2007 PLP 2013 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.151 of 1999 filed by Javaid Ali son of Nazar Muhammad, Ajlees Ahmad and Mushtaq Ahmad, Criminal Appeal No.108 of 1999 filed by Javed Iqbal, Tariq and Saghar alias Gulzar, all sons of Sanaullah, and Criminal Appeal No.19 of 1999 filed by Kafayat Ullah appellants. They were convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide judgment dated 14-1-1999 as under:- Saghir, Javed sons of Nazar Muhammad, Mushtaq and Ajlees Death on four counts and a fine of Rs.10,000 in default one year's R.I. under sections 302/149, P.P.C. Javed Iqbal, Tariq and Kafayat Ullah Imprisonment for life on four counts with a fine of Rs.10,000 in default one year's R.I. under sections 302/ 149, P.P.C. All the above named seven accused were also convicted under sections 379/149, P.P.C. and sentenced to two years' R.I. They were also convicted under sections 447/149, 'P.P.C. and sentenced to R.I. for three months each. Similarly, the seven accused were convicted under section 148, P.P.C. and sentenced to R.I. for two years. All the above named seven accused were directed to pay compensation to the tune of Rs.10,000 each to legal heirs of the deceased.. The benefit of section 382-B, Cr.P.C. was extended in favour of Javed Iqbal, Tariq and Kafayat Ullah. The sentences recorded against them were ordered to run concurrently. against them and they were declared proclaimed offenders. It is also worth mentioning that after the registration of this case and pending trial, Munnir, Zafar, Muhammad .Anwar, Basharat and Muhammad Yousaf died.

5. During trial Muhammad Yaqoob an eye-witness of the occurrence filed Writ Petition No.8440 of 1998 before this Court with the grievance that the direction earlier given in Criminal Appeal No.27 of 1989 as also in Criminal Miscellaneous No.1548-M of 1993 has not been complied with and instead de novo trial has been started. This Court vide judgment dated 30-9-1998 observed that the direction given in Criminal Appeal No.27 of 1989 be complied with in letter and spirit. Thereafter the learned trial Court proceeded to decide the case vide judgment dated 14-1-1999, hence, this appeal.

6. Occurrence in this case had taken place at 8-30 a.m. on 2-7-1985 within the revenue estate of Mitranwali which is at a distance of 8 miles from Police Station Daska, District Sialkot while the matter was reported to the police by Muhammad Anwar at 1-00 p.m. on the same day and the formal F.I.R. Exh.P.W. was recorded by Muhammad Khan S.-I./S.H.O.

7. Briefly stated the facts of the case as disclosed in the F.I.R. Exh.P.W. are that Muhammad Anwar complainant (since dead) was present along with his brothers Muhammad Sharif, Muhammad Rafique, Ghulam Rasool, Liaqat Ali, Muhammad Yaqoob sons of Allah Ditta, Mst. Bashiran Begum widow of Muhammad Rafique, Mst. Bashiran Begum wife of Muhammad Anwar, Zulfiqar Ali, Akbar Ali and Khan Muhammad at his Dera known as Dera Akbar Ali on 2-7-1985 at about 8-30 a.m., when accused (1) Munir Ahmad (since dead) armed with rifle 7 MM, (2) Javaid Iqbal armed with hatchet, (3) Tariq armed with rifle 7 MM, (4) Gulzar Ahmad alias Sagheer armed with hatchet, (5) Muhammad Arshad armed with hatchet (all sons of Sana Ullah), (6) Mehfooz. Ahmad armed with hatchet (P.0), (7) Kafayat Ullah armed with gun .12 bore (both sons of Muhammad Aslam) (8) Irshad Ahmad armed with .12. bore gun, (9) Ghulam Rasool armed with Sota; (both sons of Khushi Muhammad), (10) Nazar Muhammad, (11) Latif (both sons of Taj Din) armed with Sotas, (12) Mushtaq Ahmad armed with