2018 PLP 5 (YLRN)

GHULAM QADIR LEGHARI, J.--Appellants Abdul Sattar, Dhani Bux and Muharram Ali were tried by learned Additional Sessions Judge, Gambat, for offences under sections 302/148, 149 and 337/H-2, P.P.C. registered at Police Station Sobhodero. By Judgment dated 14.07.2011, the accused Dhani Bux was convicted under section 302(b), P.P.C. and sentenced to death for the murder of Noor Mohammad. Accused Moharram Ali and Abdul Sattar were also convicted under sections 302(b), 34, P.P.C. and were sentenced imprisonment for life for the murder of Noor Muhammad and all three accused were ordered to pay compensation of Rs.50,000/- (Rupees Fifty Thousand Only) each to the legal heirs of the deceased Noor Mohammad and in case of default in payment of compensation, accused were directed to suffer S.I. for six months. Appellant Moharram Ali was found guilty under section 302(b), P.P.C. and was sentenced to death for the murder of deceased Asadullah. Accused Dhani Bux and Abdul Sattar were also convicted under sections 302(b), 34, P.P.C. and sentenced to imprisonment for life for the murder of deceased Asadullah. All the accused persons were directed to pay compensation of Rs.50,000/- (Rupees Fifty Thousand Only) each to be paid to the legal heirs of the deceased Asadullah as required under section 544-A, Cr.P.C. and in case of default in payment of compensation, they were directed to suffer SI for six months. Benefit of section 382-B, Cr.P.C. was extended to them, co-accused Sulleman and Noor Mohammad were extended benefit of doubt and acquitted. The Trial Court has made Reference to this Court for confirmation of death sentence awarded to accused Moharram Ali and Dhani Bux as required under section 374, Cr.P.C. Appellants have challenged their conviction and sentence recorded by trial Court. By this Single Judgment, we intend to decide Appeals as well as Reference made by the trial Court for confirmation of death sentence.

2. Succinctly the facts of the prosecution case as depicted from the FIR No.31/2005 lodged by complainant Mst. Shehzadi are that on 22.04.2005 at 2330 hours stating therein that her son deceased Noor Muhammad was Head Constable in SRP Sukkur, who on three days leave, came to his home. On 22.04.2005 after sun set time, her sons Noor Muhammad, Amir Hussain and her grandson Assad Ali and her son-in-law Khuda Bux were harvesting the wheat crop and she was standing near to them. It is alleged that all of sudden, from Northern side 5 culprits armed with deadly weapons raising hakals came running there at about 8:00 P.M. Complainant on the moon light identified 3 accused persons they were Abdul Sattar, Moharram Ali and Dhani Bux, all armed with guns and two unknown persons having hatchets in their hands came there. Complainant claimed that she had seen the unknown persons on the moon light and she would identify them if brought before her. It is alleged that accused Dhani Bux challenged to Noor Muhammad that he had asked him four withdrawal of kidnapping case of his brother's wife but he did not do so and declared that he would not be spared. Thereafter it is stated that accused Dhani Bux directly fired upon Noor Muhammad with an intention to cause his murder. The fire hit him and he fell down on ground. Complainant further alleged that accused Moharram Ali directly fired upon Asad Ali, which also hit him who raised cry and fell down on ground. Accused Abdul Sattar made firing in the air and threatened to complainant party not to come near accused, else they would also be done to death. Complainant party raised cries of "Murder Murder". On the cries and fire shot reports, persons from village came running, while seeing villagers accused persons ran away towards Eastern side. Then complainant party saw that Noor Muhammad had received fire shot injury on his chest and blood was oozing and Asad Ali had also received fire shot injury on his right side of ribs and blood was oozing and both injured were taken to Taluka Hospital Sobhodero for treatment. But doctor was not available there. Thereafter both injured persons were taken to Taluka Hospital Gambat where both injured persons succumbed to their injuries and both dead bodies were brought at Sobhodero Hospital. By leaving both dead bodies in hospital for postmortem examination, complainant went at Police Station Sobhodero and lodged FIR.

3. After registration of FIR by the Complainant, investigation was entrusted to SIP Muhammad Amin Pathan, who went to the Hospital and prepared inquest report of deceased Asadullah and Noor Mohammad and issued letter to MLO for conducting the postmortem of the deceased and report. Then he visited the place of wardat on the pointation of Complainant, he secured three empties cartridges from the place of wardat and sealed the same and also collected blood stained earth of deceased Noor Mohammad and Asadullah and sealed the same and prepared mashirnama of wardat in presence of mashirs. He recorded 161, Cr.P.C. statements of PWs. He issued letter to Mukhtiarkar for preparation of sketch of place of wardat, he arrested accused Moharrum Ali, Dhani Bux and Abdul Sattar on 08.05.2005. On 13.05.2015 he recorded further statement of complainant Mst. Shahzadi and statement of PW Amir in which they disclosed the names of unknown persons as Suleman and Noor Mohammad. Investigation Officer arrested the accused Suleman and Noor Mohammad. He sent blood stained earth and two pellets received from MLO to the Chemical Examiner. He got the identification parade of accused Suleman and Noor Mohammad before the Civil Judge and Judicial Magistrate. Subhodero at Ranipur through complainant and PW Amir Hussain on 14.05.2005.

