1988 P Cr (PLP)

4. The motive as alleged by the prosecution was that 31 months before the occurrence Mumtaz son of Hatum Khan deceased and others had attacked and beaten Muhammad Hayat acquitted accused and a case under section 307/148/149, P.P.C. was registered on 16‑5‑1984 on the report of Sher Bahadur appellant. The case was still sub judice. Mumtaz and 2 others accused in that case were still in judicial lock up, hence this occurrence.

5. As for the main occurrence, it has been stated that at the eventful time, Muhammad Riaz, P.W.13 was going to his house from the house of his father. He saw Nazir, Haq Nawaz appellants, Khalid and Qamar acquitted accused armed with .12 bore guns and Sikandar acquitted accused armed with carbine standing in the Chowk of Fatima Jinnah Colony at a distance of 15 yards from his house. When he reached near the main gate of the house, Nazir appellant fired shot hitting him on the right side of head. On hearing report of the fire‑arm, his father Hatum Khan deceased came out of his house carrying licensed gun of his other son namely Sher Baz Khan. When Hatum Khan reached the entrance of the door of Riaz P.W. and was about to hand over the gun to him. Sher Bahadur, Ameer, who were present alongwith Abdul Rehman appellant, Tariq and Riasat acquitted accused, in the Ahata of Ameer appellant, came out of the Ahata. They were armed with guns. Sher Bahadur fired first shot which hit Hatum Khan on his left thigh and he fell down. Ameer then fired a shot which hit the deceased on his left arm. Muhammad Riaz P.W. took the gun from his father, climbed over the roof of his Kotha and fired 3 ineffective shots towards the chowk of village and the Ahata of Ameer where Abdul Rehman appellant, Tariq and Riasat acquitted accused duly armed with guns were present. Abdul Rehman appellant then fired shot which hit at the chest of Muhammad Riaz P.W. Haq Nawaz appellant who by that time had gone towards the back side of the house of Muhammad Riaz P . W. , fired shot hitting Riaz P . W . on the abdomen. The appellants and the acquitted accused then ran away from the place of occurrence taking weapons with them. The occurrence was seen by Muhammad Riaz P.W.13, Muhammad Akram P.W.14 and Mst.Raj Bibi wife of the deceased and Muhammad Muzaffar (both not produced) Hatum Khan was removed to his house but shortly thereafter, he succumbed to the injuries. It was alleged that the co‑accused had killed the deceased and injured Muhammad Riaz P.W. with the consultation of Muhammad Hayat acquitted accused.

6. On 31‑8‑1984 Dr. Muhammad Ashraf examined Muhammad Riaz P.W. He found following injuries on his body:‑‑ "(1) Six lacerated wounds 1/5 x 1/5 c.m. each round for shape with burning of their edges. On front and left side of abdomen and chest with corresponding holes in the Kurta (two wounds lower chest. (Two above the left illiac crest in the illiac fossa and one in epigastrium on the right side). (2) Lacerated wound 1/5 x 1/5 c.m, on the back of left elbow joint with corresponding holes in the Kurta. (3) Lacerated wound 1 c.m. x 1/5 c.m. x skin deep with burning of the edges on the back of left middle finger. (4) Lacerated wound 2 x 1/2 c.m. just above the pinna on the seal :- (5) Lacerated wound 3 x 1 c.m. with burning of edges of the skin on right cheek and probe going obliquely upwards and laterally under the skin." All the injuries were found simple in nature and were the result of fire‑arm. On 1‑9‑1974 Dr. Safdar Ali P.W.6 performed post‑mortem examination on the dead body of Hatum Khan. He found following injuries:‑‑ (1) A fire‑arm wound of entry 2 x 1 c.m. x through and through the left forearm, front part, 5 c.m. above the left wrist joint, edges were scorched and inverted. Wound of exit was communicating with wound of entry. Wound of exit was present on the back of left forearm and it was 2 x 1 c.m. Muscles were lacerated. (2) A fire‑arm wound of entry 1 x 1 c.m. x through and through the left thigh on the front of middle of left thigh 23 c.m. above the left knee joint, edges were scorched and inverted. Wound was communicating with a wound of exit on the back of left thigh. Wound of exit was 2 c.m. x 2 c.m. and it was 25 c.m. above the left knee. Edges were everted, Muscles, left femoral artery and vein was ruptured. Wound was full of haemorrhage and was full of clotted blood. Corresponding part of chaddar was perforated and full of haemorrhage." In his opinion, the death was due to shock and haemorrhage as a result of injury No. 2, which was sufficient to cause death in the ordinary course of nature. Injury No.1 was declared simple. In cross‑examination, the doctor stated that since both the injuries were scorched, therefore, the distance between the deceased and the appellants would be less than 6 feet.

