MUHAMMAD ZAMAN vs The STATE and others

' EJAZ AFZAL KHAN, J.---This appeal with the leave of the Court has arisen out of the judgment dated 26-5-1998 of a Division Bench of Lahore High Court, Lahore whereby it allowed the appeal filed by the respondents, set aside the conviction and sentences recorded by the learned trial Court and acquitted them of the charges.

2. Brief facts as narrated in the F.I.R. Lodged by Hakim Ali who died before his examination in the Court are that he being a resident of Budhuwal was a cultivator; that his sons Zameer, Muhammad Zaman and Shabbir used to work at Islamabad; that a month before they came to village and so did Rafaqat Ali who also worked at Islamabad; that his sons and the said Rafaqat Ali developed friendship; that on the day of occurrence at about 3-00 p.m. He and his sons Tanvir, Ali Muhammad and Feroz were sitting in the courtyard of their residential house while Zameer, Muhammad Zaman, Shabbir and Rafaqat Ali were sitting in the adjacent Bethak, suddenly they heard noise from the eastern side of the street and saw Paindey Khan, respondent, lftikhar P.O., Zafar Iqbal, acquitted co- accused, Muhammad Ashraf son of Abdullah, acquitted co-accused, Fateh Muhammad, respondent herein, Muhammad Asghar, P.O., Imtiaz Ahmed and Murad alias Muradi, acquitted co- accused, armed with rifles, Muhammad Aslam, Abdullah, Liaqat Ali, respondents herein, Munawar, Muhammad Ashraf son of Mehdi Khan, acquitted co-accused, all armed with .12 bore shot guns along with two un-known persons who were also armed with Rifles came there; that Abdullah and.

Mukhtar commanded that Shabbir be taught a lesson for his bad character; that Abdullah fired a shot at Shabbir with his .12 bore shotgun which hit him on his right thigh, Mukhtar, P.O fired a shot at Rafaqat with his rifle which hit him on his mouth; that both of them fell down and succumbed to their injuries; that Paindey Khan fired a shot at Muhammad Zaman with his rifle, which hit him on his left hand; that Liaqat Ali also fired a shot at Muhammad Zaman with his shot gun which hit him on his right hand; that Fateh Muhammad fired a shot at Zameer which hit him, on his neck; that all the injured fell down and thereafter all the assailants mentioned above bolted away from the spot by firing indiscriminately. The motive for the occurrence is that the respondents and their cohorts suspected that Shabbir deceased had developed illicit relations with the sister of Mukhtar, P.O. A case under sections 302/307/148/149 , P. P.0 . Was registered against the respondents, P.Os' and acquitted co-accused vide F.I.R. No 332 dated 14-12-1986 in Police Station, Dinga, District Gujrat. The learned trial Court after trying the aforesaid accused handed down its finding in its judgment dated 26-4-1992 which runs as under:-- "In view of what has been discussed above, I have arrived at the conclusion that prosecution has succeeded to prove its case against Muhammad Aslam, Paendy Khan, Liaqat Ali and Abdullah accused present in the Court along with Mukhtar P.O.While I, disbelieve the evidence of the prosecution regarding all other co-accused because their presence at the spot even as taken to be true they were not ascribed any injury, while they were also stated to have been armed with firearms and it was easy for them to do away other P. Ws. Of this case. Hence, I am of the opinion that actually the above mentioned four accused along with Mukhtar P.Os were present at the spot and they caused death to Shabbir and Rafaqat deceased and also injured Muhammad Zaman and Zameer P.Ws., thus I convict them under section 302/34, P. P. C. Muhammad Aslam and Abdullah accused have fired at Shabbir Ahmad deceased, thus causing his death, therefore, I award them death sentence for murder of Shabbir deceased. The fine of Rs,25,000 is imposed on each accused, in case of default of payment of fine, they shall further undergo five years' R.I. Fine if recovered shall be given to the legal heirs of deceased Shabbir. I also convict them under section 302/34, P. P. C. For murder of Rafaqat deceased but as the fatal fire shot is not attributed to them, therefore, they are sentenced to life imprisonment. A fine of Rs,25,000 is also imposed on each convict. In default of payment of fine, they shall further undergo five years' R.I. Fine if recovered shall be given to the legal heirs of the deceased Rafaqat. While other accused Paendey Khan and Liaqat Ali are awarded lesser penalty on two counts of life imprisonment as no fatal fire shot is attributed to them. I also convict all the four accused under section 307, P.P.C. Read with section 34, P. P. C. For causing murderous assault on Muhammad Zaman and Zameer P.W. And imprisonment for 10 years' R.I. On two counts is awarded to them. A fine of Rs,5,000 each on each count is also imposed on each of the convict. In case of default of payment of fine, they shall further undergo two years' R.I. Fine if recovered shall be given to the injured P. Ws. In equal proportion. Abdullah accused is already in police custody. Accused Liaqat, Aslam and Paendey Khan are on bail. They shall be taken into custody and sent to jail to undergo their sentence. If the death sentence is not confirmed the benefit of section 382-B, Cr.P.C. Shall be given to the accused and all the sentences shall run concurrently. Remaining accused are on bail, their bail bonds are cancelled and sureties are discharged. File of this case be referred to honourable Lahore High Court, Lahore for confirmation of death sentence awarded to Aslam and Abdullah accused. Copy of this judgment shall be given to the accused Muhammad Aslam and Abdullah free of cost and they have been told that they can prefer appeal against the judgment within seven days. The murder reference shall be sent immediately. The case property shall be confiscated in favour of the State after period of appeal/revision if. Any. Copy of this judgment shall also be sent to District Magistrate as required under section 373, Cr.P.C."

' The respondents preferred an appeal against their convictions and sentences while the appellants preferred a revision petition against the acquittal of the co-accused and for enhancement of sentences of those convicted before the High Court. The former was allowed whereas the latter was dismissed vide judgment dated 26-5-1998, hence this appeal.

3. Points which were raised and noted at the time of grant of leave, read as under:-- "Leave to appeal is sought against the judgment/order dated 26-5-1998 whereby respondents 1 to 4 before the learned Lahore High Court were acquitted of the charge under section 302, Pakistan Penal Code on two counts. Respondents Nos. 5 and 8 others were acquitted by the learned trial judge.

(2) To begin the F.I.R. 15 persons were nominated while two others not known to the maker of the F.LR. Were also described to have been participated in the occurrence, 13 persons, and 4 'absconders were tried and at the conclusion of the trial, the learned trial judge acquitted 9 accused of the charge but only convicted respondents 2 to 5. Respondents assailed their conviction in the Lahore High Court by filing an appeal while the complainant also instituted a Revision Petition. The appeal of the respondents was allowed and the Revision was dismissed and respondents were acquitted of the charge through the order impugned.

(3) We have heard the learned counsel for the petitioners as well as Kh. Sultan Ahmad, ASC/Caveator and have gone through the judgment impugned in our view that the learned judges of the Lahore High Court erred in discarding the seemingly reliable injured eye-witnesses on the ground that they were contradicted by the F.I.R. Which is never considered as substantial piece of evidence and the same was not got recorded by the injured eyewitnesses. The maker of the F.I.R. Namely father of two deceased was also murdered and it is noteworthy to mention that the occurrence took place inside the 'Baithak' of the complainant while the complainant was standing outside. The learned Judges also proceeded to acquit the respondents on the ground that the role ascribed to the assailants had not been specially mentioned in the F.I.R. This reason too is not well founded because it I s very difficult to explain the evidence with mathematical exactitude.

(4) To ensure the safe dispensation of criminal justice, in our view reappraisal of the entire evidence is essential, therefore, we -grant leave to appeal in this case. Let bailable warrants in the sum of Rs,50,000 returnable to the District Magistrate Gujrat be issued against respondents .2 to 6."

4. Learned counsel appearing on behalf of the appellant contended that though the number of the assailants runs up to seventeen but those who wrought and brought the plight of the deceased and the injured have 'been specifically charged. Their role, the learned counsel added, is supported by medical evidence and the report of Forensic Science Laboratory. The learned Judge of the High Court, the learned counsel added, has not appraised the evidence in its correct perspective and thus recorded artificial and untenable reasons for the acquittal of the respondents. The finding of the learned Appellate Court vis-a-vis motive, the learned counsel submitted, is also against the record. Armed presence of the respondents on the spot of occurrence, the learned counsel argued, amply and unmistakably proves their pre-concert and as such they are fully connected with the crime, therefore, the finding of their acquittal merits outright reversal.

5. The learned Additional Prosecutor-General, supported the appeal filed by the appellants by submitting that finding of acquittal recorded by the learned Appellate Court has not been based on proper appraisal of evidence, therefore, it cannot be maintained.

6. As against that, the learned counsel appearing on behalf of the respondents contended that initial presumption of innocence is doubled after the acquittal of the accused, therefore, the mere fact that on reappraisal of evidence, the view projected by the learned counsel for the appellant is equally possible, cannot furnish a justification for its reversal. Number of the assailants in the F.I.R., the_, learned counsel submitted, appears to have been exaggerated as seventeen persons have been charged notwithstanding this could be a doing of one or at the most two men armed with a shot gun. Contradictions in the statements of the P.Ws., the learned counsel contended, prove that they have neither witnessed the occurrence nor have they spoken the whole truth, therefore, evidence of this standard cannot, in- the first instance, justify conviction and then reversal of a finding of acquittal. Medical evidence, the learned counsel submitted, is also at variance with the ocular account when the injuries on the person of Rafaqat Ali appear to have been caused by rifle.

