1. ' RAHMAT HUSSAIN JAFFERI, J.--- Brief facts giving rise to the present appeal are that on 8-7-2003 the complainant Khadim Hussain, his brother Ghulam Yasin, relative Ghulam Abbas were present at the shop of Mistri Abbas Pathan. At about 8 p.m. Deceased Iqbal elder brother of the complainant who was a police constable reached at the said place on his motorcycle. In the meantime the appellant Saeed, absconding accused Shamsuddin alias Shams armed with kalashnikov. Altaf, Baharo, Abdul Razzak and Abdul Rahim armed with T.T. Pistols came there on motorcycles. Accused Altaf instigated the other accused to commit murder of Iqbal Ahmed. On the said instigation appellant Saeed and absconding accused Shams fired from their kalashnikovs at the ,deceased, which hit him. The other accused also fired from their weapons; therefore, the deceased fell down on the ground. Thereafter, the accused ran away. The complainant took the dead body and went to police station for lodging the report whereas prosecution witnesses Ghulam Yasin and Ghulam Abbas went to their village. The police after usual investigation challaned the appellant in the Court of law.
2. ' The learned Judge, Anti-Terrorism Court-II, Sukkur and Larkana Divisions at Sukkur tried the case convicted the appellant for offence punishable under section 302(b) read with section 149, P.P.C.
3. Section 7(a) of the Anti-Terrorism Act, 1997 and sentenced him to suffer imprisonment for life on each count, pay Rs,50,000 as compensation to the legal heirs of the deceased or in default thereof to suffer R.I. For six months, and pay Rs,two lacs as fine or in default thereof to suffer R.I. For two years. The appellant was further convicted for offence punishable under section 13(d), Pakistan Arms Ordinance, 1965 and sentenced to suffer R.I. For five years and fine of Rs,one lac or in default thereof to suffer R.I. For one year. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Under the impugned judgment, dated 19-5-2004.
4. ' We have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
5. ' The learned counsel for the appellant has stated that the ocular testimony is interested and inimical with the appellant; therefore, it requires corroboration but the same is missing in the case.
6. He has further stated that the evidence of witnesses are contradictory with regard to the crime- empty secured from the place of incident; that the investigation was conducted malafidely and the record was tampered with as the Mashirnama of place of incident was changed as per statement of P.W.10 S.I.P. Imam Bux; that the complainant has denied the enmity though the same has been admitted by other witnesses; therefore, the case is highly doubtful against the appellant.
7. ' Conversely, the learned Assistant Advocate-General has stated that the ocular testimony is supported by three witnesses; that their evidence is corroborated by the recovery of crime- empties from the place of incident and matching report of the Ballistic Expert with the kalashnikov secured from the possession of the appellant. He has admitted that there was enmity , between the parties and that the complainant had denied the said enmity but the other witnesses have admitted the same, however, he argued that the said fact would not discredit the evidence of witnesses. He has supported the impugned judgment.
8. ' We have given due consideration to the arguments, gone through the material available on the record and found that the-case rests upon two pieces of evidence viz. Ocular testimony and recoveries.
9. ' In order to prove the case the prosecution examined 10 witnesses. P.W.1 complainant Khalid Hussain P.W.2 Ghulam Yasin and P.W.3 Ghulam Abbas gave the same details of the incident as mentioned in the earlier part of the judgment; therefore, need not to be repeated. P.Ws.2 and 3 specifically stated that the complainant took the dead body to police station whereas they went to inform the incident to their relatives. The evidence of P.W.4 H.C. Shamsuddin reveals that appellant Saeed was arrested from a curve but nothing was secured from his possession. Evidence of P.W.5 A.S.-I. Muhammad Nawaz reveals that at 9-15 p.m. The complainant brought the dead body of his brother Iqbal at the police station where he lodged the report. He inspected the injuries in presence of Ghulam Yasin and Ghulam Abbas and prepared such Mashirnama. Then he referred the dead body to Civil Hospital for postmortem examination through P.C. Nauroze. On the same night at 1-30 a.m. He received the blood-stained clothes of the deceased which he secured, then the dead body was handed over to P.W. Ghulam Yasin and he obtained such receipt. P.W.6 Mumtaz Ali was Tapedar. He prepared the sketch of the place of incident and gave the distance of various places.