carbine, (13) Muhammad Rafique armed with Sota (both sons of Taj Din), (14) Zafar Ahmad son of Ghulam Qadir (since dead) armed with rifle 7 MM, (15) Nafees Ahmad son of Muhammad Ashraf armed with .12 bore gun, (16) Muhammad Aslam son of Ghulam' Nabi armed with Sota, (17) Imtiaz alias 1Bholo son of Mushtaq armed with Sota (18) Ajlees Ahmad son of Muhammad Ashraf armed with carbine, (19) Nazar.Muhammad son of Fateh Ali armed with Sota, (20) Javaid Ali son of Nazar Muhammad armed with hatchet and (21) Muhammad Yousaf son of Muhammad Afzal armed with revolver (since dead) reached at the Dera. They all raised Lalkara and encircled the Dera. All of a sudden Munir Ahmad accused (since dead) made a fire shot with 7 MM rifle which landed on the right cheek of Muhammad Sharif (deceased). Then Zafar Ahmad accused (since dead) fired a shot with

7. MM rifle hitting Muhammad Sharif (deceased in this case) on the left side of his chin. The fire-shot made by Kafayat Ullah accused with .12 bore gun landed on the legs of Muhammad Sharif and he fell down. Thereafter Tariq accused fired a shot with .7 MM gun which hit on the right upper arm of Muhammad Rafique (deceased in this case). Accused Nafees Ahmad fired a shot with his .12 bore gun landing on the left ear of aforesaid Rafique and he too fell down. Now it was the turn of Muhammad Yousaf accused (since dead) who fired a shot with' his revolver hitting on the right hand and finger of Ghulam Rasool (deceased in this case). Irshad Ahmad accused also fired a shot with his .12 bore gun hitting on right upper arm of aforesaid Ghulam Rasool. He also fell down. Now Mushtaq Ahmad accused fired a shot wit4 his .12 bore carbine, which hit Khan Muhammad (deceased in this case) on his forehead. Ajlees accused issued three shots from his carbine, which hit on the legs of aforesaid Khan Muhammad and he also fell down. According to F.I.R. Javaid Iqbal accused inflicted a hatchet blow on the head of Muhammad Sharif deceased when he was lying on the ground. According to the complainant Gulzar alias Sagheer gave a hatchet blow on the left cheek of Muhammad Sharif deceased. Similarly Ghulam Rasool accused gave a Sota blow on the left side of buttocks of Muhammad Sharif deceased. Accused Nazar Muhammad attacked with Sota on the backside of Muhammad Sharif. Arshad accused inflicted hatchet blow on the head of Muhammad Rafique (deceased in this case). Similarly, Javed son of Nazar Muhammad accused inflicted hatchet blow on the head of Muhammad Rafique. It was also alleged in the F.I.R. that Nazar Muhammad son of Taj Din caused Sota blow on the buttocks of Ghulam Rasool. Thereafter, Ghulam Rasool, Nazar Muhammad, Latif, Rafique all sons of Taj Din, Aslam Bholu and Nazar sons of Fateh Ali caused injuries with Sotas on the persons of Muhammad Sharif, Muhammad Rafique, Ghulam Rasool and Khan Muhammad. As a result of the injuries, Muhammad Rafique and Muhammad Sharif died at the spot while Ghulam Rasool and Khan Muhammad expired in the hospital. The motive alleged was that one Muhammad Sharif son of Muhammad Ghani sold out 15 Acres of land in favour of Irshad etc. Akbar son of Muhammad Sadiq through his attorney Muhammad Yaqoob filed a suit for pre-emption. The suit was decided in favour of Akbar Ali. The complainant party through legal process got possession of the said land and the accused party bore a grudge against them due to success of Muhammad Yaqoob. According to complainant, all the accused in furtherance of their common object committed the murder of Muhammad Sharif, Muhammad Rafique, Ghulam Rasool and Khan Muhammad.

