1. ' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the Appeals Nos.73, 74 and 75 of 2003 as they arise out of a common judgment.
2. ' The present appeals are directed against the judgment dated 24-10-2003 passed by the Anti- Terrorism Court-II, Sukkur in Special Cases Nos.45 and 6 of 2003 by which the learned Judge convicted and sentenced the Appellants as under:--
(a) Under section 302-B read with section 149, P.P.C., to death and compensation of Rs.50,000 each to the legal heirs of deceased or in default thereof to suffer R.I. For six months.
(b) Under section 337(H)(ii), P.P.C., to R.I. For three months and fine of Rs.50,000 each.
(c) Under section 7(a) Anti-Terrorism Act, 1997, to death and fine of Rs.100,000 each or in default thereof to suffer R.I. For two years more.
(d) Under section 13-(e) of Pakistan Arms Ordinance, 1965 to R.I. For five years and fine of Rs.20,000 each or in default thereof to suffer S.I. For two months.
3. ' All the sentences were ordered to run concurrently. The death sentences were subject to the confirmation by this Court and the R&Ps were ordered to be sent to this Court.
4. ' The facts giving rise to the present appeals as disclosed in the F.I.R. Are that the deceased Mumtaz Ali was Doctor by profession. He had a private Clinic in Golimar near Shikarpur Railway Crossing.
5. The deceased was sister's son of the complainant. On 10-1-2003, the complainant, P.Ws. Bahar Ali, Arbab, Abdul Raheem and Altaf Hussain were standing near the Clinic on the road whereas deceased Mumtaz Ali was present in his Clinic. The Electric Bulbs were on. It was about 8-45 p.m., when they saw Appellants Madad Ali empty-handed, Akhtiar Ali armed with weapon like Kalashnikov. The absconding accused persons namely Suhno armed with Kalashnikov, Nizamuddin with TT Pistol, Asgher with Rifle and Imamdin with Kalashnikov came there. The appellant Madad Ali instigated the other accused to kill deceased Mumtaz Ali, who was present in the Clinic. On the said instigation, appellant Akhtiar and absconding accused Asgher fired at the deceased, who after receiving the injuries fell down on the ground. The other accused fired from their weapons in the air.
6. The complainant party being empty-handed did not go near the accused persons and then the accused ran away. The complainant and P.Ws. Went inside the Clinic where they found deceased lying injured and then he died there. The complainant leaving the P.Ws. At the place of incident, went to the Police Station and lodged the report at 9-15 p.m.
7. ' The Police arrived at the place of incident. They found the dead body lying there. Empties of weapons were also lying, which were secured by the Police along with blood-stained earth. The dead body was sent to Medical Officer for post-mortem examination.
8. ' The police recorded the statements of witnesses. The appellants were arrested. They voluntarily produced Kalashnikovs before the police. The empties secured from the place of incident and weapons secured from the possession of the appellants were sent to Ballistic Expert for examination and report. The report was in positive. After completing the usual investigation, the appellants were challaned in the Court, whereas the remaining accused were shown as absconders.
9. ' On 10-4-2003 a charge under sections 302, 148, 149, 114, 337- H(ii), P.P.C., under section 7(a) of Anti- Terrorism Act, 1997 and under section 13(e) of Pakistan Arms Ordinance, 1965 was framed against the appellants and absconding accused, who have been tried in absentia. The appellants pleaded not guilty.
