' MUHAMMAD HASHIM KHAN KAKAR, J.---The Additional Sessions Judge, Jhal Magsi at Gandhawa, vide judgment dated 20-8-2009 has convicted and sentenced appellant Pandhi alias Bagan as under:
(i) under section 302(b) read with section 149 of the P.P. C. To death as ta'zir for causing the death of deceased Mumtaz with direction to pay compensation of Rs,100,000 to the legal heirs of the deceased, in default whereof to further undergo R.I. For six (6) months.
(ii) under section 302(b) read with section 149 of the P. P. C. To death as ta'zir for causing the death of deceased Sikandar with direction to pay compensation of Rs,100,000 to the legal heirs of the deceased, in default whereof to further undergo R.I. For six (6) months.
(iii) under section 324 read with section 149 of the P.P.C., for attempting to commit murder of Mst.
Sukhan, to suffer five (5) years' R.I., with direction to pay compensation of Rs,30,000 to the legal heirs of the injured.
(iv) under section 324 read with section 149 of the P.P.C., for attempting to commit murder of Mst.
Khanzadi, to suffer five (5) years' R.I., with direction to pay compensation of Rs,30,000 to the legal heirs of the injured.
(v) under section 147 of the P.P.C. To suffer six (6) months' R.I. And fine of Rs,1000, in default whereof to further undergo' S.I. For one (1) month.
(vi) under section 148 of the P. P. C. To suffer one (1) years' R.I. And fine of Rs,2,000, in default whereof to further undergo' S.I. For three (3) months.
' The appellant preferred Criminal Appeal No,(S)74 of 2009 for his acquittal, while the Additional Sessions Judge has sent Murder Reference No,(S)12 of 2009 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Briefly stated, the facts of the case are that on 21-10-1993 at about 12-00 noon, a case vide Crime No,44 of 1993, under section 302 of the P.P.C. Was registered at Levies Station, Jhal Magsi on the report of complainant Ghulam Qadir son of Lal Bakhsh. It was alleged by the complainant that on above date, at about 10-00 a.m., he was present in his house at. Goth Kathore, when firing started onto the Goth from all sides. On that, he came out of the house and saw accused persons Bhora, Ali Sher, Pandhi, Gul Sher, Muhammad Waris, Jalal, Mir Hassan, Phull, Ali Murad, Gul Hassan, Bagan, Mirza and others, who made firing upon the Goth and committed the murder of shepherds Sikandar, Mumtaz and caused injuries to Mst. Sukhan and Mst. Khanzadi.
3. The record shows that, after registration of the F.I.R. Exh.P/4-A, Naib. Tehsildar, Jhal Magsi, conducted the investigation of the case, who visited and inspected the site, seized the dead bodies of the deceased, sent the injured persons to Jhal Magsi for treatment, prepared site sketch, collected empties, released the dead bodies of the deceased to their heirs without conducting postmortem examination on their request. He recorded the statements of P.Ws., however, the accused persons could not be arrested. Subsequently, on merger of the levies into police, the Tehsildar Jhal Magsi handed over the papers of the investigation to Hidayatullah Kalachi, S.I./S.H.O., Police Station, Gandhawa, who started investigation, recorded the statements of P.Ws. And on 20- 7-2008, arrested accused Bagan alias Shaman and after completion of the investigation, submitted incomplete challan Exh.P/4-C against him in the court. On 1-3-2009, the investigation of the case was entrusted to P.W.5 Muhammad Ali, A.S.-I. He carried the investigation from arrested accused Jalal, who during course of the investigation, made disclosure in respect of commission of the offence and after completion of the investigation, he placed the papers before S.H.O. Abdul Sattar Magsi, who prepared supplementary challan Exh.P/5-A. He arrested the accused Pandhi alias Bagan, who during course of the investigation, produced sufficient material, on the basis whereof, he was discharged under section 169 of the Cr.P.C. And his name was placed at Column No,2 of the incomplete challan Exh.P/5-B.
4. On the stated allegation, charge was framed and read over to the appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced five witnesses. P.W.1 Ali Asghar, P.W.3 Mst. Hooran and P.W.3 Rawat Khan alleged to have witnessed the occurrence. P.W.4 Hidayatullah Kalachi, S.-I./S.H.O. And P.W.5 Muhammad Ali, A.S.-I., are the Investigating Officers of the case.
5. After close of prosecution evidence, the appellant was examined under section 342 Cr.P.C., wherein he denied the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath, nor produced any witness in his defence. The trial Court, after close of parties' evidence, vide impugned judgment, convicted and sentenced the appellants, as mentioned hereinabove, hence this appeal and murder reference.
6. We have heard learned counsel for the appellant as well as learned Additional Prosecutor- General and have also gone through the record with their valuable assistance. It has been submitted by learned counsel for the appellant that prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, learned Additional Prosecutor-General has maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, present appeal deserves dismissal.