The judgment of the learned Appellate Court, the learned counsel by concluding his arguments submitted, being free from any infirmity is not open to any interference.

7. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.

8, The prosecution produced as many as seventeen witnesses. It was Hakim Ali who lodged the F.I.R.

Giving the details of occurrence which have been reproduced above. He could not be examined in the Court because he passed away before his examination in the Court. P.W.12 at the very start of examination in chief stated that Hakim All made a statement before him which was reduced into writing. The said statement of Hakim Ali, according to him, was thumb marked by him as a token of its correctness. It was marked as Exb.P.K. At no point of time it was disowned or disputed by his sons who have been examined as P.Ws.5 and 6. They both stated in their cross examination that the occurrence was witnessed besides others by Hakim Ali. The aforesaid witnesses claiming to have witnessed the occurrence also furnished their account but with many additions and variations. We are to see and examine how far these additions and variations fit in with surrounding circumstances and how far the account furnished by them rings true. The witnesses whose testimony could have an aura of independence have been abandoned for one reason or the other.

Real brother of the complainant who was examined as P.W.4 denied that the occurrence was witnessed by the complainant. He admitted in his cross-examination that Hakim Ali was in his house at the time of occurrence and that he and Hakim Ali proceeded from his house to the place of occurrence after the firing was stopped. He thereby contradicted P.Ws.5 and 6 who stated that Hakim Ali had witnessed the occurrence. If we carefully examine the statements of the witnesses, no clear picture emerges as to who told the truth and who held it back. The haze surrounding the occurrence gets thickened when we see the version given in the F.I.R. And the one giv.En by P.Ws.5 and 6 as they are not in line with each other. Granted that an F.I.R. Cannot be treated as a substantive evidence unless its maker affirms its content on oath and passes through the test of cross-examination, but it can be looked into in terms of Article 19 of the Qanun-e-Shahadat Order (10 of 1984) as a relevant fact for having been said by a person who happened to see or hear something about the occurrence as a by stander or a passer by shortly before or after the occurrence inasmuch as it forms part of the same transaction. It can be looked into as a relevant fact to un-husk the lies, distortions and half truths introduced at a subsequent stage if proved in terms of Article 78 of the Order which provides for proof of signature and handwriting of person alleged to have signed or witnessed such document. It can also be looked into as a relevant fact for having been entered in the relevant register in terms of Article 49 of the Order so long as it does not amount to confession. It be noted that the post-mortem reports of the deceased in this case have been proved in accordance with one of the modes provided by Article 78 of the Order. Having said this, we see that many things averred in the F.I.R. Are belied by other evidence on .The record.

According to. The F.I.R., Muhammad Aslam respondent herein, despite being mentioned to have been armed with .12 bore shot gun has not been attributed the role of firing any effective shot either at the injured P. Ws. Or the deceased but according to the statement of P.Ws.5 and 6 he has been attributed the role of firing a shot at Shabbir which hit him on the right side of his chest. According' to the F.I.R. Fateh Muhammad has been mentioned to have fired a shot at the deceased with rifle but according to the statement of P.W.4 Fateh Muhammad has been alleged to have fired at the deacased with a .12 bore shot gun. According to the F.I.R. Mukhtar has been alleged to have fired at Rafaqat deceased with a rifle but according to the statement of P.W.5, he is alleged to have fired a shot at the deceased with a shot gun. If the statement of P.W.12 is accepted to be correct then Hakim Ali has not witnessed the occurrence. If he has not witnessed the occurrence how could he give the details of the occurrence. If in view of the statements of P.Ws.5 and 6, he has witnessed the occurrence why didn't he mention the shot fired at the deceased by Muhammad Aslam. According to the F.I.R. As many as seventeen persons were charged but effective shots have been attributed to four. But according to the statements of P.Ws.5 and 6, the number of assailants is the same but effective shots have been attributed to five.

9. The questions emerging for consideration of this court are: (i) whether the number of assailants was correctly described with their respective weapons (ii) whether the victims who were standing at a distance of 13 feet from the assailants could see whose shot hit one or the other deceased or the injured for that matter (iii) whether plight of the deceased and the injured was in fact wrought and brought by all of them or it could be doing of one, two or at the most three persons armed with .12 bore shot guns, especially when the victims of the occurrence at the relevant time were standing close to each other and (iv) Whether the persons charged besides Mukhtar and Munawar could have had a motive to join hands with .The latter two, when there is absolutely nothing on the record to show that the former on account of having any link or relation with the latter or their sister had an occasion to run into rage and commit a crime of this magnitude.

10. According to P.W.5, both the deceased and both the injured received firearm injuries at the same time, If so, it is next to impossible to notice whose shot hit the injured and whose shot hit the deceased. Who in the circumstances, is telling the truth and who is telling otherwise is anybody's guess. Had there been one or the two assailants standing at a considerable distance from each other, it could well have been possible to discern whose shot hit the deceased and whose shot hit the injured. But where all the assailants were standing close to' each other and so were the victims, it is humanly impossible to discern who fired the shot and whose shot hit the deceased or the injured particularly in a situation which was reigned by panic and pandemonium. The more so, when the total number of injuries found on the deceased as well as the E injured could be caused by one or two. L.G. Cartridges. The number of assailants in the circumstances of the case appears to have been exaggerated. It seems that most of the persons including the respondents have been charged because of previous enmity. The tragedy may have been enacted by Mukhtar who has gone into hiding or Munawar who has been acquitted because the deceased Shabbir was alleged to have illicit relations with their sister, but many who have no visible nexus with this part of the story have also been roped in. It is so because it is customary in this part of the country to throw wide the net of implication to rope in all those who could possibly pursue the case or do something to save the skin of the one who is innocent or who is actually responsible for the commission of the crime. The Court, therefore, is required to exercise much greater care and circumspection while appraising evidence. The testimony of the witnesses who are not only closely related to the deceased but have also a strong motive to falsely implicate the accused has to be scanned carefully. When scanned thus, it cannot be relied upon.

11. Let us assume that F.I.R., whose maker passed away before his examination in the court, cannot be looked into for any purpose yet the prosecution version neither rings true nor inspires confidence when a firearm entry wound found on the person of P.W. No,5 caused by a shot fired from a distance of 13 feet was accompanied by blackening which is H not possible beyond 3 feet.

Especially when it has never been the case of the P.W. That any of the assailants fired at him from a close or contact range. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 354, it has been held that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet". Improvements and afterthoughts introduced to bring the ocular account in tune with the medical evidence which too tend to damage evidentiary worth of the evidence.

12. What relation Liaquat Ali had with Mukhtar and Munawar and why should .He join hands with them to expose himself to a serious charge involving capital punishment is a riddle which remained ,unanswered. Why should Painday Khan join hands with Munawar and Mukhtar is yet another mystery which has not so far been unveiled. What grievance Abdullah had to take arms against the deceased and the injured is yet another tangle which went unraveled. We also failed to. Find any reason for firing at the deceased Rifaqat when he had no ill-will' against the assailants nor was he alleged to have resorted to any hole-and-corner activity. Possibility that the occurrence has not taken place in the manner described by the prosecution and that the charge has been thrown at the door steps of the respondents at random, cannot be ruled out. Opinion of investigating officer, against this background, about the innocence of lftikhar, Ashraf and Painday Khan which he reiterated in his examination does not appear to be unfounded when it was also confirmed by the DSP and the DPO concerned. Similarly, opinion of the learned Division Bench of the High Court about the partial blindness of Aslam in the circumstances of the case cannot be looked askance at. It would not, thus, be in accord with safe administration of justice to interfere with the finding of acquittal.

13. Why all the victims of the occurrence preferred to be lame ducks when they saw the assailants armed with lethal weapons, come towards them with sinister design and what was the occasion for the injured P. Ws. And the deceased to have a marathon session of more than 3 hours on the day of occurrence is yet another query which begs for an explanation. P.Ws.5 and 6 tried to explain by stating that the purpose was to plan about their departure to Islamabad but it is not a matter which calls for such a long session. Munawar and many others with alike role were acquitted but their acquittal was not challenged with that seriousness either before the High Court or before this Court. Anayat and Walayat acquitted co-accused who also had a motive to go hard on the complainant were also acquitted by the High Court but no exception was taken there against.

14. It is true. That the High Court has not happily recorded the reasons for acquittal of the respondents but it would not be of much consequence when the prosecution version is bristling With doubts from L whatever angle it is looked at Needless to say that even a single doubt if found reasonable, is enough to warrant acquittal of the accused. Above all else when initial presumption of innocence is strengthened on the acquittal of the accused, we would not like to interfere therewith simply because another view is equally possible.

15. For the reasons discussed above, this appeal being without merit is dismissed. Sd/- Ejaz Afzal Khan, J.

Iqbal Hameedur Rahman, J.

' With the majority of two to one as I have appended my dissent. This appeal is dismissed. Sd/- Anwar Zaheer Jamali, J.

' ANWAR ZAHEER JAMALI, J.---I have had the benefit of going through the judgment proposed to be delivered in this appeal, articulated by my learned brother Ejaz Afzal Khan, J., thereby ordering dismissal of this acquittal appeal, being without merit: As I have not been able to subscribe to such conclusion, therefore, I propose to record my own reasons for dissent, which read as follows:

2. At the outset, it will be worthwhile to mention here that out of five respondents arrayed in this appeal as respondents Nos.2 to 6, respondent No,2 Liaqat Ali son of Shah Muhammad and respondent No,6 Fateh Muhammad son of Ali Akbar have died during the pendency of this appeal, thus, to their extent, this appeal stands abated. In view of this development, further discussion in this judgment, except general discussion, will be only with reference to the remaining three acquitted respondents Abdullah son of Akbar Ali (respondent No,3) Muhammad Aslam son of Noor Dad (respondent No,4), and Painday Khan son of Noor Dad (respondent No,5).

