' YAHYA AFRIDI, J.---By this single judgment, we shall dispose of four Criminal. Appeals, one Murder Reference sent by the Sessions Judge, Haripur under Section 374 of the Criminal Procedure Code, 1898 ("Cr.P.C.") for confirmation of death sentence awarded to appellant Muhammad Ashraf, and one Criminal Revision for enhancement of sentence awarded to appellants Waqar and Muhammad Iltaf, as they all arise out of tragic incident, Which took three precious lives of Said Zaman, Muhammad Asad and Muhammad Ashraf and injured one young Rab Nawaz. The incident was recorded as case F.I.R. No,400 dated 8-9-2004 registered in Police Station Saddar Haripur ("F.I.R.").
2. The particulars of the Appeals filed by three convicts-appellants, the Death Reference and the Criminal Revision filed by complainant. For enhancement of sentence and the details of conviction and sentence awarded to the appellants by Additional Sessions Judge-V, Haripur vide the impugned judgment and order dated 28-7-2010, are as follow:--
(i) Criminal Appeal No,134 of 2010. This appeal has been filed by Muhammad Ashraf, appellant- convict, who was convicted and sentenced to death for the murder of Muhammad Ashraf deceased under section 302(b) read with sections 148, 149 of Pakistan Penal Code, 1860 ("P.P.C.") and to piy fine of Rs,50,000 or in default :thereof to undergo 15ne year Simple Imprisonment ("SI").
He was also directed to pay Rs,50,000 as compensation to the legal heirs of deceased under section 544-A Criminal Procedure Code, 1898 ("Cr.P.C.") or in default thereof to suffer one year S.I.
(ii) Murder Reference No, 14 of 2010. This Murder Reference has been sent by the Addl. Sessions Judge, Haripur under section 374 of the Cr.P.C. For confirmation of death sentence awarded to appellant Muhammad Ashraf.
(iii) Criminal Appeal No,135 of 2010: This appeal has been filed by Muhammad Ashraf, who was also tried separately by the trial Court in case F.I.R. No,441 dated 7-10-2004 under section 13 of The Pakistan Arms Ordinance, 1965 ("A.0") for recovery and possession of 'kalashnikov' along with 20 live rounds of 7.62 bore, crime weapon and convicted and sentenced to three years Rigorous Imprisonment ("R.I") and to, pay fine of Rs,10,000 or in default thereof to undergo six months' S.I.
(iv) Criminal Appeal No, 136 of 2010. This appeal has been filed by Waqar Ahmad and Muhammad Iltaf, appellants-convicts, who were convicted and sentenced to life imprisonment under section 302(b) read with sections 148, 149 P.P.C. And to pay fine of Rs,50,000 each or in default thereof to undergo one year S.I. They were also held liable to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. Or in default thereof to suffer one year S.I.
(v) Criminal Appeal No,137 of 2010. This appeal has been filed by Waqar Ahmad, who was also tried separately by the trial Court in case F.I.R. No,442 dated 7-10-2004 under section 13 of The Pakistan Arms Ordinance, 1965 ("A.0") for recovery and possession of lalashnikov' along with 25 live rounds of 7.62 bore, crime weapon and convicted and sentenced to three years Rigorous Imprisonment and to pay fine of Rs,10,000 or in default thereof to undergo six months. S.I.
' All the three appellants-convicts were also convicted and sentenced for the attempt on the lives of complainant Javed and Muhammad Arif, under section 324, P.P.C. To 10 years' Rigorous Imprisonment and also to pay fine of Rs,20,000 each or in default thereof to further suffer one year simple imprisonment.
' The trial Court also held that all the sentences were to run concurrently.
' The trial Court further declared the absconding accused Muhammad Afzal Khan son of Yaqub Khan, Qadeer son of Muhammad Afzal Khan and Akhtar Nawaz son of Muhammad Ashraf as proclaimed offenders and issued perpetual warrants of arrest against them with directions to the quarters concerned to take appropriate steps in pursuance of the said proclamation in accordance with law:
(vi) Criminal Revision No, 36 of 2010. This revision has been filed by Javed praying for the enhancement of the sentence awarded to appellants Waqar Ahmad and Muhammad Iltaf.
