2011 SCMR 646 (PLP)

SAYED ZAHID HUSSAIN, J.

Tapir Khan appellant, who was tried under section 302, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 for committing the murder of Muhammad Naseer, Atta Muhammad and Muhammad Amir, was convicted by the Special Judge, Anti-Terrorism Court, Sargodlia on 13-3-2000 as under:-- (i) Convicted under section 302, P.P.C. for the murder of Muhammad Amir and sentenced to death, also with a fine of Rs.50,000 in default whereof to further undergo R.I. for five years. (ii) Convicted under section 302, P.P.C. for the murder of Atta Muhammad and sentenced to death, also with a fine of Rs.50,000 in default whereof to further undergo R.I. for five years. (iii) Convicted under section 302, P.P.C. for the murder of Muhammad Naseer and sentenced to death, also with a fine of Rs.50,000 in default whereof to further undergo RI for five years. The amounts of fine, if recovered, were ordered to be paid to the legal heirs of all the three deceased. (iv) Convicted under section 7 of A.T.A. and sentenced to imprisonment for life, with a fine of Rs.50,000 in default whereof to further undergo five years' R.I." His appeal thereagainst and also the Murder Reference came up for hearing before the learned Division Bench of the Lahore High Court, Lahore, on 5-3-2002, the appeal was dismissed and the Murder Reference was answered in affirmative, confirming his death sentence. On his petition before this Court, qua the same, leave was granted on 19-11-2002, which order for the convenience of perusal reads as follows:-- "Succinctly stating the facts of the case are that an F.I.R. was lodged with Police Station Mochh, District Mianwali on 12th August, 1998 at 9-00 a.m. with regard to an incident which took place on 11th August, 1998 at about 9-00 p.m. by (Ghulam Hussain) that two persons i.e. Muhammad Amir and Atta Muhammad had been murdered, whereas Muhammad Naseer received serious firearm injuries, who was removed to the Civil Hospital, Mianwali where he succumbed to the injuries subsequently.

3. It is pertinent to mention here that F.I.R. was lodged by one Ghulam Hussain son of Sher Muhammad who nominated Ghulam Abbas, Nazar Abbas, Manzoor, Ghulam Hassan, Ghulam Habib (and Sultan Ahmad) as accused but said Ghulam Hussain was not examined as a witness and was given up by the prosecution. The version given by him was however, found to be incorrect as it was the result of some misconception, as such was not adhered to.

4. It is also important to note that Muhammad Naseer, who received serious firearm injuries during the incident and subsequently died in Hospital, when removed to Hospital, made a statement wherein he nominated Tahir Khan (convict/petitioner) as accused for the commission of offence of murder of his brother Atta Muhammad and paternal cousin Muhammad Amir and causing him injuries. On his death said statement become, dying declaration. This statement was also thumb marked by said Muhammad Naseer deceased and exhibited as Exh.PU, which was also attested by the Doctor Azmat Ullah P.W.14 as well as Investigating Officer Ghulam Murtaza P.W.17.

5. After usual investigation, accused/petitioner Tahir Khan was arrested and sent up to face trial before Special Judge, A.T.A. Sargodha, who vide judgment dated 13th March, 2000 found him guilty under section 302,' P.P.C. and sentenced him to death on three counts for the murders of Muhammad Amir, Atta Muhammad and Muhammad Naseer. He was further directed to pay fine of Rs.50,000 on three counts or in default whereof five years' R.I. on each count. He was also convicted under section 7 of the Anti-Terrorism Act, 1997 and sentenced to life imprisonment with fine of Rs.50,000 or in default whereof to further undergo five years' R.I. Feeling dissatisfied from the judgment of the trial Court, petitioner approached Lahore High Court, Lahore by filing criminal appeal, which has been dismissed by means of impugned judgment and murder reference was also answered in affirmative. As such instant petition for leave to appeal has been filed. We have heard the learned counsel for the parties at length and have also gone through the material, so placed before us, with their assistance. On having undertaken this exercise, we are of the opinion that reappraisal of evidence recorded by the trial Court is called for to ascertain as to whether impugned judgment dated 5th March, 2002 has been passed by Lahore High Court, Lahore, keeping in view the principles pronounced by the Superior Courts for safe administration of criminal justice. Leave to appeal is accordingly granted." Hence this appeal.