3. Briefly stating, relevant facts of the case are that on 14-12-1986, at 1700 hours, F.I.R. No,332/1986 was lodged by complainant Hakam Ali at Police Station Dinga District Gujrat for commission of offence under sections 302, 307, 34, 148 and 149, P.P.C., wherein fifteen accused including respondents Nos.2 to 6 herein, were nominated while two other accused were shown as unknown persons. A per contents of the F.I.R., the prosecution story was that on 14-12-1986, the complainant along with Tanvir, Ali Muhammad and Feroz was sitting in the courtyard of his house, while his three sons Zamir Ahmed, Muhammad Zaman and Shabbir along with their friend Rafaqat Ali were present in the baithak of the house, when at about 1500 hours, they were attacked by the accused party, consisting of fifteen nominated accused and two unknown persons, raising lalkara that they shall teach a lesson to Shabbir for his immoral activities in the village. During the occurrence, Abdullah fired at Shabbir from his .12 bore gun, which hit him on his right leg, Mukhtar's fire hit Rafaqat Ali on his face, both of them fell on the ground, while Painday Khan's fire hit Muhammad Zaman at his left hand, and Liaqat's fire hit him on his tight hand, Fateh Muhammad's fire hit Zameer Ahmed on upper part of his chest near the neck, as a result of which both of them also fell on ground. Thereafter the accused party making indiscriminate firing and threatening others fled away. Motive alleged for such incident was that Shabbir deceased had developed some illicit relations with the sister of accused Mukhtar. Shabbir and Rafaqat succumbed to the firearm injuries on the spot, while Muhamamd Zaman and Zamir Ahmed were shifted to the hospital in injured condition.

4. After the investigation of crime, fourteen accused were sent up to face the trial before the Court of Additional Sessions Judge, Gujrat vide sessions case No,8/1990 (Re: State v. Liaqat Ali and 12 others), where they were accordingly charged by the trial Court on 21-1-1990.

5. All the accused facing trial denied the charges levelled against them and claimed to be tried.

During the trial on behalf of the prosecution, seventeen witnesses were examined and the whole, record collected by the I.O. During the investigation of crime was produced as Exhs.PA to PZ, etc. After completion of prosecution evidence, statements of all the accused under section 342, Cr.P.C.

Were recorded on 15-3-1992, wherein they denied the prosecution case and took the defence of previous enmity with the complainant party for their false implication in the crime. However, none of them offered to examine himself on oath as prescribed under section 340(2), Cr.P.C. In addition to it one Muhammad Akram (C.W.4), Dispenser, Civil Hospital, Kharian, was examined, who produced documents Exh.C.W.4/1 and 2, and Dr. Riaz-ud-Din Ahmed Riaz was examined as D.W.1 before the trial Court on 9-2-1992, to substantiate the plea of alibi setup by the accused Imtiaz.

6. At the conclusion of the Sessions trial, detailed judgment was passed by the trial Court on 26-4- 1992, whereby after taking into account the whole evidence adduced by the prosecution and the plea in defence taken by the respondents Nos.3 to 5 and other nominated accused facing trial, accused Muhammad Aslam, Painday Khan, Liaquat Ali, Abdullah and Mukhtar (proclaimed offender), were held guilty for the charged offences, while the remaining accused were acquitted of the charges. Based on their conviction, they were accordingly awarded following sentences:- "41. ........ I am of the opinion that actually the above mentioned four accused along with Mukhtar P.O.

Were present at the spot and they caused death to Shabbir and Rafaqat deceased and also injured Muhammad Zaman and Zameer P.Ws., thus I convict them under section 302/34, P.P.C.

Muhammad Aslam and Abdullah accused have fired at Shabbir Ahmed deceased, thus causing his death, therefore, I award them death sentence for murder of Shabbir deceased. The fine of Rs,25,000 is imposed on each accused, in case of default of payment of fine, they shall further undergo five years' R.I. Fine if recovered shall be given to the legal heirs of deceased Shabbir. I also convict them under section 302/34, P.P.C. For murder of Rafaqat deceased but as the fatal fire shot is not attributed to them, therefore, they are sentenced to life imprisonment. A fine of Rs,25,000 is also - imposed on each convict. In case of default of payment of fine, they shall further undergo five years' R.I. Fine if recovered shall be given to the legal heirs of the deceased Rafaqat. While other accused Painday Khan and Liaqat Ali are awarded lesser penalty on two counts of life imprisonment as no fatal fire shot is attributed to them. I also convict all the four accused under section 307, P.P.C. Read with section 34, P.P.C. For causing murderous assault on Muhammad Zaman and Zameer P.W. And imprisonment for 10 years' R.I. On two counts is awarded to them."A fine of Rs,5000 each on each count is also imposed on each of the convict. In case of default of payment of fine, they shall further undergo two years' R.I. Fine if recovered shall be given to the injured P.Ws. In equal proportion "

7. Against such judgment of, the trial Court, Criminal Appeal No,375 of 1992 was filed by respondents Nos.2 to 6 for challenging their conviction and sentences; Criminal Revision No,660 of 1992 was filed by the present appellant against the accused acquitted by the trial. Court, while Murder Reference No,229 of 1992 was sent by the trial Court against two accused Muhammad Aslam and Abdullah, who were awarded death sentence in terms of the impugned judgment dated 26-4-1992.

8. The above referred criminal appeal, criminal revision and murder reference heard together by a learned Division Bench of the Lahore High Court and the same were decided vide impugned judgment dated 26-5-1998 in the manner that Criminal Appeal No,375 of 1992 was allowed; murder reference was answered in the negative/not confirmed; and the criminal revision preferred by the present appellant was dismissed. Reasons for upsetting the findings of the trial Court recorded by the learned Division Bench read as under:-- "(15) Hakim Ali complainant was murdered prior to testifying at trial. First Information Report Exh.PK was proved by Muhammad Aslam Sub-Inspector. As far as the incident was concerned, the same was proved through testimony of Muhammad Zaman P.W.5 and Zameer Ahmad P.W.6, who were sons of the complainant and were injured during the incident. Two other witnesses namely Ali Muhammad who was father of Rafaqat All deceased and Feroze Shah son .Of Shah Muhammad were given up by the prosecution. Father of the one of the deceased had not come forward to support the prosecution case against the murderers of his own and the second witness who appeared to be an independent witness also did not come forward to support the prosecution version. The case against the co-accused was sought to be proved through the testimony of P.Ws.

5 and 6 only. They are sons of Hakim Ali complainant and brother of Shabbir deceased. The enmity between the complainant party and the various accused who appear to be a motley (sic) group is admitted on record. The testimony of such witness therefore, has to be scrutinized with care.

(16) According to the prosecution Abdullah had fired shot at Shabbir, while the second shot was fired by Mukhtar Ahmad on Rafaqat. Liaqat Ali had fired on Zaman hitting him on his left and right hands. The shot fired by Fateh Muhammad hit Zameer on the neck. No injury to Muhammad Aslam accused was ascribed in the first information report. The injury on the chest of Shabbir Ahmad was not ascribed to any of the accused. Later, while testifying at trial Muhammad Zaman and Zameer Ahmad P.Ws. Improved upon their previous statements and ascribed injuries found on the chest of Shabbir, to Muhammad Aslam. This was material improvement and effort was made to bring the prosecution case in line with the Medico-legal Report. The improvement made by the witnesses in the case would be deemed to be a dishonest improvement.

(17) Bahawal Bakhsh P.W.4 is real brother of Hakim Ali. He admitted during cross-examination that he was present at his dera at the time of incident and reached the spot after the accused had left the spot. He admitted that Hakim Ali his brother was with him and he had reached the spot after the incident,. Hakim Ali, according to the testimony of this witness was not present and had not seen the incident. The first information report, therefore, becomes a suspect document from the start. According to the narrative contained in the F.I.R., as many. As 17 persons carrying fire-arms had approached their baithak. The assailants were enemies of the complainant party and they were visible to the' complainant as well as the witnesses from quite a distance as there was no abadi towards East from which the accused had come. Neither the complainant nor the witnesses re-acted or tried to take shelter or tried to escape from the scene because they were epitted against heavy odds. This aspect of the matter lends credence to the arguments being advanced on behalf of the defence that the complainant and other witnesses were not present at the spot and the deceased and the injured P.Ws. Were taken by surprise and they were assaulted by certain enemies, who decamped from the spc without being noticed.

(18)According to the prosecution Shabbir deceased had illicit relations with Mst. Seeman a sister of Mukhtar. The evidence on record does not prove the motive as set up by the prosecution. It has also not been shown as to why the other accused who belonged to different localities would join hands with Mukhtar to have avenged the insult which was very personal to Mukhtar.

(19)Abdullah claimed that he had left the village and shifted to Sargodha due to terror of the complainant, who belonged to a group of desperadoes i,e, Nanna Phanna group, who were at logger heads with Baba Hanif Shah Group and other groups of like nature and it was suggested that it was Hanif Group who had taken on the deceased and in order to avoid further friction with that group, present accused who had nothing to do with the occurrence were implicated in the case. The manner in which a diverse, groups of people have been clubbed together by the complainant party as accused lends support to this view. Both the deceased and the injured P.Ws.

