' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the judgment dated 24-2- 2000, passed by the learned Judge of Special Court Suppression of Terrorist Activities (S.T.A.)
Thatta, in Special Case No,91 of 1999 (State v. Khan Muhammad and others) by which the learned Judge acquitted the respondents.
2. Brief facts giving rise to the present appeal are that on 1-12-1998, at about 8-00 a.m. Muhammad Rahim, his brother deceased Muhammad Khan, his cousin P.W. Muhammad Hashim and his father-in-law Gul Muhammad left their village Gul Muhammad Soomro and went to Gharo Town, District Thatta. They reached at their Sindh Medical Store where P.W. Gul Muhammad opened it. At about 8-30 a.m. One Datsun Pick-up bearing No,KG-7945 without hood, sky colour, came and stopped in front of the shop/store. Two unknown persons were sitting on the front seat of the Pick- up. One was occupying the driving seat; another was sitting beside him. Three persons were found present in the open rear portion of the Dastun. Two of those persons were identified to be respondents Alam Sher and Khan Muhammad whereas the third person was unidentified. The respondents Khan Muhammad was armed with kalashnikov whereas Alam Sher and the unidentified person were armed with T.T. Pistols. The respondents and the unidentified person went to the complainant party. They threatened and aimed their weapons at them. The respondent Alam Sher told Muhammad Khan that they had come to take revenge of murder of his brother Murtaza who was killed by Hanif (Muhammad Khan's son). The deceased ran into the room of the Medical Store but the respondent Khan Muhammad followed him and fired kalashnikov bursts at him.
' Thereafter the respondents and the remaining unidentified persons went away in the same Datsun Pick-up. The complainant and P.Ws. Went inside the said room where they found Muhammad Khan lying dead. The complainant, after leaving P.Ws. Muhammad Hashim and Gul Muhammad over the dead body went to police station and lodged the report at 9-00 a.m. The motive of the incident, as alleged, was that; Murtaza, the brother of respondent Alam Sher, was murdered by Hanif who was the son of the deceased Muhammad Khan and in order to take revenge of that murder, this incident took place.
3. The Investigation Officer after recording the F.I.R. Reached the place of the incident where he found the dead body of Muhammad Khan lying in the room of the Medical Store. P.Ws. Muhammad Hashim and Gul Muhammad were present there. The Investigation Officer prepared the Mashirnama of the place of the incident, inquest report and secured 8 empty bullets of kalashnikov. Thereafter he recorded the statements of both the eye-witnesses. The dead body was sent to hospital for postmortem examination. On the same date the Datsun Pick-up was secured.
On 9-12-1998, all the respondents were arrested. On 11-12-1998, the respondents Punhoon, Suleman and Zaheer Hussain were put to identification test before a Magistrate where the P.Ws. Correctly picked them out to be the culprits of the crime. The respondent Khan Muhammad voluntarily produced the kalashnikov before the police, which was secured along with bullets. The respondents Alam Sher and Punhoon produced unlicensed pistols to the police. The crime-empties and kalashnikov recovered from the respondent Khan Muhammad were sent to Ballistic Expert for examination and report. The report was in positive. After completing the usual investigation, the respondents were challaned in the Court. The learned Special Judge (S.T.A.) Thatta tried the respondents and acquitted them under the impugned judgment. The State was dissatisfied with the said judgment, therefore, through Advocate-General this appeal has been filed.
4. We have heard the Assistant Advocate-General, Mr. AzizullahK-Shaikh, Advocate for the complainant, Mr. A.Q. Halepoto, Advocate for the respondents and perused the record of this case very carefully.
