Z. C. VALLIANI, J.---Appellants Abdul Hadi, son of Mian Abdur Rahim Samejo and Abdul Fateh, son of Pir Abdul Rahim Samejo have filed this appeal, against judgment of the learned III-Additional District Judge, Sukkur, in Session Case No. 249 of 1977; convicting the appellants under section 302 read with section 149, P. P. C. And section 307 read with section 149, P. P. C. And under section 148, P.
P. C. And sentencing then inter alia, for imprisonment for life for a murder of Bashir Ahmad and for attempt to murder P. Ws. Shabbir Ahmad, Abdul Salam, Muhammad Hussain, Mian Abdul Haq and Subhani and for rioting armed with deadly weapons. This case is also before us on suo motu notice to appellants, to show cause, why the sentence of life imprisonment awarded to appellants be not enhanced and substituted by capital sentence. By this judgment, we propose to dispose of both the appeal as well as Cr. Revision 138 of 1978, which arises out of above-mentioned suo motu notice for enhancement of the sentence.
2. Briefly stating the prosecution story as disclosed in the F. I. R. Dated 14th October, 1977, lodged at about I-45 p. m. By complainant Abdul Hadi, Samejo with Police Station, Daharki, is, that the com-- plainant party belongs to the group of defunct `National' Alliance'. On the day of incident complainant Abdul Baqi alongwith Mian Abdul Haque, Bashir Ahmad (now deceased), Shabbir Ahmad and Abdul Salam started at about 12.30 noon in a Toyota Jeep bearing No. SKA/2741, from their house, towards Ubauro to meet Jam Munir Ahmad. When they reached Daharki Bus Stand, at about 12-45 p. m. Mian Abdul Haque slowed down the Jeep because of traffic. Meanwhile there was firing from the side of house of Ranjho Shar's upper storey. Mian Mitho was driving the jeep, who sustained gunshot injury on his chest. Whereupon all, the persons came out of the Jeep. The complain--ant saw Abdul Mannan with a bren-gun, Abdul Hadi, Abdul Gbani, Dil-Sher Lund, Mir Allahyar and. Aftab Ahmad with Rifles and Abdul Fateh, Abdul Hanan and Agho Shar with guns, firing on the complainant party, from the side of 'Sufi' which resulted into injuries to P. W. Bashir Ahmad (deceased), Shabbir Ahmad, Abdul Salam, Muhammad Hussain, Subhani and Mian Abdul Haque. It is further alleged that the culprits came down from the 'sufi' while firing. The firing attracted the Police and S. H. O. Rashid Ahmad Qureshi, reached at the spot with his staff and seeing the Police party, the culprits taking shelter of houses, started running by the side of road towards North-West. The Police party chased the culprits and firing was heard after some time. The complainant Abdul Baqi, then brought the injured person to Daharki Hospital, where injured Bashir succumbed to his injuries after half an hour. The complainant then went to Police Station to lodge his report. The motive alleged in the F.I.R. Is political rivalry. The accused persons (including present appellants) belong to defunct-People's Party and previously they had threatened the complainant party to leave the defunct-Pakistan National Alliance.
3. The F. I. R. Which is Exh. 8, was taken down by A. S. I. Muhammad Ayoub P. W.
7. As deposed to by him in his deposition Exh. 34, complainant Abdul Baqi came at 1-45 p. m. At the Police Station and lodged his report on the basis of which he registered a case against the culprits. S. H. O. Rashid Ahmad Qureshi, had already left the Police Station on hearing the gunshot reports, as the place of incident is at a distance of half furlong from the Thana. After recording the F. I. R., A. S. I. Muhammad Ayoub proceeded to the wardat with complainant Abdul Baqi, Mian Abdul Sami and others. He prepared the mashirnama of the wardat, in the presence of Amanullah and Hafiz Ali Gul. He inspected a Toyota Jeep which was parked on the road. He noted its condition and also the marks of blood on the seat of Driver. He also noticed blood on the ground, which he collected and sealed on the spot. He inspected the place from where the firing was made, which was a roof of house.
