' ABDUL QADIR MENGAL, J.---This appeal under section 25 of the Anti-Terrorism Act, 1997 is directed against the judgment dated 30th December, 2006, passed by the learned Special Judge Anti- Terrorism Court-I, Quetta, in case F.I.R. No,162 of 2005, whereby, the appellants including absconding accused Abdul Ghaffar, Abdul Wahid, Shah Mir, Madad Khan, all sons of Haji Wali Muhammad, Muhammad Rafiq son of Haji Muhammad Jan and Inamullah son of Amanullah, have been convicted and sentenced under section 302(b), P.P.C. Read with section 7(a) of the Anti- Terrorism Act 1997, for life imprisonment with fine of Rs,75,000 each, and in default of payment of fine, the convicts were further ordered to undergo SI for one year. The appellants and the absconding accused further have been convicted under section 148, P.P.C. To undergo for three (3) years. Benefit of section 382-B, Cr.P.C. Also has been extended in their favour.
2. The appellants being aggrieved of the said judgment have preferred the instant appeal with the following grounds:--
(a) The impugned judgment is contrary to the evidence, law and equity, as such, is not sustainable.
(b) There are contradictions in the statements of the eye-witnesses, therefore, the evidence of the eye-witnesses cannot be relied upon.
(c) There is no corroboration and harmony in the statements of the eye-witnesses and the same is highly interested and inimical towards the complainant, therefore, their evidence is not reliable and cannot be acted upon.
(d) The prosecution evidence is conflicting one and there is contradiction between the ocular and medical evidence, whereas, all the eye-witnesses attributed that deceased had received kalashnikov shots and died at the spot. On contrary, medical certificate shows that out of the deceased, many of them received sharp-edged weapon injuries and died.
(e) The judgment is not speaking one and, moreover, same has been passed on basis of unreliable and unacceptable evidence, such as, the disclosure memos which have been attributed to convicts/appellants cannot be relied because the same does not fall within the ambit of Article-40 of Qanun-e-Shahadat, 1984, and moreover, the said disclosure memos are like of an admission and same cannot be accepted in view of Article 38 of Qanun-e-Shahadat, 1984, as no confession before police officer to be proved against the person.
3. The learned State Counsel expressed himself on the grounds taken by the counsel for the appellants stating that although there was contradiction between the medical and ocular evidence, however, this contradiction was not fatal to exclude all the evidence of the eyewitnesses, as the evidence of Doctor also on material points corroborating the evidence of eye-witnesses, as such, in view of the above, the evidence of the eye-witnesses cannot be excluded from the consideration. Again, the disclosure memo cannot be treated as admission recorded by the police officers. Actually, the disclosure memo shows that the facts narrated by the appellants/convicts fully reflect the real picture of the offence and appellants' involvement in commission of offence.
Learned counsel further stated that the grounds taken in the appeal and stressed by the counsel for the appellants having no footings, whereas, the judgment is well-speaking and has been passed properly, therefore, same does not requires interference and the appeal filed by the appellants is liable to be dismissed.
4. We have considered the argument in the light of the case record. The facts leading to file the instant appeal are that one Wazir Khan son of Muhammad Noor, on 14th October, 2005, at about 6- 45 p.m. Lodged the instant F.I.R. No,162 of 2005, with Police Station Shalkot Quetta, for offences under sections 302, 324, 147, 148 and 149, P.P.C. With the allegations that he along with Abdul Haleem and Matloob were coming from their grapes orchard for Iftari, when they reached in front of their house, they heard firing at Sorezai Chowk. On hearing thereof, he went there and saw Abdul Ghaffar, Abdul Wahid, Shah Mir, Madad, all sons of Haji Wali Muhammad, Muhammad Rafiq, Muhammad Ayub, both sons of Haji Muhammad Jan, Muhammad Jan son of Innayatullah and Inamullah son of Amanullah, equipped with Kalashnikov along with their unknown companion, who was carrying a pistol, were firing upon his brother Sher Hassan, cousin Muhammad Iqbal, Ghulam Murtaza, both sons of Muhammad Hanif and his maternal cousin Abdul Baqi and Ali Nawaz. All of them fell on the ground on main Sorezai Chowk, whereafter, Abdul Wahid and others ran away in the street. Due to the firing of the accused persons his brother Sher Hassan, Abdul Baqi, Muhammad Iqbal, Ali Nawaz succumbed to the injuries, whereas, Ghulam Murtaza was seriously injured. The motive behind the incident was described as the deceased and accused persons having a dispute over a land and civil cases were pending between the parties in different courts. Today, accused after consultation and common intention have taken positions and had fired with kalashnikovs and killed the deceased persons.
