Khalil-ur-Rehman Ramday, J.--In the occurrence which is the subject matter of these appeals, filed through leave of this Court, eight persons were murdered while two others had also been assaulted who had received fire-arm injuries but had survived. Ten persons, accused of the commission of the said crime, were found guilty of the same and were punished with death under Section 302(b) of the PPC read with Section 149 of the said Code, on eight counts, besides imposition of some other punishments under Section 148 PPC and Section 324/149 of the Pakistan Penal Code.
2. It is admitted on all sides that the episode commenced at about 5:00 a.m. on 9.1.1997 when Fida Hussain, Inspector and Ahmed Ali, S.I. (PW.22) raided village . Mir Muhammad and arrested eight persons of the complainant-party out of whom six are the deceased persons of the present case while two others, namely, Ghulam Nabi complainant (PW.9) and Master Asghar (PW.8) are the injured witnesses of the said occurrence. Five persons of the present convict-party and four others, apparently not connected with these two parties, out of whom Khizar and Asim also got killed in the present occurrence, were also arrested. The said arrests of these persons and of some others had been made under Section 107 read with Section 151 of the Cr.P.C. allegedly on account of apprehension of breach of peace on their part. It may be mentioned here that one Abdul Rehman, who was a brother of Ayyaz and Pervaiz convict-appellants before us, had been murdered on 23.9.1996 i,e, about four months prior to the present occurrence with respect to which murder the said Ayyaz appellant had lodged an F.I.R. accusing Akbar deceased and Abdullah deceased of the present case and some others of the complainant-party, of the commission of the said murder which had led to the tension between the parties and the said apprehensions.
3. All these persons arrested in pursuance of the said preventive proceedings, were taken to Police Station Raja Jhang. It was the prosecution case that a brother of the above-mentioned Ayyaz and Pervaiz appellants namely, Khalid Bhatti and one Hafeez Ahmed came to the Police Station at about 7:30 a.m. on the said day and requested the S.H.O. to release the said Ayyaz and Pervaiz appellants. According to the two injured eye-witnesses, Fida Hussain, Inspector/S.H.O. obliged and had released the said two appellants and had even returned the fire-arm weapons to them which had been recovered from them at the time of their arrest in the above-mentioned raid. The claim of Ahmed Ali, S.I. (PW.22), however, was that the said Hafeez and Khalid had come and had met the S.H.O. with the said request but the S.H.O. had refused to oblige. It may be added here that the said Khalid Bhatti and Hafeez had also been cited as accused persons of the present case but had got murdered during the course of the trial.
4. It is also admitted on all sides that at about 12:30 p.m. the same day, all these arrested persons were taken to the Courts at Kasur for their production before the competent Mapistrate All of them extent Ayyaz, Pervaiz, Rauf and Mahmood appellants and one Bashir (who absconded and is a Proclaimed Offender) were put in a DALLA (a pickup used for transportation of goods) with three constables including Mehr Ali Shah, H.C. (CW.1) sitting on the front seat alongwith the driver which vehicle had then left for Kasur. According to the two injured eye-witnesses Rauf appellant, Mahmood appellant and Bashir P.O. were put in a private taxi car with Ahmed Ali, S.I. (PW.22) which followed the said DALLA. However, according to the said Ahmed Ali, S.I. (PW.22), Ayyaz and Pervaiz appellants had also been made to sit in the same taxi car and it was five of the said arrested persons alongwith him and the driver, making a total of seven persons, who were sitting in the said taxi.
5. It is further admitted on all sides that when the said DALLA reached near the Health Centre of Rao Khanwala, it was ambushed by the accused persons; that its driver tried to speed away but the assailants fired at the tyres of the said vehicle which got burst as a result of which the same stopped hereafter the assailants mounted an assault on the members of the complainant-party present in the DALLA which resulted in the death of six of them and in injuries to Ghulam Nabi complainant (PW.9) and Master Asghar (PW.8). It may be added that besides the above- mentioned six deceased persons, two others, namely, Khizar and Asim who were also being taken to the Court in the same DALLA, had also got killed in the said occurrence making a total of eight dead and two injured.