8. Sub-Inspector Muhammad Khan (P.W.15) took over the investigation. He after recording of the F.I.R. proceeded to the hospital, moved an application. to the Medical Officer to the effect whether the injured were fit to make a statement but the answer was in the negative; from the hospital, the Investigator went to the place of occurrence, prepared inquest report Exh.PX of Muhammad Khan and that of Muhammad Sharif Exh.PY; he also prepared injury statements Exh.PX.1 and Exh.PY/1 respectively; he then inspected the spot in the presence of the witnesses; from there he took into possession the blood-stained earth from four different places vide memos. Exh.PR, Exh.PS, Exh.PT and Exh.PU; on receipt of information about the death of Ghulam Rasool in the hospital, the Sub-Inspector left for Civil Hosptial, Daska; prepared inquest report Exh.PZ, injury statement Exh.PZ/1 and started for the search of the accused. It was on 5-7-1985 that Khan Muhammad died in the hospital. His inquest report is Exh.PAA and injury statement Exh.PAA/1. Site plans with scale are Exh.PJ and Exh.PJ/1. Thereafter the investigation was conducted by Rai Muhammad Abdullah, Inspector (P.W.16). On 21-7-1985, he arrested Munir Ahmad, Javed, Iqbal, Saghir, Mahfooz and Zafar accused. During the course of interrogation, on 2-8-1985, Javed accused got recovered blood-stained hatchet P.6 from his haveli, which was taken into possession vide memo. Exh.PO. On the same day, Saghir accused led to the recovery of hatchet P.10 which was secured vide memo. Exh.PP. Similarly, on the same day, Mahfooz, accused got recovered hatchet P.11, which was secured vide memo. Exh.PQ. On 5-8-1985, Zafar accused got recovered broken rifle P.12 which was secured vide memo. Exh.P. Then on 8-8-1985, the investigator arrested Anwar, Basharat, Zulfiqar and Javed. Accused Anwar was also got medically examined. The accused during the course of investigation got recovered rifle P.13 which was secured vide memo. Exh.PCC. On the same day on the pointation of Muhammad Anwar accused got recovered Suzuki Pick-up, which was taken into possession, vide memo. Exh.PDD. Then the investigation was also carried out by Ghulam Muhammad. Kaliar, D.S.P., Hafizabad. After completion of investigation, the accused numbering 21 were sent to face the trial. At the trial, prosecution in order to prove its case produced 16 witnesses in all. Muhammad Yaqoob and Liaqat Ali, P.Ws: 7 and 8 (both real brothers) respectively furnished the ocular account. Dr. Mumtaz Ahmad Bhatti P.W. and Dr. Gul Nawaz P.W.2 examined the injured and also conducted post-mortem examination on the dead bodies of the deceased. The learned District Attorney tendered in evidence report of the Chemical Examiner (Exh.PEE, Exh.PEE/1), reports of the Serologist (Exh.PFF and Exh.PGG) and closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. pleaded false implication. After conclusion of the trial, (1) Nafees Ahmad, (2) Nazar Muhammad son of Fateh Ali, (3) Nazar son of Taj Din, (4) Muhammad Rafique, (5) Muhammad Latif, (6) Imtiaz alias Bholu, (7) Muhammad Aslam, (8) Irshad Ahmad and (9) Ghulam Rasool were acquitted while the above said seven appellants were convicted and sentenced as stated above. Sardar Muhammad Latif Khosa, Advocate for appellants who represents Ajlees Ahmad and Javed son of Nazar Muhammad, appellants 1 and 2 in Criminal Appeal No.151 of 1999 submits that both the appellants were found innocent during the course of investigation rather were got discharged by the police and against the said order of discharge, Criminal Miscellaneous No.236/Q of 1986 was filed, before the High Court by Muhammad Anwar, complainant against Muhammad Yousaf and Nafees Ahmad accused and the petition before this Court was disposed of with the observation to file a private complaint, if so advised but the learned trial Court also summoned Ajlees and Javed convict appellants along with seven others after recording statements of seven prosecution witnesses. Further submits that no recovery was effected from both the appellants. It is contended that according to F.I.R., Ajlees appellant was armed with a carbine and the shots fired by him hit on the leg of Khan Muhammad deceased but doctor P.W. in cross-examination stated that the injuries on the person of the deceased Khan Muhammad on his leg being injuries 26, 27 and 28 were with bullet, learned counsel has also drawn our attention