2. Mr. Asghar Khan Rokhri Advocate Supreme Court, the learned counsel for the appellant, Mian Asif Mumtaz the learned Deputy Prosecutor General, Punjab and Mr. Muhammad Inayat Ullah Cheema ASC, the learned counsel for the complainant have been heard.

3. The learned counsel for the appellant has laid great stress upon the initial contents of the F.I.R. lodged by Ghulam Hussain, (who allegedly had witnessed the occurrence) to establish that the involvement of the appellant in the case is not beyond doubt inasmuch as; in the F.I.R. six persons namely Ghulam Abbas, Nazar Abbas, Manzoor, Ghulam Hassan, Ghulam Habib and Sultan Ahmad we're nominated but the said complainant later resiled and none of the nominated persons was challaned and instead the appellant was roped in. It is contended that naming of Tahir Khan appellant on the basis of dying declaration of Muhammad Naseer deceased (made two days after the occurrence) was concocted and fabricated, as the inquest report, which was prepared at the spot did not include his name. According to him, neither Gul Muhammad (P.W.16) nor Zumarad Abbas (P.W.13) were "eye-witnesses" as both of them were not present at the place of occurrence. It is thus contended that their testimony was not reliable to base conviction. It is further contended that since it was night time occurrence i.e. 9-00 p.m. due to the admitted darkness, the appellant was implicated on the basis of mere suspicion. As to the dying declaration of Muhammad Naseer deceased, the disputes the worth of the same and its effect in view of the law on the subject. Reference is made to Nazim Khan and 2 others v. The State 1984 SCMR 1092 and Sher Bahadur and another v. The State (1972 SCMR 651).

4. The learned counsel for the complainant places heavy reliance upon the testimony of Gul Muhammad (P.W.16) and Zumarad Abbas (P.W.13) and the dying declaration of Muhammad Naseer (deceased), who named the appellant. According to him, the backing out of Ghulam Hussain, who disowned the F.I.R. had no effect in view of the dying declaration of the deceased. He makes reference to Farman Ullah v. Qadeem Khan and another (2001 SCMR 1474), Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another (1997 SCMR 449). The learned Deputy Prosecutor General Punjab supports the conviction and the sentence pronounced against the appellant by the trial Court as upheld by the High Court.

5. The occurrence in which three persons lost their lives was reported by Ghulam Hussain to the Police Station Mochh, District Mianwali on 12-8-1998 and F.I.R. No.173 of 1998 was registered. It was noted by the learned High Court as follows "First Informant Ghulam Hussain lodged F.I.R. (Exh.PZ) on 12-8-1998 at 9-00 a.m. that he was resident of Wandha Said Muhammad Wali, Dakhhi Basti Shan Gul Muhammad Wali. On 11-8-1998 at 9:00 pm, he along with Gul Muhammad (P.W.16) and Sultan Muhammad Mehmood (given up) were sitting in his house, but all of a sudden, they heard fire shots and ran into the street. They witnessed Ghulam Abbas armed with Kalashnikov, Nazar Abbas with Kalashnikov, Manzoor with Rifle, Ghulam Hassan armed with Kalashnikov, Ghulam Habib with Kalashnikov and Sultan Ahmad with Rifle emerged there and started firing. In result of this firing, Muhammad Ameer and Atta Muhammad died at the spot while Muhammad Naseer sustained firearm injuries. The deceased and the injured were coming back home at the time of occurrence. The accused decamped from the place of occurrence, leaving Sultan Muhammad (given up) with the dead bodies, he escorted Muhammad Naseer injured to Civil Hospital, Mianwali. After getting his Medico-Legal Report, he arrived at Police Station Mochh and reported the incident at 9-00 a.m.-before Ghulam Murtaza Inspector/SHO." The motive disclosed by him was quarrel of Ghulam Shabbir (nephew) with the accused persons, 10/12 days prior to the occurrence.

