' SARMAD JALAL OSMANY, J.--- Criminal Appeal No,280 of 2003 assails the judgment of the learned Lahore High Court dated 4-7-2002 whereby Criminal Appeal No,593 of 2002 filed by Appellant Ghulam Mustafa against the judgment of the Learned Anti-Terrorism Court was dismissed.
However, at the same time, the sentence of the appellant was reduced from death to life imprisonment etc. Criminal Appeals Nos.88 of 2008 filed by Appellant-Muhammad Safdar impugns the judgment of the Learned Lahore High Court dated 13-12-2004 whereby Criminal Appeal No,16 of 2004 filed by him against the judgment of the Learned Anti-Terrorism Court, sentencing him to life imprisonment etc. Was dismissed. As both the appeals arise out of the same set of facts i,e, a single F.I.R., the same are being disposed of through this common judgment.
2. Briefly stated the facts of the matter per F.I.R No,51 of 2000 registered at Police Station Shahpur Sadar dated 22-3-2000, are that on such day Complainant P.C.-Muhammad Akbar No,425 along with P.C.Muhammad Mumtaz No,1368 had brought under trial prisoners Ahmad Hayat, Sikandar Hayat, Javed Iqbal and Muhammad Sher from Sargodha Jail to face their trial before the relevant Court in Shahpur Sadar, District Sargodha. The complainant was holding the handcuffs of the aforesaid under trial prisoners while P.C.-Muhammad Mumtaz was on guard duty, armed with a G- 3 rifle. All of them were sitting outside the Court room and besides them were present Sher Muhammad, Zulfiqar Shah, Muhanunad Farooq and P.C.-Muhammad Aslam No,953, who had come there on some personal work. At about 9-30 a.m. Four unknown persons came there on two motorcycles out of whom one was armed with a kalashnikov while others were carrying .222 rifles and started firing on the under trial prisoners as well as the police officials. P.C.-Muhammad Mumtaz sustained injuries on his legs whereas under trial prisoner Javed Iqbal and Sikander Hayat were also injured. Similarly, bystanders Sher Muhammad, Zulfiqar Shah, Muhammad Farooq and P.C.-Muhammad Aslam No,953 were injured as well. P.C.-Muhammad Mumtaz fired in self defence with his G-3 rifle as a result of which one of the assailants, who was armed with a kalashnikov was hit and fell down whereas the remaining assailants fled away on their motorcycles. In this commotion, under trial prisoners Muhammad Sher and Muhammad Hayat managed to make good their escape. Then the complainant found that under trial prisoner-Javed Iqbal and Sher Muhammad had expired. While P.C.Muhammad Mumtaz, P.C.-Muhammad Aslam, Sikander Hayat, Zulfiqar Shah and Muhammad Farooq had been seriously injured.
3. After investigation, the challan was submitted against accused viz. Appellant-Ghulam Mustafa, Muhammad Sher, Khizar Hayat, Ghulam Hussain, Ahmad Khan son of Muhammad Khan, Khalid Mahmood, Rab Nawaz, Muhammad Ashraf, Ahmad Khan son of Malik, Noorzada and appellant- Muhammad Safdar, the last two of whom were shown as absconders. The Learned Anti-Terrorism Court, Sargodha charged nine accused, who were in attendance, including appellant Ghulam Mustafa, to which all of them pleaded their innocence. The Prosecution, in support of its case, examined as many as 19 witnesses, including eye-witnesses, the doctors, who had attended to the injured and carried out post-mortem examination of the dead and other official witnesses, who were formal in nature. Thereafter the accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution case and declined to lead any evidence in their defence.
