JUDGMENT KH. MUHAMMAD SHARIF, J.- This judgment will dispose of Criminal Appeal No: 348 of 2001 filed by Zahoor Ahmad, Ghulam Abbas, Ehsan ul Haq, Mubarik Ali and Naseer Ahmad appellants, who were convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide judgment dated 8.10.2001 as under: Death and to pay rupees two lacs each in default six months SI to all the appellants under Section 302(b), PPC, Three years R with a fine of Rs. 10,000/- each in default R for six months under Section 148, PPC, 10 years R and to pay a fine of Rs. 20,000/- each on four counts in default two years R under Section 324, PPC.
Ghulam Abbass appellant 10 years R and to pay arsh under Section 337-D, PPC.
Ehsan ul Haq and Mubarik Ali, appellants Three years R and to pay daman under Section 337- F(ii), PPC, And Murder Reference No. 800 of 2001 for confirmation or otherwise of death sentence of convict appellants shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 7.45 a.m. On 31.8.1995 at a distance of two kilometers from Police Station Civil Lines, Rawalpindi while the matter was reported to the Police by Muhammad Sadiq at 9 a.m. The same day at hospital through written complaint Ex.PC and formal FIR ExPC/1 was recorded by Muhammad Fazal SI.
3. Briefly stated the facts of the case as disclosed in the FIR Ex.PC are that at about 8 a.m. On 31.8 1995. Muhammad Sadiq, complainant along with Muhammad Arif, Muhammad Sabir and Muhammad Abbass were sitting in the courtyard of the Court of Mr.. Gulzair Ahmad Butt, Additional Sessions Judge when their opponents namely Zahoor Ahmad, Mukhtar Ahmad, Ehsan ul Haq, Muhammad Abbass and Mubarik armed with rifles and Naseer Ahmad armed with pistol emerged there. It was alleged in the FIR that Naseer Ahmed accused raised lalkara upon which Zahoor Ahmad fired at Asif Iqbal while Muhammad Abbass fired at Muhammad Arif and both the victim fell down on the ground in injured condition. According to complainant, thereafter Ehsan ul Haq and Mukhtar Ahmad accused fired at Islam ul Hag and Muhammad Abbass. Accused Mubarik was also alleged tor have fired at Ashraf. It was case of the complainant in the FIR that Yaqoob and Akbar Ali were also injured because of firing of the accused? Asif Iqbal injured lost his life in the hospital.
4. The motive alleged was that in the year 1992 a case was registered for the murder of Humayun, a brother of Naseer Ahmad (present accused) against Asif etc. And because of that enmity, all the six- accused with common intention committed the qatl-e-Amd of Asif Iqbal and injured Yaqoob, Akbar Ali, Islam ul Haq, Arif, Muhammad Ashraf and Muhammad Abbass.
5. Sub Inspector Faruq Khan (PW-15) took over the investigation. He first of all rushed to the hospital, recorded statement of Muhammad Sadiq, complainant, prepared injury statements of injured PWs.
Namely Ashraf (Ex.PR) Abbass (Ex.PS), Islam ul Haq (Ex.PT), the inquest report of Asif Iqbal deceased is Ex. PU; from the spot, bloodstained earth was taken into possession vide memo. Ex.P; crime empties of .30 bore pistol were secured vide memo. Ex.PX; five empties of rifle 7 MM were taken into possession vide memo. Ex.PY; similarly 19 empties of rifle 222 were secured vide memo. Ex.PZ; Ehsan ul Haq, accused while in custody got recovered rifle on 3.10.1995. Which was taken into possession vide memo. Ex.PG Mubarik accused also got recovered rifle which was secured vide memo. Ex.PH; Naseer Ahmad accused led to the recovery of pistol which was taken into possession vide memo.
Ex.PJ on 4.10.1995. Abdul Razzaq and Azam Mahmood, Inspectors also carried out partial Investigation. After completion of investigation, five accused namely Zahoor, Ihsan ul Haq, Naseer Ahmad, Mubarik and Ghulam Abbass were sent to face the trial. Mukhtar one of the accused is still at large.