7. The connection of appellant Bagan Khan son of Sachey Dina with the crime in question is sought to be established by the evidence of P.W.1 Ali Asghar, P.W.2 Mst. Hooran and P.W.3 Rawat Khan. All the alleged eye-witnesses are related inter se as well as to the deceased persons viz Sikandar Ali and Mumtaz, as such, their evidence is required to be scrutinized with care and caution while seeking independent corroboration. We are conscious of the fact that mere relationship of the witnesses with the deceased, by itself, is not sufficient to discard their evidence, but, as a precaution, the Courts have to look for independent corroboration. Admittedly the F.I.R. Exh.P/4-A does not figure the name of P.W.1 Ali Asghar, whereas the statements of P. Ws. Mst. Hooran and Rawat Khan under section 161 of the Cr.P.C. Have been recorded after unexplained delay of about 17 years. Their evidence is neither straightforward, nor confidence-inspiring. It may be noted that they have made dishonest improvements in order to strengthen the case of the prosecution, as such, no reliance can be placed on their evidence. In this regard, the Hon'ble Supreme Court, while dealing with the proposition, in a case reported in 1993 SCM R 550, has observed as under:-- "(1) Statements of witnesses in the Court in which improvements are made to strengthen the prosecution case are not worth of reliance.
(g) ---S.161---Statements recorded by police after delay and without explanation are to be ruled out of consideration."
' On a careful scanning of their statements, we are of the considered view that the conviction awarded to the appellant can hardly be sustained under the law. In order to maintain a conviction on a capital charge, evidence must come from independent and unimpeachable source, rather than tainted and inimical witnesses without any independent corroboration. It would be relevant to mention here that neither the complainant, namely, Ghulam Qadir has been produced and examined in order to substantiate the accusation, nor the Investigating Officer has come forward to record his statement before the trial court. The evidence, furnished by the alleged eyewitnesses, remained uncorroborated, as neither any recovery has been effected from the possession of the appellant, nor the medical evidence has been brought on record to corroborate the ocular account. Even otherwise, the ocular account furnished by the alleged eye-witnesses does not appeal to reasons and a prudent mind, as according to the site plan Exh.P/4-B, the firing was, allegedly, made from a rainy channel situated at a distance of 25 paces from the Goth and according to the version of P.Ws., they were present inside their houses, as such, there was no occasion with them to identify eleven (11) accused persons at the time of heavy firing. The evidence, collected by Investigating Officer Muhammad Ali, A.S.-I., during the course of investigation, would show and suggests us to believe that the name of the present appellant is Bagan Khan son of Sachey Dina, whereas the prosecution witnesses have made an attempt to involve the appellant by inserting alias of .Bagan Khan alias Pandhi son of Sachay Dina alias Saleh, which shows that it is a textbook example of a case of fabricated evidence on the charge of murder, in which the witnesses have made a mala fide attempt to involve an innocent person in the commission of the offence on the charge of murder by inserting alias with his name as well as his father's name. As already observed, the appellant though arrested, but the recovery of crime weapon was not effected from his possession, therefore, naturally, there is no report of the Ballistic Expert, which could corroborate the ocular account. Similarly, neither the autopsy of the deceased persons was conducted, nor the medical certificates have been brought on record to corroborate the ocular account.
8. It would also be relevant to mention here that during the course of investigation, due to lack of sufficient evidence, the appellant was discharged under section 169 of the Cr.P.C. The documentary evidence produced by the appellant before the trial court reflects that neither he nor his father has alias of Pandhi or Saleh respectively with their names.
9. We are afraid that on the same set of evidence, co-accused Bagan alias Shaman and Jalal son Muhammad Siddique have been acquitted of the charge, while on the basis of same evidence, the appellant has been convicted, in spite of the fact that the appellant could not be convicted on that evidence, which has already been rejected qua co-accused. Needless to mention here that the case of the present appellant was at better footing qua co-accused, who have been acquitted of the charge. We are not unmindful of the fact that the principle of "falsus in uno falsus in omnibus" has no universal applicability and the Court, while sifting grain from the chaff, is empowered to convict an accused on the basis of evidence already disbelieved qua co-accused, but that is subject to independent corroboration. While in the instant case, as already been observed, the appellant has been convicted on the basis of same set of evidence without any independent corroboration, resulting miscarriage of justice.
10. For the discussion made hereinabove, we have arrived at a confident conclusion that the prosecution, indeed, has miserably failed to prove its case against the appellant beyond reasonable doubt, as such, while extending benefit of doubt to the appellant, the appeal is allowed and he is acquitted of the charge. He be released forthwith if not required in any other case. Murder Reference is answered in negative.These are the reasons of our short order dated 18-8-2011 announced in the open Court.