3. Now to the prosecution's case it originated from the report of Javed son of Said Zaman, Caste Gujjar RIO Naiger cum Teer, District Haripur ("the complainant"), who while present on the spot along with Muhammad Arif, his cousin and in presence of the dead bodies of three deceased Said Zaman son of Gohar Rehman, Asad son of Said Zaman and Muhammad Ashraf son of Gohar Rehrnan on 8-9-2004 at 1945 hours reported to Muhammad Nazir, Police Station Saddar, Haripur (P.
W.16), about the occurrence, which he recorded as a murasila ; ' The complainant alleged therein that at about 1830 hours, he along with Muhammad Arif, his cousin were cutting grass in the maize field in front of their residential house, when Muhammad Afzal Khan son of Yaqub Khan, his brother Muhammad Ashraf and Qadeer son of Muhammad Afzal, their co-villagers, and Iltaf son of Mir Afzal, resident of village Dehri cum Soha' along with two other unknown persons, who could be identified by face, all duly armed with 'kalashnikovs' came there.
Muhammad Afzal Khan shouted for Said Zaman, the father of complainant to come out of his house, upon which his father came out and Muhammad Afzal Khan started firing with 'kalashnikov' at him, as a result, he was hit and died on the spot. On report of fire shots, Asad, brother of the complainant, Muhammad Ashraf, his uncle and Rab Nawaz, cousin of the complainant also came out of the house. Qadeer fired upon Asad, while Muhammad Ashraf fired at Muhammad Ashraf with their 'kalashnikovs', who were hit and died on the spot. Thereafter, all the, six accused started firing upon Rab Nawaz, Muhammad Arif and the complainant, with intention to kill. As a result of the said firing, Rab Nawaz got injured, while the complainant and his cousin Muhammad Arif escaped unhurt, as they hide themselves in the maize crop. All the six accused decamped from the spot. The injured Rab Nawaz was sent to the hospital at Haripur. The motive for the offence was stated to be a dispute between the parties over property.
4. After completing the investigation, the challan was put in court. The present appellants on denying the charge pleaded their innocence and demanded a trial, which thus followed.
5. The prosecution produced nineteen witnesses to prove guilt of the present appellants, which included the two eye-witnesses, Javed (P. W.13) and Muhammad Arif (P.W.14), the recovery witnesses of blood-stained earth, empties, blood-stained clothes of deceased, the sickle and maize stick and the crime weapons, Bashir Ahmad S.-I. (P.W.3), Muhammad Ghayoor IHC (P.W.7) and Muhammad Sajid (P.W.11), while the medical evidence was rendered by Dr. Munawar Afridi (P.
W.1) and. Dr. Zafar Hayat (P.W.2), and finally the investigating officers Qazi Ajmal H.C. (P.W.15), Muhammad Nazir S.I (Retd) (P.W.16), Muhammad Riaz Inspector (P.W.17), Muhammad Sarwar Inspector (P.W.18) and Muhammad Abbas S.I. (P.W.19), also recorded their evidence.
'Dr. Zafar Hayat Khan (P.W.2), who had conducted the autopsy on the dead bodies of all the three deceased Said Zaman, Muhammad Asad and Muhammad Ashraf found the following injuries, on the person of the said deceased, respectively:-
(i) SAID ZAMAN "EXTERNAL EXAMINATION.
(1) Two entrance bullet wounds on the anterior aspect of both thighs. There is corresponding hole on shalwar. Two exit wounds on the back of both thighs.
(2) Entrance wounds on upper pole of left arm and exit wound on the posterior aspect of left arm.
(3) Entrance wound on the left side of chest with corresponding exit wound on the back.
(4) Wide spread wounds on the right elbow wear and tear flash and bones with bullets at the same side.
INTERNAL EXMINA TION THORAX: Left chest wall and level of the third intercostals space were pierced by bullet through and through... Pleurae on the left lung were ruptured. Upper lobe of left lung was pierced by bullet. Blood vessels of the left lung were injured by the bullet. Abdomen: Stomach was empty.