According to the claim of the prosecution worked in Islamabad as labourers, but it was nowhere proved that they actually worked at Islamabad or elsewhere. Conscience efforts were made by the witnesses to prove that they did not operate in that area, in which efforts they failed, as no corroborative evidence was brought on the file which supported the case that they were employed as labourers or workers at a Textile Mills in Rawalpindi. The stand of witnesses qua their vocation was inconsistent and contradictory and suggestion of the defence that belonged to a criminal group did not appear to be without basis.

(20)The prosecution had assigned specific roles to Fateh Muhammad, who suffered from Parkinson's disease. Muhammad Aslam.Was almost blind and stand of these persons was nowhere negatived. These persons obviously were not that able-bodied to have walked upto the houses of their enemies and to have taken an active party in the incident. The roles ascribed to them were totally unnatural. Painday Khan was declared to be innocent during investigation. Abdullah had left the village and the prosecution had not shown that any of the 17 accused had gone to the village or had assembled at one point and had attacked the complainant party after making preparations for the same. Two persons were not named in the F.I.R., but, later Inayat and Walayat residents of Khokhra were named as accused. These persons were allegedly the accused of murder of Hakim Ali which was committed subsequent to this incident. Both these accused were known to the complainant party as they were resident of a nearby village and they had enmity with them also and they had been brought Into the case subsequently, which reflected the tendency of the complainant party to rope in the persons who otherwise had no connection with the accused.

(21) Three guns Exh.P-16, P-17 and P-18 were recovered at the instance of Zafar Iqbal, Manzoor and Muhammad Aslam accused. These were sent for expert opinion along with the spent cartridges Exh.P.Ws.1 to 8. Four of the spent cartridges matched with the gun recovered at the instance of Muhammad Aslam, while the other spent cartridges did not match with the gun recovered at the instance of Zafar Iqbal and Munawar. The weapons and the crime empties were sent to Forensic Science Laboratory, Lahore simultaneously and would not advance the case of the prosecution in any manner. Even otherwise Muhammad Aslam was not ascribed specific role in the first information report and he had been brought into picture at the trial only. The recoveries of crime .Articles are hardly corroborative of the other evidence brought on record.

(22) Proceedings relating to issuance of proclamation of accused do not appear to be authentic and this evidence would not suffice to show that the accused actually absconded after the occurrence. No proceedifigs under section 88, Cr.P.C. Appear to have been taken against the absconders and evidence of absconsion alone would not bring the guilt home to the accused.

(23) The Hon'ble Supreme Court of Pakistan in Ata Muhammad and another v. The State (1995 SCM R 599) has been pleased to observe at page 609 as under:-- 'Another question that arises with reference to the corroboration is whether medical evidence can corroborate the ocular evidence qua the appellants. The answer is in the negative. When we talk of corroboration, it is always with regard to the story of the prosecution and with regard to the identity of each accused. The medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon used for causing the injury; duration between the injury and the death, presence of the injured.P.Ws. Or of the accused on the spot, but it would not connect the accused with the commission of the crime. The circumstance of Muhammad Yousaf living at a distance of 25 miles from the spot relied upon by the High Court to hold him an hired assassin cannot furnish any support to the ocular evidence. The finding of the guilt should be rested surely and firmly on the evidence produced in the case and plain inference that may irresistibly be drawn from the evidence. If a criminal case is to be decided merely on surmises and conjectures or high probabilities to prove the guilt of an accused, the golden rule of benefit of doubt to the accused which is deep-rooted in our country and has been dominant feature of administration of justice with consistent approval of this Court, will be reduced to naught.'

' An examination of the prosecution case in the light of the observations of the Hon'ble Supreme Court would show that the prosecution case is based on testimony of interested and inimical witnesses. Their testimony is not corroborated by any independent circumstance, the witnesses were not truthful and they had implicated a large number of persons who had nothing to do with the incident. A large number of persons were involved in the case by assigning ineffective roles and net has been thrown too wide to bring in as many enemies as possible in the case. Two of the convicts practically were disabled persons and were not in a position to have taken part in the incident. Ambience of the case does not support prosecution case in any manner. The other physical evidence on record does not support the testimony of the eye-witnesses. The only independent witnesses namely Ali Muhammad and Feroze did not come forward to support the prosecution case. Ali Muhammad was the father of one of the deceased Rafaqat and when such an aggrieved person, does not support the case against the accused, a considerable dent is created in the prosecution case. The case against the convicts is not free from doubt.

(24) Criminal Appeal No,375 of 1992 is consequently allowed. The conviction and sentence awarded to the appellants/convicts is set aside. They shall be released from custody, if not wanted in any criminal case."

9. Upon filing the criminal petition for leave to appeal against the impugned judgment,, leave was granted by this Court vide its order dated 11-10-2000, which reads as under:-- "Leave to appeal is sought against the judgment/order dated 26-5-1998 whereby respondents Nos.1 to 4 before the learned Lahore High Court were acquitted of the charge under section 302, Pakistan Penal Code on two counts. Respondents Nos,5 and 8 others were acquitted by the learned trial judge.

(2) To begin the F.I.R. 15 persons were nominated while two others not known to the ,maker of the F.I.R. Were also described to have been participated in the occurrence, 13 persons and 4 absconders were tried and at the conclusion of the trial, the learned trial judge acquitted 9 accused of the charge but only convicted respondents 2 to 5. Respondents assailed their conviction in the Lahore High Court by filing an appeal while the complainant also instituted a Revision petition. The appeal of the respondents was-allowed and the revision was dismissed and respondents were acquitted of the charge through the order impugned.

(3) We have heard the learned counsel for the petitioners as well as Kh. Sultan Ahmad, ASC/Caveator and have gone through the judgment impugned in our view that the learned judges of the Lahore High Court erred in discarding the seemingly reliable injured eye-witnesses on the ground that they were contradicted by the F.I.R. Which is never considered as substantial piece of evidence and the same was not got recorded by the injured eyewitnesses. The maker of the F.I.R.

Namely father of two deceased was also murdered and it is noteworthy to mention that the occurrence took place inside the `Baithak' of the complainant while the complainant was standing outside. The learned judges also proceeded to acquit the respondents on the ground that the role ascribed to the assailants had not been specially mentioned in the F.I.R. This reason too is not well founded because it is very difficult to explain the evidence with mathematical exactitude.

(4) To ensure the safe dispensation of criminal justice, in our view reappraisal of the entire evidence is essential, therefore, we grant leave to appeal in this case. Let bailable warrants in the sum of Rs,50,000 returnable to the District Magistrate Gujrat be issued against respondents 2 to 6."

10. We have heard the arguments of Sh. Khizar Hayat, learned Advocate Supreme Court for the appellant, Mr. Arif Karim, learned Advocate Supreme Court for respondents Nos.3 to 5 and Ch. Zubair Ahmed Farooq, learned Additional Prosecutor-General, Punjab on behalf of the State. In his submissions, Sh. Khizar Hayat, firstly gave brief facts of the case resulting in the gruesome murder of Shabbir Ahmed and Rafaqat Ali and firearm injuries to Muhammad Zaman and Zamir Ahmed, in a preplanned manner, who subsequently appeared and deposed firmly as prosecution witnesses P. W.5 and P.W.6, respectively. As a next step, he made detailed reference of all the evidence adduced by the prosecution in the case with the support of other material collected during investigation and produced by the prosecution during evidence, which contained the postmortem reports, memo of recovery of empty cartridges, memo of recovery of crime weapons, site plan and F.S.L report (partly in the positive), etc. Thereafter, he made reference to the findings of the trial Court in its judgment dated 26-4-1992 regarding acquitted accused named in the crime for commission of offence and stated that as the prosecution failed to prove its case against them beyond reasonable doubt, therefore, at this stage, he is not pressing this appeal to their extent, but only against the three surviving respondents Abdullah, Muhammad Aslam and Painday Khan, who were rightly convicted by the trial Court. In order to show glaring instances of misreading of evidence committed by the learned Division Bench in the Lahore High Court, resulting in passing its impugned, judgment of acquittal in favour of these respondents, he referred the reasons assigned by the High Court in paragraph-21 of its impugned judgment for discarding the positive report of the forensic science laboratory as regards use of one out of three guns (Exh.P-16 to Exh.P-18), recovered from accused Zaffar Iqbal, Munawar and Muhammad Aslam, which were sent to Forensic Science Laboratory for expert opinion with reference to empty cartridges recovered from the place of occurrence, regarding which report was received in the positive to the extent of four cartridges, which matched with the gun recovered from accused Muhammad Aslam. He took us to such report of FSL, available at page 32 of the High Court paper book, which clearly reveals that the recovered crime empties and pieces of led from the place of occurrence were collected and sealed on 14-12-1986 at the spot and sent to FSL on 4-1-1987, while the single barrel 12.0 bore gun recovered from the possession/on the pointation of respondent No,4 Muhammad Aslam on 30-1- 1987, after his arrest, was sent to the FSL on 11-3-1987, which fact was further affirmed from the evidence of P.W.1 Constable Muhammad Anwar, who had delivered both the sealed parcels at the FSL separately. According to learned Advocate Supreme Court, these facts are sufficient to show instances of material misreading of evidence and also reflect the cursory and casual approach of the High Court in dealing with the case. In the same context, he also referred the judgment of the trial Court from its paragraphs 34 to 36, which contained detailed discussion in this regard and affirmed the authenticity of the report of FSL (Exh.PZ), that four of the empty cartridges recovered from the place of occurrence were fired from the gun recovered from the possession of respondent No,4 Muhammad Aslam. He also seriously questioned the findings of learned Division Bench of the Lahore High Court contained in paragraph 23 of the impugned judgment, regarding the so called disability of the two accused of the crime, who were convicted by the trial Court, and termed it as mere jugglery of the words to extend clean chit in their favour without any legal or factual basis for doing so. For this purpose, he again referred the whole evidence adduced by the prosecution side as well as section 342, Cr.P.C. Statements of the two so called disabled accused and posed a question to the learned Advocate Supreme Court on their behalf to show an iota of evidence to justify such conclusion that too in the year 2000, after 14 years of the occurrence. He further added, that disease of Parkinson attributed to accused/respondent No,5 Fateh Muhammad had no foothold from the whole record except his section 342, Cr.P.C. Bald statement before the trial Court, where, in reply to question No,10, on 15-3-1992, he sated as under:-- "I am an old man being infirm as I am suffering from termoring of the limb. I cannot hold anything firmly in my hands. I was at village Panjan Shahanaon the funeral ceremony of Muhammad Aslam."