to page 35 of the paper book to submit that there were in all five injuries on the person of Muhammad Rafique (deceased) and that according to doctor who conducted post-mortem examination on the dead body of deceased, Injuries Nos.1 and 2 were individually and collectively were sufficient to cause death in the ordinary course of nature. Learned counsel submits that Arshad, convict appellant who was PO was arrested later on, tried and after conviction and sentence was sentenced to imprisonment for life for the same type of injury which was attributed to Javed son of Nazar Muhammad, convict appellant and he has filed Criminal Appeal No.395 of 2005. At this stage, Mr. S.M. Nazim, learned counsel for the complainant submits that notice for enhancement of sentence has been issue to Arshad, convict appellant. Coming to motive part of the case, learned counsel submits that both the appellants were not concerned with the motive; neither were they party to the pre-emption suit nor they were occupiers of the land. According to learned counsel, the appellants were falsely implicated being near relatives of Irshad son of Khushi Muhammad but said Irshad has been acquitted by the trial Court and appeal against his acquittal is pending and was ordered to be heard along with the appeals of convict appellants. Next submits that acquitted Irshad Ahmad had already handed over possession of the questioned land to the complainant party and in the proceedings of warrant of possession, Irshad son of Khushi Muhammad was present at the time of Dakhl and he had sworn an affidavit to the effect that he had not filed any appeal nor had obtained stay order. According to learned counsel, Irshad acquitted accused and his relations had no grudge or grouse against the complainant party and that in fact the occurrence had taken place in Khasra Nos.115 and 116 and at the time of occurrence, the possession was with Munir appellant and that this was the motive which came to light during the course of investigation. Adds that defence of Munir and others appellants was that in fact the complainant party while armed with different weapons came at the spot in order to take forcible possession of Khasra Nos.115,and 116, so this occurrence took place. It is submitted that there are two sets of accused, one Munir and his relations including those 11 challaned by the police though not named in the F.LR. and from one of the accused namely Anwar who got recovered gun vide memo. Exh.PCC belonging to Ghulam Rasool deceased and other Irshad and his relatives but they had no grudge so there was no question of their taking part in the occurrence. It is argued with vehemence that eye-witnesses namely Muhammad Yaqoob and Liaqat Ali, P.Ws. 7 and 8were not present. According to learned counsel, Muhammad Yaqoob whose father had purchased, five acres of land and he was pursuing the suit for pre-emption for 11 years, so had Muhammad Yaqoob eye-witness been present at the time of occurrence, he should have been the main target of the assailants. Further argues that when there are 21 accused, some are armed with fire-arms, some with hatchets, it was very difficult rather impossible for the eye-witnesses to have stated as to whose fire or blow either with Sota or hatchet, landed on which specific part of the victims. Adds that according to record the dead bodies of Khan Muhammad, Ghulam Rasool and Muhammad Rafique deceased were found in the chari crop which was on man's height so it was not possible for the eye-witnesses to have witnessed the occurrence and give a video camera photography of the incident. It is argued that F.I.R. was recorded after due deliberation and consultation, as such it cannot be treated as a sacrosanct document. Elaborating his argument, learned counsel submits that Zulfiqar Ali, P. W .5 have stated before trial Court that F.I.R. was recorded at the spot although according to whole case of the prosecution F.I.R. was recorded at the police station. It is maintained that on the same set of evidence nine co-accused of the appellants; named in the F.I.R. and assigned specific roles, have been acquitted by the trial Court and there is no independent rather no corroboration to maintain conviction and sentence against the appellants. Concluding his submissions, learned counsel for the appellants submits that prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal. Mr. Muhammad Anees