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Criminal Appeals Nos. 20 to 22 of 1985, decided on 10th June, 1987.
(On appeal from the judgment of the High Court dated 16‑12‑1984, in Criminal Appeal No. 3, Cr. Reference No. 71 and Criminal Revision No. 2 of 1984).
‑‑‑S. 302‑‑Motive‑‑Insistence upon the proof of motive is not always necessary in a case of ocular evidence‑‑No hard and fast rule can be laid down as to whether a particular incident was sufficient to enrage or incite to commit an offence.‑‑[Motive].
In a case of ocular evidence, it is not always necessary to insist upon the proof of motive for committing an offence. The motive for committing an offence depends upon the character, psychological bent of mind and the society in which a person is brought up. In a particular society an incident may not be sufficient to constitute motive for committing an offence like murder, whereas it is different in case of another society or with another person. For instance the question of family honour involving sexual matter in Western Society may not give rise to motive for committing a murder, but it is otherwise in our society. Similarly, the factum of refusal of the hand of one's daughter to another may not be regarded as a motive for committing murder, so far as A may have concerned but the same may constitute sufficient motive for B who may have different reaction in view of his brought up or psychological approach to a problem. Thus, it is very difficult to lay down any hard and fast rule as to whether a particular incident was sufficient to enrage or incite to commit an offence. Thus, even if it is assumed for the sake of argument that the proof of motive to commit murder was necessary in a case, it cannot be said that the refusal by father to give his daughter in marriage to accused was not sufficient to incite accused and his two brothers to wreak vengeance for him.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Related witnesses‑‑No inherent defect in testimony of related witnesses found and record not showing that any independent witness had witnessed the occurrence but was not examined by prosecution‑‑Independent corroboration could not be insisted upon until and unless it was shown that witnesses were not only related but were also inimical towards the accused, especially so when the presence of the witnesses at the time of occurrence was not doubtful.
Thoba v. The State P L D 1963 SC 40; Munawar v. The State 1983 P Cr. L J 2075 and Hussain Ali v. The State 1977 SCMR 161 distinguished.
Mehrban v. The State P L D 1978 SC (AJ&K) 96 and The State v. Aminullah P L D 1972 Pesh. 92 ref.
‑‑‑S. 302‑‑Medical evidence‑‑Where the medical evidence contradicts testimony of the eye‑witnesses, it must not be followed that eye‑witnesses are not truthful as it depends upon intrinsic value of the evidence whether it is to be relied upon or not‑‑Contradiction between medical evidence and ocular testimony, if explainable, contradiction would not be fatal to the prosecution case.
Muhammad Azam v. The State P L D 1983 SC 193; Sardar Baig v. The State 1978 P Cr. L J 690; Abdul Shakoor v. The State 1982 P Cr. L J 32 and Muhammad Hasan v. State P L D 1982 Lah. 577 distinguished.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Illiterate witnesses‑‑Mathematical precision in case of distance not possible‑‑Where the eye‑witness account of the material particulars of prosecution story inspires confidence, mere discrepancies regarding relevant distances would not render their evidence doubtful.
‑‑‑S. 302‑‑Recovery‑‑Recovery attested by a witness who was related to deceased would not be considered as doubtful where it was not shown that any independent person was present on the spot when articles were seized.‑‑[Recovery].
Ahmed Khan v. The State 1982 P Cr. L J 74 distinguished.
‑‑‑S. 302‑‑Recovery‑‑Crime weapon‑‑Rifle recovered from accused and crime empties seized were sent to the Forensic Expert after some delay and Ballistic Expert was not produced as witness in trial‑ Inference.
Whether an inference should be drawn against the prosecution, if the fire‑arm and the empties are sent to the Forensic Expert after some delay, depends upon the circumstances of each case. In the instant case the parcel of the crime empties was prepared on the spot and in the cross‑examination it has not been suggested to the Investigating Officer concerned or the attesting witnesses that any substitution was made. Therefore, mere fact that the aforesaid articles were sent to the Expert after some delay would not justify an inference that the delay was caused due to substitution so as to concoct fictitious evidence against the accused. So far as the non‑production of Ballistic Expert as witness in the Court is concerned, it may be stated that in Azad Kashmir section 510 of the Cr.P.C. was amended on 20th February, 1984, whereby the report of Forensic Expert, Chemical Expert etc. etc. has been made admissible without calling them as witnesses.
Munawar v. The State 1983 P Cr. L J 2075 distinguished.
‑Criminal appeal is nothing but the continuation of the trial and thus amendment in the relevant statute which was procedural in nature would operate retrospectively.
‑‑‑ Procedural statute‑‑Amendment in procedural statute which was procedural in nature would operate retrospectively.
‑‑‑S. 302‑‑Mere recovery of weapons from accused persons, held, would not lend support to the prosecution case in terms that same were used during the incident.‑‑[Recovery].
‑‑‑S. 302‑‑Appreciation of evidence‑‑Witnesses of tender age‑‑No material contradictions in statement of such witnesses pointed out rather they fully corroborated statement of other two eye‑witnesses‑ Mere fact that witnesses were of tender age, would not render their testimony as doubtful.‑‑[Witness].
‑‑‑ Examination of witnesses‑‑All witnesses equally related to both parties‑‑No independent witness available in case‑‑Prosecution not examining all such eye‑witnesses‑‑Inference.‑‑[Witness].
It has not been shown that in the instant case there was any other independent evidence available and the same was not produced in the Court. It is not necessary for the prosecution to examine all the eye‑witnesses in a criminal case, especially so when the witnesses are of the same class, i.e. equally related to the parties concerned. However, if there are independent witnesses available in a case and prosecution chooses not to produce them at the trial, an adverse inference may be drawn in the particular circumstances of a case. but no such inference can be drawn when there are no independent eye‑witnesses of the occurrence.
‑‑‑S. 302‑‑‑Appreciation of evidence‑‑Related witness‑‑Credibility of evidence‑‑Where the witnesses are not shown to be inimical and were also related to the accused persons, Court, held, was not bound to insist for corroboration especially when evidence of such witnesses inspired confidence and rang true.‑‑[Witness].
Thoba v. The State P L D 1963 SC 40; Munawar v. The State 1983 P Cr. L J 2075 and Hussain Ali v. The State 1977 SCMR 161 distinguished.
‑‑‑Appreciation of evidence‑‑Principles.‑‑[Evidence].
