JUDGMENT IMAM BUX BALOCH, J.---By this Judgment we propose to dispose of S.1. Anti-Terrorism Appeal No.1 of 2008 filed by appellants Shah Nawaz and Amanullah and S.1. Anti-Terrorism Appeal No.4 of 2008 filed by appellants Usman, Raheem, Ali Ahmed and Abdul Majeed, subsequently, the appeal of appellants Usman, Raheem and Abdul Majeed were dismissed vide Judgment dated 14- 4-2008. The above mentioned appeals have been filed against the Judgment dated 3-12-2007, passed in Special Case No.67 of 2006, whereby the learned Judge AntiTerrorism-H Sukkur Division Sukkur, convicted the appellants Shahnawaz and Amanullah and at the same time also convicted appellant Ali Ahmed in absentia and sentenced them as under:-
(a) Under section 148, P.P.C. R.I. For 3 years each.
(b) Under section 302(b) r/w section 148, P.P.C., imprisonment for life on each count and payment of compensation of Rs.25,000 each to be paid to the Legal Heirs of deceased under section 544-A, Cr.P.C. In default thereof S.I. For three months.
(c) Under section 396 read with section 149, P.P.C., R.I for 10 years and fine of Rs.5000 each in default thereof S.1. For two months more.
(d) Under section 7 of ATA 1997, Imprisonment for life each.
(e) Under section 21-L of ATA, 1997 the proclaimed offenders are additionally convicted and sentenced to suffer R.I. For a period of five years.
2. The prosecution case in brief is that few years back the uncle of the complainant Master Abdul Majeed Kalhoro was abducted by Ali Ahmed Tunio and others and in the said case his brother Manthar Ali was witness. On 19-8-2004, complainant Mehboob Ali along with his brother Manthar, P.Ws. Hakim and Arbelo left their cattle/buffaloes in the water in Nouraja minor near village Choonga. There were 65 buffaloes of villagers including the buffaloes of the complainant. At about 1430 hours the accused persons namely Ali Ahmed, Amanullah, Usman, Shahnawaz, Raheem Bux, Allah Bux, Ghulam Rasool, Ghous Bux, Gulsher, Aijaz, Abdul Majeed, Gul Bahar along with 10 unidentified culprits duly armed with Kalashanikovs, guns and rifles came there and challenged that no one should come near to them else they will kill the complainant party. The accused persons forcibly took out the buffaloes from the minor while taking them towards Katcha area. The complainant party raised cries and followed the accused persons. The accused Ali Ahmed Tunio fired with his Kalashnikov with intention to commit murder of the complainant party which fire shot hit the brother of the complainant on his chest, who fell down in the meanwhile P.Ws. Abdul Rasheed Kalhoro, Ali Gul Chachar and other villagers came running whereupon accused Abdul Majeed Kalhoro fired from his Kalashnikov which hit to Ali Gul Chachar on his chest who fell down.
Thereafter all the accused persons fired upon the complainant party but they fell down on the ground in order to save themselves, thereafter the accused persons forcibly took away the buffaloes. Manthar Kalhoro and Ali Gul Chachar were lying dead due to the fire-arm injuries.
3. After completing the investigation and necessary formalities, the appellants were challaned in the court of Special Judge Anti-Terrorism-II, Sukkur. Charge was framed at Exh. No.18 to which the appellants/accused pleaded not guilty and claimed to be tried.