5. Mr. Habib Ahmed, learned Assistant Advocate-General has argued that three eye-witnesses have fully supported the prosecution case and they have specifically assigned the role to respondent Alam Sher that he had assisted the respondent Khan Muhammad in committing this crime by aiming his pistol at the P.Ws. So that they may not interfere in committing the murder of Khan Muhammad; that the evidence is supported and corroborated by the medical evidence, promptly lodged F.I.R. Matching report of secured empties from the place of incident with the kalashnikov secured from the respondent Khan Muhammad that the respondents had motive to commit the offence, therefore, he has fully supported the case against the respondents Khan Muhammad and Alam Sher. As regards the case of remaining respondents, he has stated that they have been involved in the case on the evidence of identification test but the said identification test is highly doubtful because the Magistrate who had conducted the identification test was not examined. He has further pointed out that the complainant knew Zaheer Hussain one of the respondents before the incident, as admitted by him, being one of the witnesses of the murder case of Murtaza, brother of the respondent Alam Sher. He has further contended that had he been present at the scene of the incident, then the witnesses could have identified him by name but all the witnesses have deposed that they had not identified the remaining culprits; that there is no other incriminating evidence against these respondents, therefore, he has not supported the case against them.
6. Mr. Azizullah K. Shaikh, learned Advocate for the complainant has stated that all the eye- witnesses have supported the prosecution case and implicated all the respondents. Out of them, two were identified at the place of the incident and the remaining were identified in the identification test. He has further stated that it was not necessary that the Magistrate should' have been examined to prove the identification test. He has further stated that, no doubt, the P.Ws. Are related inter se with the deceased and that there is previous enmity between the parties but it is not an inflexible rule that other independent witnesses should be examined to corroborate the evidence of interested witnesses. He has further stated that the ocular testimony is supported and corroborated by medical evidence and production of kalalshnikov by the respondent Khan Muhammad which matched with the crime-empties as per Ballistic Expert report, therefore, the evidence is sufficient to convict the respondents. He has further stated that the learned trial Judge did not apply law properly in discarding the ocular testimony on the ground of mere examination of interested witnesses; that it is not that the evidence of interested witnesses should always be corroborated by other pieces of evidence but in the present case the ocular testimony is corroborated by other pieces of evidence; that the learned trial Judge has misread the evidence and has not followed the principles of appreciation of evidence, therefore, it has caused a miscarriage of justice.
7. On the other hand Mr. A.Q. Halepoto the learned Advocate for the respondents has stated that ocular testimony consists of three witnesses' viz. Complainant. P.W. Gul Muhammad, and Muhammad Hashim, is interested and inimical, therefore, it requires strong and independent corroboration which the prosecution has failed to bring on record; that the presence of all the witnesses on the date, time and place of the incident is highly doubtful; that they had admitted in their statements, that the independent witnesses were available at the place of incident which occurred in the busy Bazar of Gharo Town but no independent witness has been examined which has created doubt in the prosecution story; that the medical evidence is not supporting the ocular testimony, as from the injuries, it appears that two weapons were used in the commission of this crime; that the identification test is highly doubtful as no Magistrate was examined but interested and hostile Mashir was examined whose evidence is untrustworthy and unreliable; that the eye- witnesses did not state that the Mashir was present at the time of the identification test. He has further stated that appellant Khan Muhammad was tried for an offence punishable under section 13(e), Pakistan Arms Ordinance in respect of kalashnikov allegedly secured from him but he was acquitted by the competent Court of law; that the revision preferred by the complainant was dismissed by the High Court, therefore, the said piece of evidence cannot be used against the respondent Khan Muhammad. On the above proposition, he has relied upon Sambasivam v. Public Prosecutor, Federation of Malaya PLD 1950 PC 23. He has further stated that the crime-empties and kalashnikov were sent together to Ballistic Expert which has affected the report; that the considerations of deciding acquittal appeal are quite different from the appeal preferred after conviction and the Court should be slow in disturbing the findings of acquittal. In support of his submissions he has relied upon Sambasivam v. Public Prosecutor PLD 1950 PC 23, Dosa v. State 1988 SCM R 1532, Muhammad Afzal v. State 1983 SCMR 1, Khan v. Crown PLD 1955 Sind 65, Bagha Ali v.
Muhammad Anwar 1983 SCM R 1292, NLR 1991 SC 291, Yaqub Shah v. State 1995 SCM R 1293, Muhammad Ashfaq v. State 1995 SCM R 1321 and Rasool Bux v. State 1980 SCM R 225.