4. During investigation, according to I.O. accused Moharram Ali voluntarily prepared to produce crime weapon used by him in the commission of offence. On 20.05.2005 accused Moharram Ali led I.O. and mashirs Amanullah and Yasin to his house and produced DBBL gun along with three live cartridges of Shaheen Company at about 0945. I.O. secured the same in presence of above said mashirs and accused disclosed that he had no license for the gun recovered on his pointation. Such mashirnama was prepared in presence of mashirs namely Amanullah and Yasin thereafter accused and case property were brought to P.S. where I.O. lodged FIR against the accused under section 13(e) AO.

5. On same date I.O. interrogated accused Dhani Bux, according to I.O. accused Dhani Bux prepared to produce crime weapon used by him in the commission of offence. On 20.05.2005 the accused Dhani Bux led I.O. and mashirs Amanullah and Yasin to his house and produced SBBL gun along with two live cartridges at about 1225 hours from the window cupboard of his house. I.O. secured the same in presence of above said mashirs and accused disclosed that he had no license for the gun recovered on his pointation. Such mashirnama was prepared in presence of mashirs namely Amanullah and Yasin thereafter accused and case property were brought to P.S. where I.O. lodged FIR against the accused under section 13(e) AO.

6. Charge was framed against accused persons under sections 302, 148, 149, 337-H(2), P.P.C. at Exh: 2, to which all the five accused did not plead guilty and claimed trial.

7. At trial, prosecution examined complainant Mst. Shahzadi (PW-1). Amir Hussain (PW-2), Khuda Bux (PW-3) both eye-witnesses of the incident. Dr. Atta Muhammad (PW-4), Gulsher (PW-5), Mir Muhammad (PW-6), Amanullah (PW-7), Dur Muhammad Tapedar (PW-8), Saindad (PW-9), Ghulam Shabir Civil Judge and J.M., (PW-10) and Inspector/SIO Muhammad Ameen (P W-11). Thereafter, prosecution side was closed.

8. The statements of accused were recorded under section 342 Cr.P.C. at Exhs. 59 to 63, in which they have denied all the allegations leveled against them by the prosecution and claimed innocence. Accused declined to give statements on oath in disproof of the charge as envisaged by section 340(2), Cr.P.C. Appellants/accused Muharram Ali, Abdul Sattar and Dhani Bux examined defence witness Muhammad Uris, who stated that on the night of incident he was standing at one survey number away from the place of wardat. He heard fire shot report and when reached there saw that Noor Muhammad and Asadullah were lying injured and were struggling for lives and he enquired from complainant about the incident. She disclosed that some unknown persons had committed the offence.

9. On the assessment of evidence available on record, the learned Additional Sessions Judge, Gambat, District Khairpur, found the appellants guilty, convicted and sentenced them accordingly. In these circumstances present appeals have been filed by the appellants.

10. Mr. Muhammad Ashraf Kazi, learned counsel for the appellants contended that it was night time incident and source of identification of accused was moonlight, which is a weak type of source of identification. therefore, the identification of the accused on moonlight was highly doubtful. He further contended that according to evidence of eye-witnesses. accused Muharram Ali and Dhani Bux had not repeated the fires, which reflected that they had no intention to kill the deceased Asadullah and Noor Muhammad. He further contended that in fact both the deceased were killed by unknown persons, who were subsequently identified as Suleman and Noor Muhammad but appellants have been falsely implicated in this case due to enmity. He next contended that the incident took place at 8:00 pm while FIR was lodged at 2330 hours with delay of 3-1/2 hours. While the distance between place of incident and police station was 3 to 4 kilometers. The delay of 330 hours in lodging the FIR has not been explained by the complainant, which shows that the FIR was lodged after consultation and deliberation and false implication of the appellants could not be ruled out. It is further contended that eye-witness Mst. Shahzadi is mother of deceased Noor Muhammad and grandmother of deceased Asadullah, whereas eye-witness Aamir Hussain is son of complainant and eye-witness Khuda Bux is son-in-law of complainant and they were closely related to the deceased as such they are interested witnesses and inimical towards the accused. It is argued that their evidence could not be relied upon without independent corroboration. He further contended that role assigned to accused Abdul Sattar was that he had made aerial firing. Accused Abdul Sattar is brother of accused Moharram Ali. There was no evidence of vicarious liability against the accused Abdul Sattar, in case, he had intention to commit murder he could have made straight fire upon the deceased persons. Lastly he contended that in case, conviction is maintained death sentence may be converted to the imprisonment for life as fire was not repeated by accused Moharram Ali and Dhani Bux. He has placed his reliance upon following authorities. (i). Mehmood Ahmed and 3 others (1995 SCMR 127). (ii). Atta Mohammad and another v. The State (1995 SCMR 599). (iii). Mohammad Iqbal v. Abid Hussain alias Mitho and others (1994 SCMR 1928). (iv). Ghulam Qadir v. The State (PLD 1970 Peshawar 269). (v). Amanullah and 4 others v. The State (PLD 1978 Karachi 792). (vi). Ghulam Hussain v. Ghazanfar alias Kala and others (2013 PCr.LJ 150).