11. He urged that even at the time of his statement under section 342, Cr.P.C., age of Fateh Muhammad was 62 years, which goes to show that he was a healthy, fit and energetic person aged 54 years only at the time of occurrence and his assertion made in the year 1992, was not corroborated by any piece of evidence, in the wake of overwhelming ocular evidence showing his specific role in the commission of crime.

' Similarly, he made reference to section 342, Cr.P.C. Statement of respondent No,4 Muhammad Aslam accused, recorded on 15-3-1992. Wherein, in reply to question No,11, he stated as under:-- "I am innocent. I am incapacitated because my right eye is completely close since childhood and my left eye is defective, I cannot see clearly even at day time. I was present at my dera at the alleged time of occurrence."

' Further, criticizing the findings of the learned Division Bench in this regard, that mere word of respondent No,4 Muhammad Aslam to seek refuge of alleged ailment was not sufficient as he had nowhere stated that how and when his other eye became defective and that no medical certificate or other piece of evidence was brought on record to substantiate this assertion, he urged that by relying on such bald statements of the two accused, which were not even on oath, and stretching them to the extent that one accused was labeled as suffering from Parkinson disease and other from blindness, great injustice has been done to the appellant. Sh. Khizar Hayat, also brought to our notice that complainant, who was none else but father of one deceased and two injured witnesses of the occurrence, and had promptly lodged the complainant at the Police Station, was also done to death by the accused party on 18-4-1987, for which separate F.I.R. Was registered against some of the nominated accused in the present crime. He also contended that contents of the F.I.R. For the purpose of contradiction can never be considered a substantive piece of evidence, what to speak of the F.I.R., when the complainant was murdered four months thereafter and could not even enter the witness box to corroborate its contents, while there was no lawful justification for discarding the evidence of the two injured witnesses of the occurrence on such pretext, who had no motive of false implication of these respondents with their specific role in the commission of crime. He further expounded that acquittal of nine other nominated accused and two unknown accused by the trial Court was result of extending them the benefit of doubt as no specific role of causing fire-arm injuries to the deceased or the injured witnesses was attributed to them, thus, this fact alone was not sufficient to dislodge the whole case of prosecution against other accused before the trial Court. In---support of his submissions that a judgment of acquittal is not a sacrosanct, he placed reliance on the case of The State v. Abdul Ghaffar (1996 SCM R 678), wherein earlier view in the case of Ghulam Muhammad v. Muhammad Sharif (PLD 1969 SC 396), regarding the scope of appeal under section 417, Cr.P.C. Against acquittal was discussed and it was held that if the reasons given by the trial judge for recording acquittal of an accused were of speculative and artificial nature or the findings were based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused were perverse or foolish, resulting in miscarriage of justice the Court of appeal will in such a case re- examine the evidence and draw its own conclusion.

13. In reply to the arguments advanced on behalf of the appellant, Additional Prosecutor-General, Punjab did not support the impugned judgment of the High Court, but supported the judgment of the trial Court, being based on proper reasoning. However, Mr. Arif Karim, learned Advocate Supreme Court for respondents Nos.3 to 5 strongly supported the impugned judgment in their favour mainly on the premise of principle of double innocence due to their acquittal by the appellate Court. But, when he was confronted with the instances of misreading and non-reading of evidence by the learned Division Bench, as highlighted by Sh. Khizar Hayat, noted above, that rejection of positive/matching report of FSL on the ground that crime empties and crime weapon were sent to FSL on the same date thus no reliance could be placed on such report, is contrary to the record, he did not dispute this position. We further invited him to show us from the record, any piece of evidence to justify the conclusion recorded by the High Court in its impugned judgment regarding disablement of Muhammad Aslam, being practically blind at the time of occurrence or the other accused Fateh Muhammad suffering the Parkinson disease, again he did not dispute that there was nothing on record to substantiate such conclusion. We also asked him to satisfy us, as to how the consistent and confidence inspiring evidence of injured eye-witnesses Muhammad Zaman (P.W.5) and Zamir Ahmed (P. W .6), to whom accused were already known, could be discarded merely for the reasons that they were closely related to one of the deceased, except that such evidence was required to be read with extra care and caution, or on the ground that some other eye-witness of the occurrence was not examined by the prosecution, though it being the sole discretion and prerogative of the prosecution and it is the quality and not the quantity of evidence which matters more. To this query too the learned Advocate Supreme Court was unable to offer any satisfactory reply. In the end, he however earnestly submitted that looking to the old age of the three surviving respondents represented by him, the judgment of acquittal in their favour may not be disturbed on humanitarian grounds.

14. Keeping in view the above noted submissions made by the learned ASCs for the parties and the learned Additional Prosecutor-General Punjab, I have carefully perused the original record of sessions case No,8 of 1990, which reveals that in addition to the oral evidence of seventeen prosecution witnesses, sufficient documentary evidence was brought on record by the prosecution side to support and corroborate its Case based on the ocular testimony of P.W.5 Muhammad Zaman and P. W.6 Zamir Ahmed.

15. In order to take full advantage of the evidence of these two prosecution witnesses, it will be useful to reproduce their whole depositions in verbatim, which read thus:-- Deposition of P.W.5 Muhammad Zaman.

' Muhammad Zaman son of Hakam Ali caste Gujjar aged 26 years occupation cultivator resident of Budhuwal The Kharian District Gujrat.

' On Oath.

' On 14-12-1986, at' about 3' p.m. I along with Shank Ahmed, Zameer Ahmad and one Rafaqat Ali of our village were present in Bethak of the residential house. We all were earning our -livelihood while working at Islamabad- and were talking for going back to Islamabad. In the courtyard of our house, my father Hakam Ali, my brother Tanvir, Feroz son of Shah Muhammad, Ali Muhammad son of Muhammad Ali were also sitting. We heard noise and saw that Pande Khan, Iftikhar, Muhammad Aslam, Fateh Muhammad, Abdullah, Bahadur, Zafar, Muhammad Ashraf son of Mehdi Khan, Munawar Iqbal, Mukhtar Ahmad, Liaqat Ali, Imtiaz Ahmad, Muhammad Ashraf son of Abdullah, Muhammad Asghar, Inayat Walayat son of Jeewan resident of Khokhran Murad alias- Muradi resident of Beora, All 17 persons came there. Three persons namely Asghar, Mukhtar and Inayat are not present in the Court, while all other were present. Munawar Mukhtar, Muhammad Aslam, Abdullah, Liaqat Ali and Muhammad Ashraf son of Mehdi Khan were armed with .12 bore guns, while all others were armed with 7 mm rifles Abdullah and Mukhtar Ahmed accused raised Lalkara that they should teach a lesson of being a bad character to Shabbir Ahmed. Abdullah accused fired with his .12 bore gun hitting on Shabbir Ahmed's left thigh. Muhammad Aslam accused fired with his gun, which hit on the chest of Shabbir Ahmad on left side. Mukhtar accused fired with .12 bore gun, which hit on mouth of Rafaqat. Thereafter, Painde Khan fired with his rifle, which hit on my left hand.

Fateh Muhammad accused fired with his rifle, hitting on left side of chest of Zameer Ahmad P.W.

Liaqat Ali fired with his gun, hitting on my right hand. This occurrence was also witnessed by Hakam Ali my father, Tanvir Ahmad, Feroz, Ali Muhammad in addition to injured P. Ws. Thereafter, all the accused started firing indiscriminately and also threatened that whoever would come near, he will be killed. Shabbir Ahmed and Rafaqat Ali died at the spot, I myself and Zameer P.W. Were injured. I and Zameer P.W. Were got medically examined.

' The motive behind this occurrence was that accused persons had suspicion that Shabbir Ahmed deceased developed illicit relations with Mst. Naseem sister of Mukhtar and Munawar accused and due to this reason they murdered Shabbir Ahmed and Rafaqat Ali and injured myself and Tanvir P.W.

' Xxxxxxxxxxxxx By Ch. Aslam Wazirabad.

' Tanvir P.W. Is my real brother. He lives in the same house. In the days of occurrence, my parents, we four brothers, and one sister major were living in that house and all were major. Feroz Khan P.W.

Is my real maternal uncle. He is a resident of village Khokhra, which is at a distance of 2/3 miles from our village. Ali Muhammad Mochi resides in a house which is towards north of village Abadi.