6. It was the case of the two injured witnesses that the culprits who had ambushed the said DALLA included Ayyaz and Pervaiz appellants who had, though been arrested in the morning raid but had subsequently been released by Fida Hussain Inspector/S.H.O. but according to Ahmed Ali, S.I.
(PW.22), the said two were present in the taxi car with him. Again, according to the two injured witnesses, this taxi car which was following the DALLA had reached the place of occurrence while the attack was still in progress and the occupants of the same i,e, Rauf appellant, Mahmood appellant and Bashir P.O. had then also joined in the assault but according to Ahmed Ali, S.I.
(PW.22) and Mehr Ali Shah, H.C. (CW. 1), this taxi car reached the spot after the occurrence was over.
7. When confronted with the prosecution case under Section 342 Cr.P.C, it was pleaded by the accused persons that five of them, namely, Ayyaz appellant, Pervaiz appellant, Rauf appellant, Mahmood appellant and Bashir P.O. were in the taxi car which had never reached the place of occurrence during the course of the assault and they had thus not participated in the same and further that the DALLA in question had been ambushed by some un-known persons and that none of the accused persons had anything to do with the said occurrence and further that they had been falsely implicated on account of the previous enmity between the parties.
8. Another feature of the case which needs to be mentioned at the outset is that the complainant- party had vehemently claimed, from the very beginning i,e, with the lodging of the F.I.R., that the crime in question had been committed by the convict-party in collusion with Fida Hussain, Inspector/S.H.O. and Ahmed Ali, S.I. who were then also arraigned as the accused persons of the present case. However, on an application submitted by them for their acquittal under Section 265- K of the Cr.P.C., the complainant-party had joined in the said request for their acquittal as a result whereof the said two were acquitted of the said charges and it was thereafter that Ahmed Ali, S.I. had entered the witness box as a prosecution witness.
9. Mr. Muhammad Akram Sheikh, the learned Sr. ASC representing the appellants except Rauf and Mahmood appellants, took us through the record and then canvassed acquittal for the said eight appellants on the ground that the three eye-witnesses including the two injured witnesses were inimical towards the appellants; that no corroboration was available to support the said interested testimony; that the said appellants had been maliciously implicated in the occurrence in question on account of the previous enmity between the parties especially the above-mentioned murder of Abdul Rehman who was a brother of Ayyaz and Pervaiz appellants; that the eye-sight of PW.9 was very weak who thus, could not have identified any of the assailants; that no reliance could be placed on the testimony of Ahmed Ali, S.I. (PW.22) as he was reciprocating the favour shown to them by the complainant side in securing acquittal for him; that the testimony of Mehr Ali Shah, H.C., (CW. 1) was also of no real assistance to the prosecution because he had admitted that he did not know the assailants and that in the circumstances, the said appellants deserved acquittal. He had pleaded, in the alternative that since the genesis of the occurrence in question was not known and since it was humanly impossible to establish as to which of the culprits had fired at whom, therefore, in such-like situations imposition of sentences of death would be against the principles of safe administration of justice. The learned counsel had also cited the following judgments in support of his case which judgments mentioned some principles which are too well known. The said cited cases are:--
(i) PLD 1960 SC 387 at 390
(ii) 1998 SCMR 25 at 29
(iii) 1996 SCMR 1855 at 1857
(iv) 1995 SCMR 175 at 177
(v) 2001 SCMR 424 at 440 & 441 at 491 (vi)PLD 2003 SC 350 at 354
(vii) 1978 P.Cr.L.J. 490 at 496
(viii) 1984 SCMR 1069 at 1074"
10. Sardar Muhammad Ishaque, the learned Sr. ASC appearing for Rauf and Mahmood appellants in Criminal Appeal No, 860 of 2006 submitted that the said two appellants were real brothers inter se; that they were not the residents of village Mir Muhammad where the two parties resided and were in fact residents of Chak No, 100 of Tehsil Cheecha Watni of District Sahiwal which would be around 100 K.Ms., away from the place Of occurrence; that the said two appellants were the real brothers of the wife of Ayyaz appellant; that it was a day prior to the present occurrence i,e, on 8.1.1997 that they had come to village Mir Muhammad to meet their sister; that the next morning a raid was conducted in the village in which they were also arrested as being present in the house of Ayyaz appellant; that at the time of occurrence, even according to the eye-witnesses. they were travelling in the taxi car which was following the DALLA, that the taxi car, according to Ahmed Ali, S.I.
