' LIAQAT ALI SHAH, J.---Appellants Sardar Shah son of Hakeem Khan aged 27/28 years and Hakeem Khan son of Abdur Rahim aged 79/80 years have preferred the instant appeal against the judgment of the learned Judge Anti-Terrorism Court, Mardan dated 30-4-2009, in case F.I.R. No,435 dated 13-9-2007 registered against them under sections 302/324/109/148/149, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 in Police Station Jabbar, Mardan.
2. Appellant Sardar Shah was convicted and sentenced as under:-- 3(sic) Under section 7(C) ATA Convicted and sentenced to 10 years'
R.I. (on five counts) with a fine of Rs.50,000 or in default thereof to undergo one year's R.I. (for causing grievous injuries to Jamshid, Hazrai Ali, Wasif, Bakht Zada and Amir Zada).
4(sic). Under sections 148/ 149, P.P.C.Convicted and sentenced to 3 years'
R.I.
5(sic) Under sections 544, Cr.P.C.Sentenced to pay a fine of Rs.50,000 as compensation, which on recovery was ordered to be paid to the legal heirs of each deceased or in default thereof to undergo 6 months' R.I.
6(sic) Under section 544-A, Cr.P.C.Sentenced to pay a fine of Rs.50,000 or in default thereof to undergo 6 months' R.I on each count as compensation to all the injured.
7(sic) Sentenced to pay a fine of Rs.50,000 (on five counts) as compensation to the victims or in default thereof to undergo 6 months' R.I.
8(sic) The fine and compensation was ordered to be recovered only, if the death sentence is not executed, or is altered or modified by the High Court into imprisonment.
Sr. No. Section of Law Conviction/Sentences
1. xUnder section 21-1/ Section 7(a) ATA r/w section 302/149, P.P.C.Convicted and sentenced to imprisonment for life (on three counts) with a fine of Rs.50,000 or in default thereof to undergo one year'
R.I each,. (for the murder of deceased Muhammad Ali, Haji Gharib Gul and Muhammad Sadeeq).
2. Under section 21-I/ Section 7(b) ATAConvicted and sentenced to 10 years'
R.I (on five counts) with a fine of Rs.20,000 or in default thereof to undergo one year' R.I. on each count (for attempting at the lives of Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada).
3. Under section 7(C)/ 21- IATAConvicted and sentenced to 10 years'
R.I. (on five counts) with a fine of Rs.50,000 or in default, thereof to undergo one year's R.I. (for causing ' While appellant Hakeem Khan was convicted and sentenced as under: grievous injuries to Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada).
4. Under sections 148/ 149, P.P.C.Convicted and sentenced 3 years R.I.
5. Under section 544-A, Cr.P.C.Sentenced to pay a fine of Rs.50,000 or in default, thereof to undergo 6 months' R.I on each count as compensation to all the injured. Both the sentences in default of payment of fine were ordered to run consecutively to the substantive sentence.
6. Sentenced to pay a fine of Rs.50,000 as compensation to the legal heirs of each deceased or in default thereof to undergo 6 months' R.I. on each count.
Both the sentences in default of payment of fine shall run consecutively to the substantive sentence.
7. Sentenced to pay a fine of Rs.50,000 (on five counts) as compensation to the victims or in default thereof to undergo 6 months' R.I. Both the sentences awarded to the accused in default of payment of fine were ordered to run consecutively to the substantive sentence.
8. All the substantive sentences other than those in default of payment of fine/compensation were ordered to run concurrently and the benefit provided by section 382-B, Cr.P.C. be given to the accused-appellant.