7. On 31‑8‑1984 Zahoor Din, Inspector P.W.15 lifted crime empty Exh.P.3 from the bath‑room of the house of Muhammad Riaz P.W.13 and took it into possession vide memo. Exh. P.L. attested by Muhammad Rashid P.W.8 and Ghulam Muhammad (not produced). On the same day he took into possession crime empty Exh.P.4 and missed cartridge Exh.P.5 from the roof of the house of Muhammad Riaz P.W. vide memo. Exh.P.M. attested by the same witnesses. On the same day he took into possession 6 crime empties Exh.P.6/1‑6 from the crossing opposite the house of Abdul Rehman appellant vide memo. Exh. P.N. attested by the same witnesses. The appellants as well as the acquitted accused namely Qamar and Sikandar were arrested on 3‑9‑1984 by Zahoor Din Inspector P.W.15 Riasat acquitted accused was arrested on 6‑9‑1984 by him. Khalid, Tariq and Muhammad Hayat acquitted accused were also arrested by him on 12‑9‑1984. On 21‑9‑1984 Muhammad Hayat, acquitted accused led to the recovery of gun Exh.P and licence Exh.P9/1 from his house which were taken into possession vide memo. Exh. P.R. attested by Maqbool Hussain P.W.9 and Muhammad Rafiq (not produced). On 8‑9‑1984. Nazir appellant led to the recovery of gun Exh. P.10 from his house which was taken into possession vide memo. Exh. P.S. attested by Aslam P.W.10 and Manzoor (not produced). On 8‑9‑1984 Haq Nawaz got recovered gun Exh . P .11 from his house vide memo Exh . P . T . attested by Muhammad Aslam P.W.10 and Manzoor Ahmad (not produced). On 7‑8‑1984 Sher Baz Khan son of the deceased produced licence Exh.P.B. of his gun which was allegedly used by Muhammad Riaz P.W. in the occurrence which was taken into possession vide memo. Exh.P.Y. attested by Akhtar Ali P.W.11 and Sher Baz (not produced). The recovery memoranda were prepared by Zahoor Din Inspector P.W.15. It may be noted that no weapon of offence was recovered from Sher Bahadur, Abdul Rehman and Muhammad Ameer appellants. The Forensic Science Laboratory report Exh.P.Z./2reveals that the empties Exhs.C.l and C.2 were fired from the gun recovered from Muhammad Riaz P.W. The crime empties Exhs.C.3, C.5 and C.6 were fired from gun recovered from Haq Nawaz appellant. Crime empties Exhs.C.4, C.7 and C.9 were fired from the gun allegedly recovered from Nazir appellant. Crime empty Exh.C.8 did not contain point sufficient enough to hold comparison with the test empties fired from shot guns, therefore, no opinion could be expressed as to whether or not the crime empty Exh.C.8 was fired from shot guns.