6. As is evident from the above, the occurrence statedly took place at 9-00 p.m. (night time) of 11-8-199.8, which was reported to the local Police by Ghulam Hussain on 12-8-1998 at 9-00 a.m. and case F.I.R. No.173 of 1998 was registered. Ghulam Hussain, who claimed to have witnessed the occurrence, had nominated Ghulam Abbas armed with Kalashnikov, Nazar Abbas armed with Kalashnikov, Manzoor Hussain armed with Rifle, Ghulam Hassan armed with Kalashnikov, Ghulam Habib armed with Kalashnikov and Sultan Ahmad armed with Rifle. He also gave the motive for the occurrence. The said Ghulam Hussain, not only was not produced as witness but he also disowned the F.I.R. itself. The only explanation coming from Ghulam Murtaza Investigating Officer was that Ghulam Hussain had wrongly nominated the persons named in the F.I.R. due "to darkness of night." Ghulam Hussain was not only related to the deceased persons, he was quite near to the place of occurrence. Due to this shift and drift in the stance of the complainant, Tahir Khan appellant was substituted in place of the above named six persons and after investigation he was challaned. When he was charge sheeted; he pleaded not guilty and thus faced the trial.

7. The prosecution has placed great reliance upon the testimony of Zumarad Abbas (P.W.13) the son of the deceased Muhammad Naseer, Gul Muhammad (P.W.16) cousin and dying declaration of Muhammad Naseer. The trial Court as also the learned High Court has given much weight to the version given by them. The learned High Court dealt with the version of Ghulam Hussain as per F.I.R. as follows:-- "It is true that normally the first version give to the police by way of F.I.R. is treated quite significant and importance is attached to it. However, it stands undisputedly settled that F.I.R. is not a substantive piece of evidence. It can be used as previous statement of a witness and he can be confronted with the same if the first informant appears in Court and makes a statement. In absence of examination of maker of the F.I.R., same cannot be treated as a part of evidence. Apart from that legal hitch or technicality, an extremely credible evidence has come on record which negates and nullifies the story of Ghulam Hussain. Not only that Gul Muhammad P.W.16 has unequivocally stated on oath in Court that Ghulam Hussain reached the place of occurrence about 2/3 minutes after the incident and by that time Tapir Khan had tied away.... If the first informant or the complainant appears to be undoubtedly present at the time of incident or had seen the occurrence then his statement or version would carry a substantive weight but if it transpires that the first informant had not seen the occurrence or had just acquired the knowledge from some unreliable source or his version was based on mere presumption or suspicion then the Investigating Agency as well as the Court should make all the just and fair attempts to dig out the truth and ascertain true facts." It may be noted here that even Gul Muhammad (P.W.16) had not seen the occurrence, who had reached there after hearing firing and was at a distance."

8. The dying declaration of Muhammad Naseer was dealt' with by the learned High Court as follows:-- "The dying declaration is supported by Gul Muhammad P.W.16 whose testimony cannot be under-mined or doubted because he is also a natural witness. He resides within the vicinity of the place of occurrence and his attraction to the place of occurrence and having witnessed the same cannot be doubted. He has supported the statement dying declaration made by Naseer deceased, on all material points. His statement is further supported by Zamurd P.W.13 who is son of one of the deceased and close relation of two other deceased. After his father had been murdered and two of his uncles also met the same fate, he could not have falsely implicated Tahir Khan appellant. Assessing and analyzing the intrinsic value of the dying declaration and the statements of the witnesses, fact that inspite of murder of three persons no attempt has been made to implicate any one else other than Tapir Khan appellant, had there been any intention to falsely implicate any innocent person out of some vindictive purpose the same could have very conveniently been done by the witnesses, the fact that all the three murders have been attributed to appellant Tahir Khan alone, leave no doubting mind that he is the actual culprit. The implication of Tahir Khan appellant further finds strength from his conduct. He after the occurrence fled away from the place of occurrence and could be arrested nine months after the incident." Dealing with the motive part, it was observed that:-- "Although evidence with regard to motive has not been brought in detail yet the fact remains that two witnesses have stated on Oath that appellant intended to associate Zamurd P.W.13 with him as a member of his gange. As he was prevented by his elders, all the three had been done to death. This motive not only proves the case of the prosecution, rather further specifies that how dangerous and desperate person the appellant is." It was completely a different version than the motive disclosed in the F.I.R.

