1. Rahmat Hussain Jafferi, J.--This judgment will dispose of Criminal Appeal No, 854 of 2002 (filed by the appellants Muhammad Rafique, Saeed Ahmed Chheena & Naseer Ahmed Chheena), Criminal Appeal No, 355 of 2002 (filed by the appellant Aziz Khan), Criminal Appeal No, 356 of 2002 (filed by the appellant Iftikhar Ahmed Khan) to challenge their convictions and sentences and Criminal Petition No, 623L of 2002 (filed by Mst. Khurshid Begum widow of one of the deceased Mahmood Akbar Khan) to challenge the acquittal of 12 accused persons namely, Riasat Ali, Ashiq Ali, Muhammad Asif, Akbar Gadhi, Muhammad Shafiq, Farooq, Razzaq Khan, Shahbaz Kha.n, Mohsin Khan, Ishtiaq Khan, Mushtaq Khan (since dead) and Basharat Khan (since dead), as they arise out of common judgments passed the learned Trial and High Courts.
2. The prosecution story as disclosed in the FIR lodged by the complainant Nasrullah (PW.17) on 14.04.1998 at 11.35 p.m. is that on the same day at about 10.15 p.m. Mahmood Akbar Khan MNA, Masood Akbar Khan, Muhammad Sadiq, Sher Muhammad, Riasat Ali, Aziz-ur-Rehman SDO WAPDA, Abdul Latif, Naseer Khan, Muhammad Sadiq, Haji Taj Din, Muhammad Moazam Khan and Bashir Khan were sitting at DERA of deceased MNA. The main gate of the DERA was closed while the small door was opened. The electricity lights were on. From the small door Naseer and Nasir armed with Kalashnikovs, Munir and Riasat armed with Rifle .222, Ashiq armed with .12 bore gun, who were identified on electric bulbs/lights alongwith 13 unknown persons armed with fire-arm weapons entered the DERA. They recklessly started firing at Mahmood Akbar Khan and Masood Akbar Khan.
2. The complainant: Nasrullah Khan, Moazam (PW.18), Haji Taj (PW.21) and Bashir Khan (not examined) ran and took shelter in a room of the DERA. The firing continued for about 10/15 minutes and thereafter the culprits went away on their Motorcycle, Wagon and Car. After the departure of the accused, the complainant and others came out from the room and found Mahmood Akbar Khan, Masood Akbar Khan, Riasat, Sher Muhammad, Abdul Latif and Aziz-ur-Rehman sustained multiple fire-arm injuries. On the fire-arm reports, several persons arrived, with their assistance all the above-named persons were shifted to Hospital. Except Aziz-ur-Rehman and Muhammad Sadiq, all the remaining injured persons died.
3. It is further alleged in the FIR that before the incident, PW Amir Ali (not examined) informed the complainant that on 08.04.1998 at 2.00 p.m. he and his son Ramzan were present in the DERA of Saeed Chheena, where Saeed Chheena, Naseer, Nasir, Munir, Ashiq, Riasat alongwith 5/6 other persons were present. While they were sitting at the above time some Vehicles (Pajeroes) came in which 8/9 persons were sitting and then they started consulting with each other. Saeed Chheena was telling his brothers that Waris had forcible occupied their land with the help of Mahmood Akbar Khan and Masood Akbar Khan, therefore, they should be eliminated and he would pursue the matter and get them released. Therefore, Naseer and other accused persons in pursuance of the conspiracy and on the direction and instance of Saeed Chheena committed the murders of Mehmood Akbar Khan, Masood Akbar Khan etc. and injured Aziz-ur-Rehman and Muhammad Sadiq.
4. The above statement of the complainant was recorded by Arshad Mahmood, Inspector (PW.27) in Civil Hospital, Sheikhupura which was incorporated in 154, Cr.P.C. book at 11.50 p.m. on the same night.
