1992 P Cr (PLP)

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑ One. Bashir Ahmad was tried by a learned Special Court, constituted under the Special Courts for Speedy Trials Ordinance of 1987 at Gujranwala, for the murder of one Zulfiqar.

2. Through a judgment dated 11‑6‑1989 passed by the said learned Court, Bashir accused was found guilty of the charge; he was sentenced to imprisonment for life and to a fine of Rs.30,000 or sufferance of three years' R.I. In default of payment of the said fine. The entire amount of fine, if realised, was directed to be paid to the heirs of Zulfiqar deceased.

3. Bashir convict filed Criminal Appeal No.477 of 1989 to impugn the above‑mentioned conviction and the sentences recorded against him while the State filed Criminal Appeal No.478 of 1989 seeking enhancement of the said life imprisonment awarded to Bashir convict to that of a sentence of death.

4. Both these matters are being disposed of together through this single judgement.

5. The occurrence which had witnessed the murder of Zulfiqar deceased was reported by Khalid Javed complainant to Muhammad Safdar A.S.I. (P.W.9) at about 6‑00 p.m. at A.B.S: Hospital, Gujrat, which report was recorded as Exh.P.B. On the basis whereof, a formal F.I.R. (Exh.P.B./1) bearing No.599 was recorded at Police Station Civil Lines, Gujrat at 6‑20 p.m. on the same day i.e. on 30‑9‑1988.

6. Narrating the occurrence in question, Khalid Javed complainant had alleged that at about 4‑45 p.m. he alongwith his paternal‑cousin, Zulfiqar deceased, boarded a bus from Haryawala Chowk and on reaching Shadiwal General Bus Stand at Gujrat, they alighted from the said bus at about 5‑00 p.m. In order to catch another bus to go to Lahore.

7. He had further alleged that while coming down from the said bus, they spotted Bashir accused sitting, in cognito, on the rear seats of the said bus and just as the two stepped down from the said bus, the said Bashir accused also came out and fired a shot with his' carbine at Zulfiqar deceased which hit him on the left flank which was followed by repeated blows on the face and other parts of the person of Zulfiqar deceased with the handle of the carbine.

8. Bashir accused thereafter fled away from the place of occurrence by firing shots in the air while Zulfiqar deceased was carried to the A.B.S. Hospital in an injured condition who breathed his last before reaching the same.

9. Khalid Javed complainant had further disclosed that the complainant and the accused party were locked up in criminal litigation arising out of the murders on both sides and that Bashir accused had got released from jail only about three months ago and he had done Zulfiqar deceased to death only to avenge the previous enmity which existed between the parties.

10. Bashir accused was arrested on the very next day of the occurrence in question i.e. on 1‑10‑1988 and was found in possession of a carbine P.9 with. a live cartridge P.10 at the time of his arrest which were accordingly seized by Muhammad Safdar A.S.I. (P.W.9) vide memo. Exh.P.G.

11. A crime‑empty P.8 was also allegedly recovered form the place of occurrence which was sent to the Forensic Science Laboratory and was found to have been fired from the carbine P.9 recovered from the possession of Bashir accused vide report Exh.P.O.

12. While under examination under section 342, Cr.P.C., Bashir accused admitted the enmity between the parties, as alleged, but pleaded that Zulfiqar deceased had been done to death by someone else and that he had been maliciously substituted for the actual assailant on account of suspicion and enmity.

13. Khalid Javed complainant who is an eye‑witness of the occurrence in question, is a Chachazad of Zulfiqar deceased. The complainant and the accused party are admittedly involved in criminal litigation arising out of the murders etc. Besides other offences committed on either side, at least four persons belonging to the complainant party were murdered in the past allegedly at the hands of the appellant party and the same number of persons belonging to the appellant party allegedly stand murdered at the hands of the complainant party. Khalid Javed complainant appears, either as an accused or as a witness in most of these cases.