Our house is towards south of village Abadi. Ali Muhammad was also our moeen. My father was married at village Khokhra. Walayat and Inayat accused are resident of village Khokhra. I do not know if Inayat and Walayat were known to my father or not. I knew these accused before this occurrence as we used to visit our maternal uncle at village Khokhra. I do not know if my father also used to village Khokhra. It is correct that the report of case was lodged by my father Hakam Ali, who has died now. I am illiterate. I do not know if my father has not named Walayat and Inayat in the F.I.R. As assailants. I also appeared before the special court for speedy trial at Gujranwala on 13- '9-1989. I had not stated before in that court "my father Hakam Ali now deceased also knew Walayat Khan and Inayat accused of this case". (confronted with statement where it is so recorded). It is incorrect that Shabbir was a thief and used to earn his livelihood through illicit means. I do not know if Walayat accused of this case had ever lodged report under section 382, P.P.C. With regard to the theft of Tape Record and Golden ornaments against my deceased brother Shabbir, Naseer my Khalazad, Muhammad Aslam son of my maternal Uncle Feroz and Nanha, Phanna of Khokhra. I do not know any Nanha Phanna of village Khokhra. I also have not heard if they are bad character and they are desparate persons. I do not know if Naseem Bibi is the paternal aunt of aforementioned Nanha Phanna. I do not know if she was abducted and Walayat accused had married with her. I also do not know if she owns one Square of land in her name. I however know that Jeevan Khan father of Walayat and Inayat accused were murdered. As I remained outside my village, so, I do not know if he was murdered by Nanha, Phanna above said persons. I also do not know the fact that Shabbir Hussain body Guard of Walayat accused was also murdered by the aforementioned Nanha Phanna. I do not know if Javaid a personal servant of Walayat accused was murdered during the days of occurrence at the instance of Muhammad Aslam But was S.I. Of Police Station Dinga and that Walayat had brought writ petitions against him in the Hon'ble High Court. I have heard about the Chak Memory which is at a distance of 5/7 miles from our village. I do not know any Baba Hanif Shah the resident of the said village. I do not know if Nanha Phanna of Khokhra are inimical towards Baba Hanif Shah, who is also a desparate of the said Ilaqa and is an absconder in many murder cases. It is incorrect to suggest that the two persons mentioned as unknown in the F.I.R. Have been substituted by Walayat and Inayat sons of Jeevan resident of Khokhra.

' It is correct that Ijaz Ahmad resident of Dina Chak was murdered in which my brother Tanvir Ahmad, Naser Ahmad my khalazad along with Nanha and Phanna aforementioned were mentioned as accused persons. Imtiaz Ahmad accused of this case was a witness of prosecution against us and he has actually nominated my brother Tanvir falsely. I do not know if prior to that occurrence, Muhammad Khan resident of Dina Chak was murdered in which Baba Hanif Shah and brother of Ijaz Ahmad deceased above mentioned were challaned. I do not know if my father Hakam Ali had abducted a woman from village Fatta Pund a case was registered and it is further incorrect to suggest that my father was convictd in the said case. It is incorrect that Mehr Dad son of Sharaf Din was the uncle of Panda Khan accused of this case. I do not know if he had appeared as a P.W. Against my father. I do not know if the nephew of aforementioned Mehr Dad was giving beating by my father along with his brother in law Mian Khan and that they were convicted in the said case. I do not know if after every 3 to 4 days, there is a combant through firing between the parties of Baba Hanif Shah and that of Nanha ,Phanna.. It is incorrect that Baba Hanif Shah and others used to visit Abdullah and Mukhtar of their deras and we being the party of Nanha Phanna are inimical towards the accused persons. It is incorrect to suggest that three months before the present occurrence, Naseer Ahmad my Khalazad was grazing the goats in the Pubbi where Baba Hanif Shah and his partymen called him and asked him that he was informer of the police. It is incorrect that they had threatened Naseer to do away with him in future. I do not remember to have stated in my statement dated 13-9-1989 before the earlier Court that Naseer Ahmad was grazing his goats in Pubbi, where Baba Hanif Shah and his partymen called my Khalazad Naseer Ahmad and accused him that he was informer of the police but he was let off by them (confronted 'with said statement where it is so recorded). It is incorrect to suggest that we he relatives of Naseer Ahmad along with the Mochies had gone to the dera of Baba Hanif Shah we fired at them and also set on fire the dera of Baba Hanif Shah when no person was present over there and after we had returned to our Bethak the said party coming to know about our mischief they came attacked upon us and fired at us and that were due to our previous enmity inculpated the present accused persons in this case.

' I know Fateh Muhammad accused since long. It is incorrect that Fateh Muhammad accused is suffering Parkinson and due to the tremours of his wrist, he cannot hold any weapon. It is incorrect that Pande Khan and Fateh Muhammad had claimed to be present at the funeral ceremony of Muhammad Alam at village Panjan Shahan at the relevant time of occurrence to which they produced the evidence before the police and the police declared them innocent. It is incorrect that the Iftikhar claimed that he was present at village Bashria similarly, Ashraf son of Mehdi pleaded the alibi that he was present at his flour machine and that Liaqat claimed that he was present in his house. It is incorrect to suggest that they had produced the witnesses in support of their alibi.

' Myself, my brother Shabbir deceased, Zameer my brother P.W. And Rafaqat deceased of this case used to work at Islamabad two three years before the occurrence on daily labour. After having worked there for about 2 to 3 years, we then have come to our village for one month rest. As we used to work as labourer, at different places, so there was no question of any attendance being marked at any place. Sometimes, we used to work in Textile mills and sometimes on construction with the Mistries. It is incorrect that we four had worked at Islamabad for about six months prior to the occurrence and then we have left the service Nor I stated so in my statement dated 13-9-1989 that we four had gone to Islamabad six months prior to the occurre (confronted with statement so recorded). I do not remember to have stated in my statement dated 13-9-1989, that we all the four persons had gone to Islamabad six months prior to the occurrence. We were employed in Kohnoor Textile Rawalpindi and that our presence were marked and 'identity cards were issued to us (confronted so recorded). It is incorrect to suggest at that story of going to Islamabad has been concocted by us and further our sitting in the Bethak for the purpose of going back for labour to Islamabad is also a concoction to make our presence in the Bethak together.

' It is correct that house of Fateh Muhammad Aslam, Zafar and that of both Ashraf are towards the north of the village abadi. The house of Imtiaz is towards the west, the house of Liaqat is towards east. Pande and Iftikhar accused persons lived together and have their houses towards the north of the village Abadi. Mohammad Ali father of Rafaqat deceased had not accompanied us to Islamabad. Rafaqat deceased had come earlier then his father Muhammad Ali. Rafaqat had come about three hours earlier than the occurrence. Muhammad Ali came 10 minutes after Rafaqat. I do not remember if I told before the previous court that Rafaqat accused and his father had come to our house at 2-30 p.m. (confronted so recorded). I had stated in my statement before the earlier court that we were sitting for the purpose of going back to Islamabad (confronted not so recorded). It is incorrect that Rafaqat and Muhammad Ali came to see us because of our relation with inter se, nor did I state this fact in my earlier statement (confronted where so recorded).

Hakam Ali, Muhammad Ali, Feroz and Tanvir were sitting towards west of us at a distance of 40 feet there was small wall intervening between us and place where were sitting P.Ws. We were visible to each other from our relevant places. We remained in our Bethak for about 3 hours, when the accused came there. We were not having any fire-arm with us. We four were sitting on two cots which were lying north south and east west from each other. Zameer and Shabbir were sitting on eastern cot. While myself and Rafaqat were sitting on the cot lying towards west. We were facing each other. No Huqqa was present there. Door of our Bethak is of ordinary size. The cots were lying at a distance of about two feet from the door towards north. The accused were about 13 feet from us when we heard Lalkara. After hearing Lalkara we stood up from our cot. We stood between both the cots, Rafaqat was ahead of me and Shabbir was ahead of Zameer, and we all four were facing towards south. They started fire from distance of 13 feet. We did not try to close door of Bethak as there was no chance of doing so. We received all the fire shots while standing. Rafaqat and Shabbir were standing ahead of the cots where they received injury, while standing, while we received fire shots, when we were standing behind the cot. At that time Rafaqat was ahead of the distance of about 8 feet, and Shabbir was also at the same distance from Zameer. We all four received fire injuries at the same time. The accused were in scattered position. The firing continued for about five minutes. All the fire shots injuries were received by us through the door of that Bethak, which remained opened during the occurrence. I cannot say how many times, the accused reloaded their weapons. Accused did not fire at Hakim Ali, Muhammad Ali Feroz and Tanvir P.W. The said P.Ws. Were towards west of the accused but I did not know their distance. No persons for the village came at the spot as due to terror created by the firing, the villagers concealed themselves in their houses. No body from the village appeared before the police to support our version. Neither they had stated that they have seen 17 accused persons neither any persons from the village stated that they had closed their door, due to fear of the accused. We reached at hospital at about 8 pm.

My father Hakam Ali did not accompany me. My father Hakam Ali went to report this occurrence to the police station after one hour of the occurrence. Mst. Naseem Bibi is sister of Mukhtar accused and daughter of Fazal Dad. Fazal Dad had died before I came in senses. Said Naseem Akhtar is married with Aslam accused but I do not know when she was married. Again said she was married about 18 years back. Shabbir deceased my brother was a married person and was having two children. His wife was living with him. My brother was not a bad character and did not develop illicit relations with any other woman. We did not produce any person before the police to prove the illicit intimacy of Mst. Naseem Bibi with Shabbir deceased. It is incorrect that we had fabricated false story and it is also incorrect that we twisted a false story.

' Deposition of P.W.6 Zamir Ahmed.

"Zameer Ahmad son of Hakam Ali caste Gujjar aged 21 years occupation cultivation resident of Budhuwal Teh: Kharian District Gujrat.

