FATEH MUHAMMAD vs Ties STATE

JAVAID IQBAL,, J.-Fateh Muhammad son of Muhammad Khan, aged 40 years, armed with single- barrelled gun, has been convicted under section 302, P. P. C. For the murder of Muhammad Aslam, aged about 40 years, and vide judgment dated 10-10-1978 of the Additional Sessions Judge; Sheikhupura, was sentenced to death plus fine of Rs. 500 or in default to undergo six months' rigorous imprisonment. He was also ordered to pay compensation amounting to Rs. 15,000 to the heirs of the deceased or in default to further undergo six months' rigorous imprisonment. However, he was acquitted of the charge under section 307, P. P. C. As well as under section 404/148, P. P. C.

His four co-accused, namely, Haq Nawaz, armed with single-barrelled gun, Khizar Hayat alias Muhammad Nawaz, also armed with single-barrelled gun, Ejaz and Muhammad Yusuf, both armed with revolvers, were acquitted. Fateh Muhammad convict has filed Criminal Appeal No. 955 of 1978 against his conviction and-sentence. There is also State appeal i. e. Criminal Appeal No. 452 of 1979 against the acquittal of the above-mentioned four co-accused. Similarly, there is private Criminal Revision No. 337 of 1979 against the acquittal of the above-mentioned four co-accused. Criminal Appeal No. 452 of 1979 and Criminal Revision No. 337 of 1979 have not been admitted for hearing but they are to be heard along with the main appeal as well as Murder Reference. All these matters are being taken up together and disposed of by this judgment.

Haq Nawaz and Khizar Hayat, acquitted co-accused, are real brothers of the present appellant.

Ejaz Ahmad, acquitted co-accused, is their Mamuzad (cousin) and Muhammad Yusuf, acquitted co-accused, is their Munshi.

2. The occurrence took place on 6-5-1975 at 6-30 a. m. Near a Rajbah in the area of village Pandori at a distance of 3J miles from Police Station, Narang, District Sheikhupura. F.

1. R. Exh. P. D. Was lodged by Shafqat A.I P. W. 5 Phuphizad (cousin) of the deceased at 7-15 a.m. On the same day and it was recorded by Zamir Ahmad S. I. P. W. 16.

3. The motive for crime, as stated in the F. I. R. Is that about 14 years before the present occurrence the deceased and Rehmat A.I son of Fateh Muhammad P. W. 4 had purchased some land situated in village Chandheer from one Nawabzadi Sajda Sultana and because of this there was a civil suit before the Senior Civil Judge, Sheikhupura between them and the accusedparty. There was also criminal complaint instituted by the present appellant against the deceased, Rehmat A.I son of Fateh Mubammad P. W. And others under section 468/420,/471/34, P. P. C. Pending before the Magistrate, Ferozewala. The plaint in the civil suit is Exh. P. L. At page 156 of the Paper Book whereas the Criminal complaint is Exh. P. C. At page 147 of the Paper Book. It is stated that on the day of occurrence there was Peshi of these cases and the deceased was proceeding to attend the Court when he chanced to meet the accused-party, who were also proceeding to attend the Court and consequently he was murdered by the accused party while on his way to the Court.

4. The prosecution has produced three eye-witnesses of the occurrence, namely, Rehmat A.I son of Chiragh P. W. 6, as unconnected person, Shafqat A.I P. W. 5, Phuphizad (cousin) of the deceased and Muhammad Ashraf P. W.

7. Brother of Rehmat A.I son of Fateh Muhammad P. W.

4. Iftikhar Elabi was named in the F. I. R. As an eye-witness but was not produced.

5. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day Shafqat A.I P. W. 5, who had a commission shop in Narang Mandi was proceeding thereto through pathway of Rajbah Kala Shah Kaku for reaching 'the Bus Stand. Little ahead of him were the deceased and Muhammad Ashraf P. W, 7, also proceeding towards the Bus Stand. On this way, the appellant and the acquitted co accused, armed as described above, were sitting. As soon as the deceased and Muhammad Ashraf P. W. Reached near them. KhizAr Hayat, Ejaz Ahmad and Muhammad Yusuf, acquitted co-accused, raised a lalkara to the effect that they would not be spared. In the meantime Fateh Muhammad appellant as well as Haq Nawaz, acquitted co- accused, fired one shot each through their respective guns at the deceased which hit on his back side and the deceased fell on the ground. Shafqat A.I, P. W. Iftikhar Ellahi (not produced) and Rehmat A.I son of Chiragh r. W. 6, who were coming along just behind them advanced forward in - order -to-rescue the deceased. On seeing them Ejaz Ahmad and Muhammad Yusuf, acquitted co- accused, took out the revolvers from their dubs and Khizar Hayat, acquitted co-accused, picked up his gun and fired in the air warning them whosoever came forward, they would kill him. Then Fateh Muhammad appellant removed the belt of the licensed revolver from the waist of Muhammad Aslam deceased and Haq Nawaz, acquitted co-accused, removed the wrist watch from the wrist of Muhammad Aslam deceased. Thereafter, all of them decamped firing through the field of one Muhammad Bakhsh on the pathway of service Rajbah Muridke where they all set in a white coloured wagon which was standing for them and they drove away towards Koth Virkan.

Muhammad Aslam deceased died on the spot. Leaving behind Muhammad Ashraf P. W. And Iftikhar Ellahi to guard the dead body, Shafqat A.I P. W. Proceeded to lodge the report.

6. The appellant was arrested on 15-4-1976 by Muhammad Ashraf D. S. P. P. W. 13 and it has been asserted that he had become absconder and was declared a proclaimed offender. Khizar Hayat, acquitted co-accused, was arrested on 7-5-1975 by Zamir Ahmad S. 1. P. W.

16. Haq Nawaz and Muhammad Yusuf, acquitted co-accused, were arrested by the same Police Officer on 10-5-1975.

Ejaz Ahmad, acquitted co-accused, was arrested by the same Police officer on 20-5-1975. No crime-empty was picked up from the spot and no relevant recovery was made from the appellant or the acquitted co-accused. Similarly, neither the white wagon in which the accused party is stated to have escaped from the spot was recovered or taken into possession by the police nor the wrist watch as well as the revolver of the deceased taken away by the appellant and Haq Nawaz, acquitted co-accused, were recovered from them or taken into possession. Consequently the case of the prosecution is mainly based on the ocular testimony supported by the motive version, the medical evidence and the absconsion of the appellant.

7. The appellant, in his statement before the trial Court, denied having participated in the occurrence. The litigation between the parties, civil as well as criminal, was. Admitted. It was stated that the appellant had been falsely implicated due to enmity. Khizar Hayat, acquitted co-accused, advanced the plea of alibi and stated that he was not even present in the village on the day of occurrence. The others also denied having participated in the occurrence and stated that they had been falsely implicated due to enmity.

8. Dr. Abdul Mujib P. W. 15 conducted post-mortem examination on the dead body of the deceased at 6-00 p. m. On 6-5-1975 and found on his person a fire-arm entrance wound circular. In shape with six holes at the right ride of back upper part. There was blackening around the wound with two exit wounds on the left side of neck; another fire-arm entrance wound circular in shape with six holes 2" below the above injury on the right side of back. There was blackening present around and inside the wound ; three abrasions superficial on the left side of forehead ; two abrasions superficial on the right side of forehead ; one abrasion superficial on the nose ; another abrasion superficial on the nose tip . And still another abrasion superficial on the left side of face. The stomach contained four ounces of semi-digested rice. Small intestines contained digested food.

Large intestines contained faecal matter. The bladder was empty. In his opinion, the first two .Injuries were caused by fire-arm and the rest were caused with blunt object and the fire-arm injuries were grievous whereas the remaining were simple. Death was caused by haemorrhage and shock as a result of the fire-arm injuries which were individually as well as collectively sufficient to cause death in the ordinary course of nature. The death was immediate and probable time between death and post-mortem examination was 12 to 14 hours. In the cross-examination he stated that in his opinion when there was blackening of the wounds, the distance between the mouth of the weapon in the hand of the assailant and the victim was usually 3 to 4 feet. He also stated that the two fire-arm injuries on the person of the deceased were the result of the shots from the same type of bai rel and both these injuries were exactly similar. He further stated that it was incorrect that the fire-arm injuries were given to the deceased from a distance of 1 or 1J feet. If the wad has been recovered from between the vest and the shirt, as stated by the police in the inquest report, then the shot could have been fired from a distance of 1 or 1 J feet. The same number of pellets struck the deceased from the two cartridges which has hit him. The area of wounds of two fire-arm injuries suggest that the shots were fired from almost the same distance.

The location of each pellet in both the injuries suggests that the shots were fired from almost the same distance. The shape and size of fire-arm wounds suggest that the cartridges were of the same type and make.

9. We have heard learned counsel for the parties and carefully perused the record-with their assistance. First we shall discuss the motive evidence in the instant case. The prosecution version is that the deceased and Rehmat A.I son of Fateh Muhammad P. W. 4 had purchased some land in village Chandheer from one Nawabzadi Sajda Sultana about 1 --years before the present occurrence. It may be noted at this stage that apart from the deceased and Rehmat A.I son of Fateh Muhammad P. W.

4. Muhammad Ashraf P. W. T, who is brother of the aforesaid Rehmat A.I P.

W. And who is eyewitness of this occurrence, was also one of the purchasers of the said land. Since the accused-party was interested in the land in question, the present Appellant, Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, and others had filed a suit for specific performance in the civil Court on 26-3-1974 as against the deceased, Rehmat A.I P. W. 4, Muhammad Ashraf P. W. 7 and others which was pending in the Court of the Senior Civil Judge, Sheikhupura, at the time of the occurrence. The present appellant had also instituted a criminal complaint under section 468/420/471/34, P. P. C. As against the deceased, Rehmat A.I P. W. 4, Muhammad Ashraf P. W. 7 and others which was also pending at the time of the occurrence before the Magistrate Ferozewala. The prosecution case is that on the date of occurrence there was Peshi of the parties of the criminal case as is evident from Exh. P. T. At page 165 of the Paper Book. Exh. P. T. Is copy of the order passed by the Magistrate Ferozewala on 6-5-1975. It is stated in it that the case was called but Fateh Muhammad appellant (complainant) was absent and none of the accused in that case was present except Mr. Khalid Masood, Advocate of Nawabzadi Sajda Sultan, who stated that due to the murder of Muhammad Aslam deceased, the information of which he had received, none of the accused had appeared on that day. Thereupon, the next date of hearing was fixed on 20-5-1975.

