1994 P Cr (PLP)

SH. MUHAMMAD ZUBAIR, J.

A case had been registered against thirteen persons, namely Anwar Khan and Munawar Khan sons of Ameer Khan, Attaullah son of Anwar Khan, Muzaffar Khan son of Hayat Khan, Nasrullah and Zulfiqar sons of Muzaffar Khan, Irshad Khan son of Mumtaz Khan, War Khan son of Nazeer Khan; Afzal son of Abu Samand, Shaukat son of Muhammad Ali, Rehman son of Bahu, Khizar son of Akbar Khan and Nasrullah Khan son of Nazeer Khan, vide F.I.R. No.43, dated 19-8 1991, at Police Station Lakisan, under section 302/324/148/149, P.P.C., for the murders of Murid Hussain, his father Muhammad Yar, Muhammad Zulfiqar, Mst. Nusrat, Mst. Tanvir Fatima and Mst. Bushra and for murderous assault on Khizar Hayat (P.W.5), Shaukat P.W.6 and Mst. Shameem (given up witness). One of the accused, Nasrullah Khan son of Nazeer Khan absconded and his case was separated under section 512, Cr.P.C. Consequently, twelve persons were tried by the learned Judge, Special Court for Speedy Trials No.II, Lahore, who vide his judgment, dated 10-2-1993, acquitted Ataullah son of Anwar Khan. Muzaffar Khan son of Hayat Khan, Shaukat son of Muhammad Ali, Rehma son of Bahu and Khizar son of Akbar Khan of the charges, but convicted and sentenced the remaining seven accused, namely, Anwar Khan, Munawar Khan, Nasrullah, Zulfiqar, Irshad, Zafar Khan and Afzal as under:-- (1) Nasrullah. Irshad Zafar and Afzal. under section 302(b)/149, P.P.C. on six counts for the murders of Murid Hussain, Muhammad Yar, Mehmand, Zulfiqar, Mst. Nusrat and Mst. Tanvir Fatima and sentenced them to suffer death under each count. (2) Zulfiaar. Anwar Khan and Munawwar Khan under section 302(b)/149, P.P.C. on six counts for the murders of Murid Hussain, Muhammad Yar, Mehmand, Zulfiqar, Mst. Nusrat and Mst. Tanvir Fatima and sentenced them to imprisonment for life under each count. The above-named seven accused were also directed to pay RS.50,000 each under each count to the legal heirs of the deceased. They were also convicted under section 148, P.P.C. and sentenced to three years' R.I. They were further convicted under section 337-F(vi)/149, P.P.C. for causing injuries Shaukat P.W., and sentenced to five years' R.I. and also directed to pay Rs.5,000 each as Daman to the injured P.W. They were further convicted under section 337-F(v)/149, P.P.C. for causing to injuries to Mst. Shamim and sentenced to five years' R.I. and also directed to pay Rs.5,000 each as Daman t8 the injured lady. The sentences of ddath awarded to Nasrullah, Irshad, Zafar and Afzal under section 302(b)/140, P.P.C. shall not be executed until confirmed by this Court and their sentences under sections 337-F(vi)/149 and 337-F(v)/149, P.P.C. shall operate only if their sentences to death are not confirmed. The Wali of Mst. Bushra deceased, namely, Mst. Bashiran waived her right of Qisas; hence the accused were acquitted of the murder of Mst. Bushra deceased. The aforesaid convicts have challenged their convictions and sentences through the present appeal.