11. Conversely, Mr. Abrar Ali Khichi, A.P.G. assisted by Mr. Nisar Ahmed Maitlo, learned counsel for the complainant, vehemently opposed the appeals and argued that it was double murder case, there were three eye-witnesses of incident namely Amir Hussain, Khuda Bux and complainant Mst. Shahzadi. They have assigned specific role of causing fire shot injures to deceased Noor Mohammad and Asadullah by accused Dhani Bux and Muharram Ali. The ocular evidence is corroborated by medical evidence. He further argued that accused Dhani Bux, Abdul Sattar and Moharam Ali were arrested on 08.05.2005 and during interrogation, prepared to produce crime weapon. On 20.05.2006 accused Moharram led the police party to his house and produced DBBL unlicensed gun along with three live cartridges in presence of mashirs Muhammad Yaseen and Amanullah from his house. Learned APG further contended that on same date accused Dhani Bux led the police party to his house and produced SBBL unlicensed gun along with two cartridges from his house in presence of same mashirs. The recovery of crime weapons from appellants/accused Moharram Ali and Dhani Bux has been proved. He further argued that three empties collected from the place of wardat and guns recovered from accused were sent to Ballistic expert on 09.07.2005 and positive report was received on 21.07.2005 and blood stained earth collected from two different points was sent to chemical examiner, Chemical report was positive. He next contended that both the parties are cousins inter se and distance between complainant parties and accused was 7 paces at the time of incident as replied by PW-1 Mst. Shahzadi, complainant party faced no difficulty in identifying the culprits being their cousins from such close distance. He further argued that according to the postmortem report, injuries were caused to both deceased by fire arm, which were sufficient to cause death of both deceased. He next contended that complainant immediately after commission of the incident took the injured to Sobhodero Hospital, where doctor was not available, thereafter, both the injured were taken to Gambat Hospital and on the way they succumbed to the injures, hence the delay 330 hours in lodging the FIR has been fully explained by prosecution and it is argued that motive as set up in the FIR has been established at the trial through the eye-witnesses. He further contended that case of appellant Abdul Sattar is distinguishable from co-accused but he came armed with gun, as such, he was also liable for the punishment of act committed by the co-accused Moharram Ali and Dhani Bux. Lastly contended that accused have committed brutal murder of two innocent persons and they did not deserve any leniency in the sentence.

12. We have heard learned counsel for appellants and learned A.P.G assisted by Advocate for Complainant and have carefully gone through the record made available before us with the assistance of learned counsel for the parties and perused the case law cited by the learned counsel for the parties.

13. The fact that the deceased Noor Mohammad and Asadullah died their unnatural death after sustaining fire shot injuries is not in dispute. Dr. Atta Muhammad, who conducted the postmortem of the deceased. He examined the dead body of deceased Noor Muhammad and found following injuries. 1. wound of entrance five punctured lacerated wounds penetrates on left side of chest medial to nipple measures 4.2 x 4.3 cm 2.2.1 x 2.1 cm. left to wound Nos.l. 3. 2.1 x 2.1 cm. above to first wound 4, 1.3 cm x 1.3 left to wound Nos.3, 5, 3.3 x 1.3 cm below the fourth wound all the punctured wounds penetrates the thoraces cavity.

2. A lacerated wound measures 4.3 cm and imputed pina of left ear.

3. A lacerated wound measures 2.1 cm with amputation of left thumb at its proximal phalanx. Charring of skin near wound.

14. From external as well as internal examination of dead body of Noor Muhammad, M.O. was of the opinion that death was caused due to hemorrhage shock and damage of heart and both the lungs caused by discharge from fire arm consequential upon injury No.l.

15. He had further stated that he also examined the dead body of deceased Asadullah and found following injuries. A lacerated wound of entrance with enverted margins having no charring on skin measures 1.5 cm x 1.5 cm on right Hypochondrium extending in the abdominal cavity.

16. On internal examination he found that he was of the opinion that the death of Asadullah was caused due to Hemorrhagic shock and damage of liver caused by discharge from fire arm weapon.

17. The prosecution examined complainant Mst. Shahzadi, she deposed that this incident took place on 22.04.2005, deceased Noor Muhammad was her son and deceased Asadullah was her grandson. PW-Amir is her son while PW Khuda Bux is her son-in-law. On the day of incident, she, Asadullah, Noor Muhammad, Amir and Khuda Bux at about sun set time were busy in their harvesting work, when at about 8:00 p.m. five persons came from Southern side and out of them three had guns while two had hatchets. She identified the accused persons in the moonlight as Dhani Bux with gun, Moharram Ali with gun, Sattar with gun and she could not identify the remaining two persons and they were having hatchets in their hands. The two persons having hatchets over powered and controlled them. Accused Dhani Bux challenged to Noor Muhammad by saying that he had not withdrawn the abduction case of his sister-in-law and that he will kill him and then Dhani Bux fired gun shot at Noor Muhammad and he fell down. Accused Moharram Ali fired gun shot at her grandson Asadullah and he also fell down, Accused Abdul Sattar also fired in the air. Thereafter accused persons escaped and they raised cries, accused persons escaped towards Eastern side. The other villagers came on the spot. They saw that Noor Muhammad had received injury in Chest and Asadullah had received injury in his right ribcage. She further deposed that they took both the injured to Sobhodero Hospital, where Medical Officer was not present, then they took injured to Gambat Hospital, but both injured expired outside Gambat, they then came back to Sobhodero hospital she left Amir and Khuda Bux in Hospital and she came to Sobhodero P.S. where she lodged the FIR. All the accused persons present in Court are same. In her cross-examination, she has denied that neither accused Moharram Ali and Dhani Bux have committed murder of her son and her grandson and nor she had witnessed the incident and she has implicated them along with other accused falsely at the instigation of her relatives because of previous enmity.