6. At the trial, prosecution in order to prove its case produced, 23 witnesses in all. Two persons, namely Qamar Sarwar and Muhammad. Nazir were produced as CWs. The learned DDA tendered in evidence reports of the Forensic Science Laboratory Ex.PPP and Ex.PQQ, -reports of the Chemical Examiner Ex.PRR, report of the Serologist Ex.PSS and closed the case of prosecution. The accused in their statements under Section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused were convicted and sentenced as stated above.
7. Ch. Zahoor Hussain,- learned counsel for the appellants submits that murder of Humayun as alleged by the prosecution Was not the motive of the instant case for the reason that Sabir and Talib, two eyewitnesses of the murder of Humayun and to whom fatal shots were attributed, were also present at the spot but they were not fired at by the appellants, that Muhammad Sadiq, complainant was also an accused in the murder case of Humayun, but he too remained unhurt; that all the -three persons namely Sabir, Talib and Sadiq, complainant were sitting together as is evident from point No. 30 in the site plan but they were not attacked by the accused; that both the parties hail from village Qutab Ferozal, Tehsil Gujjar Khan District Rawalpindi and had been coming to the Courts to attend the' murder case of Humayun. Registered in the year 1992, but before 1995 no untoward incident took place; that for going to Mauza Kalyam Awan from village Qutab Ferozal, one has to cover a distance of 6/7 furlongs and had the accused party any intention to kill the deceased and caused injuries to other injured, they must have waylaid them in the way from village Qutab to mauza Kalyam Awan, so according to learned counsel, in fact, the motive remained shrouded in mystery.
Learned counsel for the appellant his admitted the presence of the eyewitnesses and the complainant at the spot but submitted that it would not mean that they had spoken the whole truth and the complainant party had not approached the Court with clean hands. Next submits that the most independent witnesses of the occurrence namely Yaqoob and Akbar were given up by the prosecution and if their statements made before the Police are read in true perspective as is provided in subsection (2) of Section 172, Cr.P.C. The whole truth will pome out and according to their statements, only two persons with veils had committed the offence. According to learned counsel, if statements of both these given up PWs are taken in considerati6n, the offence could be said to have been committed by Zahoor and Ghulam Abbass, appellants, who were apprehended at the spot. It is submitted that number of versions are available on record, which are in conflict with the version of the complainant.
It is further argued that the ocular account is in conflict with the medical evidence inasmuch as according to opinion of the doctor, injury No. 1 on the person of Islam ul Haq, injured PW could have been caused by kick and similarly dimension of the injuries on the person of deceased Asif Iqbal being different, it was opined by the doctor who conducted the post-mortem examination, to have been caused with two different weapons. Adds that injuries on the persons of Ashraf arid Muhammad Abbass injured PWs were also simple in nature and on non vital parts of bodies.
As regards recoveries, learned counsel submits that according to case of the prosecution, Ihsan ul Haq, appellant got' recovered the rifle from a box, which was locked and key whereof was with his wife, so the rifle could not be held to be in exclusive possession of the appellant. Further submits that licensed 222 rifle of Ihsan ul Haq appellant was planted upon him. He has drawn our attention to Ex.DJ which is phot copy of the arms license in favour of Ihsan ul Haq, appellant. Similarly, Mubarik accused got recovered, a rifle lying in a bush, two furlongs away from village abadi, so the said place was easily accessible to inhabitants of the locality, while coming to the recovery of Naseer appellant, it is submitted that his licensed 30-bore pistol was also planted upon him and the place of recovery which is alleged to be Ayub National Park, Rawalpindi is a picnic park and many people remain there round the clock, so the accused was not foolish to conceal the fire arm at such a place. It is also maintained that the occurrence had taken place on 31.8.1995 and the three appellants namely Ihsan ul Haq. Naseer and Mubarik were arrested on 23.9,1995, so there were 22 days intervening and it was very easy for the appellants to have destroyed the alleged weapons of offence: Much emphasis is being laid on the recoveries and in this regard, it is added that dispatch of weapons to the office of the Fire-arms Expert and report of the Fire-arms Expert are suspicious.