2. It may be observed that except Afzal appellant and Rehma acquitted accused, the remaining accused are closely related to each other. Munawar and Anwar appellants are real brothers and so are Zulfiqar and Nasrullah appellants. Zulfiqar appellant is son-in-law of Anwar appellant. Zafar appellant and Nasrullah absconder are sister's sons of Anwar and Munawwar appellants. Irshad appellant is also the sister's son of Anwar and Munawwar appellants. He is also son-in-law of Anwar appellant. Sister of Irshad appellant is married to Shaukat acquitted accused and sister of Shaukat is married to a brother of Irshad appellant. Sister of Khizar acquitted accused is married to Munawar appellant. Similarly, the complainant party is related to each other. Mureed Hussain deceased was son of Muhammad Yar deceased. Khizar Hayat P.W. is brother of Muhammad Yar. Mst. Tanvir Fatima deceased was daughter of Murid Hussain deceased. Mehmand deceased was a servant of Khizar Hayat P.W. Mst. Nusrat aged 7-9 years and Zulfiqar deceased aged 2-4 years, were children of Shameer, Shaukat injured P.W. is son of a cousin of Khizar Hayat P.W. while Mst. Shamim injured is wife of Shaukat P.W. Even both the parties are related to each other. Muhammad Ali father of Shaukat accused was a stepbrother of Khizar Hayat P.W. and Muhammad Yar deceased. Murid Hussain deceased was brother-in-law of Zafar Khan appellant.

3. As for the motive, it is alleged that Shaukat acquitted accused had a dispute with his uncles Khizar Hayat P.W. and Muhammad Yar deceased over the division of land. Some days before the present occurrence, the respectables divided their property as Arbitrators and got the dispute compromised. Shaukat accused did not stick to the decision. On 19-8-1991, at about noon time, he wanted to plough the land which had fallen to the share of Muhammad Yar deceased and Khizar Hayat P.W. They stopped him from doing so. On account of that the accused party bore grudge and it ultimately resulted into the present occurrence.

4. As for the main occurrence, it is alleged that on 19-8-1991, at about 4-00 p.m., Khizar Hayat P.W., Muhammad Yar, Murid Hussain and Mehmund deceased and Shaukat P.W. got up from the Dera of Nazar Hussain, Lumbardar and were on their way to their houses. When they reached at a distance of 9/10 Karams from the mosque, the appellants and the acquitted accused and also Nasrullah absconder, emerged from the lane which was close to the mosque. Nasrullah, Irshad and Zafar appellants were armed with guns. Afzal appellant and Nasrullah absconder were armed with hatchets whereas the remaining accused with sticks. They shouted that they would teach them lesson for stopping them from ploughing the land. Ataullah acquitted accused grappled with Murid Hussain deceased and felled him on the ground. Afzal appellant inflicted a hatchet blow on Murid Hussain deceased which landed 8n the left side of his neck. Anwar Khan appellant inflicted a stick blow on the head of Murid Hussain deceased whereas Nasrullah absconder gave a hatchet blow to Murid Hussain deceased on his left leg. Muzaffar Khan acquitted accused felled Muhammad Yar deceased by holding his, legs,, whereas Munawwar Khan appellant inflicted a stick blow on his head. Nasrullah appellant fired shot which hit Muhammad Yar deceased on his left leg. He fired another gunshot which hit Zulfiqar deceased. His third shot hit Muhammad Yar deceased on the left leg. Irshad appellant fired gunshot which his Mst. Bushra deceased. His second fire hit Mehmand deceased and the third one hit Shaukat P.W. Zafar Khan appellant fired Short which hit Mst. Tanvir Fatima deceased. His second shot hit Mst. Shameem while his third shot hit Mst. Nusrat deceased. During the incident, Anwar appellant also received gunshot injuries at the hands of his co-accused. Zulfiqar appellant gave a stick blow to Khizar Hayat P.W. on his left hand. Khizar Hayat P.W. and Mehmund deceased snatched the sticks from the accused. Khizar Hayat P.W. inflicted one sticks blow to Afzal appellant while Mehmand deceased inflicted four stick blows on Munawwar appellant. The occurrence was witne4sed by Dost P.W. and Nazeera given up P.W. They beseeched the accused party and rescued the complainant party. On account of injuries caused by the accused party, Murid Hussain, Muhammad Yar, Mst. Bushra, Mst. Tanvir Fatima and Zulfiqar died at the spot, Mehmund and Mst. Nusrat died in the hospital, the same day. Khizar Hayat P.W., Shaukat P.W. and his wife Mst. Shamim received injuries during the occurrence.