3. Brief facts of the case are that on 13-9-2007, complainant Wasif son of Haji Gharib Gul, in injured condition, reported the matter to the police in the Causality of DHQ Hospital, Mardan in presence of Umarzada to the effect that on the eventful date at 2025 hours, after offering Khuftan congregational prayer, when they were waiting/standing for Taraweeh prayer, in the meantime, appellants Sardar Shah and Hakeem Khan along with their absconding co-accused Said Nawab, Fazal Wahab and Said Ali Shah duly armed with daggers and firearms, entered the mosque, known as Masjid Bilal Sadiq Abad, Jamal Garhi, and upon the command of appellant Hakeem Khan, appellant Sardar Shah and absconding co-accused, named above, gave daggers blows, in the courtyard of the mosque, to complainant Wasif son of Haji Gharib Gul, Muhammad Sadeeq, Haji Gharib Gul and Muhammad Ali as well as Bakht Zada, Amir Zada, Jamshid and Hazrat Ali as a result whereof Muhammad Sadeeq, Haji Gharib Gul and Muhammad Ali died and he along with four persons namely, Bakht Zada, Amir Zada, Jamshid and Hazrat Ali got injured. Motive for the occurrence was that 3/4 days prior to the present occurrence, there was some altercation between P.W. Umarzada and appellant Sardar Shah. The occurrence was witnessed by Umarzada, Momin Khan including injured persons and other persons present in the mosque besides the complainant. After the occurrence, the accused party while decamping from the spot, opened aerial firing. The complainant charged the appellants along with their absconding co-accused for the commission of offence. His report was drafted in the shape of Murasila, Exh.PA/1 by Mushtaq Ahmad, who after preparing the injury sheets and inquest reports of injured persons and deceased, sent the dead bodies to the mortuary for autopsy under the escort of Muhammad Arif, FC and also sent the murasila through Noorul Qamar, FC to the Police Station for the registration of a formal F.I.R. Both of the appellants were arrested on 13-9-2007 i.e,, the very day, when the case was registered.
4. On completion of investigation, the convicts-appellants were challaned to the Court for trial. The copies of the relevant documents under section 265-C, Cr.P.C. Were supplied to them. The charge was framed against them, to which they pleaded not guilty and claimed trial.
5. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the appellants etc., produced as many as eleven witnesses. (P.W.1) Muhammad Arfi, FC No,1357, escorted the dead bodies to the hospital for postmortem and the inured persons for medical treatment. After the postmortem examination, the doctor handed over to him the postmortem papers and medico-legal reports, which he further handed over to the investigating officer on the following morning. (P.W.2) Safdar Shah had identified the dead bodies of Muhammad Ali, Muhammad Sadeeq and Haji Gharib Gul before the police as well as before the doctor. (P.W.3)
Ali Haider was the marginal witness to the recovery memos, Exh.P.W.3/1 and Exh.P.W.3/2, vide which, both the appellants led the police party to the place of occurrence and pointed out their respective places to the police as well as on the pointation of appellant Sardar Shah, a dagger, which was used in the commission of offence was taken into possession by the police. (P.W.4) Dr. Farrukh Uzair, MO, on 13-9-2007 had examined injured Bakht Zada, Jamshid, Wasif, Hazrat Ali and Amir Zada and prepared their medico-legal reports and endorsed the injury sheets vide, Exh.P.W.4/1, Exh . P . W .4/2 ; Exh . P. W . 4/3 , Exh . P.W .4/4 , Exh. P . W. 4/5 , Exh. P. W . 4/6; Exh. P .W. 4/7 Exh. P .W .4/8 and Exh.
P. W .4/9, Exh. P. W . 4/10 respectively. On the same date at 10-00 p.m., he conducted postmortem examination of deceased Muhammad Ali, vide Postmortem report Exh.P.W.4/11 and endorsed on the injury sheet and inquest report vide Exh.P.W.4./12 and Exh.P.W.4/13 and founding the following:-- External Examination.
' Young bearded man, wearing sky blue Shalwar Qameez and white banyan.
Injuries ' Deep transverse clean incised wound left side neck with clotting blood in the wound 1 x 1 inch.
Another clean incised wound on the left shoulder 2 x 2 inches.
Internal Examination.
' Larynx and trachea Damaged.
' Blood vessels Left Jagular vein and left carotid artery cut.
' Opinion.
' In the opinion of the doctor, the cause of death was excessive bleeding due to direct cutting of neck vessels, (Jagular vein.And carotid artery on left side) due to stabbing injury with a sharp weapon.
' Probable time that Elapsed.
(a) Between injury and death 10 to 15 minutes.
(b) Between death and postmortem : Within 2 hours.
' On the same date, at 10-30 p.m. He also performed postmortem examination of Muhammad Sadeeq deceased vide Postmortem report Exh.P.W.4/14 and endorsed on the injury sheet and inquest report vide Exh.P.W.4/15 and Exh.P.W.4/16 and found the following:-- ' External Examination.
' A young stout man, wearing white Shalwar Qameez and white banyan.
' Injuries ' There was a clean incised oblique wound left lumber region posteriorly about 3 x 3 inches gapping in nature with clotted blood in it.
