' ASIF SAEED KHAN KHOSA, J.---Shamsher Ali appellant was convicted for an offence under section 302(b), P.P.C., vide judgment dated 30-9-2000 handed down by the learned Additional Sessions Judge, Toba Tek Singh and was sentenced to death as Ta'zir and was ordered to pay a sum of Rs.50,000 to the heirs of Sajjad Hussain deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. Through the same judgment the learned trial Court had acquitted five co-accused of the appellant. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.1475 of 2000 which has been heard by us along with Murder Reference No.643 of 2000 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. The party of Nazar Hussain complainant and that of Faqir Hussain, etc., were locked in an old murder feud and in furtherance of that feud both the parties had clashed with each other on 1-4-1999 and cross-cases in respect of the said incident had been lodged by the rival parties at Police Station City, Toba Tek Singh. At about 7-00 a.m. On 2-4-1999 Faqir Hussain and Hassan Din belonged to the complainant party were proceeding on a Kacha road in Square No.49 belonging to the complainant and when they reached near Killa No.23 of Square No.44 they saw the complainant's son namely Sajjad Hussain coming from Chak No.299/JB on a bicycle after fetching milk. When the said Sajjad Hussain reached near Killa No.22 of Square No.44 suddenly Ghulam Shabbir, Shamsher Ali appellant, Zafar Ali, Sajid Ali and Asghar Ali, all armed with guns .12 bore, emerged from a wheat crop and Asghar Ali fired at Sajjad Hussain hitting him on his left wrist, Zafar Ali fired at Sajjad Hussain on his right knee, Ghulam Shabbir fired at Sajjad Hussain hitting him on the back of his right knee, Sajid Ali fired at Sajjad Hussain but his fire missed the latter and lastly Shamsher All appellant fired at Sajjad Hussain from a very close range hitting him on his back. Upon receipt of those injuries Sajjad Hussain fell down on the ground. When the complainant and others raised hue and cry and tried to approach the injured Sajjad Hussain the appellant and his co-accused aimed their guns at the complainant party and forbade them from coming near and as a result of that the complainant party receded from the said place. After covering some distance the complainant party looked back and saw that Sajjad Hussain had already died and his dead body was being dragged by the accused party towards Chak No.299/JB. The complainant party returned to its own village and after collecting many people therefrom they went back to retrieve the dead body which had been thrown away by the accused party in Killa No.1 of Square No.49. Leaving the dead body of Sajjad Hussain at the spot in the care of the witnesses the complainant proceeded to report the matter to the police and on his way met Muhammad Akram, S.I. At 8-45 a.m. On the same day, i.e., 2-4-1999 before whom he made a statement in respect of the said incident. According to the said statement, of the complainant his son had been murdered by the appellant and his co-accused with the abetment of Faqir Hussain. On the basis of the said statement made by the complainant formal F.I.R. No.134 was registered at Police Station City, Toba Tek Singh at 9-15 a.m. On 2-4-1999 in respect of offence under sections 302/ 148/149/109, P.P.C.
3. After recording the statement of the complainant Muhammad Akram, S.I. Took up the investigation of this case and proceeded to the place of occurrence. He inspected the place of occurrence, collected the blood-stained earth, sent the dead body to the mortuary for autopsy, prepared a rough site-plan of the place of occurrence and recorded the statements of witnesses.
After the post-mortem examination of the dead body he received the last-worm clothes of the deceased and at a subsequent stage he arrested the appellant and his co-accused, recovered a gun from the appellant's possession and after completion of the investigation he prepared a challan which was later on submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with three heads under sections 302/149, 148 and 302/149, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced ten witnesses in support of its case against the appellant and his co-accused. Nazar Hussain complainant (P.W.6) and Hassan Din (P.W.7) furnished the ocular account of the incident in question and also deposed about the motive.
Jamshed Ali (P.W.8) proved the recovery of a gun from the custody of the appellant during the investigation of this case. The doctor who had conducted the post-mortem examination of the dead body of Sajjad Hussain was not available during the trial and, thus, the postmortem examination of the dead body was proved by Dr. Khalid Mehmood (P.W.2). Muhammad Akram, S.I.
(P.W.10) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They opted not to make statement on oath under section 340(2), Cr.P.C.