Khatana, Advocate representing Muhammad Arshad, respondent in Criminal Revision No.395 of 2005 to whom notice for enhancement of sentence has been issued and he has not filed any appeal against his conviction and sentence, submits that the appellant was found innocent during the course of investigation, no recovery was effected, he was not arrested by the police and he went away to Karachi and was arrested on 11-5-1991 and after conclusion of the trial, was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life vide judgment dated 7-3-2005. In this view of the matter, according to learned counsel, the respondent Arshad had remained in jail for 15 years and 10 months and there is expectancy of life and if at this stage, his sentence is enhanced from imprisonment for life to death, it would amount to double jeopardy which is not warranted by law. Learned counsel also submits that there is conflict between ocular account and the medical evidence qua the convict respondent Arshad inasmuch as according to F.I.R., Javed son of Nazar Muhammad, Arshad, present respondent and Mahfooz, since acquitted, gave one injury each on the head of the deceased Muhammad Sharif but in fact there were two injuries with sharp edged weapon existing on the dead body. Syed Talib Haider Rizvi, Advocate representing Mushtaq appellant in Criminal Appeal No.151 of 1999 as also Kafayat Ullah appellant in Criminal Appeal No.19 of 1999 submits that Kafayat Ullah after having served out his full term of sentence, that is, Imprisonment for life, has been released from jail. So far as Mushtaq, convict appellant is concerned, it is submitted that according to F.I.R., the convict was while armed with a carbine fired a shot which hit on the forehead of Khan Muhammad, deceased. Learned counsel submits that his whole arguments hinge on a single sentence and that is if there is exaggeration even if in the statement of an injured eye-witness but there is some doubt with regard to veracity of such a statement, then for the safe administration of criminal justice, it is proper to insist on independent corroboration. For this proposition of law, he has relied upon PLD 1960 SC 387, PLD 1977 SC 413 and 1992 SCMR

96. According to learned counsel, from the evidence on record, it is established that independent corroboration to the statements of the eye-witnesses namely P.Ws. 7 and 8 respectively is lacking in the instant case as the eye-witnesses are interested and inimical towards the appellants. Mr. S.M. Nazim, Advocate for the complainant assisted by .Mr. S.D. Qureshi, Advocate for the State submits that Muhammad Yaqoob P.W.7 (complainant) is the person who transported Ghulam Rasool (deceased) in an injured condition to the hospital and the name of P.W.7 finds mention in the relevant column of the MLR and also in the statement of the doctor who medically examined the injured. It being so according to learned counsel, the presence of Muhammad Yaqoob (P.W.7) at the place of occurrence cannot by any stretch of imagination be denied. It is submitted that though both the eye-witnesses P.W.7 and 8 are real brothers inter se but they had no enmity or ill-will against the appellants. Learned counsel submits that it is wrong to get the impression that the dead bodies of the deceased were lying in chari crop which was a man's height. To support this argument, learned counsel has drawn our attention to page 78 of the paper book and also statement of Muhammad Yaqoob P.W.7 to submit that charri crop was of 2" height. Reference has also been made to page 100 of the paper book to submit that in fact the field where the charri crop was of man's height was the place, from where the eye-witnesses witnessed the occurrence. With regard to motive part of the case, learned counsel has taken us to pages 289 and 292 of the paper book to submit that a perusal of Exh.PV/1 and Exh.PV/2 sufficiently shows that for all intents and purposes, the complainant party had taken the possession of the land as a result of pre-emption decree in their favour. A reference was also made to page 358 of the paper book which is an affidavit sworn by Irshad Ahmad accused (since acquitted) to the effect that appeal filed by him has been dismissed and neither he intends to file an appeal nor any appeal is pending. So far as Criminal Revision No.395 of 2005 in which notice was issued for enhancement of sentence to the respondent Arshad