(PW.22) and Mehr Ali Shah, H.C. (CW.1), had never reached the place of occurrence while the said occurrence was still in progress; that the list of the accused persons appearing at the very beginning of the application (Ex.PH) which had been submitted by Ghulam Nabi complainant and which then formed the basis of the F.I.R. of the present case, the names of Rauf and Mahmood appellants had not been cited as the culprits; that the said two appellants were burdened only with an allegation of general indiscriminate firing; that no specific injury was ascribed to any Of them and that in the circumstance the participation of the said two appellants in the occurrence in question was more than a doubtful affair who then deserved to be acquitted of the charges leveled against them.
11. We propose to take up, first, the case of Rauf and Mahmood appellants.
12 They were admittedly not the residents of village Mir Muhammad and would thus have no direct involvement in the enmity between the two parties. It is also a fact, not denied, that they were the brothers of the wife of Ayyaz appellant. It is their case, as noticed above, that they had come to village Mir Muhammad to meet their sister in the evening preceding the morning of the raid and had been arrested only because they happened to be present in the house of Ayyaz appellant. This explanation of the two appellants of their presence in village Mir Muhammad on the morning on 9.1.1997 and of their arrest at the time of the raid in question could not be said to be un- reasonable.
13. It is admitted even by the private eye-witnesses including the two injured witnesses, that these two appellants were in custody and were travelling in the taxi car which was following the DALLA. It was the case of Ahmed Ali, S.I. (PW.22) and Mehr All Shah, H.C. (CW. 1) that this taxi car had not reached the place of occurrence during the course of the occurrence in question. One may have some reservations about the testimony offered by Ahmed Ali, S.I. (PW.22) for more than one reasons but the evidence offered by Mehr Ali Shah, H.C. (CW. 1) who was travelling in the DALLA, rings true to some extent. It was the driver of the said taxi car who was in control of the said vehicle and was admittedly not a person involved in the designs of the appellant-party and it was then Ahmed Ali, S.I. (PW.22) travelling in the said taxi who would be otherwise in command of the same being the senior police officer escorting the said arrested persons. It is not reasonably believable that after noticing an attack on the DALLA wherein a fairly large number of persons armed with fire- arm weapons had mounted an assault on the occupants thereof, the said driver and the said Ahmed Ali, S.I. (PW.22) would decide to move in, risking their own lives. Even if it be presumed that the taxi car was not far behind the said DALLA, it is understandable that the moment the one in control and command of the said taxi car would witness the brutal and callous attack in the said DALLA, they would not pick-up the courage to come within the firing range of the fire-arm weapons being used in the said occurrence. Ahmed Ali, S.I. (PW.22) might well have been a party to the conspiracy for the elimination of the deceased persons, though the complainant-party had subsequently exonerated him of the said charge, yet he would not, in any case, like to risk his own life for the purpose. The site-plan (Ex.PE) also offers us significant indication that the said taxi car had never reached the place of occurrence during the continuance of the attack. A perusal of the said site-plan which had been prepared, inter alia, on the information and instructions provided by the three private eye-witnesses would reveal that while the DALLA in question had been shown at the point of occurrence, the said taxi car finds no mention at all in the said site-plan. Needless to say that if the said taxi, car had reached the place of occurrence and if the occupants thereof had joined the assault then the same should have been and would have been indicated in the said site-plan which had, however, not been done.
14. We have also gone through the application (Ex.PH) submitted by Ghulam Nabi complainant for the registration of the F.I.R. of the present case and although the names of the said two appellants appear in the body of the said application indicating that the complainant was cognizant of the presence of the said appellants amongst the arrested persons yet the omission of their names from the list of the accused persons in the opening part of the said application.