Learned counsel has drawn our attention to statement of Muhammad Dilpazir, PW-4 who had stated that it was on 9.9.1995 when Bashir Ahmad ASI gave him a sealed parcel of blood stained cotton, two parcels of fire arms and three sealed parcels of crime empties for onward transmission to the office of the Chemical Examiner and Forensic Science Laboratory blit .The date of receipt of parcels in the report of the FSL Ex.PQQ is 13.9.1995. According to learned counsel there is no explanation for these intervening four days. So the safe delivery of the parcels is doubtful and question of tampering with the parcels cannot be ruled out and the reports of the Fire-arms Expert and Forensic Science Laboratory do not advance the case of prosecution any further.
It is next submitted that Talat Mahmood PW-5 the alleged witness of recoveries from Ihsan ul Haq.
Naseer Ahmad and Mubarik, appellant is close relative of the complainant party and relationship of Talat with complainant was admitted by Muhammad Sadiq, PW-11. Learned counsel submits that according to case of the prosecution, Zahoor and Ghulam Abbass were apprehended at the spot and fire arms were recovered from "them in the Court premises but none from the Courts was joined in the recovery proceedings.
Learned counsel for the appellants has also referred to register No. 19, Which is kept in the Police Station for making entries with regard to receipt and dispatch of the case properties. He submits that there is only one entry in the register and that is entry No. 269 which was vague in nature and did not specify the details of the case property.
It is submitted that in fact it is a case of individual liability and not of vicarious liability.
It Is also submitted by learned counsel that it is a case of dishonest investigation and the case was registered after preliminary inquiry. To supplement his arguments that the FUR was recorded after due deliberation and consultation, learned counsel submits that Inspector Azam Mahmood PW- 23 deposed that Police encounter continued for 1 vz houf while Bashir Ahmad SI PW-2 says that 30 minutes after the murder case, the Police encounter took place. Learned counsel has also pointed out some minor contradictions in the statements of Feroze Khan SI PW-15 as also Bashir Ahmad SI PW-3 and drawn our attention to report No. 64 dated 31.8.1995 of Police Station Civil Lines, Rawalpindi relating to departure of the Investigator from Police Station.
It is next argued that Mubarik, Naseer and Ihsan ul Haq have been falsely implicated in this case, none of them caused even a single injury to the deceased though the deceased was lying in front of them, but they are rotting in the death cell for the last more than five years and in the jail for the last 12 years for which there is no compensation.
Concluding his arguments, learned counsel for the appellants submits that motive having remained shrouded in mystery; the FIR having been recorded after due deliberation and consultation; there being previous background of enmity between the parties and the eyewitnesses being interested and related to the deceased, the ocular account being in conflict with medical evidence and the recoveries being of doubtful nature, the prosecution has miserably failed to prove its case and the appellants are entitled to acquittal.
At the end of arguments, learned counsel submits that so far as Zahoor appellant is concerned, his case is not of capital punishment and there are extenuating circumstances in his favour such as motive and that Humayun the deceased of the motive case was real nephew of the appellant.
8. Sardar Muhammad Ishaque Khan Advocate for the complainant assisted by Mr. Naseer ud Din Khan Nayyar, learned Additional Prosecutor -General submits that motive was admitted by the appellants, that the complainant party was facing trial in the murder case of Humayun and for that they were present in the Court premises and all the accused while armed with lethal weapons in prosecution of their common object by forming an unlawful assembly with a strong motive had committed the murder of Asif Iqbal and caused, injuries to four injured PWs; that the weapons of offence except pistol were visible, that Naseer appellant raised lalkara to take the revenge of murder of Humayun and thereafter. Immediately resorted to firing; that five crime empties of 30- bore pistol matched with the pistol recovered on the pointing out of Naseer appellant which proves his presence at the spot because non else had pistol at the time of occurrence; that in all 29 crime empties were recovered from the spot inasmuch as five of rifle 7-MM, five of 30 bore pistol and 19 of 222 rifle and that if the parcels are admitted to have been received in the office of the Fire-arms Expert on 13.9.1995 instead of 10.3.1995, even it does not favour the appellants because Naseer appellant was arrested 10 days after the occurrence, that is, on 23.9.1995. Elaborating the argument, learned counsel submits that five crime empties of 222 rifle taken into possession from the spot wedded with the rifle recovered on the pointation of Ghulam Abbass, appellant; similarly five crime empties matched with 7 MM rifle of Zahoor, six with the rifle of Ihsan u| Haq, four with the rifle of Mubarik-, appellant and five crime empties were sent back and those, according tp learned counsel were fired from the rifle in possession .Of Mukhtar accused who is a PO.