From the roof, he secured ten empty cartridges and seven live bullets. He also secured from the said roof Balochi Cap, one shirt, one Shalwar, and one white turban, as well as one live and one spent bullet, two old Relhis. The empty cartridges and bullets were sealed by him on the spot, in the presence of mashirs under mashirnama Exh. 19.
4. Thereafter A. S. I. Muhammad Ayoub proceeded to Daharki Hospital, where he prepared the mashirnamas of injuries on the persons of inured Abdul Haque, Shabbir Ahmad, Subhani, Abdul Salam and Muhammad Hussain vide mashirnama Exh.
18. At the Hospital he prepared the Inquest Report of the dead body of Bashir Ahmad, which is Exh.
17. While he was busy in the investigation at the Hospital, S. I. P. Rashid Ahmad P. W. 8 came there and took over the investigation from him. S. I.
P. Rashid Ahmad P. W. 8, then verified the Investigation already conducted by Muhammad Ayoub.
As deposed to by him in his deposition Exh. 35, two of the injured namely Mian Abdul Haque alias Mian Mitho and Shabbir Ahmad mete referred to Civil Hospital, Sukkur, for treatment. P. W. Subhani and Muhammad Hussain, who were admitted in Daharki Hospital were not fit to give their statements so he came back to the wardat for further investigation. At the wardat on the same evening, he recorded the statement of Sudhanomal, Abdullah, Wahid Bux, Nano-Ram, Iftekhar Ahmad and Abdul Majeed lie then went to Hospital in the night and recorded the statements of injured Subhani and Muhammad Hussain. He came back to the Police Station, where he found the senior police officers of the District already present. On the same night he recorded the statement of P. W. Muhammad Younis. The Police Party were deputed by the S. P. Sukkur for the arrest of accused, who were named in the First Report, but no accused could be arrested. On 20th October, 1977 he came to the Civil Hospital Sukkur, and recorded the statements of Mian Abdul Haque alias Mian Mitho, Abdul Salam and Shabir Ahmad all injured. On 17th October, 1977, he arrested accused Abdul Hadi (now appellant No. 1) and on 22nd October, 1977, accused Abdul Hanan, on 24th October. 1977 he arrested accused Dilsher and on 25th October, 1977, accused Mir Allahyar Shar was arrested. On 28th October, 1977, accused Agho alias Ahmad Yar Shar and. On 29th October, 1977, accused Aftab Ahmad were arrested by A. S. I. Ikramullah from Raj--putana Hospital, where he was admitted and was under treatment. Accused Aftab was brought from the Hospital on 7th November, 1977. On 31st October. 1977, he submitted an interim challan against the accused persons, who were arrested earlier showing Abdul Mannan, Abdul Ghani and Ghulam Qadir and Abdul Fatah as absconding. Accused Ranjho Shar was arrested on 29th October, 1977. On 12th November, 1977, he submitted interim challan against accused Ranjbo Shar and Aftab Ahmad.
Accused Abdul Fatah (now appellant No. 2) was arrested on 11th December, 1977, and subsequently produced before the Court. During the investigation he bad secured a licensed gun of accused Ranjho Shar, from the house of one Karim Bux. He registered a separate case against Karim Bux under M. L. R. 8 and sent him before the Military Court, from where he was acquitted. He had sealed the gun and sent the same to the Ballistic Expert alongwith the Crime empties found from the wardat. He produced the report of the Ballistic Expert as Exh. 37, which is positive. He had also despatched the blood-stained earth to the Chemical Examiner and produced his report as Exh. 38, which is also positive. He stated, that in this case no final challan was submitted and the interim challans submitted by him were treated as final challans.
5. Accused Abdul Mannan, Abdul Ghani and Ghulam Qadir were shown as absconders in the challan, hence non-bailable warrants were issued against them and after recording the statement of Muhammad Ayoub A. S. I. As Court witness, these three accused were declared abscon--ders and proceedings under section 512, Cr. P. C. Were taken against them, by trial Court's order dated 10th April, 1978. The trial of the case commenced in the absence of these three absconders accused, as directed by the Court.
