' ALI SAIN DINO METLO, J.---Finding them guilty of committing eleven murders, the special Court for the Suppression of Terrorist Activities, Jacobabad, by its judgment dated 20-11-2006, sentenced the appellants to death and to pay fine of Rs, 50,000 each and in default of payment of fine to undergo imprisonment for two years, on each count. They were also found guilty of trespassing into the house of deceased Mirza Khan and setting it on fire and were sentenced each to undergo imprisonment for 10 years and to pay fine of Rs, 5000 and in default of payment of fine to undergo imprisonment for one year more, on each count.
2. The appellants, who are in jail for the last 16 years and whose three companions died during trial and one, during the pendency of appeal, have appealed against their convictions and sentences.
The trial Court has made reference for confirming their death sentences.
3. Briefly, the facts are that on 17-5-1993, at about 2-00 a.m, 18 persons, out of which 16, including the appellants, were identified on the spot and two could not be identified, armed with Kalashinkovs and shotguns, trespassed into the house of deceased Mirza Khan, situated in Deh Noorpur Pako, killed Mirza Khan, 45 years, his wife Mst. Bhirai, 35 years, his sons Muhib Ali, 4 years, and Niaz, 2-2/5 years, his daughters Mst.Duri, 12 years, Mst. Tasleem, 6 years, his daughter's daughter Mst. Shah Pari, 7 years, his wife's sister Mst. Sakeena wife of Allah Bux, 30 years, her (Sakeena's) son Muhammad Bux, 5 years, and her daughters, Mst. Ruqaya, 8 years and Mst. Rabia, 2 years, by making fires upon them. Thereafter, they set the house on fire and burnt the dead bodies by throwing them into the fire.
4. The motive, as alleged, was that the appellants and other accused were annoyed on the marriage of Mst. Zubeda, who had been declared Kari by her previous husband Nawab, with Allah Warrayo, cousin of deceased Mirza, and on that account they had already murdered her brother Lakhmir, who had given her hand in marriage to Allah Warayo and had himself married with Allah Warayo's sister in exchange.
5. The incident was witnessed by Nazar Ali, Lutif Ali, Lashkran and Muhammad Panah, son, brother and distant nephews of deceased Mirza. The latter three had stayed in his house on the fateful night by chance. One of them, namely, Lutif Ali brother of the deceased acted as complainant and lodged F.I.R., bearing No,29 of 1993, with Police Station Buxapur on the same day at 6.30 a.m. Police arrested eight of the 16 nominated accused and filed charge sheet showing the remaining eight as absconders. Three of the arrested, namely, Shah Bux, Phulloo and Tahir died during trial while fourth, namely, Heman alias Dodo died during pendency of appeal.
6. At trial, prosecution examined three out of the four eyewitnesses, namely, Lutif Ali, Lashran and Muhammad Panah. Nazer Ali was given up on the ground that he was unable to give evidence due to his illness, without disclosing its nature. Prosecution also examined six other witnesses, namely, Abdul Rahim (attesting witness of the memo of the inspection of the place of incident), Muhammad Hashim (attesting witness of the memo of recovery of weapons), Dr. Abdul Aziz (Medical Officer conducting autopsies), Barket Ali (Tapedar preparing sketch of the place of incident), SIP Mir Muhammad (1st Investing Officer) and H.0 Ghulam Qadir (acquainted with the hand writing and signature of 2nd Investigating Officer Inspector Abdul Hakeem Gorshani).
Examination in chief of Inspector Abdul Hakeem Gorshani, who had arrested the appellants and recovered weapons on their pointation, was reserved for want of weapons. His deposition could not be completed due to his death.
7. In their defence, the appellants produced certified copy of the judgment dated 30-12-2002 of the Additional Sessions Judge, Kandhkot acquitting appellant Bakhat Ali and deceased Heman of the charge of murder of deceased Lakhmir. They also examined Naseer Ahmad, SDO WAPDA, in their defence.