4. During trial, prosecution in support of its case has examined SPO Ashfaq Ali as P.W.1 at Exh. 25, he produced Mashirnama of Arrest and Search at Exh.25-A, Mashirnama of Arrest at Exh.25-B, Complainant Mehboob Ali as P.W.2 at Exh. 26, he produced copy of F.I.R. No.37 of 2004 of Polie Station Baiji Sharif at Exh.26-A, List of robbed Buffaloes at Exh.26-B, SMO Gul Hassan as P.W.3 at Exh.28, copies of two Post Mortem Reports at Exhs.28-A and 28-B, Arbelo as P.W.4 at Exh.29, Abdul Wahid as P.W.5 at Exh.30, Sajid Masood as P.W.6 at Exh.31, Lal Bux as P.W.7 at Exh.32, he produced copy of Receipt at Exh.32-A, Hakim Ali as P.W.8 at Exh.34, Shamsuddin as P.W.9 at Exh.35, he produced copy of Mashirnama of empty bullets at Exh.35-A, copies of two Mashirnama of Place of Wardat at Exhs. 35-B and 35-C, copy of Mashirnama of Arrest and Search at Exh.35-D, Nazeer Ahmed as P.W-10 at Exh.36, he produced copy of Mashirnama of arrest of accused Amanullah at Exh.36-A, Muhammad Murad as P.W.11 at Exh.37, Ghulam Sarwar as P. W.12 at Exh.38, he produced copy of Roznamcha Entry at Exh.38-A, Abdul Sattar as P.W.13 at Exh.39, he produced statement of accused under section 342, Cr.P.C. At Exh.41, Dead Body at Exh.35-B, copies of Statements of Witnesses at Exhs.41-A to 41-C, copy of Statement of Accused Gul Bahar under section 342 Cr.P.C. At Exh.42, copy of Statement of Accused Gul Sher under section 342, Cr.P.C. At Exh.43, copy of Statement of Accused Amanullah under section 342 Cr.P.C. At Exh.44, certified copy of F.I.R. No.22 of 2001 at Exh.44-A, copy of deposition of Ali Asghar at Ex.44-B, copy of Statement of witnesses under section 161, Cr.P.C, Final Voter List 2000-2001 at Exh.44-D, copy Certificate at Exh.44-F, copy of Teacher's Attendance Book for the month of August, 2005 at Exh.44-G, copy of Page No.03 of Visit Book at Exh.44-H, copy of Statement of accused Shahnawaz under section 342. Cr.P.C. At Exh.45.
4-A. Statements of accused were recorded under section 342, Cr.P.C. Accused examined Qadir Bux as D.W-1 at Exh.46, Abdul Rasheed as D.W.2 at Ex.47, Abdul Hakeem as D.W.3 at Exh.48, Moriro as D.W.4 at Exh.49, Ghulam Muhammad as D.W.4 at Exh.50, Attal as D.W.6 at Exh.51. Accused closed their side vide statement dated 13-11-2007 at Exh.52. After hearing the parties the impugned judgment was passed.
5. We have heard Mr. Mehmood A. Qureshi, learned counsel for the appellants in S.1. ATA No.1 of 2008 and Mr. Ghulam Qadir Jatoi, learned counsel for the appellant in S.1. ATA No.4 of 2008 and Mr. Abdul Rehman's Kolachi, learned A.P.G and have perused the available record.
6. Mr. Mehmood A. Qureshi, learned counsel mainly contended that on the same evidence co- accused Ghous Bux, Gul Bahar, Gul Sher, had been acquitted and absconder accused Ghulam Rasool, Shero, Abdul Jabbar, Hazooro, Ibrahim. Dinoo, Shahmir and Peero had also been acquitted in the same judgment. Learned counsel further argued that ocular testimony is interested, related and hostile. Learned trial Court has not relied upon the ocular evidence qua the co-accused but on the same evidence convicted the appellants, which is against the norms of natural justice and the Court should hold the scale of justice even in dispensation of justice to the parties. Learned counsel further argued that eye-witnesses made exaggerations in their evidence. He further contended that the appellants are neighbourers of the complainant and some of the co-accused are villagers of the complainant. It is unbelievable that the appellants and their co-accused dare to commit such offence in a broad daylight. Learned counsel further contended that the defence witnesses Abdul Rasheed, who is relative of complainant and other eye-witnesses, in his evidence, he falsified the ocular evidence. He further argued that while appreciating the prosecution evidence, the defence evidence is to be put in juxta position. He further argued that the prosecution evidence is full of contra-dictions and discrepancies, which is not trustworthy and inspire confidence. The prosecution case is full of doubts and no independent corroboration is available with the prosecution to strengthen their testimony. The alleged robbed buffaloes and crime weapons had not been recovered during investigation and no particulars of alleged robbed buffaloes had been given by the witnesses in their evidence. Learned counsel further argued that the plea of Alibi of appellants has not been considered by the trial court, which has caused miscarriage of justice.