Internal Examination.
Thorax Blood vessels Left renal vessels damaged.
Abdomen Walls Left lumber region posteriorly 3 x 3 inches gapping clean incised wound wound cutting all abdominal vessels. Peritoneum Bruised.
Kidneys Left kidney damaged. Muscles, bones and joints All abdominal wall muscles damaged on left lumber region posteriorly.
Opinion.
' In the opinion of the doctor, the person died of excessive blood loss due to direct damage to left kidney and its vessels caused by penetrating sharp weapon.
Probable time that elapsed.
(a) Between injury and death : 10 to 20 minutes.
(b) Between death and Postmortem : Within 2 hours.
' On the same date at 11-00 p.m, he also conducted autopsy of deceased Gharib Gul, vide Postmortem report Exh.P.W.4/17 and endorsed and the injury sheet and inquest report vide Exh.P.W.4/18 and Exh.P.W.4/19 and founding the following:-- External Examination.
' Old man with white beard, wearing white Shalwar Qameez. Injuries ' There was a clean incised gapping would 3 x 3 inches (right lumber region) posteriorly with clotted blood in the wound.
Internal Examination.
Throrax Blood vessels Right renal vessels damaged Abdomen Walls Right lumber region, all abdominal wall muscles Muscles, bones and joints.
' Right lumber region abdominal wall muscles damaged.
Opinion.
' In the opinion of the doctor, the person died of excessive blood loss due to the injury of right kidney and its vessels caused by penetrating shape weapon.
' Probable time that elapsed.
(a) Between injury and death 10 to 20 minutes.
(b) Between death and Postmortem Within 2 hours.
' (P.W.5) Saeedullah A.S.-I. Was the marginal witness to the recovery memos, Exh. P . W .5/1 , Exh . P.
W.5/2, Exh. P.W.5/3 , Exh . P.W.5/4 , Exh.P.W.515, Exh.P.W.5/6, Exh.P.W.5/7 Exh.P.W.5/8, vide which the Investigating Officer took into possession, the blood-stained garments of five injured witnesses as well as three deceased persons. (P.W.6) Ghulam Bacha, A.S.-I., on the receipt of copy of Murasila, Exh.PA/1, incorporated its contents into F.I.R., Exh.PA, which was further handed over to the Investigation Branch. (P.W.7) Mushtaq, A.S.-I. Had recorded the report of Wasif complainant, Exh.PA/1 in presence of P.W. Umarzada, who also signed the same as an attesting witnesses.
Thereafter, he prepared the injury sheets of the inured witnesses vid Exh. P.W.7/1 , Exh. P. W.7/2, Exh.P.
W. 7/3, Exh.P.W. -7/4 and Exh.P.W.7/5 respectively and also prepared the injury sheet and inquest reports of three deceased persons, already exhibited as Exh.P.W.4/12, Exh.P.W.4/15 and Exh.P.W.4/18 and Exh.P.W.7/6, Exh.P.W.7/7 and Exh.P.W.7/8 respectively. After that, he sent the dead bodies along with injury sheets to the mortuary for postmortem examination under the escort of Muhammad Arif, FC and sent the murasila to Police Station through Noorul Qamar FC for the registration of a case. (P.W.8) Wasif, complainant had reiterated the whole story as narrated above. (P.W.9) Momin, was an eyewitness of the present occurrence and duly supported the version of complainant Wasif and reiterated the whole occurrence as narrated above. (P.W.10) Umar Zada was also the eye- witness of the present occurrence and had countersigned the report of the complainant. At his instance and pointation as well as at the instance of P.W.9. The Investigating Officer prepared the site plan. (P.W.11) Javed Shah Khan, S.-I. (Investigation) had conducted the whole investigation of the instant case. He visited the spot, prepared the site plan, Exh.PC at the instant of P.Ws. Umar Zada and Momin; the appellants were arrested by S.H.O. Jan Zada vide Card of arrest, Exh.P.W.11/1 and Exh.P.W.11/2; took into possession bloodstained garments of injured Amir Zada vide recovery memo, already exhibited Exh.P.W.5/1; took into possession cover of the dagger from point-C from the place of occurrence, Exh.P-19, vide recovery memo, Exh.P.W.11/3; took into possession of bloodstained cap of deceased Gharib Gul, Exh.P-20 from point-A, vide recovery memo, Exh.P.W.11/4; took into possession blood-stained through cotton from the place of occurrence at the points of deceased Muhammad Ali, Muhammad Sadeeq and injured Hazrat Ali were laying, vide recovery memos Exh. P.W. 11/5, Exh. P.W .11/6 and Exh. P.W. 11/7 respectively; took into possession an electric rod, which was installed inside the mosque and lit at the time of occurrence, vide recovery memo Exh.PW-1 1/8; took into possession the bloodstained garments of five injured and three deceased vide recovery memos, already exhibited Exh.P.W.5/1, Exh.P.W.5/2, Exh.P.W.5/3, Exh.P.W.5/4, Exh.P.W.5/5, Exh. P. W.5/6, Exh. P.W. 5/7 and Exh. P.W .5/8 respectively; took into possession photographs of the place of occurrence, vide recovery memo Exh. P. W.11/9, Exh. P.W.11/10 and Exh.