It is next submitted that no other crime empty having been taken into possession from the spot, it cannot be said to be a case of cross firing. Further submits that three types of crime empties were recovered from the spot which matched with the weapons of offence recovered on the pointation of the appellants, they are liable for' the commission of murder of Asif Iqbal and the provisions of Sections 148 and 149, PPC are fully attracted. For this submission, learned counsel has placed; reliance on PLD 1970 SC. 447. Adds that 24 shots were fired at the spot out of which 15 hit the deceased as also the injured PWs, so it cannot be work of one or two persons but in fact all the accused joined hands and committed the offence.
It is maintained that so far as ocular account is concerned, the presence of complainant and the injured PWs was proved beyond any shadow of doubt because four of them were injured.
According to learned counsel, statements of the eye-witnesses are harmonious and consistent on material points.
The provisions of Section 103, Cr.P.C., according to learned counsel, are not strictly applicable in this case. Reliance has been placed on 1997 SCM R 1000.
Concluding his submissions, learned counsel, submits that prosecution had fully proved its case through motive, ocular account, medical evidence and the recoveries and even there is no mitigating circumstance in favour of any' of the appellants.
9. We have heard learned counsel for the parties at length and have gone through the record with their able assistance.
10. The occurrence in the present case was alleged to have taken place on 31 !8.1995 at 7.45 a.m.
Within the premises of Sessions Court, Rawalpindi before the Court of a learned Additional Sessions Judge where the complainant party had come to appear in a murder trial and the matter was reported by Muhammad Sadiq complainant (PW-11) through statement (Ex.PG) recorded under Section 154, Cr.P.C. By Feroze Khan SI (PW-15) in the hospital at 9T.00 a.m. On the basis of which formal FIR (Ex:PC/1) was drafted by Muhammad Fazal SI (PW-2) at PS Civil Line District Rawalpindi at 9.35 a.m. The previous enmity of a murder case, in which the trial was fixed on the same day, existed between the parties. After perusal of the ;whole evidence on the record. We are not satisfied that the FIR was got. Lodged with such promptitude as it has come on the record that the firing remained continued at the place of occurrence for about 45 minutes and Muhammad Abbas, last injured was medically examined at 9.45 a.m. And postmortem of Asif Iqbal deceased. Had been conducted at 11.45 a.m. Moreover, it has come on the record that the police had reached the spot immediately after the occurrence, which encircled the Court premises and after about 1 1/2 hours of the occurrence apprehended (wo of the appellants from the Court room of A.C. Cantt.
Rawalpindi, but the matter was not reported by the complainant or any other eye-witness to the police at the spot. The possibility of due deliberation and preliminary investigation before the registration of the FIR cannot bd ruled out. Thus the FIR cannot be used as a corroborative piece of evidence to the ocular account and due care and caution is required to appreciate the prosecution evidence.
11. As per prosecution .Version on the fateful day and time the complainant party was present outside the. Court of Mr. Gulzar Ahmad Butt, learned Additional Sessions< Judge, Rawalpindi when six accused persons, namely Mukhtar Ahmad' (P.O) Zahoor Ahmad, Ehsan, Mubarak, Ghulam Abbas appellants armed with rifles and Naseer Ahmad appellant- armed with pistol. Arrived there.
Firstly Naseer Ahmad appellant was alleged to have made a. Lalkara and ineffective firing in the air.
