Ijaz Ahmad Chaudhry, J.--This judgment will dispose of Crl. Appeal No, 1789 of 2001 filed by Wazir Khan and Sami Ullah appellants against their conviction and sentence alongwith Murder Reference No, 794 of 2001 sent by the learned trial Court under Section 374 Cr.P.C. for confirmation of their death sentences as both those matters have arisen from the same judgment dated 8.11.2001 through which the learned Addl: Sessions Judge, Mianwali had convicted the said appellants Wazir Khan and Sami Ullah under Section 302(b)/34 PPC each and sentenced them to death each with compensation of Rs, 1,00,000/- each payable to the legal heirs of the deceased Saif Ullah under Section 544-A Cr.P.C. or in default of payment thereof to undergo S.I. for six months each.
2. The occurrence in the present case allegedly had taken place at 9.30 a.m. on 26.12.1999 at Mela Mandi Mavaishian (cattle market), Mianwali, 2 kilo-meters away from Police Station City Mianwali and on the statement of Abdullah Khan (PW.1) father of Saif Ullah deceased FIR (Ex. PA) was recorded by Muhammad Khan SI (PW. 10) at Police Station on 26.12.1999 at 11.30 a.m.
3. The brief facts narrated in the FIR (Ex. PA) by Abdullah Khan (PW.r) are that on 26.12.1999, he (complainant) alongwith Liaqat Hayat, (PW.2), Sana Ullah (given up PW) and Saif Ullah deceased was present at the cattle fair of Mianwali city at about 9.30 a.m. in connection with purchase of a buffalo when from the western side, a Suzuki car, red colour, came from where Muhammad Akram Khan acquitted accused armed with rifle, Wazir Khan appellant armed with rifle, Muhammad Ashraf acquitted accused armed with rifle, Sami Ullah appellant armed with 222 rifle and Ikram Ullah acquitted accused armed with .30 bore pistol while Abdul Rehman acquitted accused armed with 7 MM rifle emerged. Abdul Rehman accused challenged Saif Ullah deceased to get the revenge when Muhammad Ashraf accused fired at the deceased hitting on his chest, second fire was made by Sami Ullah appellant with 222 rifle landing on the neck of the deceased, Wazir Khan accused fired with 222 rifle hitting on the chest of the deceased near his right arm while the remaining accused made - indiscriminate firing at Saif Ullah deceased landing on his chin, left flank, foot, stomach, buttock's and right arm who fell down while the accused left . the place of occurrence by firing on the hue and carry of the PWs.
4. The motive behind the occurrence was that on 13.7.1991 Habib Ullah son of Abdul Rehman accused had been murdered and a case FIR No, 300 of 1991 under Section 302 PPC was registered against the complainant party wherein Muhammad Aslam on of Abdullah Khan was sentenced to death and Saif Ullah deceased and Shafa Ullah sons of Abdullah Khan were sentenced to 25 years imprisonment who were released on bail, hence the accused persons with their common intention and object assaulted upon Saif Ullah deceased. The deceased was taken to the hospital in the injured condition, but he succumbed to the injuries after reaching in the hospital.
5. Muhammad Khan SI (PW.10) after the recording of the FIR, prepared the injury statement Ex. PE, inquest report Ex. PF and sent the deadbody to the Mortuary for post-mortem examination. He proceeded to the spot, prepared rough site-plan Ex. PM, collected blood-stained earth from the spot which was taken into possession vide memo Ex. PB attested by the witnesses. Mehr Khan Constable (PW.9) brought the last worn clothes of the deceased after the post-mortem examination, Shirt P. 6, Shalwar P. 7, Bunian P.8, Sweater P. 9, another Sweater P. 10 and Cheddar P. 11 alongwith a sealed packet and all these articles were taken into possession vide memo Ex. PL attested by MIehr Khan Constable (PW.9). He also recorded the statements of the witnesses under Section 161 Cr.P.C. On 1.2.2000 he got prepared the site-plans from Muhammad Shafique Draftsman (PW.5) which are Ex. PG and Ex. PG/i. On 21.1.2000 Sami Ullah and Wazir Khan appellants were arrested. On the same day Wazir Khan appellant was in possession of rifle P. 1 alongwith five bullets P. 2/1-5 and Motorcycle P. 5 and all these articles were taken into possession vide memo Ex. PH which was attested by Taz Ullah Constable (PW.8) and Dost Muhammad Constable. On the same day Sami Ullah appellant was found in possession of .30 bore pistol P. 3 alongwith five live cartridges P. 4/1-5 which were taken into possession vide memo Ex. PK. On 24.1.2000 the remaining accused namely Muhammad Akram, Abdul Rehman, Muhammad Ashraf and Ikram Ullah appeared before him and put their defence whose arrest was dispensed with and they were placed in Column No, 2.