The appreciation of the evidence in a criminal case is not governed by a mathematical formula and no hard and fast rules can be laid down in that regard. As in each case the witnesses are different and the circumstances vary, the appreciation of evidence cannot be subjected to a settled formula. It depends upon the intrinsic value of a witness deposition in the light of the peculiar circumstances of each case as to whether their testimony should be relied upon or not.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Eye‑witnesses clearly establishing that deceased persons were drowned in deep waters of Dam after they were pushed out of boat‑‑Whether dead bodies of deceased persons were identifiable or not, held, would hardly make any difference to the prosecution case.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Absorption of blood flowing from external injuries‑‑Possibility that blood of victim of assault might have been absorbed in the clothes and would not have dropped on earth present‑‑Mere fact that blood‑stained earth was not found at the place of occurrence would not make prosecution case doubtful.
Muhammad Rafiq v. The State P L D 1974 S C 65 ref.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Prosecution is not bound to prove the remote facts which had no direct bearing on the material particulars of the prosecution story.
‑‑‑S. 302‑‑Alibi, plea of‑‑Court cannot ignore the fact that a culprit may make sufficient arrangement for his quick disappearance from the place of occurrence and be present at any other place so as to fabricate the plea of alibi afterwards.‑‑[Alibi].
‑‑‑S. 302‑‑Plea of alibi‑‑Observations of Court has to be objective in holding that plea of alibi raised by accused had created reasonable doubt regarding his participation in the commission of the offence with which he was charged.‑‑[Alibi].
‑‑‑S. 302‑‑Alibi, plea of‑‑Creation of reasonable doubt by plea‑ Effect‑‑Reasonable doubt‑‑What is‑‑Plea of alibi by accused cannot make testimony of four eye-Witnesses against him doubtful, specially so when there is not even a suggestion that these witnesses had any enmity with him.‑‑[Alibi].
‑‑‑S. 302‑‑Sentence, reduction in‑‑Life expectancy, doctrine of‑ Application.‑‑[Sentence].
Muhammad Hanif v. The State 1983 P Cr. L J 225; State v. Naseer Ahmed P L D 1986 SC (AJK) 35; Muhammad Ramzan v. The State P L D 1966 S.C. 129; Ghulam Hussain v. Zainullah P L D 1961 S.C. 230; Muhammad Sharif v. Muhammad Javed P L D 1976 SC 452 and Assadullah v. Muhammad Ali P L D 1971 SC 541 ref.
‑‑‑S. 302‑‑Criminal Procedure Code (V of 1860), S. 382‑B‑‑Benefit of provision of S. 382‑B, Cr.P.C. when pot justified to be extended to the accused.
Jamala v. The State 1983 P Cr. L J 809 and Muhammad Aslam v. The State 1982 S C M R 709ref.
Mirza Muhammad Nisar, Additional Advocate‑General for Appellant (in Criminal Appeal No. 20 of 1985 and for Respondent(in Criminal Appeal No. 22 of 1985).
Raja Lehrasap Khan for Respondents (in Criminal Appeals Nos. 20 and 21 of 1985).
Ch. Muhammad Taj for Appellant (in Criminal Appeal No. 21 of 1985).
Muhammad Abdul Khaliq Ansari for Appellants (in Criminal Appeal No. 22 of 1985) .
‑‑ Since the above entitled appeals have arisen out of single judgment of the High Court and pertain to single incident, we propose to dispose of the same by this order.
The brief facts giving rise to the present appeals are that according to the prosecution one Adalat Khan, his brother Khairat Ali, Mahmood, son of Adalat Khan, and Zahida Bibi, the daughter of Adalat Khan, alongwith six other members of the family proceeded to Gujar Khan on 12‑4‑1980, by a 'Machwa' [fishing boat] to attend the marriage ceremony of one Jahangir, who was related to them. The members of the party set out for Gujar Khan from village Chana, situated in Mirpur, in the morning of 12‑4‑1980 via Mangla Dam. When the party reached the bank of Gaderi Nullah; in Mohra Pehl Gujran, Muhammad Arif, appellant, came out of bushes and fired with 7‑mm rifle at Khairat Ali, who was injured and died in the 'Machwa'. Mst. Naseem Akhtar, complainant, alongwith her baby son, Sultan Mahmood, Mst. Gulshad, Mst. Tazeem Akhtar, Mst. Parveen Akhtar and Mst.Irshad Bibi, who were also travelling by 'Machwa', jumped out of it, whereas Adalat Khan, his son Mahmood, who was roving the 'Machwa' and Mst. Zahida Bibi, the daughter of Adalat Khan, remained seated in the 'Machwa'. After the shot had been fired at Khairat Ali, Tariq, Yaqoob, Rasab, appellants and Muhammad Akram, respondent, who were armed with .12‑bore guns also came out of the bushes shouting 'lalkara'. Thereafter, all of them including Arif boarded the 'Machwa'. Arif, accused, fired several shots at Sultan Mahmood with 7‑mm rifle, who died in 'Machwa' and then the accused persons ordered Adalat Khan to take the 'Machwa' back to deep waters of the Dam. Adalat Khan had roved back the 'Machwa' few yards when all the accused started teasing and catching hold of Mst. Zahida Bibi. When Adalat Khan intervened to save Mst. Zahida Bibi from the clutches of the assailants, he was pushed out by the assailants in the deep water of the Dam. Mst, Zahida Bibi, the daughter of Adalat Khan, who was clinging to her father, also fell in the Dam along with her father. Then all the assailants started firing at Adalat Khan and Zahida Bibi and the unfortunate father and the daughter vanished in deep water of the Dam and died. After that the, accused persons roved the 'Machwa' back to the 'nullah' and ran away from the spot.