5. After the occurrence Khizar Hayat P.W. reached Police Station Laksian after covering a distance of five miles and lodged F.I.R. Exh.P.O., the same day at 5-00 p.m. which was recorded by Sarfraz Khan, Inspector/S.H.O. (P.W.12). Khizar Hayat P.W. was injured. The S.H.O. prepared his injury statement Exh.P.X. and got him medically examined. Thereafter, the S.H.O. reached the spot alongwith Khizar Hayat. The S.H.O. prepared the injury statements of Mehmand, Mst. Nusrat deceased, who were then alive, Shaukat P.W. and Shamim (not produced) and sent them to the hospital for medical examination. He also prepared the injury statements and inquest reports of Muhammad Yar. Murid Hussain, Mst. Tanvir Fatima, Zulfiqar and Mst. Bushra and sent the dead bodies for post-mortem under the escort of Noor Khan F.C. He collected blood-stained earth from the nine places where the five deceased and four injured persons were caused injuries and sealed into separate parcels. He recovered three empties from where Zafar appellant fired shots vide memo. Exh.P.R. He also recovered three empties from when: Nasrullah fired shots vide memo. Exh.P.R./1. He recovered three empties from where Irshad appellant fired shots vide memo. Exh.P.R./2. He received information about the death of Mehmand and Mst. Nusrat. He prepared their injury statements and inquest reports and sent the dead bodies for post mortem examination under the escort of Noor Khan F.C. He also recorded the statements of the witnesses. He was transferred on 19-8-1991 and the investigation was taken over by Ziaullah, Inspector (P.W.13). On 19-8-1991. Khizar Hayat P.W.1 produced stick P.1 before him which was taken into possession vide memo. Exh.P.P. He arrested Anwar Khan appellant on 20-8-1991. He had injuries on his person. The Inspector prepared his injury statement Exh.P.GG. At that time he was carrying stick P.17, which was taken into possession vide memo. Exh.P.HH. War appellant was arrested on 23.8.1991, whereas Munawwar Khan, Afzal appellants and Ataullah, Khizar, Shaukat and Rehma since acquitted were arrested on 24-8-1991. Munawar and Afzal appellants had injuries on their persons. He prepared their injury statements and sent them for medical examination. On 1-9-1991; Zafar appellant produced D.B. licensed gun P.5 of his brother Nasrullah (absconder) and a bag P.6 containing six cartridges P.7/1-6. These articles were taken into possession vide memo. Exh.P.S. Munawar appellant produced blood-stained Sota P.9 which was taken into possession vide memo. Exh.P.T./1. Afzal appellant produced blood-stained hatchet P.8, which was sealed into parcel vide memo. Exh.P.T. On 1-9-1991, Zulfiqar appellant and Muzaffar Khan (since acquitted) appeared before the Inspector. Zulfiqar appellant produced stick P.10 which was taken into possession vide memo. Exh.P.T./2. The Inspector also arrested Nasrullah and Irshad appellants on 1-9-1991. Nasrullah got recovered gun P.15 on 7-9-1991 which was taken into possession vide memo. Exh.P.T./7. On 7-9-1991, Irshad appellant got recovered gun P.14 from his house which was taken into possession vide memo. Exh.P.T./6. Nasrullah son of Nazeer absconded and he was declared proclaimed offender. Ziaullah, Inspector them completed the investigation and submitted the challan against the appellants and the acquitted accused. However, the name of Nasrullah absconder was shown in column 2 of the challan.

