1983 P Cr (PLP)

MANZOOR HUSSAIN SIAL, J.

The twenty-two appellants, namely, (1) Muhammad Nawaz son of Allah Diwaya aged 50 years, (2) Hanif son of Amin aged 26/27 years, (3) Ghulam Haider son of Ghulam Hassan, aged 55 years, (4) Ata Muhammad Khan son of Ghulam Akbar Khan aged 65 years, (5) Rafi Ullah Khan son of Gul Khan aged 30 years, (6) Ghulam Ahmad son of Muhammad aged 55 years, (7) Sher Ahmad son of Muhammad aged 40/45 years, (8) Bashir son of Ghulam Ahmad aged 25/30 years,. (9) Shera son of Nadir aged 45 years, (10) Zamzan son of Ghulam Sarwar aged 55 years, (11) Muhammad Amir son of Falak Sher aged 45/46 years, (12) Muhammad Afzal son of Falak Sher aged 30/32 years, (13) Ghulam Hussain son of Ahmad aged 63 years, (14) Muhammad Ayaz alias Ajaz son of Ahmad Nawaz Khan aged 34/35 years, (15) Muhammad Ajmal Khan son of Ata Muhammad Khan aged 18 years, (16) Muhammad Akram son of Khan Muhammad aged 25 years, (17) Ata Muhammad son of Ahmad Khan aged 30 years, (18) Saif Ullah Khan son of Chandan Khan aged 45 years, (19) Abdul Sattar Khan son of Khan Zaman Khan aged 60 years, (20) Muhammad Yaqoob Khan son of Khan Zaman Khan aged 45 years, (21) Muhammad Khan son of Jahan Khan aged 61 years, (22) Shera son of Ghulam Hassan aged 30 years with Muhammad Afzal and Abdur Rahman were tried by the learned Additional Sessions Judge at Mianwali on charges under sections 148, 307/149, 302/149, 2C1/149, 403/149 and 404/149, P.P.C. Muhammad Afzal and Abdur Rahman accused, however, died during the trial and proceedings had abated against them. The learned trial Judge vide judgment dated 28th August, 1980, acquitted all the accused on the charges under sections 201/149, 403/149 404/149, P. P. C. except Haider accused, while convicted and sentenced them as below :- (i) All the appellants were convicted under section 148, P. P. C. and sentenced to undergo two years, R . I. each. (ii) All the appellants were also convicted under sections 302/ 149, P.P.C. for causing murder of four persons, namely, Said Rasool, Lutaf Hussain Shah, Tabbarak Hussain Shah and Muhammad Amir. Appellants Nos. 1 to 3 (Muhammad Nawaz, Hanif and Haider) were sentenced to death on each count and fine of Rs. 2,000 on each count or in default to suffer further R. I. for one year on each count. Appellants Nos. 4 to 22 were sentenced to imprison ment for life for each murder. Ata Muhammad appellant No. 4 was awarded fine of Rs. 7,000 on each count, whereas the rest of the appellants were imposed fine of Rs. 2,000 on each count and in default to undergo further R. I. for one year on each count; (iii) All appellants were convicted under section 307/149, P.P.C. for launching murderous assault on Ghulam Abbas, Jahan Khan and Ahmad P. Ws. and sentenced to R. I. for two years each, on each count and fine of Rs. 1,000 each on each count or in default to undergo R. I. for six months each on each count ; (iv) Appellant Haider was convicted under section .404, P. P. C. and sentenced to R.I. for two years and fine of Rs. 1,000 or in default to suffer further R. I. for six months. The sentences were, however, directed to run concurrently. The amount of fine if realized from the appellants [convicted under section 302/ 149, P. P. C half of the same was directed to be paid as compensation to the heirs of each deceased.

2. All the convicts filed joint Criminal Appeal No. 1056 of 1980 against their convictions and sentences. Haider son of Ghulam Hussain who was also tried separately for an offence under section 13 of Arms Ordinance and was awarded sentence of one year rigorous imprisonment and fine of Rs. 500 or in default to undergo R. I. for three months assailed his conviction and sentence by means of Criminal Appeal No. 1073 of 1980. Yar Muhammad P. W. also filed Criminal Revision No. 71 of 1981 seeking award of death sentence of appellants Nos. 4 to 22 and for the enhancement of the amount of compensation payable to the heirs of deceased. The case is also before us on reference under section 374, Cr. P. C. for confirmation of death sentences passed on appellants Nos. 1 to 3 (Muhammad Nawaz, Hanif and Ghulam Haider). This judgment will dispose of all these matters.

3. Ghulam Haider appellant is paternal uncle of Hanif, Ghulam Ahmad and Sher Ahmad appellants are brothers inter se and Bashir is son of Ghulam Ahmad. Muhammad Amir and Muhammad Afzal are brothers. Similarly Abdul Sattar and Muhammad Yaqub are also brothers. Muhammad Ajmal is the son of Atta Muhammad Khan and brother of Muhammad Afzal deceased. Muhammad Ayyaz is son-in-law of Atta Muhammad Khan. Abdur Rahman accused (dead) was also son-in-law of- Atta Muhammad Khan. Muhammad Akram appellant is cousin of Atta Muhammad Khan. Other appellants are not related, but are alleged to be party men and associates of Atta Muhammad Khan IOU of Akbar Khan appellant ape joined hands with him for causing murders of the four persons. They all are residents of Piplan, Tehsil and District Mianwali.