On 15-10-1974 a report was lodged by Rehmat A.I P. W. 4 at Police Station, Narang. This is Exh. P. B. At page 144 of the Paper Book. The report was signed by Rehmat A.I P. W. 4 and was also signed by the deceased, who had verified its contents. This report is to the effect that Rehmat A.I P. W. 4 accompanied by the deceased went to Police Station Narang and Rebmat A.I P. W. 4 got the report lodged that they had purchased some land and that the appellant as well as Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, wanted to purchase the same through fraud. When the appellant etc. Came to know about the sale of the said land to the deceased etc., they instituted a false civil suit in the Court of the Senior Civil Judge, Sheikhupura and a criminal complaint in the Court of the Magistrate, Ferozewala against them. Therefore, it is stated in the report that Rehmat A.I P. W. 4 has come to know through a reliable source that the appellant, his brothers Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused as well as Nisar Ahmad and Muhammad Malik were preparing again to murder the deceased as well as Rehmat A.I P. W. 4 so that after murdering them they might succeed in their civil suit due to the absence of the deceased and Rehmat A.I P. W. 4 and thus acquire the disputed land. They have prepared their scheme and have despatched their plan in order to acquire the services of professional murderers for this purpose so that at the time of occurrence they should make out a case for their alibi and thus save themselves from the allegation of murder. It was stated that therefore, Rehmat A.I P. W. 4 and the deceased, in the instant case, had an apprehension that the accused party would murder them in order to cause injury to their life and property and for this purpose had prepared a complete plan. It was further stated that the leader of the accused patty their adviser and legal protector was Nisar Ahmad, who was member of the National Assembly of Pakistan from Tebsil Ferozewala, because in the forthcoming elections Rehmat A.I P. W. 4 and Muhammad Aslarn deceased were a hindrance in the way of this Nisar Ahmad. Consequently, the accused party wanted to finish them through preparing a scheme for their murder. This Nisar Ahmad was closely related to the appellant etc. Rehmat A.I P. W. 4 further stated that after the recording of the report in the Roznamcha, he should be given a copy thereof so that he could start legal proceedings against the accused party. But in case he or Muhammad Aslam deceased or any member of their family was involved in any kind of accident, then its responsibility would be on the accused party.

As it has been pointed out earlier, this report is stated to be signed by Rehmat A.I P. W.

4. Thereafter, there is one sentence to the effect that on inquiry Muhammad Aslam deceased supported each and every word of Rehmat A.I P. W.

4. This sentence is followed by the signatures of Muhammad Aslam deceased. This report was recorded in the Roznamcha and a copy thereof was given to Rehmat A.I P. W.

4. Thereafter, it was referred to Ch. Saeed Ahmad A. S. 1. Who was expected to start investigation about the same. There is nothing on the record to show that any further proceedings were taken by the police on this report. The case of the prosecution is that in the light of Exb. P. B.

And the motive as stated in the F.

1. R., the appellant and his companions had a motive to murder the deceased, in the instant case, and it was not that the complainant side had any enmity with them. It is stated that the complainant-side had no previous enmity with the accused party whereas the accused-party had motive to get rid of them only because they had purchased some land in which the accused party was interested and that in order to acquire the same they had instituted civil as well as criminal proceedings as against the complainant side, Learned counse lfor the complainant party vehemently argued that in the light of this evidence on the record it was clear that there was no background of previous enmity between the parties and that it was only the accused party which had a motive to murder the deceased or Rehmat A.I P. W. 4, who, among others, were purchasers of the disputed land. The case of the complainant-party is that Exh. P. B.

Must be read along with F.

1. R., in the instant case, and it should be given the same sanctity as that of a dying declaration, because its contents were endorsed and supported by the deceased Muhammad Aslam, who had signed it.

On the other hand, the arguments of learned counsel for the appellant are as follows: It is submitted that if Rehmat A.I P. W. 4 along with the deceased had got Exh. P. B. Recorded on 15-10- 19L74 and as it has been stated by Shafqat A.I P. W. 5, who lodged the F. I. R. That he knew about the recording of Exh. P. B., then he should have mentioned Exh. P. B. In the F.

1. R. The case of the defence is that in the F.1. R. There is no mention of the earlier report Exh. P. B. Similarly, there is no mention of Exh. P. B. In the statement of Rehmat A.I P. W. 4 recorded under section 161, Cr. P. C. And placed on record as Exh. D. A. At pages 165/166 of the Paper Book. Learned counsel for the appellant, therefore, argued that it was a spurious document made up subsequently by the police under the influence of the complainant party in order to strengthen the prosecution case as against the accused party.

It was pointed out that Abdul Haque H. C. P. W. 3 was produced along with Roznamcha register, who had recorded the report of Rehmat A.I P. W. 4 which Muhammad Aslam deceased had confirmed and signed along with Rehmat A.I P. W.

4. He stated in the cross-examination that Roznamcha register, which- he had brought, was not on printed register but it is on white papers on which lines have been drawn. The Roznamcha is in loose sheets which are tagged. The pages are not numbered and in the Roznamcha register there is no certificate showing the number of pages in the Roznamcha. He stated that it was not possible to replace a sheet of paper of Roznamcha by another sheet of paper. He did not ask Rehmat A.I P. W. 4 or Muhammad Aslam deceased regarding the secret sources from which they had received the information of the plan to murder them. He only recorded the report and sent the copy to A. S. I. For further action. So far as he remembered proceedings were taken on this report under section 107/150, Cr. P. C. By the A. S. I.

The proceedings were taken against both the parties. He did not remember as to after how much time these proceedings were taken as he was transferred in the month of November, 1974, from Police Station, Narang to Police Station, Sharaqpur. He could not tell whether the proceedings were taken before or after his transfer. The Roznamcha register was up to 30-10-1974 and till that date there was no entry in the Roznamcha register regarding the. Taking of proceedings under section 107/150, Cr. P. C. He did not know as to why he was transferred in November, 1974. It was then argued by learned counsel for the appellant that Saeed Ahmad A. S. I. To whom Exh. P. B. Had been sent for taking appropriate proceedings of investigation was not produced by the prosecution so as to confirm as to whether or not any proceedings under section 107/ 150, Cr. P. C. Were taken on Exh. P. B. There is also no evidence on the record that Rehmat A.I P. W. 4, who took a copy of Exh. P. B.

In order to himself take legal proceedings against the accused-party, did take any such proceedings. It was next submitted that Exh. P. B. Could not be considered as a dying declaration of Muhammad Aslam deceased as it had not been recorded by him. It was stated to be recorded by Rehmat A.I P. W. 4 and Muhammad Aslam deceased is stated to have signed it, because he confirmed its contents. It was then submitted that in Exh. P. B. There were names of different persons than those who are implicated in the present murder case. Similarly, there was also mention of the hiring of professional murderers for doing the job by the accused-party. Learned counsel for the appellant further argued that if Exh. P. B. Was to be considered as genuine, then it clearly indicated that there was previous enmity existing between the parties because of elections.

It is stated in Exh. P. B. That Nisar Ahmad, who was closely related to the a pellant etc., had considered Muhammad Aslam deceased and Rehmat A.I P. V 4 as a hindrance for him in the forthcoming elections.

Thus, the argument of learned counsel for the appellant is that it was not correct to say that only the accused party had a motive to murder the deceased. But the correct position was that there existed previous enmity between the accused and the complainant parties. The trial Judge has arrived at the conclusion that Exh. P. B. Was proved and to his mind it did not appear to be fictitious.

Although it was argued before him that it should be treated as dying declaration as it narrated the background of the facts which resulted in the murder of Muhammad Aslam deceased he did not accord it the status of the dying declaration because Exh. P. B. Was a statement of Rehmat A.I P. W.

4, who was still alive and Muhammad Aslam deceased had only confirmed what Rehmat A.I P. W. 4 had stated. Thus, Exh. P. B. Was not based on the statement of Muhammad Aslam deceased. The trial Judge also held that no inquiry was held by the police to ascertain the truthfulness of the allegations contained in Exh. P. B. Nisar Ahmad and Muhammad Malik were named in the report as collaborators but they were not named in the E.

1. R. Though according to the report Nisar Ahmad Ex-M. N. A. Was the ring-leader of the party. The trial Judge has observed at page 117 of the Paper Book, it was submitted, that Exh. P. B. Proved the enmity between the complainant party and the accused party and that it further showed that there was a political tussle between the accused party on one side and the complainant-party on the other. It was argued that if the accused party was capable of arranging for professional murderers, then there was no reason that having knowledge of the report they should go themselves to commit the murder. The findings of the trial Judge are that the report Exh. P. B. Was only evidence of the motive and the weight to be attached to it depended on the other circumstances of the case. The mere fact that three of the members of the accused party including the appellant, who were real brothers, were named in Exh. P. B. Itself cannot be considered as a ground for believing the ocular version as against the three of them. It is further observed that Exh. P. B. Was evidence of the circumstances which existed at the time of the registration of the said report, though no investigation or inquiry was conducted regarding the truthfulness or otherwise of the allegations contained in the report.

We have carefully considered the arguments of learned counsel for both the sides. In our view Exh.

P. B. Has rightly not been given the status of a dying declaration by the trial Court. We do not consider that it is necessary to determine the question as to whether it stood proved ' or was fictitious having been placed subsequently on the record in order to strengthen the case of the prosecution. However, since Exh. P. B. Is owned by the prosecution at the trial stage by such witnesses as Rehmat A.I P. W. 4, Shafqat A.I P. W. 5 and Muhammad Ashraf P. W. 7, we agree with the finding of the learned trial Judge that even if this report was to be considered as genuine, it proves the pre-existing enmity between the complainant party and the accused party as it indicates that the two factions were involved in a political tussle. In the light of Exh. P. B. Asserted by the prosecution witnesses as genuine, we do not agree with learned counsel for the complainant party that only the appellant and his companions had a motive to murder the deceased and that the complainant side bad no enmity or grievance as against the accused party. In our considered opinion, it was not only the purchase of some land on the part of the complainant side which had made the accused side start civil and criminal proceedings as against them, but the background of previous enmity also indicates that it was due to political rivalry.

We have already pointed out that there are no relevant recoveries in the instant case which could connect the appellant or the acquitted co-accused directly with the commission of crime and serve the purpose of corroborative evidence. We are, therefore, left with the ocular testimony, in the instant case, the medical evidence and the motive version. We have already given our opinion so far as the motive version is concerned. We are convinced in our mind that there existed enmity between the complainant and the accused parties and since this is the position, the ocular testimony must a require a close scrutiny. So far as the medical evidence is concerned, Dr. Abdul Mujib P. W. Had stated that the death was caused by two fire-arm injuries at the back of the deceased. These two injuries which led to the death are as follows:

(1) A fire-arm entrance wound circular in shape 6 holes J' x I' each entering into the chest cavity in an area of 2' x 2' on the right side of back upper part on the inner side of scapula 1' lateral to the spinal cord. There is blackening around the wound with two exit wounds on the left side of neck in the middle 3;4' x 3/4' one pellet also palpable on the left side of neck under the skin which was removed and sealed. Underlying right lung punctured through and through upper lobc and middle lobe at different places. Cavity was full of blood.

