammunition, either incriminating or otherwise, was recovered from his possession at the time of his arrest alongwith other accused, on the day of incident. Thus, for this reason as well, the evidence of Ballistic Expert cannot be used against him. Now to wriggle out from this dilemma, reference to the statements of prosecution witnesses Malik Ismail, Advocate and Muhammad Ejaz, would not be out of contest. Both these persons were present in the office of Mir Muhammad Nawaz Marri, the then Advocate, when stated appellant Bangul Khan alongwith two other persons, for consulting him in the murder case of Amir Hamza Bugti went to his office. P.W. Malik Ismail, Advocate, in his statement before the Court, did not identify appellant and others, being the persons, who came to the office of Mir Muhammad Nawaz Marri, before firing on the day of incident. Whereas P.W. Muhammad Ejaz stated that on the day of incident, 4/5 minutes before Maghrib Azan, three persons entered into the office of Mir Muhammad Nawaz Marri. Out of them one was an old man and other was young man and third one was a gunman. Meanwhile Malik Ismail offered his prayer and as soon as they offered prayer, they heard voice of firing, outside the office at some distance. In cross-examination he stated that accused Bangul Khan present in Court, out of said three persons also offered Maghrib prayer, in the office. He further in reply to a question stated that "it is correct that the above persons entered into our office for consultation remained present in office before and after firing and we left the office". It may be observed that above statement of witness was recorded without any objection of whatsoever nature, on behalf of the State. Learned State Counsel contended that if prosecution witness has compromised his integrity by supporting the accused, prosecution case cannot be discredited, if it has other supporting or trustworthy evidence. In this behalf, he placed reliance on PLD 1963 Pesh. 124 and PLD 1969 SC

127. Learned counsel for appellant heavily relying on PLD 1961 Dacca 792, stressed that in view of conflicting and contradictory prosecution evidence, the accused in whose favour such statement has been given, is entitled to benefit of doubt. . Under section 161 read with section 265(c), Cr.P.C. Investigating Agency can examine the witnesses, who were to be produced subsequently in support of the accusation and copies of their statements are supplied to accused before 7 days from commencement of trial, enabling the accused to prepare his defence. If the witness does not support the prosecution during trial, then the State Counsel is authorized to cross-examine his own witness with the leave of Court under Article 140 of the Qanun-e-Shahadat. But if no such permission is sought and witness was not got declared hostile, the Court is bound to give credit of such statement to the person in whose favour it has been deposed and whatever benefit arises out of it, that goes in favour of accused, person. The judgments cited by learned State Counsel are distinguishable, therefore, kept out of consideration. Whereas in the case of Osimuddin Sarkar v. The State PLD 1961 Dacca 792, cited by appellants' counsel it was held as under:-- "25.????? Some of the prosecution witnesses have also supported the defence case. This, of course, the learned Special Judge has brushed aside holding that the witness was supporting the defence. This witness was not, however, declared hostile and in the circumstances, the appellant was entitled to at least a benefit of doubt, which was raised by such conflicting and contradictory evidence furnished by the prosecution witnesses. " Keeping in view the above principle, the only distinction would be that benefit of such evidence would not be extended to all the accused facing trial, but only to the accused in whose favour such evidence has been given, and for this reason alone the prosecution case against other accused persons shall not be disbelieved. Learned State Counsel as well as Mr. Amanullah Kanrani, Advocate, contended that there is confession of accused produced by Mazhar Mehmood, Magistrate, as Exh.P.21/B, in which, appellant. Bangui Khan had confessed the commission of crime in furtherance of common intention as well as regarding conspiracy hatched by him and others, prior to incident for committing the murder of Nawab Akbar Khan Bugti and his son Saleem Akbar Bugti. Therefore, all the appellants are jointly and severally responsible for the crime under section 301, P.P.C. They placed reliance on PLD 1995 SC 488 and 1996 SCMR

549. Appellants' counsel urged that confessional statement of appellant is inadmissible, because it was recorded with delay of five days, without any explanation. Reliance was placed on 1975 PCr.LJ 1077, PLD 1977 Pesh. 64 and PLD 1987 Quetta