15. As has been mentioned above, Rauf and Mahmood appellants were alleged to have reached the place of occurrence when the assault bad already commenced and as per the F.I.R. itself, they had joined the others after the fire-arm injuries already stood inflicted on the bodies of the victims thereof and it was then that the said two appellants were accused of having joined in the indiscriminate firing. It is significant to notice that while the other appellants had been saddled with specific injuries on the persons of the victims, no such injury had been ascribed to the said two appellants. The question whether any indiscriminate firing had been made at the said stage of the occurrence also deserves further examination. It is on record that besides the ten victims (eight dead and two surviving) Imran, Nazir, Hidayat Masih and Munir Masih were also sitting in the said DALLA alongwith the said victims while three constables including Mehr Ali Shah, H.C. (CW.1) and the driver were also available in the said vehicle. Needless to say that not even a scratch had got caused to the four arrested persons sitting alongwith the said ten victims and like-wise not even a scratch had got caused on the persons of the said constables and the driver of the DALLA. No marks of any bullets had been found on the body of the said DALLA except a broken windscreen.
The blackening discovered around, some of the wounds of the victims; the availability of wads in the bodies of the said victims and the damage caused to the brain and faces of some of the deceased persons, is a clear pointer that most of the shots had been fired from a rather close range. This then appears to be a case of victim-specific and targeted killing and not a case of indiscriminate firing wherein the projectiles had been sprayed. This casts a rather serious doubt about any indiscriminate firing having been made during the course of the occurrence which doubts are further strengthened by the recovery of only seventeen crime empties from the place of occurrence. Needless to add that some of the crime empties had been found and collected from within the DALLA which indicates that some of the assailants would have climbed onto the part of the DALLA where the victims were sitting and it was from there that shots had been fired at the said victims.
16. What emerges from the examination of the available record. is that at least Rauf and Mahmood appellants were admittedly travelling in the taxi car; that the reaching of the taxi car at the place of occurrence while the occurrence was still in progress was a more than doubtful claim and further that similarly doubtful was the prosecution allegation of any indiscriminate firing having been made by any of the assailants ' especially Rauf and Mahmood appellants.
17. Having so concluded, we find that, the present was not a case where it could be said that the prosecution had succeeded in proving the guilt of Mahmood and Rauf appellants beyond reasonable doubts. Consequently, Criminal Appeal No, 860 of 2006 filed by the said Muhammad Ahmed (Mahmood Ahmed) son of Sana Ullah and his brother Rauf Ahmed, is allowed as a result whereof the impugned conviction and punishments recorded against each one of them are set aside. They are acquitted of the charges levelled against them and shall be set at liberty forthwith, if not required to be detained in any other case.
18. This brings us to the case of the remaining eight appellants, namely, Ayyaz, Suleman, Rahim, Sarwar, Yahya, Nawaz alias Nikki, Younas and Pervaiz. The prosecution case against these appellants rests mainly on the testimony offered by the three private eye-witnesses, namely, the injured Master Ashgar (PW.8), the injured Ghulam Nabi complainant (PW.9) and Saeed (PW.10) and the eye-witness account offered by Ahmed Ali, S.I. (PW.22) and the statement of Mehr Ali Shah, H.C.
(CW. 1).
19. Since we have found and held above that the taxi car of which Ahmed Ali S.I. (PW.22) was also one of the occupants, had never reached the place of occurrence during the course of the transaction in question and since we were also of the view that the said taxi car could not have come within the firing range, therefore, any reliance on the testimony of Ahmed Ali, S.I. (PW.22), at least to the extent of identification of the culprits and the witnessing of the firing of shots by the assailants, would be un-safe. Mehr Ali Shah, H.C. (CW. 1) was another eye-witness of the occurrence as he was travelling in the `DALLA' escorting the fourteen persons being taken to the Court at Kasur. He had, however, declared at the very outset that he did not know the assailants and that their names had been told to him later on by Rasheed Inspector. No test identification parade had been organized which could have given the Courts some clue whether, according to him, the accused under trial were or were not the ones who had mounted the assault. Therefore, his testimony, to the extent of identification of the assailants, is also of no real assistance.