9. In view of the leave granting order "reappraisal of the evidence is being undertaken to determine the correctness or otherwise of the view taken by the Courts in convicting the appellant. Zumarad Abbas the son of deceased Muhammad Naseer, (16 years) appeared 'as P.W.13, the substance of whose testimony was that he along with Ghulam Abbas was sitting at a distance of one killa from his house, when they heard the tiring; where after Tahir Khan appellant armed with Kalashnikov 'passed by them,' from whom he inquired about the firing and he aimed the Kalashnikov at them and said that he had murdered three persons and will kill them also if they interfere. It was thereafter that the said witness Zumarad Abbas and Ghulam Abbas reached the place of occurrence and found Atta Muhammad and Muhammad Amir lying dead, while his father Muhammad Naseer was in injured condition. His testimony has been given great weight by the prosecution as if he was an eye-witness. Gul Muhammad (P.W.16) the cousin of the, deceased persons was also present in his house along with Ghulam Hussain and Sultan Malunood at that time when they heard the tiring shots and rushed towards the place of occurrence. He claims to have seen the appellant armed with Kalashnikov present behind the wall of Baithak of Atta Muhammad deceased. According to him, Atta Muhammad, Muhammad Amir and Muhammad Naseer had received injuries by the firing of Tahir Khan, who after firing left the place of occurrence. He owns the presence of Ghulam Hussain at the place of occurrence, who had removed Muhammad Naseer to the Hospital, while he himself remained there. It may again be mentioned that Ghulam Hussain is the same person who had lodged the F.I.R. but neither appeared nor pursued the matter any further, whereas Sultan Mehmood was also not produced. Another aspect which needs further attention and consideration is that Zumarad Abbas (P.W.13) the son of Muhammad Naseer, had along with him Ghulam Abbas, when they allegedly saw Tahir Khan appellant holding the Kalashnikov and leaving that place after the occurrence. The said Ghulam Abbas also was not produced by the prosecution. The persons who were nearest to the place of occurrence were Gui Muhammad (P.W.16), Ghulam Hussain and Sultan Mehmood. The said Gul Muhammad according to him, saw the appellant "present behind the wall of Baithak of Atta Muhammad." And claimed to have reached the place of occurrence first followed by Ghulam Hussain. He comes out with the version that Ghulam Hussain could not identify the real culprits "due to darkness". The same risk of doubt in identifying the culprits could equally be invoked against him, as he was along with Ghulam Hussain at a distance of about sixteen feet as per the sketch (plan of site) The appellant is alleged to have been present behind the wall (Point No.4) and the witness at point No.5 in the street. Point No.4 is in the courtyard of Baithak of Atta Muhammad deceased, which is bounded by a wall shown to have, its height varying from about 6 feet to 4-1/2 feet. The visibility and identity of the person; behind the wall during the night time becomes extremely doubtful. Interestingly the same reason was advanced by the prosecution to rule out the presence of the persons nominated by Ghulam Hussain in the F.I.R., and subsequently the name of the appellant was substituted. Let us see the version of Ghulam Murtaza, Inspector/SHO, Investigation Officer (P.W.17) who furnished the explanation as to the substitution of the names. He states that Ghulam Hussain had "given the wrong names of culprits due to darkness of night. After the supplementary statement of Ghulam Hussain, I acquired the knowledge that Tahir Khan was the culprit." If not one, but six persons nominated by Ghulam Hussain were excluded due to lack of proper identification because of darkness, the identity and substitution of one i.e. the appellant also is not free of doubt. It may be observed that the testimony of Gul Muhammad (P.W.16) cannot be given the status of an "eye-witness", as he did not see the firing but reached the place of occurrence after the incident. Likewise, Zumarad Abbas (P.W.13), who was away froth the place of occurrence at a distance of one acre and was attracted like Gul Muhammad and Ghulam Hussain to the place of occurrence after hearing of firing, cannot be treated as an eye-witness. There is no cavil that an eye-witness testimony is generally treated at a higher pedestal than the circumstantial or other evidence. However, it has to be flawless and worthy of credibility. Any person's faulty observation for any reason including darkness can not be given the status of an eye-witness version.