5. The police recorded the statements of witnesses, collected blood-stained earth, 126 empties of Kalashnikovs, 17 empties of Rifle .222, 5 empties of Rifle .244, 5 empties of .12 bore Gun and 12 bullets from the place of occurrence. They also recovered Wagon No, SGC-8186, Car No, AA-1400 and a Motorcycle. The Investigating Officer also recovered Rifle .222, .12 bore Gun and Kalashnikovs from appellants Muhammad Rafique, Aziz Khan and Iftikhar Ahmed Khan respectively, four Kalashnikovs and one rifle were recovered from the house of one Altaf Saleh on 08.06.1998. FSL report in respect of weapons secured from the house of Altaf Saleh and empties secured from the place of incident was positive. On 15.04.1998, PW.27 recorded the statement of injured Siddique, who died on 21.04.1998 thereafter it was treated as Dying Declaration. The Investigating Officer also collected the evidence of extra judicial confession of appellant Saeed Ahmed before PW.23 Abdus Sattar. After arresting the accused and completing the investigation the police challaned 17 accused persons; namely Saeed Ahmed Chheena, Iftikhar Mohsin Khan, Naseer Ahmed, Farooq, Basharat (since dead), Shahbaz Khan, Razzaq, Ishtiaq Khan, Akbar Gadhi, Muhammad Shafiq, Riasat Ali, Muhammad Asif, Mushtaq Khan (since dead) Aziz Khan, Muhammad Ashiq and Rafique Gadhi and showed 10 accused persons, namely Ali Raza Khan; Fazal-ur-Rehman Khan, Naseer Ahmed, Munir Ahmed, Shan, Qaiser alias Pervez, Qaiser Chheena, Mansha alias Dr. Javed, Akram Rehmani & Farooq alias Pomi as absconders out of them 3 accused, namely Qaiser alias Pervez, Mansha alias Dr. Javed & Akram Rehmani died in police encounters.
6. At the trial, the prosecution examined 30 witnesses. The trial Court relied upon motive, conspiracy, ocular evidence, dying declaration and recoveries but did not believe the extrajudicial confession of the appellant Saeed made before PW.23. The learned trial Court after relying upon the above pieces of evidence and scrutinizing the same acquitted the accused Riasat, Ashiq, Muhammad Asif, Akbar Gadhi, Muhammad Shafiq and Farooq S/o Siddique, whereas convicted and sentenced the remaining accused in the following manner:-- {{TABLE}} "Iftikhar Khan Naseer Ahmed Chheeha Aziz Khan Muhammad Rafiq GadhiConviction: U/Ss. 148/149 PPC Sentence: 3 Years RI each.
3. Fine: Rs,50,000/- In default: 3 months SI.
4. Ditto Conviction: U/Ss. 460/149 PPC Sentence: Imprisonment for life each Ditto Conviction: U/Ss. 302(b)/149 PPC Sentence: Death on six counts. Compensation: one Lac In default: 6 month S.I Ditto Conviction: U/Ss. 324/149 PPC Sentence: 10 years R.I. each Compensation: Rs, 50,000/- In default: 36 month S.I. each Saeed Ahmad Chheeni" Naseer Ahmad Chheena Mushtaq Khan Shehbaz Khan Razaq Khan Conviction: U/Ss. 120(b)/149 Sentence: Imprisonment for life Compensation: Rs, 50,000/-In default: 3 month S.I.
5. Moshin Khan Ishtiaq Khan Aziz Khan BasharatConviction: U/Ss. 120(b)/149 Sentence: Imprisonment for life Compensation: Rs, 50,000/- In default: 3 month S.I.