6. On 19-8-1991, Dr. Ejaz-ul-Haq (P.W.2) medically examined Mst. Nusrat when she was alive, Shamim - (given up witness) Khizar Hayat P.W.5 and Shaukat P.W.6 and found the following injuries on their persons:-- (1) Mst. Nusrat Three fire-arm wounds. The injured was completely unconscious. (2) Mst. Shamim Four fire-arm wounds. Injury No.3 which was a fire-arm wound on the inner side of right leg lower part was declared simple, whereas the remaining injuries were kept under observation. After X-ray injury No.4 which was a fire-arm wound of entry on the front and inner side of left toe was declared Ghair Jaifah Hashimah while injuries Nos.l and 2 were declared simple. (3) Shaukat P.W. Four fire-arm wounds. All the injuries were kept under observation and X-ray was advised. On X-ray two of injuries were declared Ghair Jaifah Munaqqilah and the remaining two were declared as simple. (4) Khizar Hayat P W He had a swelling in an area of 6 c.m. x 5 c.m. on back of left hand including wrist joint. The injury was caused by blunt weapon and after X-Ray was declared as simple. The same doctor also examined Anwar Khan, Munawar Khan and Afzal appellants. Anwar Khan had five circular wounds and one lacerated wound. The injuries were caused by fire-arm and were kept under observation. After X-ray, four of the injuries were found simple. With regard to injury No.2, the doctor stated that right eye of the injured was faulty and it was declared as Itlaf-i-Salahiyyat-i-Udw. Munawar Khan appellant received two lacerated wounds and two swellings. The injuries had been caused by blunt weapon and were declared as Shajjah-i-Khafifah. Muhammad Afzal appellant had a lacerated wound on the top of his head. The injury was caused by blunt weapon and was declared s Shajjah-i-Khafifah.

7. Dr. Ejaz-ul-Haq (P.W.2) also conducted the p si- mortem examination on the dead bodies of the deceased persons. The injuries noticed by him thereon and his observations are given below in brief. (1) Murid Hussain-deceased He received two incised wounds and a lacerated wound. In the opinion of the doctor injury No.2, which was caused by sharp-edged weapon, and was an incised wound 9 c.m. x 2.5 c.m., going very deep upto the cervical bone on back of left side of neck with cut fracture of cervical bone, was sufficient to cause death in the ordinary course of nature. ' Time between injuries and death was within few minutes. (2) Mst..Bushra deceased She received a fire-arm wound 1.2 c.m. x 1 c.m. going deep. Margins were inverted on the inner and upper part of the left eyebrow. It was a wound of entry and according to the doctor was sufficient to cause death in the ordinary course of nature. Time between injury and death was within thirty minutes. (3) Mst. Nusrat deceased She received three fire-arm wounds. Two were wounds of entry and one was wound of exit. One pellet was recovered from left hemyserebrum in occipital lobe of the brain. The injuries were ante-mortem. Death was due to severe haemorrhage, damage to lung and brain and shock. The injuries were sufficient to cause death in the ordinary course of nature. Time between injuries and death was within three hours. (4) Zulfiaar deceased He received two fire-arm wounds, one was 1.2 c.m. x 1 c.m., going deep, on the front of left side of skull. Margins were inverted. It was a wound-Of entry, and the other was 1 c.m. x 1 c.m. on the left side of base of neck. Margins were inverted. It was a wound of exit. The injuries were ante-mortem and caused by fire-arm. Death was due to haemorrhage and shock and due to severe brain damage. The injuries were sufficient to cause death in the ordinary course of nature. (5) Mst. Tanvir Fatima deceased She received three fire-arm wounds. Two were wounds of entry and one was wound of exit. A pellet was recovered from right hemisphere brain (middle part). The injuries were ante-mortem and caused by fire-arm. Death was due to severe brain damage, haemorrhage and shock. The. injuries were sufficient to cause death in the ordinary course of nature. Time between injuries and death was within thirty minutes. (6) Mehrnund deceased He received as many as eight fire-arm wounds. Four were wounds of entry and four were wounds of exit. All the injuries were ante-mortem and caused by fire-arm. Death was due to haemorrhage and shock. The injuries were sufficient to cause death in the ordinary course of nature. Time between injuries and death was within two hours. (7) Muhammad Yar deceased He received one lacerated wound on the right side of skull, caused by blunt weapon, four fire-arm entry wounds and five wounds of exit. All the injuries were ante-mortem. Death occurred due to haemorrhage and shock. The injuries were sufficient to cause death in the ordinary course of nature.

