' KHALIL-UR-REHMAN RAMDAY, J.--- In an occurrence which had taken place on 15-8-1993 at about 6-00 a.m. In the area of Police Station Khanmai of District Charsadda, three brothers of Mumtaz complainant, namely, Lal Rehman, Awal Khan and Turab had been allegedly murdered by the respondents while the wife of the said Mumtaz namely, Mst. Zulekha (P.W.10) had also received tire- arm injuries on her person but had survived the same.
2. It is also available on record though not in a proper and detailed form that in the same occurrence, one Mst. Khaista Jan of the accused-respondents' party had also got killed while Mehmood and Murad respondents as also one Mst. Hussana of the said party had received injuries on their persons. A cross-F.I.R. Bearing No,239 had been registered at the same police station against the complainant party of the present ease. We were informed during the course of hearing of this petition that the Peshawar High 'Court had acquitted the present complainant party in the said case arising out of the said F.I.R. No,239 and further that the complainant party of the said case i,e, the accused party of the present case had not challenged the said acquittal any further.
3. Sher Bahadur and Farhad respondents, are real brothers while Shakir respondent, Murad respondent and Mukhtar accused who had died during the course of the trial are real brothers inter se and are the sons of Mehmood respondent.
4. As a result of the trial, the five private respondents were convicted under section 302(b)/149, P.P.C. And each one of them was punished with a sentence of imprisonment for life on three counts.
The said respondents were also convicted under section 324/149, P.P.C. For the murderous assault committed on Mst. Zulekha P.W. And each one of them was punished, inter alia, with five years' R.I.
On the said charge. All the said respondents were also found guilty under section 148, P.P.C. And each of them was ordered to suffer, inter alia, three years' R.I. Therefor. All the said sentences of imprisonment were directed to run concurrently and the benefit of the provisions of section 382-B, Cr.P.C. Was also extended to them.
5. However, on an appeal filed by them in the Peshawar High Court, all the said respondents were acquitted of all the said charges essentially on the ground that the three deceased persons and the fourth surviving victim had received a total number of five wounds of entrance while six accused persons (including Mukhtar accused since dead) were sought to be hanged for the same; that the said accused persons were allegedly armed with different types of fire-arm weapons like shot-guns and klashnikovs but no empty of any gun had been recovered from the spot; that it had not been specified by the eye-witnesses as to which accused was carrying which fire-arm weapon; that the crime-empties recovered from the spot had not been sent to the Fire-arms Expert; that the occurrence in question had allegedly taken place at 6-00 a.m. And although the F.I.R. Is stated to have been recorded at 7-00 a.m. But the complainant had cast doubts about the time of the lodging of the said F.I.R. As according to him, after lodging the F.I.R., he had returned to the place of occurrence along with the S.H.O. At about 6-45 or 7-00 a.m. While the distance between the police station where the F.I.R. Had been recorded and the place of occurrence was about 7/8 miles; that injured Mst. Zulekha (P.W.10) was a witness only to the extent of injuries received by her and never claimed to have witnessed the killing of the three deceased persons; that Mumtaz complainant (P.W.9) was thus the only eye-witness produced by the prosecution regarding the murder of the three deceased persons but no corroboration was available in verification of the testimony offered by him; that the prosecution had suppressed the injuries caused by the present complainant party on the members of the present accused-party; that although the victims on both the sides had been attacked during the course of the same occurrence but it was difficult to determine as to which of the two sides had commenced the aggression and that in the circumstances the accused persons were entitled to the benefit of doubt.