6. Mohsin Khan Razaq Khan Shehbaz KhanConviction: U/S 342 PPC Sentence: 1 year R.I. each.
7. Iftikhar.Khan Naseer Ahmad Chheena Aziz Khan Muhammad Rafiq Gadhi Saeed Ahmad Chheena Mushtaq Khan Razaq Khan Shehbaz Khan Mohsin Khan Ishtiaq Khan BasharatConviction: U/Ss. 7 of ATA, 1997 Sentence: Death to each Saeed Ahmed Chheena The sentence of death set aside but convicted u/S. 120-B read with 302 PPC and sentenced to imprisonment for life on six counts. Further directed to pay Rs, 50,000/- on each count u/S. 544-A, Cr.P.C. and in default to undergo six months RI on each count." {{TABLE}} All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
7. The convicted accused persons preferred appeals to challenge their convictions and sentences, whereas the State filed appeal against the finding of acquittal before the Lahore High Court, Lahore. The learned High Court after hearing the parties counsel found that there was electric light in the DERA at the time of occurrence; ocular account was partly believed; independent and total reliance was not placed on the dying declaration but sought corroboration which was found from the evidence of PWs.17, 18 & 21; conspiracy hatched on 08.04.1998 was not relied upon, but the fact of arrest of the appellant Saeed Ahmed Chheena in a 13(d) Arms Ordinance case before the incident was found favour, therefore, he was found liable for commission of offence punishable under Section 120-B, P.P.C; wrongful confinement of Driver of the Wagon Arshed Pervez (PW.16) was found doubtful therefore conviction and sentence under Section 342, PPC were set aside, evidence of extrajudicial confession was not challenged, therefore no finding was given. The High Court also relied upon. F.S.L report in respect of weapons secured from the possession of Appellant Naseer, Iftikhar, Aziz and Rafique. Motive in respect of rivalry between Mahmood Akbar Khan and Munawar Manj was not relied upon on the ground that offence could not have been committed because of Munawar Manj and no effort was made to prove the said motive, As regards the motive about grievance of Naseer Chheena, about recovery of possession of land by Waris with the help of deceased Mahmood Akbar and his brother, the Court observed that the said motive might have existed but it did not make any difference because. Waris had riot been produced in the evidence.
8. After assessing the evidence, the learned High Court acquitted the accused Razzaq Khan, Shehbaz Khan, Mohsin Khan, Ishtiaq Khan, Mushtaq Khan (since dead) & Basharat by allowing their appeals, while the appeals of Iftikhar Khan, Aziz Ahmed Khan Muhammad Rafiq Gadhi, Naseer Ahmed Chheena and Saeed Ahmed Chheena were dismissed and reference for confirmation of death sentence was allowed under the impugned judgment dated 11.06.2002.
9. On 01.10.2002, this Court granted leave to appeal on the petitions filed by the appellants inter-alia to consider whether the appellants were convicted and sentenced by the trial Court as well as the High Court by following the principle of safe administration of justice or otherwise. On the same date an order for issuance of pre-admission notice to the acquitted accused was passed on the petition filed by Mst. Khurshid Begum.
8. 10.We have heard the learned counsel for the parties as also for the State and have re-appraised the evidence with their assistance.
9. 11.Learned counsel for the appellants in Criminal Appeals No, 354 to 356 of 2002 have separately argued their respective cases. However, their submissions are mainly on five counts i,e, (1) presence of electricity light at the time of incident, (2) dying declaration, (3) conspiracy, (4) FSL report and (5) ocular account. Their common arguments are that there was no 'electricity at the time and place of occurrence; they have seriously challenged the statements of witnesses and particularly the statement of Aziz-ur-Rehman (PW.19); that the incident took place at about 10:15 p.m. but the electricity was restored at 10.30 p.m.; that the witnesses have improved their statements by changing the time of occurrence from 10.15 p.m. to in-between 10.30 to 10.45 p.m. so as to bring the occurrence within the time when the electricity was restored; that improvements so made created doubt about the credibility of witnesses; that only five accused persons were nominated by name in the FIR but subsequently the number of nominated accused persons was gradually increased to 27 and that there are other improvements also, therefore, the evidence of the witnesses cannot be relied upon.
10. 12.As regards the dying declaration, they have submitted that the deceased Sadiq was not in a position to talk when the alleged dying declaration was recorded; that the deceased had received serious injury on the vital part of his body and when he was brought in the hospital his condition was serious therefore he was referred to Surgical Ward for further necessary treatment and that it was not possible for the deceased to have given statement on the next day of the incident after operation in critical condition. They added that the dying declaration was not recorded in the presence of Doctor; that no certificate was obtained from the Medical Officer to the effect that the deceased was able to talk; that no such Doctor was examined to prove that he granted such permission; that the dying declaration was written by another Police Officer but he was not examined in the Court to prove that he was the author of the dying declaration; that the Investigating Officer namely Arshad Mehmood, (PW.27) simply attested the dying declaration by putting his signature on it; that the dying declaration is a forged document; that the learned High Court has also not believed the dying declaration in toto as it was partly believed and that in such circumstances the dying declaration has lost its evidentiary value.