' On Oath.

' About four years four months ago, at about three p.m I, my brother Shabbir, Zaman, and Rafaqat were sitting in our Bethak In the meantime, Abdullah, Fateh Muhammad, Baahadur, Zafar Pande Khan, Aslam, Iftikhar, Munawar, Mukhtar, Ashraf son of Mehdi Khan, Liaqat Ali, Ashraf son of Abdullah, Asghar, Imteaz, Murad, Inayat and Walayat accused came there. Abdullah, Mukhtar, Aslam, Liaqat, Munawar and Ashraf son of Mehdi Khan were armed with 12 bore -guns while others were armed with rifles. All the accused except Mukhtar, Inayat and Asghar are present in Court.

Abdullah accused fired a shot from his gun which hit Shabbir deceased on his right thigh. Aslam accused fired a shot with his gun which hit Shabbir on right side of his chest. Mukhtar accused fired a gun shot which hit Rafaqat deceased on his face. Thereafter, Pande Khan fired a rifle shot hitting Zaman P.W. On his left hand. Then Liaqat fired at Zaman hitting on his right hand. Fateh Muhammad accused fired a shot from his rifle, which hit my left shoulder. Shabbir and Rafaqat died at the spot. This occurrence besides myself and Zaman P.W. Was also witnessed by Hakam Ali my father, Tanvir my brother, Feroz and Ali Muhammad P.W. I was examined medically. All the accused are related to each other and belong to one party. I was examined by the police.

' Xxxxxxxxxxxx By defence.

' I cannot tell the exact relationship of all the accused inter se.

' There have got relations inter se whereas they are not party. I do not know if there is party of Baba Hanif Shah and Nanha Phanna. There was a suspicion that my brother Shabbir deceased had illicit relations with sister of Mukhtar accused and as such we had enmity. I had not stated in my statement dated 13-9-1989 in the court that we had no enmity ,with the accused person before the occurrence instated I have stated enmity due to illicit relations. (confronted with statement where there is no mention of any enmity due to illicit relations instead mentioned that we had no enmity.

We have no relationship in village Boora with any Noor Muhammad of that place. Nor I have visited that village. I knew Murad three/four months before the occurrence. Village Khokhra is at a distance of two miles. It is incorrect that it is a distance of half a mile. I did not state in my statement dated 13-9-1989, that village Khokhra is at a distance of half a mile from my village.

(confronted with my statement where it is so recorded). Walayat and Inayat accused were known to me one year before the occurrence. I had not mentioned in my earlier statement that they were known to me four months prior to occurrence (confronted where it is no so recorded). Zaman my brother is elder than me 2/3 years. My brother Shabbir was not of bad character neither he has developed any illicit relations with any woman. Rafaqat was my friend and colleague and friendly terms, in our house. Rafaqat deceased had come to our house 2/3 hours before the occurrence. I did not state in my previous statement that he had come to us 15/20 minutes before the occurrence (confronted so recorded). I had seen the accused before they raised Lalkara. At that time, the accused may be at a distance of 30/35 feet from us, towards east. It is correct that face of my brother and myself was towards west when we were sitting on cot before the occurrence.

Rafaqat and Zaman were facing towards me. The accused raised Lalkara when they were at a distance of 13 feet from us. The accused started firing just after raising Lalkara. The arms of the accused were already loaded, they did not reload in our presence. The firing took place for about five minutes. It is incorrect that firing lasted about 10 to 15 minutes nor I state so in my earlier statement (confronted so recorded). The accused fired at us one after the other. The accused were having bullets and cartridges in the bags. The accused started firing from the place where they raised Lalkara and came nearer during the firing: They also entered into the Bethak. When the accused entered into the Bethak we had already fallen on the ground. Again said that when they entered in the Bethak they did not fire. They also did not fire while standing in the door. I had not stated that rest of the fire was made by the accused by standing in the door. (confronted with statement so recorded). .No person from the village came there. I and Muhammad Zaman P. Ws.

Had bled from the injures and our blood had fallen on the ground in the Bethak. It is incorrect that one window shutters were being pressed by Shabbir deceased standing against the same and while Rafaqat deceased stood against the other window. I and Zaman did not stand against the door of the room and we were pressing against the shutters when we received the injuries nor did I state in my statement dated 13-9-1989 (confronted where in the end of the cross examination it is so mentioned). It is incorrect that we have twisted a false story involved the accused persons. In fact it was the party of Baba Hanif Shah had attacked us.

16. From the above reproduction, it is quite evident that the evidence of these two eye-witnesses remained consistent and confidence inspiring during their examination-in-chief, and during lengthy cross-examination also, their testimony remained un-shattered. It may be added here that evidence of both these eye-witnesses was recorded after more than five years of the occurrence, thus, any minor discrepancy in the nature of weapon used by any particular accused etc was also of material consequence to shatter their evidence. More so, in circumstances when a person of average memory and ordinary prudence is not expected to be a firearm expert, who could disclose the nature of weapon used in the crime with precision, that too after five years of the occurrence.

The fact that both the prosecution witnesses sustained firearm injuries during the same occurrence is fully established from the record and in such circumstances, their evidence could not have been disbelieved or discarded by the appellate Court on mere fact that it did not tally to the contents of the F.I.R., which document was nothing more than information to the police about the occurrence to set the Iaw into motion. More particularly, in the circumstances of the present case, where the complainant/informant was done to death just after four months of the occurrence, for which separate F.I.R. Was lodged against some of the nominated accused in the present case.

17. When the whole occurrence is visualized in the backdrop of ocular evidence, site sketch, photographs of baithak, where the occurrence took place and the number of participant/accused involved in the commission of crime at the time of occurrence, the happening of Q such event could not have concluded in few seconds or a minute or two, therefore, it cannot be said that narration of all the facts in the F.I.R. Was false or concocted or result of previous enmity. In the - present case, the facts which ring true are that at the time of occurrence complainant Hakim Ali was sitting inside the adjoining house, while the four victims of the occurrence, two deceased and two injured were sitting in the .Baithak of the same house, when they were attacked by the accused party, including respondents Nos.3 to 5, at 1500 hours. Upon hearing firearm shots and hue and cries, complainant Hakim Ali, his brother Bahawal Bukhsh (P.W.4) and other witnesses of the occurrence rushed to the scene of occurrence and witnessed later part of occurrence, while earlier facts might have been conveyed to them by the injured witnesses or some other eye-witnesses and in this manner complainant rightly stated in the complaint that he witnessed the occurrence, which may not be possibly from the very beginning till the end. Another important feature of the case which lends support to the ocular testimony of P.W.5 and P.W.6, is the statement of their uncle Bahawal Bukhsh (P.W.4), brother of deceased Hakim Ali, who categorically stated that when the incident occurred, he and his brother Hakim Ali rushed to the scene of occurrence and witnessed it.

A close look at the site sketch (Exh.PF) furnishes further answer to the question that how one of the deceased having injury from the fire of .12 bore gun, had some blackening on one of the entry wound, as it might be for the reason that during the indiscriminate firing by respondents Nos.3 to 5, and some other accused, who, have been attributed specific role of direct firing at the victims, any one of them might have reached to a close range of the said victim to make fire at him. This fact also gains support from the deposition of P.W.6 Zamir Ahmed, who had stated that "the accused started firing from the place where they raised lalkara and came nearer during firing". Even otherwise it looks quite abnormal and unusual that large number of Accused armed with deadly weapons while attacking the victims at their mercy will keep on standing at the same position and distance wherefrom first shots were fired by them, rather than changing their position accordingly to ensure that their fires are not missed and desired result is achieved.

18. Indeed, in the present case F.I.R. Of the occurrence was lodged by complainant Hakim Ali, who was father of deceased Shabbir and the two injured P.Ws. Muhammad Zaman and Zamir Ahmed, within two hours of the occurrence. However, as pointed out: earlier, he was done to' death within a short period thereafter for which a separate F.I.R. Was lodged, therefore, he could not be examined by the prosecution to elucidate the facts narrated by him in the F.I.R. As to whether he had witnessed the whole occurrence or had partly witnessed the occurrence and partly acquired knowledge from his two injured sons/witnesses of the occurrence or some other source about narration of these facts in the F.I.R. Or otherwise. In our country, where corruptions, nepotism and bradri system is quite deep rooted, there can be a situation where the accused party after the occurrence/commission of offence could manage lodging of false and concocted F.I.R. Through their own hired person in connivance with the Police, in which situation, if the contents of such mala fide, false and concocted F.I.R. Were taken as foundation of prosecution case and discarding the evidence of truthful eye-witnesses of the occurrence on that basis, then I am afraid, the result in such cases would be nothing but total destruction and demolition of genuine case of the prosecution on such illegal notion/yardstick of F.I.R., although there may be overwhelming ocular evidence, duly corroborated with medical and other circumstantial evidence in support of the prosecution case, as in the instant case. It is for this reason that in its wisdom, repeatedly this Court has held that F.I.R. Is not a substantive piece of evidence, but simply an information about the occurrence laid before the law enforcing agency to set the law into motion for the purpose of investigation. Therefore, narration of facts in the F.I.R. Cannot be made basis for getting contradictions in the prosecution case or discarding ocular testimony on that premise. At best F.I.R.