10. ' In support of the case, the prosecution examined complainant Shamsuddin. He supported the prosecution case. The prosecution examined three eye-witnesses Abdul Raheem, Altaf Hussain, Bahar and Mashir of place of Wardhat recovery of empties, arrest of the appellants, production of weapons by the appellants Hazar Khan. Their examihationin-chief was recorded. Their cross- examination was reserved. Thereafter they did not appear before the Court as they absconded in a crime of murder allegedly committed by them after recording their examinationin-chief. The prosecution examined Medical Officer Doctor Shabeer Ahmed, who conducted post-mortem examination of the deceased. He found 7 injuries. Out of them, three injuries were wounds of entry and three were wounds of exit. The Doctor opined that the injuries were caused by fire-arm weapons and the deceased died instanteously. The seven witnesses examined by the prosecution was A.S.-I. Abdul Sattar, he arrested the appellants on 19-1-2003. A.S.-I. Rao Saifullah was examined, who recorded the F.I.R. Of the complainant, Investigating Officer Khadim Hussain was examined. He conducted part of the investigation by preparing a Mashirnama of Wardhat and securing empties from the place of incident. R.W.10 SIP Khair Muhammad was examined. He conducted a part of the investigation by which he interrogated the appellants, who volunteered to produce the Kalashnikovs and he registered the cases under section 13(e) of Pakistan Arms Ordinance against the appellants. He produced the Chemical Analyser Report and Ballistic Expert Report. Tapedar was examined as P.W.11. He gave the various location's of the place of incident. Process server Qamaruddin was examined as Court witness, who deposed that the P.Ws. Abdul Raheem, Altaf Hussain, Bahar Ali and Hazar Khan were absconders in Crime No.26 of 2003 under section 302, P.P.C.
11. Of Police Station, Site, Sukkur. Lastly, the prosecution examined H.C. Abdul Majeed, one of the members of party in whose presence, the appellants produced the Kalashnikovs.
12. ' The appellants in their statement recorded under section 342, Cr.P.C., denied all the allegations of the prosecution.
13. ' They claimed to be innocent. They took the plea that there was recorded enmity. Between them and the complainant party, in which murders from both the sides were committed. He produced various F.I.Rs. Of those cases, in which, either the complainant party were accused in the F.I.Rs.
14. Lodged by them or the appellants or their relatives were accused in the F.I.Rs. Lodged by the complainant party. They did not examine themselves on oath or lead any evidence in their defence, though opportunity was given to them.
15. ' After considering the material available on record and hearing the parties counsel, the learned trial Judge convicted the appellants and absconding accused in absentia under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have filed the present appeals.
16. ' The trial Court sent the R&Ps of the cases for confirmation of death sentence as ordered in the impugned judgment. No separate reference under section 374, Cr.P.C. Was sent by the trial Court.
17. ' We have heard the Advocate for the appellants, State counsel and perused the record of this case very carefully.
18. ' The learned Advocate for the appellants, has stated that the prosecution case rests upon ocular evidence and recoveries; that the prosecution examined four eye-witnesses, out of them complainant was made subject to cross-examination whereas the three eye-witnesses Abdul Raheem, Altaf Hussain and Bahar Ali were not produced before the Court for cross-examination though after examination-in-chief, the cross-examination was reserved; that the evidence of these three witnesses cannot be termed as evidence because the appellants had no opportunity to cross-examine these witnesses; that the prosecution case rests upon the solitary statement of complainant; that there is recorded enmity between the parties as murders were committed from both the sides, therefore, the complainant is interested and inimical to the appellants; that the statement of complainant requires strong and independent corroboration, which the prosecution has failed to produce. He has further argued that the evidence of complainant is full of exaggerations, improvements and contrary to the facts mentioned by him in the F.I.R., which have been proved through the complainant himself and the Investigating Officer as required under Article 140 of Qanun-e-Shahadat Order; that the ocular testimony of complainant is highly unbelievable. He has further stated that the recoveries of empties from the place of incident and recoveries of Kalashnikovs are highly doubtful as another private witness Shafi Muhammad was not examined though he was available; that it has come on the record that the appellant Madad Ali was empty-handed but in spite of that the Kalashnikov has been foisted upon him, which matched with the crime empties; that the allegations against the appellant Akhtiar was that he was armed with weapon like Kalashnikov but Kalashnikov has been foisted upon him, which matched with the crime empties; that in these circumstances the investigation conducted by the Investigating Officer was not honest and fair therefore the prosecution have failed to prove the case against the appellants.