MUSCLES, BONES, JOINTS:
(1) Muscles of left arm were injured. Intercostals muscles of 3rd space were injured.
(3) Muscles and hones at lower end of humerus and upper end of radius and ulna were destroyed.
(4) Muscles of both thighs were injured. Thorax muscle injured in 4-5 intercostals space.
OPINION: An aged man of 60 years with thin and weak built having multiple fire arm injuries on his body. He was expired as a result of heavy blood loss due to fire arm injuries. Probable time between injury and death was 10-20 minutes. Probable duration between death and PM was 4 to 5 hours." (ii) MUHAMMAD ASAD "EXTERNAL EXAMINATION
(1) Two entrance wounds of bullet on left side of neck with corresponding exit wounds on the back of left leg.
(2) Two pellets recovered from the entrance wound on the right side of neck.
(3) An entrance wound on the left chest with corresponding exit wound on the left back.
(4) An entrance wound on the left flank with corresponding exit wound on the back.
(5) Entrance wound of the left medial aspect of thigh with exit on the back.
(6) An entrance wound on the lateral aspect of right thigh with exit wound on back of right thigh.
INTERNAL EXMINATION THORAX: Wall of the left chest was pierced by bullet at the end of 2nd intercostals space. Pleurae were ruptured at upper lobe of right lung.
Left Lung: Upper lobe was pierced and injured by bullet. Blood vessels of the left lung were injured.
' Abdomen: Wall of the abdomen on left flank was injured and pierced by bullet.
' Peritoneum was ruptured at corresponding site. Stomach was intact and empty.
' Large Intestine: Left colon was pierced by bullet. MUSCLES; BONES, JOINTS:
(1) Muscle of neck was injured.
(2) Muscles of the left abdomen were pierced by bullet.
(3) Muscles of both thighs were injured.
(4) Muscles of 2nd intercostals space on left chest were injured.
(5) There was fracture of left femur bone.
OPINION: A very healthy man of strong built, wearing Shalwar Qameez having multiple wounds on body. He died as a result of shock due to heavy blood loss due to fire arm injuries.
' Probable time between injury and death was 10-20 minutes. Probable duration between death and PM was 4 to 6 hours." (iii) Muhammad Ashraf "EXTERNAL EXAMINATION.
(1) An entrance wound of bullet in the centre of chest mid with corresponding exit on back.
(2) Three entrance wounds in shape of triangle on the left lower abdomen with corresponding exit wounds on the back.
(3) A fire arm wound on right upper forearm with fracture of right humorous.
(4) Rigor mortis not developed. INTERNAL EXMINATION THORAX: Entrance wound of bullet pierced sternum at about mid.
' Pleurae of right lung were ruptured.
' Right lung and its blood vessels were injured. Abdomen: Anterior wall of abdomen was pierced by bullet on left lower position. Peritoneum was injured. Stomach was empty and intact.
' Large intestine was empty and injured and spleen was ruptured by bullet.
MUSCLES, BONES, JOINTS:
(1) Muscles of right arm at proximal end were injured with injury to right hamerus and fractured.
(2) Sternum bone was injured and fractured: (3) Muscles of abdomen were injured with bullet.
OPINION: An advanced age man with healthy built wearing Shalwar qameez, having multiple gun shot wounds on his body. His death occurred as a result of heavy blood loss due to multiple fire arm injuries. Probable time between injury and death was 10-20 minutes. Probable duration between death and PM was 4 to 6 hours."
As far the abandoned injured eye-witness, Rab Nawaz, he was examined by Doctor Munawar Afridi, Medical Officer (P.W.1), who described his injury vide Medico-legal Report Exh. P.W.1/1, as follows:-- "Firearm entry wound about I" x 1", circular at the posterior aspect of the right lower thigh, 2" above the .Popliteal fossa. Sever bleeding has occurred and still present. The patient was semi unconscious. B.P was 60/1 pulse was feeble. Corresponding mark on the Shalwar was present, which was signed and handed over to the police. After providing emergency, the patient was referred to AMC, Abbottabad for further management.
' Duration was fresh, kind of injury was grievous and kind of weapon was firearm."
