' IJAZ AHMAD CHAUDHRY, J.---Karam Ali and Saif Ullah appellants were convicted for an offence under section 302(a) read with section 34, P.P.C. For causing the murder of Nusrat and Muhammad Afzal deceased vide judgment dated 31-1-2001 handed down by the learned Additional Sessions Judge-II, Bhakkar and were sentenced to death on each count as Qisas. Through the same judgment Javed Ali and Aman Ullah co-accused were, however, acquitted by the learned trial Court. The appellants have challenged their convictions and sentences before this Court through the present appeal which has been heard by us along with Murder Reference No,22 of 2001 seeking confirmation of the sentences of death passed by the learned trial Court against the appellants.
We propose to decide both these matters through the present consolidated judgment.
2. Criminal. Appeal No,367 of 2001 was also filed by Rab Nawaz, complainant against the acquittal of the co-accused, which has already been dismissed by the Division Bench of this Court vide order dated 24-4-2001.
3. The prosecution's case unfolded in the F.I.R. Was that Rab Nawaz, complainant, was resident of Kalwal and Zamindar by profession. On 15-8-1999 at about 7-30 a.m. The complainant along with his nephews Nusrat and Muhammad Afzal sons of Ghulam Rasool, Nazar Hussain and Allah Bakhsh was present at his Baithak at village Kalwal. In the meantime Saif Ullah appellant came on the backside of his house for putting earth. Nusrat deceased asked him not to lift earth from his land, due to which he abused Nusrat and gave a threat and went away. After a short time Karam Ali appellant armed with .12 bore gun climbed on the roof of his house, Saif Ullah, appellant and Aman Ullah acquitted co-accused armed with .12 bore gun and Javed Ali acquitted co-accused armed with Wahola came there. Javed Ali acquitted co-accused raised a Lalkara. Karam Ali, appellant fired first short with his .12 bore gun which hit Nusrat deceased on his left shoulder. Aman Ullah acquitted co accused fired second shot which hit Nusrat deceased on his chest and he fell down.
Muhammad Afzal deceased came forward but Saif Ullah fired a shot with his .12 bore gun which hit him on his forehead and he also fell down. The complainant Nazar Hussain and Allah Bakhsh witnessed the occurrence. After the occurrence the appellants and their acquitted co-accused went to their houses.
4. The motive behind the occurrence was that there was a dispute of flow of rain water from the street between Nusrat and Afzal deceased and the accused party. Nusrat and Muhammad Afzal had succumbed to the injuries at the spot.
5. After the registration of the case Altaf Hussain S.-I. (P.W.9) investigated the case. Rab Nawaz, complainant (P.W.7) appeared before him on 15-8-1999 and made the statement (Exh.P.H.), who then sent the complaint to the Police Station for registration of the case. He visited the spot, examined the dead bodies and prepared the inquest report (Exh.P.E.) of Nusrat Deceased and injuries statement (Exh.P.E.1). He also prepared the inquest report of Muhammad Afzal (Exh.P.C.) and injury statement (Exh.P.C/1). The dead-bodies were handed over to Saeed Ahmad, Constable (P.W.3) for post-mortem examination. He secured blood-stained earth from the place of occurrence and took into possession vide recovery memo. Exh.P.I. And Exh. P.J. He recorded the statements of P.Ws. And prepared site plan Exh.P.K. Saeed Ahmad, Constable (P.W.2) handed over to him the last-worn clothes of Nusrat and Muhammad Afzal, deceased which were taken into possession. He got prepared the. Site-plan from Ghulam Siddique Draftsman (P.W.3). He arrested Karam Ali appellant on 22-8-1999 and during investigation he got recovered gun P.8 along with its licence P.9. He also prepared the site-plan of place of recovery and recorded the statements of recovery witnesses. He also arrested Saif Ullah appellant on 1-9-1999.
6. After the close of the investigation report under section 173, Cr.P.C. Was submitted and on receipt of the report the learned trial Court supplied copies of the documents required under section 265- C, Cr.P.C. To the appellants and charge was framed against them which was denied by them and they claimed to be tried.