19. ' On the other hand the learned State counsel has stated that the case is based upon the evidence of complainant Shamsdin and recoveries, that the complainant Shamsdin has fully supported the prosecution case and implicated the appellants with the commission of this crime; that the conviction can be based on the solitary statement of complainant coupled with the recoveries, which have been proved by the prosecution through Investigating Officer; that three eye-witnesses and one Mashir were absconders, whose examination-in-chief were recorded but they failed to appear before the Court for cross-examination, therefore, their evidence has no value. He has supported the impugned judgment.
20. ' We have given due consideration to the arguments and examined the evidence available on the record with the help of learned Advocate for the appellants.
21. ' From the evidence we find that the case rest upon two piece of evidence, ocular testimony and recoveries.
22. The ocular testimony consists of complainant and three eyewitnesses namely Abdul Raheem, Altaf Hussain and Bahar Ali. The examination-in-chief of the above named three eye-witnesses were recorded, thereafter their cross-examination was reserved but subsequently they did not appear before the Court for cross-examination because they absconded after allegedly committing the murders of Cr.No.26 of 2003 of Police Station, Site, Sukkur under Article 133 of Qanun-e-Shandat Order; it was the right of the accused to conduct the cross-examination to the witnesses produced by the prosecution but the prosecution failed to produce these witnesses before the Court as such a A valuable and vested right given to the accused persons under the law was denied to them. The statements of witnesses would include examinationin-chief, the cross-examination, if the accused intends to do so or reexamination if the prosecution wants to avail that opportunity. In the present case, the appellants wanted to cross-examine the witnesses but they did not appear before the Court therefore, in such circumstances without cross-examination, the statements of these three eyewitnesses cannot be termed as complete, statements within the meaning of Article 133 of Qanun-e-Shahadat Order, therefore, the said statements, without cross-examination, cannot be termed as legal statements. Thus the same lost their evidentiary value, therefore, they cannot be considered for any purpose. The above view is supported by the case of Yahya Bakhtiar v. The State (PLD 1983 SC 291).
23. After excluding the evidence of the above named three witnesses we are left with the statement of complainant Shamasuddin. A bare reading of the statement of Shamasuddin, reveals that it is full of exaggerations, discrepancies and contradictions from the statement made by him in the F.I.R. In the examination-in-chief before the Court, he deposed that the appellants Madad Ali and Akhtiar were armed with Kalashnikovs. In the cross-examination, he admitted that he had not stated so in his F.I.R. This is major improvement in the prosecution story, through which both the appellants were specifically shown to have been armed with Kalashnikovs so as to assign the part of firing to them. Subsequently he also admitted himself in the cross-examination that he had not stated in the F.I.R. That appellant Madad Ali was armed with Kalashnikov and he caused fire-arm injuries to the deceased, though in the statement before the Court, he assigned the said role to appellant Madad Ali. In the examination-in-chief, he deposed that the appellant Akhtiar Ali was armed with Kalashnikov. A question was asked from him that he did not state so in the F.I.R. But he insisted that he had stated so in the F.I.R. When he was again confronted then he admitted that he had stated in the F.I.R. That the appellant Akhtiar was having a Rifle like Kalashnikov and the Rifle was 7MM. He further stated in the examination-in-chief that the fire-arm shots fired by appellant Akhtiar, hit the deceased on his right arm, heart, abdomen and on the back side. In the cross-examination when he was confronted with the F.I.R., then he admitted that he had not stated in the F.I.R. That fires made by accused Akhtiar hit the deceased on his right arm, heart, abdomen and back side. In the examination-in-chief he further deposed that accused Asghar's fire-arm shorts also hit the deceased on his arm, heart and other parts of his body. In the cross-examination, when he was confronted with the F.I.R. He himself admitted that he did not state so in the F.I.R. After admitting the above facts when the complainant was asked that he did not state in the F.I.R. That appellant Madad Ali also fired upon the deceased Mumtaz but he denied the same. This question was confronted to P.W. A.S.