8. The trial Court, relying upon the ocular evidence of the three eyewitness and corroboratory evidence of recovery of weapons, medical evidence and motive, convicted and sentenced the appellants as above.
9. The learned Assistant Advocate-General did not support conviction of the appellants as, according to him, the ocular evidence was not convincing, the recovery of weapons and the medical evidence did not provide any corroboration regarding involvement of the appellants and the motive was also not convincing.
10. Learned counsel for the complainant, while conceding that the recovery of weapons and the medical evidence did not connect the appellants with the commission of the offence, contended that the ocular evidence and the motive were sufficient to convict the appellants.
11. The three eye-witnesses examined by the prosecution are not only interested witnesses but they are also chance witnesses. They were inimical to the appellants and their presence at the time and place of incident was not in the normal course. The reason for their presence at place of incident, as given by them, is not convincing. They were also not frank in narrating the incident, In such circumstances, it will be highly risky to implicitly rely upon them.
12. Keeping in view the principle that wrongful conviction is worse than wrongful acquittal and the general trend of implicating maximum number of persons belonging to enemy party prevailing in the country, more particularly in the rural areas of Sindh, the superior Courts have always insisted for independent and unimpeachable evidence in corroboration of ocular evidence of interested witnesses. Emphasizing the importance of corroboration of evidence of interested eye-witnesses, the honourable Supreme Court in the case of Haji Rab Nawaz v. Sikandar Zulqarnain and others, reported in 1998 SCM R 25, was pleased to observe: "One salutary principle laid down by this Court in this behalf and which is now firmly established is, that in a case involving capital punishment, the Courts will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstance in the case. This rule of prudence though not statutory in nature, has been followed by Courts so consistently through years that it has come to be recognized almost as a rule of law. The departure from this rule is to be found rarely and in very exceptional circumstances of a case."
' In another case re: Muhammad Irshad and another v. The State, reported in 1999 SCM R 1030, the apex Courts abserved.
"It is settled proposition of law that evidence on the capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interested and partisan witnesses."
13. Learned counsel for the complainant, relaying upon the case of Muhammad Ahmed and another versus The State, reported in 1997 SCM R 89, argued that the rule requiring independent corroboration of testimony of interested witnesses, being a rule of prudence only, may not be applied rigidly in every case and departure can be made in appropriate cases. There is no cavil with the proposition but departure can be made only in a rare case of very exceptional circumstances in which evidence of the witness(s) inspires a very high degree of confidence. In the very same authority, it was observed that where the Courts finds that the number of accused may have been exaggerated implicit reliance may not be placed upon evidence of interested witnesses. In the present case the number of accused seems to have been exaggerated and maximum members of same family have been implicated. For example, appellant Chanessar, absconding accused Malang, and Kathore are brother inter se and Sodho is son of absconding accused Khathore. Appellant Bakht Ali, deceased accused Shah Bux are sons of absconding accused Muhammad Alam and grandsons of absconding accused Jhangal. Appellant Ghulam Rasool, ueceased appellant Heman alias Dodo, absconding accused Jhangal and absconding accused Rassol Bux are brothers inter se.
4. In such circumstances, where maximum members of same family have been involved indicating possibility of exaggerating the number of accused and the witnesses are chance witnesses and reason for their presence at the place of incident is not convincing and the witnesses have given sketchy description of the incident and ocular evidence is contradicted by medical evidence and the only natural witness was given up without reasonable justification and the independent witnesses coming to the place of incident were not made witnesses, it will not be safe to make departure from the rule of seeking independent corroboration of evidence of interested witnesses.
15. The three eye-witnesses examined by the prosecution claim that on the night of incident they had stayed at the house of Mirza Khan by chance. According to them, their own houses were at a call distance from the house of Mirza Khan where they claim to have stayed for night because one of them, namely, Lutif Ali wanted to consult Mirza Khan for giving seed and fertilizer to his tenants.