The motive for murders is stated to be that Tariq, Muhammad Yaqoob, appellants, and their mother had asked for the hand of Mst. Zahida Bibi, the daughter of Adalat Khan, for Muhammad Arif, appellant, but Adalat Khan refused to oblige them. Thus, Muhammad Arif, Tariq and Yaqoob, appellants, became inimical to the complainant party. The occurrence was stated to have been witnessed by Mst. Naseem Akhtar, the complainant, Mst. Tazeem Akhtar, Mst. Parveen Akhtar, Mst. Gulshad Bibi, Mst. Irshad and Gulbahar, a relative of the complainant party, who was also roving his 'Machwa' in the Dam at the time of incident; few yards behind the 'Machwa' of the complainant party. The F.I. R of the incident was lodged by Mst. Naseem Akhtar at Police Station Mirpur at 1‑30 p.m. on the same day and the police reached the place of occurrence at about 2.00 p.m. After the investigation, the accused‑assailants faced the trial under sections 302, 147, 148, 149 A.P.C. for committing murders of Adalat Khan, Mst. Zahida Bibi, Khairat Ali and Mahmood in the Court of Additional Sessions Judge, Mirpur, who convicted and sentenced each of them; Arif, appellant, was awarded death sentence and a fine of Rs.2,000 under section 302, A. P. C. in addition to two years' rigorous imprisonment plus fine of Rs.500 under section 148, A.P.C. while the other four accused, namely; Muhammad Yaqoob, Muhammad Tariq, Muhammad Rasab and Muhammad Akram were convicted and sentenced to life imprisonment under section 302, A.P.C. read with section 149, A.P.C. plus fine of Rs.2,000 each, in addition to the sentence of two years rigorous imprisonment and a fine of Rs.500 under sections 147, 148, A.P.C. The accused /convicts preferred an appeal before the High Court against their conviction and sentences; the State filed a revision petition in the High Court praying for the enhancement of sentence of life imprisonment awarded to the aforesaid four accused. The High Court rejected the revision petition filed by the State, while partly accepting the appeal filed by Muhammad Arif and others acquitted Muhammad Akram, respondent, holding that his plea of alibi had created a reasonable doubt regarding his association in the commission of the offence. Muhammad Arif and others have appealed in this Court against their conviction and sentences; the State has preferred an appeal against the acquittal of Muhammad Akram, while Mst. Naseem Akhtar has appealed against the order of acquittal of Muhammad Akram as well as for enhancement of the sentences awarded to Muhammad Tariq, Muhammad Yaqoob and Muhammad. Rasab.
We have heard the arguments and gone through the record. It has been argued by Mr. Muhammad Abdul Khaliq Ansari, Advocate appearing on behalf of the appellants‑‑ Arif and others that the F.I.R was prepared by the investigating officer after visiting the spot and after conducting the preliminary investigation. The learned counsel has maintained that as the F.I. R. was not recorded on the printed form, it would imply that the same was recorded on the spot after holding the preliminary investigation. He has further argued that according to the statements of, Mst. Irshad Bibi, P.W., Walayat Khan, the real brother of Adalat Khan, and Sardar Ali, a relative of the complainant party reached the place of occurrence on 12‑4‑1980 when the police was still there. He has submitted that this is an admitted fact that these two persons were residing at Gujar Khan and Mandra, places situated at a considerable distance from the place of occurrence. Thus, according to the learned counsel, they were sent for by the relatives of the deceased to help in concocting a case against the appellants. He has also argued that the presence of the aforesaid two persons on the spot within few hours of the incident, makes the prosecution story doubtful and lends support to his version that the F.I.R. was prepared after consultation with the aforesaid two persons. He has further contended that had these two persons been not informed of the incident it would not have been possible for them to reach the spot so early from the places of their abode. In alternative, he has argued that F.I. R. , in any case, was lodged after the delay, at least, of an hour.
We have given our due consideration to the arguments advanced by the learned counsel for the appellant, Muhammad Arif. It may be stated that Walayat Khan and Sardar Ali do not admit that they visited the place of occurrence on the day of occurrence, i.e., 12‑4‑1980. The other P.Ws. except Mst. Irshad Bibi, do not admit that either of these two person reached the place of occurrence on 12‑4‑1980. The statement of Mst. Irshad Bibi regarding the arrival of Sardar Ali and Walayat at the place of occurrence appears to be a casual assertion. Even otherwise, we are of the opinion that assuming for the sake of arguments that the aforesaid persons reached the spot on the day of occurrence, it does not lead to the inference that the F.I.R. was prepared on the spot after consulting them; especially so when Sardar Ali, who happens to be a recovery witness in the case, is the real maternal uncle of Muhammad Arif, Muhammad Yaqoob and Muhammad Tariq, appellants. It is not believable that the maternal uncle of the accused persons was sent for helping to concoct a case against his nephews. So far as the argument that as the F.I.R. was not records on the printed form, it creates doubt that the same was prepared after conducting preliminary investigation is concerned, the High Court has sent for the relevant register from the Police Station and found that a number of F.I. Rs. was recorded by the Police on plain papers and not on the printed forms. It is a matter of common experience that at times printed forms are not available at the Police Stations and the Police records first information reports on the plain papers. Had the Police intended to record F.I. R in question after preliminary investigation it would not have been difficult for them to take along the relevant printed forms with them and record the F.I.R. on the same and not on the ordinary paper. So far as the delay in lodging the F.I.R. is concerned, we are of the opinion that there is absolutely no delay in the instant case. The Police Station situated at a distance of nine miles from the place of occurrence. Mst. Naseem Akhtar has stated that she had also to wait for transport at a place known as "Kharak'. Even according to the calculations made by the learned counsel for the appellant the delay in lodging the F.I. R. is not more than an hour. Taking into consideration the circumstances of the case, the distance of Police Station and the fact that the complainant, Mst. Naseem Akhtar, had to wait for some vehicle at Kharak, it hardly persuades us to hold that there was any delay in lodging the F.I. R. Assuming for the sake of argument that there is delay of an hour in lodging F.I.R., it is insignificant and cannot be said to affect the prosecution case adversely; taking into consideration the unfortunate features of the incident.
It has also been contended on behalf of the convicts‑appellants that motive for committing the offence so far as Muhammad Arif, Muhammad Yaqoob and Tariq are concerned is very weak; and there is no motive in case of Rasab, appellant, and Muhammad Akram, respondent. The learned counsel has argued that mere fact that Adalat Khan had refused to give hand of his daughter of Muhammad Arif about a year prior to the date of occurrence cannot be said to constitute a motive for committing four gruesome murders. It may be observed that in a case of ocular evidence, it is not always necessary to insist upon the proof of motive for committing an offence. Moreover, the motive for committing an offence depends upon the character, psychological bent of mind and the society in which a person is brought up. In a particular society an incident may not be sufficient to constitute motive for committing an offence like murder, whereas it is different in case of another society or with another person. For instance the question of family honour involving sexual matter in Western Society may not give rise of motive for committing a murder, but it is otherwise in our society. Similarly, the factum of refusal of the hand of one's daughter to another may not be regarded as a motive for committing murder so far as A may have concerned but the same may constitute sufficient motive for B who may have different reaction in view of his brought up or psychological approach to a problem. Thus, it is very difficult to lay down any hard and fast rule as to whether a particular incident was sufficient to enrage or incite to commit an offence. Thus, even if it is assumed for the sake of argument that the proof of motive to commit murders was necessary in the instant case, it cannot be said that the refusal by Adalat Khan to give his daughter in marriage to Muhammad Arif was not sufficient to incite Arif and his two brothers to wreak vengeance from him.