P.W. 11/11 respectively; produced the appellants and obtained their custody vide three separate applications, Exh. P.W. -11/12, Exh. P.W.11/13 and Exh. P.W. 11/14 respectively; produced the appellants before the Court vide application Exh.P.W.11/15, wherefom they were sent to judicial lockup; both the appellants, during the course of investigation, made pointation of the place of occurrence, already exhibited as Exh.P.W.3/1 and on the discovery of appellant Sardar Shah from his house, he (I0) took into possession a dagger, which was used in the commission of offence, already exhibited as Exh.P.W.3/2; regarding this recovery, he prepared a sketch, Exh.PD; he (IO) applied for warrant and proclamation notices under sections 204 and 87, Cr.P.C. Against absconding accused vide application Exh.P.W.11/16 and Exh.P.W.11/17; also prepared the list of legal heirs of deceased; sent the recovery articles to the FSL and received their reports, Exh.PE; recorded the statements of P.Ws. As well as the appellants under sections 161/164, Cr.P.C.; thereafter, he handed over the file to Jan Zada Khan, S.H.O., who submitted the complete challan against the appellants in the Trial Court on 4-10- 2007. The prosecution after abandoning the remaining P.Ws. As unnecessary closed the case.
6. On conclusion of prosecution evidence, the convicts-appellants were examined under section 342, Cr.P.C. They, in their statements, denied the charges and pleaded innocence. They, however, didn't opt to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.
7. Barrister Zahurul. Haq, the learned counsel for the appellant, counsel for the complainant and the learned Additional Advocate-General argued the case. The learned counsel for the appellants contended that four brothers along with their father have been charged for the commission of offence, which by itself would indicate that a false charge has been brought against the entire family members. To substantiate the above arguments, he referred to the numbers of injuries sustained by all the deceased and injured P.Ws. Namely Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada. He further submitted that injured witnesses, except Wasif complainant, have been abandoned without any valid reasons, which fact goes a long way against the prosecution and that the learned Trial Court couldn't record conviction against the appellants qua those injured witnesses, who were not produced during the trial.
8. When the learned counsel for the appellants made this submission, both the counsel for the State as well as complainant party were asked to argue on this point first. Both of them conceded it to this proposition and very candidly conceded that the appellants could have not been punished for the injuries caused to those, who haven't appeared and charged the appellants during the trial.
The learned counsel for the appellants in this respect had relied on 1991 SCM R 241 and 1992 SCM R 2037. In view of the arguments of the learned counsel for the appellants as well as both the learned counsel for the State and complainant party on this aspect of the case, we without making reference to any other piece of evidence would set aside the conviction and sentence awarded to the appellants for causing injuries to the injured P.Ws., who were not produced during the trial. On the same analogy, the learned counsel for the appellant argued that when none of the legal heirs of any of the deceased has formally been examined to charge the appellant for the murder of the deceased, conviction for such murders cannot be recorded on the evidence of those, who do not fall in the category of legal heirs of the said deceased persons. He, while elaborating his this submission, made reference to section 417(2), Cr.P.C. Where right of appeal has been given only to an aggrieved person and not to anyone else even if he is cited/ examined as a complainant or a witness.
9. The learned counsel for the appellants next contended that when four injured witnesses were not produced during the trial, the learned Trial Court was under legal obligation and similarly this Court to draw an adverse inference in terms of Article 129(g) of Qanoon-e-Shandat Order, 1984. He relied on the judgments rendered in 1972 SCM R 286 and 1996 SCM R 167 and 170.