6. After the completion of the investigation report under Section 173 Cr.P.C. was submitted in the Court. Then copies of the documents required under Section 265-C Cr.P.C. were supplied to the appellants and their acquitted accused, the charge was framed which was denied by them and they claimed to be-tried. The prosecution in order to prove its case produced as many as 10 witnesses. The medical evidence was furnished through the - statement of Dr. Arif Hayat Khan (PW,4) who conducted the post-mortem examination,'of the deceased Saif Ullah. To prove the ocular account the prosecution had produced Abdullah Khan (PW.1) and Liaqat Hayat (PW.2). Ta prove the recoveries Taz Ullah Constable (PW.8) and Mehr Khan Constable (PW.9) have been produced. The investigation was conducted by Muhammad Khan Si. (PW.10). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence the statements of the appellants and their co- accused were recorded under Section 342 Cr.P.C. in which they denied the allegations and professed their innocence. However, to a question that "why this case against you and why the witnesses have deposed against you?" both the appellants Wazir Khan and Sarni Ullah made the following identical reply which is reproduced as under: "All the eye-witnesses and the other public witnesses are inimical towards me. Saif Ullah was murdered at about 8.30 a.m. and these witnesses were called from their houses and were set up as false witnesses. During the investigation, the whole version of these witnesses were found false."
However, the appellants and their acquitted accused had not appeared in their defence under Section 340(2) Cr.P.C. and they also did not produce any defence plea.
8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellants Wazir Khan and Sami Ullah while the four accused, namely, Muhammad Akram, Muhammad Ashraf Khan, Ikram Ullah and Abdul Rehman were acquitted which is being assailed through the instant appeal.
9. Against the acquittal of Muhammad Akram, Muhammad Ashraf Khan, Ikram Ullah and Abdul Rehman Crl. Appeal No, 1983/2001 had been filed which was dismissed by this Court vide order dated 9.3.2003. According to the learned counsel for the appellants Petition for Special Leave to Appeal was then filed in the Supreme Court of Pakistan against the said acquittal order which has also been dismissed.
10. The learned counsel for the appellants in support of this appeal contends that on the same evidence co-accused had been acquitted and out of the said co-accused Muhammad Ashraf Khan was attributed an injury on the front of chest of the deceased and the role of said Ashraf was not distinguishable from the role of both the appellants and they are also entitled to the same treatment; that the ocular account has been found false to the extent of the remaining accused and cannot be relied upon to the extent of the appellants unless it was corroborated by any independent piece of evidence; that the recoveries from the appellants were inconsequential as no empty was recovered from the spot; that the report of the Forensic Science Laboratory is useless as it does not disclose that the weapons were used during the incident by the appellants; that the motive is doublet edged weapon, previous enmity between the parties was admitted and it could be a reason for false implication of the appellant as well; and that the prosecution had miserably failed to prove the case against the appellants and they may be acquitted.
11. Learned counsel for the complainant on the other hand have opposed this appeal on the ground that the eye-witnesses were natural witnesses who were present at the spot and they had explained their presence at the spot; that the motive was also attributed to the appellants; that the ocular account is supported by the medical evidence; that during investigation the appellants were found guilty by Muhammad Khan SI/IO (PW.10) in the present case as well and the case of the appellants is distinguishable from the case of the acquitted accused and their conviction and sentence may be maintained.