Next, it has been argued by the learned counsel for the appellants that the eye‑witnesses, i.e., Mst. Naseem Akhtar, Mst. Gulshad, Mst. Irshad Bibi and Gulbahar are closely related to the deceased persons and are also inimical to the appellants. Therefore, according to the learned counsel for the appellant, the conviction against the appellants could not be recorded without independent corroboration. He has argued that it is admitted by the prosecution witnesses that before the arrival of the police two or three persons had already reached the spot, but none of them has been cited as witness. The Courts below have opined that mere relationship of the aforesaid witnesses with the deceased person does not make them partisan or interested witnesses and thus their testimony does not require any corroboration for sustaining the conviction of the accused appellants.
It has been argued on behalf of the State that mere relationship is no ground for rejecting the testimony of the eye‑witnesses and no independent corroboration of the statements of such witnesses is necessary if they inspire confidence otherwise. The learned counsel has further submitted that there is nothing on the record to substantiate the contention that the eye‑witnesses were inimical to the appellants and to Muhammad Akram, respondent. The mere fact that Adalat Khan had refused the hand of his daughter to Muhammad Arif would not imply that Adalat Khan, and eye‑witnesses turned inimical to accused persons; in case of Rasab, appellant, and Muhammad Akram, respondent, even the aforesaid ground of any malice in the mind of the prosecution witnesses is not available, because they are not related to Arif and others. The learned counsel for the appellants has cited "Thoba v. the State [P.L.D. 1963 S.C. 40], "Munawar v. The State" [1983 P.Cr.L.J. 2075] and "Hussain Ali v. The State" (1977 S.C.M.R. 161) , in support of his contention that where the eye‑witnesses are related and inimical, independent corroboration is necessary for proving the guilt of an accused person.
In reply the learned counsel for the respondent has referred to "Mehrban v. The State" [P.L.D. 1978 S.C. (AJK) 96] and "The State v. Aminullah" [P.L.D. 1972 Pesh. 92] in support of his contention that it is not necessary to seek corroboration in case of related witnesses. He has argued that independent corroboration may be necessary if the witnesses are related to the deceased and are also inimical to the accused but not in case of relationship only.
After giving our due consideration to the matter, we are not persuaded by the arguments that eye‑witnesses in the instant case were in any way inimical towards the accused‑appellants and Muhammad Akram, respondent. There is no material on the record to justify the contention that the eye‑witnesses had any animosity against the appellants. The authorities cited by the learned counsel for the appellants, wherein the corroboration of the testimony of the related witnesses was sought, show that in those cases the witnesses were not only related but they were also inimical towards the accused. There was blood‑feud between the parties prior to the occurrence which resulted in the commission of the offence. Until and unless it is shown that the witnesses were not only related but were also inimical towards the accused, the independent corroboration cannot be insisted upon, especially so when the presence of the witnesses at the time of occurrence is not doubtful. After going through the statements of the eye‑witnesses, we are of the considered view that the eye‑witnesses in the instant case entertained no animosity in their minds against the appellants and Muhammad Akram, respondent. Thus, the argument that their testimony could not be relied upon without corroboration is not tenable and is repelled. There are no other inherent defect in the testimony of these witnesses necessitating the independent corroboration of their statements. There is also nothing on the record that any independent witness had witnessed the occurrence and he was not, examined by the prosecution.
The learned counsel for the appellant has also argued that "the testimony of the eye‑witnesses is contradicted by medical evidence and as such is not reliable. He has submitted that according to the prosecution Muhammad Arif, appellant, fired one shot at Khairat Ali which resulted in his death but according to the medical report there were two entry wounds on his head; some of the injuries on the persons of Mahmood were found scorched while the other were not so; which implies that some of the shots were fired at Mahmood from a close range while the other were fired from some distance. The learned counsel has cited following authorities in support of his contention that where the testimony of the eye‑witnesses is belied by the medical evidence it must be disbelieved: "Muhammad Azam v. The State" [P.L.D. 1983 S.C. 193], "Sardar Baig v. The State" [1978 P.Cr.L.J. 690] "Abdul Shakoor v. The State" [1982 P.Cr.L.J. 32] and "Muhammad Hasan v. State" [P.L.D. 1982 Lah. 577].
In all the above mentioned cases the ocular evidence was disbelieved, inter alia, on the ground that it was contradicted by medical evidence. Coming to the instant case it may be pointed out that all the eye‑witnesses have stated that Muhammad Arif fired one shot at Khairat Ali after coming out of his hide out. As has already been pointed out, Muhammad Arif and other accused persons, after the first shot had been fired by Arif from bushes, ran towards the 'Machwa', boarded the same and started firing at Mahmood. Therefore, the possibility cannot be ruled out that one of the shots fired by Muhammad Arif in 'Machwa' might have hit Khairat Ali when he was lying injured in 'Machwa' or Muhammad Arif might have fired directly at Khairat Ali after getting into 'Machwa'. Some of the shots fired by Muhammad Arif while he was in 'Machwa' also hit the planks of 'Machwa' as some bullets marks were also noted on the planks. In view of the confusion created by sudden assault and reckless firing by Arif after boarding the 'Machwa' the eye‑witnesses could not note that a second shot had also hit Khairat Ali. So far as the question that some of the injuries on the person of Mahmood were scorched while the others were not is concerned, that also cannot be said to contradict the testimony of the eye‑witnesses; because the eye‑witnesses have nowhere stated that Muhammad Arif fired all the shots from the same point. The 'Machwa' is stated to be 17 feet long. Some of the shots must have been fired at Mahmood from a close range while the others from comparatively large distance. Even otherwise, it cannot be said that in all the cases the medical evidence must have preference to eye‑witnesses' account of an incident. The possibility of medical evidence being tainted or being unreliable due to the inefficiency of the Doctor concerned is always there. For instance, in the instant case Dr. Manzoor Ahmed, P.W., who had performed the post‑mortem on the dead‑bodies has stated in the cross‑examination that the injuries found on the person of Mahmood could be caused from a distance of 50 yards. Although he has stated that he was not an Arm Expert, yet even as Doctor, he must have known that injuries caused by a fire arm from a distance of 50 yards would not be 'scorched'. He has futher stated that he cannot say as to where the bullets had gone after entering the body of Mahmood. There could be many explanations for that too. Thus, it is not always true to say that if the medical evidence contradicts the testimony of the eye‑witnesses, it must necessarily follow that eye‑witnesses are not truthful. It depends upon the intrinsic value of the evidence of a witness whether he is to be relied upon or not. As the contradiction, if any, between the medical evidence and the ocular testimony is explainable in the instant case, that is not fatal to the prosecution case.