4. According to the prosecution version 15/20 days before the occurrence Said Rasool, Lutaf Hussain Shah, Tabarrak Hussain Shah, the three deceased and Ahmad P. W. had taken their cattle for grazing, to the area f village Kacha Piplan. The appellants Nos. 2 and 3 (Hanif and Haider) who had constructed their deras nearby and resided therein, restrained them from grazing the cattle in the area. This led to altercation. Hanif abused them and they gave him little beating. Simi larly these appellants had also earlier restrained Raza Muhammad Joya, from grazing his cattle in the Kacha Piplan area and he made an applica tion to the Tehsildar for, demarcation of the land, one Shabbir Hussain Patwari was detailed to o the needful. Raza Muhammad informed Said Rasool, the father of the complainant about the demarcation and sought his help in the matter.

5. It was alleged that on the fateful day at about 11 a.m. Ghulam Abbas complainant (P.W. 28); accompanied by Jahan (P.W. 29), Ahmad (P.W. 30), Yar Muhammad P. W. (not produced) and the four deceased, namely, Said Rasool, Muhammad Amir, Lutaf Hussain Shah and Tabar rak Hussain Shah went to Kacha Piplan area near Dera of Haider appel lant for demarcation of land. Raza Muhammad and Ghulam Shabbir Patwari had already reached there. Lutaf Hussain Shah was armed with revolver, Said Rasool carried double barrel shot gun and Raza Muhammad had single barrel shot gun. The demarcation proceedings commenced and measurement of land started with Jareeb from Eastern side to Western side ; when at about 11-30 a.m. all the appellants armed with guns came there. Ata Muhammad and his son Afzal (since dead) raised lalkara, Muhammad Afzal opened the attack and fired at Muhammad Amir who fell down. Ata Muhammad fired upon Muhammad Amir and injured him. In the meantime, Said Rasool fired gun shot in his self-defence and hit Amir son of Falak Sher. Thereupon all the appellants started firing upon the complainant party, as a result of which Lutaf Hussain Shah, Said Rasool got injuries and fell down. The assailants continued firing even on the four victims who had fallen down. The complainant, Yar Muhammad (not produced), Ahmad and Jehan P. Ws. took shelter in nearby kundar bushes. Raza Muhammad and Shabbir Hussain Patwari made good their escape. The appellants then came near the victims and fired from close range upon them. Thereafter, the dead-bodies were dragged by them towards the river. The two guns owned by Said Rasool and Raza Muhammad and revolver of Lutaf Hussain Shah found by the culprits on the scene of occurrence were removed by them. The eye witnesses then came out of their hiding and noticed that the assailants had gone towards the river bank. They followed the dragging marks and blood-stains and reached near the eastern bank of the river where they found the last worn clothes of the deceased lying by the side of the river bank, from where the dead bodies were thrown in the river. The eyewit nesses made search of the dead bodies and came across dead body of Amir. On alarm raised by them many persons were attracted whereupon Ghulam Abbas (P. W. 28), the complainant, posting them to guard the dead body of Amir, left for Police Station Piplan, where at 12-45 p.m. he lodged F. I. R. (Exh. P.W.. 28/L) which was recorded by Nasir Ahmad Alvi, S. H. 0. (P.W. 31).