7. The prosecution in order to prove the guilt of the appellants and their acquitted co-accused produced as many as 10 witnesses. The ocular account was furnished by Hafiz Ghulam Hakim (P.W.1) who identified the dead-bodies of Nusrat and Muhammad Afzal deceased at Kalwal and T.H.Q. Hospital Kallurkot at the time of their post-mortem examination, Rab Nawaz, complainant (P.W.7) and Nazar Hussain (P.W.8) were the eye-witnesses. Altaf Hussain, S.-I.(P.W.9) had investigated the case while the medical evidence was furnished by Dr. Sarmad Mahmood Shah (P.W.5). However, remaining witnesses are of formal nature and need not to discuss here.
8. After the close of the prosecution evidence the statements of the appellants and their acquitted co-accused were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. On a question that "why this case against you and why the P.Ws. Have deposed against you?" Karam Ali, appellant made the following reply:-- "P.Ws. Are inter se related and also related to the deceased persons. So these are interested witnesses. As a matter of fact the complainant party wanted to demolish north/eastern corner of compound wall of our house and for this purpose the complainant party numbering 20/25 persons armed with different deadly weapons emerged at the spot and were about to demolish the said wall for purpose of to save my property and my person I started aerial firing while standing on the roof of my house to ward of this attack made by the complainant party. The complainant had also started indiscriminating firing. During the course of my and the firing of the complainant party deceased persons received injuries and expired. My all other real three sons (co-accused) have been falsely involved in this case. I am a retired teacher of advance age of 70 years."
' The appellants also produced Muhammad Iqbal, Inspector, Range Crime Sargodha as 'D. W .1, Muhammad Tariq Zaffar, Lecturer Baran University Rawalpindi as D.W.2, Jan Muhammad alias Lal as D.W.3 and Abdul Hafeez as D.W.4, in their defence.
9. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which are being assailed through this appeal.
10. Learned counsel for the appellants contends that the prosecution has miserably failed to prove the case against the appellants beyond any shadow of doubt. It is also contended that Aman Ullah (acquitted co-accused) who was attributed effective shot on the front of the chest of Nusrat deceased has already been acquitted; that similarly Javed Ali (acquitted co-accused) who according to the witnesses was also present at the spot with Wahola has also been acquitted; that the same evidence has been disbelieved to the extent of involvement of the said acquitted accused and the same evidence cannot be relied upon to the extent of the appellants as well without any corroboration. It is also contended that the medical evidence is in contradiction with the ocular account as according to the site-plan and the witnesses Karam Ali, appellant had fired from a distance of 60 feet but according to Dr. Sarmad Mahmood Shah (P.W.5) the said injuries contained blackening and burning, which could not be received by firing from a distance of more than 10 feet. It is also contended that injuries Nos.1 and 2 according to P.W.5 were independent injuries and injuries Nos.3, 4, 5 and 6 were as a result of different firing which were fired from another distance; that the medical evidence was not in line with the ocular account and the prosecution had also miserably failed to prove the case against the appellants. It is also contended that previous enmity between the parties existed as the suit was filed by the complainant party against the accused party and the said suit was dismissed in the year 1999 and they were aggressors. It is also contended that the eye-witnesses had not spoken the whole truth and the motive has also not been proved. No place was shown from where the earth was excavated by the appellants' party and the said story has been found false as during investigation nothing was taken into possesgion in this regard as well. It is also contended that the occurrence had taken place in the surrounded area but according to the witnesses nobody had witnessed the occurrence except the eye-witnesses. It is also contended that the recoveries are inconsequential and the prosecution has miserably failed to prove the case against the appellant beyond any shadow of doubt.
11. Learned counsel for the complainant and the State on the other hand have opposed this appeal on the ground that both the eye-witnesses were residents of the same locality and their presence had been admitted by the defence/accused by stating that they
12. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution with the assistance Of the learned counsel for the parties. The occurrence in the present case had taken place on 15-8-1999 at 7-30 p.m., while the F.I.R. According to the prosecution version was got registered at 9-15 a.m. The same day on the statement of Rab Nawaz (P.W.7) in which,it was stated that Javed Ali (acquitted accused) had raised a Lalkara.