10. P.W.7 Muhammad Iqbal was Medical Officer. He conducted the post-mortem examination. The dead body was identified by Ghulam Yasin brother of deceased and one Abdul Rehman. He found five wounds of entry and five wounds of exit on various parts of the body of the deceased.
11. According to the Medical Officer, the deceased had received injuries from fire-arm weapons. He gave the probable time between death and injuries as instantaneous and between death and postmortem as three hours. P.W.8 Munawar Ali was the Mashir of place of incident. His evidence reveals that on 8-7-2003 the police visited the place of incident and secured three empties of kalashnikov, two empties of T.T. Pistol and blood from there. The articles were sealed. His evidence further reveals that on 19-8-2003 the appellant led the police party to his house and produced a kalashnikov before the police, which was secured and sealed. P.W.9 D.P.O. Ghulam Sarwar deposed that on 24-7-2003 he received the investigation papers of this case. On the next date viz. 25-7- 2003 he went to Qureshi Village where he recorded the statements of prosecution witnesses Ghulam Yasin and Ghulam Abbas. On 18-8-2003 after interrogation, the appellant led the police party to his house and produced a kalashnikov and bullets, which were secured. He did not state that the kalashnikov and bullets were sealed. The last witness P.W.10 Imam Bux was the Investigating Officer. He received the investigation papers on 8-7-2003 and verified the investigation conducted by P.W.5 A.S.-I. Muhammad Nawaz. He visited the place of incident where he found blood and two empty cartridges lying there which were secured and sealed. After seeing Mashirnama of place of incident Exh.18-A, he deposed that the said Mashirnama was not the same as it did not bear his signature and that the Mashirnama was changed by some person. He further deposed that complainant did not produce the witnesses before him for recording their statements.
12. ' The case of the appellant is that his father-in-law Mumtaz Ali Khoso was murdered and a case was registered against Athar Khoso, Madad Ali Khoso brother of the deceased, Iqbal Ahmed, Subhano, Nizamuddin and Imamuddin relatives of the complainant. He alleged that he has been involved in the case due to said enmity. The other co-accused were either complainant or witnesses in the said case.
13. ' The evidence of complainant and two eye-witnesses P.Ws.2 and 3 shows that they did not assign any motive of the commission of crime in their examination-in-chief. Defence counsel enquired from the complainant about the case in which Dr. Mumtaz was murdered. The complainant showed his ignorance and stated that he did not know whether accused Shamsuddin had lodged the F.I.R. No,5 of 2003 against Murad Ali and others. He denied the suggestion of the defence counsel that Murad Ali and others in the said crime were their close relatives. Thus, the complainant denied the filing of the said case against his relatives and brothers. He even disowned the relationship between Madad Ali as his brother. However, the complainant was falsified by P.W.2 Ghulam Abbas who is also brother of complainant and deceased He admitted in the cross- examination that Madad Ali and Akhtar Ali, his brothers and Suhrab, Asghar, Imamuddin, Nizamuddin his caste fellows were involved in Crime No,5 of 2003, that was in respect of murder of Dr. Mumtaz. Both the prosecution witnesses showed ignorance that the appellant was .The son-in- law of Dr. Mumtaz. However, when the complainant was further cross-examined then with great difficulty he admitted that deceased P.C. Iqbal was brother of Madad Ali. Akhtar Ali and Suhno who were involved in Crime No,5 of 2003 whereas other accused Nizamuddin. Asghar and Imamuddin involved in the said case were his near relatives. He showed ignorance that absconding accused Shamsuddin, Altaf, Baharo and Abdul Rahim were the witnesses in Crime No,5 of 2003. From the above evidence it is clear that the complainant admitted the relationship of accused involved in Crime No,5 of 2003 with deceased P.C. Iqbal but he denied his relationship with them though he is brother of deceased P.W. Iqbal. Furthermore, the appellant produced the certified true copy of the judgment delivered by Anti-Terrorism Court-II, Sukkur in Crime No,5 of 2003, after registration of the present case. The perusal of the judgment reveals that the said crime was filed by absconding accused Shams as a complainant for the murder of Dr. Mumtaz against Madad Ali, Akhtar Ali, Suhno, Nizamuddin, Asghar and Imamuddin. In the said case, the witnesses were shown to be absconding accused Baharo, Abdul Rahim and Altaf Hussain. Thus, it has been established beyond any shadow of doubt that the absconding accused had involved the brothers and relatives of the deceased and complainant in the murder of Dr. Mumtaz. The appellant in his statement on oath deposed that Dr. Mumtaz was his father-in-law. The said statement went unchallenged as no cross-examination was conducted on the said point whereas P. Ws. Shown ignorance about the relationship of appellant with Dr. Mumtaz.
