1. ' KHILJI ARIF HUSSAIN, J.---By this judgment we will dispose of the above-referred appeals arising out of the same judgment, passed by the trial Judge. Criminal Appeal No.301 of 2006 was preferred by the applicants against conviction under section 302(b), P.P.C. Sentencing them to suffer life imprisonment with fine of Rs.50,000, conviction under section 324, P.P.C. And sentenced for seven years and fine of Rs.25,000 each also conviction under section 149, P.P.C. And sentenced for one year, whereas Criminal Revision Application has been filed by the complainant for the enhancement of sentence.
2. ' Brief facts of the case for the purpose of deciding the appeals are that F.I.R. Was lodged on the basis of statement of Aurangzeb recorded under section 154, Cr.P.C. On 17-6-2003 at about 1430 hours stating therein that they had old enmity with appellants and cases against each other were pending in the Court. On the day of incident viz. On 17-6-2003 the complainant Aurangzeb Khan and his brother Bhandur Khan along with nephew Habibullah Khan were sitting in Car bearing registration No.AEV-366. Habibullah himself was driving the car, gunman Asal Khan son of Mawasil Khan was sitting on the front side with a weapon. Hafizullah Khan son of Alam Khan who is nephew and his sons Munsif Khan and Himat Khan were sitting in Car bearing registration No.ADJ-477, they were going to attend the Sessions Court No.6, South Karachi when at about 8-30 a.m. They reached at the speed breaker of the Jamila Street, Mehrab Khan Road, Essa Khan Road, near Mehrab Flour Mill and slowed down the car suddenly appellants Nos. ,1, 2, 4 & 5 Alam Khan, Ahmed Khan alias Kako, Dilbar Khan and Abdullah Khan appeared and 'got down from the car bearing registration No.ABU-687, Alto White Colour having different kind of weapons and started indiscriminate firing at the car of Bahadur Khan. The complainant further disclosed that one motorcycle Honda 125 bearing registration No.831 also appeared which was driven by appellant No.5 Hakim Khan and appellant No.3 Saifullah Khan was sitting on rear seat and they also started firing on the car of Bahadur Khan. It was stated by the complainant that Abdullah Khan the appellant No.1 raised Lalkara that they would take revenge of murder of his son Habibullah that day. Due to firing Bahadur Khan and Habibullah died on spot whereas gunman Asal Khan had been seriously injured.
3. It was stated by the complainant that appellants while making firing escaped away from The spot in car and motorcycle and the incident was witnessed by the neighbours, shopkeepers hotel walas and the passerby while he brought the dead bodies and injured to civil hospital.
4. ' The appellants were arrested during the investigation, recovery of crime weapons was made from them and after completing investigation challan was submitted in the Court.
5. ' The prosecution examined P.W.1 complainant Aurangzeb Khan, P.W.2 Munsif Khan, P.W. 3 Hafeezullah Khan, P.W.4 Qalandar, P.W.5 Raees Khan, P.W.6 Saeed Ahmed, P.W.7 Liaqat Ali, P.W.8 Muhammad Usman Satti, P.W.9 Dr. Nazeer Hussain (MLO) and P.W.10 Muhammad Yousaf Baloch (Investigating Officer). Statements of appellant Dildar Khan, Hakim Khan, Ahmed Khan and Saifullah Khan were also recorded. The appellant also produced one Muhammad Akber Baloch, Deputy Director, FIA.
6. ' After recording the evidence of the parties the learned trial Court convicted the appellant for offence falling under section 302(b) read with section 149, P.P.C. And sentenced them to suffer imprisonment for life with fine of Rs.50,000 each or in default of payment of fine to suffer further S.I.
7. For three years. The appellants were also convicted for committing offence punishable under section 324, P.P.C. To suffer R.I. For 7 years with fine of Rs.25,000 each failing which to suffer further.
8. S.I. For 6 months and convicted them for offence punishable under section 148, P.P.C. And sentenced to suffer R.I.. Each for one year.
9. ' The appellants were dissatisfied with the said judgment, therefore, they have filed the 'present appeal. The complainant was dissatisfied with the sentence, therefore, he has filed the revision application for enhancement of sentence.