6. Nasir Ahmad Alvi S. H. O. after recording F. I. R. and accompanied by the complainant, reached the spot, found the dead body of Amir, there prepared injury statement (Exh. P. N.), drew up inquest report (Exh. P. W. 31/A) and despatched the dead body to mortuary for post-mortem examination. He found from the spot dhoti of Amir deceased, some clothes of Lutaf Hussain Shah, Said Rasool and Tabbarak Hussain deceased, which he took into possession vide memos. Exh. P.W. 28/A, Exhs. P.W. 28/13 to D. Exhs. P. W. 28/13 to H and Exhs. P. W. 28/J and K, respectively. He collected blood-stained earth from the places of the murder of Amir, Said Rasool, Lutaf Hussain Shah and Tabbarak Hussain Shah vide memos. Exh. P. W. 3l/B, Exh. P. W. 31/C, Exh. P. W. 31/D and Exh. P. W. 31/E, respectively. He also took into possession blood=stained earth from a point near the dragging marks vide memo. Exh. P. W. 31/F. He further secured mare and camel produced by Jahan (P. W. 29) vide memo. Exh. P. W. 29/A and other articles, namely, cleaning iron bar (Gaz), Jareeb, Aks Shajra Parcha, Sangola, two pieces of bamboos, turban of Lutaf Hussain Shah and his pair of shoes a piece of shoe of Said Rasool, pair of chappal of Muhammad Amir and brown pair of chappal of Tabbarak Hussain Shah vide memos Exh. P. W. 28/Q, Exh. P.W. 28/M, Exh. P.W. 29/N, Exh. P.W. 28/0/1-2, Exh. P.W. 23/l-2, Exh. P.W. 28/S, Exh. P.W. 28/13/1-2, Exh. P.W. 28/U, Exh. P.W. 28/V/1-2 and Exh. P.W. 23/13/1-2, respectively. All the above-mentioned recoveries were attested by Bashir Ahmad and Ghulam Sarwar P. Ws. The Investigating Officer found Raza Muhammad injured, he prepared his injury statement vide memo. Exh. P. W. 31/H and sent him to Primary Health Centre, Hafizwala for medico-legal examination. On 29th September, 1976 the dead body of Said Rasool was traced out and he prepared the injury statement (Exh. P.L.) and inquest report (Exh. P.K.). He sent the dead body on the same day to the mortuary for post-mortem examination. On the next day viz., 21st September, 1976 the dead body of Tabbarak Hussain Shah was recovered and he prepared injury statement (Exh. P. E.), inquest report (Exh. P.W. 31/L) and des patched the dead body to mortuary for autopsy. The dead body of Lutaf Hussain Shah could not be traced out for over two months after the occurrence but on 28th November, 1976 Sultan Sikandar A. S. I. (P. W. 22) received information and recovered skull lying near the band of River Indus, which was identified by Muhammad Sibtain Shah (P. W. 21) to be his father Lutaf Hussain Shah deceased. The same was taken into possession by him vide memo. Exh. P. NN and witnessed by Muhammad Sibtain Shah (P. W. 21) and Nazar Hussain P.W. (not produ ced). He prepared inquest report Exh. P. NNl2 and sent the skull for examination.

7. On 20th September, 1976 Nasir Ahmad Alvi, the Investigating Officer arrested appellants Ata Muhammad son of Akbar Khan, Muhammad Ayyaz, Abdul Sattar, Muhammad Hanif, Sher Ahmad son of Muhammad, Muhammad Bashir, Ghulam Hussain and Sher Muhammad son of Ghulam Hussain and on 26th September, 1976 he arrested appellants Muhammad Akram, Ata Muhammad son of Ahmad Khan, Muhammad Afzal son of Falak Sher, Safiullah Khan, Ghulam Haider, Ghulam Ahmad, Sher Ahmad son of Nadir and Muhammad Ramzan. On 12th October, 1976 he arrested Muhammad Khan son of Jahan Khan. On 14th October, 1976 he arrested Muhammad Amir son of Falak Sher from Rural Health Centre, Hafizwala where he was admitted for treatment of the injuries, allegedly sustained by him during the occurrence. Umar Hayat S. I. (P. W. 19) on 28th October, 1976 arrested Muhammad Ajmal, Muhammad Nawaz and on 31st October, 1976 Rafi Ullah appellant when all of them appeared before Saadat Ali, D. S. P. On 3rd October, 1976 Ata Muhammad son of Akbar Khan produced rifle (P. 2) and licence (P. 2/A) which were taken into procession vide memo. Exh. P.S. On the same day Abdul Sattar produced gun (P. 3) with licence (P. 3/H) which were secured vide memo. Exh. P.T. On the next day viz. 4th October, 1976, Muhammad Ayyaz alias Ajaz produced gun (P. 4) with licence, which he took into possession vide memo. Exh. P.U. On 29th Sep tember, 1976 Sher Ahmad son of Muhammad produced before Nasrullah Khan A.S.I. (P. W. 16) gun (P. 6) and bandolier with cartridges (P. 711-10) which were taken into possession vide memo. Exh. P.W. On 12th October, 1976 appellant Ghulam Haider while in custody led to the recovery of gun (P. 8) with licence in his name and another gun (P. 9) of Said Rasul deceased which were secured by N4srullah Khan A.S.I. P. W. 16) vide memos. Exh. P.X. and Exh. P.Y., respectively. On the same day Sher Muhammad son of Nadir produced before him gun (P. 11) which was taken into possession vide memo. Exh. P. A. A. On 12th October, 1976. Muhammad Akram produced gun (P. 10) before him which he secured vide memo. Exh. P. Z. On 30th October, 1976 Aziz Khan produced Muhammad Nawaz's gun (P. 5) with licence before Ghulam Muhammad Head Constable (P. W. 14) which be took into possession vide memo. Exh. P. V. It is pointed out that all the above-mentioned recoveries were witnessed by the Investigating Officers and the police constables. Muhammad Tahseen (P. W. 18) on 26th September, 1976 produced before him the photographs of the spot, the dragging marks of dead bodies on the earth, and blood-stained earth near the river which were also secured by him vide memo. Exh. P. EE/1-7, Exh. P. FF/1-4, Exh. P. GG/1-3, Exh. P. HH. Exh. P. JJ, Exh. P. KK, Exh. P. LL, Exh. P. MM and Exh. P. MM/l, Exh. P. MM/2, and Exh. P. MM/3.