The learned counsel has also stressed that as there are discrepancies in the statements of the eye‑witnesses regarding the distance from where the shots were fired, their testimony is doubtful. It may be stated that in case of illiterate witnesses the mathematical precision is not possible in case of distance. Even literate witnesses sometime are liable to commit error in making an assessment regarding the distances involved in an occurrence. Thus, if the eye‑witness' account of the material particulars of the prosecution story inspires confidence, mere discrepancies regarding the relevant distances would not render their evidence doubtful.
The learned counsel for the appellant has also challenged the recovery of the 7‑mm rifle and the licence from Muhammad Arif, appellant, on the ground that the witnesses, who had attested the recovery memo., were not independent. He has argued that both Walayat Khan and Sardar Ali, the attesting witnesses of the recovery memo., are related to the complainant party. The learned counsel has argued that in view of the provision contained in section 103. Cr.P.C. the recovery memo. should have been attested by two independent witnesses of the locality. It may be pointed out that Sardar Ali, one of the attesting witnesses of the recovery memo., is the maternal uncle of Muhammad Arif, Muhammad Yaqoob and Tariq, appellants. Thus, Sardar Ali is related to both, Adalat Khan, deceased, and the aforesaid appellant. Moreover, according to the statements of Walayat Khan and Sardar Ali when the police went in search of Muhammad Arif, accused, he came across them in the way when he was proceeding from a place Baili to Gargen. The rifle in question which was seized by the Police was with him; so was the licence of the rifle. The circumstances in which the aforesaid rifle and licence were taken into possession by police, it was not possible for them to send for any independent witness because they had to arrest the said accused on the spot and seize the articles found with him. Even otherwise, Sardar Ali being his maternal uncle, their remains hardly any reason for doubting his credibility. Therefore, the contention that the recovery of rifle and licence from Muhammad Arif is doubtful is not tenable and is repelled.
The learned counsel for the appellants had also tried to persuade us that the seizure of five crime empties of 7‑mm rifle which were found scattered in 'Machwa' and one crime empty which was found at the place from where Muhammad Arif had fired his first shot at Khairat Ali, is doubtful because the seizure memo. was attested by Gulbahar and Allah Dad out of whom Allah Dad was not examined because he had died, whereas the other attesting witness Gulbahar is the son‑in‑law of Adalat Khan, deceased. It is on the record that when the Police reached the spot and inspected the same, Gulbahar and Allah Dad were already present on the spot. It has not been shown that any independent witness was present on the spot at that time. It is also on the record that the place of occurrence and the surrounding areas were not inhabited. Under these circumstances it is too much to say that the seizure of the above crime empties is doubtful merely because the police should have first sent for some independent persons from the locality before seizing the aforesaid crime empties. From the trend of the cross‑examination directed to Gulbahar and Police Officer concerned, who seized the crime empties, there is hardly any justification for the argument that the said crime empties were not found at the place of occurrence and the same were subsequently substituted. The learned counsel has referred to a case reported as "Ahmed Khan v. the State" [1982 P.Cr.L.J. 74], in which recovery was held doubtful because the same was attested by the witnesses who were related to the deceased. The facts of that case are distinguishable because in that case when the recovery was made there were as many as 9/10 independent persons present on the spot but despite that the recovery was got attested by the close relative of the deceased. As has been already pointed out, in the instant case it is not shown that any independent person was present on the spot when the aforesaid articles were seized.
The learned counsel for the appellants has argued that the rifle recovered from Muhammad Arif and the crime empties seized were sent to the Forensic Expert after delay of one month and as such the same should be ruled out of consideration. He has further argued that the report of Forensic Expert was not proved by producing the concerned Expert as witness in the trial Court and as such the High Court has erred in reading the said report as evidence against Muhammad Arif, appellant. There are contradictory rulings on the point as to whether delay in sending the fire‑arm and the empties to the Forensic Expert would justify an inference against the prosecution that some substitution was made; one view is that such an inference can be raised, whereas the other view is that if there are no other circumstances pointing towards any such substitution, such an inference should not be raised. The learned counsel for the appellant has referred to a case reported as "Munawar v. The State" [1983 P.Cr.L.J. 2075], wherein the crime empties were not sent to the expert until the recovery of the gun. It was opined that as the parcel of the crime empties was withheld without any obvious reasons till the recovery of the gun, the recovery in the circumstances of the case did not link the accused with the crime. It may be stated that in the case the main evidence against the accused was recovery of the fire‑arm. In the instant case, the rifle was recovered from Muhammad Arif, appellant, one day after the incident; the crime empties were seized only one day earlier. Therefore, it cannot be said that the crime empties were not sent to Forensic Expert because the rifle had not been recovered. Whether an inference should be drawn against the prosecution, if the fire‑arm and the empties are not sent to the Forensic Expert after some delay, depends upon the circumstances of each case. In the instant case the parcel of the crime empties was prepared on the spot and in the cross‑examination it has not been suggested to the Investigating Officer concerned or the attesting witnesses that any substitution was made. Therefore, mere fact that the aforesaid articles were sent to the Expert after some delay would not justify an inference that the delay was caused due to substitution so as to concoct fictitious evidence against the accused. So far as the non‑production of Ballistic Expert as witness in the Court is concerned, it may be stated that in Azad Kashmir section 510 of the Cr.P.C. was amended on 20th February, 1984, whereby‑ the report of Forensic Expert, Chemical Expert etc. etc. has been made admissible without calling them as witnesses. It may be observed that the aforesaid amendment was brought when the judgment in the instant case had already been announced by the trial Court and the appeals were pending in the High Court. The appeal in a criminal case is nothing but the continuation of the trial and thus the aforesaid amendment being procedural in nature would operate retrospectively. Therefore, the High Court has rightly read the report of the Forensic Expert against the appellant, Muhammad Arif. So far as the recoveries of .12‑bore guns from Muhammad Yaqoob,, Tariq, Rasab and Akram are concerned, we are of the opinion that those do not by itself link the accused persons with the commission of offence because no crime empty of any cartridge was seized from the spot or recovered from, any of the said accused nor any injury is shown to have been caused to any of the victims of assault by a .12‑bore gun. Therefore, mere recovery of the said guns from the said appellants would not lend any support to the prosecution case in terms that the same were used during the incident.