6. The appellants recorded their statements under section 342, Cr.P.C. Denying their involvement in the commission of the offences for which they were charged. However, they wished not to be examined as their own witnesses on oath in rebuttal of charges against them within the contemplation of section 340(2), Cr.P.C. Appellant Muhammad Iltaf had filed an application for summoning of witnesses in his defence, which was dismissed by the trial Court vide order dated 13-7-2010.
7. Learned counsel for the appellants vehemently contended that the F.I.R. Was lodged after preliminary investigation and thus lost its evidentiary value; that the presence of the eye-witnesses on the spot at the time of occurrence is highly doubtful in particular, when they did not have received a single injury in spite of indiscriminate firing by six persons with lalashnikove; that the contents of the F.I.R. And the ocular account of the eye-witnesses are in conflict with the medical evidence, as the Medical Officer, who conducted postmortem examination of the deceased, had recovered pellets from the body of deceased Muhammad Ashraf, which means that 12 bore shot gun was also used in the commission of the offence but the complainant-eyewitnesses Javed and eye-witness Muhammad Arif had categorically stated that all the six accused were having 'kalashnikovs' in their hands also creates reasonable doubt that the eye-witnesses were not present at the spot at the time of occurrence; that the motive for the occurrence alleged in the F.I.R.
As property dispute was in fact against Shah Nawaz (P.W.12) but the appellants did not even make an attempt to harm him despite his presence on the spot; that though the prosecution is not legally bound to prove motive in every case, yet once it has set up a motive and failed to establish it, then prosecution must suffer the consequences and not the defence; that non-mentioning of the names of accused and witnesses in the inquest report is indicative of the fact that till preparation of said report, it was not in the knowledge of police about the names of the witnesses and the accused; that the arrest of appellants Muhammad Ashraf and Waqar and recovery of alleged crime weapons from them was dubious; that delay in dispatching the crime weapons and empties recovered from the spot to the forensic science laboratory was not free from doubt and could not be used against the appellants in the circumstances of the case; that the exigency of service of appellant Iltaf being in Pakistan Navy could not be considered as abscondance and abscondance itself is not sufficient for conviction of a person without sufficient material evidence on record to connect the accused with commission of offence; that the maxim falsus in uno falsus in omnibus is not universal principle to apply in all criminal cases; and that when it is found that it could not be possible to dig out truth from the testimony of eye-witnesses being not confidence inspiring and other material on record, then it could be unsafe to record conviction. Reliance was placed on Iftikhar Hussain and others v. The State (2004 SCMR 1185), Muhammad Rafique and others v. The State (2010 SCMR 385), (2006 SCMR 1707), Mst. Saddan Bibi v. Muhammad Ameer and others (2005 SCMR 1128) unreported judgment in Abdul Wahab v. State (Criminal Appeal No,49 of 2009) decided on 22-2-2012, Gul Zaman v. Shereen Bahadur (2010 YLR 3019), (2006 PCr.LJ 1082), (2008 YLR 1926), Ghulam Qadir v. The State (2008 SCMR 1221), Riaz Ahmad v. State (2010 SCMR 846), Muhammad Tufail v. State (2010 PCr.LJ 1389), (1997 SCMR 25), (1999 SCMR 172), Muhammad Nadeem alias Banka v. The State (2011 SCMR 1517), (2002 SCMR 1986), Ghulam Akbar v. State (2008 SCMR 1065); (2007 PCr.LJ 1585), (2010 SCMR 105), Muhammad Akbar v. The State (1990 SCMR 1129), Imran Shah v. Mst Dil Pari Jana (2011 YLR 311), Muhammad Khan v. The State (1999 SCMR 1220), Ghulam Mustafa v. State (2009 SCMR 9.16) and Qaisar Shah v. State (2006 YLR 622).