4. Thereafter arguments were heard by learned Anti-Terrorism Court and vide its judgment dated 1-4-2002, the Court convicted the appellant-Ghulam Mustafa (Appellant in Criminal Appeal No,280 of 2003) under section 302(b) read with section 34, P.P.C. For the murder of the deceased and sentenced him to death as well as to pay compensation of Rs,2,00,000 to the legal heirs of each deceased and in default to further undergo six months S.I. On each count. So also he was convicted under section 324 read with section 34, P.P.C. For launching a murderous assault on the injured and sentenced to suffer ten years R.I. With a fine of Rs,20,000 and in default thereof to undergo further R.I. Of two years on each count. He was also convicted under sections 384/34, P.P.C., 337-F(ii), (iii) and (vi) P.P.C. For causing injuries to the injured and sentenced to various prison terms along with fine etc. He was also convicted under section 7, A.T.A. And sentenced to death. The other accused were acquitted viz. Ghulam Hussain, Muhammad Sher, Khizar Hayat, Ahmad Khan son of Muhammad Khan, Khalid Mehmood, Rab Nawaz, Muhammad Ashraf and Ahmed Khan son of Malak. As observed above, upon appeal, the Learned Lahore High Court converted the death sentence to life imprisonment and reduced the amount of compensation etc. After his arrest, Appellant-Muhammad Safdar was again charged by the Learned Anti-Terrorism Court in the same F.I.R, to which he pleaded not guilty. At the trial, the prosecution examined 20 witnesses, including eye-witnesses, doctors, who had attended to the injured and performed post-mortem of the deceased as well as the formal witnesses. He was examined under section 342, Cr.P.C. Wherein he totally denied the prosecution case and also declined to lead evidence. After hearing arguments from both sides, the Learned Anti-Terrorism Court sentenced Appellant-Muhammad Safdar to (i) imprisonment for life and to pay a fine of Rs, one lac, in default three years' R.I. Under section 7 of the Anti-Terrorism Act, 1997 read with section 34, P.P.C. (ii) Three years' R.I. And to pay fine of Rs,5000 in default three months' R.I. Under section 21(L) of the Act. (iii) Two years' R.I. And to pay a fine of Rs,5,000, in default six months' R.I. Under section 353 read with section 34, P.P.C. (iv) Ten years' R.I.
With a fine of Rs,20,000, in default 2 years' R.I. Under section 324 read with section 149, P.P.C. (v) Ten years' R.I. As Ta'zir and to pay 1/3rd of Diyat as Arsh under section 337-A(v), P.P.C. (vi) Rs,15,000 as Daman, in default to be kept in jail for six months' S.I. (vii) To pay the Diyat of Rs,90,148 for committing the murder of Javed deceased, to be recovered as arrears of land revenue, in default six months' S.I. And (viii) To pay Diyat of Rs,41,983 for the murder of Sher Muhammad, which was upheld by the Learned Lahore High Court.
5. In support of Criminal Appeal No,280 of 2003, Raja Muhammad Akhtar, learned Advocate Supreme Court firstly submitted that in cross-examination before the learned Anti-Terrorism Court both the police officials have admitted that they do not know the assailants and also did not participate in any identification test for this purpose before any Magistrate. Similarly, both the police officials failed to identify the appellant in Court. Consequently, their evidence cannot be relied upon, in so far as, positive identification of the appellant is concerned, since in F.I.R he was not identified by them. Secondly, learned Advocate Supreme Court submitted that empties recovered from the place of occurrence are that of a kalashnikov, which is attributed to deceased Sibt-e-Hassan, hence, as according to the prosecution case, appellant-Ghulam Mustafa was carrying a .222 rifle, only his presence, if at all, could be established at the scene of the crime. This would, therefore, mean that appellant-Ghulam Mustafa could only be convicted on the basis of common intention, which requires strict corroboration and which is missing from the case. Finally Learned Advocate Supreme Court stated that only appellant-Muhammad Safdar and Noorzada were declared proclaimed offenders and not appellant-Ghulam Mustafa. Hence, the reasoning which weighed with the learned Anti-Terrorism Court and the High Court in so far as his absconsion is concerned, is not supported from the record. In this regard, he referred to Fazal Muhammad v.
Muzaffar Hussain 1981 SCM R 959.
6. Syed Ibn-e-Hassan, learned Advocate Supreme Court in Criminal Appeal No,88 of 2008 has firstly submitted that Appellant-Muhammad Safdar was only implicated in the supplementary statement of the P.Ws., in which event it is not safe to base a conviction on the same. Secondly, according to the learned Advocate Supreme Court, P.W. Muhammad Farooq was believed by both the learned Anti-Terrorism Court as well as the High Court, as he was an injured witness. However, the fact that he had changed his previous statement in connection with the trial of appellant Ghulam Mustafa, was not taken note of. Finally, learned Advocate Supreme Court has submitted that P.W.10 Karam Illahi only implicated Appellant Ghulam Mustafa and not the appellant Muhammad Safdar.