Learned counsel further argued that no recovery was affected after the arrest of the appellants. He further submitted that the statements of witnesses under section 161, Cr.P.C. Were recorded with inordinate delay and no plausible explanation is offered by the investigating officer for recording the statement of the witnesses with delay. He has relied upon the following case-laws:--
(i) Atta Muhammad and another v. The State (1995 SCM R 599)
(ii) Rahat Ali v. The State (2010 SCM R 584)
(i.e) Akhtar Ali and another v. The State (2008 SCM R 6)
(iv) Noor Muhammad v. The State and another (2010 SCM R 97).
(v) Muhammad Bux v. Abdul Aziz and others (2010 SCM R 1959)
(vi) Ghulam Mutsafa v. The State (2009) SCMR 916).
(vii) Allah Wadayo v. The State (2001 SCM R 25)
7. Mr. Ghulam Qadir Jatoi, learned counsel for the appellant in Criminal ATA No.4 of 2008 adopted the arguments of Mr. Mehmood A. Qureshi, Advocate.
8. Mr. Abdul Rehman's Kolachi, learned A.P.-G. States that the prosecution has produced trustworthy evidence. The incident took place in a broad daylight. The culprits are co-villagers and neibourers of the complainant. The witnesses have fully supported the prosecution case. The motive has been proved by the prosecution as earlier an abduction case was registered by the complainant party against the appellant/ accused party and that case was pending and the appellant/accused extended threats time and again to the complainant party for withdrawal of the case. On the refusal of the complainant party the instant offence was committed by the appellants/accused. Learned counsel further contended that the delay for recording statements of witnesses is not fatal to the prosecution in circumstances of the instant case as the complainant party was in constant fear. Minor discrepancies and omission do not come in the way of the prosecution case as the prosecution has established its case beyond any reasonable doubt. He has relied upon the following case-laws:--
(i) Farmanullah v. Qadeem Khan and another (2001 SCM R 1474).
(ii) Bahawal Bakhsh v. The State (2002 PCr.LJ 1902).
9. With the assistance of the learned counsel for the parties we have examined the evidence available on record.
10. P.W.1 SPO Ashfaque Ali has stated in his evidence that he has arrested accused Ghulam Rasool and Allah Bux from Police Station Baiji Sharif as both the accused were old persons, hence under the orders of DSP he produced them before Civil Surgeon, Civil Hospital Sukkur and on 1-10-2004 under the orders of S.P Investigation on the basis of plea of Alibi, he has released them. He also examined the defence witnesses. He further stated that on 22-2-2005 he arrested accused Shahnawaz from judicial lock-up Pano Akil prepared Mashirnama of such arrest.