8. The learned counsel for the complainant ably assisted by the learned A.A.-G., controverted the submissions of learned defence counsel and they asserted vehemently, that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution has rightly convicted the appellants; that the presence of eye-witnesses on the spot at the time of occurrence was established without any doubt; that the motive was not required to be proved for awarding death sentence; that in the event of variation in ocular and medical evidence, ocular evidence has to be believed; that the prosecution is not legally bound to produce and examine all the witnesses named in the calendar of witnesses, as it is the quality and not quantity of evidence; that the trial Court has rightly ignored minor discrepancies in the statements of the witnesses, which are quite natural after lapse of time and the testimony of witnesses cannot be discarded for minor contradiction; that the trial Court has sifted the grain from chaff and relied upon the testimony of eye-witnesses for recording conviction of the appellants; that the trial Court following the rules of corroboration settled by the apex Court, has rightly considered abscondance of accused as corroborative circumstance; that all- the convicts being vicariously liable for the commission of offence were rightly convicted irrespective of roles attributed to them; that the complainant party has no reason to substitute real culprits with innocent; that delay in sending the crime empties is no ground to reject such evidence; that identification parade was not at all necessary in the present case when accused were charged by name subsequently in supplementary statement; that plea of alibi can be taken at earliest opportunity and such plea cannot be considered in absence of unsatisfactory story; that death can be awarded in absence of mitigating circumstances and lack of motive. Reliance was placed on Jafar All v. The State (1998 SCMR 2669), Imtiaz Ahmad v. The State (2001 SCMR 1334), Muhammad Younas and another v. The State and others (1990 SCMR 1272), 1997 SCMR 89, Awais and another v. The State and another (2004 PCr.LJ 377), Anar Gul v. The State (1999 SCMR 2303), Afzal-ur-Rehman v. The State (2003 SCMR 355), Fatima Bibi and 5 others v. Sardar All and 3 others (2002 PCr.LJ 668), The State v. Waheed Iqbal and others (2005 PCr.LJ 1384), Saeed Akhtar and others v. The State (2000 SCMR 383), Sarfaraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Muhammad Asghar and others v. The State 2010 SCMR 1706, The State v. Aminullah and another PLD 1972 Pesh. 92, Riaz Hussain v. The State (2001 SCMR 177), 2005 PCr.LJ 1384, The State v. Moula Bakhsh alias Moulak (2005 PCr.LJ 794), Muhammad Yaqoob and others v. The State and others (2007 PCr.LJ 1860), Zahid Imran and others v. The State and others (PLD 2006 SC 109), Nazir Ahmad and others v. The State and others (PLD 2005 Kar. 18), Ameer All v. The State (1999 MLD 758), Ch. Muhammad Siddique v. Muhammad Zubari arid 4 others (1995 SCMR 1112), Muhammad Afzai and another v. The State (1982 SCMR 129), Ghazanfar All and 16 others v. The State (NLR 2007 Cr.L.J 110), Aminullah v. The State (PLD 1976 SC 629), Pahlwan and 2 others v. The State (2000 PCr.LJ 299), Mohtarama Benazir Bhutto and another v. The State (PLD 2000 SC 795), Imtiaz Ahmad v. The State (2001 SCMR 1334), Nawaz Ali and another v. The State (2001 SCMR 726), Talib Hussain and others v. The State (1995 SCMR 1776), Khurram Malik and others v. The State and others (PLD 2006 SC 354), Mst. Bismillah and another v. Muhammad Jabbar and others (1998 SCMR 862), Muhammad Ashraf and others v. The State (PLD 1983 SC 216) and Sheikh Hassan v. Bashir Ahmad and another (PLD 1966 (W.P) Peshawar 97).
9. The valuable arguments of the learned counsel of the parties have been heard and noted, while the record of the case thoroughly perused.
10. The anchor sheet of the prosecution's case against the present convicted appellants is the testimony of the two eye-witnesses Javed (P.W.13) and Muhammad Arif (P.W.14). When we review the stance taken by the two, at the time of reporting the tragic incident to the police and later before the Court, we note that strikingly their testimony does not inspire confidence in relation to charging Waqar.
Firstly, laved (P.W.1/3) in his report to the police at the spot, clearly attributes the offence to six persons, four of them are named, while two are not named and he clearly reports that he can identify the two on seeing them. Though, the said eye-witness tries to justify the same during his cross-examination stating that the two had their backs towards him and it was later that the women folk informed him that the said two witnesses were Waqar and Akhtar Nawaz. The justification initially appears to be attractive but is not convincing. The said witness during his cross-examination clearly admitted that prior to the incident Wagar and Akhtar Nawaz were known to him. In such a situation; when the said two accused were known to him, his not naming them in the report to the police and stating that on seeing them, the two can be identified, totally belies the credence of the said crucial star witness of the prosecution.