-I. Rao Saifullah, who recorded the F.I.R., he admitted that the complainant did not state in the F.I.R. That accused Madad Ali was armed with Kalashnikov or he made fires upon the deceased by taking Kalashnikov from accused Suhno. In the examinationin-chief the complainant stated that the remaining accused also fired at the deceased. But in the cross- examination, he admitted that he has not stated in the F.I.R. That absconding accused Suhno, Nizamuddin and Imamdin had fired at the deceased. It is pertinent to point out that complainant in examination-in-chief deposed that there were scattered empties near the Clinic, which were fired by the Police in their self-defence. From his statement, it appears that the police also arrived at the place of incident and encounter took place between the police and culprits therefore, empties of fire-arm shots of the police were lying there. But this is not the case of prosecution. However, in the cross-examination, he twisted from his earlier statement by stating that the police did not reach at the place of incident or fired at the accused party in their defence. When he was confronted with the above mentioned statement in the examination-in-chief, then he completely denied by stating that he did not state in examination-in-chief that there were scattered empties near the Clinic which were fired by the police in self-defence. Thus it has been established beyond any reasonable doubt that the complainant had exaggerated the facts in the examination-in-chief so as to fit in the circumstances of the case and part of the firing at the deceased by the accused, who were not assigned such part in the F.I.R. And match with the medical evidence. These improvements in the evidence clearly indicate that the same were made so as to change the story mentioned by him in the F.I.R. And to make the case strong. In a case of Syed Saeed Muhammad v. State (1993 SCM R 550), it has been observed that improvements in the statements made by witnesses in the Court to strengthen the prosecution case, such statements are not worthy of reliance. As such the above mentioned contradictory statements of the complainant are material contradictions and improvements in the evidence, which have created doubt about the veracity of this witness, therefore, the same cannot be relied upon.
24. ' Furthermore the evidence of complainant is contradictory to the medical evidence as according to the complainant as admitted by him in the cross-examination that accused had fired at the deceased Mumtaz from a distance of only one pace. If that distance is taken into consideration then the accused were standing at a distance of one pace away from the deceased and if a person standing at such a short distance aimed his weapon at the deceased then the distance would again be reduced to less than three feet. If the fire is made upon the deceased from the distance of less than three feet then the injuries on the person of deceased, would be having blackening and charring marks but the Medical Officer clearly stated that none of the injuries was having blackening or charring marks around them. Thus the deceased have received injuries from a longer distance than shown by the ccinplainant. Apart from the above fact, the complainant assigned the role to all the accused persons of causing fire-arm injuries to the deceased. He further specifically stated that the deceased had received injuries on his right arm, heart, abdomen and on his back, which were caused by the appellant Akhtiar. He further deposed that fire-arm shots made by the absconding accused Asgher also hit the deceased on his arm, heart and the other parts of the body of the deceased and the remaining accused also fired at the deceased and then he fell down on the ground. If these injuries are counted then the deceased must had received at least eleven injuries on his person but the Medical Officer found the following injuries:--
(1) One lacerated punctured wound of entry of fire-arm on the left upper part of the chest, below, the clavicle measuring 1 c.m. x diameter circular in shape with inverted margins. No blackening and charring seen.
(2) One lacerated wound of exit on the posterior lateral aspect of the left back of the chest measuring 2 c.m. x 1 c.m. Irregular in shape with, inverted margins. Injury No.2 is in continuation of Injury No. l.
(3) One lacerated punctured wound of fire-arm on the middle part of the left side of chest just below the nipple measuring 1 c.m. In diameter circular in shape with inverted margins. No blackening and charring seen.
(4) One lacerated wound of exit on the back of middle part of the back of chest measuring 3 c.m. x 1 c.m. Irregular in shape with inverted margin. Injury No.4 is in continuation of Injury No.3.