Thereafter Zahoor Ahmad appellant caused injuries to Asif Iqbal deceased, Ghulam Abbas appellant caused injuries to Arif Iqbal (PW- 10), Ehsan ul Haq appellant caused injuries to Islam ul Haq (PW-14), Mukhtaj; Ahmad (PO) caused injuries to Muhammad Abbas (PV\M3) arid Mubarak appellant caused injuries to Muhammad Asif (PW-12), all with rifles. Two strangers, namely, Akbar Ali and Muhammad Yaqub (given up PWs). Were also alleged to have sustained fire arm injuries as a result of firing of the accused persons. To prove the ocular account the prosecution produced four injured PWs, namely, Arif Iqbal (PW-10), Muhammad Ashraf (PW- 12) Muhammad Abbas (PW- 13) and Islam ul Haq (PW-14) along with Muhammad Sadiq complainant (PW-11) and Talib Hu$sain (PW-15). The presence of the four injured PWs at the spot is stamped by the receiving of the injuries by them during the same occurrence. Muhammad Sadiq complainant (PW-11) and Talib Hussain (PW-16) were also the accused in the previous murder case and their presence at the spot was also not doubtful. However, mere presence of the PWs at the spot is not sufficient to^declare that they had spoken the whole truth. It is admitted fact that all the said PWs were related inter se and with the deceased closely and they were also inimical towards the appellants due to the enmity of murder of Humayun brother of Naseer Ahmad appellant, which had taken place in the year 1992 and trial of the same was fixed on the day of the occurrence. So they can be termed as interested witnesses. Moreover, two injured PWs, namely, Yaqoob and Akbar Ali, who were not related to any of the parties were withheld and given up by the prosecution. An inference can be drawn that had they been produced in the Court they would not have supported the prosecution version. In Niaz alias Niazoo and another vs. The State (1993 SCM R 1966) it was held that the eye-witnesses being highly interested in the background of previous enmity couldn't be relied upon unless corroborated by independent and unimpeachable source. The prosecution had the ones to prove the case against the accused beyond shadow of doubt:
12. To establish the ocular account in the present case against the appellants strong corroboration is required to the evidence of the eye-witnesses. Here are five appellants before us and we would like to discuss their culpability in the present case individually. As per prosecution own case, there are two sets of accused. First set includes appellants,, namely, Zahoor Ahmad and Muhammad Abbas appellants, who were apprehended by the Police immediately after the occurrence along with fire arms from nearby the place of- occurrence. Second set consists of Naseer Ahmad, Ehsan ul Haq, Mubarik Ali appellants and Mukhtar Ahmad (PO), who allegedly decamped from the spot.
13. From the second set, Naseer Ahmad appellant was real brother of Humayun deceased and also complainant of the motive case. We have Noticed that in the FIR he was only ascribed the role of Lalkara, but at the trial all the eyewitnesses also attributed him the role of ineffective firing and thus improved their statements. Similarly, the PWs had contradicted each other regarding the roles attributed to Ehsan ul Haq. He was an eye-witness in the motive murder case. In the FIR he was attributed general role of firing along with Mukhtar Ahmad (PO), which resulted into causing of injuries to Islam ul Haq and Muhammad Abbas injured PWs, but at the trial PW-10, PW-11, PW-13 and PW-14 improved their statements by stating that Ehsan ul Haq appellant caused injuries *to Islam ul Haq (PW-14) and Mukhtar Ahmad caused injuries to Muhammad Abbas (PW-13) whereas Muhammad Ashraf (PW-12), Islam ul Haq (PW-14) and Talib Hussain (PW-16) again attributed them the general role of firing resulting into causing of injuries to Islam ul Haq and Muhammad Abbas. It is strange to note that the PWs had narrated the role of each and every accused of causing of injuries to the deceased and the injured PW,s, but as regards Yaqub and Akbar Ali, it was generally stated by the PWs that they also received the injuries during the occurrence. Both Yaqoob and Akbar Ali were not related to any of the parties, but they were withheld and given up by the prosecution. An inference can be drawn that had they been produced in the Court, they would not have supported the prosecution version. As per Section 172, Cr.P.C. a Criminal Court can look into the case diaries not as evidence, but, to aid it in such inquiry or trial. We, have noticed that Muhammad Yaqoob and Akbar Ali injured (given up PWs) were examined by the police under Section 161; Cr.P.C. On 5.10.1995, which have been tendered in evidence as Ex:DG and Ex:DH and according to the former one person while the latter stated that two persons clad in veil had made firing during the occurrence. Similarly Mubarik Ali appellant was also an eye-witness in the motive murder case along with Naseer Ahmad' and Ehsan ul Haq appellants and he was only attributed the role of causing injuries to Muhammad Ashraf (PW-12). In such facts and circumstances we have no hesitation in holding that the PWs had >not' stated the whole truth and the possibility of false implication of Naseer Ahmad, Ehsan ul Haq and Mubarik Ali appellants in this case cannot be ruled out. Even according to Abdul Razaq Inspector (PW-22) and Azam Mahmood Inspector (PW- 23). They had reached the spot immediately after the occurrence along with several other police officials and Nakabandi was arranged on all of the outlets/routes of Kutchahry premises to avoid the fugitivity or slipping of the accused persons. Admittedly, the present three appellants could not be apprehended end only the two co-appellants, namely, Zahoor Ahmad and Muhammad Abbas had been seen by the aforesaid police officers and they were apprehended there, and then while fleeing from the place of occurrence, and this is also a great circumstance to exonerate them from the commission of this crime coupled with the factum that according to the statements of the Yaqub and Akbar Ali, who were also injured luring the occurrence, recorded by the police u/s. 161, Cr.P.C., as discussed above, not more than two persons had participated in the occurrence.