is concerned, learned counsel submits that fatal injury on the forehead of Khan Muhammad deceased was attributed to him and the reasons given by the trial Court for lesser penalty are alien to law and are not cogent one. According to learned counsel, Arshad respondent remained absconder for more than six years and was arrested in the year 1991 so non-recovery of any incriminating" article from him was natural. It is submitted that if the sentence of Arshad respondent .is not enhanced, it would amount to giving him the premium of his misdeeds. While coming to the submission made by the defence counsel that at this stage when Arshad has already served out more than 15 years incarceration, to award him the sentence of death would amount to double jeopardy, learned counsel for the complainant has relied upon PLD 2006 SC

365. Both the learned counsel in nutshell submit that the prosecution has proved its case against the convicts. According to learned counsel, it is also a case of unlawful assembly and all the accused in prosecution of their common object, committed the murder of four deceased. We have heard learned counsel for the parties at a great length and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 8-30 a.m. on 2-7-1985 at the Dera of Akbar Ali, within the revenue estate of Mauza Mitranwali which is at a distance of 8 miles from Police Station Daska, District Sialkot while the matter was reported to the police by Muhammad Anwar at 1-00 p.m. on the same day and the formal F.I.R. Fxh.P.W. was recorded by Muhammad Khan S.-I./S.H.O. The names of the accused and the roles they played with the weapons of offence are' mentioned therein, so it is a case of promptly lodged F.I.R. The complainant in this case is Muhammad Anwar who was later on murdered and did not appear before the trial Court. The deceased in this case are (1) Muhammad Sharif, (2) Muhammad Rafique, (3) Khan Muhammad and (4) Ghulam Rasool. In all 21 accused were initially named in the F.I.R.; nine were got discharged by the police; later on 11 accused who were not named in the F.I.R. were also challaned and the challan was against 23 accused; Basharat Ali accused died before the trial; charge was framed against 22 accused; after the evidence of seven P.Ws. was complete, the discharged accused nine in number were also summoned by the trial Court. Thereafter in all 31 accused were charge-sheeted including three Pos. namely Mahfooz son of Aslam, Javed son of Malak and Zulfiqar son of Asghar on 26-12-1987. The case was decided by the trial Court vide judgment dated 30-12-1987. In appeal, the matter was remanded vide judgment dated 23-7-1988. Again the learned trial Court decided the matter vide judgment dated 19-1-1989. Again the appeal by this Court was allowed and matter remanded vide judgment dated 21-6-1993 and finally the case was entrusted to learned Additional Sessions Judge Gujranwala who decided it vide judgment dated 14-1-1999, now impugned. The eye-witnesses were Liaqat Ali, Muhammad Yaqoob, Muhammad Rafique, Ghulam Rasool, Muhammad Sharif, Khan Muhammad, Mst. Bashiran widow of Rafique, Mst. Bashiran wife of Muhammad Anwar, Zulfiqar Ali and Akhtar Ali but before the trial Court Liaqat Ali and Muhammad Yaqoob (P.Ws. 7 and 8 respectively) appeared. After conclusion of the trial vide judgment dated 14-1-1999, Mushtaq, Ajlees, Javed and Saghir were sentenced to death on four counts. Saghir convict during pendency of the appeal died. Criminal Appeal No.108 of 1999 to the extent of Saghir alias Gulzar stands abated. The remaining three convicts have filed Criminal Appeal No.151 of 1999. It is admitted on all hands that Kafayat Ullah Javaid Iqbal and Tariq, convicts - who were sentenced to imprisonment for life have completed their full term of sentence and stand released from the jail. Criminal Appeal No.19 of 1999 to the extent of Javaid Iqbal and Tariq has been rendered infructuous. Similarly, Criminal Appeal No.19 of 1999 filed by Kafayat Ullah appellant has been rendered infructuous. Javaid Iqbal, Kafayat Ullah and Tariq were sentenced to Imprisonment for life. Muhammad Arshad who fired fatal shot with carbine on the forehead of Khan Muhammad deceased, remained absconder and was finally arrested on 11-5-1991, trial started and vide judgment dated 7-3-2005 he was sentenced to imprisonment for life. He did not appeal but the complainant filed Criminal Revision No.395 of 