Karam Ali, appellant while armed with gun had climbed the roof and fired on the left shoulder of Nusrat deceased. Aman Ullah acquitted co-accused was also alleged to have fired hitting Nusrat deceased on his chest. Saif Ullah appellant also fired hitting on the forehead of Muhammad Afzal deceased. The motive behind the occurrence was alleged that the accused party had tried to excavate the earth from the plot in possession of the deceased persons.
13. The prosecution produced Rab Nawaz (P.W.7) and Nazar Hussain (P.W.8) to prove the ocular account. Both the eyewitnesses no doubt were residents of the same locality and their presence at the spot had been admitted by Karam Ali appellant while raising the defence plea that they were the aggressors but in the criminal cases these things alone are not sufficient to believe the prosecution story outrightly. The Courts have to scrutinize the evidence of each witness to test his veracity and truthfulness. P.W.7 Rab Nawaz was maternal uncle of both the deceased Nusrat and Muhammad Afzal deceased while Nazar Hussain (P.W.8) is Phuphizad of the complainant. So both the witnesses were closely related inter se and with the deceased. There was an old dispute between the parties and civil suit was also filed by the deceased and the complainant against the accused party in the year 1992 which was dismissed. Then the second suit was filed which was also dismissed. So some dispute was there between the parties and the intention of the accused party according to the plaint (Exh.D.L.) filed by the complainant party was to close the street from northern side by encroaching upon the same. It will be relevant to point out that no untoward incident had taken place between the parties for the last so many years and both the parties had already resorted to resolve their issues through the Courts.
14. According to the complainant the motive behind the occurrence was a dispute of the flow of rain water in the street and simultaneously another motive was set up resulting into commission of the incident that Saif Ullah appellant had come to excavate the earth from the land of Nusrat deceased, who was restrained by Nusrat and he returned while abusing and threatening that they would teach him a lesson. Then after sometime the present occurrence had taken place. During the cross-examination it was claimed by the eye-witnesses that Saif Ullah appellant had started excavating earth from the land of Nusrat but stated that they had not shown any donkey cart or Tasla at the spot to the police. The Investigating Officer also stated that the complainant party had not shown him the place from where the earth was being excavated by Saif Ullah appellant and no material or articles were shown to him by the complainant party through which the earth was being excavated. So the immediate cause alleged by the prosecution resulting into commission of this occurrence could not be proved through any independent piece of evidence and the other circumstances.
15. No evidence was also produced to show that there was any dispute between the parties about the flow of the rain water through the street. Nothing had been brought on the record except the oral statements of the witnesses. Even the place was also not shown in the site plan from where the earth was being dug in spite of the fact that the plot in possession of the deceased has been duly shown in the site-plan. Moreover, it was not shown in the site-plan that the water from which place was flowing in the street. So the oral statements being not supported by any independent piece of evidence regarding the motive, we have no hesitation in holding that the prosecution had not been able to prove the motive against the appellant beyond any shadow of doubt.
16. Now we discuss the ocular account. According to the eye-witnesses, Karam Ali, appellant at the time of occurrence had climbed the roof of his house which was about 10/12 feet height and according to the Draftsman Ghulam Siddique (P.W.3) the distance between Point No,1, where Nusrat deceased was present and received the injuries at the hands of Karam Ali appellant and point No,4 where from the latter had fired was 62 feet. On the other hand according to Dr. Sarmad Mahmood Shah (P.W.5) who conducted the post-mortem examination, Nusrat deceased had received 8 injuries. Injury No,1 was with a fire-arm on the left shoulder with blackening and burning while Injury No,2 was also lacerated wound with the blackening and burning and both these injuries were specifically attributed to Karam Ali, appellant, which could not be caused if the fire was made from a distance of more than five feet. Aman Ullah co-accused, who was attributed the other injuries has already been acquitted by the learned trial Court. As such medical evidence does not support the ocular account to the extent of the role of firing attributed to Karam Ali appellant. It also suggests that the occurrence had not taken place in the manner narrated by both the witnesses.