(2) A fire-arm entrance wound circular in shape 6 holes -- --- x -- --- each of them entering into the chest cavity in an area of 2' x 2' on the right side of back upper part 2" below Injury No. 1 and on the inner side of scapula lateral to spinal cord. There is blackening present around and inside the wound lower lobe right lung side punctured through and through at different places and heart on both sides punctured through and through.

These injuries were caused from a close distance (about 3 to 4 feet) and were the result of fire- shots from the same type of barrel as both the injuries were exactly similar. The same number of pellets struck the deceased from the two cartridges which had hit the deceased. The area of the wounds of Injuries I and 2 suggested that the shots were fired from almost the same distance. The location of each pellet in both the injuries suggested that the shots were fired from almost from the same distance. The shape and size of wounds of Injuries 1 and 2 suggested that the cartridges were of the same type and make. In the light of the medical evidence, the trial Judge seems to have arrived at the conclusion that probably the job was done by a single assailant who might have fired the two shots. Learned counsel for the complainant vehemently argued that since the routes taken by the pellets of the two shots inside the dead body were different, they could have not been fired through the same weapon of offence by a single assailant.

Since the routes were different, he wanted us to believe that the two shots were fired from the same distance by two assailants through two guns with possibly the same type of cartridges as stated by the eye-witnesses of the occurrence. The reasoning of learned counsel for the complainant is that the ocular testimony, in the instant case, is supported by the medical evidence as well as circumstantial evidence. According to him, therefore, it was erroneous to draw an inference to the effect that the job might have been done by a single assailant. Learned counsel for the appellant argued that a perusal of the medical evidence was at least sufficient to create a doubt that instead of two assailants firing a shot each separately from the same distance, the job may have been done by a single assailant, who fired two shots from the same weapon of offence in which the cartridges were identical. Thus, according to him the possibility could not be ruled out that a single assailant might have committed the murder of the deceased and not more. We will again refer to the medical evidence and its significance after discussing the ocular testimony in the instant case.

The prosecution has produced three eye-witnesses of the occurrence, namely, Rehmat A.I son of Chiragh P. W. 6, Shafqat A.I P. W. 5 and Muhammad Ashraf P. W.

7. Shafqat A.I P. W. 5 is closely related to the deceased being his Phuphizad and Muhammad Ashraf P. W. 7 is brother of Rehmat A.I P. W. 4, who is one of the purchasers of the disputed land along with Muhammad Asbraf R. W. 7.

As it has been pointed out, Rehmat A.I P. W. 4 and the aforementioned two eye-witnesses are also witnesses of motive as set up by the prosecution. The third eye-witness is Rehmat A.I son of Cbiragh P. W. 6, who is stated to be an unconnected person. Iftikhar Ellahi was named in the F. I. R.

As an eye-witness but he has not been produced. Shafqat A.I P W. Is the first informant. He has supported the prosecution version. According to him, on the fateful day he was proceeding to Kirto Bus Stand in order to reach Narang Mandi. The deceased and Muhammad Ashraf P. W. Were at some distance ahead of him on the katcha pathway and they were also going to the Bus Stand. He saw that the appellant and the acquitted co-accused were sitting near the minor. The appellant, his brothers Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, were armed with single-barrelled guns whereas .The remaining two were sitting along with them. -As soon as the deceased and Muhammad Ashraf P. W. Advanced forward, Khizar Hayat alias Muhammad Nawaz, Ejaz Ahmad and Muhammad Yusuf, acquitted co accused, gave out a lalkara that the deceased should notgo alive today whereupon the appellant and Haque Nawaz, acquitted co-accused, from their single barrelled guns fired one shot each which struck the deceased on the back. The deceased fell down on the ground. Iftikhar Ellabi (not', produced) and Rehmat A.I son of Chiragh P. W. 6 were coming behind him on the path way. Thereafter, he, Muhammad Ashraf P. W.

Rehmat A.I son of Chiragh P. W. As well as Iftikhar Ellahi advanced forward to rescue the deceased but Ejaz Ahmad and Muhammad Yusuf, acquitted co-accused, took out their revolvers from the folds of their loin-cloth and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, with his single-baretled gun fired at them and said that if they advanced forward, they would krill them.

Thereafter, the appellant removed the licensed revolver along with the belt from the dead body of the deceased and Haque Nawaz, acquitted co-accused, removed the wrist watch of the deceased.

Then the accused party crossed the cut field of wheat while firing and boarded a white wagon standing there. The wagon drove away towards Kotli Virkan side. In the cross-examination he stated that when he saw the accused party at that time he knew that there was bitter enmity between the accused party and the complainant party on mount of litigation regarding land.

However, he did not raise any alarm to warn the deceased and Muhammad Ashraf P. W. Not to go ahead as the enemies were sitting there. He further stated that first the appellant and Haque Nawaz, acquitted co-accused, had fired one shot each at the deceased and after the removal of revolver and wrist watch 7/8 shots more were fired. Four/five shots in all were fired from the guns in addition to the shots fired at the deceased. No empty cartridge fell down. On the earth at the spot as after firing every shot the members of the accused party would pick up the empties. The acquitted co-accused, who were armed with revolvers, had fired in all 5/6 snots and no crime empties of the revolvers fell on the spot. He also stated that he had got recorded in the F I. R. That when he -saw-the acausod, party-sitting on the way, he had seen one single-barrelled gun in the hand of each, namely, the appellant, Haque Nawaz and Hayat alias Muhammad Nawaz, acquitted co-accused. At this stage the Court put to him a question to the effect that yesterday he bad stated that he saw the guns in the bands of the appellant, Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, only when they fired at the deceased whereas in the F.

1. R. He had stated that when the appellant and the aforementioned other two were sitting on the pathway along with Ejaz Ahmad and Muhammad Yusuf, acquitted co accused, he saw the three of them holding single-barrelled gun each, and that which of the two positions was correct and which incorrect. His reply was that he saw the guns in the hands of the appellant, Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused for the first time only when they bad fired at the deceased. But he further stated that the fact which he stated in the F. I. R. That he saw Fateh Muhammad, appellant, Haque Nawaz and Khizar Hayat alias Muhammad, Nawaz, acquitted co accused, armed with single-barrelled guns when they were sitting on the pathway was also correct. He further stated in the cross-examination that 3/4 months before the registration of F. I. R.

He knew that a report had been recorded in the Roznamcha regarding apprehension of murder at the hands of the appellant etc. And this fact was told to him by the deceased. Rehmat A.I P. W. 4 had not talked with him about the report. The deceased had, not told him that the accused party were arranging for hiring. Professional murderers. He did not caution Rehmat A.I P. W. 4 or the deceased to be careful, because they had enmity with the accused party. The deceased only told him about the earlier report -and he did not advise him for taking legal proceedings for his protection.

We have carefully gone through the testimony of this eye-witness. Learned counsel for the appellant commented that this eye-witness did not mention in his statement as to what was the distance between the assailants and the deceased when the shots were fired at him. It was also submitted that according to this eye-witness a number of shots were fired through the guns as well as through the revolvers but only the deceased had two firearm injuries at his .Back whereas there was no evidence on the record in support of the . Testimony of this eye-witness that numerous other shots had also been fired. It was pointed out that although he claimed to have knowledge of the recording of * Exh. P. B., he made no mention of it in the F:

1. R. He clearly stated that although he knew that there was bitter enmity-between the accused-party and the complainant side, he did not raise any alarm in order to warn the deceased and Muhammad Ashraf P. W. Not to go ahead as the enemies were sitting there. He had stated that both his statements were correct about seeing three of the members of the accused-party including the appellant holding single-barrelled guns i.e. At the time, when he saw them sitting on the pathway as well As the time when they had fired at the deceased. According to learned counsel for the appellant he was a chance witness but since he was closely related to the deceased and belonged` to his. Faction, he was a partisan and interested witness and that, therefore, his testimony should not be accepted without corroboration. On the other hand, learned counsel for the complainant vehemently argued that mere relationship of Shafqat A.I P. W. 5 with the deceased could not make him a partisan or interested witness.. He could only be considered as an interested witness if he had a motive to falsely - implicate the accused patty. According to Iearned-counsel, for the--complainant,-be had no such motive. It was next submitted that he could also not be considered as a chance witness, because the occurrence took- place in the morning, he had an Arhat shop in Narang Mandi and it was natural on his part to proceed to Kirto Bus Stand in order to reach Narang Mandi on the fateful day. Thus, his presence on the pathway while the deceased and Muhammad Ashraf P. W. Were ahead of him was quite natural and, therefore, he should be considered as a natural -witness of the occurrence. It was also argued that he promptly lodged the. F. I. R. In the instant case and as the F. I. R. Had been lodged promptly and there was no reason to doubt the testimony of this eye-witness which was supported by the medical evidence as well as circumstantial evidence, there is no ground on which his testimony should be discarded.

The next eye-witness, in the instant case, is Muhammad Ashraf P. W. 7, who supports the prosecution version. According to learned counsel for the appellant this eye-witness is the brother of Rehmat A.I P. W. 4 and was one of the purchasers of the diputed land. He, like the deceased and Rehmat A.I P. W. 4 had been impleaded as a defendant in the civil suit and as an accused person in the criminal complaint by the accused party. Therefore, according to learned counsel he was also a partisan and interested witness whose testimony should be considered with abundant caution. .It was argued that had he been present along with the deceased, then according to the motive version, as set up by the prosecution; the accused party, who was inimical towards the deceased as well as Rehmat A.I P. W. 4, could have also a motive to murder Muhammad Ashraf P. W. But no injury was sustained by this eye-witness at the hands of the accused party. It was submitted by learned counsel for the appellant that both Shafqat A.I and Muhammad Ashraf P. Ws. Were partisans and interested witnesses, and, therefore, their testimony should not be believed. The case of the defence is that they were not present at the time of the occurrence and had not witnessed the same. The deceased was. Probably done to death by some unknown assailant who had fired two shots at him and the incident was unwitnessed. However, since they were partisans and interested witnesses, they implicated the appellant and his companions because of enmity and possibly on suspicion. They enlarged their not so as to include four members of the same family as well as their Munshi, because the appellant. . Haque Nawaz and Kbizar Hayat alias Muhammad Nawaz, acquitted co-accused were real brothers inter se whereas Ejaz Ahmad, acquitted co- accused,. Was their maternal cousin and Muhammad Yusuf, acquitted co-accused was their Munshi. Learned counsel for -the complainant, on the other hand, argued that although Muhammad Ashraf P. W. Was named as an accused person in the criminal complaint as well as a defendant in the civil suit by the accused party, the accused party had a motive- particularly to murder the deceased and Rehmat A.I P. W. 4 as they were the moving spirits behind the purchase of the disputed land. According to- learned counsel for the complainant shots had also been fired at Shafqat A.I and Muhammad Ashraf P: Ws. But they were not hit. Hence they could not be considered as partisans or interested witnesses as they had no, enmity with the accused-party and had no motive Iv-falsely implicate them. It was again asserted that since the F. I. R. Had been lodged promptly and the account of the occurrence given by these eyewitnesses was consistent with the medical evidence as wall as circumstantial evidence, there was no reason to doubt their testimony.