10. ' Heard Mr. Abdul Qadir Halepota learned counsel for the appellants, Mr. I. A. Hashmi learned counsel for complainant and Mr. Habib Ahmed learned Assistant Advocate General appearing for the State.
11. ' Mr. A.Q. Halepota, learned counsel for the appellant, after taking us to evidence on record argued that statement under section 154, Cr.P.C. Was recorded on the blank paper and all documents produced by the prosecution were manufactured subsequently to involve the appellants falsely in the matter. He argued that Asal Khan, who was eye-witness of the incident, was deliberately not examined by the prosecution. Another eye-witness truck driver was also not examined. Admittedly the truck was damaged by the firing at the place of incident and if these witnesses would have examined they might have deposed against the prosecution. Learned advocate for the appellants further argued that appellants were falsely involved in the matter as admittedly there is enmity between the parties and instead of disclosing the name of appellants at the first instance when the police party approached at the place of incident the complainant only stated that due to enmity their enemy had fired upon them and in this regard he relied upon the evidence of Saeed Ahmed P.W.6, who stated that he along with police party approached the place of incident few minutes after hearing the fire shots and the complainant informed him that their enemy had fired on them.
12. Mr. Halepota further argued that prosecution failed to examine the eye-witness Arslan Khan who was injured during the firing, the prosecution further failed to examine Khalid, Alam Baig, Roshan Khan whose statements were recorded under section 161, Cr.P.C. And argued that even if these witnesses may have stated that they cannot identify the accused persons, they can make statement about the occurrence of incident so as to materially supported statement of other witnesses about manner of incident. One of the trucks standing nearby was hit by the bullets and even his driver was not examined and argued that though the independent witnesses were present at the site but instead of examination of independent witnesses the interested witnesses were examined by the prosecution. It was argued by learned counsel that appellant and P.W.2 Munsif Khan have enmity with appellants/accused persons and as such they are the interested witnesses and their evidence need corroboration so as to rely upon the same. It is further contended by the learned advocate for appellants that recovery of the weapons in this case cannot be relied upon as corroborative evidence. In this regard learned counsel argued that incident was occurred on 17- 6-2003 and recovery were effected after five days of arrest of the appellants. One of the appellants himself appeared before the police party along with his licensed weapon (TT pistol) and under the circumstances in absence of independent corroborative evidence, evidence of other P.Ws., who are interested witnesses cannot be relied upon. Mr. Abdul Qadir Halepota, learned counsel for the appellants, in support of his contentions relied upon the cases of Muhammad Ashraf and 2 others v. The State (1998 SCMR 279), Nawaz Ali and another v. The State (1981 SCMR 132), Ata Muhammad and another v. The State (1995 SCMR 599), Lalan and 2 others v. The State (1976 PCr.LJ 52), Ahmad and another v. The State (1977 PCr.LJ 62), Muhammad Boota and another v. The State and another 1984 SCMR 560), Government of the Punjab v. Dr. Ijaz Hassan Qureshi (PLD 1985 SC 28) and Gul Muhammad alias Guloo v. The State (2004 YLR 216).
13. ' Learned advocate for appellants drawn our attention to the statement of P.W. Akbar placed on record along with other documents argued that Saifullah Khan and Alam Khan, appellants Nos. 3 and 6, left for Iran on 17-6-2003, much before the incident and came back to Pakistan thereafter.
14. He contended that appellants Nos. 3, 5 and 6 were not available at the time of incident. He heavily relied upon endorsement in the passport about "Exit and Entry in Pakistan". Hakim Khan, appellant No.5, at the time of incident was in Islamabad and in this regard learned counsel relied not only upon the Air Tickets but also upon the Boarding Card and Cash Memo. Issued by the Guest House at Islamabad in the name of appellant.
15. ' Mr. A.Q. Halepota, learned counsel contended that as a Police Officer, ASIP Saeed, who arrived at the place of incident, should have recorded the statement of the complainant as first information and after recording the statement cordoned the area to save the evidence, but instead of doing so, he chosen to put the empties in his own pocket. The conduct of the A.S.-I. Would make the entire investigation particularly recovery of empties as doubtful.