Secondly, we cannot be oblivion to the general tendency in our society, where the aggrieved party while registering cases exaggerate their report in order to in rope other as accused in criminal cases. Accordingly, the testimony of such a witness is not to be totally disbelieved as very aptly explained and discussed by the apex Court in Ghulam Mustafa v. The State (2009 SCMR 916):-- "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 a 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 Muhammad Nawaz v. State 1969 SCMR 132, Shafoo v. State 1968 SCMR 719 and Allah Ditta v. State PLD 2002 SC 52."
' The principle discussed by the apex Court in the judgment, hereinabove, has reiterated that the Courts are to sift the 'grain' from `chaff'. This is essentially a rule of prudence and that is to ensure that B the actual criminal does not go unpunished.
' Keeping this principle in mind, and seeking guidance of the judgment of the Supreme Court in case titled Muhammad Iqbal v. Muhammad Akram (1996 SCMR 908) we note that ocular testimony can generally be divided into three categories, Category-I ' This is the testimony of a witness, who is naturally placed at the place and time of occurrence; his testimony is logical and trustworthy. In such a situation, his sole testimony can saddle the capital punishment upon an accused. There is no need for any corroboration.
Category-II ' In this category of witnesses, their testimony has no .Truth or confidence arising therefrom. No matter how much corroboration is placed on the record, the said testimony, would not have the force or veracity of truth that could lead to the conviction of an accused charged for a capital offence.
Category-III ' In this category of witnesses, the testimony of a witness is partly truthful and the remaining unreliable. It is in such circumstances, that the Courts have to be cautious and prudent. The entire testimony of said witness should not be outrightly rejected. The Court has to be dynamic and seek whether the part of the testimony, which appears to be truthful, is corroborated by other evidence emanating from an independent source or otherwise.
' Keeping the above principle in mind, when we reviewed the testimony Javed (P, W.13), and Muhammad Arif (P. W.14), we could have outrightly rejected the entire testimony of both for falsely in roping one set of accused including Wagar. However, we thought it appropriate to test the veracity of their testimony regarding the other set of accused, namely Muhammad Ashraf and Muhammad Iltaf, considering it to fall in the testimony described in Category-III, hereinabove.
Accordingly we examined their testimony relating to the two keeping in view whether corroborative evidence from independent sources produced by the prosecution supported the same or otherwise. The corroborative evidence introduced by the prosecution in this regard was as follows:- Firstly, the prosecution very aggressively relied upon the recovery of the two weapons from Ashraf and Wagar and their positive F.S.L Report with the empties, found at the place of occurrence. On reviewing this aspect of the prosecution evidence, it revealed that the police had vide letter dated 9-9-2004 addressed to the Incharge FSL Peshawar sent fifteen and thirteen empties (Exh.P.W.17/7) recovered and attributable to Muhammad Ashraf and Wagar. This was followed by yet another letter by the same police officer dated 7-10-2004 again to the Incharge FSL Peshawar, whereby the two lalashnikovs. Allegedly recovered from Ashraf and Wager on 7-10-2004 and intriguingly the said letter also included the same empties attributable to Muhammad Ashraf and Wagar, which had earlier been sent to FSL on 9-9-2004 vide Exh.P.W.17/7, were reportedly sent. This does not end there. The positive FSL report Exh.P.W.18/2 clearly stated that the parcel sent to it was received on 18-10-2004. Serious questions arise, which have not been explained by the prosecution, as to whether the empties sent on 9-9-2004 vide Exh.P.W.17/7 had ever been sent and if so, then when were it received by the FSL Peshawar. More interestingly, it also struck our mind, how empties, which had earlier been sent on 9-9-2004 vide Exh.P.W.17/7 found their place mentioned in the subsequent package being sent by the police to the FSL on 7-10-2004 vide Exh.P.W.18/1. These inconsistencies create serious doubt in our mind regarding the honest investigation; more particularly the recovery of weapons of crime and their matching with the empties, whose custody from 9-9-2004 till 18-10- 2004 is not explained or justified by the prosecution. Needless to mention, it also does not hold to reason that the weapon of offence would be carried by the accused even after a month of the occurrence.