11. 13.As regards conspiracy, they have stated that in the FIR the complainant alleged that the conspiracy was disclosed to him by PW Amir Ali but he was not examined and instead thereof his son Muhammad Ramzan (PW.14) was examined; that the complainant has introduced Muhammad Ramzan so as to give more details of the conspiracy allegedly hatched on 08.04.1998; that the complainant has improved his statement during the course of evidence from his statement made in the FIR and that the learned High Court has not believed the conspiracy which has rightly been discarded.
12. 14.As regards the FSL report, learned counsel for the appellants have argued that the prosecution allegedly recovered Rifle .222 from Muhammad Rafique, .12 bore gun from Aziz Khan and Kalashnikov from Iftikhar Ahmed Khan; that the FSL report does .not show that any empty secured from the place of incident matched with the weapons secured from the appellants; that the FSL report is in respect of the weapons secured from the house of one Altaf Saleh in the absence of the accused therefore the said report does not connect the appellants with the commission of the crime; hence the finding of the learned High Court on the above point is not correct.
13. 15.As regards motive, they have argued that the learned High Court has believed the motive to connect the appellant Saeed only on the ground that he was arrested in a 13(d) Arms Ordinance case through the accused Basharat (now dead); that there is no evidence on record to show that there was any conspiracy between Basharat and the appellant Saeed or that the said case was manipulated by the appellant so as to create a defence in the case; that the said defence does not find place in the FIR as such it is an improved version of motive. They have added that the prosecution evidence is not sufficient to convict the appellants on the capital charge.
14. 16.Conversely, learned counsel for the petitioner in Criminal Petition No, 623-L of 2002 has argued that the incident took place after the restoration of electricity as all the witnesses deposed that they saw the incident on the electric light; that the statement of Aziz-ur-Rehman (PW.19) clearly establishes the fact that he reached at the DERA of deceased Mahmood Akbar Khan after getting the electricity restored and he saw the incident on the said light; that PW.19, an injured witness, SDO Wapda has no relationship with the complainant and has fully supported the incident; that PW.21 Haji Taj Din is also not related to the complainant; that the specific time of the incident given by the witnesses is immaterial in presence of the fact that there was electricity at the time of incident. He has further argued that the ocular testimony of PWs. 17, 18, 19 & 21 establishes the incident by giving its details and their evidence is unanimous on all material aspects of the case; that the witnesses have no reason to falsely involve the appellants; that the complainant gave the names of the remaining accused in his supplementary statement, which was recorded in the Inquest Report; that the said statement was recorded on the night of the incident without loss of time, therefore, it cannot be discarded and no adverse inference can be taken on the evidence of complainant; that the ocular evidence is supported and corroborated by the medical evidence, which is further corroborated by Kamran Khan (PW.20), who saw the appellant reaching the place of incident when he was standing in the street and also saw them decamping from the said place in their vehicles and that the ocular testimony is trustworthy and reliable.
15. 17.As regards dying declaration, he has stated that the dying declaration was signed by the Investigating Officer, who has fully supported the case; that the deceased made dying declaration before him; that the deceased was able to talk as per endorsement made by the Doctor on the application moved by the Investigating Officer; that both the Courts below have relied upon the dying declaration which is not required to be interfered with and that the deceased had died after seven days of the incident.