8. Dr. Sher Gul Khan (P. W. 1) on 19th September. 1976 at 7 p .m. examined Muhammad Amir son of Falak Sher, appellant and noticed a fire-arm penetrating lacerated wound 4/10" x 3/10" deep with inverted margins, over upper inner left gluteal region, suffered within 12 hours prior to his examination. On the next day at 5-45 a.m. he examined Raza Muhammad P. W. and observed a fire-arm penetrating wound 4/10" xl/10" on upper right heel with inverted margins caused within 24 hours duration.

9. Dr. Muhammad Qasim Incharge Primary Health Centre Kundian on 21st September, 1976 at 7-30 a.m. conducted autopsy on the dead body of Said Rasool and noticed four fire-arm wounds of entry, on the back of the right chest, on the left arm, over the bridge of nose, and on the left side of the forehead, respectively. He also found three incised wounds, viz. two in the abdomen and one over the umblicus. On internal examination he found pleura ruptured, and lungs, peritoneum punctured and smashed. All injuries he declared ante-mortem. In his opinion death occurred due to shock and haemorrhage caused by injury on the back of the right chest. He held the injuries suffered by the deceased sufficient to cause death in ordinary course of nature. On the same day at 4 p. m. he performed post-mortem examination on the dead body of Tabbarak Hussain Shah and observed in all six injuries. One of those was a fire-arm wound on the left side of the chest and another a stab wound 6 " x 4" on the abdomen. The stomach and intestines were coming out of the wound. He noticed pleura; left lung punctured while peritoneum and stomach cut: According to him all the injuries were ante-mortem and death occurred due to them. After examining post-mortem report Exh. P.H. and inquest report Exh. P.K. relating to Said Rasul he admitted that there was subsequent additions made in the inquest report to show use of sharp-edged weapon which did not exist in the inquest report when it was signed by him. He further admitted that fire-arm wounds entry over the bridge of nose and left side of fore bead could be caused with one fire-shot from the front side. He also admitted that Said Rasul had not taken food 4/5 hours before his death.

10. Dr. Muhammad Akram (P. W. 4) on 20th September, 1976 at 9 a. m. held autopsy on the dead body of Muhammad Amir and observed in all 15 injuries, out of which four were fire-arm injuries and the rest caused by sharp-edged and blunt weapons. He found whole of back and both thighs abraided, the scalp and skull smashed, membranes and brain lacerated peritoneum and pleura cut and right side of lung punctured. All injuries be held ante-mortem. In his opinion, death had taken place due to fire-arm injuries which he considered sufficient to cause death in ordinary course of nature. He stated that the inquest report relating to Muhammad Amir did not bear his signatures and that produced before him at the time of post-mortem examination was signed by him. The weapon of offence mentioned therein was fire-arm and mention of sharp edged weapon in the inquest report was subsequent addition. He admitted that all the four fire-arm injuries could be caused by single shot. He further admitted that injuries on the chest, abdomen and on back of left arm were caused by sharp-edged weapon, while those showing abrasions on abdomen, thighs and back of the deceased were caused by blunt weapon.

11. Lady Dr. Taquayya Abdi (P. W. 2) proved report (Ex. P.G.) of skull examined by her, according to her it was skull of a male adult.

12. The appellants when examined under section 342, Cr. P. C. pleaded not guilty to the charges against them. They denied prosecution allegations and professed innocence. They explained their false involve ment in the case at the instance of Murid Mehdi Khan, who bore enmity against them and the complainant side belonged to his party.

13. Ghulam Ahmad, Bashir, Ramzan, Shera son of Nadir, Nawaz, Ghulam Hussain, Saifullah, Abdul Sattar and Muhammad Akram appellants stated that Murid Mehdi Khan got them involved as they appeared as witnesses in criminal cases against him. Sher Ahmad, Muhammad Afzal and Muhammad Yaqub stated that they were involved by Murid Mehdi Khan as their brothers and relations appeared as witnesses against him. Muhammad Akram, Ata Muhammad Khan, son of Ahmad Khan and Ajmal Khan stated that they were implicated falsely on account of enmity with Murid Mehdi Khan. Rafi Ullah Khan stated that he was falsely involved by Murid Mehdi Khan in the case although he had no affiliation with either of the parties. Shera son of Ghulam Hussain stated that he was involved in the case by Murid Mehdi Khan as he opposed him in the election. Ghulam Haider appellant denied the recovery of gun (P. 9) belonging to Said Rasul deceased, at his instance and stated that the same was planted upon him. He further stated that the occurrence had taken place at about 6/7 a. m. when Murid Mehdi Khan alongwith his party men mounted aggression for forcible occupation of the land which led to cross-firing. Hanif appellant admitted his relationship with Ghulam Haider and stated that on the day of occurrence at about 6/7 a.m. Murid Mehdi Khan with deceased persons committed aggression to occupy the land forcibly. He, however, denied his presence at the spot. Muhammad Amir appellant who had injuries on his person in reply to a question stated :- "On the day of occurrence at about 6/7 a. m. I had demanded some kundar-bushes from one of my acquaintance and was cutting the same in that area. While I reached near the banna of Murid Mehdi Khan son of Ahmad Nawaz Khan a big landlord of Piplan. Zulfiqar, Iqbal Khan, Bashir accompanied by Iqbal son of Gamaya Khan and Ahmad Dare Khel were firing and I was hit by their fire and thus received the injuries. Later on, the police arrived at the spot. I was asked by Murid Mehdi Khan to become a witness in this case to which I refused and thus he implicated me falsely." Muhammad Yaqub appellant pleaded alibi and stated that at the relevant time he was in Baluchistan, as he had gone there for hunting hawks. Muhammad Ayaz alias Ajaz professed his innocence and stated that at the relevant time he was in his village but was falsely implicated by Murid Mehdi Khan. Ata Muhammad son of Akbar Khan stated that he was heart patient and remained under treatment at District Headquarter Hospital, Mianwali and released few days before the occurrence and that he was confined to bed in the house on the day of occurrence. All the appellants except appellant No. 7 (Sher Ahmad son of Ghulam Ahmad) desired to lead evidence in support of their innocence and examined seven witnesses in defence. 14.. The prosecution at the trial relied on the ocular account fur nished by Ghulam Abbas (P. W. 28). Jahan Khan (P. W. 29). Ahmad (P. W. 30), the medical evidence and finally the evidence of motive and recoveries.