8. In reply to the arguments, the learned Assistant Advocate-General has stated that the kalashnikov and empties were sealed at their places of recoveries, therefore, the acquittal of the respondent Khan Muhammad in Arms Ordinance case has not affected the said recoveries even if the same were sent jointly. He has further stated that there is no conflict between the ocular and medical evidence. He has relied upon the case of State v. Nazir Ahmed 1999 SCM R 610.
9. We have given due consideration to the arguments, gone through the evidence available on the record with the assistance of learned Assistant Advocate-General and find that the prosecution has relied upon the following pieces of evidence; (1) Motive; (2) Ocular testimony; (3) Recoveries; and (4) Identification test.
10. As regards the motive, the case of the prosecution is that Murtaza, brother of the respondent Alam Sher, was murdered in which Hanif son of the deceased, Noor Muhammad and two others were nominated as accused and in order to take revenge of the murder of Murtaza this incident occurred. The motive has been supported by three witnesses' viz. Complainant Muhammad Rahim, Muhammad Hashim and Gul Muhammad. They categorically stated that when the respondents came at the place of the incident, then the respondent Alam Sher disclosed to the deceased that they had come to take revenge of the murder of his brother Murtaza whose murder was committed by his son Hanif. The above piece of evidence went unchallenged as no cross- examination was conducted denying the said facts. On the contrary, the respondent Khan Muhammad admitted in his statement recorded under section 342, Cr.P.C. That Murtaza was killed in which the relatives of the complainant and the deceased party were accused. The remaining respondents adopted the statement of Khan Muhammad. Thus, the motive in this case has been proved beyond any shadow of doubt.
11. The ocular testimony consists of three witnesses viz. Complainant Muhammad Rahim, P.Ws.
Muhammad Hashim and Gul Muhammad. Their evidence reveal that on the date of the incident they ' along with the deceased left their village at about 8-00 a.m. And reached Gharo Town in their car. The medical store was opened by Gul Muhammad. At about 8-30 a.m. a Datsun Pick-up came and stopped in front of the shop. Two unidentified persons were sitting on the driver seat and passenger front seat of the vehicle whereas respondents Khan Muhammad, Sher Alam and one unidentified person were sitting on the rear portion of the Pick-up. The rear portion of the Pick-up was opened. The respondent Khan Muhammad was armed with kalashnikov, whereas Alam Sher and unidentified person were armed with pistols. They went to the complainant party. The respondent Alam Sher challenged the deceased by stating that they had come to take revenge of the murder of his brother Murtaza. Therefore, the deceased ran and went inside the room of the medical store. The respondent Khan Muhammad followed him in the room and fired from his kalashnikov at Muhammad Khan. Thereafter, the respondents ran away. The complainant party went inside the room where they found the deceased Muhammad Khan lying dead. All the witnesses were cross-examined, but nothing came on record to discredit their evidence. No material contradictions have been pointed out by the Advocate for the respondents. His main attack on the evidence was on legal ground that the witnesses were interested and hostile to the respondents.
12. The learned trial Judge discarded the ocular testimony, solely, on the ground that the complainant and P.Ws. Were interested and hostile witnesses, therefore, their evidence required corroboration.
13. No doubt all the witnesses are related inter se. As the deceased was the brother of the, complainant, P.W. Hashim is his son and P.W. Gul Muhammad is his father-in-law. In this way all the witnesses are related inter se and they have relationship with the deceased. It has also been brought on the record that Muhammad Hanif son of the deceased was nominated as one of the accused in the murder case of deceased Murtaza, brother of the respondent Alam Sher and the case was pending in the Court of law. The witnesses have admitted that they have enmity with the respondents. As such, all the witnesses are interested, hostile and inimical to the respondents. In such a situation, general rule is that evidence of such witnesses requires strong and independent corroboration. However, that rule is not an inflexible rule. The above question was examined in the case of Niaz v. State PLD 1960 S 387. In the said case, a rule has been laid down as to how and when interested and partisan witness can be relied upon without corroboration and when corroboration becomes necessary. The following four conditions have been laid down:--
(a) Whether the witnesses saw the occurrence and could identify culprits?
(b) Whether they can be relied upon without corroboration?
(c) Whether the persons charged are not excessive in the circumstances.
(d) Need of corroboration in each case depends on particular circumstances of each case.
