2007 P Cr (PLP)

IFTIKHAR HUSSAIN BUTT, J.

As the above titled appeals and reference arise out of the same incident and judgment; therefore,. these have been consolidated and will be disposed of by this judgment. Brief facts of the case are that Fayyaz Hussain, complainant, lodged a written report at Police Station Palandri on 18-1-1993 at about 7-TS p.m. The complainant alleged that on 18-1-1993 at 5-00 p.m. he was proceeding on the road situated at Dehra Sunyari. Meanwhile a Jeep No.7369 passed nearby him, which was driven by Altaf Hussain son of Sha Dill Khan: AS soon as the Jeep went a .few steps ahead, accused Mazhar Iqbal and Muhammad Khaliq sons of Nawab Khan, Javaid son of Wilayat Khan, Ghulam Rasool son of Gulab Khan, Said Hussain son of Khan Muhammad, Khalid son on Lal Khan; Zameer Hussain son of Ghulam Rasool, Irfan son of Noor Muhammad, Muhammad Taj son of Bloch Khan, Muhammad Akram son of Noor Muhammad, Nasir son of Muhammad Khaliq and Jahangir son of unknown person who were hiding at both sides of the road., suddenly appeared and starjed indiscriminate firing from different sides of the vehicle. ?n account of firing, Altaf Hussain son of Shef Dill, Abid Hussain son of Muhammad Zaheer, Amjad Hussain son of Muhanunad Hussain and Muhammad Munir son of Haji Wali Muhammad.. died on the spot, whereas Taj Shaheen was injured seriously. Besides complainant, the occurrence was witnessed by Zahid Hussain son of Muhammad Zaheer, Tahir Mahmood son of Muhammad Hussain, Abdul Hussain and Muhammad Sadiq sons of Sajawal and Muhammad Siddique son of Ali Zaman Khan. The motive behind the occurrence has been stated to be a previous enmity between the parties because of the murder of three sons of Ghulam Rasool. The allegation of aforesaid murder was levelled upon the brothers of Abid Hussain, deceased, and relatives of Altaf Hussain, deceased. On this report, a case was registered against the accused-persons by Mirza Shaukat Hayat A.S.-I. Police (P.W.33). Meanwhile, Sardar Muhammad Kabir-Khan S.-L/S.H2O. Police (P.W.4) recorded the dying declaration of Taj Shaheen deceased Exh.P.B. in presence of Fayyaz Hussain (P.W.3) and Shah Muhammad (P.W.42). He prepared the inquest reports of Altaf Hussain, Abid Hussain, Amjad Hussain and. Muhammad Munir (not exhibited). On the same day, he prepared the inquest report Exh.P.DD. of Taj Shaheen deceased. He further prepared injury forms of Abid Hussain, Altaf Hussain, Muhammad Munir, Amjad Hussain and Taj Shaheen deceased .(not exhibited). He also took into possession Suzuki Jeep No.RIL-7369 vide recovery memo. Exh.P.DD., seat covers of Jeep vide recovery memos. Exhs.. P. S. , P.T. and P.U. , other goods vide recovery memo. Exh.P.B., a waistcoat vide recovery memo. Exh. P. W . , 74 empties of kalashnikov, 8 empties of .12 bore gun, pieces of glass, blood-stained earth along with pieces of glass vide recovery memos. Exhs. P.X., P.Y., P.Z., P.AA., P.BB. and P.CC. in the presence of Ghulam Murtaza (P.W.11) and Muhammad Younis (P.W.14) After the postmortem on 19-1-1993, the blood-stained clothing of Munir Ahmad, Taj Shaheen, Altaf Hussain son of Sher Dil, Abid Hussain and Amjad Hussain, deceased, were taken into possession by Mirza Shaukat Hayat A.S.-I. Police (P.W.33 vide recovery memos. Exhs.P.C., P.D., P.E. P.F. and P.G. testified by Fayyaz Hussain (P:W.3) and Abdul Hussain (P.W.7). On the same day, the site plan Ehx.P.E. was prepared by Munshi Muhammad Latif Patwari (P.W.35). On 21-1-1993, Ghulam Rasool accused led to the recovery of carbine .12 bore which was taken into possession by Sardar Muhammad Kabir Khan S.-I./S. H.O. Police (P.W.42) vide recovery memo. Ehx.P.J. witnessed by Shah Muhammad (P.W.4) and Abdul Qayyum (P.W.12). On the same day said Kabir Khan S.-I. Police took into possession Jeep No.8915-AJKB vide recovery memo. Exh. P. EE. He also took into possession cash and watch recovered from Ghulam Rasool accused during his search vide recovery memo. Exh. P.Q. testified by aforesaid p.Ws.4 and

12. On 22-1-1993, Mirza Shaukat Hayat A.S.-I. Police (P.W.33) took into possession Registers of Saadia Hotel vide recovery memos. Exhs.P.M. and P. N. attested by Ghulam Murtaza (P.W.11 and Abdul Qayyum (P.W.12). On 26-1-1993, Kabir Khan S.-I. Police (P.W.42) took into possession a .32 bore revolver, owned by Altaf Hussain deceased, at the instance of Mazhar Iqbal accused vide; recovery memo. Exh.P.O. On the same day, a .30 bore pistol, owned by Taj Shaheen deceased, was recovered on the pointation of Ghulam Abbas accused vide recovery memo. Exh. P. P. in the presence of abovementioned P. Ws.1 l and