11. P.W-2 Mehboob Ali is complainant. He stated in his evidence that on 19-8-2004 he along with his brother Manthar, Arbelo and Hakim were sitting at Minor Wah Nooraja and were grazing 65 heads of buffaloes at 2-00 p.m. Dacoits All Ahmed Tunio, Ghulam Rasool Tunio, Allah Bux Tunio, Raheem Bux Tunio, Shahnawaz Tunio, Usman Tunio and Ghulam Rasool Tunio came there. Ghulam Rasool was armed with Rifle, .Gul Bahar with a gun, Allah Bux with a gun and others were armed with K.Ks., Ghous Bux armed with a gun, Gulsher armed with K.K., Abdul Majeed armed with K.K., Aijaz armed with K.K. Were also with them took all the buffaloes and issued threats to him and witnesses. They made cries on which All Gul Chachar and Abdul Rahseed Kalhoro reached there. Accused Abdul Majeed Kalhoro fired at Ali Gul Chacher with his K.K. Which hit him on his chest but they were following the culprits and raising cries. Villagers came but the culprits made heavy firing, when, they reached at 200 paces from Bacha Band where accused Ali Ahmed fired at his brother Manthar which hit him on chest, who fell down on the ground. He further stated that due to Katcha area they did not go further. He while leaving Hakim and Arbelo went to Police Station and lodged the F.I.R. In cross-examination he admitted that Asghar Ali is his uncle and also admitted relationship with other P. Ws. Arbello and Hakim. He admitted that P.W. Rasheed is counsin of his father and also admitted the fact that in abduction case his uncle Asghar was complainant. He admitted that accused Gul Bahar, Gulsher and Ghous Bux are his co-villagers. He further admitted that prior to 2001 Tunios accused were known to them. He admitted that he has not mentioned cost of the Buffaloes in his F.I.R. He further admitted that they have enmity with Tunios and cases are registered against each other. He further admitted that Rasheed and Ali Gul reached there along with other villagers. He further admitted that Kalhoros and Chachars were with them in the following up the culprits. He admitted that there was heavy firing by the culprits and that firing was made from Katcha area. P.W. Gul Hassan is Medical officer. He has conducted post rnortem upon the dead bodies of the deceased Manthar and Ali Gul. This witness admitted that the death of the deceased persons' occurred between 12:40 and 1-40 p.m.
12. P.W. Arbelo has stated in his evidence that on the day of incident he along with complainant Mehboob All were present along with buffaloes, which belonged to villagers at about 2-30 p.m. He saw All Ahmed Tunio, Amanullah, Allah Bux, Raheem Bux, Ghulam Rasool, Shahnawaz, Abdul Majeed, Aijaz armed with K.Ks and 12 unidentified culprits were also with them duly armed with K.Ks.
And guns. They took away the buffaloes and proceeded towards Katcha Area. They followed them by raising cries. Some people of the vicinity came including Ali Gul Chachar and Abdul Rasheed.
Accused fired on them. Fire of the accused Abdul Majeed hit Ali Gul, who fell down and died and at the distance of 200 paces near Bacha Band. Accused Ali Ahmed fired which hit Manthar deceased.
The accused took away Buffaloes to Katcha Area. Complainant Mehboob Ali went to Police Station and lodged F.I.R. In cross-examination he stated that Manthar used to graze the buffaloes of the villagers. He has admitted that accused Tunios were having their houses on the said minor. He admitted that Kalhoros and Chachars came at the place of wardat. The people had collected at the place of wardat including Chanchars, Chanas and Kalhoros. He has denied the suggestion that on the day of incident accused Muhammad Usman, Amanullah, Ali Ahmed, Raheem Bux and Shahnawaz Tunio. Had gone to village Babar Budani Taluka Khanpur District Shikarpur on the death of were of Moriro Jatoi.
13. P.W. Abdul Wahid stated that on 19-8-2004 he and Sajjid Masood were grazing their buffaloes. At about 2-00 or 2-30 p.m. They heard the sound of firing coming from village. They started coming back to their village along with their buffaloes. At about 3-15/3-30 p.m they got out from jungle and were on the way and they saw the dacoits were taking away buffaloes while making firing coming from village side. He further stated that they concealed themselves and saw that accused Ali Ahmed Tunio, Amanullah, Usman, Khairo, Dino, Shahmir, Hazooro, Shahnawaz, Aijaz Kalhoro, Majeed Kalhoro, Allah Bux, Ghulam Rasool Raheem Bux forcibly taken away the buffaloes. Their faces were unmuffled. Then they came in their village and saw that Manthar and Ali Gul Chachar were lying dead and killed by these accused persons. He along with Asghar went to Police Station Baiji Sharif where A.S.-I. Saifullah Bullo recorded their statements in presence of DSP Investigation. In cross- examination this witness stated that he had not seen the killing of the deceased persons but the said information was given to him by the complainant Mehboob and other persons. He admitted that buffaloes were being grazed by the villagers themselves. He also admitted that the villagers were not following the dacoits. He admitted that at a distance of 2 Kms away he heard the firing reports.