14. The motive set up by the prosecution was that in the year 1992( Humayun brother of Naseer Ahmad appellant and close relative of all the remaining appellants had been murdered. The eye- witnesses were accused in the said murder case. So previous enmity existed between the parties. It has been admitted by the eye-witnesses during the cross-examination that the deceased after completion of statutory period was released on bail more' than one year before the incident.
Muhammad Sadiq (PW-11) complainant and other accused were residing in the same village where the complainant party was residing while PW-10 Arif Iqbal claimed that he and the deceased, had come to the place of occurrence from Gujar Khan. All these accused were continuously appearing before the learned Trial Court after covering a distance of^more than 50 miles. It was also explained by the eye-witnesses that the witnesses of the present case used to cover distance of about six furlongs on foot, but no untoward incident had ever taken place. Arif Iqbal (PW-10) also admitted that no quarrel or fight had ever taken place, between the parties before the present incident which had taken place after three years of the incident of murder of Humayun (deceased) brother of Naseer Ahmad appellant and close relatives of other appellants.
So the possibility of happening of any immediate cause for the present incident cannot be ruled out, which has remained shrouded in mystery. If the accused had a motive to cause damage to the complainant party, they Could have done the same in the way to the Court instead of choosing the Court premises, then otherwise, the motive is always considered to be a double-edged weapon, which cuts both ways. If the appellants had a motive to commit the occurrence, it could also be a reason for false implication of the enemies. As ! Such. The ocular account cannot be relied upon, unless the same is corroborated by some independent piece of evidence on the record. In Ata Muhammad and another vs. The State (1995 SCM R 599) the Honorables Supreme Court declared the maxim for corroboration in the cited case, which , is reproduced as under:- "We know by our experience that time of recording of FIR is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the FIR Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the. Light of preliminary investigation made by it. Furthermore, in this case the FIR was lodged by Bati eye-witnesses himself. So, his previous statement recorded in the FIR does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion.
Mere repetition of a story will not give it any force Of prove its truth."
15. From the evidence on the record we do not find any cogent and unimpeachable independent evidence to corroborate the ocular account regarding the appellants, namely, Ihsan ul Haq, Muhammad Abbas and Naseer Ahmad appellants. Ihsan-ul-Haq, Mubarik Ali and Naseer Ahmed appellants were arrested on 23.9.1995 and according to the prosecution on 3.10.1995 rifle 222 alongwith 7 live cartridges (Ex. P2 and P2/1-7) were recovered at the instance of Ihsan-ul-Haq appellant from village Qutab Ferozal from a box. He took the key from his wife and after opening the box the rifle was taken into possession vide recovery memo. (Ex.PG). The said recovery was allegedly witnessed by Tallat Mahmood (PW-5) and Saadat Mahmood, brother >of PW-5, resident of village Chheena Papeen. On the same day, Mubarik Ali appellant, also led to the recovery of 222 bore rifle after digging earth near the house of Mubarik Ali appellant in village Qutab Ferozal which was taken into possession vide recovery memo. (Ex.PH) in the presence of both the above-said , witnesses Naseer Ahmad appellant also led to the recovery , on the next day on 4.10.1995 in the presence of Talat Mahmood (PW-5) and Ali Asghar, resident of Mohra Meeral Dakhli, from Ayyub Park where it was hidden after digging earth. No doubt these weapons had matched with the empties allegedly recovered from the spot as per report of the Forensic Science Laboratory (Ex.PQQ), yet after perusal of the evidence on the record we have no doubt in our minds to hold that this evidence was created by the prosecution to strengthen its case and no independent witness was