16. 18.As regards conspiracy, he has stated that the evidence of the Nasrullah Khan, the complainant (PW.17), Muhammad Ramzan (PW.14) and Arshed Pervez alias Gullo Badshah (PW. 16) has fully supported the conspiracy hatched on 08.04.1998 in the DERA of the appellant Saeed Ahmed Chheena; that PW.14 disclosed the conspiracy to the complainant who had also supported him, therefore, the learned High Court did not properly appreciate the evidence of these witnesses and reached a wrong conclusion, which is required to be set aside. He has also argued that the weapons secured from the possession of the appellants Muhammad Rafique, Aziz Khan and Iftikhar Ahmed and the weapons secured from the house of Altaf Saleh with positive FSL report further support the prosecution case.
17. 19.Learned counsel for the State has supported the impugned judgment and adopted the arguments of learned counsel for the petitioner.
18. 20.Having heard the arguments of learned counsel for the parties and re-appraised the evidence on record, we find that in the FIR, the complainant alleged that the incident took place on 31.08.1998 at 10.15 p.m. He also stated that he identified the accused on the electric light meaning thereby that from the very beginning the prosecution took the plea that when the incident took place, the electricity was on. It is an admitted position that before the incident there was electricity failure and the matter was reported to the WAPDA authorities who got the electricity restored. The presence of Aziz-ur-Rehman Khan, SDO WAPDA (PW.19) and the deceased Muhammad Latif, Line Superintendent further establishes the fact that there was some fault in the electricity but PW. 19 Aziz-ur-Rehman categorically stated in his statement before the Court that-after getting the electricity restored, he reached the DERA of deceased Mahmood Akbar Khan. The other witnesses namely PWs.18 & 21, who were present inside the DERA and PW.20 who was present outside the DERA stated that electricity was on at the time of incident. Thus it has been established beyond any shadow of doubt that the electricity was on when the incident took place. No doubt, the PWs gave different time of occurrence as at the initial stage the prosecution took the plea that time of incident was 10.15 p.m. but this time was approximate as in the FIR the complainant had used the words "at about" while mentioning the time of incident. Subsequently, the witnesses gave the time in-between 10.30/45 PM. The important question in this case is not the time of incident but whether there was electricity light at the time of occurrence.
19. 21.After re-assessing the evidence on record qua the above points, we concur with the findings of the learned High Court that the incident took place when the electricity was restored.
20. 22.As regards the ocular testimony, it consists of four witnesses, the complainant Nasrullah Khan (PW.17), Muhammad Moazam Khan (PW.18), Aziz-ur-Rehman (PW.19) and Haji Taj Din (PW.21). PW.18 is cousin of the complainant, PWs.19 & 21 are not related with the complainant but they happened to be present at the DERA when the occurrence took place. Evidence of PWs.17, 18 & 21 is identical to each other as they are the persons who ran and took protection in a room of DERA during the course of firing. They did not receive any injury, whereas PW.19 received the injuries as he was present at the place where the other deceased persons received injuries, therefore, the presence of Aziz-ur-Rehman (PW.19) cannot be disputed.
21. 23.The complainant in the FIR involved 18 persons out of them 5 were identified to be accused namely Naseer, Nasir, Munir, Riasat and' Ashiq while 13 accused were unknown persons. However, in the deposition in Court he disclosed that total number of the accused was 16 out of them he identified 15 accused persons, namely Riasat, Ashiq, Munir, Iftikhar, Ali Raza, Fazal Rehman, Qaiser, Naseer, Aziz Khan, Nasir, Rafique Gadhi, Qaiser of Narowal, Mansha alias Dr. Javed, Akram Rehmani and Sham and one accused was not identified by him. In the cross-examination, he admitted that he had not named Ishtiaq, Shahbaz, Raza Khan, Mohsin Khan, Iftikhar Khan and Ali Raza in the FIR but further added that he named them in the supplementary statement.
22. 24.From the above position, it is clear that the complainant has improved his statement from the statement which he had already made in the FIR and that too by nominating more persons in his Court statement though at the initial stage he was 'not able to recognize those persons as they were unknown. It is also in evidence that the complainant knew these persons before the incident, therefore, if he had seen them at the time of incident when he claimed that there was electricity light then it does not appeal to reasons that he would have missed the name of all those persons.