18. Amir Hussain (PW-2) has deposed that complainant is his mother and PW Khuda Bux is husband of his sister, Noor Muhammad (deceased) was his brother, Asadullah was his nephew. This incident took place on 22.04.2005 at about sunset time he, along with Noor Muhammad, Khuda Bux and Asadullah was busy in harvesting wheat crop and his mother Mst. Shahzadi was sitting on the side of land (Bana) and at about 8:00 pm 05 armed persons came there, out of them 03 whom they identified on the light of moon as Dhani Bux, Moharram Ali and Sattar and they were armed with guns while other two had hatchets. They also saw the two unknown persons on the moonlight properly. Accused Dhani Bux challenged Noor Muhammad that he had asked him several times to withdraw the adduction case of his sister-in-law Mst. Sadori but he has not withdrawn the case, he would not be spared, thereafter Dhani Bux fired at Noor Muhammad with intention to kill him, fire hit him and Noor Muhammad fell down and accused Moharram Ali fired at his nephew Asad Ali with intention to kill him and fire hit him and Asad Ali also fell down and accused Abdul Sattar made fire shot in air, complainant party raised cries of "murder murder", on which other villagers were attracted and on seeing them the accused persons ran away to Eastern side. They saw that Noor Muhammad had received fire arm injury at Chest and he was bleeding and his nephew Asad Ali had received injury at right ribcage, they took both injured to Sobhodero hospital for immediate treatment where doctor was not present and then they took the injured to Gambat Hospital but they expired. In his cross-examination he has denied suggestion that he was not present at the spot and it is also denied that he has given false evidence due to previous enmity with accused and close relationship with complainant.

19. Khuda Bux (PW-3) has deposed that present incident took place on 22.04.2005 on that day, he along with his two brothers-in-law Noor Muhammad and Amir Hussain, son of his brother-in-law Asad, his mother in law Mst. Shahzadi was busy in harvesting wheat crop outside their house, while his mother-in-law Mst. Shahzadi was standing at the side of land. It was about 8:00 pm, five armed persons appeared from Southern side, at that time the moon was giving light, out of them three had guns and two had hatchets. He identified the accused persons as Muharram son of Haji, Sattar son of Haji, and Dhani Bux son of Ali Murad and they all had guns, accused Dhani Bux challenged to his brother-in-law Noor Muhammad as to why he was not withdrawing the case of abduction of his sister-in-law and he further said that they would not spare him. Accused Dhani Bux fired at Noor Muhammad with intention to kill him and Noor Muhammad received fire arm injuries at chest and fell down. Accused Moharram Ali fired at Asadullah with intention to kill him, fire hit him and Asadullah fell down. Accused Sattar fired in air. He could not identify the remaining two accused. In his cross-examination, he has denied the suggestion that he was deposing falsely due to enmity over abduction of Mst. Sadori though matter was patched up. He denied suggestion that he was deposing falsely at the instance of complainant.

20. Gulsher (PW-5) has deposed that on 08.05.2005 police noted down injuries of deceased Asadullah and Noor Muhammad and prepared inquest report. He further deposed that on 08.05.2005 police arrested accused Abdul Sattar, Muharram and Dhani Bux in his presence and prepared such mashirnama, co-mashir was Abdul Hameed. In his cross-examination, he has denied suggestion that the mashirnama of arrest was prepared at P.S. and he was giving false evidence. He further denied that he was deposing false evidence due to relationship with complainant party.

21. Mir Muhammad (PW-06) has deposed that about two years back police visited the place of wardat at about 7:00 AM and prepared such mashirnama he acted as mashir, co-mashir was Abdul Hameed who also signed. Police secured three empty cartridges from place of vardat and blood stained earth of deceased in his presence from two different spots and empty cartridges in his presence. He deposed that Police secured clothes of deceased and prepared such mashirnama. In his cross-examination, he has denied the suggestion that mashirnamas were not prepared in his presence and he was deposing falsely.

22. Amanullah (PW-7) has deposed that on 20.05.2005 Inspector Muhammad Ameen Pathan brought out accused Muharram Ali from Police lockup and interrogated him, he prepared to produce gun and cartridges used in offence. Inspector took HC M. Saifal and PC Nisar Shah and Yaseen, in private vehicle and accused Moharram Ali led Police and private persons towards his house and produced DBBL Gun along with 3 cartridges from Northern side wall where the gun was hanging in a hook and in belt there were three cartridges, it was about 9:45 AM. The Investigation Officer secured the gun, cartridges in presence of mashirs and prepared such mashirnama at the spot. Investigation Officer brought accused and case property to Police Station. On same date, Inspector Amin Pathan interrogated Dhani Bux and he prepared to produce the gun used by him in the crime. Police took accused along with HC Muhammad Saifal PC-Nisar and same mashirs left Police Station in private vehicle at about 11:30 AM and accused Dhani Bux led them towards his house situated in Village Parto-Wahan and produced one SBBL gun and two cartridges from cupboard of his house, Police secured gun and cartridges and prepared such mashirnama in his presence and co-mashir was Yasin.