87. He further pointed out that as a principle of law, if at all Court desires to believe the confessional statement, then it is to be considered in its entirety in view of PLD 1978 SC

200. Otherwise, inculpatory part of confession without seeking corroboration when it has been retracted, cannot be believed. He also argued that in respect of all the appellants, the element of common intention is lacking in prosecution evidence, as there is no evidence on record to prove that all of them shared a common intention with the actual murderers, therefore, they cannot be found guilty for the crime. In this context he made reference to PLD 1956 SC (Ind.) 59 and' 1991 SCMR

241. Mr. Amanullah Khan Kanrani, Advocate, contended that delay in recording confessional statement had not been considered fatal for the prosecution, by Honourable Supreme Court in a judgment reported in 1995 SCMR 1615. We are quite in agreement with Mr. Amanullah Kanrani, Advocate, on the point that unless it is not proved that confession of an accused is the result of coercion, threat, pressure, per se delay in recording it, is not sufficient to disbelieve the same, in view of the judgment cited by him, as well as an earlier view of Honourable Supreme Court, taken in the case of Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC

363. Therefore, testing the case in hand at the touchstone of the principles laid down by Honourable Supreme Court in the reported judgments and also having gone through the statement of P.W. Mazhar Mehmood, Magistrate, we are of the opinion that as far as the voluntariness of the confession of Bangui Khan is concerned, there is no doubt about it. Now we are confronted with a question; whether a retracted confession can be accepted to the extent of its inculpatory version, without seeking independent corroboration. In this behalf, Honourable Supreme Court, in Najib Raza Rehmani v. The State PLD 1978 SC 200, laid down as under:-- "Another illegality in the judgments under appeal is that the conviction of the appellant by both the Courts is really based, as I explained on this so-called confession only. But as this so-called confession was repudiation of liability what the Court did was that they accepted those passages in the statement Exh. P.Z. which appeared in their opinion to support the case of prosecution and they rejected the exculpatory part of the statement. Mr. Ismail submitted that it was open to a Court to base a conviction solely on the confession or on the statement of an accused, but in that event the Court could not reject that part of the statement or confession, which went against the prosecution case. The submission is correct. Mahajun, J. observed in Hanumant Govind Nargundla and another v. State of Madhya Pradesh AIR 1952 SC 343 at page 350; It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.' I agree with these observations and on this ground also it is clear that the appellants' conviction was illegal and that it was a case of no evidence." In 1983 SCMR 76, following principle was laid down:-- "The judgment of the High Court makes it abundantly clear that ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the 'defence version'. There was no proved or established facts to test the defence version. This distinguishes the decision in Inamuddin's case, which had proved or established facts. In Balmakund case a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exculpatory part of the statement of the accused to be so unworthy of belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception-- (a)??????? where there is other evidence a portion of the confession may, in the light of that evidence be rejected while acting upon the remainder with the other evidence; (b)??????? where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible. In the case of Tahim Bux also it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety." Above principles were also reiterated in PLD 1990 SC 484 and PLD 1991 SC