17. In the present case it is proved on record that the eye-witnesses had not spoken the whole truth and the medical evidence has been found in contradiction with the ocular account regarding the role attributed to Karam Ali, appellant, who was alleged to have fired from the roof top hitting on the left shoulder of Nusrat deceased. Then another shot was fired by Aman Ullah (acquitted accused) hitting on the chest of Nusrat deceased, while the third shot fired by Saif Ullah appellant had hit on the forehead of Muhammad Afzal deceased when he had stepped forward after falling of Nusrat deceased on the ground. According to the medical evidence the deceased Nusrat had received eight injuries in all. Injury No,1 was on the left side of the shoulder while Injury No,2 was on the left shoulder joints and these injuries according to the Medical Officer (P.W.5) were as a result of two impendent shots fired by the assailants. Nusrat deceased had also received Injuries Nos.3, 4, 5 and 6 and injury No,7 attributed to Aman Ullah acquitted co-accused was on the chest while Injury No,8 was a grazing wound on the right side of forehead. The last injury had not been sufficiently explained. According to the prosecution version, Saif Ullah appellant had fired at Muhammad Afzal deceased hitting on his forehead resulting in his death but P.W.5, Dr. Sarmad Mahmood Shah during the cross-examination categorically stated that injuries Nos.1 and 2 on the person of Nusrat deceased were as a result of different fires and the injury on the person of Muhammad Afzal deceased was the result of same fire made at Nusrat. However, Injuries Nos.3 to 6 on the person of Nusrat were opined to have been caused with different fire. So the medical evidence also does not support the ocular account regarding the firing by Saif Ullah appellant hitting on the forehead of Muhammad Afzal. Learned counsel for the appellants has rightly pointed out that nothing had been recovered from Saif Ullah appellant during investigation and he, according to the result of the investigation, had not participated in the incident or fired at Muhammad Afzal deceased. Though opinion of the police is not binding on the Courts and cannot be taken into consideration at all yet coupled with the other facts and circumstances it can be taken as a circumstance to satisfy the mind regarding guilt or otherwise of the accused and veracity of the witnesses.
18. We don't find their statements confidence-inspiring also due to the reason that they had also involved Aman Ullah, co-accused with the role of causing injury in the front of the chest, who had already been acquitted by the learned trial Court and an appeal filed against his acquittal was also dismissed by this Court, which order has attained finality. We have also found the medical evidence in contradiction with the ocular account regarding the role attributed to the accused persons. The statements of said eye-witnesses cannot be relied upon against the appellants as well without any independent corroboration which is lacking in the present case. It has been repeatedly held by the Honourable Supreme Court of Pakistan in the cases of Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Sarfraz alias Sappi and 2 others v. The State 2000 SCM R 1758 and Iftikhar Hussain and another v. The State 2004 SCM R 1185 that eye- witnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons unless they receive independent corroboration qua the other accused persons. In the case in hand, no such independent corroboration was available vis-a-vis the present appellants inasmuch as the motive set up by the prosecution had remained far from being established and nothing was recovered from the possession of the Saifullah during the investigation of this case while recovery of pistol from Karam Ali appellant was legally inconsequential as no empty was recovered from the spot and it cannot be said with certainty that the said weapon was used in the occurrence.
19. Though both the witnesses were residents of the same vicinity and their presence at the spot normally cannot be doubtful which even otherwise had been admitted by the defence by claiming that the complainant party was the aggressor, who wanted to dismantle the wall, yet these factors alone are not sufficient to hold that whatever stated by the witnesses was correct. In the present case we have already observed that the eye-witnesses have not stated the whole truth and their version has been found contradictory to the medical evidence. In such circumstances we have no hesitation in holding that the ocular account is not trustworthy, which cannot be relied upon for maintaining conviction in a case entailing capital sentence. The defence plea taken by Karam Ali appellant cannot be used as a corroborative piece of evidence to the ocular account, which has been disbelieved by us and according to the defence version reproduced in Para No,8 ante, Karam Ali appellant was not guilty of any offence who had acted in self-defence and the deceased party was the aggressor. In Sultan Khan v. Sher Khan and others PLD 1991 SC 520 the Honourable Supreme Court of Pakistan has held as under:-- "The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded."
' In the present case there is no other reliable evidence to supplement the prosecution case and the defence version has to be believed in toto.
20. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against both the appellants beyond reasonable doubt.
This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charges by extending the benefit of doubt to them. They shall be released from jail forthwith if not required in any other case.
21. Murder Reference No,22 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Karam Ali and Saif Ullah appellants is not confirmed.