2005 which was admitted to regular hearing and notice for enhancement of sentence was issued to him. The motive behind the occurrence was that Muhammad Hanif resident of Mitranwali had sold 15 Acres of land to Irshad and others but Akbar son of Sadiq filed a suit for pre-emption through Muhammad Yaqoob, as general attorney. After 11 years, the suit was decided in favour of Akbar Ali and as a result thereof, possession of the suit-land was taken through legal means by the complainant. According to complainant, the accused had grudge that Muhammad Yaqoob had won the case and due to that grudge, the accused party attacked upon the complainant party. The main stress of arguments of learned counsel for the appellants was that physical possession of Khasra numbers 115 and 116 was not handed over to the complainant party and the appellants was still in possession of the suit-land. We may state here that there were. two sets of accused; one namely Munir accused who has already died but their claim was that the suit-land was still in their possession and the complainant party along with 50/60 other persons while armed with different weapons tried to take forcible possession of Khasra numbers 115 and 116 and the second set of accused was Irshad and Ghulam Rasool who had handed over possession to Akbar Ali and now they had no grudge but admittedly had handed over possession and this fact finds mention at page 358 of the paper book which is Exh.DE and is affidavit sworn by Irshad Ahmad to the effect that appeal filed by the deponent has been dismissed; no appeal is pending before any Court and that he does not intend to file any appeal. We have also gone through Exh.PV/2 at page 292 of the paper book. It is warrant in favour of bailiff to take possession of the land and hand it over to Akbar Ali, the decree-holder. It is dated 10-6-1985. It is also mentioned in this document that possession of the land Khasra numbers of which have been written therein has been handed over to the decree-holder on 11-6-1987. Moreover, this document Exh.PV/2 has been signed at least by 8 persons including Muhammad Yaqoob P.W.7. This document further shows that possession of Khasra numbers 115 and 116 has been handed over to the complainant party. The stance of Munir Ahmad accused was that it was the complainant party along with 50/60 other persons who had come armed to take forcible possession of the land but the fact remains that not a single person from the side of the accused party received a scratch, so in our opinion no right of self-defence accrues to the appellants who took the lives of four persons. The number of injuries on the persons of four deceased are more than 60 with fire-arm, sharp edged weapon and also with blunt weapon and they coincide with the number of accused. Although the police had declared nine accused persons as innocent but after recording evidence of seven P.Ws., the trial Court also summoned the nine discharged accused. It is settled by now that Courts are not bound by the opinion of the Investigating Agencies but they are to base the decision on the basis of evidence brought before them. ??????????? Both the eye-witnesses P.Ws. 7 and 8 are real brothers inter se but they had no enmity or ill-will against the appellants except that of litigation which was pending and ended in favour of the complainant party. Both have fully supported the case of prosecution. Muhammad Yaqoob P.W.7 is the person who had transported deceased Ghulam Rasool when he was in injured condition to hospital and his name finds mention in the relevant column of the MLR and also in the statements of the doctor who medically examined Ghulam Rasool when he was brought to the hospital in injured condition. His presence at the spot thus cannot be doubted without a pinch of salt. We therefore, believe the ocular account furnished by Muhammad Yaqoob and Liaqat Ali P.Ws. 7 and 8 respectively. The law of the land is that in a murder case, conviction can be based on the solitary statement of a witness if the Court is satisfied that he is reliable. Reliance is placed on 2003 SCMR

884. We may also state here that rule of independent corroboration is not an absolute and mandatory rule to be applied in each case rather it is a rule of abundant caution which is applied in the case in which the direct evidence is not of the standard which alone can be considered sufficient for conviction. Reference can be made to 2003 SCMR