' Secondly, the prosecution had tried to corroborate the testimony of the two eye-witnesses with the recoveries of empties and blood of the deceased from the place of occurrence. No doubt, the said recoveries indicated that an offence had taken place. However, the manner and mode thereof still remained shrouded in mystery. When the prosecution was recovering the said empties and blood from the place of occurrence, which was outside of the house of the deceased party their failure to recover any spent bullets from the wall of the house or marks thereon, when six people were firing with alleged 'kalashnikovs' seriously marks not only the level of the investigation but the entire prosecution version of the incident.
Thirdly, the medical evidence produced by the prosecution was vigorously pleaded to support and corroborate the testimony of the eye- ' witnesses. But the opinion of the medical officer Dr. Zafar Hayat Khan, (P.W.2) was contrary to the testimony of the two eye-witnesses, when he in his un-rebutted statement, clearly stated that in his opinion the time between the injury and death for all three deceased was between 10 to 20'minutes and not instantaneously as stated by the two eyewitnesses.
Finally, we gave it our serious and anxious thought to the single sickle and the stalk of maize recovered by the Investigating Officer and introduced by the prosecution in order to corroborate the testimony of the two eye-witnesses. We found the same to be a valid piece of evidence, which surely advanced the case of the prosecution. However, in view of the other serious inconsistencies arising in the corroborative evidence advanced by the prosecution and also keeping in mind the unfair investigation carried out by the police, this single piece of evidence cannot be made the basis of awarding the capital punishment to Muhammad Ashraf and Muhammad Iltaf.
12. The force and thrust of the prosecution's case was further seriously dented by the non- production of an injured eye-witness namely E Rab Nawaz. We are alive to the prevailing condition in our society, where people refrain from appearing as witnesses for fear of reprisals from the accused side and thus prosecution need not cite or produce all their named witnesses. The apex Court in Muhammad Ahmad v. The State (1997 SCMR 89) has explained this matter very eloquently in terms that:-- "Nothing turns on these objections as it is a matter of common knowledge that people from the locality- generally hesitate to come forward as witnesses in such cases for fear of reprisals from the accused party This tendency, though unfortunate, has been taken note of in number of cases and condoned in view of the peculiar conditions prevailing in the country.
' However, in the present case, the position is rather peculiar, when the said injured eye-witness is closely related to the deceased party. In fact no evidence has been led to explain the reason for his non- F production. His non-production as a witness has seriously damaged the case of the prosecution. Crucial explanation to vital issues required explanation; as to why the deceased were left unattended, while he was taken first to the hospital; why the police did not lodge the report of the offence at 7-15 p.m., when he was being medically attended to in the hospital; and more particularly how the police could prepare his injury sheet without recording and registration of the case. The prosecution has vehemently argued that Rab Nawaz was in semi-unconscious condition but the two attendants, who brought him to the hospital, were also not examined. Similarly, Mazlooma Bibi, Imtiaz Bibi and Naheed Bibi, the ladies of the deceased party, were not produced as witnesses, despite the fact that they according to the prosecution were also the eye-witnesses of the occurrence and had identified the present appellant Waqar and his cousin, Akhtar Nawaz, the absconding accused, who were the two unnamed accused in the initial report filed by complainant Javed.
' The non-production of the said witnesses would surely lead to presumption in favour of the convicted appellants, when the evidence is withheld as is the command of Article 129(g) of Qanun- e-Shahadat Order, 1984.
13. What was also intriguing to our mind was the conduct of the complainant immediately preceding the tragic incident. The same was contrary to the natural course of human conduct.