But Muhammad Amin (D.W.1) was produced in defence so as to establish non-availability of the doctor who had conducted the post-mortem examination of the dead body of Sajjad Hussain.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's five co-accused but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, it convicted and sentenced the appellant as mentioned and detailed above. Hence, the present, appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The learned counsel for the appellant have maintained that the prosecution had failed to prove its case against the appellant beyond reasonable doubt as the related, inimical and chance witnesses produced by the prosecution to furnish the ocular account had failed to receive any independent corroboration. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that both the eye-witnesses produced by the prosecution in this case, i.e., Nazar Hussain complainant (P.W.6) and Hassan Din (P.W.7) were closely related to Sajjad Hussain deceased inasmuch as the former happened to be the father of the deceased and the latter was a brother of the paternal grandfather of the deceased. Both the said eye-witnesses were admittedly inimical towards the appellant and his co-accused inasmuch as it had repeatedly been admitted by them that they were locked in an old murder feud with the accused party. The said eyewitnesses were also chance witnesses as they lived about five acres away from the place of occurrence and their claimed presence at the place of occurrence at the relevant time was admittedly coincidental. Both the above-mentioned eye-witnesses were, thus, related, inimical and chance witnesses and they had made significant improvements before the learned trial Court upon their statements made before the police during the investigation of this case. Naseer Ahmed Patwari (P.W.1) had stated before the learned trial Court that the names of the said eye-witnesses were not mentioned in the site-plan prepared by him and also that the said eye-witnesses had not informed him about the names of the assailants, the weapons used by the assailants or the role played by the individual assailant during the occurrence in issue. It is of some significance to mention here that both the above-mentioned eye-witnesses had mentioned in the F.I.R. And the statements under section 161, Cr.P.C. That four of the appellants' co-accused had caused specific injuries to Sajjad Hussain deceased but the said eye-witnesses had been disbelieved by the learned trial Court to the extent of the said co-accused of the appellant and the said co-accused were acquitted by the learned trial Court. It had been held by the Hon'ble Supreme Court of Pakistan A in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) that the eye-witnesses who had been disbelieved by the learned trial Court to the extent of some accused persons could not be believed against the other accused persons unless the statements of such eye-witnesses received independent corroboration to the extent of the other accused persons. In the case in hand the alleged recovery of a gun from the appellant's possession during the investigation of this case was legally inconsequential as no crime-empty had been secured from the place of occurrence and, thus, the gun allegedly recovered from the appellant's possession could not be connected with the alleged offence. Instead of providing support to the ocular account the medical evidence produced in this case by the prosecution had gone a long way in contradicting the ocular account furnished by the above-mentioned witnesses.
According to the F.I.R. Lodged by Nazar Hussain complainant (P.W.6) and the statement made by Hassan Din (P.W.7) under section 161, Cr.P.C. The present appellant had caused a fire-arm injury on the back of Sajjad Hussain deceased but the medical evidence showed that the only injury received by Sajjad Hussain deceased on his back was an exit wound. During the trial both the said eye-witnesses had tried to improve upon their statements made before the police in their bid to bring their allegation against the appellant in line with the medical evidence and they were duly confronted with their statements made before the police in that regard. It had been maintained by both the above-mentioned eye-witnesses that as many as four co-accused of the present appellant had caused specific injuries to the deceased but most of those injuries specified by these eye-witnesses were found to be nonexistent in the medical evidence and resultantly the said co-accused were acquitted by the learned trial Court. These eye-witnesses had further. Alleged that the dead body of Sajjad Hussain deceased was dragged by, the appellant and his co- accused for quite a distance but the medical evidence produced by the prosecution itself had given a lie to these eyewitnesses in that respect as no marks of dragging was found on the dead body. Pitched enmity based upon a longstanding murder feud between the parties to this case is an admitted fact and it is proverbial that motive is a double-edged weapon in a criminal case as it can cut both ways. In the present case if the alleged motive could propel the appellant into aggression against Sajjad Hussain deceased then at the same time it was equally possible that the same background of enmity could prompt the above-mentioned eye-witnesses to falsely implicate the appellant in this case. We have, therefore, found it to be extremely unsafe to rely upon the motive alone to provide corroboration to the ocular account furnished in this case.
10. For what has been discussed above we have found that the related, inimical and chance eye- witnesses produced by the prosecution in this case, who had been disbelieved by the learned trial Court to the extent of five co-accused of the present appellant and failed to receive any independent corroboration so as to make us safely believe the said eye-witnesses to the extent of the present appellant. In these circumstances a conclusion is inescapable that the prosecution had failed to prove its case against Shamsher Ali appellant beyond reasonable doubt. Criminal Appeal No.1475 of 2000 is, therefore, allowed, the conviction and sentence of the appellant recoded by the learned trial Court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
11. Murder Reference No,643 of 2000 is answered in the negative and the sentence of death passed by the learned trial Court against Shamsher Ali appellant is not confirmed.