The third eye-witness, in the instant case, in Rehmat A.I son of Cbiragh P.W.6 who- is-- stated-to- be an-- unconnected person. Hestated that the appellant and Haque Nawaz, acquitted co- accused got up and with their guns each of them fired one shot at the deceased. Both the shots- hit the deceased on the back and the deceased fell down with his face towards the ground. He stated that he was going to the Bus Stand on the fateful day for reaching Narang Mandi for making some purchases and was to board the bus from Kirto Bus Stand. Iftikhar Ellahi (not produced) was accompanying him. Shafqat A.I P. W. Was going ahead of them. The deceased and Muhammad Ashraf P. W. Were also going ahead of there on the katcha path. He stated that the deceased and Muhammad Ashraf P. W. Had passed the accused party and had gone further for some distance when the lalkara was given. Thereafter, the appellant and Haque Nawaz, acquitted co-accused, got up and with their guns fired one shot each at the deceased. He stated in the cross-examination that it was correct that be was challaned for the murder of one Sardar Khan on the F. I. R. Got registered by Azam A.I son of the deceased in that case. He was challaned at Police Station, Narang but be was acquitted by the Sessions Court. He further stated that it was correct that about 15/16 years back he was challaned at Police Station, Narang for the murder of his brother Muhammad A.I. In that case his uncle Jalal and his. Son Ghulam Rasul gave evidence as prosecution witnesses against him. He was convicted in that case. When he was released from jail after undergoing the sentence a case for the murder of Sultan and his wife was registered against him in 1970, but he was acquitted in that case. He further stated that his son Ilyas and brother Siddique were challaned for the murder of Jalal, his uncle, as well as his son Ghulam A.I and his maternal nephew Bashir. This challan was also filed at Police Station, Narang while he was in ,jail, In that case his brother Siddique was sentenced to death and his son Ilyas was sentenced to imprisonment for life and ultimately the death sentence of his brother Siddique was executed. He also stated that he came to know that his son Ilyas while undergoing sentence of imprisonment for life escape, from the jail and thereafter he was challaned by the police for the murder of Talib Mochi, who was a prosecution witness against them in the murder case. He could not tell whether his son Ilyas was declared a .Proclaimed offender and then .He was killed in an encounter with the police. His son Ilyas was killed in the jail. The co-accused of llyas, his son, namely Arif was also killed in the jail. He denied as incorrect that the deceased, in the instant case, Rehmat A.I P. W. 4 as well as Lai Khan, Ex-M.N.A. Used to give help to him in the murder cases in which he faced trial. While commenting on the testimony of this eye-witness learned counsel for the appellant submitted that like the other two eye-witnesses it is evident from the. Testimony of this eye-witness that he was a chance witness. It is also evident from his statement that according to him the deceased had passed the accused party and had covered some distance when the lalkara was given and it was only thereafter that the appellant and Haque Nawaz, acquitted co-accused, got up and with their guns each fired a shot at him which hit the deceased on the back. Learned counsel submitted that this part of testimony of Rehmat A.I son of Chiragh P. W. Was in conflict with the medical evidence, particularly in respect of the distance. It was argued that none of the eye-witnesses, in the instant case, could state as to how close was the deceased to he barrel of the assailant/assailants at the time when the shots had been tlrgd et him. In any case, according to learned counsel the testimony of this eye-witness in regard to the distance between the accused party and the deceased was in conflict with the other two eye-witnesses. It was next submitted that although this eye-witness was not connected with the deceased directly in any way, it is evident from the cross- examination that he was involved in numerous murder cases and had also been convicted in one of them. His son and another member of his family were also likewise involved. According to learned counsel the past conduct and behaviour of this eye-witness as a habitual criminal should affect the credibility of his statement. It was submitted that the prosecution did not produce any really independent witness of the occurrence. The two eye-witnesses, namely, Shafqat A.I and Muhammad Ashraf P. Ws. Were partisan and interested whereas Rehmat A.I son of Chiragh P. W., who claims himself to be the eye-witness of this occurrence was a habitual criminal and, therefore, his testimony requires careful scrutiny. On the other hand, learned counsel for the complainant argued that the personal character of this eye-witness as a habitual criminal/murderer must not stand in the way of accepting his testimony as genuine. 'He might have been convicted in a murder case but that by itself was no bar in accepting his testimony. According to learned counsel the question of distance between the assailant and the deceased at the time of firing of the shots was not important. According to the testimony of Shafqat A.I and Muhammad Asbraf P. Ws., the appellant and Haque Nawaz, acquitted co-accused, had fired one shot each at the deceased as he passed by them. Therefore, when the shots were fired, the deceased was at a distance of probably 3/4 feet from his assailants. Learned counsel also took us through the site-plan which indicated that the distance between the deceased and his assailants was about eight feet. We note that the site-plan maker, namely, Bashir Ahmad Patwari P. W. 2 had stated that he had prepared the site-plan on the instructions of the police as well as on the pointing out of the witnesses. But Zamir Ahmad S. I. P. W. 16 has stated in the cross-examination that during investigation it did not come on the record as to at which place the deceased and the accused party. Were at the time of firing or what was the distance between the accused party and the deceased at the time of firing. In any case, learned counsel for the complainant could not satisfy us as to how to reconcile the statement of Rehmat A.I son of Chiragh P. W. With the other two eye- witnesses about the distance between the deceased and his assailants at the time of firing. As it has been pointed out earlier, Rehmat A.I son of Chiragh P. W. Had stated that the deceased had passed the accused party and had covered some distance when the lalkara was given and it was thereafter the shots were fired at him.

Learned counsel for the appellant argued that the F.

1. R., in the instant case, was lodged after the recording of the inquest report by the Investigating Officer. The inquest report is Exh. P. O. In the cross-examination Zamir Ahmad S. 1. P. W. Had stated that in the inquest report he had recorded as `A to A' that along the Patti of Rajbah Fateh Muhammad appellant, Haque Nawaz, Khizar Hayat alias Muhammad Nawaz, Ejaz Ahmad and -Muhammad Yusuf, acquitted co-accused, were sitting and in this portion he,did not mention that the appellant, Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, each were armed with single-barrelled guns. However, in the F. I. R. It was recorded that the appellant, Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, were armed with single-barrelled gun each while sitting in the way.

He had recorded in the inquest report in the portion `B to B that Fateh Muhammad appellant and Haque Nawaz, acquitted co-accused, fired one shot each from their guns at the deceased and in portion `B to B' he did not mention that the guns were single-barrelled. It was correct that he did not mention in the inquest report about the single-barrelled gun in the hand of any of the members of the accused party. It was correct that in portion `C to C' of the inquest report he had recorded that Khizar Hayat alias Muhammad Nawaz, Ejaz Ahmad and Muhammad Yusuf, acquitted co-accused, fired shots from their revolvers in the air towards the witnesses. But in the F.

1. R. It is recorded that Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, fired in the air towards the witnesses with the gun. He had recorded in portion `D to D' of the inquest report that Fateh Muhammad appellant then removed the licensed revolver of the deceased from his waist and wrist watch from his wrist. But in the F. I. R. It is recorded that Fateh Muhammad appellant took the licensed revolver along with the belt from the waist of the deceased and Haque Nawaz, acquitted co-accused removed the wrist watch of the deceased from his arm. In the inquest report he did not show the presence of Rehmat A.I son of Chiragh P. W. 6 near the dead body when he reached there. He denied that the first document prepared by him in this case was the inquest report and by the time of the preparation of the inquest report he had not yet recorded the F. I. R. He stated that he had the copy of the F.

1. R. With him when he prepared the inquest report. The contradictions in the F.

1. R.

And the inquest report now pointed out to him in the cross-examination were inadvertent. He discovered these mistakes only during the cross-examination. He also denied that he had tampered with the record dishonestly in collusion with the complainant party and then made improvements in the F. I. R. At the insistance of the complainant party.

According to learned counsel for the appellant Exh. P. B. Was subsequently prepared 3n. This case due to the influence of the complainant party in order to strengthen the case of the prosecution. In this connection learned counsel again took us through the cross-examination of Zamir Ahmad S. I.

P. W. He stated that before recording the F. I. R. He knew that the deceased bad recorded a Roznamcha report against the accused party 5/6 months before the present occurrence but it was recorded before his posting at Police Station, Narang. He did not remember as to what proceedings were taken by the police on that report. He had seen the Roznamcha register of the relevant period after registering the F. I. R. Of this case on 6-5-1975. The Roznamcha register was in the same condition in which it was present in the Court and it was in loose sheets tagged from corner with thread and there were no page numbers. There were no serial numbers of the pages on each leaf, A leaf of similar type of paper of the Roznamcha could be added to it at any stage. On 15-10-1974 no report at the instance of the deceased was recorded in the Roznamcha register. But there were signatures of the deceased at the close of the report Exh. P. B. These signatures were not put in his presence. He did not see any admitted signatures of the deceased during investigation of this case. He denied that in collusion with the complainant-party he fabricated Exh. P. B. By committing forgery. He also denied that he called the Moharrir Head-Constable at the relevant time after registering the present case from Sharaqpur and destroyed the original leaves in the Roznanicha register and substituted the same by other papers containing the report of the deceased. He denied that the signatures of the deceased were forged. There was no reference in the F. I. R. In respect of the earlier report. The report was dated 15-10-1974 and was recorded by Rehmat A.I P. W.

4 and not by the deceased. Before the registration of F.

1. R. He did not know that Fateh Muhammad appellant, Haque Nawaz, Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, Nisar Ahmad and Muhammad Malik had prepared as plan for the murder of Rehmat A.I P. W. 4 and the deceased, because he had not perused the Roznamcha report before the registration of F. I. R. He could not tell the names of those persons who told him about the recording of Exh. P. B. Before the registration of F. I. R. He did not care to read Exh. P. B. Before the registration of F. I. R. As he did not think it necessary. He did not inquire from Shafqat A.I P. W. About Exh. P. B. He further stated that it was correct that Nisar Ahmad, ex-MNA was an Advocate of Ferozewala and he was elder brother of Ejaz Ahmad, acquitted co-accused. During investigation he did not make any inquiry in respect of the special secret sources through which Rebmat A.I P. W. 4 had received the information about the murder plan. He did not investigate on the point that the persons named in Exh. P. B. Had sent persons for hiring the services of professional murderers. During investigation the complainant- party did not produce any evidence before him regarding the special secret sources from which they had received the information and about the facts that some persons had been sent for hiring professional murderers. He did not investigate on the point whether Rehmat A.I P. W: 4 had taken any legal proceedings, after recording Exh. P. B. Against the persons named therein. During investigation Rehmat A.I P. W. 4 did not produce any . Evidence before him regarding the legal proceedings, if any, taken by him. He admitted that Saeed Ahmad A. S. L, to whom Exh. P. B. Was sent for inquiry accompanied him when he went to the spot for investigation of the case after registration of F. I. R. In the present case. During investigation he did not record any statement of Saeed Ahmad A. S. I. To ascertain as to whether he had made any inquiry in respect of Exh. P. B.