15. The learned trial Judge accepted the prosecution case in its entirety. He rejected the defence version, convicted and sentenced the appellants as aforementioned.

16. We have heard learned counsel for the appellants, the State and the revision petitioner and have gone through the evidence on the record with their assistance. Learned counsel for the appellants argued that the eye-witnesses being closely related to the deceased and under the influence of Murid Mehdi Klan, an enemy of the appellants, it would not be safe to rely on their evidence without corroboration from other independent evidence on the record. He pointed out that in the instant case there was nothing on the record to provide adequate corroboration to the ocular 19831 version. The other contention raised was that the eye-witnesses did not see the occurrence and made false statements which suffered deliberate improvements, inconsistencies and exaggerations rendering their evidence not worthy of credence. Last point raised by the learned counsel was that the medical evidence did not go in accord with the oral evidence. The number of assailants who are reported to have fired on the deceased did not commensurate with the number of injuries suffered by the deceased.

17. Learned counsel for the State, assisted by Malik Allah Wasaya, Advocate learned counsel for Yar Muhammad father of Amir deceased, supported the prosecution case and adopted the reasoning of the learned Additional Sessions Judge recorded in the impugned judgment and stated that the case against the appellants stood amply proved for causing murder of the four persons.

18. The prosecution examined Ghulam Abbas (P. W. 28), Jahan Khan (P. W. 29) and Ahmad (P. W. 30) to furnish direct evidence. Ghulam Abbas P. W., the complainant in this case, is son of Said Rasool deceased. Ahmad P. W., is first cousin of Said Rasool deceased and uncle of Amir deceased. He is also maternal uncle of Ghulam Abbas P. W. Jahan Khan P. W. is also first cousin of Said Rasool deceased. It shows that eve-witnesses of the occurrence are closely related to the deceased and are also related inter se. The perusal of record shows that the complainant side belonged to party of one Murid Mehdi Khan, a local landlord who remained associated with the case from the day the F.I.R. was recorded at the police station to all important stages of investi gation. It is also proved from the evidence on record that he was engaged in serious criminal litigation with the accused party led by Ata Muhammad Khan son of Akbar Khan appellant. It is, therefore, clear that the ocular evidence in this case is of partisan nature and requires scrutiny with care. Following the rule of caution in evaluating evidence of interes ted witnesses, first of all we take up the evidence of recoveries to see if it provided corroboration of ocular version. It is significant to note that the prosecution alleged that twenty-found assailants armed with guns fired on the deceased for ton minutes but no empty was found on the place of occurrence. In the absence of empties the mere recoveries of guns were of no use to the prosecution as it did no connect the appellants with the commission of the crime. The license guns and a rifle produced by some of the appellants before the investiga ting Officer and the one owned by Said Rasool deceased and recovered at the instance of Ghulam Haider appellant, were not sent to Fire Arms Expert for examination, therefore, it cannot be said with certainty that the same were used in the commission of the crime. However, we find that neither any weapon of offence, nor any other type of inerimina-1 ting material was recovered from the following 14 appellants, namely, Rafi Ullah, Muhammad Ajmal, Muhammad Khan sun of Jahan Khan, Muhammad Yaqoob, Muhammad Amir, Atta Muhammad son of Ahmad Khan, Muhammad Afzal, Safiullah, Muhammad Ramzao, Ghuiam Ahmad. Muhammad Bashir, Ghulam Hussain, Muhammad Hanif and Sher Muhammad. The prosecution, therefore, would rely on ocular or other evidence to connect them with the crime. As far as the recoveries of other articles like last worn clothes of the deceased, blood-stained earth, camel and mare, etc. are concerned the same are of no consequence because the alleged witnesses of recoveries, namely, Ghulam Sarwar and Bashir Ahmad did not appear at the trial to testify the recoveries. The prosecution had to produce the eye-witnesses themselves to support the recoveries when the same were not evidenced by them. In this way the evidence of the alleged recoveries remained inconsequential and failed to provide independent corroboration to the ocular account.