23. SIP Mohammad Ameen (PW-11) has deposed that on 22.04.2005 he was posted incharge investigation Team at P.S. Sobhodero and on that day he received FIR No.31 of 2005, under sections 302, 148, 149, 337-H(2), P.P.C. and 13-D AO lodged by Mst. Shahzadi for investigation. He then proceeded to Sobhodero hospital where he prepared inquest reports of deceased Asadullah and Noor Mohammad and issued letter to M.O. for conducting post-mortem of deceased Noor Mohammad and Asadullah. He visited place of wardat on pointation of complainant in presence of masirs Mir Mohammad and Abdul Hameed. He prepared mashirnama of place of wardat. He secured two red color empty cartridges and one blue empty cartridge from place of wardat and sealed at spot in presence of mashirs. He also collected blood stained earth of deceased Noor Mohammad and deceased Asadullah in separate parcels. After postmortem examination dead bodies were handed over to legal heirs. I.O. recorded statement of PW Khuda Bux under section 161, Cr.P.C. on 28.04.2005. PC Zulfiqar brought clothes of deceased Noor Mohammad and Asadullah from hospital which he secured in presence of mashirs Abdul Hameed and Mir Muhammad and prepared mashirnama. On 01.05.2005, he issued letter to Mukhtiarkar for preparation of sketch of place of wardat. I.O. arrested accused Muharram, Dhani Bux and Abdul Sattar from otaq of accused Muharram Ali on 08.05.2005 at 1600 hours and prepared such mashirnama in presence of mashir Abdul Hameed and Gulsher. On same day, he sent blood stained earth and two bottles received from M.O. to Chemical examiner, Rohri for examination and report. During investigation accused Muharram prepared to produce gun. On 20.05.2005 accused Moharram Ali led Police and mashirs to his house along with his staff namely HC Saifal and PC Nisar Shah and he called mashirs namely Amanullah and Mohammad Yaseen and in presence of mashirs accused Muharram voluntarily produced DBBL gun of 12 bore "Made-in Belgium steel No.1678002 T" was written. Accused Moharram Ali also produced three live cartridges of red colour of SG Company. He prepared such mashirnama of recovery of DBBL gun and three live cartridges from accused Moharram Ali at spot in presence of mashirs Mohammad Yasin and Amanullah. Accused Muharram Ali disclosed he has no license for DBBL gun, and he brought the accused and case property at PS Sobhodero where he lodged separate FIR under section 13(e) A.O. against accused Muharram vide crime No.39 of 2005 on behalf of State. On same day accused Dhani Bux during interrogation prepared to produce crime weapon. Accused Dhani Bux led I.O. and mashirs to his house on 20.05.2005 and voluntarily produced one SBBL gun of 12 bore from room of his house in presence of mashir Yaseen and Amanullah at about 1225 hours. He recovered gun and two live cartridges of black colour and sealed in separate parcel at spot. The number was not mentioned on gun but only words "Dawood Armory Peshawar" were written, accused Dhani Bux disclosed that he has no license. On 20.05.2005, he recorded statements of HC Saifal and PC Nisar Shah, Amanullah and Yaseen. he sent the weapons recovered from accused Muharam and Dhani Bux to Ballistic expert at Karachi for matching with empties recovered from place of wardat. He received postmortem report from M.O. He further stated that on 23.05.2005 on the conclusion of investigation he submitted challan in Court of law. In his cross-examination he has denied the suggestion that he has conducted the investigation of the case malafidely. I.O. has denied the suggestion that mashirnama of arrest, recovery and place of wardat were prepared at P.S. He has denied the suggestion that accused Muharram and Dhani Bux had not produced the guns and he has foisted weapons upon both accused.

24. The first contention of the learned counsel for appellant/accused is that it was night time incident and source of identification was moonlight, which is a weak type source of identification. Therefore the identification of the accused on moonlight is highly doubtful. The contention of the learned counsel is without force, as accused were residing in same village with the complainant and were known to each other and complainant Mst. Shahzadi and PW Amir Hussain had stated in cross-examination that it was 13th of Lunar Month, PW Khuda Bux had stated in his cross-examination that he saw accused persons at the distance of 5/8 paces PW Amir Hussain has stated in his cross-examination that his mother was sitting at the distance five six paces from them. He had further stated that distance between him PW Khuda Bux was about one pace. Complainants and P.Ws. had seen the accused on the moonlight from the distance of a few paces. It has come on record that eye-witnesses complainant Mst. Shahzadi. PWs Amir Hussain and Khuda Bux are near relatives of accused Dhani Bux and Moharram Ali. Eye-witnesses are closely related to the accused as such there was no question of mistaken identity of accused. FIR was lodged within 330 hours. Promptly the names of eye-witnesses are mentioned in the FIR as such presence of eye-witnesses at the place of occurrence and identification of accused on moonlight is established by cogent evidence. Reliance is placed on case of Mohammad Hanif v. The State reported in PLD 1993 Supreme Court 895, wherein it is held as under:-- "Both the eye-witnesses, previously knew the accused they therefore encountered no difficulty to identify them in the moonlit night. There was no question of mistaken identity of the accused, as they were named in the FIR with specific role, attributed to them. The real father and sister of the deceased, are eye-witnesses, they therefore cannot possibly substitute anyone else except the real culprit. The accused had strong motive for killing Mushtaq and the prosecution succeeded in proving the same. Moreover, Ali Muhammad did not deny that his son Ashiq was murdered and Mushtaq (deceased) was challaned and subsequently acquitted."