20. This leaves us with the statements of the two injured witnesses and of Saeed (PW.10). The said PW.10 was closely related to some of the deceased persons. His explanation for his presence at the place of occurrence was that in the morning of the day of occurrence he had gone to Rao Khanwala in connection with some -an-specified work; that at about 1:00 p.m. he happened to be standing on the Rao Khanwala road for returning home when he heard the report of fire-arm weapons Originating from near the Health Centre of Rao Khanwala that he rushed to the spot and saw the accused persons, identified and specified by him, firing at the deceased persons. He is thus admittedly a chance witness of the occurrence in question with no reasonable explanation for his availability at the place of occurrence at the relevant time. The evidence emanating from him could, therefore, be taken only with a pinch of salt.
21. The success or failure of the prosecution case then rests essentially on the acceptance or rejection of the testimony offered by' the two remaining above-mentioned eye-witnesses, namely, Master Asghar (PW.8) and Ghulam Nabi complainant (PW.9). The obvious objection to the acceptance of their testimony is that they were admittedly interested witnesses who were inimical towards the convict-party being locked up in a blood feud with them.
22. The treatment deserved by such-like inimical testimony has been confronting the superior Courts rather frequently. And the following is how the superior Courts responded to the said situation:-- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge pei-bui..3 against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused, without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, THEIR EVIDENCE MAY, IN THE ABSENCE OF ANYTHING MAKING IT UNSAFE TO DO SO, BE ACCEPTED WI'T'HOUT CORROBORATION, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up this plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probationer force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt." (emphasis and under-lining has been supplied) NIAZ VS. THE STATE (PLD 1960 SC (PAK.) 387)
The law laid down by this Court in Niaz's Case supra was further explained by this Court in the case of Nazir and others vs. The State (PLD 1962 SC 269) in the following terms:-- "By what we said in Niaz v. The State WE HAD NO INTENTION OF LAYING DOWN AN INFLEXIBLE RULE THAT THE STATEMENT OF AN INTERESTED WITNESS (by which expression is meant a witness who has a motive for falsely implicating an accused person) CAN NEVER BE ACCEPTED WITHOUT CORROBORATION. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
The matter was again examined in the case of Abdur Rashid vs. umid All and 2 others (PLD 1975 SC 227) and what was held by this Court was:-- "It may be mentioned in this context that ALTHOUGH AS A RULE OF PRUDENCE, THE COURTS HAVE MORE OFTEN THAN NOT INSISTED ON INDEPENDENT CORROBORATION BEFORE PLACING RELIANCE ON THE TESTIMONY OF INTERESTED WITNESSES YET IT IS NOT AN INLEXIBLE RULE TO BE RIGIDLY AND UNEXCEPTIONALLY APPLIED. There might be cases in which the witnesses related to the deceased might be other Wise, quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence, EVEN THEIR UNCORROBORATED TESTIMONY MAY BE IMPLICITLY RELIED UPON OF COURSE IN THE CONTEXT OF OTHER RELEVANT CIRCUMSTANCES OF EACH CASE. Reference may be made in this regard to this Court's judgment in Jahan Khan v. State (1) Niaz v. State (2) and Nazir and others v. State (3). These judgments were referred to with approval in Muhammad Ismail vs. Khushi Muhammad and 7 others." (emphasis and under-lining has been supplied)
The same principles were re-iterated in the case of Muhammad Ali vs. The State (1985 SCMR 203).
To the same effect was the judgment delivered in ABDUL MAJEED'S CASE (2001 SCMR 90).