581. After having gone through the evidence on record and attending to the submissions made by learned counsel from both the sides we are of the considered opinion that it was a case of unlawful assembly and the accused in prosecution of their common object committed the murder of four deceased in a brutal manner in order to get forcible possession of the land which was handed over to the complainant through the legal proceedings. As a result of above discussion it is held that-conviction and sentence recorded against Mushtaq, Ajlees and Javed appellants by the trial Court vide impugned judgment is maintained in toto. Their death sentence is confirmed and Murder Reference to their extent is replied in the affirmative. Appeal, to his extent, reference stands abated. Tariq and Javed appellants who were sentenced to Imprisonment for life and are appellants in Criminal Appeal No.108 of 1999 are being represented by Mr. Asghar Khan Rokhri, Advocate. On behalf of Mr. Rokhri, Ms. Tahseen Zaka Fatima, Advocate has submitted that Javed Iqbal son of Sanaullah and Tariq son of Sanaullah, appellants have been released from jail after having served their full term of sentence. The complainant for enhancement of their sentence had filed Criminal Revision No.321 of 1999 which was ordered to be heard along with criminal appeal filed by the convicts against their conviction.' The matter relates to year 1985. Thrice the case was remanded. So at this stage it will not be proper to issue them the notice for enhancement of sentence. Criminal Revision No.321 of 1999 is therefore dismissed. The complainant has also filed an appeal against the acquittal of 12 respondents. We have gone through the reasons give by the trial Court for acquittal; those are based on evidence on record and are neither perverse nor arbitrary fanciful or foolish therefore no exception can be taken thereto. Moreover the matter relates to year 1985. The judgment of acquittal is dated 14-1-1999. More than six years have passed. An accused after his acquittal by a Court of competent jurisdiction enjoys double presumption of innocence in his favour and Court of appeal against acquittal is to be very careful in dislodging such presumption. No case is thus' made out and Criminal Appeal No.148 of 1999 is dismissed. Now, we take up Criminal Revision No.395 of 2005 filed by Muhammad Yaqoob, an eye-witness of the occurrence. We may mention here that Muhammad Arshad convict has not filed any appeal against his conviction but in the revision filed by the Muhammad Yaqoob, P.W.7 for enhancement of sentence, notice was issued to him. Muhammad Arshad, respondent remained absconder and ultimately was arrested in 1991. Muhammad Rafique deceased had received two injuries with hatchet on his forehead one was given by Muhammad Arshad, present respondent and other by Javed son of Nazar Muhammad who was sentenced to death by the trial Court. The reason given by the trial Court for awarding lesser sentence to Muhammad Arshad that no recovery was effected from him is ill founded for the reason that the convict respondent remained absconder for six years so there was no question of recovery from him. The question to be determined now is that when Muhammad Arshad had served more than 15 years incarceration, whether at this stage his sentence can be enhanced, the answer is in the positive for the reason that he himself was responsible for this long delay having remained absconder. Had he not absconded and arrested earlier as his co-accused, he would have been tried along with them and awarded the same punishment which was awarded to Javaid son of Nazar Muhammad, accused. There is no bar on this Court under Article 13 of the Constitution to enhance the sentence from imprisonment for life to death even after 15 years incarceration and that would not amount to double jeopardy as ruled in PLD 2006 SC

365. The role of Muhammad Arshad is similar to that of Javaid Ali son of Nazar Muhammad who was sentenced to death by the trial Court and we have maintained the same. So on the rule of consistency also apart from the above facts, we accept the revision petition and enhance the sentence of Muhammad Arshad respondent from imprisonment of life to death. All the five connected appeals/revisions stand disposed of in the above terms. H.B.T./J-5/L??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.