23. This improvement creates serious doubt about his veracity and credibility. Further he admitted that he named the appellant Asif, Aziz Khan and Fazal Rehman in the FIR bat when he was confronted with it then it was found that he did not name them. He has also belied his own statement recorded in his examination-in-chief by stating that he did not state that accused Naseer, Nasir, Munir, Riasat, Ashiq and Qaiser are real brothers of accused Saeed Ahmed Chheena but when he was confronted with the examination-inchief it was found that he had stated such fact. This shows that the witness has suppressed the truth and spoke lie and has no sanctity of Oath. This Court in the case of "Saeed Muhammad Shah v. State ;1993 SCM R 550)" observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of "Khalid Javed v. State (2003 SCM R 1419)" while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit relance upon his evidence.
24. 25.As regards supplementary statement, PW.17 took names of 10 more accused persons from the names he took in the FIR, tie same can be treated as statement under Section 161 Cr.PC that case only be used by the accused to contradict the witness. It cannot be used by the prosecution for any purpose. This improvement clearly shows that supplementary statement was made after due consultation and deliberation to falsely involve the accused. This point was examined by this Court in the case of "Falak Sher v. State (1995 SCM R 1350)", wherein it has been observed that, any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eye- witnesses as well for false implication". The said rule was reiterated in subsequent decision of this Court in the case of "Khalid Javed v. State (2003 SCM R 1419)" and further observed that such witness would be unreliable.
25. 26.The statements of PW.18 Muhammad Moazam Khan and PW.21 Haji Taj Din reveal that they also took the names of 15 accused persons and one accused was shown to be unknown. Their statements are in line with the supplementary statement of the complainant. The record shows that their statements under Section 161, Cr.P.C. were recorded after the recording of supplementary statement of the complainant, therefore, the possibility of consultation and deliberation before recording their statements cannot be ruled out. Their statements further reveal that they also made improvements from their earlier statements on various points, such as running towards north side, firing made on the door and window of the room in which they concealed then is elves, showing the presence of PWs Kamran Khan and Faqir Husain after the commission of incident, transporting the injured to the hospital and witnessing the incident by other PWs, particularly their stater, nents showing the presence of Kamran Khan and Faqir Hussain just after the incident.
26. 27.The statements of PWs. 17, 18 & 21 reveal that they were sitting in the Courtyard besides the deceased persons when they saw the accused entering the room and they immediately apprehended danger and started running towards a room to conceal themselves and simultaneously firing was made and then they concealed themselves in a room by closing its door.
27. From their narration, it is quite clear that they had no sufficient time to see the faces of the culprits, who were 18 in number when they entered the DERA as immediately thereafter they apprehended fear and started running. PW.17 further added that at that time their backs were towards the accused. In such a situation, it is highly improbable for these witnesses to have seen the culprits clearly. Probably, this was the reason that the complainant did not name 13 accused persons. Their evidence further reveals that in order to show that they had seen the culprits they stated that they saw the incident from the window and at the same time they stated that firing was also made at the said window but it was on its upper side, and they were watching the incident from its lower portion. This also does not go with the natural conduct of a person in such a situation because when the firing was made then the first and foremost reaction of the person would be to cereal and save himself from hitting of bullets. This was the basic reason why they left the place where the deceased were sitting and ran towards the room. Thus, the evidence of these three witnesses cannot be safely relied upon.
28. 28.It is further pointed out that indiscriminate firing of more than 150 bullets was made at the place of incident but it is surprising to note that none of these witnesses received any fire-arm injury though all other persons who were present at the DERA had received injuries. The explanation furnished by these witnesses that they were running and concealing themselves in a room is highly improbable and further the room in which, they took protection was at the back of the deceased therefore, while running these three witnesses could have received bullet injuries. This also creates doubt about their presence at the place of incident. No doubt PW.19 Aziz-ur-Rehman, an injured witness, stated that when he arrived at the DERA he also found the complainant and Muhammad Moazam Khan sitting there. It has come in the evidence that the complainant was entertaining the visitors therefore, possibility of both these witnesses leaving the place of incident before the occurrence cannot be ruled out.