23. What thus emerges from a survey of the above-quoted and other earlier decisions of this Court is that:--
(a) it is a mistaken notion that reliance could never ever be placed on the uncorroborated testimony of interested witnesses;
(b) looking for corroboration before placing reliance on interested testimony, was only a rule of caution prescribed by the Courts and not a rule of law commanded by the legislature;
(c) that even the said was not an inflexible rule;
(d) the crucial test for accepting or rejecting a piece of evidence was its intrinsic worth and not really the source from which the same emanated; and finally that
(e) corroboration, even if required for the satisfaction of the conscience of the Court did not always have to come from independent sources of un-impeachable character but could be gathered even from the circumstances available on record.
24. In view of the above-noticed established principles, what could be said at the very outset was that the ocular testimony offered by Master Asghar (PW.8) and Ghulam Nabi complainant (PW.9) could not be thrown out only because they had a background of some enmity with the convict- party. What would have to be determined would be, FIRSTLY, whether there were circumstances available on record which could establish their presence at the place of occurrence at the relevant time and the fact whether they could have witnessed the occurrence; SECONDLY, whether they were in a position to identify the culprits and THIRDLY, whether the number of culprits cited by them could be accepted as dependable or whether any sifting was warranted in the said connection.
25. Analysing, the ocular testimony in the light of the said established principles, we find that both the said eye-witnesses had been arrested during the above-mentioned raid conducted by the police in the early hours of the day of occurrence and were thus admittedly amongst the persons who were present in the DALLA and were being taken to the Kasur Courts. They had both received injuries in the occurrence in question and thus their presence at the place of occurrence and the witnessing of the said occurrence by them was not open to any doubt. All the convict-appellants were residents of the same village where the said two witnesses resided. The two parties stood locked up in criminal litigation and it would thus be un-deniable that these two witnesses knew the convicts like the back of their hands. The only question which would thus require consideration would be whether as many as eight convicts i,e, Ayyaz, Suleman, Rahim, Sarwar, Yahya, Nawaz, Younis and Pervaiz could have actually participated in the murderous attack or whether the number of culprits appeared to be an exaggerated version of the occurrence only to widen the net.
26. It stood admitted on record that the number of persons being transported in the DALLA was fairly large i,e, eight dead; two surviving injured witnesses; Imran, Nazir, Hidayat Masih and Munir Masih making it a total of fourteen persons. The assailants who had launched a planned attack, would be expected also to know that these fourteen arrested persons who were present in the DALLA would be accompanied by some policemen and the ones so escorting them, as per the record, were three police employees including Mehr Ali Shah, H.C. (CW. 1). Mounting an assault on such a large number of persons which could include police employees who could be expected to be armed, could not reasonably be a job expected to be accomplished by one or two persons.
While determining this aspect of the matter, the number of victims i,e, eight dead and two injured survivors, would also be a rather potent and a relevant factor. The number of injuries received by the said ten victims would also be another valid factor which injuries in the present case were forty-five in number. It is also discernable from the record that three different kinds of weapons had been used in the commission of the crime in question. Keeping these facts and circumstances in view, it can be safely concluded that the aggression in question would have been launched by a fairly large number of persons and the number of culprits alleged by the eye-witnesses thus appears to be in consonance with the above-noticed facts and circumstances.
27. Having thus found that the presence of the two injured eyewitnesses at the place of occurrence at the relevant time did not admit of any doubt; that similar was the position regarding the identification of the culprits by the said witnesses and further that the above-noticed facts and circumstances, including the number of victims and the number of injuries received by the said victims, also indicated that the number of convicts was not an unbelievably exaggerated claim, we, hold that placing reliance on the testimony of the said witnesses vis-a-vis the above- mentioned eight appellants was not open to any exception.
28. It may also be mentioned here that relying upon an admission of Ghulam Nabi complainant that his eye-sight was very weak and that he was almost blind, it had been argued by the defence that his claim of having identified the assailants at the time of occurrence, was not believable. It is true that the said PW had so admitted while appearing as a witness at the trial which was more than a year and eight months after the occurrence but in the same breath he had also declared that this was a post-occurrence development and that during the days of occurrence, his eye- sight was perfect. This assertion of this PW is being more than amply corroborated by the fact that he had been, admittedly, arrested in the above-mentioned raid in the morning of the day of occurrence and, at the time of occurrence, he was being taken to the local Courts, in custody.