10. The other piece of evidence, is the dying declaration of Muhammad Naseer, who died twenty two days after making statement (Exh.P/U) dated 13-8-1998, which was recorded by Ghulam Murtaza (P.W.17) the Investigating Officer. It may be noted that Zumarad Abbas (P.W.13), the son of Muhammad Naseer admits in cross-examination that on the third day of the occurrence, he had seen his father in the hospital. There is every possibility of discussion and deliberation between father and son in the hospital about the persons nominated by Ghulam Hussain in the F.I.R. and about Tahir Khan appellant before he made the statement (Exh.P/U) on the third day of the occurrence. The question and suggestion put to Zumarad Abbas (P.W.13) about the patching up of the matter with the persons nominated by Ghulam Hussain in the F.I.R. and similar question put to Gul Muhammad (P.W.16) (another family member of the deceased persons, a cousin) on receiving of Rs.10,000,00 cannot be out rightly left aside. In answer to question No.4, while recording his statement under section 342, Cr.P.C. that why he was nominated by Muhammad Naseer in his statement (Exh.P/U) it was stated by the appellant, as follows: Q.No.4. It is in evidence that on 13-8-1998 Muhammad Naseer made a statement Exh. P.U. which has been read out to you in court naming you as accused for the murders of Atta Muhammad and Muhammad Amir deceased person and causing injuries to him. What have you to say about it? Answer. It is a fake document which was ante-dated and fabricated by Ghulam Murtaza Inspector in collusion with complainant party who had pardoned the persons nominated in the F.I.R. after receiving ten lac of rupees and implicated me on account of his personal grievance. Doctor Azmat Ullah wrongly attested Exh.P. U at the behest of Ikram Ullah Khan, MPA." Indeed the prosecution version particularly as to the involvement of the appellant gives rise to number of doubts and questions begging answers.

11. There is no doubt about the killing of three persons but who did that and at whose hands they lost lives, was the duty of the prosecution to have proved beyond any shadow of doubt. Mere dying declaration shrouded by and fraught with so many infirmities is not enough to convict a person. In Sher Bahadur and another v. The State (1972 SCMR 651) it has been observed that "All that can be said about the dying statement is that it was not taken in conditions that totally excluded the possibility of any prompting on the part of any person." And "In these circumstance, prudence required that-his evidence should have been accepted only if it was corroborated by some other reliable evidence, and that the same yardstick that was applied to his evidence in regard to the three acquitted accused persons should also have been applied in the case of the two appellants. The evidence of P.W. Badiuz Zaman obviously suffers from at least this improvement that lie introduced a motive implicating the two appellants which he never did in his First Information Report." In Zarif Khan v. The State (PLD 1977 SC 612), the legal position of a dying declaration was considered by this Court and it was observed that no absolute rule can be laid down as to the credibility and reliability of a dying declaration. It was observed that dying declaration is "a weaker type of evidence than evidence which can be subject to cross-examination." It was also observed that a dying declaration recorded by Judicial Officer is generally considered to be more reliable than recorded by the Police. The further observation of the Court was that "it cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine." In Nazim Khan and two others v. The State 1984 SCMR 1092, it was observed that "Another factor which reacts adversely on the dying declaration is its lack of integrity and correctness. It is a fact that in all six persons were named in it as equally responsible for firing and causing thereby the death of two persons. One Muhammad Afzal named therein was discharged by the police finding weight in his plea of alibi. The two Courts have considered the involvement of Walidad and Mirdad, the two elderly persons, as highly improbable on account of their maturity, old age and the very nature of the errand." And that "the mere abscondence of the persons charged does not, on the facts of this case, furnish any corroboration because it is a factor common to all those who were charged." In Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another (1997 SCMR 449), it was observed that the dying declaration, could itself be a good enough for sustaining conviction. In Farmanullah v. Qadeem Khan and another (2001 SCMR 1474) it was observed that no rule of absolute nature can be laid down that dying declaration can not be made sole basis for conviction unless corroborated. In Mst. Zahida Bibi v. The State (PLD 2006 SC 255) it was observed that dying declaration like the statement of an interested witness require close scrutiny and that it was a weak kind of evidence being without the test of cross-examination. In Farman Ahmad v. Muhammad Inayat and another (2007 SCMR 1825) it was again reiterated by this Court that such a declaration would require close scrutiny and corroboration.

12. It is thus absolutely clear from the principles laid down by this Court that a dying declaration is a weaker type of evidence, which needs corroboration and that conviction can be based on the basis of such a declaration when fully corroborated by the other reliable evidence. Thus the facts and circumstances of each case, have to be kept in view and also the credibility, reliability and acceptability of such a declaration, by the Court.