29. 29.As regards the evidence of PW.20 Kamran Khan, whose evidence reveals that he was sitting on a small Thara outside his house, which was at a distance of about 70/80 feet from the door of the DERA. He stated that he saw a motorcycle, a wagon and a car from which the accused persons alighted and he identified them to be accused namely Naseer, Nasir, Munir, Qaiser, Riasat, Ashiq, Iftikhar, Ali Raza, Fazal-ur-Rehman, Qaiser Rajput, and one unknown person. They were armed with Kalashnikovs, Rifles and Guns, entered the DERA and there was indiscriminate firing, after some time they came out and then went away on the said vehicles. Serious doubt has been shown by learned counsel for the appellants about the presence of this witness at the place of incident and identification of the accused. There is no evidence on record to show that there was any light outside the DERA or at the place where the vehicles were stopped. None of the witnesses disclosed the presence of such light at the said place. However, this witness in order to overcome the absence of light stated that there was search light at the said place. This witness consciously introduced the presence of search light at the said place in order to show that he had identified the accused on the said light. He was cross-examined on the said point and confronted with his 161, Cr.P.C. statement in which it was found that no fact about the presence of search light was stated by him in his said statement. Even otherwise, no other witness deposed about the presence of said search light. Thus the identification of the accused through this witness in the present circumstances of the case is highly doubtful. Furthermore, it will not be possible for a person to see the numbers on the Number Plates of the vehicles from a distance of about 70/80 feet during night hours. Additionally, when the culprits alighted from their vehicles they would not remain standing at the place so as to be seen by the witnesses and waste time .but their immediate action would be to enter the DERA to commit the offence within shortest possible time and leave the place immediately. Admittedly, there were large' number of accused persons and in such a situation it would have been highly improbable for the witness to have seen and identified each one of the culprits with various weapons. The evidence shows that the witness had improved his statement in the Court from his Police statement in respect of his presence at the Thara and presence of search light. Thus the statement of this witness is also not free from serious doubt.
30. 30.As regards the statement of PW.19 Aziz-ur-Rehman, he was injured, his presence at the bean of incident cannot be doubted but he did not involve any of the accused person as he did not name any one of them on the ground that he did not know them. Thus his evidence supports the incident but not the culprits. After scrutinizing the ocular testimony, we are of the considered view that the same is not free from doubt.
31. 31.As regards dying declaration of deceased Muhammad Sadiq, PW.4 Dr. Muhammad Azam, who examined him in injured condition, found the following injuries on his person: "1. A lacerated wound 10 cm X 3 cm going deep into the chest cavity, piercing the muscles of the back of lower part of the left chest."
32. The said Doctor also opined that. The condition of the injured was serious. He was administered first aid and also supplied oxygen and then he was referred to general operation theatre for further management". Thus, condition of the deceased was very serious therefore he was shifted to General Operation Theatre. The age of deceased shown by the Doctor was 70 years; the deceased died in the Hospital on 21.04.1998, his post-mortem was conducted by PW.7 Dr. Muhammad Yousaf Kazmi, who opined that the deceased was an old man having; thin built with 11 and 12 ribs fractured on back, pleuras damaged, right lung congested blackened lower part, left lung blackened exudates present lower part congested. Blood vessels damaged under injuries. It is evident from the record that he had undergone a surgery. The Doctor further opined that incised wound i,e, Injury No, 2 was an operation wound. The condition of the deceased Muhammad Sadiq shown by both the Doctors before the death was very serious.