8. To prove its case, prosecution produced 15 witnesses, Muhammad Riaz P.W.13 and Muhammad Akram P.W.14 have given the ocular account of the occurrence. They have supported the prosecution version detailed above. They claim to have seen the appellants and the acquitted accused participating in the occurrence and the appellants firing at the deceased and Muhammad Riaz P.W. Muhammad Rashid P.W.8 has deposed about the recoveries of empties. Maqbool Hussain P.W.9, Muhammad Aslam P.W.10 have deposed about the recoveries of guns from Muhammad Hayat acquitted accused, Nazir and Haq Nawaz appellants. Zahoor Din Inspector P.W.15 had recorded the F.I.R. conducted investigation, effected recoveries of crime empties from the' spot and weapons of offence from Muhammad Hayat acquitted accused and Nazir and Haq Nawaz appellants. Dr. Muhammad Ashraf has proved the medico‑legal report of the injuries of Muhammad Riaz P.W. Dr. Safdar Ali P.W.6 has proved the post‑mortem examination report. Muhammad Riaz P.W.13 has also deposed about the motive for crime. The rest of the evidence is of formal nature.

9. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence Muhammad Mumtaz, Naib‑Moharrir Police, P.S. Saddar, Sargodha was produced as D.W.1 to prove registration of various cases against the deceased and eye‑witnesses. He ‑proved the copies of different first information reports which are Exhs.D.D., D.E., D.F., D.G., D.H., D.J. and D.K. Copy of the complaint i.e. Exh.D.L. was produced to show that Sher Bahadur appellant had filed complaint under section 148/506/ 384/149, P.P.C. against Akhtar Ali and Muhammad Aslam P.Ws. the witnesses of recovery of guns.

10. The learned trial Court while giving the benefit of doubt, acquitted 6 co‑accused and while believing the motive, ocular evidence, medical evidence and the recoveries of weapons of offence, convicted and sentenced the appellants as stated above.

11. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubts, inasmuch as, the eye‑witnesses are interested; that the ocular testimony is in conflict with the medical evidence; that the prosecution evidence suffers from infirmities such as material contradictions and discrepancies; that the recoveries of the crime empties as well as the weapons of offence are highly doubtful and that there is no corroboration of the statements made by the alleged eye‑witnesses. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court on the grounds that the eye‑witnesses are quite reliable; that there is no major conflict between the ocular evidence and the medical evidence; that their evidence can be relied upon without corroboration and if corroboration was at all necessary it is to be found in the circumstances of the case itself, e.g. promptly lodged F.I.R. containing the names of the eye‑witnesses, the names of the culprits and the manner in which the occurrence took place; that, in view of the motive, proved by the prosecution, the appellants and the acquitted co‑accused are persons most likely to be the assailants of the deceased and the circumstances of the recoveries of incriminating weapons from Nazir and Haq Nawaz appellants.