12. On 31-1-1993, said Muhammad Kabir Khan S.-I. Police took into possession two Kalashnikovs at the instance of Mazhar Igbal and Ghulam -Abbas accused vide recovery memos.' Ehxs.P.K. and P.L. testified by Muhammad Ashiq (P.W.10) and Mirdad Khan (P.W.18). On 2-2-1993, said Muhammad Kabir Khan S.-I. Police took into possession fragments of bullets and pellets extracted from the dead bodies of the deceased vide recovery memo. Exh. P. HH. attested by Mirza Shaukat Hayat A.S.-I. Police (P.W.33) and Muhammad Munir Khan Head Constable Police (P.W.37). On 3-2-1993, Muhammad Kabir Khan S.-1. Police filed an application before S.D.M. Palandri for. identification parade of the accused vide letter Exh. D. Z. , which was conducted on the same day in the light of documents Exhs. P.00. , P. PP. , P. QQ. , P. RR. , P. SS. , P.TT., P.UU. and P.VV. On 4-2-1993, Muhammad Altaf accused got recorded his statement under section 164, Cr.P.C. On 9-2-1993, Zameer Hussain accused led to the recovery of .12 bore gun, which was taken into possession by Muhammad Kabir Khan S.-I. Police vide recovery memo. Exh.P.H. attested by Fayyaz Hussain (P.W.3) and Abdul Hussain (P.W.7). In the light of document Exh. P. MM. , it was reported by Chemical Examiner that the recovered articles and clothes of the deceased were stained with blood. It was reported by Director Forensic Science Laboratory Punjab in the light of document Exh. P. ZZ. that .the crime empties have been found to be fired by lethal weapons recovered from the accused-persons. The post-mortems of the dead bodies of Altaf Hussain, Abid Hussain; Amjad Hussain, Muhammad Munir and Taj Shaheen were conducted on 19-1-1993 by Dr. Sardar Rashad Yaqoob Khan C.M.O. Civil Hospital Palandri (P. W.36). After completion of the investigation, the accused were challaned in the District Criminal Court, Palanderi, for trial under sections 147, 148, 149, 341, 427 and 109, A.P.C. read with section 5, of the Islamic Penal Laws Act and section. 14, of the Offences against Property (Enforcement of Hudood) Act 1985. The District Criminal Court, after completion of the trial, convicted and sentenced Ghulam . Rasool and Zameer accused to death on five counts under section 5, I.P.L. whereas Said Hussain, Irfan, Muhammad Taj and Khalid son of Lal were sentenced to ten years' R.I. total fifty years each under section 5, I.P.L. It was also ordered that these sentences shall begin consecutively with the benefit of section 382-B, Cr. P. C. Muhammad Nawaz, Mazhar Iqbal son of Khushi Muhammad, Ghulam Abbas, Muhammad Altaf, Muhammad Aziz, Muhammad Pervaiz, Zahoor, Khalid son of Muhammad Sher and Musarrat Hussain along with other absconding accused Miskeen, Tariq and Karamat were acquitted of the charge by the trial Court vide its judgment dated 23-8-2003 while Mazhar Iqbal son of Nawab, Muhammad Khaliq, Muhammad Akram, Nasir and Muhammad Jahangir were declared absconders. The convict-appellants filed two separate appeals before this Court against their conviction and sentence while the State and the complainant also filed two separate appeals seeking recovery of compensation from Ghulam Rasool and Zameer Hussain for the heirs of the deceased, enhancement of the sentence of Said Hussain, Irfan, Muhammad Taj and Khalid son of Lal to the punishment of Qisas with a prayer to annul the benefit of section 382-B, Cr.P.C. and also to award death sentence to other accused-persons after setting aside order of their acquittal. A reference has been made by the trial .Court for confirmation of the death sentences of Ghulam Rasool and Zameer Hussain. The above-mentioned four appeals and a reference are the subject-matter of this judgment. Sardar Muhammad Hussain Khan, the learned counsel for Ghulam Rasool and Zameer. Hussain accused-persons argued with vehemence that the trial Court has committed grave illegality while convicting the accused-persons because the prosecution has miserably failed to prove its case beyond any reasonable shadow of doubt. The learned counsel pointed out that three different and self-contradictory dying declarations of Taj Shaheen deceased were recorded by Muhammad Kabir Khan S.H.O. on 18-1-1993 at 6-30 p.m. But it transpires from the Murasla appearing at page 144 of the file sent to C.M.O. Palandri by said S.H.O. that Taj Shaheen deceased died at 5-00 p.m. which shows that the dying declaration recorded at 6-30 p.m. is not worthy of any credence. The learned counsel also contended that death sentence was awarded to two accused and tour accused were awarded 10 years' R.I. out of twenty four accused-persons, which shows that the prosecution story is suspicious and doubtful. The learned counsel further submitted that according to F.I.R. it was alleged that twelve accused-persons fired shots upon five deceased but according to the challan sheet prepared under section 173, Cr.P.C. it has been stated. that three accused-persons Mazhar Iqbal son Khushi Muhammad and Ghulam Abbas son of Hayat fired shots with Kalashnikov whereas Zameer Hussain son of Ghulam Rasool fired shot with .12 bore gun upon the deceased but Mazhar Iqbal and Ghulam Hussain were acquitted of the charge; therefore, the basic version of the prosecution is not reliable. The learned counsel maintained that Fayyaz Hussain complainant also nominated twelve accused-persons during his statement before the trial Court whereas twenty four accused-persons were challaned. The learned .counsel stressed upon the point that in the light of statement of Fayyaz Hussain complainant (P.W.3), the occurrence was witnessed by him and Zahid Hussain (P:W.S) only whereas the remaining .eye-witnesses reached at the spot after the commission of occurrence. The learned counsel pressed into service the submission. that the P. Ws. are not only related to the complainant party but they also nurse grudge and enmity against the accused party and their evidence has also not been corroborated by any supportive evidence; therefore, the prosecution version cannot be taken into consideration. The learned counsel after referring to the certain portions of the statement of prosecution witnesses submitted that neither the ocular version of P. Ws. nor the corroboratory evidence is reliable. He further contended that in the light of report of Forensic Science Laboratory no shot was found to be fired from Ritle No.11835M allegedly recovered on the pointation of Zameer Hussain accused whereas the rifle allegedly recovered at the instance of Ghulam Rasool accused was not sent for Expert's examination and opinion. The learned counsel zealously argued that the evidence of recovery of Register of Saadia Hotel Exh.P.N. and in this regard the evidence. of , P. Ws. is also not worthy of any credence because no local person was associated with the recovery proceedings and the recovery witnesses belonging to Village Baril District Palandri went to Rawalpindi for witnessing the recovery of afore stated Register. Furthermore, cutting and clipping were found in the name of Ghulam Rasool accused at page 38 of the aforementioned Register dated 13-1-1993. The learned counsel agitated that the site plan also does not lend any support to the eye-witnesses' account because in the aforesaid site .plan the places where the accused had allegedly waylaid or the prosecution witnesses rescued themselves were not pointed out. The learned counsel finally submitted that the prosecution story is full of material contradictions and infirmities; therefore, the trial Court fell in grave error while passing an order of conviction against the accused-persons, who may be acquitted of the charge and order of acquittal in favour of-other accused may be maintained. In support of the arguments reliance was placed upon the following authorities:

(1) PLD 1967 Karachi 233, (2) 1992 SCMR 196, (3) 1992 5CR 120 and .155, (4) 1992 PCr.LJ 1260, (5) 1996 PCr.LJ 150 and (6) 1997 PCr.LJ

730. Sardar Shamshad Khan, Advocate, the learned counsel appearing on behalf of Irfan, Muhammad Taj,, Said Hussain and Khalid son of'La1 Khan convict-appellants, submitted that the prosecution did not bring forward any cogent and convincing evidence to implicate Irfan, Muhammad Taj, Said Hussain and Khalid son of Lal Khan accused-persons in the occurrence. The learned counsel pointed out that the abovementioned accused-persons were cited as prosecution witnesses in the murder case of sons of Ghulam Rasool; therefore, on account of enmity they were involved in the case. The learned counsel further contended that the evidence of P. Ws. to the extent of aforementioned accused-persons is inconsistent and self-contradictory which cannot be relied upon. The learned counsel referred to us the certain portions of the prosecution evidence and argued that Muhammad 5iddique (P.W.8) except Khalid accused did not involve the remaining accused Irfan, Muhammad Taj and Said Hussain in the occurrence. Similarly, Zahid. Hussain (P. W.5) did not state the name of any of the accused-persons in his examination-in-chief. Abdul Hussain (P.W.7) only involved Said Hussain and Irfan accused-persons and deleted the name of Muhammad Taj and Khalid whereas Muhammad Sadiq (P.W.6) implicated Khalid and Irfan only and he also did not depose as to whether the accused persons were armed with any weapon or not. Said Hussain (P.W.16) and Munshi Khan (P.W.17) only involved .Khalid but they failed to state the name of his father. .The learned counsel pressed into service the submission that only two Kalashnikovs were recovered but none of the lethal weapon was recovered at the instance of above stated accused-persons; therefore, no supportive or confirmatory evidence was produced against the abovementioned accused-persons. The learned. counsel laid great stress upon the point that in such-like cases when the P.Ws. are found closely related to the complainant and they are admittedly animus to the accused party, their evidence cannot be taken into consideration without strong corroboratory evidence, which is lacking in the instance case. The learned counsel finally argued that the convict-appellants may be acquitted of the charge on account of suspicious and doubtful evidence. In support of the contentions, the learned counsel referred to us the following case-law:

(1) 1982 SCMR 178 and (2) 1997 PCr.LJ

730. On the other hand ,Raja Mumtaz Hussain Kayani, the learned Additional Advocate-General appearing on behalf of the State, contended that all the accused-persons participated in the occurrence in furtherance of their common intention; therefore, the trial Court failed to appreciate the prosecution evidence in a legal fashion to the extent of acquitted accused-persons and also fell in grave error while awarding meagre sentence to accused-persons Irfan, Muhammad Taj, Said Hussain and Khalid son of Lal Khan. The learned State counsel submitted that the prosecution has fully established its case against all the accused-persons; therefore, the sentence of Irfan, Muhammad Taj, Said Hussain and Khalid son of Lal Khan be enhanced and .the rigorous sentence may also be awarded to the acquitted accused persons. After completion of oral arguments, an application was filed by the complainant along with written arguments of Sardar Abdul Hameed Khan, Advocate, and submitted that his counsel Sardar Abdul Hameed Khan had gone to perform Hajj, who could not argue the case at relevant time on 20-12-2006, therefore, written arguments may be considered. Thereupon the copies of the written arguments of complainant's counsel were sent to Sardar Muhammad Hussain Khan, Advocate for Ghulam Rasool and Zameer Hussain convict-appellants and Sardar Shamshad Khan, Advocate for Irfan, Said Hussain, Muhammad Taj and Khalid convict-appellants.. The written arguments on behalf of all the convict-appellants were also filed by both the learned counsel on 7-2-2007. Sardar Abdul Hameed Khan, the learned counsel for the complainant pointed out in his written arguments that the instant case is a unique one in the history of AJ&K whereby five innocent persons were done to death by using lethal weapons like a battlefield technique. The learned counsel submitted that 98 empties of deadly weapons were taken into possession from the place of occurrence. The learned counsel further argued that the occurrence was committed after entire preparation and in a preplanned manner to take revenge of past enmity. The learned counsel agitated that the prosecution has not only produced eye-witnesses of the occurrence along with sufficient corroboratory evidence, the dying declaration of Taj Shaheen deceased, confession of accused Altaf, the evidence of identification parade, the recovery of stolen property of the deceased and the recovery of lethal weapons, but also the evidence of planning and intrigue before the occurrence and the journey of hired killers. The learned counsel pressed into service the submission that on account of relationship, the evidence of P.Ws. cannot be discarded because P.Ws. do not have any direct enmity with the accused-persons. The learned counsel submitted that it is a daylight occurrence, the accused-persons are known to the complainant and the P.Ws. were nominated and identified whereas the strangers were named in the dying declaration, which has been proved through the evidence of Shah Muhammad and Fayyaz Hussain P. Ws. certified by Muhammad Kabeer Khan S.H.O. The learned counsel laid great stress .upon the point that while taking into consideration a specific and special type of occurrence, it is impossible for the P. Ws. to testify that who was injured by the firing of which accused. The learned counsel further maintained that the prosecution has produced sufficient cogent and consistent evidence which fully implicates all the accused-persons with the commission of brutal murder of five innocent persons; therefore, all of them may be sentenced to death and special compensation may also be awarded in favour of heirs/five families of deceased under section 544-A, Cr.P.C. The learned counsel for the complainant cited the following case-law in support of his written arguments:

(1) 1983 PCr.LJ 898, (2) PLD 1984 SC (AJ&K) 82, (3)1987 PCr.LJ 1728 (4) 1991 PCr.LJ 2110, (5) 1992 PCr.LJ 187, (6) 1993 PCr.LJ 1036, (7) .1995 PCr.LJ SC (AJ&K) 789 and 803, 1997 PCr.LJ (SC (AJ&K) 1865, (9) 1998 SCR 337, (10) 1999 PCr.LJ 436,(11)1999 YLR 1755 (12) 2001 PCr.LJ 524, (13) An unreported judgment of Sh.C. (AJ&K) tilted Ghulam Rasool and another v. State (decided on 28-11-1993). We have given our due consideration to the arguments addressed at Bar and perused the record with care along with the case-law cited. The prosecution case rests upon ocular version; therefore, first of all, it will be proper to appraise and appreciated the evidence of eye-witnesses. Fayyaz Hussain, complainant (P.W.3) deposed that on the fateful day he .along with his brother Zahid Hussain (P.W.S) was proceeding towards his house situated in village Baril. He rode in a van from Village Islampura onward they started walking on foot. When they reached near Dehra Sunyari, they found a .Jeep No.7369-RIL which was driven by Altaf Hussain. Muhammad Taj Shaheen and Munir Butt were sitting on front seat while. Amjad Hussain and Abid Hussain on back seat. Altaf Hussain asked him to ride in the Jeep but on account of insufficient place, they did not board and started walking on foot. When the Jeep went a little bit forward, they found the accused-persons, who had hidden themselves at both sides of road, suddenly appeared and started indiscriminate firing. The accused were not less then 20 or

30. Meanwhile, they concealed themselves in the cover of a stone on the right side of road wherefrom they witnessed the occurrence. They saw Muzhar Iqbal, Muhammad Khaliq, Ghulam Rasool, Javaid (late), Said Hussain, Khalid son of Lal Khan Irfan, Muhammad Akram, Muhammad Taj, Muhammad Zameer, Nasir and Muhammad Jahangir firing shots upon the Jeep. Ghulam Rasool was armed with a carbine, Muhammad Zameer, Mazhar Iqbal and Khalid were armed with .12 bore guns, Nasir was armed with a revolver and two unknown persons were armed with Kalashnikovs. When the accused satisfied themselves that the persons riding in the Jeep had died, Ghulam Rasool, Zameer and two unknown persons armed with Kalashnikovs went near the Jeep. Ghulam Rasool and Zameer asked Mazhar Iqbal and Abbas accused that Munir Ahmad, Taj Shaheen, Altaf, Abid and Amjad had died; therefore, they should run away, thereupon the accused f]ed away towards jungle. When the accused ran away from the place of occurrence, the complainant and Zahid Hussain (P.W.S) went near the Jeep and found Altaf Hussain, Munir. Ahmad, Abid Hussain and Amjad Hussain dead whereas Taj Shaheen was severely injured. Thereon, they made hue and cry due to which Muhammad Sadiq and Abdul Hussain sons of Sajawal, Muhammad Siddique son of Ali Zaman and .Tahir Mahmood son of Muhammad Hussain rushed towards the Jeep and they also witnessed the occurrence. The complainant further stated that during the statement of accused Altaf son of Ramzan recorded under section 164, Cr.P.C. it came into his knowledge that Abdul Aziz accused hired Mazhar, Abbas and Nawaz accused resident of Gujrat. He kept them in his house for four days, paid them money and provided them the lethal weapons. The complainant also testified that he along with Shah Muhammad took Taj Shaheen towards Palandri .and when they, reached near Nalanda cross they found a police van where S.H.O. recorded dying declaration of Taj Shaheen Exh.P.B. Thereafter, he filed F.I.R. Exh.P.A. which was yvritten by Master Shah Muhammad (P.W.4). A careful perusal of above mentioned statement of complainant shows that it is clear, consistent and reliable- except to the extent of IA involvement of Abdul Aziz, accused. It also transpires from the style of cross-examination and suggestion put by the defence that the recording of dying declaration of Taj Shaheen is also admitted on the part of defence, which appears at page 19 of his statement before the trial Court in the following manner:

It also becomes clear from the suggestion appearing. at page 23 of the statement of P.W.3 that the deceased were done to death by firing shots from one side. In this manner, the death of the deceased by firing on the place of occurrence and firing from one side only are also admitted on the part of defence. So far as the objection of the learned counsel for the defence is concerned that in the light of complainant's statement other eye-witnesses namely Muhammad Sadiq (P.W.6), Abdul Hussain (P.W.7), Muhammad Siddique (P.W.8) and Tahir Mahmood (P. W.9) did not witness the occurrence, has no substance because the close examination ~of the deposition of complainant coupled with the cross-examination made upon him appearing at pages 26 and 27 of his statement makes it crystal clear that Sadiq, Siddique, Tahir Mahmood and Abdul Hussain also witnessed the occurrence. It further appears at page 41 of the statement of complainant that the recording of statement of Altaf accused under section 164, Cr.P.C. is also admitted on the part of defence, which reads as under:

However, the complainant has not involved accused-persons Muhammad Miskeen son of Akhtar Khan, Karamat Hussain, Zahoor and Aziz sons of Karamdad, Pervaiz son of Aziz, Altaf son of Ramzan, Khalid Hussain son of Sher Muhammad Khan and Musarrat son of Boston Khan. Zahid Hussain (P.W.5) testified that on 18-1-1993 after negotiating compromise in the murder case of the sons of Ghulam Rasool, he along with his brother Fayyaz Hussain, complainant, reached Islampura by riding in a van wherefrom they walked on foot. When they reached near Dehra Sunyari they found Jeep No.7369 RIL which was being driven b-,~ Altaf Hussain son of Sher Dill and Taj Shaheen and Munir Ahmad were sitting on front seat while Abid Hussain and Amjad Hussain were sitting on back seat. Altaf Hussain asked them to ride in the Jeep but on finding narrow and insufficient place they did not mount in the van and started their journey by walking on foot. The van went a little bit away when the accused-persons, who were not less then 20 or 25, started firing upon the Jeep from both sides. He witnessed Munshi Ghulam Rasool son of Gulab Khan, Mazhar Igbal and Muhammad Khaliq sons of Nawab Khan, Zameer son of Ghulam Rasool, Miskeen son of Akhtar Khan, Nasir son of Khaliq, Musarrat son of Boston Khan, Khalid son of Lal Khan, Jived son of Wilayat, Taj son of Bloch and Tariq son of Aziz along with two unknown persons armed with Kalashnikovs. Munshi Ghulam Rasool was armed carbine, Mazhar Iqbal, Khaliq and Zameer were armed with .12 bore guns and Nasir was armed with a revolver. .Zameer and two unknown persons were firing indiscriminate shots. He and his brother Fayyaz concealed themselves under the cover of a stone and. witnessed the whole occurrence. When the accused fled away from the place of occurrence, he and Fayyaz went towards the Jeep and found Altaf, Abid. Hussain, Munir Butt,and Amjad dead whereas Taj Shaheen was severely injured. On making hue and cry by them, Sadiq, Abdul, Siddique and Tahir rushed towards the Jeep. Zahid Hussain identified Mazhar Iqbal and Ghulam Abbas accused in the open Court. Muhammad Sadiq (P. W.6) deposed that in the evening of 18-1-1993 he went to the house of his brother Abdul Hussain (P.W.7) where Muhammad Siddique (P. W.8) was already present. He along with Abdul Hussain went Islampura to see him off. When they reached a little bit away from the place of occurrence, they heard sound of firing, thereupon when they went forward from the curve they found that 18/20 armed persons were firing shots upon a Jeep of white colour. On account of fear and terror, they witnessed firing by concealing themselves and when the firing stopped they saw Munshi Ghulam Rasool son of Gulab Khan, Zameer Hussain son of Ghulam Rasool, Muhammad Khaliq and Mazhar sons of Nawab -Khan, Nasir son of Khaliq, Miskeen son of Akhtar, Musarrat son of Bostan, Javaid son of Wilayat Khan, Zahoor Ahmad and Karamat sons of Karamdad, Khalid son of Lal Khan, Irfan son of Noor Muhammad. Khalid, Mazhar and Zameer were armed with .12 bore guns, Nasir was armed with revolver, Ghulam Rasool was armed with carbine and two strangers Ghulam Abbas son of Hayat and Mazhar son of Khushi Muhammad were armed with Kalashnikovs. He further deposed that Munshi Ghulam Rasool and two strangers were firing indiscriminately. Some of them were firing shots upon the Jeep from backside. When they believed that accused have fled away, he along with Abdul Hussain and Siddique P. Ws. rushed towards the Jeep meanwhile Fayyaz Hussain and Zahid P.Ws. also reached there. They found Taj Shaheen alive while Munir Butt, Altaf Hussain, Abid and Amjad dead. Abdul Hussain (P.W.7) also corroborated the ocular version of~ aforesaid P.Ws. and stated that when he along with his brother Muhammad Sadiq went to see of Muhammad Siddique (P. W.8), they heard sound of firing. Thereon, they went forward