32. Keeping in view above position, it is highly improbable for the deceased to have talked, particularly, after operation. However, the prosecution examined PW.27 Inspector Arshad Mehmood to prove the dying declaration. His evidence reveals that on 15.04.1998 at about 2:00 p.m. one police officer written the dying declaration of the deceased and he had signed the same. The said statement was recorded under Section 161, Cr.P.C. His evidence further reveals that he obtained permission from Doctor to record the statement by moving an application Ex.PDD who permitted him to do so vide Ex.PDDl. The said Doctor was not examined by the prosecution to prove the signature on Ex.PDD1. No name is mentioned under the said signature nor the stamp of the hospital is available on it. Production of document and proof of document are two different subjects. A document can be produced but it is always subject to proof as required under Article 78 of the Qanun-e-Shahadat Order, 1984. It is the case of the prosecution that Ex.PDD1 was signed by the Doctor without showing his name. The defence has seriously denied the said aspect of the case, therefore, it was incumbent upon the prosecution to have examined the Doctor to prove his signature but the prosecution has failed to do so. Therefore, the signature of the doctor on alleged Ex.PDD1 has not been proved in accordance with law. Furthermore, the police officer who had written the dying declaration was also not examined so as to prove the dying declaration. PW.27 had signed the said document by stating that the dying declaration was made in his presence. It is pertinent to point out that the dying declaration Ex.PDD is not the original document but it is a carbon copy of the alleged dying declaration. Under the Qanun-e-Shahadat Order the contents of document are required to be proved either by primary or secondary evidence as required under Article 72 of the said Order. The definition of primary evidence has been given under Article 73 of the said Order, which means the document itself produced for the inspection of the Court, meaning thereby that the original document is required to be produced before the Court. If primary evidence is not produced before the Court, then the law requires that its secondary evidence can be produced which means the copies of the original document. For producing secondary evidence Article 75 of the order requires that the secondary evidence can be produced as provided under Article 76 of the Order by proving one or more conditions mentioned in the said Article. Admittedly, the original dying 'declaration was not produced before the Court, therefore, the prosecution was required to have proved any one of the conditions mentioned under Article 76 of the Order to prove the contents of document through secondary evidence. In absence of such evidence, the document Ex.PDD has lost its evidentiary value. We are conscious of the fact that dying declaration can be made orally, therefore, the prosecution was required to have led evidence of the person who had heard the actual words of the deceased uttered before him but no such evidence was led before-the Court. Even PW.27 did not state the actual words of the deceased, therefore, the dying declaration was not proved in accordance with law.
33. 33.As regards the conspiracy, the complainant in the FIR disclosed that the facts of conspiracy were told to him by PW Amir Ali but in his Court statement he stated that the facts of conspiracy were disclosed to him by the deceased Masood Akbar Khan, PW.14 Muhammad Ramzan and PW Amir Ali. This is a clear improvement in his evidence from his earlier statement, which has been made to strengthen the prosecution case so as to give support to the statement of PW.14 Muhammad Ramzan. It is not the case of the prosecution that PW Amir Ali was not traceable or he was not available but on the contrary record reveals that on 16.07.1999 PW Amir Ali was present in the Court but he was given up on the ground that he was an unnecessary witness. The prosecution without realizing the fact that he was the most important witness on the issue of conspiracy but did not examine him on the plea that he was unnecessary witness. Thus the best 'evidence of conspiracy was the statement of PW Amir Ali which has been withheld by the prosecution. It is well settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e- Shahadat Order can fairly be drawn that if PW Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution. Be that as it may, the prosecution examined.
34. Muhammad Ramzan (PW.14) to prove the conspiracy. The learned High Court examined this aspect of the case and rightly reached the conclusion that the prosecution failed to prove this piece of evidence. We do not find any reason to interfere with such findings.
35. 34.As regards the recoveries of weapons from the possession of appellants Muhammad Rafique, Aziz Khan and Iftikhar, suffice it to say that as per FSL report the empties secured from the place of occurrence matched with the weapons secured from the house of Altaf Saleh only. Thus such recoveries cannot help the prosecution in any manner.
36. 35.In the light of what has been discussed above, the prosecution case is highly doubtful, therefore, the conviction and sentence awarded to the appellants cannot be sustained.
37. 36.Above are the reasons of our short order dated 22.10.2009, which reads as under: For reasons to be recorded later in the detailed judgment, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction. Consequently, Criminal Appeal Nos, 354 to 356/2002 filed by the convicts are allowed, they shall be released from jail forthwith unless detained in any other case and Criminal Petition No, 623- L/2002 filed by the complainant is dismissed and leave refused."