25. The second contention of the learned counsel for the appellant is that eye-witness complainant Mst. Shahzadi is mother of deceased Noor Muhammad and grandmother of deceased Asadullah whereas eye-witness PW Aamir Hussain is son of complainant and eye-witness PW Khuda Bux is son in law of complainant and they were closely related to the deceased as such they are interested witnesses and inimical towards the appellants. Hence their evidence cannot be relied upon without independent. corroboration. The contention of the learned counsel for the appellant is without force as at the time of incident complainant Mst. Shahzadi PWs Aamir Hussain and Khuda Bux and both deceased Noor Muhammad and Asadullah were harvesting the wheat crop and their presence at the time of incident at land was not doubtful complainant and PWs had witnessed the occurrence and their evidence is trustworthy confidence inspiring. Mere relationship of witnesses is no ground to disbelieve and discord their evidence. Reliance is placed on the case of Ijaz Ahmed v. The State reported in 2009 SCMR 99, wherein it is held as under: - "Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time. particularly in murder cases, may be found more reliable because they. on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him."

26. The fifth contention of the learned counsel for the appellant is that in fact both the deceased were killed by unknown persons, who were subsequently identified as Suleman and Noor Muhammad and appellants have been falsely implicated in this case by the complainant party. The contention of the learned counsel for the appellant is without substance as the complainant being the mother of deceased Noor Muhammad and grandmother of deceased Asadullah and PWs Amir Hussain is brother of deceased Noor Mohammad and uncle of deceased Asadullah and Khuda Bux is brother in law of deceased Noor Mohammad and they are near relative of the both the deceased and eye-witnesses being closely related to deceased persons, would not let go the real culprits or substitute an innocent person for them as held in the case of Ijaz Ahmed (supra).

27. The sixth contention of the learned counsel for the appellants is that incident took place at 08:00 pm, the place of wardat was situated about 3 to 4 KM from P.S. while FIR was lodged at Police Station at 23:30 pm with delay of 3 1/2 hours. It is contended that the delay of 3:30 hours in lodging the FIR has not been explained. The contention of learned counsel for the appellants is without substance, as the complainant has stated in the FIR that after incident, they immediately shifted the injured to Sobodero Hospital for treatment, where no doctor was available, from where they shifted the injured to the Gumbat Hospital to save their lives but they succumbed to injuries. Thereafter, the dead bodies of both the deceased were shifted to Sobdero hospital, for their postmortem. Thereafter, complainant appeared at P.S. and lodged FIR. Hence, the delay in lodging the FIR has been plausibly and properly explained. Reliance is placed on the case of QADAN alias Qadir Bux and another reported in PLD 2015 Sh.C. 426, wherein it is held as under:-- "Scanning of the available record shows that incident is reported to have taken place on 4-5-2004 at 10-00 p.m. which was reported by the PW-complainant Haflz Ajeeb-ur-Rehman with Police Station Muhabat Dero on 5-5-2004 at 0130 hours. This shows that the matter was reported with the police within 3 and half hours of the incident. The police station was located at the distance of 2/3 K.M. The complainant Hafiz Ajeeb-ur-Rehman has claimed himself to be the cousin of the deceased which claim has never been challenged/questioned by the defence. A time of three and half hours cannot be taken as a delay in reporting the matter with a view to allow deliberation and consultation on part of the complainant party, particularly when it was claimed by the complainant party that they first tried to carry the deceased to hospital but he succumbed to injuries in the way so the dead body was brought back at the village. It is against the human behaviour and experience that effect(s) and emotion(s) of witnessing murder of one's blood-relation will be influenced over other consideration particularly when one (he) does not have sufficient reason for deliberation and consultation. This is so which has resulted in wording the legal proposition that promptness in reporting matter of murder(s) always lessens chances of deliberation and consultation which, in such matters (murder cases), let complainant party for exaggeration or widening the net. Even otherwise, the general principle is that delay by itself in lodging the FIR is not material. Factors to be considered by the Courts are firstly that such delay stands reasonably explained and secondly that the prosecution has not derived any undue advantage through the delay involved. Reference can be made to the case of Muhammad Nadeem v. State reported in 2011 SCMR 872."

28. The sixth contention of the learned counsel for appellant/accused is that accused Muharram Ali and Dhani Bux had not repeated the fires and which demonstrated that they had no intention to kill deceased Asadullah and Noor Muhammad. The contention of the learned counsel is without legal substance as in this case accused Dhani Bux and Moharram armed with guns went to the place of wardat and accused Dhani Bux challenged to Noor Muhammad that they had asked him to withdraw the abduction case of his brother wife but he was not withdrawing the case therefore, they would not spare him and accused Dhani Bux made straight fire upon Noor Muhammad with intention to kill him and fire shot hit him at left side of his chest, in the result, he died and according to the medical evidence that deceased Noor Muhammad had sustained fire arm injury at left side of chest and died due to fire shot injury, while accused Moharram Ali had caused fire shot injury to Asadullah with intention to kill him at ribcage, who also died due to fire shot injury, which indicate that both the accused had intention to commit the murder of the deceased Noor Muhammad and Asadullah. Medical evidence reflects that Asadullah died as a result of fire arm injuries. The reliance is placed upon the case of Arshad Ali alias Achhu v. The State reported in 2002 SCMR 1806, wherein it is held as under:-- "Lastly, learned counsel for the petitioner, submitted that the question of quantum of sentence may be considered, for according to him the incident took place at the spur of moment and according to the prosecution version, after one shot, the same was not repeated. The argument has no force. The petitioner was armed with double-barrel gun at the spot, therefore, it is clearly established that he had come there fully prepared and merely because according to prosecution, shot was not repeated is no ground, for petitioner caused injury on the vital part of the deceased, which is sufficient to hold that he intended to cause his death, therefore, no case has been made out for lesser sentence."