During investigation he did not probe about the white wagon in which the accused-party allegedly went away and he also did not probe about the owner or driver of that wagon or its number plate.

During investigation Rehmat A.I P. W. 4 did not produce any evidence about the inquiry, if any, conducted by Saeed Ahmad A. S. I. In respect of Eith. P. B.

It was argued by learned counsel for the appellant that the testimony of the eye-witnesses, in the instant case, had been appraised by the trial Judge in the background of the party-faction in the village and he arrived at the conclusion that although independent evidence was available, in the instant case, but because there existed grave party-faction the people, who were independent, did not come forward to give evidence. He drew this inference in the light of the testimony of Rehmat A.I son of Chiragh P. W. 6, who had. Stated that the place of occurrence was at a distance of 45 karats from Kirto Bus Stand and that one Muhammad Tufail was running a shop at the Bus Stand. It was admitted in the prosecution evidence that there did exist a shop at Kirto Bus Stand and buses passed after every half an hour from Kirto Bus Stand and according to Inayat A.I P. W. 8 people from village Kirto and Bhundari boarded buses from this Bus Stand for going to Narang as well as Muridke. It has also been admitted that persons, who wanted to go to Narang or Muridke used to board buses from this Bus Stand. According to Rehmat A.I P. W. There were 1600/1700 voters in the said village and there were quarters of Pansal Nawees near the syphun of Kala Shah Kaku minor.

There were also tube-wells around the place of occurrence at a distance of about 2Killas to 5 Killas where the operators were supposed to remain on duty for 24 hours. Since the Kirto Bus Stand was commonly used by the people, it was natural that during day time before the opening of the Courts, many people boarded buses and there was usually rush during the morning hours.

Nevertheless, independent witnesses did not come forward for the reason stated by the trial Judge.

Learned counsel further submitted that Muhammad Ashraf P. W. Was real brother of Rehmat A.I P.

W.

4. The wife of Rehmat A.I P. W. 4 and wife of Ghulam A.I, uncle of the deceased,. Are real sisters.

This Gbulam A.I is maternal-uncle of Muhammad Ashraf P. W. The' mother of Shafqat A.I P. W. Is sister of Inayat A.I, who is father of the deceased. Iftikhar Ellahi, who had been named as eye.

Witness, was not produced but he was also closely related to Rehmat A.I P. W.

4. Thus, Shafqat A.I and Muhammad Ashraf P, Ws. Are not only closely related to the deceased but Muhammad Ashraf P: W. Is also implicated as an accused-person with the deceased and his brother Rehmat A.I P. W. 4 in .The complaint case instituted by the accused-party. He has also been included as a defendant in the civil suit. Therefore, they could not be-considered to be independent witnesses in view of they partyfaction. They haveto be regarded as interestedwith. This is the finding of the trial Judge in respect of these two eye-witnesses. So far as Rehmat A.I son of Chiragh P. W. 6 is concerned, he is unconnected and has no relationship with the complainant-party. The presence of this eyewitness is not shown at the time of the preparation of the inquest report. In any case, the perusal of the cross-examination of this eye-witness indicated that he himself was involved in a number of murder cases and although he might be considered as having got no enmity with the accused- party, but still due to his past conduct and behaviour it was not safe to rely on his testimony without corroboration coming forth from an independent source. According to learned counsel, in the light of the findings of the trial Judge, Shafqat A.I and Muhammad Ashraf P. Ws. Being closely related to the deceased were interested witnesses and Rehmat A.I son of Chiragh P. W. 6 was also not an independent witness as it was not safe to. Rely upon his testimony due to his being a habitual criminal. The ocular testimony, in the instant case, is uncorroborated. There is previous enmity existing between the complainant-party and the accused-party and consequently, in the peculiar circumstances of this case, it was necessary for the dispensation of justice that the Court must look for independent corroboration of testimony of each of the eye-witnesses against each of the members of the accused party.

It was submitted by learned counsel for the appellant that-the trial Judge has not ruled out the possibility that the F. I. R. Was recorded - after the preparation of the inquest report for the reason that Zamir Ahmad S. I. P. W. Was a graduate and the trial Judge did not think that if he had copied the inquest report from the F. I R:, as. Stated by him, such material contradictions should have occurred. Since this was the position, it was submitted that there was no substance in the reasoning that the F. I. R. Was lodged promptly. Learned counsel for the appellant argued that grave doubts have been expressed by the trial Judge about the credibility of the three eye- witnesses as they had not been relied upon in respect of the acquitted co-accused in the instant case. There was no independent corroboration of their testimony. It was argued that the case of the appellant was identical to that of the acquitted co-accused, particulary Haque Nawaz, who was ascribed an identical part. It was submitted that the ground on which the conviction and sentence of the appellant were based was that the trial Judge, after expressing his opinion; about the three eye-witnesses and not relying upon them for the convictipn of the acquitted co-accused, relied on the following pieces of circumstantial evidence as corroborative evidence. These were (a)

Exh. P. B. (b) the motive as set up by the prosecution, (c) the non-appearance of the appellant before the Magistrate on 6-5-1975 and (d) the abscondence of the appellant after the occurrence.

The reasoning of the trial Judge for the appellant's conviction and senence was that he had a strong motive against the deceased, he filed criminal complaint as well as a civil suit against the deceased, he did not appear before the Magistrate on the date of hearing of the criminal complaint on 6-5-1975 as be was the complainant in that case and it was necessary for him to appear before the Court on that date and finally that he remained an absconder for eleven months after the occurrence and has not given any satisfactory explanation for his abscondence.

He was declared a proclaimed offender and his property was attached. Consequently, it was impossible that he should not have known about the case. According to the trial judge, it was due to his abscondence that the weapon of offence could not be recovered. Thus, the ocular testimony against the appellant, according to the trial judge, was corroborated by motive , his abscondence Exb. P. B. And his absence from the Court on 6-5-1975 as is evident from the order of the Magistrate Exh. P. T. It was submitted by learned counsel for the appellant that the pieces of evidence which the trial Judge considered as independent corroboration of the tainted ocular testimony were not strong enough on which conviction and sentence awarded to the appellant could have been based. It was submitted that it was a case in which the ocular testimony was inherently tainted and unreliable and, therefore, it should have been rejected altogether. If the testimony itself was partisan, interested and unreliable, no corroboration should have been looked for. The trial Judge proceeded to apply the principle of sifting the grain from the chaff. If this principle was to be applied, then corroboration must come from such strong independent source which brings only conviction to the judicial mind and it must not be based on pieces of circumstantial evidence. In respect of Exh. P. B. It was argued that the nature and condition of Roznamcha register indicated that a paper in it of the nature of Exh. P. B. Could be added at any stage. There was no mention of Exh. P. B. In the F.

1. R., although the maker of the F. I. R. Claimed to have known that it had been recorded and so did the investigating Officer claim. Furthermore, Rehmat A.I P. W. 4, who was the star motive witness did not mention anything about it in his statement under section 161, Cr. P. C.

Despite the fact that he claimed himself to be its recorder and signatory. The Investigating Officer did not take any steps to get the signatures of the deceased proved if it was alleged that he had signed the same for confirmation of its contents. It was submitted that the recorder of Exh. P. B., namely Abdul Haque H. C. P. W. 3 had stated in the cross-examination that he was transferred to another police station at the time of registration of this case. Then no action was taken by the police under section 107/150, Cr. P. C. As Saeed Ahmad A. S. I., to whom the matter was referred to for inquiry, was not produced. Similarly, no action thereon was taken by the maker of Exh. P. B., namely, Rehmat A.I P. W. 4 or even the deceased while he was still alive. On the basis of these arguments, it was submitted that Exh. P. B. Was a spurious document which should have not been relied upon or treated as a corroborative piece of evidence. It was next submitted that the trial Judge was correct to arrive at the conclusion that extreme enmity had existed between the parties not only due to litigation in respect of the purchase of the disputed land but also because of the election tussle. Consequently, if the accused party had a motive to harm the complainant side, then the complainant side also had a motive to falsely implicate as many members of the accused party as they could. It was submitted that in the background of enmity between the parties, it was not safe to rely on Exh. P. B. And similarly no such inference could be drawn that the accused party, particularly the appellant, only had a motive to murder the deceased. It was then argued that even if Exh. P. B. Was to be considered as a genuine document, then what was its worth in evidence ? It only proved that there was pre-existing eLmity between the parties, it did mention names of persons who had not been subsequently implicated in this case and the theory of hired murderers had also been advanced in it. Furthermore, some of the persons, who were named in Exh. P. B. Or were subsequently implicated in the instant case, bad been acquitted by the trial Judge, particularly Haque Nawaz, who had been ascribed the same part as that of the appellant. If this was the position, then why should it be believed that the appellant had committed the murder of the deceased? It was next argued that the absence of the appellant on 6-5-1475 in the Court of the Magistrate could not be considered as a corroborative piece of evidence because by the time the Magistrate took up the matter it wits generally known that the deceased had been murdered.

As is evident from Exh. P. T. None of the parties had appeared before the Magistrate except Mr. Khalid Masood, Advocate, who was counsel for Nawabzadi Sajda Sultana and he had informed the Court that due to the murder of the deceased no one had appeared on that day. It was submitted that the mere absence of the appellant in such circumstances was not sufficiently strong piece of corroborative evidence on which his conviction and sentence could be based. It was then argued that the appellant did not abscond after the commission of crime and the trial Judge was not justified in arriving at the conclusion that there was sufficient evidence on the record of his abscondence immediately after the occurrence and that he could not give any satisfactory explanation as to why he had disappeared. We note that the occurrence took place on 6-5-1975.

On the followingpday i. e. 7-5-1975 Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, brother of the appellant was arrested by Zamir Ahmad S. 1. P. W. Three days thereafter i. e. On 10.5- 1975 Haque Nawaz, his other brother, and Muhammad Yusuf, acquitted co-accused were arrested by the same Police Officer. Thereafter, on 20-5-1975 Ejaz Ahmad, acquitted co-accused, was arrested by the same Police Officer. However, the appellant was arrested on 15-4-1976 from District Sahiwal i. e. After a period of about eleven months by Muhammad Ashraf D. S. P. P. W.