14. P.W.6 Sajid Masood stated the same facts as stated by P.W Abdul Wahid. In cross-examination this witness has admitted that so many persons were available near Bacha Band. They may be 250/300 persons. He further admitted that he has not seen the accused Ghous Bux, Gul Bahar and Gul Sher at the time of incident. HC Lal Bux is formal witness.
15. P.W. Hakim Ali has stated that on 19-8-2004, he along with P.W Mehboob Ali, Arbelo and deceased Manthar were present at Nooraja Minor along with buffaloes, whereas, at about 2-30 p.m. Accused Ali Ahmed, Amanullah, Usman, Shahnawaz, Ghulam Rasool, Allah Bux, Raheem Bux along with 10 other unidentifiable persons armed with K.Ks. Came there. They gave hakal to them and forcibly took away the buffaloes towards Katcha area. He further stated that accused fired at them. The fire of accused Ali Ahmed hit to Manthar. So many neighbourers came there on their cries.
Such as Abdul Rasheed Kalhoro, All Gul Chacher, Hazaro Chacher and others. He further stated that he has identified accused Abdul Majeed and Aijaz, Kalhoros by caste. Accused Abdul Majeed fired them which hit to All Gul, who expired after receiving fire arm injury. They found Manthar and Ali Gul dead. Complainant went to Police Station and lodged F.I.R. In cross-examination this witness has admitted that his father and Ali Asghar are cousins. He further stated Buffaloes were belonged to him, Mehboob, Arbelo and other villagers. He further stated that accused Ghous Bux, Ali Gul and Gul Bahar were his co-villagers and he has not given the name of these accused to police. He further stated that his brother Abdul Wahid was studying in Pano Aqil at the time of incident. His brother was available in his house.
16. P.W.9 Shamasuddin Kalhoro is mashir of place of wardat, Inquest Report of Dead Body and Arrest of Ghous Bux, Gulsher and Gul Bahadur. His evidence seems to be of not credible. P.W Nazeer Ahmed is formal witness as he acted as Mashir of arrest of accused Amanullah at judicial lock-up Pano Akil. SIO Muhammad Murad arrested accused Amanullah, who prepared such Mashirnama of his arrest. SIO Ghulam Sarwar is investigating Officer. He has stated in his evidence that he received F.I.R. No.37 of 2004 of Police Station Baiji Sharif through A.S.-I. Abdul Sattar for investigation. He along with the complainant inspected the place of wardat at Nooraja Minor. He saw dead bodies of deceased Ali Gul son of Hazaro and Manthar lying 100 paces away from the place of wardat and secured 25 empties of S.M.G. Rifle. He recorded the statements of witnesses Hakim, Arbelo and Abdul Rasheed under section 161, Cr.P.C. In cross-examination this witness admitted that complainant has not given number of his buffaloes, took away by the accused and names of owners of robbed buffaloes. He admitted that he reached at place of Wardat at 4-30 p.m. He further admitted that he has not recorded the statements of co-villagers.
17. P.W.13 Abdul Sattar was Incharge of Police Station Baiji Sharif. On the day of incident, he registered the F.I.R. Of complainant Mehboob Ali in 154, Cr.P.C. Book.