16. ' It was contended by the learned counsel that although it has been alleged that the F.I.R. Was registered at 1430 hours, but it cannot be registered at that time, as admittedly post mortem was completed at 1600 hours and F.I.R. Was registered thereafter. It was further contended that the vary fact that the complainant party was carrying arms, but in retaliation, no one from the complainant side has fired, from which one can say that in fact the complainant was not present at the time of the incident. It was contended that the passports and other documents being public document, the same can be produced by any person and the author of the document is not required to appear in person in Court. The appellant Abdullah against whom the only allegation is Lalkara, is of advanced age of 80 years and the complainant party on account of admitted enmity between them and the appellant, falsely implicated the entire family of the appellant in the matter.
17. ' Mr. I.A. Hashmi, the learned Advocate for the complainant, argued that the evidence of P.W.1, P.W.2 and P.W.3 remained unchallenged despite lengthy cross-examination and while supporting the conviction, he argued that the learned trial Court without assigning any reason, awarded lessor punishment. In reply to the argument of alibi, it was argued that evidence in support alibi is to be brought before the concerned authorities at earlier stage and in case of delay, the plea of alibi cannot be taken in consideration.
18. ' The learned Advocate further argued that 12 days after the incident, one of the accused person appeared before the Police surrendered himself along with the pistol, but he did not bring his passport to prove and that at the time of incident he was not present at site, as at that time, the appellant could not manage manipulation in the passport. The passport was brought on record for the first time but through statement of P.W. Alam Khan Exh.19/A on 17-5-2006 as such the learned trial Court rightly rejected the plea of alibi.
19. ' In support of his contention the learned Advocate relied upon the case Muhammad Imran and others v. The State (2004 PCr.LJ 1697), Amal Sherin and another v. The State through A.G. N.-W.F.P.
20. (PLD 2004 SC 371), Muhammad Ashraf and 4 others v. The State and others (PLD 2002 Quetta 49) and Misroo v. The State (2004 MLD 1276). In support of his contention that evidence of eye-witness cannot be ignored merely because of some enmity. The learned Advocate in support of his contention regarding the plea of alibi, relied upon the cases of Arshad Ali alias Achhu v. The State (2002 SCMR 1806) and Shakar Khan v. The State (1983 PCr.LJ 1105).
21. ' Mr. Habib Ahmed, learned Assistant Advocate-General, conceded to the position that in view of the admitted enmity between the parties, independent evidence is required in the matter. He argued that the recovery of three weapons, one of which had been produced by the accused, is an independent piece of evidence and on the basis of which, conviction was rightly granted.
22. ' We have taken into consideration respective arguments advanced by the learned counsel for the parties, gone through the evidence on record with the assistance of the learned counsel for the parties.
23. ' The prosecution examined 11 witnesses. One witness, namely, Muhammad Yousaf Balouch was examined as Court witness. As a defence witness Muhammad Akbar Balouch, Deputy Director, FIA, was examined in order to prove that the accused Saifullah Khan and Alam Khan were in Iran at the time of incident and he produced attested photocopies of the relevant documents.
24. It is an admitted position on record that there was enmity between the parties and murder was committed from the side of the complainant and Sessions Cases are pending in Court. Since the enmity between the appellant and the eye-witnesses is not in dispute, their evidence ought to have been looked into carefully, being the interested witnesses and independent corroborative evidence is required to prove the case against the appellants. The incident took place on 17-6- 2003 at about 8-30 a.m. In a thickly populated area, surrounded by the shops, etc., but no independent witness has been examined by the prosecution although their statements under section 161, Cr.P.C. Were recorded. The only reason given for non-examination of independent witnesses was that in their statements they stated that they were not in a position to identify the accused persons/appellants. However, even if it is so, at least said witnesses can narrate how the incident took place. Despite having available independent witness like and a person who was injured during firing, namely, Asal Khan, the truck driver, whose truck was hit by the bullet, it is very difficult to rely upon the evidence of P.Ws., admittedly having enmity with the appellants.