14. There is thus no denying the fact that Khalid Javed complainant is an A interested and an inimical witness, whose testimony cannot be relied upon without corroboration from unimpeachable sources. 15: The other eye‑witness i.e. Muhammad Aslam (P~W.8) is also closely related to the deceased party inasmuch as Zulfiqar deceased was a brother‑in- law of the son of this eye‑witness.

16. He deposed that he did not know Bashir accused by face nor could he himself recognize him. He had further deposed that it was some persons after the occurrence who had stated that the assailant was Bashir. No such person who had communicated the name of the assailant to Aslam (P.W.8) was produced at the trial. This part of Aslam's claim that it was Bashir accused who had done the deceased to death, was thus hearsay.

17. It may also be mentioned that in spite of the fact that it was Aslam P.W.'s own claim that he did not know Bashir accused prior to the occurrence in question, this witness was never called upon to identify Bashir appellant at a test identification parade.

18. According to Aslam P.W., he had accompanied Zulfiqar deceased to the hospital and had stayed there till after the arrival of the police but Muhammad Safdar Investigating Officer had specifically denied the presence of Aslam P.W. at the hospital when he reached there and had in fact stated that on his inquiry, Khalid Javed complainant had informed the Investigating Officer that Aslam P.W. had stayed back at the spot after the occurrence and was not available in the hospital.

19. No reasonable explanation has been offered by Aslam P.W. for his presence at the place of occurrence at the relevant time.

20. In the circumstances, Aslam P.W. is not only a chance witness whose testimony cannot be accepted without support from independent sources but IF his testimony even otherwise, does not inspire confidence.

21. The prosecution did offer corroboration to the ocular testimony in the form of the report from the Forensic Science Laboratory according to which, the empty cartridge P.8 recovered from the spot had been found to have been fired from the Carbine P.9 recovered from Bashir appellant.

22. It may be mentioned here that both the eye‑witnesses stated at the trial that they had seen the crime‑empty lying at the spot after the occurrence in question but no mention of the same had been made in the F.I.R. It was also the case of the eye‑witnesses that the crime empty was lying close to the place where Zulfiqar deceased had fallen after receiving the fire‑arm injury but Column No.23 of the inquest report is conspicuously silent about the presence of any such article near the dead body.

23. In any case, the crime empty had been allegedly recovered on 30‑9‑1988 and the carbine in question had been seized by the Investigating Officer on 1‑10‑1988. Both these articles were then allegedly kept at the police station and had not reached the Forensic Science Laboratory till 5‑10‑1988.

24. The testimony of Basharat Ali F.C. (P.W.3) on this aspect of the prosecution case is also noteworthy.

25. Although the crime empty and the carbine were both available in the police station on 4‑10‑1988, yet he claims that on 4‑10‑1988 it was only the crime‑empty which had been handed over to him for transmission to the Forensic Science Laboratory and not the carbine and further that the carbine had been given to him on 5‑10‑1988 for transmission to the said Laboratory.

26. This conduct on the part of the investigating agency and the prosecution is rather abnormal and casts serious doubts on the prosecution case. 27. 1n this view of the matter, no explicit reliance can be placed on the prosecution evidence connecting the crime‑empty allegedly recovered from the spot with the carbine seized from the person of Bashir appellant.

28. This piece of evidence is not sufficient to corroborate the highly interested and chance ocular testimony.

29. Motive, as is usually said, is a double‑edged weapon. If the same could prompt the appellant to commit the murder of the deceased, it could also offer grounds to the complainant party to implicate the appellant on account of suspicion and enmity.

30. In view of the above analysis of the material available on record, we find that the kind of corroboration required to support the interested and the chance eye‑witnesses of the occurrence in question is n9t available on record.

31. Consequently, Criminal Appeal No.477 of 1989 filed by Bashir appellant is allowed. The conviction and the sentences above‑noticed recorded against him are set aside and he is acquitted of the charge. He shall be set at liberty forthwith, if not required to be detained in any other case.

32. For the reasons above noticed, Criminal Appeal No.478 of 1989 filed by the State-seeking enhancement of the sentence awarded to Bashir appellant is dismissed. N.H.Q./B‑8/L Accused acquitted.