12. We have anxiously considered the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellants and the acquitted accused recorded under section 342, Cr.P.C. the defence evidence produced by the appellants and the circumstances appearing in the case, with care. It is a matter of record that the two witnesses namely Muhammad Riaz P.W.13 and Muhammad Akram P.W.14, who claim to have seen the appellants and the acquitted accused firing at the deceased and P.W. are interested witnesses. Muhammad Riaz is son of Hatum Khan deceased. He has admitted in his evidence that his enmity with Sher Bahadur appellant, Tariq, Muhammad Hayat and Khalid acquitted accused started 5/6 months) before the present occurrence and during this period they lodged; reports of criminal cases against each other and appeared as witnesses in criminal cases. Muhammad Iqbal son of Sher Bahadur appellant was reported against for causing injuries to him. He also admitted that Abdul Rehman appellant was an accused for an assault upon his mother. Abdul Rehman was also a prosecution witness against his brother Sher Baz in the case of murders of his two sisters. He also admitted that his father Hatum Khan was beaten by Muslim Sheikhs and Sher Bahadur appellant was accused of conspiracy in that case. The F.I.R. Exh.P.B. shows that Sher Bahadur appellant had lodged a report under section 307/325/148/149, P.P.C. against Muhammad Hayat acquitted accused and others on 16‑5‑1984. F.I.R. Exh.D.D. shows that Muhammad Mumtaz son of Hatum Khan deceased had lodged report against Muhammad Iqbal son of Sher Bahadur appellant and others under section 325/324/148/149, P.P.C. on 11‑5‑1984. F.I.R. Exh.D.J. indicates that Sher Bahadur appellant had lodged a report under section 302, P.P.C. against Sher Baz son of Hatum Khan deceased for the murder of his (Sher Baz's sister) on 4‑7‑1982. F.I.R. Exh.D.K. reveals that Khalid Hayat son of Muhammad Hayat acquitted accused had lodged a report under section 307/34, P.P.C. against Muhammad Riaz P.W.13. Muhammad Akram P.W.14 although not related is inimically disposed towards the appellants. He has admitted that Muhammad Hayat acquitted accused had lodged a report against him 7/8 months before the occurrence for having made assault on and injured Ghulam Muhammad Mistri. He also admitted that 3 months before the occurrence, his brother Zahoor was assaulted and injured by Sher Bahadur appellant, Muhammad Hayat and Tariq acquitted accused and that his brother had lodged a complaint under section 324, P.P.C. against them. The evidence of the two eye‑witnesses has not been acted upon so far as the .5 acquitted accused namely Khalid, Tariq, Qamar, Sikandar and Riasat are concerned, although according to the witnesses they had also fired shots at Muhammad Riaz P.W. Muhammad Riaz has attempted to suppress the facts which he was expected to know. He stated that in the case of the murder of his sister against his brother Sher Baz, Sher Bahadur appellant was not a complainant and that he himself was a complainant in that case. Copy of the F.I.R. Exh.D.J. falsifies him on this point and shows that the F.I.R. of the murders of his two sisters against Sher Baz brother of Muhammad Riaz P.W. was lodged by Sher Bahadur appellant and not by Muhammad Riaz P.W. He has admitted that he was convicted for keeping an unlicensed gun, carbine and knife. The statement made by him suffers from infirmities such as material contradictions and dishonest improvements. In his statement before the Court he stated that Ameer appellant fired at the deceased hitting him on the left arm although he had not stated so in the F.I.R. In his statement before the Court, he stated that the remaining: accused (the accused other than Sher Bahadur, Ameer, Nazir and Haq Nawaz) had also fired at him hitting on different parts of his body. Had these accused fired at him, then the number of the injuries found on his person would have been much more. This shows his reckless disregard for the truth. He tried to implicate as many accused as he could. His statement is also in conflict with the medical evidence on the point of the distance from which shots were fired at him and on the deceased. Muhammad Akram P.W.14 has stated that Ameeri appellant had fired at Hatum Khan with his gun hitting on his left: arm. Muhammad Akram also stated that the accused other than Abdul Rehman, Nazir and Haq Nawaz had also fired at Riaz P.W. hitting on different parts of the body. This part of the statement stands belied by the number of the injuries found on the person of Muhammad Riaz P.W. Muhammad Akram used to run a poultry farm in the Fatima Jinnah Colony at a distance of 1 Killas from the place of occurrence. He stated that on hearing fire report from the side of the house of Hatum Khan deceased, he reached there before the second shot was fired by the accused and saw the occurrence. This part of his statement certainly runs counter to the natural probabilities. Since the two eye‑witnesses are inimical to the appellants and the acquitted accused and their statements suffer from infirmities such as suppression of the admitted facts, material contradictions, major discrepancies, dishonest improvement and material conflict with the medical evidence, so they are not confidence inspiring witnesses. The eminent jurists have classified the ocular testimony into three categories: (i) wholly reliable; (ii) wholly unreliable; (iii) partly reliable and partly not reliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even, strongest corroborative evidence may not rehabilitate such evidence. The damage done by the eye‑witnesses to their integrity and the doubt thrown by them to their veracity is so great that it cannot be repaired and cured even by strongest possible corroborative evidence. We are, therefore, of the view that the testimony of the two eye‑witnesses falls within the second category and as such their entire evidence has to be excluded from consideration. In any case, it is necessary that before finding the appellants guilty of the murder of Hatum Khan and murderous assault on Muhammad Riaz, we should be satisfied that their evidence is corroborated by independent direct/ circumstantial evidence connecting them with the crime or at least by a circumstance which may serve to show that the version of the occurrence told by them is true.