8. The prosecution in order to prove its case produced thirteen witnesses. Khizar Hayat complainant (P.W.5), Shaukat. injured (P.W.6) and Dost Muhammad (P.W.7), gave the ocular version of the incident. Muhammad Saleem, Draftsman (P.W.8) prepared site plans Exhs.P.U. and P.U./1 Ejaz-ul Haq (P.W.2) conducted the post-mortem examination and also medically examined the injured P.Ws. and the injured appellants. Muhammad Sarfraz Khan, S.H.O. (P.W.12), recorded the F.I.R. Exh.P.O. and partly investigated the case. Ziaullah, Inspector/S.H.O. (P.W.13) also investigated the case and after completion of investigation submitted the challan. The evidence of the remaining witnesses is of formal character. After the close of prosecution evidence, the learned Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.KK. regarding blood-stained earth, report of the Serologist Exh.P.LL. with regard to blood-stained earth, report of the Chemical Examiner Exh.P.MM. and report of Serologist Exh.P.NN. regarding blood-stained hatchet and stick and report of Forensic Science Laboratory, Exh.P.QO. with regard to the fire-arm.

9. The appellants in their statements under section 342, Cr.P.C. denied the prosecution allegations, professed innocence and stated that they had been involved in this case falsely on account of their relationships with Shaukat accused (since acquitted). No evidence was produced in defence.

10. The learned trial Judge disbelieved the evidence of Dost Muhammad P.W. He believed the ocular version of the incident furnished by Khizar Hayat (P.W.5) and Shaukat injured (P.W.6) fortified by the medical evidence. He also placed reliance on the report of Forensic Science Laboratory Exh.P.00., who opined that the crime empties recovered from the spot matched with the guns recovered at the instance of Nasrullah Khan, Irshad Khan and Zafar Khan appellants and hence convicted and sentenced the appellants as indicated above.

11. The learned counsel for the appellants submitted that in this case the F.I.R. was recorded after preliminary investigation as is apparent from the delayed post-mortem of the dead bodies of the deceased persons; the motive lies with the complainant party to attack the accused party; hence the learned Judge has erred in law while holding the appellants as aggressors. The version given by the eye-witnesses is unbelievable, because they have given the description of each and every injury received by each one of the deceased and the injured P.Ws. in a photographic manner which is highly improbable and it leads to this inference that they were tutored and they narrated whatever they were tutored like a parrot and it would not be safe to place reliance on their uncorroborated testimony which is, of course, contradicted by the medical evidence, as in all the recoveries. Dost Muhammad (P.W.7) and Nazeera (not produced) appeared as a recovery witnesses; hence the matching of crime empties with the guns recovered at the instance of three of the appellants does not advance the case of the prosecution so far as their guilt is concerned; that the matter was finally compromised between Shaukat acquitted accused on the one hand and Khizar Hayat (P.W.) and Muhammad Yar deceased on the other, by the Arbitrators and the complainant party in order to take forcible possession of the piece of land which fell to the share of Shaukat accused committed the aggression, as is apparent from the injuries sustained by Munawar Khan and Afzal appellants. It is a case of two versions in which both the parties received injuries at the hands of each other and the learned Judge has erroneously come to the conclusion that the appellants were aggressors and they caused injuries to the deceased and the injured P.Ws. without an5 rhyme and reason, after discarding their defence version which is being fortified by the circumstantial evidence, as two of the appellants also received injuries in the transaction, which remained unexplained by the prosecution.