14. The similar question was examined by the Honourable Supreme Court of Pakistan in< various authorities and it has been observed that independent corroboration is not inflexible rule in relying upon interested witnesses and that uncorroborated testimony of interested witnesses can be relied upon in context with other relevant circumstances of a particular case. Reference is invited to Nazir v. State PLD 1962 SC 269, Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37, Abdul Rashid v.
Umid Ali PLD 1975 SC 227 and Muhammad Ali v. State 1985 SCM R 203. It has further been observed by the Honourable Supreme Court of Pakistan that interested and partisan witnesses need corroboration but such corroboration need not be such as would D by itself justify conviction.
Corroboration may be afforded by anything in the circumstances of the case, which tend to satisfy the mind of Court. Reliance is placed on the case of Sharif v. State 1973 SCM R 83. It has further been held in the case of Roshan v. State PLD 1977 SC 55 that independent corroboration is not always to be insisted upon while relying upon interested witnesses but the value attached to the statement and the interested witness depends on facts and circumstances of each case. Reliance is also placed on GullE Khan v. State 1999 SCM R 304.
15. Keeping in view the above rule laid down by the Honourable Supreme Court of Pakistan in assessing the evidence of interested witnesses; first, it is to be seen as to whether the witnesses were present at the place of incident at the time of the incident or not. In this connection, the F.I.R.
Was promptly lodged by the complainant within a span of 30 minutes in which not only the entire facts of the case were mentioned but the names of eye-witnesses and the accused persons who participated in the commission of the crime and role attributed to them were specifically mentioned. The facts have been confirmed by the Investigation Officer who deposed that after recording the F.I.R. He immediately reached the place of incident where he found P.W. Muhammad Hashim and Gul Muhammad present there and he recorded their statements.This piece of evidence went unchallenged, as the respondents did not deny the said facts by cross-examining the witness to challenge his statement. Thus, through the Investigation Officer the presence of both the eye-witnesses have been proved that they were present at the scene of incident just after the incident. Both the witnesses gave the details of the incident, naming the respondents Khan Muhammad and Alam Sher, three unidentified culprits and assigned specific role to each of them in their 161, Cr.P.C. Statements. These facts tally not only with the facts mentioned in the F.I.R. But the same were deposed by the complainant and P.Ws. In their depositions. Had they not been present at the scene of the incident, then how they could have known the facts and parts assigned to the respondents? There was no occasion or time with the complainant to tutor these witnesses whose statements were recorded immediately just after the incident of this case. Thus, the presence of the witnesses at the scene of the incident has been established beyond any reasonable doubt.
When they were present at the place of incident, they actually saw the occurrence and identified two of the culprits viz. Respondents Khan Muhammad and Alam Sher.##TED##
16. The second point for consideration is, whether their evidence can be relied upon without corroboration. The main point to be examined is whether the evidence given by the witnesses is fitting in the circumstances of the case or not. The deceased had four injuries. If the P.Ws. Wanted to implicate innocent persons and had not witnessed the incident then they could have easily assigned the role of fire-arm injury to the respondent Alam Sher also but the witnesses were so straightforward that they simply assigned the role of fire-arm injuries to respondent Khan Muhammad and the role assigned to Alam Sher was of aiming pistol at them. Thus, there appears no H exaggeration in the manner of commission of the crime. Therefore, their evidence can be relied upon which is even otherwise corroborated by the medical evidence.
17. The third point for consideration is whether the persons charged are not excessive in the circumstances. The witnesses alleged that 5 persons came in a Datsun Pick-up. Two persons remained seated in the Pick-up. The engine of the Datsun was allowed to run. The remaining three persons went to deceased and the witnesses. Two persons overpowered the witnesses whereas one person followed the deceased and caused his murder. As such, the number of the accused in the circumstances of the present case is not excessive.
18. The fourth point for consideration is that corroboration depends on the particular circumstances of each case. In the present case, the witnesses are corroborated by the medical evidence and through I recoveries. Thus, it is safe to rely upon the evidence in the peculiar circumstances of the present case.