13. Amanat A.I, F. C. P. W. 12 bad stated that he received the warrants of arrest of the appellant on 17-5-1975 and searched for him in his area. He also searched for the appellant in Mauzas Kirta, Bhandori, Adhian and other villages but the appellant.Was not traceable. He submitted his report and his statement, was also recorded by the Magistrate when proceedings under section 8/88, Cr. P. C. Were taken against the appellant. Zamir Ahmad S. I. P. W. 16 had stated that be gave an application to the .Magistrate at Ferozewala for taking proceedings under sections 87/88, Cr. P. C. Against the appellant. This application is Exh. P. Q. At pages 160, 161 of the Paper Book. On this application the statement of Amanat A.I F. C. P. W. Was recorded by the Magistrate and then the proclamation was issued that he was a proclaimed offender. Subsequently, through Exh. P. S. Warrant of attachment was issued by the Magistrate and application Exh. P. H. Was submitted for the appointment of receiver. Learned counsel for the appellant argued that the proceedings under section 87/88, Cr. P.

C. Had not been properly conducted and the proclamation, in the instant case, was also not properly made. In this. Connection he relies on Wall Muhammad v. The State (PLD 1973 Posh. 135) in which it had been held that the publication of the written proclamation under section 87/88, Cr. P.

C. Was necessary. But in our considered opinion, in the light of evidence on the record, the trial Judge was correct to. Arrive at the conclusion that the appellant had absconded after the occurrence, was declared a proclaimed offender and had not been able to give any satisfactory explanation of his disappearance when he was eventually arrested. In our view, the abscondence of the appellant,, therefore, stands proved. But 'at this stage learned counsel for the appellant argued that the trial Judge has mainly based the conviction and sentence of the appellant on the ground that he regarded his abscondence as a strong corroborative piece of evidence of the ocular testimony in the instant case. It was submitted that .Had he not absconded, his position would have been identical to that of Haque Nawaz, acquitted co-accused, who had been ascribed the same part as that of the appellant but was acquitted as there was no corroboration of the ocular testimony in his case. It was argued that if the eye-witnesses, in the instant case, are unreliable and their testimony, by itself, was not worthy of any credit. Theft in such circumstances no kind of corroborative- evidence would have any value. Reliance was placed on Yousaf v. State (P L-D-1963 Lah. 274) in which it was held that if the ocular evidence was disbelieved, then the recovery of incriminating article would not, by itself, prove the prosecution case. Reliance was also placed on Rahmat Baksh v. State (1970 P Cr. L j 1292) in which it was held that the evidence of two eye-witnesses having been disbelieved on good reasons, any number of corroboration thereof could not improve the lot of the prosecution, because the direct evidence having failed the corroborative evidence was of no help. Then reliance was placed on Rehmat v. The State (PLD 1959 SC (Pak`)109) in which it was held that where entire case rests on ocular evidence, which is subjTct to such general doubts,. It was obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. It was argued that if circumstantial evidence was to. Be considered as corroborative evidence, then it must always be narrowly examined because evidence of this kind could be fabricated in order to cast suspicion: It was necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there were no other co-existing circumstances which would weaken or destroy the inference. In this connection reliance was placed on Lejzor Teper v. The Queen (PLD 1952 P. Cr 119). It was then submitted that if the evidence of eye-witnesses was disbelieved against four accused, it must be profoundly convincing for convicting the fifth accused i. e. The appellant. Reliance in this connection was placed on Mahla Singh v. Emperor (AIR 1931 Lah.38 .). It was argued that the, abscondence of the appellant, even if held to be proved, then it only gave sort a kind of support to another evidence which must be strong enough to sustain conviction. If the ocular testimony was unreliable, the abscondence of the the appellant cannot provide any corroboration of the same as it was not effective, by itself, to remedy the defects in evidence led to show absconding Accused's participation in the crime.

Reliance was placed on Mesal v. Crown (1971 S -C M R 239). It was submitted that if the evidence of prosecution witnesses was neither conclusive nor inspiring confidence, then mere fact of abscondence of the accused, after commission of crime, would .Not 'serve to establish his guilt beyond reasonable doubt. Reliance was placed on Abdul Rauf v. Crown (1971 SCMR 256). It was argued that it is part of human nature that when a person is named as a, murderer, he rightly or wrongly usually makes himself scarce. It would, therefore, be necessary that the Court should be satisfied independently that the evidence in the case was, in quality and quantity, adequate to support a conviction of the offence charged. Reliance was placed on Siraj Din v. Kala (PLD-1964 S G 26). It was submitted that absconsion was a very weak form of corroboratory evidence and it can never, by itself, remedy defects in evidence for prosecution. If extreme enmity was pre- existing- between the parties, as in the instant case, then the evidence of absconsion, in such circumstances, was not sufficient to cure infirmities in ocular evidence. Reliance in this connection was placed on Machia v. State (P-L D 1976 S G695). In that case 1971 SCMR 239 was relied upon.

Reliance is also placed in this connection on Rash id v. State (1377 -P-fir. L J 581) in which it was held that evidence of motive and absconsion of accused alone was not sufficient to sustain conviction on a capital charge. Similarly, reliance was placed on Muhammad Anwar Khan v. State (NLR 1980 Criminal Lahore-62-). In that case the appellant remained an absconder nearly for two months after the occurrence involving double murder. The tri91 Court used the appellant's absconsion as corroboration of eye-witnesses. Peculiar features of the case warranted conclusion that any one in appellant's position would be impelled to avoid rigours of investigation by Police. The appellant, however, voluntarily surrendering-held that to view of quality of evidence in that case factum of abscondence cannot be used against the appellant as a material furnishing badly needed corroboration as it would be highly unsafe to do so in circumstances of the case. Reliance was also placed on Aminullah v. State (PLD 1976 SC 629) in which it was held on the basis of Law of Evidence by Muhammad Munir (1974 Edition, page 61) that absconding was equally Consistent with the innocence and guilt and that it was a proper matter to be considered along with the other factors of the case whether they bear upon guilt or upon innocence. Different persons were differently constituted and that some accused persons, though innocent, deliberately abscond rather than face the ordeal of a criminal trial. Sheikh Naseem Hassan, Advocate learned counsel for the complainant supported by learned counsel for the State firstly argued that in the light of the motive as advanced in the F. I. R. And supported by Exb. P. B., it was only the accused party which had the motive to murder the deceased of Rehmat A.I P. W. 4, because the accused party had started civil and criminal litigation against the complainant side and that the complainant side bad apprehension of attack from the accused party. It was then submitted that the F. I. R. Was lodged promptly in the instant case by Shafqat A.I P. W. :n the circumstances, when the complainant side had no enmity with the accused party and the occurrence was reported to the police promptly in which the appellant and the acquitted co-accused were named as culprits at the earliest opportunity, then all the members of the accused party should have been convicted and sentenced in accordance with law. In this connection reliance was placed on Masam v. State (1972SCMR591), and Abdus Sattar v. Muhammad Anwar (PLD1974SC266), in which it was held that if the F. I. R. Had been lodged promptly, then it was a circumstance which should exclude possibility of false mention of culprits in the F.

1. R. As a result of consultation or manipulations. The same principle was laid down in Abdur Rashid v. Umid A.I (PLD 1975 SC 227), Khalil Ahmad v. State (1975 SC M, R, 442.)f Abdullah v. State (1976 P Cr. L J 584) and Muhammad Sharif v. Muhammad Javed (PLD 1976:5-C 452), in which it was held that if the case was one of broad daylight occurrence and all accused were specifically mentioned in promptly lodged report, version disclosed in the F. I. R.

Receiving full support from medical evidence, then, in the circumstances, it was not necessary to look for corroboration. . In Muhammad Khan v. State (-P L D1964 Pesh.-194), it was held that if unblemished version was disclosed with promptitude in initial report containing no inherent improbabilities and prima facie g: ring a natural and convincing account of occurrence inspiring confidence and later supported at trial by ocular evidence, such version should usually be accepted as true unless a plausible alternative hypothesis is revealed by circumstances of the case or defence evidence. It was argued that none .Of the eye-witnesses should be considered as a chance witness, because they were waqf arers, who were proceeding from village to the Bus Stand therefore, were natural witnesses. In this connection reliance was placed on Javed Ahmad v.

State (-197& S- C M R 114), is which it was held that when a crime was committed on a public thoroughfare or at a place which was frequented by public generally, then the presence of passers-by, held cannot be rejected by describing them as chance witnesses unless such witnesses were unable to give satisfactory explanation of their presence or their testimony was inherently weak or contradictory. The same principle was laid down in State v. Fateh Sher (- P-L-D 1970.-SC 431). It was then submitted that so far as Shafqat A.I and Muhammad Ashraf P. WS. Were concerned, they may be closely related or connected with the deceased, but if they themselves were bearing no enmity with the accused party and had no motive to falsely implicate them and furthermore if the circumstances indicated that they were in a position to witness the occurrence and the first information report was lodged with promptitude, then such witnesses should be relied upon. Reliance was placed in this connection on Muhammad Din v. State (1976 S-C M R-185). It was submitted that according to the version of these eye-witnesses, one shot each was fired at the deceased by the appellant and Haque Nawaz, acquitted co-accused from the same distance when the deceased passed by them and probably the same kind of cartridges had been used from two separate single-barrelled guns by two separate assailants. This was supported by the medical evidence. But the opinion of the Medical Officer to the contrary was merely a speculation.

It was next argued that Rehmat A.I son of Chiragh P. W. 6 was an independent witness, who was neither connected with the complainant side nor had any enmity with the accused-party.

According to learned counsel there was no reason why his testimony should be discarded.' The mere fact that he was involved in murder cases (in some of which he was .Acquitted or discharged) was not sufficient to disqualify him as an eye-witness and it was no ground for doubting his veracity as such. In support of this learned counsel relied on Shafoo v. State (1968,S-C M 8,719). It was submitted that a person of bad character could be a credible witness. It is the inherent worth of his statement that would matter and not his character. In this connection reliance was placed on Abdul Hakim v. State (P Lt D- 191 1- Kar. 239). It was argued that if the name of this eye-witness did not figure in the inquest report,. Then it was not necessary to mention the names of eye-witnesses in the inquest report as laid nown in Ibrahim v. State (_1968-P-Cr_L J 1844). In that case it was held that it was not incumbent upon the Police Officer under section 174, Cr. P. C. To give the names of the witnesses in the inquest report. However, it was further held that apart from this the Court. Had the explanation of the Police Officer himself that because there was a large crowd milling around him and there was great noise when he arrived at the spot, he could not inquire at that tune as to whether anybody had, seen the incident but busied himself in making the inquest report of the deceased and taking other steps. It was further argued by learned counsel that the eye-witness account of the occurrence was consistent, was supported by medical evidence as well as the motive and, therefore, it should have been believed and relied upon not orly so far as the appellant was concerned, but also in respect of the acquitted co-accused who should have been likewise convicted-and sentenced according to . Law. It was then -pointed out that in respect of some of the members of the accused pasty, particularly Muhammad Yusuf, acquitted co- accused, no cross-examination was made by his counsel, as is evident from pages 24, 29, 31, 33, 41, 50, 57, 63, 65 to 70, 85 etc. Of the Paper Book. It was submitted that if a witness is -not subjected to cross-examination in respect of a particular accused person, then then the testimony of that witness as given in the examination-in-chief must be accepted. In this connection reliance was placed on Said Munir v. State (-PLD 1964 Pesh, 194), Waqqar Ambalvi v. Fogir A.I (1969-C M-Rr 189), and Kala v. State (1974 PCrL.J 537). It next argued that interested witness was one who bad motive for falsely implicating the accused person. Corroboration of his testimony did not necessarily mean word of an independent witness but anything in the circumstances which tended to satisfy the Court that- the witness bad spoken the truth. Thus, according to learned counsel, even interested witnesses can be relied upon if their testimony is corroborated by circumstances. In the instant case, the number of persons named as culprits was consistent with the kind of the crime committed. The persons named were such as were expected to join the attack and the testimony was consistent with the medical evidence. Consequently, no further corroboration of their testimony was required, because it cannot be said that it was an inflexible rule that the statement of an interested witness should never be accepted without corroboration.. In this connection learned counsel placed reliance on Nazir v. State (P L,D 1962 SC-269). It was submitted that the accused-party had a motive to kill the deceased and the eye-witnesses of the occurrence had no enmity to falsely implicate the accused party. Their account supporting the prosecution version was in turn corroborated by the medical evidence as well as abscondence of the appellant. In such circumstances, the contention that interested relation witnesses must invariably be corroborated before relying upon their testimony was not necessary as this was not an inflexible rule of law.