19. The medical evidence also did not support the prosecution version inasmuch as that the eye-witnesses stated that all the 24 accused had guns with them and opened fire upon four deceased but the number of injuries suffered by the deceased as per statement of the doctor, could be caused by five shots. Obviously, therefore, the eye-witnesses exaggerated the number of the culprits who participated in the occurrence. Similarly neither is the F. I. R. nor in the inquest reports prepared by the Investigating Officer and duly signed by the doctor, there was mention of the use of sharp-edged weapon, but the deceased had on their bodies in juries caused by sharp-edged weapon. The prosecution's resort to interpolation was highlighted by the doctors who categorically refuted the 'prosecution assertion that the use of sharp-edged weapons found mention to the inquest reports. We may observe that it is not safe in all cases where there are large number of accused to seek corroboration from the medical evidence. The medical evidence may indicate the type and dimension of the injuries suffered by the victims and caused by particular type of weapon, bat cannot necessarily show as to which of the accused caused them unless those weapons are recovered from the accused and proved to have been used in the commission of the crime.

20. The prosecution alleged that the dispute over the grazing of the cattle occurred a fortnight earlier and subsequent demarcation proceedings on the land led to the occurrence, resulting in murder of four persons. The motive set up by the prosecution preceding the occurrence does not appear strong and impelling to induce the accused to stage such a bloody drama and actually remained dormant due to non-production of Raza Muhammad and Shabbir Hussain Patwari P. Ws. The motive set up by the prosecution even if deemed weak, in our view, does not help the defence, because of the murders committed with mysteriously hidden motive.

21. We are, therefore, left with the uncorroborated evidence of the eye-witnesses. The main question which requires our consideration, there fore, is to assess the inherent worth of the statements of eye-witnesses and to examine whether the eye-witnesses were present on the scene of occur rence and had in fact witnessed it and whether evidence inspires confi dence to base convictions of the appellants on murder charges entailing death penalties.

22. Ghulam Abbas, son of Said Rasool deceased is the author of the F. I. R. He laid information at the Police Station Piplan at 12-45 p. m. reporting that he alongwith Lutaf Hussain Shah, Tabbarak Hussain, Said Rasool and Amir reached the place of occurrence at 11 a. m. and occur rence had taken place at 11-30 a. m. but at the trial changed time of his arrival at Kacha Piplan to 8 a. m. and of occurrence to 10/11 a. m. This appears to be his conscious attempt; otherwise it was not possible for him to have reached the police station and lodged the report at 12-45 p. m. after covering distance of four miles. In the F. I. R. he stated that Muhammad Afzal Khan fired at Muhammad Amir which hit him and he fell down and then Atta Muhammad Khan fired which shot also hit him but in his statement before the trial Court he made improvement and stated that firing was made by Afzal and Atta Muhammad accused in quick succession. In the F. I. R. he stated that Ata Muhammad made two fire-shots on Muhammad Amir whereas at the trial he stated that Atta Muhammad made only one fire-shot. He was also not aware if Ata Muhammad was armed with rifle or gun. He did not mention about mare and camel brought by the assailants on the scene of occurrence but introduced the same in his statement at the trial. He also did not men tion about chhurra carried by Nawaz appellant in the F. I. R. but in his statement before the trial Judge he introduced it. The possibility that he introduced chhurra having been carried by Nawaz in his supplemen tary statement before the police, after post-mortem of the dead bodies and knowledge of the injuries suffered by the deceased cannot be excluded with normal certainty. This inference finds further support from the evidence of the doctors who pointed out interpolation to the inquest reports. Ghulam Abbas stated that the accused collectively fired towards the deceased and the eye-witnesses. The nearest accused to the witnesses was at a distance of 7 or 8 karams. The kundar bushes were at a distance of 10 or 15 karams towards east from the place where the blood of Amir deceased was lying. The witnesses ran towards the east bypassing from the south of the accused. The accused were firing at that time on the deceased from close range. They took shelter in bushes and an intermitting firing continued for 5 or 10 minutes after the witnesses had hidden themselves in the bushes of man's height. He made improvement and stated that while hiding in bushes he saw that all the deceased died on the spot. He, however, did not point out the place of his hiding in the kundar bushes to the Investigating Officer nor indicated the place to the draftsman who prepared the site plan. He further stated that he did not see dragging of the dead bodies by the accused but saw them when they had gone away by 330 karams towards the river. He admitted that during the days of occurrence complainant side belonged to the party of Murid Mehdi Khan. Jahan Khan (P. W. 29) stated that accompanied by deceased and other P. Ws. he had gone to the spot for demarcation of the land. Raza Muhammad and Shabbir Hussain Patwari were already there, when they started demarcation proceedings, the accused armed with guns except Nawaz, who was armed with chhurra and gun appeared on the scene of occurrence. Atta Muhammad and Afzal (since dead) raised lalkara whereupon Afzal and Atta Muhammad Khan simultaneously fired which hit Amir. Thereafter all the accused fired at the complainant party. Raza Muhammad and Shabbir Hussain Patwari ran away and the eye-witnesses took shelter in the kundar bushes. The accused fired intermittently when the eye-witnesses were hiding them selves. When the accused had gone away Sand 4 karams from the witnesses they came out of the hiding place and saw blood lying at the spot and the dragging marks going towards west to the river side. He took into possession the mare and the camel left by the accused. He could neither tell if Amir fell after receiving fire-shot from Muhammad Afzal or Atta Muhammad Khan nor knew the difference between chhurra and dagger. He admitted that it was after the dead body of Amir was found that the mare and camel were caught by him ; Ghulam Abbas did not mention in the F. I. R., about the mare and camel brought by the accused on the scene of occurrence. He admitted that Hanif and Haider, appellants resided near the place of occurrence, but other accused resided at 31 to 7 miles distance. He stated that accused bad arrived there between 9 and 9.30 a. m. but in his statement under section 161,' Cr. P.C. (Exh. D.H.), he had given the time of their arrival to be 11-30 a. m. with which he was confronted. He admitted that he neither owned nor cultivated any land in Kacha Piplan. He admitted that he had hidden himself in bushes from which he could not see anything. He admitted that he was standing near Amir deceased at a distance of 6 or 7 karams. Ahmad (P.W. 30) narrated the story like other P. Ws. He saw Nawaz giving 'chburro' blows, to the deceased and according to him P. Ws, came to hiding after they had seen the deceased receiving injuries on their persons. He did not know the names of the fathers of the accused but in his statement under section 161, Cr. P. C. (Exh. D.J.) he got recorded the names of the fathers of the accused. He also stated at the trial that the accused were at a distance of 7 or 8 karams from him. He also made improvements in his statement at the trial with which he was duly confronted.