5. Mr. Muhammad Riaz Ahmed, Advocate present for the appellants, while Ms. Tayiaba Altaf, Special Prosecutor ATA, is present for the State.
6. The submissions and grounds which have been taken by the counsel for the appellants in respect of eye-witnesses. Although, having Some weight that there are some contradictions in the evidence of the prosecution witnesses described as eye-witnesses, about the facts of the firing, however, in our view, the said evidence altogether cannot be excluded from the consideration.
Admittedly, all the eye-witnesses consisting upon P.W.1 Wazir Khan son of Muhammad Noor, P.W.2 Matloob son of Abdul Haleem, P.W.3 (injured) Ghulam Murtaza son of Muhammad Hanif including P.W.4 Hafizullah son of Karam Khan, only indicated that the accused after taking shelter near Masjid had fired and killed deceased Sher Hassan, Abdul Baqi, Muhammad Iqbal and Ali Nawaz, so as, also injured Ghulam Murtaza by firing. However, the medical reports of Muhammad Iqbal and Ali Nawaz shows that they had received injuries with sharp-edged weapon along with firearms injuries and died. Whereas, rest of the deceased received bullet injuries and expired. The rule in regard to corroboration of the evidence of the interested and inimical witnesses is a rule of caution and it virtually has ripened into a rule of law. The superior Court on numerous occasion did not accept such testimony without corroboration and insisted for corroboration from independent nature, however, the testimony of such witnesses altogether never has been excluded from the consideration, on the ground that falsus in uno falsus in omnibus' has all along been discarded by the Courts. In this respect the rule or maxim has been discussed in case of "Tawaib Khan v. The State", PLD 1970 Supreme Court 13 and we like to quote the following portion from the said judgment.
"The maxim "falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, "the grain has to be sifted from the chaff" in each case, in the light of its own particular circumstances."
7. Thus considering the evidence of eye-witnesses, looking to the medical evidence, recovery of the dead bodies from the site, and particularly the statements of the accused persons, we have no doubt that the deceased had received bullet shots and as well as sharp-edged weapon blows through the common object of the absconding accused and appellants. In this connection both the appellants in their statements admitted the occurrence, their presence on the site, so as, also the motive which has been alleged by the eye-witnesses. In this respect it would be appropriate to show a glimpse of the statements of both appellants/convicts, which they recorded as witnesses under section 340(2), Cr.P.C. In their defence .
8. The statement of convict/appellant Haji Muhammad Jan says that on 14th October, 2005, he alongwith his son after offering prayer at about 5-30 p.m. Were standing outside when Muhammad Hanif, Muhammad Iqbal, Sher Hassan, Abdul Baqi, Ali Nawaz, Abdul Haleem, Wazir Khan, Ghulam Murtaza, Hafizullah and Matloob were standing outside and they were equipped with kalashnikov, pistol, dagger and dandas. They started firing at them and attacked upon them. He due to the firing received bullet injury on his leg and became unconscious. He tried to report the matter to police, but police did not lodge his report against the culprits. The motive behind the incident was that the sons of Haji Noor Jan intended to usurp their landed property while all the assailants belong to same family. He further asserted to be falsely implicated in instant case.
9. The appellant/convict Muhammad Ayub in his statement states that after offering Asar prayer in the Masjid, of their village Ghulam Jan, they were standing, when Muhammad Hanif, Muhammad Iqbal, Sher Hassan, Abdul Baqi, Ali Nawaz, Abdul Haleem, Wazir Khan, Ghulam Murtaza, Hafizullah, Matloob and Juma Khan were standing in-front of Masjid, having kalashnikov, dagger and dandas.
They started firing and also they inflicted Lathi blows to them. He received bullet injury on his hand and also received Lathi blows, due to which he became unconscious and shifted to hospital. The accused with an intention to grab their land, falsely implicated them in the case in hand.