10. He next contended that discovery of dagger, alleged to have made at the instance of the appellant Sardar Shah is also to be excluded from consideration, for the reason that discovery memo, it is nowhere stated that the dagger was blood-stained, whereas, in the FSL report, it is mentioned as bloodstained and that this contradiction between FSL report and the discovery memo prepared by the Investigating Officer would lead to the only conclusion that the discovery is nothing but plantation. By relying on 2004 PCr.LJ 813 arguing the case of the appellant Hakeem Khan, the learned counsel contended that the word used in the F.I.R. Is "Maro", which in no way can be taken as substitution for "Kill". He further submitted that age of this appellant has been recorded 78/79 in his statement recorded under section 342, Cr.P.C. In this respect, he relied on PLD 1975 SC 556 (8). His next argument was that more than one accused were charged then corroboration of each accused is required, which is lacking in this case. In this respect, he relied on 1998 SCM R 1823 (b). He further argued with more vehemence that the Court in criminal cases has to give much, weight and due consideration to the conduct of accused. While elaborating this submission, he submitted that when accused absconds after the commission of offence, then the Court take his abscondance as a corroborative piece. He emphasized on the fact that similar importance is to be given to a conduct, which is positive in nature. Thereafter, he submitted that the two appellants had voluntarily appeared before the police on the very day of occurrence. He further submitted that had the appellants, in any way, connected or had any concerned with the commission of the offence, then in the normal course of event they would have never surrendered rather like the other co- accused, they would have also absconded. He next contended that the presence of P.W.
Momin and Umarzada has not been established for more than one reason. While elaborating his submission, he took us through the site plan, which, according to the learned counsel, is shown to have been prepared at the instance of the above named PWs, who were examined during the trial as P.Ws. 9 and 10 respectively. He submitted that the occurrence is stated to have taken place at 2025 hours, that too, in a mosque and the people has gathered their for "Tarawheeh" prayer and on the next day, the month of "Ramadan" had to commence. So in such like situation, the gathering in the courtyard of the mosque would be quite thick and it was almost impossible for the witnesses to have given specific points to the accused as well as the victims. More particularly, when in such a situation, there would have definitely been chaos and panic. He next argued that had these P.Ws.
Been present, their names would have appeared, at least, as a friend/identifiers on the medico- legal report and the inquest reports or on the postmortem report whereas, none of the two appeared as such on any of the above documents, which shows that none of the two were present.
About the absence of the P.W. Umarzada, he argued that when motive is specifically alleged to be between Umarzada and the accused party, then he would have not been spared more particularly when four accused are stated to have participated in the commission of the offence directly and one had commanded.
11. The learned counsel for the complainant argued that the spot has been established rather it remained undisputed that the discovery of dagger at the instance of appellant Sardar Shah, which proved to be weapon of offence, has left no room for any doubt; that each of the accused has been specifically shown in the site plan to have given injury(s) to particular victims; that more material contradiction appears in the statement of the P.Ws. And that the medical evidence fully corroborate the eye account. He submitted that non production of four witnesses would in no way adversely effect the prosecution case as it stood established from the convincing and confidence inspiring evidence of complainant and two eyewitnesses. He submitted that for such causality, why the complainant and other witnesses would have let the actual culprits. He argued that in the case, if from the evidence, this Court frames an opinion that specific role to each of the accused is not established even then the appellants are responsible/liable under section 149 of the P.P.C. For the acts of other co-accused. He relied on the judgments rendered in PLD 1984 SC 375, 2005 PCR.LJ 279; 2009 M LD 54; 2007 NLR 317(sic) and 1998 SCM R 181.
12. Mr. Ishtiaq Ibrahim, the learned Additional Advocate-General appearing on behalf of the State submitted that the appellants have rightly been convicted and that they have committed the brutal and gruesome offence and there is no such evidence on the record from which any benefit can be given to them as it is quality of evidence not the quantity, which is taken into consideration.
13. As three co-accused of the appellants are absconding, so while deciding the instant appeal, we would avoid, to every possible extent, to discuss the case with such details which may not affect the case whenever the absconding accused are brought to book and tried.