6. During trial the prosecution in support of its case had examined P. W. 1 Abdul Baqi Exh. 7, P. W. 2 Abdul Haque alias Mian Mitho Exh. 9, P. W. 3 Shabbir Ahmad Exh. 10, P. W. 4 Abdul Salam Exh. 11, P. W.
5 Subhani Exh. 12, P. W. 6 Bahadur Ali Tapedar Exh. 14, P. W. Amanullah (Witness number incorrectly mentioned) Exh. 11, P. W. Dr. Subhano (Number incorrectly mentioned) Exh. 21, P. W. Muhammad Ayoub A. S. I. No. 7 Exh.
34. And P. W. 8 Rashid Ahmad Exh.
35. The learned D. P. P. Had givers up P. W.
Muhammad Hussain vide his application Exh. 13, and he further gave up P. W. Ali Gul Mashir and Younis vide application Exh. 20.
7. The accused persons (including present appellants) in their state--ment under section 342, Cr. P.
C. Have denied the allegations of the prosecution and pleaded, that they have been falsely implicated on account of enmity with the complainant party. Accused Abdul Hunan and Dil-Sher Lund had examined Dr. Sanaullah Exh. 54 as their defence witness to prove their physical disability to participate in a running battle.
8. Learned III Additional District Judge, Sukkur by his impugned judgment dated 22nd October, 1978 while acquitting accused Allahyar, Agho alias Ahmad Yar, Jam Aftab Ahmad, Ranjho, Abdul Hanan and Dil Sher Lund for the reasons given by him in the said judgment, convicted present two appellants for the murder of Bashir Ahmad and for attempt to murder P. Ws. Shabbir Ahmad, Abdul Salam, Muhammad Hussain, Mian Abdul Haque and Subhani and for totting armed with deadly weapons and sentenced both the appellants to suffer life imprisonment and to pay fine of Rs. 5,000 each or in default to undergo R. I. For six months more under section 302, P. P. C read with section 149, P. P. C. And to undergo R. I. For five years and to pay fine of Rs. 2,000 each or in default to undergo R. I. For six months more under section 307, P. P. C. Read with section 149, P. P. C. And directed that out ,of fine, if realised a sum of Rs. 1,000 from each of the appellant will be equally distributed to injured Abdul Haque, ,Shabbir Ahmad, Muhammad (slam and Subhani as compensation tinder section 544-A, Cr. P. C. And further to undergo R. I. For one year under section 148, P. P. C. And further directed in his said judgment that above sentences against both the appellants to run concurrently.
9. The learned Advocate for the appellants submitted before us (1) that all independent P. Ws.
Exclude appellants, (2) Admitted enmity between complainant party and that of the appellants and as such appellants have been falsely implicated alongwith acquitted accused, (3)
Investigating Officer P. W. 8 Rashid, Ahmad reached spot immediately after the alleged incident, but in spite of this P. W. 2 Abdul Haque alias Mian Mitho and P. W. 1 Abdul Baqi did not mention to him the names of appellants or other accused persons, (4) Delay in lodging of F. I. R. Not explained as held by trial Court, (5) Admitted false implication of acquitted accused Allahyar and Agho Shar alias Ahmad Yar and implication of crippled acquitted accused Abdul Hannan and Dil Sher Lund by P. Ws. Make their testimony unworthy of credence, Independent eye-witness Younis and Muhammad Hussain (injured) were given up (6) by the prosecution, (7) Inherent contradiction m prosecution story. Prosecution, witnesses contradict each other as well as medical evidence, (8)
Trial Court has given no reasons for convicting only present appellants and (9) State has filed no acquittal appeal against the 6 acquitted accused although evidence against the acquitted accused is same as that against present appellants. In support of these submissions the learned counsel took us through the judgment of the learned Sessions Judge as well as statements of all the prosecution witnesses and defence witness and in the light of the criticism of statements of prosecution witnesses, the learned counsel submitted, that the judgment of the trial Court cannot be sustained both on facts and law.
10. The 'learned counsel appearing on behalf of the State, stated, that he was not supporting the convictions of the appellants, as accord--ing to him it is a case of false implication due to enmity, as it has been pointed out by the learned counsel for the appellants. The learned counsel for the State specially drew our attention -to the statement of P. W. 8 Rashid Ahmad (S. H. O.) who in his statement before trial Court had said, that he knew all the accused persons and none of them were amongst five persons, who ran away from the scene, in spite of his chasing them for arrest, in which chase he also received bullet injury.