18. We have examined the case-law cited by the learned counsel for the partiEs. In the case of Ata Muhammad and another (supra), the Hon'ble Supreme Court has held as under:-- "So, the ocular evidence in this case has virtually been found not worth reliance so far as majority of the accused is concerned. The maxim "falsus in uno, falsus in ominibus", no doubt, has no universal application and that grain is to be sifted from chaff but it may not be possible in the case where the very P.W. On whose testimony conviction of an accused is maintained has earlier been held not to be worthy of credence so far as other accused charged with effective participation in the same occurrence was concerned. The acquittal of eight co-accused, particularly of Nazir, would adversely reflect on the credibility of the eye-witnesses. The acquittal of the eight co- accused, particularly of Nazir, would adversely reflect on the credibility of the eye-witnesses. They acquittal of the eight co-accused will also show that the eyewitnesses were capable of implicating falsely innocent persons in the case or at least of exaggerating the number of the accused.
The ocular evidence may be classified into three categories-firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the instant case the deceased suffered one firearm injury and Khizara suffered three fire-arm wounds caused by .12 bore gun. The possibility of three entry wounds caused by one shot from .12 bore gun is very much there. The number of the injuries of the deceased and the P.W does not commensurate with the number of the accused named by the eye-witnesses. In view of the aforesaid infirmities in the ocular evidence we feel that in the instant case the testimony of the eye-witnesses falls within the third category.
Consequent to the above observations, the ocular evidence in this case cannot and should not be accepted unless substantially corroborated. So in order to be satisfied that no innocent person is convicted we have decided to look for some additional evidence/ circumstances giving support to the statements of the eye-witnesses so as to create that degree of probabilities of the guilt of the appellants which can be made basis of safe conviction."
19. In the case of Rahat Ali (supra), the Hon'ble Supreme Court has observed as follows:-- "It has also been observed by this Court that delay in recording the statements without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCM R 550. Therefore, the evidence of P.W.2 is coming within the scope of above rules laid down by this Court. Hence, his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case."
20. In the case of Akhtar Ali and others (ibid), the Hon'ble Supreme Court has observed as under-- "It is a settled law that eyewitnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's Case PLD 1975 SC 588, Sheral alias Sher Muhammad's case 1999 SCM R 697 and Ata Muhammad's case 1995 SCM R 599. It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz BaKhsh's case PLD 1959 PC 24, Nadia's case 42 Cr.LJ 53, Muhammad's case PLD 1984 FC 84, Shear Bahadur's case 1972 SCM R 651 and Muhammad Afsar's case PLD 1954 FC 171."
21. In the case of Noor Muhammad (supra), the Hon'ble Supreme Court has observed as follows:-- "It appears that the prosecution has abandoned the motive. In these circumstances, solitary statement of the complainant without any supporting evidence and particularly when the incident occurred on 20-9-1995 did not take place in his presence is very unsafe to be relied upon. Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v.
Muhammad Sarwar 1979 SCM R 214 that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State 1971 SCM R 432 it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State PLD 1976 SC 629 it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
22. In the case of Muhammad Bux (supra), the Hon'ble Supreme Court has made observation as under:-- "It has been held in the case of "Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214)" that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of "Hakim Ali v. The State (1971 SCM R 432)" it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of "Ameenullah v. State (PLD 1976 SC 629)" it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
23. In the case of Ghulam Mustafa (supra), following observation was made by the Hon'ble Supreme Court:- "11. Furthermore, it would be seen that the learned trial Court as well as the Learned High Court have disbelieved the testimony of P.Ws Sikandar Hayat, Muhammad Farooq and Ahmad Hussain vis-a- vis the second set of accused persons i.e. Muhammad Sher, Khizar Hayat, Ghulam Hussain and Muhammad Ashraf Chochri for having participated in the crime and so also for having hatched a criminal conspiracy with appellant Ghulam Mustafa and others. In the circumstances, the question to be answer is whether these P.Ws., whose testimony has not been believed for one set of accused persons, can be believed for the other set, including the appellants before us. In our jurisprudence it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case- law there are exceptions and if evidence on the record warrants to doubt in the credibility of such witnesses then indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State 1969 SCM R 132, Shafoo v. State 1968 SCM R 719 and Allah Ditta v. State PLD 2002 SC 52. As discussed above, there is hardly any corroborative piece of evidence to substantiate the eye-witnesses, whose ocular account vis-a-vis the second set of co-accused has been disbelieved by the learned trial Court as well as the High Court."