produced to prove the same. Even the respectables from the locality were not joined to witness the said recoveries, which is violation of Section 103, Cr.P.C. Talat Mahmood (PW-5) was the alleged recovery witness of the recovery of weapons from all the three appellants whereas the other given up PW was his real brother. He was closely related to the complainant party and according to him, he had visited the Police Station on 3.10.1995 and 4.10.1995 in order to know about the progress of the case in hand. Thus he was an interested witness. He is resident of Chheena Papeen situate about 2 k.m. Away from the place of incident and he had accompanied the police from the Police Station Civil Lines, Rawalpindi while the place of recovery fell within the area of Tehsil Gujjar Khan. So he accompanied the police at a distance of about 15/16 miles and then witnessed the recovery. On the next day, the recovery was effected from Ayyub Park at Rawalpindi which was at a far of distance from his village. Ali Asghar, the other recovery witness from Naseer Ahmed appellant was also resident of Mohra Meeral Dakhli while the recovery has been effected from Rawalpindi. Both these witnesses had no house or place of business there. Even otherwise, we have noticed that no role of ineffective firing was attributed to Naseer Ahmad appellant in the FIR and the witnesses had improved their statements at the trial by ascribing the said role to him. As such the recovery of five empties of pistol from the spot, which had matched with the pistol allegedly recovered from Naseer Ahmad appellant is doubtful. Similarly it is not believable that Ehsan ul Haq and Mubarik Ali appellants had visited their houses after the occurrence, when the police was already behind them to arrest them and Ehsan ul Haq appellant succeeded in placing the rifle in an iron box in his residential house in safe custody to get recovered subsequently to use as a corroborative piece of evidence against him while Mubarik Ali appellant was able to burry the rifle near his residence. They had sufficient time to destroy the alleged weapons of offence, which were shown to have been recovered after more than one month of the occurrence. Moreover, according to PW-3, Bashir Ahmad, S.. On 31:8.1995 he was posted as Moharrir at Police Station Civil Lines and on the same day seven sealed parcels containing 30 bore-empties, blood stained cotton, 222 bore empties, 7- MM bore empties, 222 bore rifle, 7-MM rifle and the same were kept in Malkhana and handed over the same on 9.9.1995 to Muhammad Dilpazir Constable who brought back the parcels with the objection that parcel of empties of 30 bore was not sent along with other parcels and the said parcels were handed over to him on 12.9.1995. Muhammad Dilpazir Constable appeared as PW-4, and although he made similar statement but statement of Muhammad Dilpazir Constable (Ex.PA) did not disclose that any written objection had been placed on the record which was raised by the Forensic Science Laboratory. It is also not believable that the parcels were sent and parcels of empties of 30 bore pistol was withheld when all the parcels were deposited in the Malkhana on the same day. So the parcels were sent to the office of Forensic Science Laboratory after about 14 days of the incident and possibility of fabricating the empties for matching with the weapons allegedly recovered from the three appellants, namely, Mubarik AM, Ihsan-ul-Haq and Naseer Ahmad cannot be ruled out. As such the recoveries from the three appellants are legally inconsequential and do not provide any corroboration to the ocular account to their extent.
16. For the foregoing discussion sufficient doubt has been created in the prosecution evidence to the extent of involvement of Mubarik Ali, Ihsan-ul-Haq and Naseer Ahmad appellants and the - prosecution has failed to bring home charge to them beyond any shadow of doubt. Hence, this Criminal Appeal is partly accepted and Mubarik Ali, Ihsan-ul-Haq and Naseer Ahmad appellants are acquitted by extending the benefit of doubt.
17. Now we come to the case of Zahoor Ahmad and Muhammad Abbas appellants, whose participation in the occurrence stood established on the record beyond any shadow of doubt.