11. In the light of above submissions made by the learned counsel for the appellants and State, we would now proceed to consider evidence of eye-witnesses examined by the prosecution before trial Court, keeping in mind, that except for ocular testimony of these eye-witnesses, there is no circumstantial evidence available against the appellants; as none of them was arrested on the spot nor any recovery of crime weapon has been made from the present appellants.
12. P. W. 1 Abdul Baqi (complainant) in his statement before trial Court narrated the incident as he had mentioned in F.I.R. Exh. 8 and had stated, in his said statement, that he saw from jeep, above two appellants and co-accused Abdul Mannan, Abdul Ghani, Abdul Hannan, Dil Sher, Aftab, Agho Sher and Allahyar all standing armed with their weapons as mentioned in F. I. R. On the roof of the house of Ranjho Shar, from where they were firing at them which resulted in fatal injuries to Bashir Ahmad and injuries to I'. Ws. Abdul Salam, Subhani, Mian Mitho, Shabbir and one Muhammad Hussain passerby, who was cited as witness but ultimately given up by prosecution. He further stated that on seeing the Police, all the accused came down from roof, and started running towards North, with their respective weapons. He further stated, that Police Party which had arrived by then, chased the said accused persons and thereafter again gunshots were heard. He arranged and removed injured Bashir Ahmad, Shabbir, Abdul Salam, Mian Mitho and Muhammad Hussain to Daharki Hospital, where injured Bashir Ahmad died and then he went to Police Station to lodge F. I.
R. Exh.
8. In his statement before trial Court he admitted family enmity inter se between complainants party and accused party to which he had made no reference in F.I.R. In cross he admitted, that he did not see accused persons coming' down from the roof but only saw them running on road and further admitted that he did not mention about injuries received by Shabbir in F.I.R. Its his cross before the trial Court, he admitted, that he had not seen accused Allahyar and Ahmad Yar alias Agho Shar amongst culprits, who were firing from roof top, but had given their names in F.I.R. As some body told him that they were there. Explanation given by him for delay in lodging F. I. R. Was not accepted by trial Court. In view of this no reliance can be placed on the evidence of this witness, without independent corroboration, specially as according to P. W.8 Rashid Ahmad, this witness on spot did not give him the names of accused persons except stated' that persons of Abdul Mannan party attacked them and as he had falsely implicated accused Allahyar, Ahmad Yar, Abdul Mannan and Dil Sher Lund in F. I. R.
13. P. W. 2 Abdul Haq alias Mian Mitho more or less gave the same statement as P. W. 1 Abdul Baqi.
He in his cross-examination admitted enmity with accused party on account of the murder of Pir Abdul Rahim, the father of accused Abdul Mannan and Abdul Fateh and stated that as these persons suspected him as murderer of their father, he was attacked by appellants and their family members. 1n trial Court he only identified Abdul Hadi (appellant). Abdul Fateh (appellant), Abdul Mannan, Jam Aftab and Dil Sher Lund and said he did not know the rest of the accused persons, but later on admitted he knew one of them, but these persons were not there amongst the culprits.
In view of the admitted enmity between him and present appellants over the murder of latter's father, for which this witness is suspected, it would not be safe to rely on the evidence of this witness, without independent corroboration, specially as he implicated accused Dil Sher Lund and Abdul Hannan, who have been acquitted by trial Court on the ground that they were incapable of fighting running battle, on the basis of medical evidence produced by the said accused.
14. P. W. 3 Shabbir Ahmad has more or less given the 'same statement as P. Ws. 1 and 2, before trial.
This witness identified accused Abdul Hannan, Abdul Fateh (appellant) and Abdul Hadi (appellant), Jam Aftab, and Dil Sher Lund and further stated that he did not know accused Allahyar, Ahmad Yar and Ranjho and these persons were not amongst culprits. In view of his relationship to complainant party and the facts that he implicated accused Dil Sher Lund and Abdul Hannan, who according to medical evidence were incapable of taking part in the fight as alleged no reliance can be placed on his evidence, without independent corroboration, as he in his cross-examination stated, that accused persons after incident did-not run but were going slowly, which is unbelievable, as accused on seeing Police party coming, left the scene and were chased by Police party.