150. The confessional statement of Bangui Khan can be divided into two parts, the one in which he contends that before Maghrib prayer, he went to the office of Mir Muhammad Nawaz Marri, the then advocate, for consultation in connection with the murder of Amir Hamza Bugti, alongwith the accused Khair Jan and another person and when they both were sitting with him, firing reports were heard from outside and the second portion, where he states that in the meanwhile after firing Sanaullah in Balochi language, in presence of Advocate Mir Muhammad Nawaz Marri, told Azizullah that Sallal Bugti all of a sudden came in front of him and he was killed. (It may be noted that Sanaullah and Azizullah who is also known as Qurban Bugti, according to the version of Amanullah, Advocate, are absconding accused). On listening to Sanaullah he told him that why he has killed Sallal Akbar Bugti as it was not in their plan, because Akbar Khan Bugti and Saleem Akbar Bugti are their enemies. Above part of his statement indicates that he excludes himself, Khair Jan and Azizullah alias Qurban from murder of Sallal Akbar Bugti, by showing their presence, inside the office of Advocate and at the same time he speaks of criminal conspiracy to commit murder of Nawab Akbar Bugti and Saleem Akbar Bugti, therefore, following the above principle laid down by Honourable Supreme Court, the confessional statement is either to be accepted in toto extending the benefit of its exculpatory portion to accused or not to be accepted to the extent of inculpatory portion without independent corroboration. As far as exculpatory part of his evidence is concerned it appears to be false in view of evidence available on record and discussed in detail hereinabove. So for hatching criminal conspiracy is concerned, in view of the words uttered by him in confessional statement, alone on this evidence conviction possibly cannot be recorded without independent corroboration, as held in 1983 SCMR 76 and other cases. P.Ws. Payara Bugti, Arsala Bugti and Musa Farman, though deposed that Wadera Khan Muhammad Bugti convened a meeting to commit the murder of Nawab Akbar Bugti and Salem Akbar Bugti, but their evidence is inadmissible being hearsay. Further they have also not stated that the appellant Bangui Khan was party to that meeting or not. Therefore, it is held that the inculpatory part of confessional statement of Bangui Khan is also not acceptable for want of corroboration. We have independently reviewed total evidence available on record, including the statement of P.W. Muhammad Ejaz to determine; whether appellant Bangui Khan is liable for commission of offence, on sharing common intention with other accused. In this behalf, we have also gone through the judgment of Honourable Supreme Court reported in PLD 1991 SC 923, in which section 34, P.P.C. has been considered elaborately. But we are satisfied to hold that prosecution evidence lacks in establishing this factor as well, against him. Whereas cases of other appellants are concerned, the prosecution has successfully established that all of them shared -common intention with the absconding accused as well, and committed the murder of Sallal Akbar Bugti. It may be noted that regarding the appellants, except Bangui Khan, it has been proved that they were present in the black coloured Datsun duly armed with lethal weapons, recovery of which was subsequently made to establish their participation in the commission of offence, qua, the identification test parade, recovery of crime empties coupled with the Fire-arm Expert Report, Chemical Expert Report, medical evidence, the testimony of P. Ws. Payara Bugti and Arsala Bugti, whose statements have been found divisible, in view of strong corroborative evidence, discussed hereinabove, following the principles of sifting grains out of chaff, and also considering the statement of these three appellants on oath in juxtaposition with the prosecution evidence and believing the motive which appellants themselves have disclosed in their statements on oath, supported by undisputed recovery of application dated 26th July, 1989, on the name of Chief Justice, Balochistan High Court, application dated 16th November, 1991, addressed to Assistant Commissioner, Sui, by Amir Hamza Bugti and application of Haji Mir Wadera Khan Muhammad Khan, Chief Mokadam Kalpur Bugti addressed to Assistant Commissioner, Sui, concerning arrest of accused/murderers of Amir Hamza Bugti, in which he alleged that his son has been murdered at the instance of Sardar Akbar Khan Bugti and his son Saleem Akbar Bugti (Exh.P.24/A), as well as relying on the judgments reported in PLD 1976 SC 452, PLD 1991 SC 923, PLD 1995 SC 488 and 1996 SCMR 549 are inclined to hold that they have been rightly found guilty for the commission of offence under section 302 read with 120-B/34 and under section 324, P.P.C., vide impugned judgment. For the discussion made hereinabove, the judgment, dated 17th November, 1994, passed by Special Judge for Suppression of Terrorist Activities Court, Quetta, against appellants Khawand Bakhsh son of Gella, Sabz Ali son of Kella and Khair Jan son of Ellahi Bakhsh, is upheld. Consequently their appeal is dismissed. Whereas appeal of Bangui Khan son of Jam Khan is accepted and to his extent the judgment is set aside. He be set at liberty, if not wanted in any other case. N.H.Q./587/Q???????????????????????????????????????????????????????????????????????????????????? Order accordingly