The learned counsel for the appellant has assailed the evidence of Irshad Bibi and Gulshad Begum on the ground that they being of 13/14 and 10/11 years of age respectively, their evidence must be ignored especially so because the prosecution did not examine the other women, namely; Mst. Tazeem Akhtar and Mst. Parveen Akhtar, who sere major and were also the eye‑witnesses of the occurrence. He has argued that ordinarily the evidence of a child witness should be seen with suspicion because such witness can be easily tutored. He has maintained that non-production of Mst. Tazeem Akhtar and Mst. Parveen Akhtar creates doubt regarding the prosecution story and has stressed that an adverse inference must be drawn against the prosecution to the effect that had the aforesaid two women been produced they would not have supported the prosecution story.
We have closely perused the evidence of Mst. Irshad Bibi and Mst. Gulshad Begum. They have been subjected to very long cross‑examination and their evidence could be shattered on the material particulars of the prosecution story. In fact there are no material contradiction in their statements and they fully corroborate the statements of Mst. Taseem Akhtar and Gulbahar the other two eye‑witnesses. The mere fact that the aforesaid two witnesses are of tender age, does not render their testimony as doubtful, specially so when there presence on the spot is not doubtful. So far as the non‑production of Mst. Parveen Akhtar and Mst. Tazeem Akhtar is concerned, it may be observed that they are also related to the deceased more or less in the same degree as Mst. Irshad Bibi and Mst. Gulshad. It is not necessary for the prosecution to examine all the eye‑witnesses in a criminal case, especially so when the witnesses are of the same class, i.e., equally related to the parties concerned. However, if there are independent witnesses available in a case and prosecution chooses not to produce them at the trial, an adverse inference may be drawn in the particular circumstances of a case, but no such inference can be drawn when there are no independent eye‑witnesses of the occurrence. As has already been pointed out that it has not been shown that in the instant case there was any other independent evidence available and tie same was not produced in the Court.
The learned counsel for the appellants has also argued that the prosecution case is doubtful because independent corroboration of the prosecution story is not available. As has already been pointed out the relationship is no ground to discredit the testimony of a related witness. Besides, in the instant case the eye‑witnesses are also related to the appellants, namely, Muhammad Arif, Yaqoob and Tariq. It has been stated by Mst. Irshad Begum that they were the sons of her aunt. It may be stated here that Mst. Irshad Begum is the daughter of Adalat Khan, deceased. Khairat Ali, deceased, was the real brother of Adalat Khan; she is also real sister of Mst. Zahida Bibi, deceased. If the witnesses are not shown to be inimical and they are also related to the accused persons, there is hardly any merit in the argument that the Court must insist upon corroboration, especially so when the evidence of such witnesses inspires confidence and rings true. The learned counsel has cited the following authorities to support his contention that in the instant case there being no independent corroboration of the eye‑witnesses, the benefit of doubt should be given to the appellants: "Thoba v. The State" [P.L.D. 1963 S.C. 40], "Munawar v. The State" [1983 P.Cr.L.J. 2075] and "Hussain Ali v. The State" [1977 S.C.M.R. 161].
The perusal of the aforesaid authorities reveals that in those cases the testimony of the witnesses were doubted for one reason or the other and they were also found inimical to the accused persons. No such eventuality exists in the instant case. Therefore the authorities cited by the learned counsel for the appellant have no relevancy to the facts of the case in hand. Even otherwise, the appreciation of the evidence in a criminal case is not governed by a mathematical formula and no hard and fast rules can be laid down in that regard. As in each case the witnesses are different and the circumstances vary the appreciation of evidence cannot be subjected to a settled formula. It depends upon the intrinsic value of a witness deposition in the light of the peculiar circumstances of each case as to whether their testimony should be relied upon or not. We have already held that evidence of the eye‑witnesses in the instance case rings true and their credibility is not open to any doubt.
Next, it has been argued by the learned counsel for the appellants that it was not possible to identify the dead‑body of Mst. Zahida Bibi, whose skeleton was found at the bank of the Dam two months after the incident. He has argued that the remains' of the body were not identifiable and it is hardly believable that the witnesses were able to identify the body from 'Azarband' parts of the remains of the garments which she was wearing at the time of the incident. He has further argued that similarly the dead‑body of Adalat Khan was not found even at all. In view of the evidence of the four eye‑witnesses that the unfortunate father and daughter drowned in deep waters of Mangla Dam after they were pushed out of 'Machwa' by the appellants and Muhammad Akram, respondent. It makes hardly any difference as to whether the dead body of Mst. Zahida Bibi was identifiable or not. We agree with the learned counsel for the appellants that the identification of the remains of the dead body alleged to be that of Mst. Zahida Bibi is not beyond doubt, but that does not make any difference so far as the prosecution case is concerned. The learned counsel for the appellants has also urged that the blood which was taken into possession from 'Machwa' was only found at one place, whereas according to the prosecution Mahmood and Khairat Ali both were killed in 'Machwa' and their dead‑bodies remained lying in 'Machwa' till the arrival of the Police. The learned counsel maintained, had it been the fact that the aforesaid two persons were murdered in 'Machwa' the blood would have been found at two places. He has further argued that the report of Serologist was not placed on the record to ascertain the origin of the blood found in 'Machwa'. The possibility that blood of one of the victims of assault who were killed in 'Machwa' might have been absorbed in the clothes and would not have dropped in 'Machwa' in sufficient quantity cannot be ruled out.
A reference may be made to "Muhammad Rafiq v. The State" [P.L.D. 1974 S.C. 65], wherein it was held that blood following from external injuries might have been absorbed by clothes and mere fact that blood‑stained earth was not found at the place of occurrence would not make the prosecution case doubtful.
The learned counsel has also argued that according to Gulbahar, P.W., he had also gone towards the place of occurrence by his 'Machwa' but 'Machwa' was taken into possession. We are of the opinion that there is no controversy that in fact Gulbahar did own a 'Machwa'. Had Gulbahar been not the witness of the occurrence and the prosecution had concocted his evidence it would not have been difficult for the prosecution to seize his 'Machwa'. The prosecution is not bound to prove the remote facts which have no direct bearing on the material particulars of the prosecution story. Similarly, the arguments that two pairs of garments which the complainant party was allegedly taking alongwith them to present the same to the bride or bridegroom were not taken into possession by Police is not detrimental to the prosecution case. The said facts being only collateral do not detract from the truth of the prosecution case.