15. P. W. 4 Abdul Salam has also more or less given the same statement as P. Ws. 1 and 2. This witness stated that P. W. Abdul Baqi gave names of accused persons to police before Police party left for chase, which fact is denied by P. W. 8 Rashid Ahmad. This witness is also closely related to complainants--- party and further he implicated accused Dil Sher Lund, and Abdul Hannan, who according to medical evidence were incapable of taking part in such fight. In view of this his evidence also cannot be relied upon, without independent corroboration.
16. P. W. 5 Subhani is the only independent eye-witness of the occurrence and had received injury in the said incident. He stated before trial Court, that there were only five persons on the roof, who were firing, and no accused persons ire Court were amongst them. He further stated that he saw gun in the hand of P. W. 1 and Rifle in the hand of P. W. 2 Mian Abdul Haq and both of them were seen by him firing in the direction of building from where culprits were firing at them.
17. P. W. 9 Muhammad Ayoob A. S. I. He had recorded F.I.R. Of P. W. I and stated that Jam Munir Ahmad came with P. W. 1 to police station, when F.I.R. Was lodged and he had seen both of them discussing before lodging of F. I. R.
18. P. W. 10 Rashid Ahmad (S. H. O.) He said he reached wardat on bearing gunshots and saw five culprits running away, who according to P. W. 1 Abdul Baqi had fired on them and as such he chased them for 4/5 miles but without success and in course of said chase, he also received injury.
He was able to see the said five culprits in said chase and according to his statement none of the accused present in trial Court were amongst them.
19. D. W. 1 Dr. Sanaullah has stated before trial Court, that according to his examination of accused Abdul Hannan and Dil Sher Lund and according to report of the Board of Doctors both of them were in capable of participating in running battle as alleged by prosecution.
20. Prosecution examined five eye-witnesses, namely P. W. 1 Abdul Baqi (complainant), P. W. 2 Abdul Haq, P. W. 3 Shabbir Ahmad, P. W. 4 Abdul Salam and P. W. 5 Subhani, out of this P. W. 5 Subhani is the only independent eye-witness, who had received injuries, as he was standing on road near the scene of the incident. Rest of the eye-witnesses are inter--related and belong to complainants party and admittedly have enmity with the present appellants, over political differences according to F.I.R. And over family feuds with the appellants, as disclosed in cross- examination of witnesses. Appellants are also closely related to the complainant party, sand both the parties have differences and disputes over Gadi of Dargah Bharchoondi, which has resulted in murders and attempts to murders and consequently criminal castes in this connection were pending between the parties at that time, beside alleged political enmity as mentioned in F.I.R. In view of this, evidence of P. Ws. 1, 2, 3 and 4 cannot safely be relied upon without independent corroboration. Besides this there are material contradictions in their statements inter se as with their statements recorded under section 161, Cr. P. C. Further according to trial Court there was delay in lodging of F.I.R. Which has not been explained satisfactorily by P. W. 1 Abdul Haq.