and saw that 18/20 persons were firing shots on a white Jeep No.7369 owned by Altaf. Ghulam Rasool was firing with carbine whereas Zameer, Mazhar Iqbal, Khaliq and Said Muhammad were firing shots with .12 bore rifles. The remaining accused Zahoor, Karamat, Javaid, Khalid son of Lal Khan, Irfan, Akram son of Noor Muhammad ,Taj son of Bloch and Miskeen son of Akhtar Khan were also firing shot with lethal weapons whereas two strangers were firing with kalashnikovs. Both the above-mentioned P. Ws. Muhammad Sadiq and Abdul Hussain are neither related to the complainant nor have any grudge or rancor against the accused party; therefore, their evidence lends strong support to the evidence of Fayyaz Hussain complainant (P.W.3) and his brother Zahid Hussain (P. W.5). So far as the statement of Siddique (P. W.8) is concerned, he not only failed to identify the strangers accused but he had also written the names of accused on his hand; therefore, his statement is not worthy of any credence. A close examination of the statement of above stated eye-witnesses shows that on .account of past enmity the accused-persons hatched a conspiracy and murdered five innocent persons to take revenge of the murder of sons of Ghulam Rasool. On the fateful day, the parties negotiated a compromise and Ghulam Rasool accused received rupees 10 lac as compensation from the accused party and the case was consigned to the record but thereafter he fulfilled his designs; therefore, the motive, as setup by the prosecution, has been amply proved that Ghulam Rasool wanted to take revenge of the murder of his sons, on this account, he planned to do away with the lives of his enemies. The contention of the learned counsel that the P.Ws. failed to specify the weapons by which the accused party fired shots upon five deceased and by .whose firing the deceased were done to death; therefore, their. evidence is not reliable, does not appear to be well-founded because in such-like cases it is not humanly possible for the P. Ws. to specify that who received injuries by the firing of which accused and by which kind of weapon they were done to death. In this regard I am fortified by a case reported as Fateh Shah and 2 others v. The State 1993 PCr.LJ (Lahore) 1036, it was observed that if according to F.I.R. it is impossible to say which of the accused indicted `which injury is no reason at all for refraining from passing the death sentence. As far as 'the case of Ghulam Rasool son of Gulab .Khan and Zameer son Ghulam Rasool is concerned, it has been amply proved not only by the ocular version of Fayyaz Hussain complainant (P.W.3) and his brother Zahid Hussain (P.W.S) but also by the evidence of Muhammad Sadiq (P.W.6) and Abdul Hussain (P.W.7), the independent and impartial witnesses. The prosecution story also lends support from the evidence of Master Shah Muhammad (P.W.4) who soon after the occurrence reached at the spot and not only witnessed the dying declaration Exh.P.B. deposed by Taj Shaheen deceased but also recorded' the F.I.R. on the instruction of Fayyaz Hussain, complainant. He alongwith Abdul Qayyum (P.W.12) further witnessed the recoveries ~f carbine P.26, cover P.27, three live rounds P.28 and Gatira P.29 taken into possession at the instance of Ghulam Rasool accused. Similarly, the recovery of .12 bore gun P.25 No.11835-M which was taken into possession at the instance of Zameer Hussain accused vide recovery memo. Exh. P. H. , witnessed by Fayyaz Hussain (P. W.3) and Abdul Hussain (P.W.7), an independent witness. The prosecution story is further supported by the dyeing declaration Exh. P.B. of Taj Shaheen 1 recorded by Kabir Khan S.-I. Police (P.W.42) and testified by Fayyaz Hussain (P. W.3) and Shah Muhammad (P. W.4), which fully implicates the above mentioned accused persons. So far as the case of Irfan son of Noor Muhammad, Muhammad Taj son of Bloch, Said Hussain son Khan Muhammad and Khalid son. Of Lal Khan is concerned, also stands proved beyond any shadow of reasonable doubt in the light of aforesaid evidence. No doubt lethal weapons could not be recovered at their pointation but it is by now settled position of law that when the ,ocular evidence is confidence- inspiring and trustworthy then mere relationship of eye-witnesses with the deceased and their animosity with the accused is not sufficient to discard their evidence and in such type of evidence no further corroboration is needed whereas in the instant case two independent witnesses namely Muhammad Sadiq (P.W.6) and Abdul Hussain (P.W.7) are available, who fully support the prosecution version coupled with the evidence of Master Shah Muhammad (P.W.4) along with sufficient corroboratory and confirmatory evidence on record, which shall be discussed later on. Our aforesaid view finds support from the case titled Muhammad Malik v. The State 1981 PCr.LJ SC (AJ&K) 199, wherein it has been opined at page 204 of the judgment as under:

"We have carefully examined the evidence. We are not satisfied with the finding of acquittal recorded in respect of Muhammad Shah on the ground that there is failure on the part of the prosecution to produce confirmatory evidence. In this case, the corroboration of the ocular evidence, in our view, need not have been insisted upon, because mere relationship of the witness with the deceased and their animosity with the accused cannot be considered to be sufficient to discredit them if their evidence otherwise inspires confidence. Corroboration is generally insisted upon for the satisfaction of the Court when certain infirmities, croup up in the statements of relative and inimical witnesses." The ample medical evidence in shape of postmortem reports of Abid Hussain deceased Exh.P.R., Muhammad Altaf deceased Exh.P.S., Munir Ahmad deceased Exh.P.T., Amjad Hussain deceased Exh.P.U. and Taj Shaheen deceased Exh.P.V. also provide strong support to the prosecution version. It transpires from the perusal of abovementioned postmortem reports coupled with the deposition of Dr. Rashad Yaqoob Khan (P.W.36) that all five deceased were killed by the firing of lethal weapons from the distance of three to nine yards and on account of firing four persons dies instantaneously while Taj Shaheen succumbed to the injuries after 4 to 6 hours of the occurrence. Dr. Rashad Yagoob Khan further found the injuries caused by lethal weapons exactly on the same parts of the bodies of the deceased whereat the eye-witnesses alleged. It will not be out of place to mention here that the prosecution evidence is coherent and truthful, which by itself is sufficient to record the order of conviction and sentence without any further corroboration. However, for the sake of abundant caution corroboration is required only to satisfy the conscious of the Court that no innocent person is being involved. Let us point out that the corroboration does not necessarily mean the evidence of an independent witness but anything in the circumstances which tends to satisfy the Court that each interested witness has spoken truth. PLD 1979 SC (AJ&K)

23. The same view was affirmed in a case titled Zahid Hussain Shah v. Shah Nawaz Khan and 3 others and The State v. Shah Nawaz Khan and 2 others 2000 SCR 123, wherein it was observed as under:

"Corroboration of the statement of interested witnesses does not mean that the statement of witnesses is false or untrue. What it really means is that to accept it as wholly true, it is desirable that, it should have a confirmatory support. In fact when it is said that the statement of a witness needs corroboration to support it, this finding proceeds on the basis that version of P.W. is prima facie correct but by way of precaution it need corroboration to attain clarity." It therefore, follows that the corroboration is required only to look for supporting circumstances with a view to eliminate the chances of false implication and it does not require some .independent evidence but anything in the circumstances for the satisfaction of the Court that each interested witness has spoken truth. The site plan Exh.P.E., the recovery of seat covers of the Jeep P.34, P.35, P.36, the recovery of articles diaries, identity card, currency notes, umbrella, broken briefcase, cheque etc. P.37 to P.45, the recovery of waistcoat P.46, the recovery of 18 empties of kalashnikov and 18 empties of .12 bore gun P.47, the recovery of 20 empties of kalashnikov P.48, the recovery of pieces of glass taken into possession from the place of occurrence P.49, the recovery of 18 empties of kalashnikov and 8 empties of .12 bore gun P.50, the recovery of 18 empties of kalashnikov P.51, the recovery of blood-stained clay along with pieces of .glass P.52, the recovery of Jeep P No.7369-RIL, the recovery of blood-stained clothing of Munir Ahmad deceased P.1, P.2, P.3, P.4, the recovery of blood-stained clothing of Taj Shaheen deceased P.S, P.6, P.7, P.8, P.9, the recovery of blood-stained clothing of Altaf deceased P 10, P.11, P.12, P.13, P.14, P.15, the recovery of blood-stained clothing of Amjad Hussain deceased P.20, P.21, P.22, P.23, P.24, P.25, the recovery of fragments of pellets and bullets from the bodies of the deceased P.54, the recovery of cash and watch etc. from Ghulam Rasool accused, the recovery of Jeep No.8915/AJKB and the. inquest report of Taj Shaheen deceased Exh. D. D. provide sufficient corroboratory evidence. The report of Chemical Examiner is also on the record which shows that the abovementioned clay, pieces of glass, seat covers and the clothing of the deceased were stained with blood. The report of Forensic Science Laboratory Exh.P.ZZ. proves that the crime empties were fired from the lethal weapons recovered. at the instance of accused-appellants. The. aforesaid circumstances arte also in nature of supportive evidence. It will be relevant to note that the mere relationship of recovery witnesses with the complainant or the deceased is not by itself sufficient to discard their evidence. 2001 PCr.LJ