It has been argued on behalf of the State that the High Court has erred in acquitting Muhammad Akram, respondent, by accepting his plea of alibi. It has been argued that the High Court has only superficially appreciated the statements of Raja Fateh Khan and Ch. Ali Muhammad, Advocate, D.Ws., who were produced by Muhammad Akram to prove his plea of alibi. The learned counsel appearing on behalf of the State has referred to the relevant part of the judgment and has maintained that in fact the findings of the High Court with regard to the plea of alibi are contradictory. On the one hand the High Court has opined that Muhammad Akram, respondent, failed to prove his plea of alibi, but on the other hand it has been held that he was able to create a reasonable doubt about his guilt on the basis of the plea of alibi. The relevant observations made by the High Court are reproduced as under:‑
"In the case before us, we do not hold that the plea of alibi has been established or proved by the accused Muhammad Akram. All that we say is that the accused Muhammad Akram has taken up this plea of alibi in his statement under Section 342 Cr.P.C. and also put it to a prosecution witness. He has produced evidence in support of his plea and, therefore, been successful in creating a reasonable doubt which entitles him to be acquitted. This does not mean that the prosecution witnesses are unreliable or the defence witnesses are believable. We simply give him the benefit of doubt and, therefore, he is eligible to earn acquittal."
We have closely scrutinized the statements of Raja Fateh Khan and Ch. Ali Muhammad, Advocate, who have been produced by Muhammad Akram to prove the plea of alibi. Raja Fateh Khan has failed to tell any other date on which he had met Ch. Ali Muhammad, D.W., or Muhammad Akram, respondent, during previous years. Various questions were directed to him in the cross‑examination to test his memory, but he was unable to recollect any other date except the date on which he states to have seen Muhammad Akram, respondent, at Chana, i.e., the date of occurrence. He has, denied in the cross‑examination that he had friendly relations with Muhammad Akram, respondent. However, he has admitted that Lal Khan, his maternal uncle, had given his land to Muhammad Akram free of costs for constructing a house. He also admits that the accused had friendly relation with his maternal uncle and it was for that reason that he had given free land to Muhammad Akram, respondent. According to the statements of Raja Fateh Khan and Ch. Ali Muhammad, Advocate. Muhammad Akram, accused, boarded the launch at Chana on 12‑4‑1980 at 8.45 a.m. and travelled with them to Mirpur; they reached Mirpur at about 10.00 a.m. or few minutes earlier. Ch. Ali Muhammad, Advocate, further states that the Launches by which he and the respondent were travelling started from Chana to Mirpur at 8.45 a.m. and reached Mirpur at 9.55/56 a.m. It may be remembered that according to the prosecution case the occurrence took place between 9/10 a.m. Evidently, the exact time of the occurrence has not been mentioned in F.I. R. by prosecution witnesses. The possibility that the occurrence might have taken place few minutes earlier than 9.00 a.m. cannot be excluded. Both the aforesaid defence witnesses are very meticulous in mentioning the exact time when two Launches started from Chana and reached at Mirpur. It appears to us a bit unusual that the witnesses were very careful to note the exact time when two boats set out from Chana and reached Mirpur. The place of occurrence, Gaderi Nedlah, is stated to be 8/9 miles from Chana from where the respondent, Muhammad Akram, is stated to have boarded the Launch. Thus, irrespective of the truth of the deposition of the above mentioned two witnesses, it was not impossible for Muhammad Akram, respondent, to be present at Chana after the commission of offence We cannot ignore the fact that a culprit may make sufficient arrangement for his quick disappearance from the place of occurrence and be present at any other place so as to fabricate the plea of alibi afterwards. The fact that exact time of the occurrence cannot be ascertained and the fact that the aforesaid witnesses might not have noted the exact time of the departure from Chana and arrival at Mirpur, it was not impossible for Muhammad Akram to be at Chana after the commission of the offence. Thus, assuming that Muhammad Akram, respondent, travelled with D.Ws. from Chana to Mirpur on the day of occurrence, his participation in the commission of crime was not impossible, especially when the distance between the place of occurrence and the Chana, where Muhammad Akram, respondent, is alleged to have boarded the Launch is about 8/9 miles and it can be covered within few minutes. In the aforesaid view of the matter we are of the considered opinion that the High Court's appreciation is not objective and it has erred in holding that the plea of alibi raised by Muhammad Akram, respondent, has created a reasonable doubt regarding his participation in the commission of the offence with which he was charged.
The learned counsel for the appellants has cited some authorities in support of the proposition that it is not necessary that the plea of alibi should be proved beyond reasonable doubt and the benefit may be given to an accused if such a plea raises a reasonable doubt regarding the guilt of the accused. We have no quarrel with the aforesaid proposition that if an accused person is able to create a reasonable doubt about his guilt by raising a plea of alibi, he is entitled to the benefit of doubt, but the question still remains as to what is to be regarded a 'reasonable doubt' in the peculiar circumstance of a case. We may mention here that in cases of plea of alibi the evidence in support of such a plea must not be only of an unimpeachable, character but the possibility that the accused might have managed his presence at another place after the commission of offence should totally be excluded. Thus, the plea of alibi raised by Muhammad Akram, respondent, does not make the testimony of four eye‑witnesses against him doubtful, specially so when there is not even a suggestion that these witnesses had any enmity with him.
Next' it has been argued that the Courts below have erred in not awarding the sentence of death to Muhammad Yaqoob, Tariq, Rasab and Akram. It has been contended that lives of the four innocent persons have been put to an end in a brutal manner and their being no extenuating circumstances, they should have been dealt with severely and awarded the capital punishment. It has also been contended that the High Court has erred in dismissing the appeal for the enhancement of sentence relying on the dictum of this Court in case reported as 'Muhammad Hanif v. The State' 1983 P Cr. L J 225. It has been argued that the doctrine of 'life expectency' was not a sole ground in that case for a lesser punishment; rather the delay in disposal of the appeal filed by the accused was also taken into consideration. Even otherwise, it has been argued, it is clearly mentioned in para. 3 of the said judgment that the learned Judges should not be understood to approve the act of the appellant but in the circumstances of the case they considered that the justice in the case would be sufficiently met by the lesser sentence. Thus, it has been argued that the High Court has erred in relying on the dictum of the Supreme Court in rejecting the prayer for the enhancement of the sentence.