(5) One lacerated punctured wound of fire-arm on the left upper part of the abdomen laterally measuring 1 c.m. x diameter circular in shape with inverted margins. No blackening and charring seen.
(6) One lacerated wound of exit on the right flank of abdomen with omentum out at the sight of the injury measuring 6 c.m. x 3 c.m. Irregular in shape with inverted margins. Injury No.6 is in continuation of Injury No.5.
(7) One wound present on the right elbow joint which lacerated the muscles and form gutter shape appearance fracture the bone measuring 6 x 4 c.m. In length.
25. ' Thus the Medical Officer found that the above injuries were caused by four fire-arm shots, which are not corresponding with the statement of the complainant. The deceased had no fire-arm injury on his back as claimed by the complainant. As such the statement of the complainant is also contradictory to the medical evidence.
26. Furthermore, there is recorded enmity between the complainant party and accused party as several cases were filed against each other. Copies of F.I.Rs. Have been filed by the appellant Madad Ali in his statement recoded under section 342, Cr.P.C. And admitted by the complainant in the cross-examination, in which either the accused or their relatives are the complainants lodged against complainant party or the complainant or his relatives are the complainants lodged against the accused party. The incidents mentioned in the F.I.Rs., are of murders and injuries from each side. Thus there is recorded enmity of serious nature between the parties. Thus they are highly inimical to each other. It is pertinent to point out that three eye-witnesses and one Mashir are absconding in a murder case in which one of the members of the accused party was murdered. Thus the complainant, who is maternal uncle of the deceased is not only interested but highly inimical and hostile to the accused, therefore, in such a situation, the evidence of the complainant, requires strong and independent corroboration, which is lacking in the present case.
27. Reliance is placed on a case of Taj Muhammad v. Rehman Khan (1986 SCM R 823) in which the Honourable Supreme Court observed that blood feud existing between the parties then strong corroboration requires to the evidence of eye-witnesses. Reliance is also placed on cases of Ghulsher v. State (1968 SCM R 756), Hamida Bano v. Ashiq Hussain (PLD 1963 SC 109) and Haji Rab Nawaz v. State (1998 SCM R 25). As such the evidence of the complainant, is highly doubtful H and cannot be safely relied upon. Thus the prosecution have failed to prove the ocular evidence in this case.
28. ' As regards recoveries, the prosecution examined SIP Khadim Hussain and H.C. Abdul Majeed one of the members of Police party in whose presence, the appellants produced Kalashnikovs. Both the witnesses deposed that Kalashnikovs were produced by the appellants, which were secured by the police. As we have already observed in the earlier part of the judgment while discussing the ocular testimony that appellant Madad Ali was empty-handed at the time of incident whereas the appellant Akhtiar was having a 7 MM Rifle as admitted by complainant in the F.I.R. And proved by him, through cross-examination, in such a situation it is highly improbable that the appellants would produce the Kalashnikovs, which they did not allegedly carry at the time of incident.
29. Surprisingly enough the said weapons have matched with the empties secured from the place of incident. Even otherwise, the recoveries have corroborative value. The prosecution wanted to corroborate these recoveries to the ocular testimony. We have already discarded the ocular evidence as such there is no ocular testimony, then to whom these recoveries are corroborating. In the absence of substantive evidence, no conviction can be based on merely I on corroborative evidence of recoveries. Reliance is placed on Nazir Muhammad v. State (PLD 1974 Kar. 274 at 281), State v. Bashir (PLD 1997 SC 408) and Imran Ashraf v. State (2001 SCM R 424). As such recoveries are of no help to the prosecution. It has been held in a case of Siraj v. Crown (PLD 1956 FC 123), that the recovery of blood-stained hatchet handle, at the instance of the accused, where other evidence was disbelieved, is not enough for conviction.
30. ' After considering the material available on record, we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellants are entitled for the benefit of doubt, which is accordingly given to them.
31. ' Above are the reasons of our short order dated 18-2-2004 by which we had allowed the appeals and did not confirm the death sentence.