Zahoor Ahmad had opened firing at the deceased during the incident and all the eye-witnesses were in a position to see him while firing as before that according to our assessment -the witnesses were not aware of any attack which was to be made upon them and then Muhammad Abbas appellant fired at Arif PW and both of them had fallen on the ground after the firing made by two appellants. Afterwards, it is not expected that the witnesses would have seen the incident while standing in front of six accused persons, who were allegedly firing recklessly upon them because as a natural conduct every body would like to escape for saving their lives, when they were not prepared for the said attack. In Feroze Khan vs. Fateh Khan and two others (1991 SCM R 2220) the Honorables Supreme Court held that the acquittal of the accused on the extension of benefit of doubt does not necessarily mean that the eye-witnesses had either not seen the occurrence or that they had deliberately and falsely implicated the acquitted accused, but in such cases care is taken that for convicting the remaining accused, the witnesses were put to hardest test of scrutiny to see if testimony was corroborated by independent circumstances. It was a daylight occurrence and there was no chance of misidentify of both the appellants by the PWs, who were previously, known to each other. All the eyewitnesses have fully implicated both Zahoor Ahmad and Muhammad Abbas appellants in the present occurrence and to their extent; the testimony of the said PWs finds corroboration from the independent evidence available on the record and the circumstances of the case. Both the said appellants were apprehended from the District Courts premises Rawalpindi on the same day of the incident when they had hidden themselves in the Court of Assistant Commissioner Cantt,-which was encircled by the Police Officials under the supervision of Ch. Iftikhar Ahmad, Inspector/SHO (since dead), PW-23 Azam Mahmood, Inspector and Abdul Razaq, Inspector (PW-22). Both of them remained consistent that the accused had entered in the Court of Assistant Commissioner and they started firing but they were apprehended after 1 !4 hours of the incident on the same day when they made firebandi. At the same time, rifle .222 without number (P-19) along with three magazines (P20/1-3) was recovered from Muhammad Abbas appellant through recovery memo.. (Ex:P-NN) by Iftikhar Ahmad Inspector (since dead) and was attested by both PWs 22 and 23. Similarly rifle 7 MM (P21) was recovered from Zahoor Ahmad appellant along with two magazines (P22/1- 2) arid the same were taken into possession vide memo. (Ex:POO) by the deceased Inspector and attested by PWs 22 and 23. Both the said police officers had no enmity or grudge against the two appellants to falsely depose against them. Their version is further corroborated by the interim order of the same date passed by the learned Trial Court, copy of which has been placed on the record as Ex:DL and according to the same the firing started at'7.50 a.m. As a .Result of which one accused involved in the said case was murdered and some others sustained injuries. The said order further reveals that firing continued for about 45 minutes, which also. Supported that the police contingent reached the spot immediately after the occurrence and cross-firing was made from both sides to apprehend the appellants. According to PWs 22 and 23, 11 empties of .222 rifle and nine empties of 7 MM rifle along with penes of the windows from inside the Court room of AC Cantt, Rawalpindi where both the appellants had hide themselves before their apprehension by the police. The weapons had been recovered from Zahoor Ahmad and Muhammad Abbas appellants on the same day immediately after the occurrence, which matched with the empties allegedly recovered from the spot' as per report of the Forensic Science Laboratory. There is nothing on the record to suggest about the false implication of both the said appellants in the present case. The dimension of the injuries on the persons of the deceased and the injured PWs also suggests that these were caused by different weapons.
18. In view of above discussion, we are of the view that the prosecution has proved its case to the extent of Zahoor Ahmad and Muhammad Abbas appellants beyond any shadow of doubt. Hence their convictions recorded by the learned Trial Court are maintained. So far as quantum of sentence is concerned, we have found that both the appellants had come at the spot while arrned with, weapons and launched attack, in the Court premises on .The complainant party which. Had caused insecurity in the general public. They were vicariously liable for the offence and the death sentence awarded to them by the learned Trial Court along with other sentences are maintained.
Resultantly, this Criminal Appeal No. 348 of 2001 to the extent of Zahoor Ahmad and Muhammad Abbas appellants is partly dismissed.
19. Murder Reference No. 800 of 2001 to the extent of Ihsan-ul-Haq, Mubarik Ali and Naseer Ahmad appellants is answered in the negative and as regards Zahoor Ahmad and Ghulam Abbas (Muhammad Abbas) appellants is answered in the affirmative and the sentenced of death passed by the learned Trial. Court against them are hereby confirmed.