25. Evidence of P.W.1., P.W.2., P.W.3., the alleged eye-witnesses, are not only because of enmity between the parties, but also they appear to be contradictory in their statements and facts narrated by them regarding the incident. Some of the deceased received injury on their right side, whereas in their statements, they alleged that the appellants fired upon the car in which the deceased was sitting from the left side. It is also unnatural that the complainant and P.Ws., who were sitting in another car carrying weapons, did not in retaliation, fired upon the accused persons.
26. Admittedly the dead bodies were handed over to the complainant party after completing the F.I.R.
27. At about 4-30 p.m. Which support the contention of the appellants that F.I.R. And statement under section 161, Cr.P.C. Were recorded after due deliberation in late C night. P.W.9 Dr.Pervaiz Hassan, in his statement, clearly stated that post mortem of the second dead body was completed by him at 4-00 p.m.
28. ' In these circumtencess, evidence of the eye-witnesses need corroborative evidence and the learned Advocate for the respondent, in this regard, argued that the recovery of the fire weapon, is a corroborative evidence.
29. The TT pistol .Was produced by the appellant No.5 along with his licence at the time when he himself appeared in P.S. For the purpose of surrendering. The other two fire weapons were recovered from the garbage heap on the pointation of the appellants. The I.O. P.W.10 as well as P.W.4 Mr. Qalandar, witness of recovery, in their evidence admitted that place of recovery was assessable for general public and due to mill area labour and trucks usually pass from there and that administration of City Government removed the garbage from the said gali. The recovery was effected from the garbage dump after about 13 days of the incident and it is very difficult to believe that two fire weapons remained lying in the garbage without notice of the garbage collectors and public of the area. In the .Case of Muhammad Boota and another v. The State and another (1984 SCMR 560) and Lalan and 2 others v. The State (1976 PCr.LJ 52), recovery of weapon from public place after 24 hours cannot be accepted. As we have held hereinabove that due to enmity between P.W.1, P.W.2 and P.W.3, their evidence needs corroboration and recovery of weapon from public place after 13 days cannot be relied upon as corroborative piece of evidence in the circumstances of this case.
30. The mashir of recovery is also not a person of the resident from where the recovery was effected, but a person known to the complainant party, residing 25 k.m. Away from the place of recovery.
31. The recovery of the weapons cannot be relied upon as corroborative evidence in view of what we have observed hereinabove.
32. Now coming to the question of alibi, the appellant while cross-examining P.W.1 on 19-9-2001 on the very first day, categorically taken the plea of alibi, by putting the question that at the time of incident, the appellants were in Iran/Islamabad, such question was also put to other P.Ws., therefore, it cannot be said that the plea of alibi was not taken at the first instance.
33. ' The learned trial Court did not accept the official endorsement of 'Exit' entries on the Passport on the ground that the author of such entries was not produced. The endorsement of 'Exit' entries of the Passport is an official entry made in normal course while discharging official duties, hence the author of such entries, is not to be produced. The officer from the office of the Deputy Director, F.I.A., appeared in witness box, produced attested copies of the register maintained in normal course of business by their office, endorsing 'exit' entires of the person went to Iran and came back to Pakistan. The names of the appellant appeared in said list coupled with 'Exit' entries made in the passport, clearly established that at the time of the incident, the appellants Nos. 3 and 6 were not present in Pakistan and likewise appellant No. 4 produced boarding card issued at 6-30 a.m. In the morning of the incident, prima facie proved that the appellant was not available at Karachi.
34. Boarding card coupled with cash memos. Issued by the rest house at Islamabad of the relevant date, proved that the appellants were not present at the time of the incident.
35. ' In the case of Shakar Khan v. The State (1983 PCr.LJ 1105), plea of alibi was not accepted as the Passport produced by the appellant there was no entry of any visa issued to him by the authority to visit of Afghanistan.
36. ' In the case of Arshad Ali alias Achhu v. The State (2002 SCMR 1806), the Supreme Court did not accept the plea of alibi, asked during the trial at the time of recording of evidence of the accused, as no case of plea of alibi was made out in the cross-examination, whereas in the instant case, the appellant during cross-examination of P.W.1 took plea of alibi and it is difficult to say the same as afterthought plea.
37. For the foregoing reasons, we accepted the appeal and set aside the conviction and sentence awarded by the trial Court by our short order.
38. ' These are the reasons of our short order, dated 10-10-2007.