7. On the other hand, Mr. M. Siddique, learned Deputy Prosecutor-General has fully supported both the impugned judgments and submitted that besides the official witnesses, there are four other eyewitnesses out of whom two were injured and hence, their evidence cannot be doubted as to the positive identification of both the appellants. According to Learned Deputy Prosecutor-General, the eye-witnesses account is fully corroborated by medical evidence hence, the fact that the recovery did not match the weapons allegedly carried by both the appellants is insignificant.
8. We have heard both the learned Advocates Supreme Court as well as Learned Deputy Prosecutor-General. From the available record, it can be discerned that the evidence against the appellants consists of the ocular account, the medical record, the recoveries and lastly the motive.
In so far as the ocular account is concerned, it would be seen that on the date of incident, in which four persons were grievously injured and two lost their lives, including one of the assailants, the F.I.R.
Has been timely filed by the complainant, who is a police official and admittedly has no connection with either the accused or the injured/deceased. Consequently, the occurrence cannot be doubted as it stands further corroborated by the medical evidence. However, having observed as much, it would also be seen as per the official witnesses viz. P.C.-Muhammad Akbar No,425 and P.C.- Muhammad Mumtaz No,1368, they were present along with Ahmad Hayat, Sikandar Hayat, Javed Iqbal and Muhammad Sher, whom they had brought from Sargodha Jail when the occurrence took place. According to these P.Ws., at the time of incident, they had not recognized the assailants and only came to know of their names afterwards and as much as has been admitted by them in cross-examination. Consequently, it can safely be deduced that they had improved their statements in Court, as admittedly, none of the accused were put to any identification test. Hence, the ocular version put forward by these two witnesses can only be relied upon to the extent that four assailants come on two motorcycles and had fired upon the police party as well as under trial prisoners and others who were present outside the Court on the fateful day.
9. Insofar as positive identification of the assailants is concerned, the testimony of other eye- witnesses viz. P.W. Sikandar Hayat, who was injured, as well as P.W. Muhammad Farooq, again injured, and P.W. Ahmad Hussain is relevant. According to these eye-witnesses, deceasedSibt-e- Hassan armed with a kalashnikov and Noorzada Pathan, Muhammad Safdar along with appellant Ghulam Mustafa armed with .222 rifles had attacked from the southern side. As a result of firing made by appellant Ghulam Mustafa, deceased Javed Iqbal had been hit on left side of the chest and right arm. Another set of accused comprising Ghulam Hussain, armed with a kalashnikov, Muhammad Sher, Khizar Hayat and Muhammad Ashraf Chochri armed with .222 rifles attacked from the northern side from whose firing P.Ws. Sikandar Hayat and Muhammad Farooq, Zulfiqar Shah, Muhammad Sher Constable Muhammad Aslam and Constable Muhammad Mumtaz were injured out of whom Muhammad Sher later expired. According to all these P.Ws., deceased Sibt-e- Hassan was killed from the firing made by P.W. Constable Muhammad Mumtaz. Besides being related to the deceased and other injured persons these P.Ws. Have improved their version in the Court i,e, from their police statements. Such improvements concern, inter alia, the slogan Lalkara raised by appellant Ghulam Mustafa, shots fired by him, shots fired by other set of accused persons etc. In these circumstances, their testimony is to be treated with some caution and would require corroboration, particularly, as there is enmity between the appellants and the other accused and the complainant party since deceased Javed Iqbal, who was the brother of P.W.
Sikandar Hayat and P.W. Ahmad Hussain was also related to P.W. Muhammad Farooq and had been nominated in .The murder of Ahmed Nawaz, who is the relation of the appellants.
10. In so far as corroboratory pieces of evidence are concerned, the medical account displays that the deceased and injured had received wounds from a fire-arm but there is no opinion as to what type of weapon was used in the occurrence. However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same. In this regard it would be seen that under cross- examination P.W. Sikandar Hayat was confronted with his police statement wherein he had not stated that the two shots fired by the appellant Ghulam Mustafa had hit deceased Javed Iqbal.
Similarly, neither P.W. Muhammad Farooq or P.W. Ahmad Hussain had stated as much in their police statements contrary to their testimony in Court. Consequently, they have improved their version for no other purpose than to bring it into accord with the medical evidence in which event the latter could hardly corroborate these .Witnesses. The second piece of evidence, which is available on the record and which can corroborate the ocular account were the recoveries. In this regard it would be seen that the recoveries at the scene are only of a kalashnikov rifle and empties of the same, which has been attributed to deceased Sibte-Hassan. Consequently this hardly corroborates the ocular account vis-a-vis the appellants, who admittedly were armed with .222 rifles. So also the recovery of a .222 rifle from appellant Ghulam Mustafa and a .12 bore shotgun from appellant Muhammad Safdar is of no consequence at all since they were not sent for any ballistic test and indeed could not be so sent as no empty of a .222 rifle or of a shotgun were recovered at all. Finally it would be seen that in so far as motive is concerned, it cuts both ways.