23. On careful consideration, and deeper analysis of the ocular evidence, we get the impression that none of the eye-witnesses was present at the scene of occurrence at the relevant time. We are called upon to believe that notwithstanding the firing by twenty-four assailants on the eyewitnesses who were present with the deceased persons at a distance of few karams from them had a miraculous escape, because they succeeded in taking shelter in nearby kundar bushes. We, on the con trary, are of the view that had the witnesses been present there at the time of occurrence, as alleged by them and the intermittent firing had been done upon them by the accused from close range, none of them could have come out unscathed. We, therefore, doubt their presence at the spot at the time of occurrence. The site plan indicates that the eye-witnesses were at point No. 7 wherefrom they witnessed the occur rence. According to ocular version, the assailants came from eastern side and the eye-witnesses also ran towards eastern side to bide in the kundar bushes. It does not appeal to reason, that such large number of accused opened fire on them and still they escaped unnoticed while running towards the same direction. It also appears odd to believe that they were hiding at such a short distance as shown in the plan and watching the occurrence. Jahan Khan (P. W. 29) stated that the accused had gone away 3 or 4 karams from them when they came out of the hiding place and saw the blood lying at the spot. This assertion also seems incorrect otherwise it was easy for the assailants to capture them at that time. No empties were found at the spot although intermittent firing by large number of accused allegedly continued for ten minutes which further shows that the witnesses reached the spot long after the accused had left the scene and removed the empties therefrom or lonely few shots were fired in the absence of the eye-witnesses. The alter native that few shots were fired finds support from the medical evidence, but the eye-witnesses exaggerated the matter, which not only indicates that they were not there, but also weighs heavily on the veracity and credibility of their evidence. If they were hiding unnoticed by the accused in nearby kundar bushes of man's height then possibly they could not see the occur rence, which also manifests that they did not come out with true version of the occurrence. It is alleged that the eye-witnesses went after the accused following the dragging marks towards the river bank where the dead bodies were being taken to be thrown in the river, but on reaching after they encount ered difficulty in tracing the dead bodies, which indicates that they did not follow the accused, but had gone there long after they had thrown the dead bodies in the river. Similarly the complainant mentioned in the F. I. R. that he had detailed the other witnesses to guard the dead body of Amir, when he proceeded to lodge the report at the police station, but the Investigating Officer, when reached the spot did not find them there. The conspicuous absence of the eye-witnesses at that time also shows that the prosecution subsequently procured relatives of the deceased to cite them witnesses of occurrence. This being the state of evidence we are not sure if any one of the three eye-witnesses produced by the prosecution was present at the spot at the relevant time. It has been noticed that the eye-witnesses attempted at the trial to bring their statements in conformity with the medical evidence, for ins tance, Ghulam Abbas, the complainant did not mention about "chhurra" having been carried by Nawaz appellant, nor that he inflicted injuries with the same to the deceased, but introduced it at the trial to explain the incised wounds suffered by the deceased. There was, however, no mention of the use of sharp-edged weapon of offence in the inquest reports, as pointed out by doctors who conducted post-mortem on the dead bodies which goes to show that Jahan Khan and Ahmad P. Ws. also attempted to bring their statements in accord with the medical` evidence. They also tried to change the time of their arrival at the spot and the commence ment of the occurrence so as to conform to the time of lodging F. I. R. at the police station. The prosecution version regarding the number of the accused partici pating in firing upon the deceased and the witnesses far exceeded the number of injuries suffered by them which indicates an effort on the part of prosecution to rope maximum number of the accused regardless of their actual participation in the occurrence. The non-production of independent witnesses namely, Raza Muhammad and Shabbir Hussain Patwari whose presence at the spot is established from circumstantial evidence caused serious set back to pro secution case. As noted above the eye-witnesses who appeared at the trial were related to the deceased and under influence of Murid Mehdi Khan, admitted enemy of appellants, furnished evidence riddled with contradic tions and improvements. The learned trial Judge was mainly influenced by the fact, that the eye-witnesses had no direct enmity with the accused-appellants and that they would not substitute innocent persons for the real culprits, but overlooked the fact that presence of the eye-witnesses at the spot was highly doubtful, and they seemed to have volunteered to become eye witnesses presumably with the satisfaction that they would depose against the real culprits. We have however, found that on close apprecia tion of their evidence, it becomes clear that perhaps they did not witness the occurrence. The mere fact that they were not inimical towards the accused does not mean that whatever they stated was truth. Mr. Justice A slam Riaz Hussain of this Court, as he then was, in Muhammad Yasin v, The State (1973 P Gr. L J 448) observed: - A part from this, as held in Pir Muhammad and others v. The State (P L D 1970 Kar. 369) the mere fact that the prosecution witnesses are not inimical towards the accused, does not mean that whatever they have stated is necessarily true. It is possible, in some cases that as a result of the unwillingness of the actual witness (if any) of the occurrence, the relatives or friends of the deceased may come forward to depose against the accused-person due to a mistaken belief that if the latter had really committed the crime, they would be acting in aid of justice by supporting the prosecution case and making statement as "eve-witnesses" of the occurrence. As held by Mr. Justice Sajjad Ahmad Jan (as a Judge of the High Court of West Pakistan as his Lord ship then was) in Lakhmir v. The State (P L D 1968 Quetta 7) whatever the attributes of a witness, the best test of the correct ness of his statement, in the final analysis, is its own inherent worth in point of consistency as tested against the physical possibili ties and the circumstances surrounding the event to which his testimony relates.