13. We are fully conscious that for corroboration it is not necessary that there should be words of independent witness supporting the statement of interested witness and that the same may be afforded by anything, in the circumstances of the case, which may satisfy a reasonable mind that the witness has spoken the truth while naming individual accused. We have anxiously looked around for independent corroborative evidence. On careful appraisal of the direct circumstantial evidence, we do not find any reliable independent corroborative evidence in the circumstances relied upon by the learned counsel for the State. The F.I.R. cannot be regarded as independent' circumstance for the reason that the same was lodged by Muhammad Riaz one of the eye‑witnesses and has not come from distinct source. The next circumstance relied upon by the learned counsel for the State was the motive. There can be no two opinions that enmity is al. double‑edged weapon and it cuts both ways and which way it actually cuts depends on the circumstances of each case. In the instant case there was criminal litigation between the two eye‑witnesses and some of the appellants and the acquitted accused. In these circumstances, we are of the opinion that the benefit of the maxim that enmity/motive cuts both ways should not be given to the prosecution. The presence of reasonable possibility of false implication of all the accused or exaggeration of the number of accused on account of ill‑will cannot be ruled out. The number of the assailants named by the eye‑witnesses does not commensurate with the number of the injuries found on the person of the deceased and Muhammad Riaz P.W. There remains the circumstance of the recoveries of weapons of offence from Haq Nawaz, and Nazir appellants which matched with the crime empties removed from the place of occurrence. The three parcels of the crime empties were entrusted to Hafeez‑ur‑Rehman, M.H.C. P.W.4 by the Investigating Officer on 3‑9‑1984. On 7‑9‑1984 one parcel containing gun was handed over by the Investigating Officer to M.H.C. On 8‑9‑1984 two more parcels containing guns were handed over by the Investigating Officer to M.H.C. The guns and the empties remained, in the Mall Khana till 9‑9‑1984 when the three sealed parcels containing the empties were handed over by Hafeez‑ur‑Rehman, M.H.C. to Allah Dad F.C. for onward transmission to Director Forensic Science Laboratory. On 25‑9‑1984, the parcels containing guns were entrusted) to Nazir F.C. P.W.2 for taking them to the Office of Director Forensic Science Laboratory, Lahore. In these circumstances, there was a genuine apprehension of tampering with the guns and the empties and the‑possibility of the crime empties having been fired from they guns by the police itself before sending the same to the Forensic Science Laboratory cannot be ruled out and as such, it is not safe to use the recoveries of guns as corroborative evidence. Furthermore,' Muhammad Aslam P.W.10 the witness of recovery of guns from Nazir and Haq Nawaz appellants is an interested witness. He is cousin of Muhammad Akram, eye‑witness. Copy of the complaint Exh.D.L. shows that Sher Bahadur appellant had lodged a complaint under section 148/149/50fi/384, P.P.C. against him only 3 days before the occurrence. He has also admitted that a case under section 325, P.P.C. was also lodged by one Azam and others against him. Akhtar Ali (witness of, recoveries) and Muhammad Akram (eye‑witness). This shows that he, belongs to the group of Muhammad Akram, eye‑witness, who had: enmity with the appellants and others. The evidence of the recovery, of guns from Nazir and Haq Nawaz appellants is highly doubtful and no implicit reliance can be placed on it. There is thus, no justification to give benefit of this circumstance to the prosecution. We feel that all these items of the corroborations stressed by the learned counsel for the State do not serve to corroborate the story of the main occurrence as well as the identity of the appellants and the acquitted accused. For all these reasons, we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt against the appellants and the acquitted accused. The upshot of the above discussion is that while giving them the benefit of doubt, the appellants are acquitted of the charge. Sher Bahadur, and Ameer shall be released forthwith, if not required to be detained in any other case. Nazir, Haq Nawaz and Abdul Rehman are on bail, they stand discharged of the bail bonds. Resultantly, the revision is dismissed. Death sentence is not confirmed. S.A./S‑230/L Appeal accepted.