10. The above statements fully corroborate the evidence of the eyewitnesses that the appellants were present along with the absconding accused. The statements of the appellants/convicts clearly shows that they were concealing the facts by not telling the truth. It seems illogical that the deceased and remaining persons armed with kalashnikov, dagger and dandas attacked with an intention to kill them at Masjid, while they (appellants) were empty-handed, but survived and amazingly received shots at hand and leg, but the armed persons died at the spot receiving bullet shots and dagger blows of their own, which is unbelievable in the circumstances.
11. Thus in view of the facts, the evidence of the eye-witnesses cannot be disbe'ieved in total, but can safely be relied upon, which established their (appellants') participation in the crime with the remaining accused persons. The trial Court rightly assessed that both the sides concealed the facts. But the minute perusal of the evidence disclosed the facts from which it can be assessed that due to subsistence of old enmity over lands situated at Eastern Bypass, and litigation before the Courts the accused persons while forming unlawful assembly with common object visited the site and took position near Masjid armed with weapons after prayer attacked the deceased persons and succeeded to kill them. And in result thereof as both the parties residents of same area have a free fight, resulted in inflicting of injuries with sharp-edged weapon on bodies of the deceased. Further, it seemed, the appellants also were injured in the incident who approached the hospital, where they were arrested, while rest of the accused succeeded to escape. The evidence of Investigating Officer P.W.11 Muhammad Rafique, and the recovery witness P.W.6 SI Muhammad Latif corroborates the facts. "
12. We have considered the submissions of the learned counsel for the appellants in regard to disclosure memo and we concur the view of the learned counsel for the appellants that it can hardly fall within the ambit of Article 40 of Qanun-e-Shahadat, 1984, because an admission under the Article must lead to discovery of some new factor resulted in recovery of property of the case, mere statement about the facts already in knowledge is not admissible. The learned counsel for the appellants was correct to submit that the disclosure made, cannot be used as an admission within the meaning of Article-39 of Qanun-e-Shahadat, whereby, confession of an accused in custody recorded by the police not to prove against him. In the instant case neither any recovery was effected on basis of alleged disclosure, nor some new fact discovered, therefore, the disclosures were out of consideration being not admissible. Now adverting to the eye-witnesses of the case, undoubtedly, Ghulam Murtaza was the eye-witness of the incident and he had received bullet shots on spot along with the deceased persons, but survived. His statement fully support the F.I.R. And statement of the complainant Wazir Khan, so as, the other eye-witnesses also with consonance and with one voice have narrated that the appellants along with the absconding accused were present at the site and they fired with Kalashnikov towards them and, in result, Sher Hassan, Abdul Baqi, Muhammad Iqbal and Ali Nawaz died at the spot. The statements of the witnesses not suffer from any major contradiction rather each of them corroborate the statement of the other, therefore reliable. Thereby established the act of the culprits that they after making unlawful assembly within the meaning of section 141, P.P.C., committed an offence falling under section 149, P.P.C., which reads as under:-- "S.149... every member of unlawful assembly guilty of offence committed in prosecution of common objects.
' If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence"
The appellants along with co-accused made unlawful assembly with common object to attack upon the complainant and his relatives due to subsistence of dispute in respect of property, thereby, murdered four persons and injured one in a gruesome manner in daylight, bringing the matter under section 6(a) of the Anti-Terrorism Act, 1997, punishable under section 7(a) of the Anti- Terrorism Act, 1997.
13. As far as contention of learned counsel for the appellants that there was no evidence showing that the appellants specifically took part in the commission of the offence of firing or inflicted any sharp-edged weapon blow to the deceased is concerned, we are aware of the fact that it is general principle that a person is liable for what he himself has done and not for what done by some other persons, however, section 149, P.P.C. Is an exception to the general rule. Therefore, in the described circumstances, every member of an unlawful assembly vicariously liable for an offence committed by another member of the assembly. In this regard reliance is made on 2007 PCr.LJ 1860.
' Thus with the above discussed circumstances the judgment dated 30th December, 2006, passed by the Special Judge, Anti-terrorism Court-I, Quetta found to be well reasoned with no instances of misreading or non-reading of material and law, therefore, hereby upheld. In result, the instant appeal is dismissed being without merits.