Reliance was placed on Khushi Muhammad v. State (1976 PCrLJ 932). It was then argued that even if the witnesses were to be considered as partisan and inimical, it did not mean that they must perjure because such witnesses tray depose truth while on oath. There was nothing inherently improbable in acceptance of such evidence. The Courts, in such circumstances have to examine truth of, version coupled with circumstances of each case. - If the witnesses are found to be natural and the F. I, R. Was made promptly and the conductof the witnesses was not unnatural after occurrence, then the principle that testimony of partisan or inimical witnesses should ordinarily be discarded could not be made applicable. Reliance was placed on Ghulam Muhammad v. State (PLD 1969 Lah), and Nazir Hussain v. Muhammad Shad (PLD 1965 SC118). Then learned counsel submitted that the factum of absconsion in the case of the appellant had been accepted as proved by the trial Court in the instant cage. He drew our attention to the proposition that absconsion of an accused person can be considered as a corroborative piece of evidence even in such a case where the testimony has come forth from an interested witness. In- -Gul Hassan v. State (P LD 1969 SC 89), absconsion was considered as corroboration of the testimony of interested witnesses. In that case four persons -had been convicted of an offence: There was blood-feud between the parties and two eye-witnesses produced' - were interested. Benefit of doubt was given to two accused persons but conviction of the remaining two was maintained as they had absconded after incident and this circumstance was considered sufficient corroboration of their participation in the assault. The contention that two accused having been acquitted, conviction of the remaining two on the same evidence could not be maintained, was held to be not valid. In Muhammad Bashir v. State (1970SCMR35 ), it was held that the fact that the accused absconded after murder and was arrested from -a distant place was an important circumstance against the accused. In Muhammad Din v. State (PLD1975SC160), it was held that abscondence of an accused is a corroborative circumstance. In that case the statement of the prosecution witness was corroborated by the accused's abscondence from village for nearly 17 months and explanation given by the accused was not supported by any evidence on the record. Explanation for abscondeace was held to be rightly rejected by the Courts below. In Mushtaq Ahmad v.

Siddiqullah (-PLD 1978 SC), the murder case rested principally on the testimony of two eye- witnesses, who' were related to the deceased, medical evidence, motive and the ,act. Of absconding of accused after occurrence. Conviction was recorded by`the trial Court, but the High Court in appeal against conviction had set aside the conviction and acquitted the convict. In appeal before the Supreme Court the judgMent of the High Court was set aside by the opinion of the majority that when the testimony of the eye-witnesses was supported by motive, medical evidence and the fact that accused had absconded after occurrence, the acquittal was improper and the judgment of the trial Court convicting the respondent was restored. In Allah Din v. State (-PLD 1978 SC), it was held in a - case where the abscondence of the accused was proved, although it was not conclusive by itself to establish the guilt, its probative .Value depended on facts and circumstances of each particular case, yet it was universally admitted as evidence of guilt of the accused. In A.I Khan v. State (P ,L D 1980 SC 109), it was held that final determination of place and weight to be given to abscondence for proving a case beyond reasonable doubt depended upon facts of each case, antecedents of absconder, his occupational habits and limitations, period of abscondence, specifc explanation for abscondence, all such factors are to be considered in juxta position with other evidence on record for evaluating weight to be given to the abscondence. If the eye-witnesses are natural, found to bd present, capable of identifying culprits and held to have truthfully deposed a'lout the event and corroboration was sought not under a mandate of law but more on the basis of established principle of judicial caution, then abscondence, in such a case, held may prove decisive. It was finally argued by learned counsel for the complainant as supported by the State counsel that when all the members of the accused party had motive to kill the deceased, the eye-Witnesses of the occurrence, although related to the deceased, were natural witnesses and had no enmity with the accused party, their account of the occurrence was consistent with the medical evidence and supported by the motve version and furthermore when it was corroboratedby the abscondence of the principal accused, namely, the appellant, then the ocular testimony must be accepted as reliable in respect of not only the appellant but also the acquitted co-accused, who should be .Convicted and sentenced in accordance with law.

We have carefully considered the arguments advanced by Mr. Ejaz Hussain Batalvi, learned counsel for the appellant, and Sheikh Naseem Hassan, learned counsel for the complainant as well as Mr. Nemat Khan, learned counsel for the State. The case was heard for a number of days and we appreciate the assistance provided by learned counsel for the parties. So far as the motive is concerned, it has been argued by learned. Counsel for the complainant that the trial Judge had accepted the contention of the prosecution that Exh. P. B. Was got recorded a couple of months before the registration of this case. He has submitted before us that a perusal of Exh. P. B. Along with the motive as set up in the F. I. R. Of this case, it was evident that the accused party had a motive to kill the deceased and not that the complainant-side had any hostility or grievance as against the accused-party. The effect of the pre-existence of enmity between the parties may vary from case. To case. The hostility may be one-sided or mutual. The accused party may have a motive to get rid of the complainant party or the complainant party may have a motive to falsely implicate as many members of the accused party as it was possible. This may be determined by the facts of each case. In the instant case, in our view, it is not necessary to determine as to whether Exh. P. B. Was recorded before the registration of the present case or was added subsequently in order to strengthen the prosecution case against the accused party as contended by learned counsel for the appellant. In Exh. P. B., besides the appellant and his brothers, some other persons had been named, who were planning to murder the deceased or Rehmat A.I P. W. 4.

Similarly, there was also a suggestion that men had been sent for hiring professional murderers in order to accomplish this task. Rehmat A.I P. W. 4 has claimed before the trial Judge that he got Exh.

P. B. Recorded and was signatory of the same The document cannot be treated as a dying declaration because its recorded was still alive. The trial Judge was, therefore, correct in not treating the document as a dying statement for the reason that the deceased, in the instant case, had merely confirmed the contents thereof and we are uncertain as to whether the signatures of the deceased on the 'same had been proved. Learned counsel for the complainant wants us to draw the inference that since the deceased had apprehension from the accused party that they would,' murder him, and subsequently in the F. I. R. It was also stated that the accused-party had a motive to murder the deceased as they had initiated civil and criminal litigation against the deceased and others, only the accused party had a motive to kill the deceased whereas the complainant side did not have any grievance or grudge as against them. But we are not incline to agree with this proposition. Since Exh. P. B. Has been owned by the prosecution side, the inference which can be drawn therefrom is that there existed enmity between the parties not only because the accused side had started litigation against the complainant side in the civil as - well as criminal Courts because of their purchase of some land, but there was also political rivalry which had existed between the two factions. Thus, the irresistible inference which can be drawn from the perusal of this document and the F. I. R. Is that the hostility between the parties was mutual. This fact is also supported by Shafqat A.I P. W., the first informant, who had stated in the cross- examination that extreme enmity existed between the accusedparty and the complainant side.

Even the trial Judge had given the finding that in the background of pre-existing enmity corroboration of the ocular testimony was necessary qua the participation of each member of the accused-party in the instant case and it was for this reason that he proceeded to apply the- principle of sifting of evidence. Our conclusion; therefore, is that if the accused party had a motive to do away with the deceased, the complainant party bad also a motive to enlarge its not and to rope in as many members of the accused side as possible. If there is existence of background of extreme enmity, it is necessary for the judicial mind to adopt an attitude of caution while making an assessm ent or appraisal of the ocular testimony, particularly when corroboration is not coming forth from an entirely independent source.

Learned counsel for the complainant has further argued that the F: I. R. Yeas lodged promptly, in the instant case, and, therefore, this fact, by itself, rules out the possibility of false implication. He has cited many authorities in support of his contention. But the point which requires determination is as to whether or not the F. I. R. Had been promptly lodged. We have.Carefully scrutinized the record in this connection and our view is that the trial Judge was correct in arriving at the conclusion that the inquest report was made before the recording of the F. I. R., in the instant case, otherwise there would have been no contradictions in the F. I. R. And the inquest report. If the inquest report was prepared before the recording of the F. I. R., as it has happened in the instant case, one cannot say emphatically that the F.

1. R. Was promptly lodged. Consequently, when the police had been informed about the occurrence, it is probable that the Investigating Officer first proceeded to the spot and prepared the inquest report. Thereafter, he may have thought of getting the F. I. R. Recorded and in the meantime the possibility of holding consultations or making some deliberations in this respect cannot be ruled out.