Needless to add that it is not digestible that the police would be apprehending breach of peace and commission of violent crime by a blind man who could not even see, which was a fairly valid circumstance leading to the conclusion that the complainant's claim of good eye-sight during the days of occurrence, was a valid claim.
29. Mr. Muhammad Akram Sheikh, the learned Sr. ASC then argued vehemently to distinguish the case of Ayyaz arid Pervaiz appellants from the case of their co-convicts submitting that as per Ahmed Ali, SI (PW.22), the. said two appellants were travelling in the taxi car which had never reached the place of occurrence at the time in question and that their participation in the occurrence in question thus stood negated.
30. It is true that Ahmad Ali, S.I. had so stated at the trial and we may add that Mehr Ali Shah, H.C.
(CW.1) had also made a similar statement though he had not named Ayyaz and. Pervaiz as being in the taxi but he had said that five persons of Ayyaz group were made to sit in the said taxi. On the other hand, the claim of the private eye-witnesses, from the very outset, starting with the F.I.R., was that Ayyaz and Pervaiz appellants had been arrested at the time of the morning raid; that they had also been brought to the police station alongwith the other arrested persons; that at about 7 a.m.
Khalid and Ahmad accused (since dead) came to the police station and had a private meeting with Fida Hussain, Inspector/SHO and settled the matter with him; that at about 11:30 a.m., the said SHO released the said two appellants and had even returned them the fire-arm weapons recovered from them at the time of the morning raid; that these two appellants were not amongst the persons who were being taken to the Courts and were thus neither in the `DALLA' nor even in the taxi and that they were amongst the culprits who had intercepted the `DALLA' and had then attacked the same. These eye-witnesses had further asserted that only three members of Ayyaz group, namely, Rauf appellant; his brother Mahmood appellant and Bashir P.O. were in the taxi who were accompanied by Ahmad Ali, S.I.
31. The private eye-witnesses were interested witnesses and their testimony thus could not be blindly followed. Ahmad Ali, S.I. and Fida Inspector, had been accused, by the complainant-party from the very beginning, of collusion with the convict-party and for reasons mentioned in the earlier part of this judgment, no implicit reliance could be made even on the statement of Ahmad Ali, S.I.
32. We would, therefore, have to find out which of these two versions was being supported by the facts and circumstances which stood admitted on all sides. The FIRST such fact was that the taxi in question was an ordinary motorcar and was not a six-door stretched limousine. The SECOND fact was that the said taxi was being driven by its driver with Ahmad Ali, S.I. sitting on the front seat. The THIRD fact was that the only space then available for the arrested persons in the said car was the back seat. And the FOURTH fact was that it would have been almost impossible for five grown-up persons to be sitting in the back seat of an ordinary car. What then emerges from these facts is that the claim of the private eye-witnesses that only three accused persons i,e, Rauf, Mahmood and Bashir P.O. were present in the taxi was more plausible as compared to the defence claim and the claim of Ahmad Ali, S.I. that Ayyaz and Pervaiz appellants were also sitting in the said taxi along with Rauf, Mahmood and Bashir. The next admitted circumstance available on record is that Ayyaz and Pervaiz appellants were real brothers inter-se; that their third brother, namely, Abdur Rehman had been killed prior to the present occurrence; that Ayyaz appellant was the complainant of the said murder case who had accused the members of the present complainant-party as the murderers of his brother and that in the circumstances, the said two appellants had direct motive to avenge their brother's murder. Another factor available on record is that these two appellants were alleged to have used .12 bore guns in the occurrence and at least thirteen crime empties of 12 bore had been recovered from the venue of the present occurrence.
33. Our conclusion, on the strength of these facts and circumstances, Is that the claim of the private witnesses regarding participation of Ayyaz anu Pervaiz appellants in the occurrence in question was being corroborated by the admitted facts and circumstances available on record and we consequently believe them vis-a-vis the said issue.