12. Learned counsel for the State also have opposed this appeal of the convicts/appellants.
13. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
14. The occurrence in the present case had taken place at 9.30 a.m. on 26.12.1999 1n the cattle fair according to the complainant Abdullah Khan and the case was registered at 11.30 a.m. on the same day. In the said statement Abdullah Khan complainant stated that Sana Ullah Khan and Liaqat Hayat PWs also accompanied them and they from their house had proceeded towards Mani Mela Mavishan for the purpose of purchasing of buffalo. It was also claimed that both the appellants were armed with 222 bore rifles and Muhammad Ashraf acquitted accused was also armed with rifle while the remaining accused were also armed with weapons. The first shot had been fired by Muhammad Ashraf according to the complainant after raisingfialkara by Abdul Rehman acquitted accused straight at the deceased hitting on the front of the chest of Saif Ullah deceased and second shot was fired by Sami Ullah appellant and the third by Wazir Khan appellant. Muhammad Ashraf, Muhammad Akram, Ikram Ullah and Abdul Rehman who according to the complainant were present at the spot had also participated in the incident. The others were acquitted by the learned trial Court as the ocular account furnished by the prosecution _had been disbelieved to their extent. The said evidence could only be believed to the extent of the appellants if the same was corroborated by independent piece of evidence. Both the learned counsel appearing .on behalf of the complainant have failed to point out any independent corroborative piece of evidence part from the ocular account which had already been disbelieved by the learned trial Court to the extent of the acquitted accused. In the judgments reported, as Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and two others v. The State (2000 SCM R 1758) and Iftikhar Hussain and another v. The State (PLJ 2004 SC 552), it has been repeatedly held by the Hon'ble Supreme Court of Pakistan that the same evidence can only be relied upon against the remaining accused if there is any independent corroborative piece of evidence. In the present case the recovery of rifle from Wazir Khan appellant and pistol .30 bore from Sarni Ullah appellant was shown to have been effected at the time of their arrest on 21.1.2000 but admittedly no empty was recovered from the spot and the reports of the Forensic Science Laboratory (Ex. PN) and (Ex. PQ) were only to the effect that the said weapons were in working condition. The said reports cannot be considered as a corroborative piece of evidence as the same did not disclose that the said weapons were used in the incident. Hence the recovery of weapons from the appellants was legally useless.
15. As far as the motive of the incident is concerned, it had been established on the record that Abdul Rehman acquitted accused and complainant Abdullah Khan were real brothers.
Muhammad Akram acquitted accused was son of Abdul Rehman while Muhammad Ashraf and Wazir Khan were sons of Muhammad Akram and thus grandsons of Abdul Rehman. Ikram Ullah and Sami Ullah accused were sons of Rustam and also grand-sons of Abdul Rehman. All the accused were related inter se and -with the complainant party as well but they had long standing enmity between them. Muhammad Aslam son of the complainant had been convicted for the murder of motive incident and was in jail. the deceased Saifullah was also involved in the said criminal case and had been convicted and his sentence was suspended. it is also admitted fact that Muhammad Akram was only survived son of Abdul Rehman and Muhammad Ashraf acquitted accused was the only brother of Wazir Khan appellant. It had also been established during the cross-examination on Abdullah Khan complainant that all the male family members of Abdul Rehman including his sons and grand-sons had been involved in the present case. It was also an admitted fact that serious enmity existed between the parties and on 15.9.1991 the complainant had received an injury wherein Abdul Rehman and his son Rustam father of Sami Ullah were nominated as accused alongwith Ashraf and Habib Ullah who were found innocent and they were acquitted on 8.7.1998. Even according to the complainant the accused used to reside at a distance of 4/5 kilo-meters from his house but within the span of two years when Shafa Ullah and Rustam had been released on bail no untoward incident had taken place between the parties. The complainant also maintained that after the year 1995 the accused had never attacked upon them.