12. Learned counsel for the State has supported the impugned judgment.

13. We have gone through the record minutely with the able assistance of the learned counsel for the parties and have critically considered their respective submissions. Admittedly, the occurrence took place at 4-00 p.m. and the F.I.R. was lodged at 5-00 p.m. at Police Station Laksian promptly, which altogether excludes the possibility of deliberation and false implication of the accused persons. The presence of Khizar Hayat P.W.5 (complainant) and Shaukat injured P.W.6 at the spot cannot be denied. As is apparent from the Police A Karwai, Khizar Hayat had injuries on his person when he went to the police station for lodging the F.I.R. Even their presence is not disputed by the defence. The motive as given in the F.I.R. stood proved from the direct evidence furnished by Khizar Hayat P.W.5, who deposed that except Afzal and Rehma, all the accused are related inter se. Muhammad Yar deceased ana Khizar Hayat (P W.5) are the stepbrothers of the father of Shaukat accused, namely, Muhammad Ali. Father of Khizar Hayat P.W. and Muhammad Yar deceased and Muhammad Ali owned landed property in Villages Baryana, Muradwala and Gurna. As Nawab Khan, father of Khizar Hayat P.W. and Muhammad Yar deceased had two wives, therefore, the property was divided amongst the heirs on the basis of Chunda Wand under the Customary Law. The parties settled on their respective shares. The dispute arose when some. property falling to the share of Muhammad Yar deceased and Khizar Hayat P.W. came under newly-constructed bridge at River Chenab in 1985 and a Bund. Shaukat accused who was not owner received compensation in lieu of that land and in order to compensate themselves, the complainant party took possession of land falling to the share of Shaukat accused in Muradwala, which led to a dispute and on the basis of this dispute a case under section 324, P.P.C. was registered on 7-6-1991, against Khizar Hayat P.W. and others at the instance of Shaukat accused. After the registration of the case. Arbitrators were appointed including Syed Ali Raza and they divided the property amongst the nephew and the uncles. On the day of occurrence, Shaukat and Ataullah accused had gone to Square No.13, Killas Nos.21 and 22 on a tractor in order to plough it. Muhammad Yar deceased, Khizar Hayat P.W. and his son Murid Hussain did not allow them to plough the said land. This was the immediate motive for the occurrence. The learned Judge rightly observed that the prosecution has proved the motive beyond reasonable doubt. There is no substance in the submission of the learned counsel for the defence that the F.I.R. was recorded after preliminary investigation, as is apparent from this finding of the learned Judge that when Sarfraz Khan S.H.O. P.W.12 reached the spot alongwith Khizar Hayat P.W.5, he found Mehmund, Shaukat, Shamim and Nusrat at the spot in injured condition. He prepared their injury statements and sent them for medical, examination. He also prepared the injury statements and inquest reports of Muhammad Yar, Murid Hussain, Tanvir Fatima, Zulfiqar and Mst. Bushra deceased and sent the dead bodies for post-mortem examination. In the inquest reports, the same details have been given as contained in the F.I.R. which leads to the irresistible conclusion that the F.I.R, was recorded first and thereafter the investigation was stated.