29. We agree with the contention of learned counsel for the appellants that the allegation against the accused Abdul Sattar is that he had made aerial firing and during the investigation accused was arrested but no recovery of gun was effected from his possession and no empties allegedly fired by accused Abdul Sattar were recovered from the place of wardat. There was enmity between the parties, false implication of accused Abdul Sattar in the circumstances of the case could not be ruled out. We have no hesitation to hold that prosecution has failed to prove the vicarious liability of the appellant Abdul Sattar in the commission of double murder case, hence the case against him regarding his involvement appears to be doubtful.

30. We have carefully examined the evidence of eye-witnesses Mst. Shahzadi, Amir Hussain and Khuda Bux, they have deposed that on 22.04.2005, they along with deceased Noor Muhammad and Asadullah were harvesting the wheat crop. At about 8:00 p.m. five persons appeared from Southern side out of them, three were armed with guns while two had hatchets, eye-witnesses identified the accused persons on moon light as (1) Dhani Bux armed with gun, (2) Moharram Ali with gun and (3) Abdul Sattar with gun. PW-3 could not identify the remaining two accused persons, who were carrying hatchets in their hands. Accused who were hatchets, over powered complainant party. Accused Dhani Bux challenged to Noor Muhammad as to why he has not withdrawn the abduction case of his sister-in-law and he would kill him. Then accused Dhani Bux fired gun shot at Noor Muhammad fire hit him and he fell down. Accused Maharram fired shot at Asadullah which also hit him and he also fell down. Accused Abdul Sattar fired in the air. Thereafter, accused persons made escape good from scene of occurrence and PWs raised cries. Villagers were attacked at spot, PWs saw that Noor Muhammad had received injury at Chest and Asadullah received injury at right ribcage. Both injured succumbed to the injuries. The evidence of eye- witnesses is consistent on date, time and place of incident. Specific role has been assigned to the appellants / accused Dhani Bux and Moharram Ali. Eye-witnesses were cross-examined at length by the defence counsel but their evidence remained unshaken on all material points learned defence counsel could not get any favourable reply from eye-witnesses in favour of accused from which it be determined that the witnesses were not present at the time of incident and had not witnessed the occurrence and they had falsely implicated the accused. Eye-witnesses have also sufficiently explained their presence at the time of incident.

31. Motive behind incident was that accused Dhani Bux had abducted Mst. Sadori daughter-in-law of complainant such case was registered against Dhani Bux and others by the deceased Noor Mohammad, they were challaned in said case. On the day of incident, accused Dhani Bux, Moharram Ali and Sattar armed with guns and two unknown persons armed with hatchets appeared at the place of wardat, with preplan and premeditation and issued threats to the deceased Noor Muhammad that they had several time asked him to withdraw the abduction case of his brother's wife but without result. Thereafter accused Dhani Bux and Moharram Ali caused fire arm injuries to Noor Muhammad and Asadullah and committed their murder in presence of above eye-witnesses. The motive has been proved by the prosecution through ocular evidence.

32. To corroborate the ocular evidence, prosecution has also relied upon medical evidence, recovery of crime empties, blood stained earth and recovery of crime weapons from the appellants/ accused Dhani Bux and Moharram. The evidence of Doctor Atta Muhammad shows that deceased Noor Muhammad had sustained a fire arm injury at his left side of chest and deceased Asadullah had also sustained fire arm injury at the Hypochondrium extending in the abdominal cavity and both the deceased had died by fire arm injuries. The medical evidence had confirmed the date and time of occurrence, weapons used by the appellants, locale of the injuries and the directions of the fire shots as stated by the eye-witnesses. Mashirnama of wardhat and recovery at Exh: 29 shows that blood stained earth of both the deceased was collected sealed and three empties of 12 bore were recovered from the place of wardat and sealed, which supports that the incident had occurred at the place of wardat. The blood stained earth of both the deceased was sent to the Chemical Examiner and Chemical report Exh: 57 produced by the investigation officer reveals that it was stained with human blood, these pieces of circumstantial evidence supported and corroborated the prosecution case.

33. Mashirnama of recovery at Exh: 34 shows that on 20.05.2006 the accused Moharram Ali led the police party to his house in presence of mashris Muhammad Yaseen and Amanullah and produced unlicensed double barrel gun along with three live cartridges from his house at about 0935. Mashirnama of recovery at Exh: 35 shows that on 20.05.2006 the accused Dhani Bux also led the police party to his house and produced SBBL unlicensed gun along with two live cartridges from window shape cupboard of his house in presence of same mashirs Muhammad Yaseen and Amanullah at about 1225 hours. Mashir Amanullah and Investigation Officer have corroborated the contents of the mashirnama of recoveries Exhs: 34 and

35. Prosecution has proved the recovery of crime weapons i.e. double barrel gun and three empties from accused Moharram and one SBBL gun and two live cartridges from the accused Dhani Bux on his pointation, hence the recovery of crime weapons also supported the prosecution case.