13. In the present case as observed above, the clouds over the veracity of the prosecution version began hovering with the substitution of the initially nominated persons in the F.I.R. and also that complainant did not appear as a witness. It assumes relevance as he (Ghulam Hussain) Sultan Mehmood and Ghulam Abbas were given up by the prosecution and not produced. The only possible conclusion is that the prosecution sensed the risk of producing them that they might not support the said version. Their production thus was withheld leaving doubts spreading all around. Reliance upon the sole testimony of Zumard Abbas (P.W.13) and Gul Muhammad (P.W.16) in such circumstances was not safe. At this stage, it may be mentioned that in Muhammad Jehangir alias Badshah and another v. State (1995 SCMR 1715) it was observed that mere factum of the presence of the witnesses on the spot does not mean that they are truthful and that the medical evidence may support the ocular evidence with regard to the injuries suffered by the accused, kind of weapon used for causing the injury, duration between the injury and the death and presence of injured witness or the accused on the spot, but it will not corroborate the identity of the assailants.

14. In the instant case, a serious question and doubt had arisen as to the identity of the assailants being a night time occurrence prevailed by darkness, wherein initially six persons had been nominated and named but substituted all together by a single person i.e. appellant. The with-holding of those persons, who could furnish some sort of corroboration namely Ghulam Hussain, Sultan Mehmood and Ghulam Abbas had seriously reflected upon the prosecution version adversely. Reference in this context may be made to Lal Khan v. The State (2006 SCMR 1846), where the prosecution had with held the production of those who could furnish corroborative evidence. It was observed that there can be no deviation from the rule that prosecution must prove its case beyond reasonable doubt and that the finding of guilt against an accused must not be based on probabilities to be inferred from evidence rather the finding of guilt must rest surely and firmly on the evidence of unimpeachable character otherwise, the golden rule of benefit of doubt would be reduced to naught. It may be observed that the law propounded by this Court and prevailing is that the benefit of any reasonable doubt must go to the accused and mere falsity of defence version is not to be taken adversely against the accused. In Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Govt. of East Pakistan (PLD 1964 SC 422) it was observed' that "the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person"... -"the doubts were so substantial that to overcome them by reasons to the contrary could only have the result of giving the benefit thereof to the prosecution. In The State v. Manzoor Ahmad (PLD 1966 SC 664), it was observed that "It is also equally well settled that the circumstances sought to be relied upon must have been established beyond all doubt." ."It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles found there, the motive for the crime and the other surrounding circumstances proved." In Ghulam Sikandar and another v. Mamraz Khan and another (PLD 1985 SC 11) it was observed that re appraisement of the evidence is necessitated "to see that benefit of every reasonable doubt should be extended to the accused." In Ansar Ahmad Khan Barki v. The State (1993 SCMR 1660) it was held that "The appellant was not bound to prove to the hilt his plea of defence and had merely to show the circumstances suggestive of reasonable possibility that there might be some truth in his allegation." In State v. Farman Hussain and others (PLD 1995 SC 1) it was observed that "it is invariably the duty of the prosecution to prove the case against accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that process not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted." The principles laid down by this Court from time to time as, to the duty of the prosecution to prove the guilt up to the hilt, as to the credibility and reliability of the dying declaration and as to with holding or non-production of the evidence which could furnish corroboration, are well settled by now, deviation there from, is not appropriate rather deed to be given full effect.

15. As to the motive relied upon for the involvement of the appellant, suffice it to observe that motive has been held to be a double edged weapon, which can be used either way and by either side i.e. for real or false involvement. Moreover, the motive, introduced subsequently that the deceased had forbidden Zumarad Abbas (P. W.13) to be associated with the appellant, was not such a cause as would have prompted him to kill three persons. The appellant also had introduced the element of ill will and enmity with the Investigating Officer due to a past encounter for falsely implicating him. The mere recovery of Kalashnikov, when the seven empties recovered from the spot were not matched therewith, was also in the circumstances inconsequential. Similar is the position as to abscondence, which itself is not sufficient for his involvement. It is indeed the linkage and the chain of all events by credible and convincing evidence on the basis of which the involvement of any person is said to be proved as the conviction should rest on surer and firmer footings.

16. The reappraisal of the evidence in this case has left many doubts in mind about the involvement of the appellant in the commission of the crime for which he has been convicted. With respect, it is observed that the learned Division Bench of the High Court did not consider the matter in the above perspective. The conviction as per the prevailing factual and legal position cannot be sustained in such circumstances.

17. In view of the above, the appeal is accepted the conviction and sentence awarded to him is set aside and he is acquitted. He shall be released forthwith, if not detained in any other case. M.H./T-12/SC Appeal allowed.