14. Before addressing the arguments advanced by the learned counsel for the parties and discussing the evidence, we would like to refer to the fact that the case was initially registered under sections 302/ 324/148/149, P.P.C. By the local police and after the arrest of the appellants they were produced before the learned Magistrate for obtaining police custody who vide order dated 14-9-2007 remanded the appellants to police custody till 17-9-2007. This fact is evident from Exh.P.W.11/12. It so appears that the learned trial court i.e, Judge Anti-Terrorism Court, somehow or other, came to know about the occurrence and he while taking suo motu notice directed the local police to produce the accused appellant along with record of the case before him. This fact is clear from the order of the Judge Anti-Terrorism Court dated 15-9-2007 which is reproduced herein below:-- "Accused Sardar Shah aged about 26 years son of Hakim Khan and Hakim Khan aged about 65 years son of Abdur Rahim both residents of Sadiq Abad cum Jamal Garhi Mardan produced in custody. In the case in hand both the accused stand directly charged in the initial report lodged by Wasif the injured complainant. As many as three persons have been stabbed to death and five injured. Previously three days police custody was obtained from a Magistrate, but keeping in view the nature of the case suo motu notice was taken by this court and jurisdiction was assumed whereupon section 7 ATA was added to the charge. Request of the local police is genuine. Hence fresh three days police custody of both the accused is allowed and they should be produced on 18-9-2007 after Medical examination."
15. We could not find any such like provision in the Anti-Terrorism Act, 1997 which empowers a court constituted under the ibid Act to take such like suo motu action. The Anti-Terrorism Courts are established under section 13 of the Act ibid. Section 14 provides for composition and appointment of Presiding Officer Anti-Terrorism Court. Section 17 provides about the powers of Anti-Terrorism Court in respect of other offences and section 19 provides procedure and powers of Anti-Terrorism Court. We would like to reproduce subsections (1) and (7) of section 19 of the Act ibid. "(19) Procedure and powers of Anti-Terrorism Court. (1) All offences under this Ordinance, except the offences in respect of which the investigation has already been completed and final report under section 173 of the Code has been submitted in the Court, shall be investigated by a Joint Investigation Team which shall comprise of a police officer not below the rank of an Inspector and an officer of any other investigating agency, including an intelligence agency, whom the Federal Government or as the case may be, the. Provincial Government, may nominate for the purpose.
The Joint Investigating Team shall complete the investigation in respect of a case triable by an Anti-Terrorism Court within seven working days and forward directly to the Anti-Terrorism Court a report under section 173 of the Code.
(7) The Court shall, on taking cognizance of a case, proceed with the trial from day to day and shall decide the case within seven days, failing which an application may be made to the Administrative Judge of the High Court concerned for appropriate directions for expeditious disposal of the case to meet the ends of justice."
16. Section 19 consists of 14 subsections but none of the subsection authorizes the court to take such like suo motu action. Section 23 of the Act ibid empowers the Anti-Terrorism Court to transfer the case for trial of an offence to any court having jurisdiction under the Code if the Anti-Terrorism Court is of the opinion that the offence is not a schedule offence. It so appears that the trial Judge has assumed the powers which were not available to him by the Act ibid. Such-like powers can be exercised by the High Court that too in its constitutional jurisdiction when it comes to the conclusion that the case is one triable under the provisions of Anti-Terrorism Act but the Investigating Agency, for one reason or the other has not added the provisions of Anti-Terrorism Act. We have discussed the above given position for the only reason that in future a court of law may not exercise such like jurisdiction/ powers. We would not remand the case for this reason as challan was submitted, in accordance with provisions of Anti-Terrorism Act, 1997.
17. We would first examine as to whether from the evidence the presence of P.Ws. 9 and 10 is established beyond reasonable doubt. It has remained the case of the prosecution from day one that the motive was between Umarzada P.W. And appellant Sardar Shah and that the said Umar Zada was present in the mosque at the relevant time. The site plan (Exh.PC) has also been prepared at the instance of P.Ws. Umarzada and Momin. When the alleged motive directly relates to P.W. Umarzada and complainant or for that matter the other injured persons (not examined) are, in no way, connected with the motive, then we are unable to understand as to why Umarzada was spared. None of the accused including the appellants is alleged to have made any attempt at the life of Umarzada.
18. Similarly Umarzada (P.W.10) states that the motive for the occurrence was a verbal altercation between him and the appellant Sardar Shah which took place 3/4 days prior to the occurrence. He had stated that his hands and clothes were besmeared with blood as he and Momin had taken Wasif the complainant in injured condition and that the police officials also noticed this fact that his hands and clothes were besmeared with blood. The Investigating Officer (P.W.11) Javed Shah S.- I. Has nowhere stated in his statement that the hands and clothes of P.Ws. Umarzada and Momin were besmeared with blood. Similarly, there is no recovery memo of any such clothes of the said P.Ws.