24. Some of the appellants may have taken part in the commission of the offence; but corroboration is to be sought with respect to the parti cipation of each one of them. There is no reliable evidence to point out positively as to who were the actual perpetrations of the crime. It may be said that Muhammad Amir appellant got injuries on his person for which he was medically examined and his participation established, but there is nothing on the record to suggest that after he received fire-arm injuries on his person, he fired in response over the deceased or the prosecution witnesses. The mere fact that he sustained injuries on his person, may tend to prove that he was present at the spot but does not necessarily prove that he participated in the occurrence particularly when he refuted the allegation and nothing incriminating was recovered from him. 25. 1t is well-settled that ocular evidence in order to carry con viction on capital charge must come from unimpeachable source and supported by some strong circumstantial evidence. The Supreme Court) in Bagh Ali v. State (P L D 1973 S C 321) held :- As has been pointed out by the Court in the case of Thoba v. The State (P L D 1963 S C 40) the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused-persons with the crime, and there is a background of enmity. In such a situation the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence must necessarily create.

26. As noticed above, the ocular evidence in this case is of partisan nature and there is no independent corroboration forthcoming of this evidence against the appellants from an unimpeachable source, it will p not be safe to select for conviction those persons who are directly charged with specific role by the eye-witnesses for the commission of the crime. The. Supreme Court in Rehmat v. State (P L D 1959 S C (Pak.)109) held :- Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused-persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused person in the present case. 1n our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence. In the present case as well there is no circumstantial evidence or confessional evidence to connect the appellants with the crime. We are conscious of the gravity of the offence, which resulted in murder of four persons, but are constrained to observe that the evidence on the record does not warrant conviction of the appellants. The possibility that some of the accused having been falsely implicated in the case cannot be ruled out to moral certainty. The complainant threw his net too wide and the prosecution has to thank itself if some of the real guilty persons have escaped with the innocent.

27. For all these reasons, we hold that the prosecutions has failed to establish case against the appellants free from doubt and the benefit of doubt, however, slight must go to them. We, therefore, feel it extremely unsafe to maintain the convictions and sentences of the appellants on the uncorroborated ocular evidence. In the result we accept the appeals set aside the convictions and sentences of the appellants and give them benefit of doubt and acquit them. The death sentences of Nawaz, Hanif and Ghulam Haider are not confirmed. Since appellant's appeals have been accepted the revision petition fails and is, therefore, dismissed. Appeals allowed