34. The three empties recovered from the place of wardat and guns recovered from the accused on their pointation were sent to Ballistic expert. The report of ballistic expert shows that one empty of 12 bore marked as C-1 was fired from right barrel of 12 bore DBBL shot gun No.1678002-P and one empty of 12 bore marked as C-2 was fired from the left barrel of 12 bore DBBL shot gun No.1678002-P recovered on the pointation of accused Moharram. One 12 bore empty marked as C-3 was fired from 12 bore SBBL shot gun recovered on the pointation of accused Dhani Bux. Therefore, this circumstantial evidence also corroborated the ocular version of the eye-witnesses.

35. The case-law cited by learned counsel for the appellants/accused are distinguishable from the facts of the instant case, hence the same are not applicable to this case.

36. As we have discussed above that prosecution has failed to prove the case against the accused Abdul Sattar that he was armed with gun and he had shared his common intention to commit the murder of the deceased persons. It is pertinent to mention here that case of appellant Abdul Sattar is quite distinguishable from the case of co-accused Moharram Ali and Dhani Bux. In the FIR it is mentioned that Abdul Sattar made aerial firing. At the trial, eye-witnesses have stated that Abdul Sattar made aerial firing. Except role of aerial firing to accused Abdul Sattar no overt act/firing to the deceased has been attributed to him. If it is believed that Abdul Sattar shared common intention with co-accused who have been specifically attributed role of firing upon both the deceased then we are unable to understand that what were the circumstances which prevented accused Abdul Sattar not to directly fire upon deceased person. Prosecution could not bring on record evidence that Abdul Sattar had shared common intention with main accused. There is also no evidence at all to satisfy the Court that Abdul Sattar facilitated the co-accused in the commission of offence. Looking to the close relationship of Abdul Sattar with co-accused it is rightly contended that false implication of Abdul Sattar in the circumstances having background of enmity could not be ruled out. In the case titled Hassan v. The State (1969 SCMR 454) Honourable Supreme Court of Pakistan has held that mere presence of accused was not sufficient for conviction. Proof of some overt act on the part of each accused in furtherance of common intention is necessary. Relevant portion is reproduced as under:- "It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman as was stated by P. W

3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circum-stances he could have intended to cause a grievous hurt to, anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, there-fore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted."

37. For the above stated reasons, while relying on the above cited authority we see no legal justification for upholding conviction of appellant Abdul Sattar. It is known principle of appreciation of evidence that the benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. The rule of benefit of doubt, which is described as golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law as held by the Honourable Supreme Court of Pakistan in the case reported as Muhammad Nawaz and others v. The State (2016 SCMR 267). Relevant portion is reproduced as under:-- "

7. This Court in the case titled "Ayub Masih v. The State reported as PLD 2002 SC 1048 observed as under:- " ....It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him."

38. While extending benefit of doubt, by way of abundant caution, we allow the Criminal Jail Appeal No.382 of 2011, filed by appellant Abdul Sattar. Appellant Abdul Sattar is present on bail he is acquitted, his bail bond stands cancelled and surety is hereby discharged.

39. As discussed above, we have come to the conclusion that the prosecution has proved its case against the appellants Moharram and Dhani Bux beyond any shadow of doubt. Honourable Supreme Court has time and again observed that if charge of qatl-e-amd is proved against the culprit normal penalty of the death should be awarded and leniency in any case should not be shown except where strong mitigating circumstances for lesser sentence are brought on record. Reliance can be placed upon case of Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) in which Honourable Supreme Court of Pakistan was pleased to observe that when in the case involving capital punishment prosecution proves its case, Court is duty bound to impose deterrent punishment to make evil doers an example. Relevant observations are reproduced as under: "

10. It is obvious from the above cited case law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the likeminded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment, the Courts while awarding lesser punishment have to record reasons justifying the same. In the present case so far as question of sentence is concerned, both the trial Court and the High Court have failed to record reasons for awarding lesser punishment to the respondents, who committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses, where they were killed. Till the time of disclosure of murders by the respondents themselves in their confessional statements, it was not known to anybody that they had killed three persons namely, Engineer Fahim, Mst. Kishwar Kamal alias Laila and Syed Faqir and their dead bodies had been buried in the houses, which were recovered at their instance from the places specified in the confessions, in presence of the Magistrates. Keeping in view the findings of both the Courts below that the prosecution has proved its cases against the respondents beyond any shadow of doubt, they did not deserve any leniency in sentence in premeditated cruel triple murder."

40. Appellants did not deserve any leniency in sentence in premeditated cruel double murder. No mitigating circumstance has been pointed out.

41. For whatever has been discussed above, we hold that prosecution has proved its case against appellants beyond any shadow of doubt. As a sequel, conviction and sentence recorded by trial court are maintained. Appeals lack merit and are accordingly dismissed and reference for confirmation of death sentence is answered in affirmative. JK/A-80/Sindh Appeal dismissed.