19. When no motive is alleged qua the deceased and injured persons and it is specifically against this P.W. Then it is a mystery as to why none of the accused, more particularly, appellant Sardar Shah made an assault on him.
20. No doubt weakness of motive or absence of motive, per se, cannot be taken fatal to the prosecution case but in the present case the alleged motive cannot be ignored/overlooked because it has direct bearing on the presence of P.W. Umarzada and also for his own motive on the presence of P.W. Momin. In the very F.I.R. As .Well as in the statement of P.Ws. Recorded at the trial it has been categorically stated that the motive was between P.W. Umarzada and appellant Sardar Shah. None of the P.Ws. Have referred to any motive between the injured, the deceased and the appellant. They remained stuck to the motive between Umarzada and appellant Sardar Shah. We are unable to understand when the motive was directly relating to PW Umarzada then why none of the accused, including the appellants, even tried to attempt at the life of this P.W. This fact leads to a conclusion that the presence of P.W. Umarzada at the relevant time is not free from doubt. We may add that no question was put to either of the appellants about the motive in their statements under section 342, Cr.P.C.
21. Yet another aspect, which cannot be overlooked with reference to the presence of Umarzada and Momin, is the inquest reports of the, deceased persons. We did not find any of the above said two witnesses as identifiers in the relevant column neither in the inquest reports nor in the postmortem reports. The identifiers in the inquest as well as postmortem reports are Umar Khitab son of and Safdar Shah son of Dilawar Shah.
22. In 2009 SCM R 736 citation "A", the Hon'ble apex Court while disbelieving the presence of the eye- witnesses held that:-- "We have also noticed that on the inquest reports of the two deceased prepared by the police immediately after registration of the case, one Muhammad Suleman and Sarfaraz identified both the deceased which also shows absence of P. W.10 at that time."
' The Hon'ble apex Court had maintained conviction in that case on the judicial confession only by excluding the testimony of the eyewitnesses. In view of the above discussion, we entertain doubt about the presence of P.Ws. Umarzada and Momin.
23. Before dilating upon any other aspect of the case we would like to refer to the fact that injured Bakht Zada is the cousin of complainant whereas Hazrat Ali is cousin/brother-in-law of the complainant and injured Amir Zada is the husband of his aunt and injured Jamshed is his neighbour. So except for injured Jamshed the remaining injured are very closely related to the complainant family. They were not produced during the trial. The public prosecutor and learned counsel for the complainant had given the following statement which is available at page 96, as follows:- "Joint statement of Arifullah Shah, PP Anti-Terrorism Court Mardan and Maqsood Anwar Aziz, advocate counsel for the complainant.
' We abandon all the remaining P.Ws. Being unnecessary except P.Ws. Jan Zada S.H.O. And Javed Shah S.-I."
' The said injured prosecution witnesses were abandoned as unnecessary. We don't agree that these witnesses were unnecessary. When the above relationship of the injured persons finds mention in the statement of complainant Wasif (P.W.8), being injured witnesses, their testimony would have been of great worth and significance. According to our understanding the reason for their non-production could be that they were not supporting the prosecution case in the mode and manner as it was reported. Otherwise, being so closely related and being injured witnesses they would have been definitely produced. This leads us to draw an inference adverse to the prosecution in terms of Article 129(g) of Qanun-e-Shahadat Order 1984.
' In the continuity we may observe that P.W. Jan Zada S.H.O. Was also not produced who had statedly arrested the appellants. The arrest cards prepared by the said S.H.O. Were exhibited during the statement of Javed Shah S.-I. As Exh.P.W.11/1 and Exh.P.W.l1/2.
24. The learned counsel for the appellants had contended that the appellants had voluntarily surrendered before the police on the very day of occurrence when they came to know about the charge.
25. We have already reproduced the statement of the Public Prosecutor and the private counsel for the complainant. On record we could riot find the statement of Jan Zada S.H.O. And the arrest cards of the appellants Exh.P.W.11/1 and Exh.P.W.11/2 were exhibited during the statement of P.W.
Javed Shah. We are left with no option but to accept this contention of the learned counsel for the appellants. When an accused person absconds then in cases, if not in every case, the abscondence is taken as a circumstance against him. On the basis of same principle we take this conduct of the appellants in their favour.