14. The medical evidence supports the ocular version, as Murid Hussain deceased had three injuries on his person. Injury on the head was a lacerated wound caused by blunt weapons. He had two incised wounds. Injury No.2 was on the back of left side of neck, whereas injury No.3 was on the outer side of knee joint. According to the prosecution, Muhammad Afzal inflicted hatchet blow to Murid Hussain deceased on the left side of the neck, . which was sufficient to cause death in the ordinary course of nature. Similarly injuries attributed to Nasrullah appellant son of Muzaffar, to Muhammad Yar and Zulfiqar deceased were confirmed by the medical report. The objection of the learned defence counsel that it is humanly impossible to give photographic description of all the injuries sustained by the deceased and the injured P.Ws. is not well-founded, as the occurrence took place in the day time and presence of the P.Ws. at the spot cannot be disputed. Whatever was seen by the complainant in the occurrence, he immediately disclosed to the police at the time of lodging the F.I.R. In the absence of any background of enmity, except the motive, which is the immediate cause of occurrence, there is no justification to discard the confidence inspiring and straightforward evidence of the eye-witnesses, which stands fully corroborated by the medicalle evidence. Irshad appellant who was armed with a gun had fired three shots. One of his shots hit Mehmund deceased, the other to Shaukat P.W. and the third to Mst. Bushra deceased and this too is being confirmed by the medical evidence. Zafar Khan appellant fired three shots which hit Tanvir Fatima, Nusrat deceased had Mst. Shamim (not produced). Their injuries are also corroborated by the medical evidence. Muhammad Sarfraz Khan S.H.O. (P.W.12) recovered nine crime empties from three different places, three from each of the three places, from where Nasrullah son of Muzaffar, Irshad and Zafar Khan appellants had fired shots. It is an established fact that men may tell lie but the circumstances do not. These crime empties were deposited by the S.H.O. in the Police Malkhana on 20-8-1991 and they remained in the custody of Muhammad Rafiq A.S.I. (P.W.11) till 28-8-1991, when he delivered there crime empties to F.C. Noor Khan on the said date who delivered the parcels intact in the office of the Forensic Science Laboratory on 29-8-1991. Zafar Khan appellant was arrested on 30-8-1991 and he produced the D.B. licensed gun P.5 of his brother Nasrullah (absconder) and a bag P.6 containing .,ix cartridges P.7/1-6, which were taken into possession vide memo. Exh.P.S. Irshad and Nasrullah appellants were arrested on 1-9-1991. On 7-9-1991, Irshad appellant got recovered gun P.14 from his house which was taken into possession vide memo. Exh.P.T./S. Similarly on the same day, Nasrullah appellant got recovered gun P.15, which was taken into possession vide memo. Exh.P.T./7. There is no material on the record to suggest that these crime empties were planted on the appellants or the report was procured maliciously or dishonestly; hence the report of the Forensic Science Laboratory Exh.P.00 further corroborates the ocular version, which proves that two crime empties C.1 and C.2 were fired from the right barrel of DBBL gun recovered from Zafar Khan appellant while the third crime empty C.3 was fired from the left barrel of DBBL gun recovered from Zafar Khan appellant. The report further proves that crime empties C.4 to C.6 were fired from the gun produced by Nasrufah appellant and the crime empties C.7 to C.9 were fired from the gun produced by Irshad appellant.' The blood-stained hatchet P.8 recovered on 1-9-1991 at the instance of Afzal appellant vide memo. Exh.P.T. and the blood stained stick P.9 recovered at the instance of Munawar Khan appellant vide memo. Exh.P.T./1 were found stained with human blood as per Serologist's report Exh.P.NN. which further corroborates the ocular version. The contention of the learned defence counsel that no reliance can be placed upon these recoveries, as no private person, except Dosa, who was disbelieved had supported the recoveries is untenable, because the Investigating Officer, who had no animus against the appellants supported the recoveries in this case.

15. The contention of the learned defence counsel that the complainant party was the aggressor, as Anwar Khan appellant received fire-arm injuries on his person in the transaction, is devoid of force, because, the nature and' the manner in which so many unarmed innocent persons lost their lives and received injuries on their persons, belies the assertion of the learned defence counsel. The learned trial Judge rightly observed that possibility cannot be ruled out that Anwar Khan might have received these injuries at the hands of his co-accused during the melee, like Mst. Bushra aged 10 years, Zulfiqar aged 2/4 years and Mst. Nusrat aged 7 years, who lost their lives, though they had no nexus with the fight between the rival group.

16. We have given our anxious consideration to this aspect of the case, l whether the sentences awarded to the appellants need consideration or not. We find that the appellants made concerted attack with fire-arm and other weapons on the complainant party in the day time and committed the gruesome murders of so many innocent persons including children, who were passersby and, therefore, the appellants do not deserve any leniency in the quantum of sentence; hence we dismiss this appeal in toto. N.H.Q./140/SAC Appeal dismissed.