First, the matter of giving seed and fertilizer to tenants did not require any expert advice. Secondly, it is not their case that he had no previous experience of giving seed and fertilizer to tenants.
Thirdly, the matter was of few minutes and they could have returned back to their own houses in the same evening. Fourthly, Lutif Ali could have consulted his brother without taking the other two with him. The reason for remaining away from their homes for the night and staying at the house of Mirza Khan is not convincing Moreover, the complainant was serving at Jamshoro situated at the distance of more than 300 kilometers from his village and had come to his village by obtaining leave. Normally a person coming from such a far work place to his home on leave for few days is not expected to stay out without compelling reasons.
16. There was background of enmity between the parties and, therefore, the three eye-witnesses examined by the prosecution can safely be termed as interested witnesses. On 3-5-1993 i.e only 14 days before this incident, Lakhmir, husband of complainant's cousin and brother of wife of complainant's cousin Allah Warayo, was murdered allegedly by appellants Bakhat Ali, Heman alias Dodo (deceased), deceased accused Shah Bux, absconding accused Muhammad Alam, Qaloo and Rasool Bux and they all were absconding.
17. While giving description of the weapons each one of the 18 assailants, including the 16 nominated in the F.I.R., was having, the three eyewitnesses did not tell how and who set the house on fire and who threw the dead bodies into the fire.
18. According to the ocular evidence, all the 18 assailants had killed the eleven deceased by making fires upon them and thereafter they had set the house on fire and thrown the dead bodies into the fire. However, according to the evidence of the doctor, only Mirza Khan and none else had firearm injuries. Mirza Khan died due to firearm injuries and all others due to burns. Such glaring contradiction between ocular and medical evidence creates serious doubt about the claim of the eyewitnesses to have actually witnessed the incident.
19. Nazar Ali son of deceased Mirza, who according to the prosecution was also an eye-witness, was given up by the prosecution. In law, prosecution may not be obliged to examine all the witnesses cited in the charge sheet and may give up some of them but at the same it is not absolved from its duty of examining the best of the available witnesses. Nazar Ali, being son of deceased Mirza and resident of the same house, was the only natural witness and, therefore, his non examination will have an adverse effect upon the prosecution case.
20. The charge was framed on 7-1-1996. Nazar Ali was given up on 17-3-1996. The prosecution closed its side on 2-4-2002. He was given up on the ground that he was ill without disclosing the nature of his illness. If he was ill on 17-3-1996 prosecution could have requested the Court to examine him on any subsequent date during the five years prosecution took in examining its remaining witnesses. The reason for giving up the most important. Witness of the prosecution is not convincing.
21. It has come on record that so many persons of Chachar community residing at a distance of only 200 paces from the place of incident, some of whom were tenants of the complainant, had come to the place of incident on hearing gun fires and seeing flames of fire, but none of them was examined, Moreover, according to the complainant and other eyewitness, they had not informed them who were the perpetrators of the gruesome crime. Such conduct on the part of the eyewitnesses casts doubt upon their claim about witnessing the incident and identifying the offenders.
22. It is also worth to be noted that the four eye-witnesses claim to have saved themselves by hiding in a watercourse known as Phulloo kario passing through the compound wall of the house of deceased Mirza. The watercourse was not a safe place of hiding particularly when the whole house including its compound wall made of thorny branches of trees had been burnt. Realizing that the watercourse was not a suitable place for hiding, the complainant and Muhammad Pannah stated that they could not say if from the watercourse they were visible to the accused or not. Their claim that they had seen the incident by hiding in watercourse does not inspire confidence.
23. Much was argued about the availability of electricity in the house of the deceased. An officer of WAPDA was examined in defence who stated that electricity was not provided to the house of Mirza Khan in this regard it may be stated that availability of electricity as source of identification is of no significance when the whole house was set on fire, which was more than sufficient source of light for identification purpose. However, as stated above, the very presence of the eye-witnesses at the place of incident is highly doubtful.