So the previous enmity between the parties had been established and the same enmity was also with the complainant and Liaqat Hayat PW. Both of them if were present at the spot it is strange that they why were not given any harm by the accused who were in full control of the situation. The complainant frankly conceded that the accused never fired at them even they were visible to them. He has also admitted during cross-examination that the eyewitnesses and he himself were inimical to the accused. As such both the eyewitnesses were interested witnesses being inimical towards the accused/appellants and they could not be relied upon unless their testimony was corroborated by some independent piece of evidence, which is lacking in the present case.
16. Abdullah Khan (PW.1) also -admitted that he was resident of 2% kilo-meters away from the place of occurrence and Sana Ullah was resident of Yaroo Khel situate at a distance of one kilo- meter. As such the PWs were chance witnesses, being not residents of the place of occurrence and they were required to give sufficient reason to establish their presence at the spot. Liaqat Hayat (PW.2) according to the complainant was residing with him during the days of occurrence and he had to purchase the buffalo. Sana Ullah was brought by them and five days ago they made the plan to purchase the buffalo. On the other hand Liaqat Hayat (PW.2) had not supported this explanation of the complainant and the manner in which they had attracted to the spot and witnessed the occurrence as according to him he was resident of different place and on the day of occurrence Abdullah Khan (PW.1) had come to him and asked to accompany him to purchase the cattle from the cattle fair. According to PW.2, Sand Ullah was standing with him at that time and they proceeded to the spot. So both the eye-witnesses had contradicted each other regarding the manner in which they had arrived at the spot and it cannot be said that they had established their presence at the spot. Even otherwise we find that Liaqat Hayat (PW.2) was a Criminal bent of mind, who was also close relative of the complainant as Saif Ullah deceased was his Chacha whereas he was inimical towards the accused since 1991 and he was challaned in dacoity cases for snatching the Motorcycle since 1996. Both the alleged eye-witnesses were inimical, interested and chance witnesses, who had failed to give sufficient explanation for their presence at the spot and their evidence had already been found false to the extent of involvement of the acquitted accused and in such circumstances we hold that the ocular account furnished by themselves without independent corroboration was not sufficient to connect the appellants with the commission of the crime and their evidence was not worthy of reliance.
17. It has been admitted by the PWs that the occurrence had taken place in the cattle fair, where about 200 persons were present at the time of incident and out of the said persons according to Muhammad Khan SI (PW. 10) three persons namely Shafa Ullah, Ikram Ullah sons of .Haji Atta Muhammad and Hamid Ullah son of Sher Ali were independent persons, who also claimed themselves to be eye-witnesses and they stated that only two persons had been seen at the time of incident, who had come at the spot on a Motorcycle. As the said persons had not been produced by the prosecution or by the defence in the learned trial Court, the opinion of the police official being not binding on the Courts, the statement of PW. 10 (SI) to this extent is found irrelevant . However, it is established on record that the prosecution had not produced any independent and natural witness. Moreover, according to the I.O. the Police Post was at a distance of about 25 feet from the place of incident and possibility of presence of any police official at the cattle fair for safety purposes could not be ruled out. Neither the Investigating Officer nor the complainant party had made any efforts to bring on the record the statement of any police official who was on duty in the cattle fair and only interested and inimical witnesses had been produced whose presence at the spot has been found doubtful by us.
18. The motive alone was not sufficient to connect them with the present crime as motive is always a double edged weapon. If it was a reason with the accused for commission of the offence, it could also be a reason for false involvement of the appellants due to previous enmity. Moreover, the same motive was also against the eye-witnesses but they were not caused any injury, which is sufficient to draw an inference that the occurrence had not taken place in the manner narrated by the PWs and serious doubt had created about their presence at the spot.
19. As a result of the above discussion we have no hesitation in holding that the prosecution had not succeeded in proving the case even against the appellants beyond any shadow of doubt.
Hence Crl. Appeal No, 1789 of 2001 filed by the appellants is accepted, impugned judgment of convictions and sentences is set aside and they are acquitted of the charge by extending them the benefit of doubt, who shall set at liberty forthwith if not required in any other criminal case.
20. Murder Reference No, 794 of 2001 is answered in the negative and death sentence is not confirmed.