14. Thus, there is recorded serious enmity between the parties. All the three eye-witnesses are closely related to each other as complainant and P.W.2 are brothers inter se and brothers of the deceased whereas P.W.3 Ghulam Abbas is their maternal-cousin. Thus, the ocular testimony is interested, hostile and inimical to the appellant. It is well-settled principle of law that before relying upon the evidence of such witnesses, their evidence should be corroborated from other piece of evidence.
15. ' Apart from the above facts, it will be noticed that the incident took place on 8-7-2003 whereas the statements of P.Ws.2 and 3 were recorded on 25-7-2003, after delay of about 17 days. The prosecution did not furnish any explanation for such a delay. It will be noticed that both the prosecution witnesses claimed that just after the incident, they went to their village to inform the incident to their relatives. However, they have been falsified by P.W.5 A.S.-I. Shahnawaz who deposed that when the complainant reached the police station and lodged the report at 9-15 p.m.
16. At that time the dead body was within him and he prepared the Mashirnama of injuries in presence of Mashirs Ghulam Yasin and Ghulam Abbas. From the above statement it is manifest that both the witnesses were present at the police station when the complainant lodged the report and the A.S.-I.
17. Had inspected the injuries. Not only that the Medical Officer deposed that the dead body was identified by Ghulam Yasin brother of the deceased. Thus, the stand taken by both these witnesses has been belied by the evidence available on the record. P.W.5 further deposed that after the post- mortem examination he handed over the dead body to Ghulam Yasin. Thus, it has been further established beyond any shadow of doubt that the witnesses were available till after the post- mortem examination but it is surprising to note that the police did not record their statements.
18. P.W.5 conducted the investigation as he recorded the F.I.R. Prepared the Mashirnama of injuries on the person of dead body, sent the dead body to hospital for post-mortem examination and then handed over the dead body to Ghulam Abbas. He did not record their statements though they were present and received the dead body. Even the witnesses did not volunteer to get their statements recorded by telling the police that they had witnessed the incident. The silence on the part of both the prosecution witnesses speaks volumes about their assertion about witnessing the incident.
19. Apart from the above facts, the conduct of both the witnesses appears to be abnormal and unnatural as they deposed that after the incident the complainant took the dead body to the police station for lodging the report whereas they both went to their village to inform the incident.
20. Both the witnesses were closely related to the deceased. Their kith and kin was murdered. The complainant needed their help to take the dead body to the police station or to hospital for various purposes but instead of helping the complainant and conducting themselves in a natural manner, they conducted themselves in an unnatural manner by leaving the complainant alone with the dead body to face the situation. If they were so interested or concerned that their relatives should know about the incident then anyone of them could have gone to the village to achieve the purpose but they chose to go together to their village to simply inform the incident to their relatives. This unnatural conduct of both the prosecution witnesses also creates doubt about their presence at the place and time of the incident.