Admittedly, there was enmity between the parties because one of the deceased Javed Iqbal was nominated along with other P. Ws in F the murder of Ahmad Nawaz, who was a relation of the assailant party. If enmity persuades a person to commit a crime then it is also sufficient to falsely implicate some person from the other side i,e, the accused. Consequently, the benefit of doubt should be given to the accused in this regard. So also it may be seen that besides being a brother of the deceased Javed Iqbal, P.W. Ahmad Hussain is a chance witness as according to him he had come to the Court premises on the fateful day along with his mother and uncle Akhtar Nawaz to meet the deceased and injured. They were not sitting with the deceased and injured but available in a but (Chappar), which was near a hotel adjacent to the plot where the deceased and injured were sitting along with the police party. This witness has introduced the element of criminal conspiracy hatched between all the accused a day before when they conspired to do away with the deceased and injured when they would come to attend the Court on the fateful day. He had narrated the facts to his father and uncle Muhammad Hussain (who was on bail in the murder case of Ahmad Nawaz) and all of them had gone to the police station with this report but their complaint was not recorded by the Inspector. Under cross-examination, this witness has been confronted with the discrepancy in his police statement and examination-in-chief vis-a-vis the location of the deceased and injured's injuries, firing by the accused party, number of accused who attacked from the northern side, empties recovered from the northern side, his coming to the police station along with his uncle etc. In the circumstances, again the statement of this witness in the Court needs to be strictly corroborated, which, as discussed above, is not the case.
Furthermore, it would be seen that the Investigating Officer Inspector Wajid Hussain, who was then posted at Police Station Shahpur Saddar, has stated under cross-examination that P.W. Ahmad Hussain had never visited him on 20-3-2000 to report the alleged abetment/ criminal conspiracy amongst the accused. He also admitted that none of the P.Ws had nominated any accused in their police statement. Finally it would be seen that injured P.W. Muhammad Farooq had not mentioned the presence of P.W. Ahmad Hussain in his police statement, which he acknowledged when so confronted under cross-examination. Again P.W. Karam Ellahi, who is the father of deceased Javed Iqbal has testified that on the fateful day about 10 or 11 a.m. He was standing in his house Dera when appellant Ghulam Mustafa and accused Ashraf came there on a motorcycle. Appellant Ghulam Mustafa told him that he should go to the Court at Shahpur and see that he and others had left heaps of dead bodies and injured persons in revenge for murder of Ahmad Nawaz. Again the same principle of corroboration applies to this chance witness, who is also an interested one, which is missing from the case. In this regard, reference can be made to the case of Ata Muhammad v. State 1995 SCM R 599, and Mumtaz Begum v. Ghulam Farid 2003 SCM R 647.
11. Furthermore, it would be seen that the learned trial Court as well as the learned High Court have disbelieved the testimony of P.Ws Sikandar Hayat, Muhammad Farooq and Ahmad Hussain vis-a- vis the second set of accused persons i,e, Muhammad Sher, Khizar Hayat, Ghulam Hussain and Muhammad Ashraf Chochri for having participated in the crime and so also for having hatched a criminal conspiracy with appellant Ghulam Mustafa and others. In the circumstances, the question to be answered is whether these P.Ws, whose testimony has not been believed for one set of accused persons, can be believed for the other set, including the appellants before us. In our jurisprudence it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case-law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses then indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v.
State 1969 SCM R 132, Shafoo v. State 1968 SCM R 719 and Allah Ditta v. State PLD 2002 SC 52. As discussed above, there is hardly any corroborative piece of evidence to substantiate the eye- witnesses, whose ocular account vis-a-vis the second set of co-accused has been disbelieved by the learned trial Court as well as the High Court.
12. In view of the above discussion, the prosecution case in both the appeals as to the veracity and credibility of the eye-witnesses is, full of contradictions and doubts, the benefit of which must go to the appellants. Consequently, both the appeals are allowed, the impugned judgments are set aside and the appellants are acquitted of the charges against them. They shall be set free immediately, if not required in any other case.