21. P. W. 5 Subhani who was only independent eye-witness of the incident, in which he himself was injured has clearly stated in his statement, that there were only 5 persons on the roof of the house from which firing took place and not nine as mentioned by P. Ws. 1, 2, 3 and 4. This witness has further stated, that 'he knew accused Jam Aftab Ahmad, Allahyar Ahmedyar and Ranjho Sher prior to incident, but they were not amongst the five persons who were, firing from roof top and then ran away. He also further stated, that he did not see any of the accused persons present in trial Court, which included present appellants, near wardat nor he saw them-- as culprits, who had fired on him and others. This witness further stated that he saw gun in the hand of P. W. 1 Abdul Baqi and Rifle in the hand of P. Ws. 2, P. Ws. 1, 2, 3 and 4 have denied possession of gun and rifle on their side and alleged firing on their part. Further these witnesses stated in their statement under section 161, Cr. P. C. That there were nine persons on the roof fully armed and they were firing at them. The another independent P. W: 18 Rashid Ahmad S. H.O. Who came on the site on hearing gunfire shots and chased the five persons, who after firing from roof ran away and in course of such chase had received himself injury categorically stated; that none of the accused present before trial Court which included present appellants as well, were amongst the five persons, whom he and his party had chased, while running away, as he knew all these accused prior to the incident and as such was in position to make the said statement, as he had chance to see the said five culprits in his encounter with them, in the said chase of 4 miles and firing which took place between Police party and these culprits. This witness further stated that P. W. Abdul Baqi told him that Abdul Mannan's party hao attacked them with guns, without naming any other accused persons. In the face of the evidence of independent P. Ws. Subhani and Rashid Ahmad S. H. O. No reliance can be placed, on the evidence of P. Ws. 1, 2, 3, and 4 as they are interested witnesses and belong to deceased party and have admitted family feuds with the appellants and other co-accused, who were acquitted by the trial Court. Further P. W. 1 Abdul Baqi and others initially implicated accused Allahyar, Ahmad Yar and Ranjho Sher but before trial Court, did not implicate these accused persons. It may be also noted that these four P. Ws. Had implicated accused Abdul Hannan and Dilsher Lund, both, of whom, according to evidence of D. W. Dr. Sanaullah were incapable of participating in running battle. In the face of this evidence of D. W. 1 Dr. Sanaullah, which has not been challenged in his cross--examination, still these two accused were implicated by these four P. Ws. In this incident.
These facts, coupled with other contradictions in the statement of these witnesses before trial Court, it would not be safe to place any reliance on their evidence, without independent corroboration, which is not available on record. On the contrary independent P. Ws. 5 and 8 Subhani and Rashid S. H. O. Respectively have not supported statement of these witnesses on material points, as mentioned earlier. It may be noted that prosecution gave up two eye-witnesses namely Younus and Muhammad Hussain presumably, as they did pot support the prosecution case.
22. The alleged motive mentioned in F.I.R. Has been disbelieved by the trial Court for cogent reasons. Statement of P. W. 9 Muhammad Ayoub A. S. I. Creates doubts about the veracity of facts mentioned in F. I. R. As this witness has stated that P. W. 1 Abdul Baqi when he came to lode F. I. R.
Was accompanied by Jam Munir Ahmad and both of these persons were seen talking to each other, before lodging of F.I.R. In question. The fact of the presence of Jam Munir Ahmad at Police Station at the time of lodging F. I. R. Was denied by said P. W. 1, but evidence of this witness in our opinion has established the same, as nothing is alleged by prosecution against this witness.
Therefore veracity of facts as mentioned in F.I.R. Becomes doubtful.
23. The trial Court though disbelieved the prosecution witnesses in respect of other six accused and acquitted them, but in case of the present appellants, the trial Court believed their evidence, on the basis of motive due to murder of their father, for which Mian Abdul Haq and others are facing trial and convicted present appellants and sentenced them as men--tioned above. It is significant to note that no acquittal appeal has been filed against acquittal of six accused by trial Court, either by prosecution or complainant side.
24. The appraisal of evidence of prosecution witnesses P. Ws. 1, 2, 3 and 4 by us clearly shows, that no reliance can be placed on their evidence without independent corroboration, which is not at all available on record of the trial Court and as such in our opinion evidence produced by prosecution against the present appellants is unsatisfactory and insufficient and consequently prosecution has failed to prove the case against the present appellants beyond reasonable doubt. We therefore, give benefit of reasonable doubt to the above appellants and acquit them. In the result appeal is allowed and revision petition is dismissed and consequently convictions and sentences passed against appellants are set aside and withdrawn. Appellants may be released forthwith, if not required in any other case.
25. On the conclusion of the arguments on 20th April, 1981 we bad passed a brief order setting aside the convictions and sentences of the appellants and allowed appeal and dismissed revision application by recalling notice for enhancement of sentence. The above are the main reasons, which we now give for allowing appeal and dismissing revision application for enhancement of sentence.