19. The learned trials Judge further discarded the evidence of these witnesses on the ground that disinterested witness were available but were not examined in the case. The above P.Ws. Admitted that at the time of the incident, several persons were present outside the shop. It is not out of place to mention here that now-a-days people do not indulge themselves in the affairs of others, particularly, when there is a serious enmity between the parties in which murders have been committed from both sides, usually people avoid of becoming witnesses in such type of heinous cases, as they do not want to be inimical to any group and to put J their lives in danger, particularly in the present days, when the law and order situation is not good. The Honourable Supreme Court of Pakistan has considered this point in a case of Yakoob Shah v. State PLD 1976 SC 53. In that case the murder was committed in a Bazar and a question arose as to why independent persons present in Bazar were not examined. The Honourable Supreme Court observed at page 56 as under:-- "About the main argument of learned counsel, that the petitioner's conviction rests entirely on the evidence of police officials and no 'independent' witness has been produced in the case, although the incident has taken place during busy hours in the main Bazar, all that we need say is that this brings to a focus the tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings. It is a frequent experience of Criminal Courts that many a gruesome tragedy is enacted, with scores of onlookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These 'independent' onlookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic Injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin this indeed is one of the principal causes of delay in decision of criminal cases. In this case, the conduct of Pordil Khan is in keeping with the general pattern of behaviour in the society. But that should scarcely be a reason to doubt the veracity of the three police officials who appeared as the main witnesses to the incident, or the capture of the petitioner as he was trying to flee from the spot. Rather their grit and the sense of duty, is praiseworthy."
20. Yet in another case of State v. Muhammad Amin 1999 SCM R 1367 the apathy of general public to become witness has been observed at page 1371 as under:-- ".... It is common experience now-a-days that due to apathy, the public-at-large are hesitant to come forward to witness the recovery in criminal cases for fear of reprisals in view of the present deteriorating law and order situation in the country. "
21. Therefore, non-examination of other persons available in the Bazar is not fatal to the prosecution case. Thus, the prosecution has proved the ocular testimony in this case.
22. The case of the prosecution is that 8 empties of kalashnikov were secured from the scene of the incident, which the police had sealed in presence of Mashirs. Respondent, Khan Muhammad, after his arrest led the police and produced kalashnikov which was secured by the police in presence of Mashirs. The same was sealed at that place. Both the articles were sent to Chemical Analyzer for examination and report. The report is in positive. In order to prove the case; the prosecution examined Investigation Officer and Mashir Muhammad Rahim son of Gul Muhammad. Both have supported the prosecution case on the above points. The Investigation Officer had produced the Ballistic Expert report, which is Exh.P/16. This report shows that 4 crime-empties secured from the place of incident were fired from the kalshnikov, which was produced by the respondent Khan Muhammad. The learned trial Judge discarded the evidence of Mashir on the ground that he was interested witness. No doubt he is interested witness but his evidence is supported and corroborated by the Investigation Officer who has no enmity, whatsoever, with the respondents.
Therefore, the same can be safely relied upon in this case.
23. Learned Advocate for the respondents has stated that respondent Khan Muhammad was acquitted in the case of 13(e), Pakistan Arms Ordinance, therefore, the said evidence cannot be used against him and has relied upon the case of Sambasivam v. Public Prosecutor PLD 1950 PC 23.
It has been observed in the said authority that the acquittal in such type of case would reduce, in some degree the weight of evidentiary value of the said piece of evidence against the accused in the trial. This authority does not show that the evidence is to be discarded altogether but it only emphasises that degree of its reliance is slightly reduced. However, in the present case the respondent Khan Muhammad was acquitted in a separate trial in which the evidence was recorded separately whereas in the present case separate evidence was recorded. It is well- settled principle of law that while deciding a case, the evidence of another case cannot be taken into consideration but the case should be decided on the evidence available on the record of that particular case. The evidence available in the present case clearly shows that kalashnikov was secured on the pointation of the respondent Khan Muhammad which was sealed and then sent to Chemical Analyzer which matched with four 0 crime-empties secured from the place of incident. In these circumstances and keeping in view of the principles laid down by the Honourable Privy Council we are of the considered view that there is some evidence connecting the respondent Khan Muhammad with the commission of this crime.