6. What appears from the record is that no background of any enmity or even the slightest or animosity existed between he two parties and it was only on account of the switching on/switching off of a fan in the mosque where Mumtaz complainant and Murad respondent had gone to offer Fajjar prayers that some altercation had taken place between the two of them which had then led to the occurrence in question. This was thus, a case where the two eye-witnesses, namely, Mumtaz complainant P.W.9 and his wife Mst. Zulekha, the injured P.W.10 would have no reason or motive to falsely accuse the respondents of their participation in the occurrence in question. A large number of victims on both sides i,e, three dead and ,one injured on the complainant's side and one dead and three injured on the respondents' side, would also indicate towards the participation of a fairly large number of persons in the said occurrence which would rule out the possibility of the proverbial and the usual widening of the net in criminal cases.
7. Although no effort was made by either side to bring the F.I.R. Of the cross-case i,e, F.I.R. No,239, lodged against the present complainant party, on the record of this case yet it is available in evidence through the Investigating Officer, namely, Muhammad Sharif Khan, Inspector (P.W.15) that Mumtaz complainant of the present case was one of the accused persons of the said cross-case.
In the circumstances, the presence of Mumtaz complainant at the place of occurrence at the relevant time and the consequent witnessing of the said occurrence by him stood admitted on record. As has been mentioned above, he had no enmity with the respondents and was thus, not an inimical or an interested witness. As has also been noticed above, on account of the fire-arm injuries received by at least eight persons of the two sides, the participation of a fairly large number of persons in the said occurrence could not be ruled out. In the circumstances, no exception could be taken to the testimony offered by Mumtaz complainant who was an independent and an admitted witness of the said occurrence.
8. Similar was the position with regard to his wife Mst. Zulekha P.W. Who was herself an injured victim of the occurrence in question. It is true that she never claimed to have witnessed the actual firing of the shots by the respondents at the deceased persons but then she had specifically claimed that on coming out of her house she had seen the named accused persons running in the `Kucha' after having done the deceased persons to death and it was while so running that they had come to her and had fired at her resulting in injuries on her person. Therefore, she was not the kind of witness who could be said to know nothing about the killing of the three deceased persons as she had seen the respondents running away after causing injuries on the bodies of the three deceased persons and which accused persons had been fired shots even at her. She also had no against any of the respondents and was thus a credible and a trustworthy witness against them.
9. Seeking corroboration of ocular testimony was only a rule of caution where one was in some doubt about the veracity thereof and was never a rule of law. As has been mentioned above, the presence of the A two eye-witnesses at the place of occurrence was not open to any doubt nor did any reason exist to suspect the credibility of their testimony vis-a-vis any of the accused persons.
10. It was noticed by this Court in Ali Bepari's case reported as PLD 1962 SC 502 that in such-like cases which were adversarial in nature, the parties did not, generally, come out with true stories and instead made efforts to minimize their respective roles in the occurrence. It was, therefore, laid down that the Courts should never feel deterred, by the incompleteness of the tales told, from drawing their own inferences from the facts and circumstances which were available on record.
11. The occurrence in question is admitted on all sides. Its time, date and place are also not in dispute. It is also not denied that Mumtaz complainant party had lost three lives in the said occurrence while the fourth victim had survived though on account of her sheer good-luck. The five respondents plus Mukhtar accused, since dead, had been saddled with the liability of causing the said loss. Credible evidence was available on record to establish the said accusation against the said accused persons. In the circumstances, acquitting them all on the ground that it could not be determined as to which one of the two parties had initiated the aggression was a grave error.
Giving such a premium to parties fighting pitched battles and butchering people in the process, could never be approved.
12. Having heard the learned counsel for the parties; having perused the record and having thus, examined all aspects of the matter, we find that the impugned judgment of the Peshawar High Court, dated 30-4-2002 passed in Criminal Appeal No,392 of 2000 could not be sustained.
13. Consequently, this petition is converted into appeal which is allowed as a result whereof the said impugned judgment is set aside together with the acquittal recorded in favor of the private respondents and as a further result whereof the judgment, the conviction and the punishments, as recorded against them by the learned trial Judge, are restored.
14. The convict-respondents shall be taken into custody to suffer the unsulfured part of the sentences awarded to them.