We have already pointed out that no relevant recoveries were made. In the instant case, connecting the members of the accused party including the appellant with the commission of crime. The case of the prosecution is mainly based on. The ocular testimony. It is, therefore, necessary to carefully scrutinize the ocular testimony, in the instant case, before proceeding further. Assuming. That the three eye-witnesses produced, in the instant case, were wayfarers and, therefore, must not be considered as chance witnesses but as natural witnesses, the fact remains that Shafqat A.I and Muhammad Ashraf P. Ws. Were closely related/connected to the deceased and evidently belonged to his faction. Shafqat A.I P. W. Is Phuphizad of the deceased whereas Muhammad Ashraf P. W. Is not only brother of Rehmat A.I F. W. 4, but also one of the purchasers of the disputed land, who has been made a party in the civil as well as criminal litigation by the accused side along with the deceased and Rehmat A.I P. W.. ,4. Both these eye-witnesses, therefore, have to be considered as interested and partisan. Both of them have not stated clearly as to what was the distance between the assailant/assailants and the deceased at the time of shooting. The medical evidence is to the effect the deceased was shot from a very close range. The case of the prosecution is that the deceased was shot at by the appellant and his brother Haque Nawaz, acquitted co-accused. As he had passed by them and since both the aforementioned - assailants- were armed with single-barrelled guns, the distance between their weapons of offence and the deceased could not, be more than 3 to 4 feet. The Investigating Officer had stated that in,the course of investigation no evidence was brought to his, notice respecting the distance between assailants and the deceased. The site-plan indicates that the distance between the assailants and the deceased at the time of shooting was about eight feet. Rehmat A.I son of Chiragh P. W. 6 contradicts these two eye-witnesses by stating that when the deceased had'

Covered some distance, the accused party gave out a lalkara and thereafter the appellant and Haque Nawaz, acquitted co-accused stood up and then fired through their respective single- barrelled guns at the deceased hitching him in the back. We have also been told by these two eye- witnesses that the accused-party had fired shots through their guns as well as through the two revolvers at the eye-witnesses in the air in order to ward them off. There was no crime-empties on the spot because they had been picked up by the assailants. In any case, there is no evidence on the record collected in the course of investigation so as to' make us definitely arrive at the conclusion that more than two shots bad been fired at the time of the occurrence by the members of the accused party. The trial Judge has also expressed great doubts in respect of the truthfulness of the testimony of these two eye-witnesses. In our view, these eye-witnesses are not only interested and partisan, but the truthfulness of their statements is also not free from doubt.

Learned counsel for the appellant has vehemently argued that in the light of the medical evidence the two shots fired at the deceased could have been fired by a single assailant. Consequently, according to him the testimony of these two eye-witnesses was to conflict with the medical evidence. On the other hand. Learned counsel for the complainant has argued that the two shots fired at the deceased could have been fired by two different persons using two different single- barrelled guns from the same distance but probably the cartridges were identical. According to him, the opinion of the Medical Officer to the effect that the two shots might have been fired by- the same fire-arm was merely a speculation. Thus, in his opinion, the testimony of these two eye- witnesses was being supported by the medical evidence. We nave carefully examined the medical evidence in the light of the arguments advanced by both the sides. In our view, in the light of the medical evidence, it can be said that the possibility could not be ruled out that the two shots fired at the deceased could have been fired by a single assailant through the same fire-arm using the same kind of cartridges. If this is the inference which can be drawn from the medical evidence, then the account of the aforementioned two eye-witnesses is not being supported by the medical evidence.

Now we proceed to consider the value of the testimony of Rehmat A.I son of Chiragh P. W.

6. He is admittedly involved in numerous murder cases. In one of such cases he was convicted and sentenced. He is not only himself a desperado but appears even belonging to the family of desperadoes. His name, as an eye-witness, does not figure to the inquest report which was recorded before the F. I. R. The trial Judge has observed that there might have been independent witnesses, who witnessed the occurrence, because the Bus Stand was not too far off, there were shops at the Bus Stand and since the occurrence took place in the morning, hours, there might have been other people either going towards or waiting at the Bus Stand for boarding the buses in the early morning rush hour. But in such cases because of the existence of extreme enmity between the parties, independent witnesses, who . Might have been heard the shots or seen the occurrence would hesitate to come forward as eye-witnesses out of fear. In any case, if no unconnected or independent witnesses were coming forward, it is reasonably probable that only a desperado like Rehmat A.I son of Chiragh P. W. 6 was enlisted for this purpose despite the fact that his name did not figure in the inquest report, which was obviously prepared before the Investigating Officer recorded the F. I. R. We are aware that the mere fact that a person is involved in murder cases was not sufficient to disqualify him as an eye-witness and even a bad character was qualified to be an eye-witness if his veracity otherwise was not questionable. We are also aware that it is not necessary to mention the names of eye-witnesses in the inquest report. But the position, in the instant case, is that-the inquest report was prepared before the recording of the F. 1.

R. And although it mentioned the names of the other two eye. Witnesses, the name of this eye- witness did not figure in the same. A perusal of the cross-examination of this eye-witness makes us arrive at the conclusion that he is unreliable and it would not be sate to base the conviction of the offence charged only by relying on the testimony of a desperado, who claims to come forward as an unconnected and an independent witnesses. In any case. He not only contradicts the other two eye-witnesses in describing the manner in which the two shots were fired at the deceased but his testimony is also in conflict with the medical evidence in respect of the distance between the assailants and the deceased at the time of shooting as well as the possibility that the two shots which were fired at the deceased could have been fired by a single assailant and not two assailants. We are, therefore, of the considered opinion that all the three eye-witnesses produced in the instant case were unreliable and truthfulness of their testimony is. Not free from doubt. At this stage it is important to note that Rehmat A.I P. W. 4 had stated in his cross-examination that the deceased had other enemies as well besides the accused-party. If the ocular testimony, in the instant case, apart from being interested or partisan or coming from a desperado was intrinsicall unreliable then in our view any number of corroboration thereof could no improve the lot of the prosecution as obviously if the direct evidence, by itself, was of a doubtful nature, the corroborative evidence of any for could be of no help. Reliance is placed on Rehmat Bakhsh v. State. We also rely on Rehmat v. State. In that case, the case of the prosecution rested on ocular testimony which was subject to general doubts and it was held that it was not consistent with the safe administration of justice to select for conviction those persons upon whom the unreliable eye-witnesses had fixed specific parts in the accomplishment of the crime. If badly needed corroboration is to be sought from circumstantial evidence, then the circumstantial evidence must be narrowly examined as this kind of evidence can be fabricated in order to cast suspicion. Consequently, the principle which has consistently been laid down by the Supreme Court is that before drawing the inference of the accused's guilt from circumstantial evidence, it was necessary that there was no other co-existing circumstances which might weaken or destroy that inference. Learned counsel for the complainant had brought to our notice that since no cross-examination was conducted in respect of the participation of Muhammad Yusuf, acquitted co-accused, then the statements of the prosecution witnesses concerning his participation must be accepted as correct without any hesitation. But we are not prepared to accept this reasoning, because each and every accused person, in the instant case, was represented by his own counsel and if one counsel had not subjected the prosecution witnesses to cross-examination, the cross-examination conducted by other counsel could be made applicable to the case of each of the accused persons. Consequently, this argument is without any force. In the light of the above discussion, we are of the view that the trial Judge was justified is not relying on the uncorroborated ocular testimony in respect of the acquitted co- accused to whom he correctly gave the benefit of doubt and acquitted them.

Now we turn our attention towards the appellant. The trial Judge relying on Exh. P. B. And the motive, as set up in the F. I. R. Arrived at the conclusion that since the appellant had instituted civil as well as criminal litigation against the deceased and others, he bad a direct motive to murder the deceased. Then he did not enter appearance in the Court of the Magistrate on the day of occurrence i. e. 6-5-1975. After the occurrence on 6-5-1975 he absconded and was declared a proclaimed offender. He remained an absconder for a period of eleven months and was arrested from Sahiwal District... Thus, the trial Judge, primarily considering his abscission as sufficient corroboration of the ocular testimony, in the instant case, proceeded to convict and sentence him.

Learned counsel for the complainant has produced, a string of authorities in support of his view point to the effect that. Absconsion of the appellant for a period of eleven months and his arrest from a different District was sufficient corroboration to the testimony of even interested or partisan or intrinsically unreliable eyewitnesses produced in the instant case. We have already observed that a perusal of Exh. P. B. And the evidence in respect of motive only leads to the inference that there existed mutual hostility between the parties and it cannot be said that the hostility/enmity was one-sided. The trial Judge himself has observed that there was a background of the existence of extreme enmity between the parties. It may be true that the appellant alone had initiated civil as well as criminal litigation as against the deceased and the others. But to draw an inference therefrom that he had a direct motive to kill the deceased was rather remote. The removal of the deceased from the scene could have led to no advantage so far as the appellant was concerned as he was only bne of the purchasers of the disputed land. There is nothing on the record to indicate that because of the murder of the deceased, the appellant managed to acquire the disputed land. If the murder of the deceased was to be committed for the acquisition of the disputed land, then Muhammad Ashraf P. W. Who was accompanying him, may have also not been spared as he too was one of the purchasers of the disputed land. We have also observed that the hostility between the parties was not only due to the litigation but as is indicated from Exh. P. B.

There had existed even political rivalry between the two factions. Consequently, if one side had the motive to kill the other, the, ~ other side bad the motive to falsely implicate even on suspicion, for, there were other enemies as well. So far as the absence of the appellant from the Court of the Magistrate on 6-5-75 is concerned, this piece of circumstantial evidence, in our view, is not strong enough to serve as corroboration. No one had appeared in the Court of the Magistrate on that date except the counsel of Nawabzadi Sajda Sultana. One can as well say that the appellant did not appear in the Court of the Magistrate on that day because he was the complainant and he might have had an apprehension that he would be considered as a suspect in the murder of the deceased. Learned counsel for the appellant has vehemently argued that proceedings under section 87/88, Cr. P. C. Had not been properly conducted as against the absconsion of the appellant and the proclamation was not published. But we do not find any force in this argument.

In our considered opinion, there is sufficient evidence on the record to the effect that the appellant had absconded after the occurrence, was properly declared a proclaimed offender and when arrested from a different District after eleven months, he was not able to give any satisfactory explanation of his disappearance. We have already observed that the abscondence of the appellant stands proved. However, the important question is as to whether or not, in the circumstances of this case, the abseoudence of the appellant was a strong corroborative piece of evidence of intrinsically unreliable ocular testimony in the instant case. Had he not absconded, his position certainly would have been identical to that of Haque Nawaz, acquitted co-accused, who had been attributed the same part as that of the appellant but was acquitted only for the reason that there was no corroboration of the ocular testimony in his case. We are, therefore, of the view that if the ocular testimony is intrinsically unreliable and not worthy of any credit, then no kind of corroborative evidence could possibly have any value. It has been consistently held by this Court as well as the Supreme Court that the abscondence of an accused, even if held to be-proved, it only gave some kind of support to other evidence which must be strong enough to sustain conviction. If the ocular testimony is disbelieved, then the abscondenc of the appellant cannot provide corroboration of the same as it is no effective by itself to remedy the defects of the prosecution evidence and was not sufficient to cure infirmities in ocular evidence. In this connection reliance is placed on Mesal v. Crown (1971 3 C M R 239), Abdul Rauf v. Crown (1971 SC M R 256), SiralDin v. Kala. Machia v. State. Rashid v. State, Aminullah v. State (P I, D 1976 SC 629) and Muhammad Anwar Khan v. State.

1n the light of the above discussion, we are of the considered opinion that the prosecution has not succeeded in establishing its case as against the appellant beyond any shadow of doubt. His conviction and sentence under section 302, P. P. C. Were not proper and are accordingly set aside.

H should have been given the benefit of doubt which we hereby give to him The result is that his appeal is accepted. He shall be released from jail forthwith if not wanted in any other case.

The death sentence awarded to the appellant is riot confirmed.