21. ' It will be further noticed that subsequently investigation was handed over to P.W.10 A.S.-I. Imam Bux. He specifically stated that the complainant did not produce the witnesses for recording their statements nor both the witnesses came to him for the said purpose. This also shows that the witnesses were avoiding to appear, before the P.W.10 to record their statements. The record further reveals through the evidence of P.W.9 that when the P.W.9 received the investigation papers on 24- 7-2003 he recorded the statements of both the witnesses on 25-7-2003 by going to their village for the said purpose. Even P.W.9 did not give any explanation as to why the statements of prosecution witnesses were not recorded earlier to that date. Thus, there is unexplained delay in recording the statements of the witnesses, which has created doubt about the veracity of their evidence. It is not out of place of mention here that the P.W.10, who was investigating the case as a second Investigating Officer went to the place of incident where he found two empties which were secured and sealed under a Mashirnama in presence of P.W.8 and Naeem. The prosecution examined Mashir P.W.8 Munawar Ali, who deposed that from the place of incident three empties of kalashnikov and two empties of T.T. Pistol were recovered. This evidence of recovery was in direct conflict with the evidence of P.W.10. The defence counsel finding the said discrepancy in the evidence confronted P.W.10 with the Mashirnama of place of incident and recovery of crime- empties Exh.18-A, which was produced by P.W.8. The witness after seeing Exh.18-A stated that it was not the same Mashirnama that was prepared by him as it did not bear his signature. He categorically stated that the Mashirnama Exh.18-A, was changed subsequently. Thus, it appears that the record of the investigation has been tampered with and changed so as to fit in the circumstances of the case. This fact very well be judged from the fact that till the investigation was with P.W.10 the eyewitnesses did not appear before him to record their statements but when the investigation was handed over to P.W.9 then everything was done. The appellant who was already in custody though interrogated several times by earlier Investigating Officers did not produce the weapon but when the investigation was given to P.W.9, the appellant voluntarily produced the kalashnikov and bullets, which were secured. It appears that the investigation was changed for the purpose of preparing false record and to manipulate the evidence so as to fit in the circumstances of the case. This fact can very well be judged from the changing of Mashirnama of place of incident and recovery Exh.18-A. The P.W.8 stated that three crime-empties of kalashnikov and two empties of T.T. Pistol were secured. The false preparation of Mashiruama and the evidence apparently were given to change the complexion of facts and incident as according to the P. W.10 he only saw two empties at the place of incident. Apparently two empties were not fitting in the circumstances of the case and corresponding with the injuries caused to the deceased as he had five wounds of entries on his person. In order to make the-evidence in consonance with the medical evidence, the witness Munawar Ali improved his evidence and introduced three empties of kalashnikov and two empties of T.T. Pistol so as to correspond with the five injuries on the person of the deceased though the fact is otherwise. Furthermore, P.W.8 was made Mashir of the recovery of kalashnikov from the possession of the appellant and P.W.9 was the Investigating Officer at that time. Thus, it is manifest that when the investigation was handed over to P.W.9 all these facts were introduced, improvements were made in the evidence, and record was changed therefore, the investigation was conducted with mala fide intention in order to involve the appellant in the case.
22. ' It is also pointed out that the witnesses deposed that two culprits who were armed with kalashnikovs had fired at the deceased and the fires had hit them. As such there should be two crime-empties of kalashnikov which were fired from two different weapons but the Ballistic Expert report shows that two empties of kalashnikov were fired from one kalashnikov which was allegedly produced by the appellant. This report does not tally with the oral evidence produced by the witnesses. Therefore, this fact also gives support to, the fact that the crime-empties were created separately so as to fit in the circumstances of the case. Thus, the evidence of P.Ws.8 and 9 have not inspired any confidence; therefore, no implicit reliance can be placed on such type of evidence.
23. ' After considering the material available on the record , we are of the considered view that the prosecution has failed to prove the oral evidence and recoveries beyond any reasonable doubt; therefore, the case of prosecution is highly doubtful. Hence the prosecution has failed to prove the case against the appellant.
24. ' Above are the reasons of our short order, dated 5-9-2006 by which we had allowed the appeal.