According to the prosecution evidence, the occurrence took place at 6-30 p.m., while the report is made to the police at the spot at 7-45 p.m. And the three dead bodies including that of the complainant's father Said Zaman remains lying on the ground without being attended to, while, Rab Nawaz is rushed to the hospital. The natural conduct of a reasonable person, even in such a shock, would if not take their elders for medical treatment would at least show some respect by placing their bodies on a cot and not let them remain on the ground. In addition to the above natural conduct of a reasonable person, we also note that the medical testimony rendered by Dr. Zafar Hayat Khan (P.W.2), when in his opinion, the death of all three deceased was not instantaneous but in fact was between 10 to 20 minutes after being shot. Thus, the situation which arises totally belies the natural conduct of a reasonable person when he sees his father and their close relatives in shock and injured condition but not taken for any medical treatment.
14. What also strikes us is that six persons duly armed with automatic weapon, clearly stated to be armed with lalashnikove , fired at the complainant party and hit and did to death three persons, injured one and the two eye-witnesses, who are in close proximity remain unhurt. The said two eye- witnesses tried to justify the said fact by explaining that they hide in the maize crop. It does not hold to reason that the assailants, who knew the complainant party would fire at Rab Nawaz and leave Javed, who is not only an eye-witness to the crime but also the son of deceased Said Zaman.
15. The level of fairness in the investigation, surely called for much to be desired. In this regard, we noted that no report was lodged at the DHQ Hospital, when Rab Nawaz was examined for firearm injury at 1915 hours on 8-9-2004, while the case was reported at the spot at 1945 hours on the same day; it is also admitted in evidence that Police Reporting Cell has been established at the DHQ Hospital: prior to recording the report of the incident, preliminary investigation in the form of preparing inquest reports of the deceased was carried; and also to note is the manner and mode in which the custody and sending of crime empties for forensic examination, as explained hereinabove.
16. Now moving on to the motive introduced by the prosecution, we note that the same has not been convincingly proved by the prosecution. In the present case, we have found that eye- witnesses have been unable to convince us of their veracity, worthiness and truthfulness regarding their presence at the time of occurrence and their narration as to the mode and manner how the offence took place, which resulted in tragic incident, culminating in loss of three valuable and precious lives. Hence, not proving the motive would be of no avail to the defence.
17, As far as abscohdance of Muhammad Iltaf is concerned, it is by now settled that abscondance alone cannot saddled conviction of a capital charge upon an accused. At best, abscondance can be taken as corroborative evidence. In the present case, when the ocular testimony has not been considered worthy enough, then the importance of abscondance as a corroborative evidence would be diminished, if not become irrelevant. Reliance may be sought from Siraj Din v. Kala (PLD 1964 SC 26) and Taj Muhammad v. Resham Khan (1986 SCMR 823), Sardar Khan v. State (1998 SCMR 1823) and Muhammad Khan v. The State (1999 SCMR 1220).
18. As far as cases relating to alleged recovery of crime weapons from appellants Muhammad Ashraf and Waqar Ahmad, the prosecution has miserably failed to substantiate the said recovery by producing reliable, trustworthy and unimpeachable evidence. The mode and manner showing arrest of the said appellants with crime weapons, the custody of crime empties and efforts made to procure a positive forensic report creates serious doubts and establishes that the investigation was not conducted honestly, particularly keeping in view other aspects of the whole investigation.
19. All these serious issues create doubts in our mind regarding the prosecution of proving the guilt of the appellants beyond the reasonable doubt.
20. These are the details reasons for allowing all the four Criminal . Appeals vide short order dated 9-5-2012 and setting aside conviction and sentences recorded by the learned Additional Sessions Judge-V Haripur vide impugned judgment dated 28-7-2010 and acquitting the appellants of all the charges, levelled against them and answering the Murder Reference No,14 of 2010 sent by the learned Session Judge, Haripur under section 374, Cr.P.C. For confirmation of death sentence awarded to appellant Muhammad Ashraf in the negative and not confirming the death sentence and directing the appellants to set free forthwith, if not required in any other case.
21. In view of acquittal of appellants Waqar Ahmad and Muhammad Iltaf, Criminal Revision No,36 of 2010 filed by Javed for the enhancement of the sentence awarded to them by the learned Additional Sessions Judge-V, Haripur has become infructuous which was also dismissed vide the short order dated 9-5-2012.