524. We cannot subscribe to the view of the learned counsel for accused-person Ghulam Rasool and another, that three types of dying declarations were prepared by Investigating Officer. Suffice to note that the dying declaration has been proved on the record rather it has been admitted on the part of defence, as stated earlier. However, it is an enriched principle of law that a Court is not obliged to look into the Photostat copies because these are not admitted in evidence and cannot be relied upon. 2000 YLR 2326 This contention of the. learned counsel for the defence is also devoid of any force that site plan does not provide any support to ocular version because it does not reveal the places where the accused were hiding or the P.Ws. witnessed the occurrence. A careful perusal of site plan Exh.P.EE. and keynotes Exh.P.EE./I shows that the accused-party waylaid at point No.3 of site plan and. the eye-witnesses saw the occurrence from points Nos.7 and 8. it will be necessary to mention here that site plan by itself is not a substantive piece of evidence so as to contradict ocular evidence. Site plan is prepared to appreciate or explain evidence on record. The next question which requires consideration is that as to whether the evidence of eye-witnesses, not relied upon in respect of some accused-person, can be ignored in respect of all accused-persons. It need to be emphasized that the maxim "falsus in uno falsus in omni bus"?????????? ` has since long been discarded. It is the duty of the Court to sift the grain out of the chaff. Therefore, when it appears that a witness has implicated some innocent persons besides the real culprits, the whole deposition cannot be ruled out of consideration when the main part of the evidence rings true on material points of the case of evidence. 1998 SCR

337. In the instant case the independent eye-witnesses have fully supported the ocular version of the interested witnesses; therefore, the acquittal of T some of the accused-persons cannot damage the whole case of prosecution. So far as the other prosecution evidence is concerned, cannot be appraised at this stage because it does not relate to the parties before this Court. The defence has half-heartedly tried to prove the plea of alibi about Muhammad Taj and Musarrat Hussain accused but. miserably failed. Similarly, the. evidence of Zulfigar Ali Mallick, Advocate, Manzoor Hussain, Sajid Akbar, Muhammad Riaz, Subedar Ghulam Hussain, Haji Nazar Muhammad and Munshi Abdul Aziz is "vague and not worthy of any credence. The statement of Munshi Ghulam Rasool, accused does-not exonerate him from the occurrence rather it appears from the close evaluation of the defence evidence that the firing of shots on the spot, the presence of the deceased, the place of occurrence and fleeing away of the accused-party from the place of occurrence are admitted on the part of defence. In this manner, when both the prosecution and defence versions are taken into juxtaposition, the prosecution version seems to be cogent, consistent and clear that the accused-party -after hatching conspiracy and hiring criminals from Pakistan launched a murderous attack with lethal weapons in a preplanned manner and killed 5 innocent persons, whereas the defence version in the light of defence evidence and suggestions put in the cross-examination, seems to be improbable, concocted and afterthought in view of the evidence and circumstances. We have gone through the evidence on the record and taken note of all the attending circumstances and special features of the case. In our view, the prosecution has established the guilt of the convict-appellants beyond any shadow of reasonable doubt. It has been amply proved on the record that a premeditated and brutal attack was made on five persons by several accused-persons, who perpetrated a gruesome murder in a blatant manner, which is a unique case in the history of Azad Jammu and Kashmir. However, the trial Court has overlooked the provision of section 35, Cr.P.C. while awarding the sentence of fifty years each to Muhammad Irfan, Said Muhammad, Muhammad Taj and Khalid W Mahmood appellants 1 to 4 in Criminal Appeal No.67 of 2006 because in the case of consecutive sentences, an accused cannot be sentenced to imprisonment for a long period than 14 years. However, the impugned judgment to the extent of Ghulam Rasool and Zameer Hussain and the convict-appellants, mentioned above, finding them to be guilty, is quite in accordance with the principles governing the safe dispensation of justice in criminal cases. In this manner, the sentences of aforementioned appellants 1 to 4 require modification. Accordingly, the judgment of the trial Court is upheld in the following manner:

(1) The death sentence awarded to Ghulam Rasool son of Gulab Khan and Zameer Hussain son of Ghulam Rasool, appellants in Criminal Appeal No.71 of 2006, is confirmed. (ii) The appellants Muhammad Irfan, Said Muhammad, Muhammad Taj and Khalid Mahmood in Criminal Appeal No.67 of 2006 shall undergo the sentences of 14 years' R.I. each with the . benefit of section 382-B, Cr. P. C. , already extended in their favour by the trial Court. The sentences passed on the convict-appellants shall however, run concurrently. (iii) Mazhar Iqbal son of Khushi Muhammad, Ghulam Abbas son of W Muhammad Hayat, Muhammad Altaf son of Muhammad Ramzan, Muhammad Nawaz son of Yaseen, Muhammad Miskeen son of Muhammad Akhtar Khan, Karamat Hussain son of Karamdad and Muhammad Tariq son of Muhammad Aziz did not appear before this Court; therefore, Appeals Nos.69 and 70 of 2006 to their extent shall remain pending till their presence is procured. However, non-bailable warrants of arrest shall -be issued against them. (iv) Appeals Nos.69 and 70 of 2006 fail to the extent of Muhammad Aziz alias Cheeza son of Karamdad, Pervaiz son of Aziz, Khalid Hussain son of Sher Khan, Zahoor son of Karamdad, Musarrat Hussain son of Bostan. Consequently, they are acquitted of the charge. In view of the aforesaid position, Appeal No.71 of 2006 fails and is dismissed. Appeal No.67 of 2006 is allowed only to the extent of quantum of sentences. Appeals Nos.69 and 70 of 2006 also fail to the extent of acquitted accused-persons in the terms stated above. The reference is answered in affirmative. H.B.T/14/Sh.C.(AJ&K)?????????????????????????????????????????????????????????????????????? Order accordingly.