24. It seems that the trial Court under the influence of heinousness of the offence convicted the appellants by holding that evidence of the three interested eyewitnesses was sufficiently corroborated by the medical evidence, recovery of weapons and motive, though in fact none of them provided the required corroboration.
25. As regards the medical evidence, it did not provide any corroboration against any accused. On the contrary, it contradicted the ocular evidence to the extent of creating serious doubt about the claim of the eyewitnesses to have actually witnessed the incident.
26. As regards joint recovery of three klashnikoves on the pointation of appellant Bakht Ali, deceased appellant Heman and deceased accused Shah Bux from an abandoned place, it carries no value for the purpose of the present case, because the empties secured from the place of incident and the weapons allegedly recovered on the pointation of the above three persons were not sent to the ballistic expert so as to find out whether or not they were used in the commission of the offence
27. Motive is also not convincing. According to the prosecution, the accused committed the crime because they were annoyed on the marriage K of Mst. Zubeda with Allah Warrayo, cousin of deceased Mirza. It has come on record that Allah Warrayo was alive and was residing in the village of complainant situated at call distance from the place of incident. It is also not the case of the prosecution that deceased Mirza had helped his cousin in marrying with Mst. Zubeda declared Kari (adulteress) by her previous husband Nawab. Moreover, enmity can be a motive for committing the offence and can also be the reason for false implication.
28. Relaying upon the cases of Muhammad Akhtar v. The State, reported in 2007 SCM R 876, and Zahoor Ahmed v. The State, reported in 2007 SCM R 1519, learned counsel for the complainant contended that, substitution of real culprit with innocent being a rare phenomenon, it could not be that the blood relations of the deceased spared the real culprits and involved the innocent.
29. In this regard it may be mentioned that the observation about the rarity of substitution can be valid only when there is no doubt about the witnesses having actually witnessed the incident and no possibility of exaggerating the number of accused. In the case of Zahoor Fatime v. Muhammad Naeem and others, reported in 1988 SCM R 343, the Honourable Supreme Court endorsed observation of the Lahore High Court that in the background of enmity the tendency is to enlarge the net and to rope in the innocent with the guilty and when no line can be drawn between them, the usual result is that the guilty also get off with the innocent.
30. The presumption of innocence that a person is presumed to be innocent until proven guilty and the rule about burden of proof in criminal cases,that prosecution is bound to prove guilt of accused beyond reasonable doubt are one and the same thing stated in different language with a common object of ensuring that no innocent person is punished. The principle is age old. The Holy Prophet (P.B.U.H.) also said: "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him, let him have his way, because the leader's mistake in pardon is better than his mistake in punishment."(Mishkatul Masabih). The tradition has been repeatedly quoted as authority by the superior Courts. Reference can be made to the case of State versus Tariq Mehmood, reported in 1987 PCr.LJ 2173 (Federal Shariat Court) and Ayub Masih versus The State, reported in PLD 2002 Supreme Court 1048.
31. The public interest in securing conviction in serious offences should not be allowed to outweigh the public interest in ensuring that innocent people are not convicted and subjected to ignominy of heavy sentences, otherwise the presumption of innocence and the rule regarding burden of proof will be confined only to petty offence, which will have serious damaging effect upon the whole system. The presumption of innocence not only protect a particular individual on trial, but it serves to maintain public confidence in the enduring integrity and security of the legal system.
32. Keeping in view the above mentioned facts and circumstances of the case and the principles of safe administration of criminal justice, it will be highly risky to maintain conviction of the appellants.
Accordingly, their appeal is allowed, their conviction and sentences are set aside and they are acquitted. They may be released immediately, except appellant Heman alias Dodo who has already died. Consequently the reference made by the trial Court for confirming the death sentences awarded by it to the appellants is rejected.