24. In the case of Allah Wadhayo and another (ibid), following observation was made by the Hon'ble Supreme Court:-- "Learned counsel for the respondent attempted to argue that in the event of any discrepancy ocular version ought to be preferred but we cannot lose sight of the fact that the prosecution did not approach the Court with clean hands as the complainant as well as the witnesses mustered the courage of implicating as many as five persons for a single casualty. This aspect of the case strongly militates against the bona fides of the prosecution version. It is ironical to notice that with the deterioration of values and standards in society, there has been a growing tendency to rope as many members of the family of an accused as possible. This practice often leads to the acquittal of the real culprit as well in view of exaggeration and concoction of the prosecution case, which must be deprecated."
25. We have also examined the case-law cited by the learned Assistant Prosecutor General. In the case of Bahawal Bux (supra), the Division Bench of Lahore High Court has observed as follows:- "In our view the prosecution has proved that motive as set up in the F.I.R. So there is no reason for us to discard the same. Even of otherwise according to the law laid down in case of Waris Khan v. The State 2001 SCM R 387 weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances. As to reliance placed by learned counsel for the appellant Allah Ditta on 2002 SCM R 99 is concerned, we have respectfully gone through the report."
26. In the case of Farmanullah (supra), the Hon'ble Supreme Court has observed as follows:-- "20. It is well-established by now that "mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such grounds. An interested witness is not who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
27. We have minutely examined evidence with the assistance of the learned counsel for the parties.
According to the prosecution in a broad daylight near the village of complainant party, the appellants along with their accomplices had taken away 65 buffaloes in Katcha Area and the co- villagers had followed them. The different community people were following the dacoits but none of them is cited as a witness. Interesting fact is that the owners of buffaloes even had not been cited as witnesses. It is unbelievable that 65 buffaloes had been taken away near a big village in day time but the people could not follow up the dacoits. Admittedly, the appellants are residing near village of the complainant party having disputes on landed property, which fact has been admitted by the witnesses in their evidence with some different stance. During investigation, police recorded statement of Abdul Rasheed Kalhoro, who is admittedly related to the complainant party but during trial the prosecution has not examined this witness. On the contrary the defence has examined this witness. Abdul Rahseed Kalhoro in his evidence has falsified the evidence of the complainant and his witnesses. Admittedly, no buffalo was recovered from the possession of the appellants and no weapon was recovered from the possession of the appellant. Admittedly, the complainant is eye-witness and during trial he has not given the names of the owners of Buffaloes which according to the prosecution has been robbed by the appellants. The learned trial Court has extended benefit of doubt to accused Ghous Bux, Gul Bahar and Gul Sher, who have faced the trial and also has given the benefit of doubt to absconding accused Ghulam Rasool, Shero, Abdul Jabbar, Hazooro, Ibrahim, Deeno, Shahmeer, Peero, who have been acquitted in absentia. The learned trial Court on the same evidence has acquitted one set of the accused and on the same evidence has convicted the appellants. In our view it is against the norms of criminal justice. It is true that grain is to be sifted from the chaff but once the prosecution case is doubtful for one set of accused and it is a settled proposition of law that the benefit may be given to other set of accused, which the learned trial Court has not done so, we are therefore of the considered opinion that the same benefit is to be extended in favour of the appellants.
28. In view of the above discussion, the prosecution case as to the veracity and credibility of the eye-witnesses is full of contradictions and doubts, the benefit of which must go to the appellants.
Consequently, both appeals bearings S.1. ATA No.1 of 2008 and S.1. ATA No.4 of 2008 are allowed, the impugned judgment is set aside and the appellants are acquitted of the charges against them.