26. Complainant, Wasif, who was examined as P.W.8 had given almost similar statement as had been given by P.Ws. 9 and 10. He confirmed his report Exh.PA/1 and also his signature thereon. He had stated that the report was countersigned by P.W. Umarzada also. When cross-examined, this witness had stated that appellant Sardar Shah has five shops in Jamal Garhi where he runs different kinds of business. He also admits that there is a mosque known as Masjid Bilal in front of the house of the accused facing trial and that P.W Umarzada is residing in a rented house of one Faiq Khan and his deceased father was the Nazir of Faiq Khan. From the statement of this witness it so appears that appellant Sadar Shah is the earning hand of the family. It has judicially been noticed by the court, that people do involve head/earning hand of the family with guilty persons of the same family.
27. Additionally the report was recorded in presence of P.W. Umarzada and it is an admitted fact that the said Umarzada had personal motive with appellant Sardar Shah. In view of the peculiar circumstances, we cannot exclude the possibility that at the time of report the complainant was under the influence of P.W. Umarzada and it was at his instance that the name of appellant Sardar Shah has also been included whereas appellant Hakeem Khan who, as per age recorded in his statement under section 342, Cr.P.C, is of 78/80 years old and has been assigned only the role of command.
28. Now we would take the discovery of dagger. According to recovery memo Exh.P.W.3/2 the Investigating Officer had taken into possession the dagger (P1) which was pointed out by the appellant Sardar Shah. This discovery was allegedly made on 18-9-2007. In sketch (Exh.PD) the place is shown wherefrom the said discovery was effected which is latrine of the house of the accused. There is nothing in memo. Exh.P.W.3/2 or in sketch Exh.PD that the dagger was blood stained. Neither in the statement of P.W.11 i.e, I.O. It is mentioned whereas in the FSL report Exh.PE it was found to be having stains of human blood. This report is dated 16-1-2008. When neither the I.O.
Has stated nor in the sketch nor in the recovery memo it has been stated that the dagger was blood stained, then how in the laboratory report the dagger was found having stains of human blood. Additionally the said discovery was effected on 18-9-2007 whereas the appellant was arrested on 13-9-2007.
' None of the eye-witnesses in their court statement had stated about the accused including the appellants by specifically charging as to who gave blows to whom. Surprisingly in the site plan not only specific points have been attributed to all the accused including the appellants but also as to who inflicted blows to whom, for instance, point No,1 is assigned to deceased Gharib Shah where he fell after receiving blow at the hands of the appellants. Same is the case with other accused and victims.
29. In the site plan from point 'C' a dagger-sheath is alleged to have been recovered. Through naked eyes we observe that this is subsequent addition as it is with dark ink whereas the entire remaining site plan which includes entry after point 'C' as well is with other ink. In such circumstances, we are unable to understand as to how so precisely the places of the victims and the accused have been given by the I.O. When none of the witnesses in their statements has so stated. So it is a fact which leads us to the inference that it was nothing but the brain work of the I.O.
This witness in his cross-examination has admitted it correct that both the witnesses namely, Umarzada and Momin have not shown fire arms with the accused otherwise he would have mentioned the same. To another question he had answered that the statements of P. Ws. Bakht Zada, Jamshed and Amirzada were recorded on 17-9-2007 whereas the statement of Hazrat Ali was recorded on 22-9-2007. He had denied the suggestion that the delay in recording of their statements was for the reason that they were not supporting the case of prosecution. He also had admitted that he had not recorded the statement of Paish Imam of the mosque in order to ascertain the exact time of the Khuftan congregational prayer. He admits that he had not recovered any empty from the spot. He admits that none of the P.Ws. In their statement nor in the F.I.R. Had stated about the tube-light, a source of light for identification of the accused. This witness had further admitted that he had not mentioned in the memo that the dagger was blood-stained.
The statement of the said witness also lend support to the inference which we have drawn in para. 24 as well as about the presence of the two P.Ws. Namely; Umarzada and Momin.
' For what has been discussed above, we are of the view that the prosecution has failed to established its case against the appellants beyond any shadow of doubt. As such, while accepting this appeal, we set aside the conviction and sentences awarded to the appellants and acquit them of the charges. They shall be set free forthwith, if not required in any other case. The Murder Reference is answered in negative.