This Court subsequently, in a case reported as "State v. Naseer Ahmad" (P.L.D. 1986 S.C. (AJK) 35], has held that the mere fact that the accused was acquitted by the Shariat Court would not justify not to award him the normal penalty of 'Qisas'. However, in that case the accused was not awarded the punishment of 'Qisas' in view of the factum of acquittal coupled with the fact that the respondent had no motive whatsoever to kill Aftab Ahmed, who was teenager and had nothing to do with the strained relations which were existing between the rival factions; which had actuated the accused to explode grenade which resulted in the death of Aftab Ahmad and injuries to other persons.
It has been further argued that the view taken by the Supreme Court of Pakistan in cases reported as "Muhammad Ramzan v. The State" [P.L.D. 1966 S.C. 129] and "Ghulam Hussain v. Zainullah" [P.L.D. 1961 S.C. 230], was subsequently changed. The doctrine of the expectency of life and delay in disposal of the appeal were not considered valid grounds for awarding a lesser sentence to an accused person. A reference may be made to case reported as "Assadullah v. Muhammad Ali" [P.L.D. 1971 S.C. 541]. The relevant observation made by the learned Judges is as under:‑‑
"The doctrine of expectation of life held out to an accused person by a subordinate Court is primarily applicable to cases involving question of limitation. If the period prescribed for filing an appeal or petition for special leave to appeal against an order of acquittal has expired, the accused person acquires a right which cannot be taken away. A case in which the Court below had passed a patently erroneous order causing grave miscarriage of justice would not fall ipso facto within this doctrine, but if inordinate delay occurs in the disposal of an appeal against order of acquittal the appellate Court may refrain from exacting the extreme penalty of death. In some reported cases this Court has refrained from inflicting death sentence on the ground of delay, yet there is no universal rule that if the subordinate Court has on an erroneous or perverse view acquitted an accused person resulting in grave miscarriage of justice the appellate Court cannot impose the sentence of death because of the very order of acquittal. Indeed sentence of death is the ordinary penalty for the offence of murder and the lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed. If the doctrine of expectation of life was a rule of universal application, High Courts would, in no case, be competent to enhance the sentence awarded by the lower Court, yet in a number of cases various High Courts of the sub‑continent have in the past enhanced sentences of transportation to death if the ends of justice so required. The sentence to be awarded in an appeal against an order of acquittal will, therefore, depend on the facts of each case."
This view was subsequently affirmed in a case reported as "Muhammad Sharif v. Muhammad Javed" (P.L.D. 1976 S.C. 452].
We have given our due consideration to the arguments and we are of the opinion that Hanif's case relied upon by the learned Judges in the High Court does not lay an inflexible rule that in all cases to come in future the doctrine of life expectency would constitute a valid ground for not awarding the normal penalty of death in murder cases. This Court in the peculiar circumstances of that case held that justice must be tampered with mercy. We are in respectful agreement with the view expressed by the learned Judges of the Supreme Court of the Pakistan in case reported as "Assadullah v. Muhammad Ali" [P.L.D. 1971 S.C. 541], referred to above that if the doctrine of life expectency alone is held to be a valid ground for lesser sentence in a murder case, an appeal in case of acquittal or in revision petition seeking enhancement of the sentence of life imprisonment to death would be an exercise in futility; because the High Court would not award the death penalty even if the interest of justice so demanded; and this in turn would amount to frustrate the object of legislature which it had by providing an appeal against an order of acquittal in murder case or revision seeking enhancement of sentence of life imprisonment to death. Thus, the solitary contention that as the aforesaid persons were convicted and sentenced for life imprisonment by the trial Court it was not desirable for the High Court to enhance the sentence passed by the trial Court is not valid. However, we are of the opinion that taking into consideration overall circumstances of the case, the enhancement of the sentence of life imprisonment awarded to Muhammad Yaqoob, Tariq, Rasab and Akram is not desirable in the instant case for the following reasons:‑‑
(i) that none of the aforesaid accused has caused any injury to the deceased Khairat Ali and Mahmood;
(ii) that no motive has been alleged or proved by the prosecution in case of Muhammad Akram and Muhammad Rasab and they are not related to Arif, Yaqoob and Tariq in any way; and
(iii) that Muhammad Yaqoob and Tariq, appellants, being the younger brothers of Muhammad Arif, the principal accused, might have participated in the incident under the influence of latters.
Next the question arises as to whether the High Court was legally justified to give the benefit of section 382‑B, Cr.P.C. to Muhammad Yaqoob, Tariq, Rasab and Muhammad Akram. It has been contended on behalf of Muhammad Yaqoob and others that as the accused remained in judicial lock‑up for quite a long time, they must be given the benefit of section 382‑B, Cr.P.C. The reliance was placed on a case reported as "Jamala v. The State" (1983 P.Cr.L.J. 809].
In reply it has been argued that it is discretionary with the Court to give the benefit of the aforesaid provision and the discretion should be exercised in view of the peculiar circumstances of each case. It has been contended that the life of four innocent persons have been put to end in brutal manner and there are no extenuating circumstances justifying the benefit of section 382‑B, Cr.P.C. to the accused persons. Reliance was placed on a case reported as "Muhammad Asiam v. The State" (1982 S.C.M.R. 709], wherein the prayer for benefit under section 382‑B, Cr.P.C. was rejected on the ground of severity of attack and number of injuries caused by the accused; and the fact that the accused persons were already dealt with leniently and that they were not awarded capital punishment.
After giving our due consideration to the overall circumstances of the case we are of the opinion that the circumstances of the case do not justify the benefit of, section 382‑B, Cr.P.C. to Yaqoob, Tariq, Rasab and Akram. The gruesome murder of four innocent persons has been committed without any provocation. The accused persons had no justification for acting so savagely because Adalat Khan had refused to marry his daughter Mst. Zahida Bibi to Muhammad Arif, appellant. Therefore, we hold that the aforesaid four persons shall not enjoy the benefit of section 382‑B, Cr.P.C.
The upshot of the above discussion is that we dismiss the appeal filed by Muhammad Arif and others and accept the appeal tiled by the State; partly accept the appeal filed by Mst. Naseem Akhtar and set aside the order of acquittal of Muhammad Akram, respondent, passed by the High Court and restore the order of his conviction and sentence passed by the trial Court. His surety and personal bonds are hereby discharged. He shall be committed to the jail forthwith to serve this term of imprisonment. It is further directed that Muhammad Akram, Muhammad Tariq, Muhammad Yaqoob and Muhammad Rasab, accused‑convicts, shall not be entitled to the benefit of section 382‑B of the Cr.P.C.
M.B.A./194/SA Order accordingly.
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