24. As regards the identification test, the case of the prosecution is that 3 respondents viz. Zaheer Hussain, Punhoon and Suleman were not identified by the prosecution witnesses at the place of incident, therefore, P they were put to identification test where the P.Ws. Identified them to be the culprits of this crime. In order to prove the case; the prosecution examined P.W. Abdul Rahman son of Gul Muhammad who deposed that on 11-12-1998, these three respondents were put to identification test before a Magistrate where the P.Ws. Identified them. No other evidence has been led. The prosecution also led no evidence to prove that at the time of the identification test this witness was present. None of the three eye-witnesses deposed that at the time of identification test Mashir Abul Rahim son of Gul Muhammad was present. Furthermore, very important witness, viz. Magistrate, has not been examined. He was the person who could have given the details of identification test and other relevant facts which are required to be performed by him. In the circumstances of the present case non-examination of Magistrate has materially and adversely affected the identification test. As such, the identification parade in the circumstances of the present case has not been proved in accordance with law. It appears to be highly doubtful. Apart from the above facts, the complainant in his deposition categorically stated that respondent Zaheer Hussain was known to him as he was one of the witnesses of the murder case of Murtaza, brother of the respondent Alam Sher in which Hanif son of the deceased Muhammad Khan was nominated as an accused person. Thus, when the respondent Zaheer Hussain was already known to the witnesses then why he was not named in the F.I.R. And why the identification test of such accused was held? Thus, we agree with the learned Assistant Advocate-General that the identification test is highly doubtful.
25. After considering the material available on the record we are of the considered view that no case has been made out against the respondents Zaheer Hussain, Punhoon and Suleman, therefore, they are rightly acquitted by the trial Court. The learned A.A.-G. Has not supported the case against the three respondents.
26. As regards the case of respondents Khan Muhammad and Alam Sher, we are of the considered view that specific role has been assigned to Khan Muhammad of causing fire-arm injuries to the deceased. The role assigned to respondent Alam Sher is of facilitating the respondent Khan Muhammad in committing the murder of the deceased as he aimed his pistol at the P.Ws. So that they may not move to save the deceased. Other three culprits were unidentified. As such the case of the respondents Khan Muhammad and Alam Sher falls under section 302(b), P.P.C. Therefore, they are liable to be convicted and sentenced.
27. We have also considered the defence taken by the respondent Khan Muhammad that he has been involved in the case due to enmity of murder of Murtaza and that in the newspapers it was reported that deceased was killed by Ghani Baghyar. The respondent Alam Sher adopted the statement of the respondent Khan Muhammad.
28. The enmity has been admitted by the witnesses and the same has been discussed in the earlier part of this judgment. As regards the news item published in the newspapers, no News Reporter or any other person from the newspaper's office has been examined to prove the said news item. As such the same has not been proved, therefore, the same cannot be relied upon and it is of no help to the respondents.
29. Keeping in view the role of respondent Khan Muhammad who played a leading role in causing the murder of the deceased. He is convicted under section 302(b), P.P.C. And sentenced to death.
He may be hanged by neck till he is dead.
30. Before awarding the maximum sentence to the respondent Khan Muhammad, we had considered the doctrine of expectancy of life but we find it is no more available, as held in the case of Maqbool Ahmed v. State 1987 SCM R 1059.
31. As the minor role has been assigned to the respondent Alam Sher, therefore, he is convicted under section 302(b), read with section 149, P.P.C. And sentenced to suffer imprisonment for life.
Each respondent is directed to pay Rs,1,00,000 (Rupees one lac) to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. In case of non-payment of compensation the respondents shall undergo R.I. For six (6) months.
32. The respondents Khan Muhammad and Alam Sher along with three unknown persons armed with deadly weapons formed unlawful assembly and in prosecution of their common object caused the murder of the deceased Muhammad Khan, therefore, they have committed the offence punishable under section 148, P.P.C. Hence, the respondents Khan Muhammad and Alam Sher are convicted under section 148, P.P.C. And sentenced to suffer R.I. For two (2) years. All the sentences are ordered to run concurrently with benefit of section 382-B, Cr.P.C.
33. The appeal is partly allowed and partly dismissed in the above terms.