34. Mr. Muhammad Akram Sheikh, the learned Sr. ASC, finally prayed, in the alternative, for reduction in the quantum of punishments awarded the said eight appellants.
35. This prayer of the learned counsel, to say the least, comes as a surprise to us. The lesser of the two penalties prescribed for QATL-EAMD, is meant only for situations where the circumstances which had led to a murder or the manner in which such a crime had got committed invoked some sympathy for the convict. The present occurrence, however, was a barbaric, a brutal and a savage display of a reckless disregard for human lives where the perpetrators of the crime did not deserve any mercy or leniency.
36.Consequently, Criminal Appeal No, 861 of 2006 filed by the eight convicts in question is dismissed.
37.Before we part with this judgment, we would like to bring on record our concern and our dis- pleasure about the manner in which the trial in question had been conducted. The learned trial judge allowed matters to come on record which were not admissible in evidence. We were pained to find that during the course of cross-examination of prosecution witnesses and the examination of defence witnesses, questions were allowed soliciting the opinion of the police officers about the guilt or innocence of some of the accused persons under trial. It appears to us that not only the learned cross-examiner but even the learned trial judge was ignorant of even the basic provisions of law of evidence which prescribed that the witnesses could only state facts i,e, what they had themselves seen or heard or perceived through any of their senses and that the opinions or beliefs or impressions of third person were, as a general rule, irrelevant and, therefore, inadmissible. As a necessary exception to this rule what had been made admissible in evidence, besides the facts, were opinions but only of experts and that also on a point of foreign law or of science, or art, or as to the identity of handwriting or finger impressions (Section 59 of the Qanoon-e-Shahadat Order, 1984). 'It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the investigating officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why couldn't, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. It may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer only to investigate a case. "INVESTIGATION" stands defined by the provisions of Section 4(1)(1) of the said Code in the following terms:-- "Investigation includes all the proceedings under this Code for the COLLECTION OF EVIDENCE conducted by a police officer (emphasis and under-lining has been supplied)
This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the competent Court. Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer would be vis-a-vis his field of operation, namely, collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctors or with respect to archaeological matters to determine whether an item was or was not an antique or about hand-writings or foot-prints or finger-prints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has to be, then how come he could be considered an expert and his opinion becoming admissible vis-a-vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose, under the law of evidence. The prohibition contained in Section 161 Cr.P.C. and in Section 172 of the said Code regarding in-admissibility of the statements recorded by an Investigating Officer under the said Section 161 or the case diaries prepared by him under the said Section 172, would further clarify the said proposition. Reference may also be made to a Judgment of the Lahore High Court, authored by one of us which is reported as Haji Muhammad Hanif vs The State (PLD 1992 Lahore 314).
38. We were also pained to notice that the learned trial Judge had also, persistently, allowed 'HEARSAY' evidence to come on record which again shows ignorance of the said learned trial Judge of the legal provisions regulating the subject and the lack of control of the learned Presiding Officer over the proceedings being conducted by him.
39. Another agonizing fact which we noticed from the record was the lengthy, protracted and verbose cross-examination of the prosecution witnesses. For instance, Ghulam Nabi PW was cross- examined for ten days on different dates of hearing extending from 4.7.1998 to 21.10.1998. The cross- examination covered more than thirty pages or to be exact, 32 pages of the file. The situation with respect to other P.Ws. was no better. This is sheer harassment of a witness and a mockery of the provisions permitting cross-examination. Such a limitless cross-examination, besides being a criminal waste of public time, only indicates lack of grasp on the matter by the one cross- examining a witness and absence of any management of the Court proceedings by the one presiding over the same.
40. We, therefore, feel compelled to advise the learned Presiding Officers and also the learned members of the bar to acquaint themselves with the relevant provisions of law of evidence and with the art of cross-examination before embarking upon trials and Court proceedings.
41. Copies of this judgment shall be sent to the Registrars of all the four High Courts in the country who shall send the same to the learned Sessions Judges throughout their respective provinces for circulation to all the learned Presiding Officers within their respective jurisdictions, for the guidance and compliance.