Can be considered as a piece of document to which the complainant, when he appears in the witness box, can be confronted with its contents. In case any other course is followed, it will amount to laying a very dangerous precedent in favour of the accused party. This legal position has been very aptly discussed and recorded by one of the member of this Bench (Ejaz Afzal Khan, J.) is the case of Muhammadullah v. The State (PLD 2001 Peshawar 132) in the following words:-- "4. First of all we examine the F.I.R. And its probative value, As is clear from its content it was recorded on the basis of the statement made by the appellant. There is no cavil and quarrel with the proposition that the F.I.R. Itself is not a substantive piece of evidence unless its content is affirmed on oath and subjected to the test of cross-examination. It, as far as the provisions of section 154 of the Cr.P.C., Articles 140 and 153 of the Qanun-e-Shahadat Order, are concerned is a previous 'statement which can be used for the purpose of contradicting and corroborating its maker. So long as it is not proved in accordance with the law mentioned above, it is, as such, no evidence and, therefore, cannot be taken as a proof of anything stated therein. But when it is based on a statement made by an accused, as in this case, before the police which tends to incriminate him with reference to the offence he is charged with, in that event, it being inadmissible in evidence by virtue of Article 38 of the Qanun-e-Shahadat Order, is not even worth the paper it is written on, hence has to be left entirely out of account."

19. Another corroborative piece of evidence in the present case which escaped the sight of the learned Division Bench in the High Court is the evidence of P.W.9 Suleman Hashmi, professional photographer, through whom Police had arranged photographs marked as P.W.9/1. To 18 and its negatives marked P.W.9/19 to 26, to show that from outside how much intense firing had taken place at the place of occurrence inside the baithak at the time of occurrence, leaving marks of fire shots on the outer door of the baithak as well as its backside and front wall. These photographs, which have not been questioned or denied, portray and speak volumes when taken together with number of crime empties recovered from the place of occurrence as per Exhs.PC, PD and PE, showing eight empties of .12 bore gun, five empties of .7 mm rifle, and twelve pellet of .12 bore gun, three pieces of led of .7 mm rifle collected from the wall of the baithak on the very day of occurrence in presence of P.W.4 Bahawal Bakhsh, who fully supported this fact in his deposition.

20. The facts and circumstances discussed above have enabled me to come to a definite conclusion that the case of prosecution against respondents Nos.3 to 5 was successfully proved beyond any shadow of reasonable doubt, but contrary to it the High Court, while passing its impugned judgment, committed glaring misreading of evidence and recorded its findings in a fanciful manner, contrary to the evidence brought on record. As regards the legal fiction of presumption of double innocence in favour of an acquitted accused, I cannot resist but to say that in the present day scenario Courts are required to be pragmatic in their approach before applying such legal fiction or drawing any such presumption. In a case where guilt of the accused was proved from overwhelming ocular evidence of truthful witnesses, mere acquittal of accused by the trial Court or the appellate Court will not add any glory to his role, and in such circumstances, the presumption of double innocence will have no applicability. I would also like to add here that mere acquittal of some of the accused statedly involved in the commission of crime by the trial Court, who as per prosecution's own case had not caused firearm injury to any of the deceased or two injured witnesses, but resorted to firing, by extending benefit of doubt to them, will not demolish the case of the prosecution as a whole against the remaining accused, attributed specific role of causing fatal injuries to the deceased as well as injuries to two P.Ws. As the legal maxim "falsus in uno falsus in omnibus" will have no application, in such circumstances. As regards the evidentiary value of the first information report, it is reiterated that it cannot be given weight as substantive piece of evidence for the simple reason that its contents are neither recorded on oath nor it can be subjected to the test of cross-examination through some other prosecution witness, so as to be considered a substantive piece of evidence worth any credence. In the present case, by production of copy of F.I.R. &ming the evidence of Muhammad Aslam, S.I. (P.W.12), only the factum of lodging of such F.I.R. Has been proved and not its contents, which position cannot be equated with the proof of the contents of the F.I.R. To attach any credibility to it, as production of a document and proof of its contents are legally two distinct propositions. To fortify this legal position, here a reference to the following cases will be useful:--

(1) Saeed Ahmad alias Saeed Akbar v. State (1985_ SCMR 1455)

(2) Raza Mohsin Qazilbash v. Muhammad Usman Malik (1999 SCM R 1794)

(3) Gull Khan v. The State (2000 SCM R 400)

(4) Muhammad Bashir v. Station House Officer, Okara Cantt. (PLD 2007 SC 539)

(5) Dharma Ram Bhagare v. State of Maharashtra (AIR 1973 SC 476)

(6) Liaquat All v. State (1981 SCMR 1130)

(7) Ghulam Abbas v. The State (1997 PCr.L.TJ 2091)

' In the 1st case of Saeed Ahmed alias Saeed Akbar (supra), this Court observed as under:-- "6. The view taken by the High Court that an F.I.R. Is a substantive piece of evidence and that a conviction could be based on it is obviously contrary to the well-established rule that "an F.I.R. Is never substantive evidence in any case". See Mazharul Haq v. Ishaque Sardar PLD 1962 SC 480, Sohni v. Bahaduri PLD 1965 SC 111, Talib Hussain v. Fazal Hussain PLD 1976 SC 518 and Muhammad Sadiq v. State PLD 1977 SC 582. The mere fact that the High Court has rooted its observation "in the facts and circumstances of this case" would neither make any difference nor create any exception to the rule. An F.I.R., however, being a previous statement can be used to contradict its maker under section 145 of the Evidence Act or to corroborate him under section 157 of that Act. In Adalat v.

Crown PLD 1956 FC 171 it was held that an F.I.R. "being no more than a previous statement, if the maker of it is examined in Court it can be used not only by the defence for the purpose of contradicting him but also by prosecution for the purpose of corroborating and, with the permission of the Court, for the purpose of contradicting him". The same view was taken it Nisar Ahmad v. State 1971 SCM R 398. But even if it is not evidence by itself, a first information report is undoubtedly an important document in a criminal case which has been investigated by the police on the basis of that report and eventually, prosecuted in the Court inasmuch as it lays the foundation of the case, furnishes clue to the possible truth of the allegations against the accused and shows material or which the investigation commenced. See Siraj Din v. Kala PLD 1964 SC 26."

' In the 2nd case of Raza Mohsin Qazilbash (supra), this Court held that "furthermore, F.I.R. Is not a substantive piece of evidence and during the investigation it was found that the respondent did not participate in the commission of the crime". In the 3rd case of Gull Khan (supra), it was held that "it is now well settled that F.I.R. Is not a substantive piece of evidence. It only sets the law into motion. No doubt it is an important piece of evidence, but the absence of individual role in it would not make its maker as liar if otherwise such witness is proved to have seen the occurrence." In the 4th case of Muhammad Bashir (supra), while examining the scope of the contents of the F.I.R., it was held that "the conclusion is again irresistible that sifting of the information conveyed by an informant to an Officer Incharge of a Police Station and picking out what was correct and discarding which was false, was not a task assigned to a S.H.O. But was an obligation entrusted, initially to a Magistrate empowered to take cognizance under section 190, Cr. P. C. And finally to the trial Court." It was further held that "so what and we add that this could be the concern shown only by layman and not by a law knowing person because anyone acquainted with the relevant law was expected to know that registration of an F.I.R. Was only a mode of recording or preserving an information and was one of the many means to set the machinery of criminal law into motion." In the 5th case of Dharma Ram Bhagare (supra), it was held by the Indian Supreme Court that:-- "the first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears at in court as witness. Its value must always depend on the facts and circumstances of a given case...

The F.I.R. Can by no means be utilized for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant.

Thus the prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version is given by its maker."

' In the 6th case of Liaqat Ali (supra), the Court observed that:- "18. Criticising the testimony of Munawar Ali (P.W.5) we were told that the First Information Report and the statement of this witness contradict each other. The contradiction pointed out to us was that the closeness of the gun to the target was not mentioned in the F.I.R. This argument has only the merit of ingenuity. The First Information Report is supposed to contain a narrative of the way the incident took place and matters of such minute detail as the closeness of the gun to the target are not an essential part of it nor is the absence of the mention of such points in any way derogatory to the weight to be attributed to the First Information Report."

' In the 7th case of Ghulam Abbas (supra), it was held that:--.

"Even otherwise, the F.I.R. Is not an encyclopedia so as to include each and every detail of the incident reported therein. Anyhow, the effect of the alleged improvement can only be successfully gone into after recording the entire evidence at the time of its evaluation while deciding the case finally."

21. As regards the legal fiction of presumption of double innocence in favour of acquitted accused, a reference to the following cases will be useful.

(1) Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).

(2) Khadim Hussain v. Manzoor Hussain Shah (2002 SCM R 261)

(3) Faizullah Khan v. State (1972 SCM R 672)

(4) Yar Muhammad v. State (1992 SCM R 96)

' In the case of Ghulam Sikandar (supra), the Court held as under:-- "It is not necessary to state and comment upon the facts and circumstances of each of the afore- noted cases nor it is necessary to make an attempt to deduce any one single rule from these judgments which would help resolve the controversy involved in this case, without proper analysis of the material on record.

' However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:

(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.

This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court, was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

' In this case the appraisement of the evidence by the learned Courts below can be divided into three parts for purpose of treatment under the foregoing principles, by this Court."

' In the case of Khadim Hussain (supra), the Court held that:-- "15. Admittedly, we are dealing with an appeal against a judgment of acquittal. There are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well- settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court 'acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous". The view taken by this Court in Ghulam Sikandar v.

Mamaraz Khan (PLD 1985 SC 11) is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.

The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah (PLD 1997 SC 569) and State v. Farman Hussain (PLD 1995 SC 1).

(16) We may refer to Ahmad v. Crown (PLD 1951 Federal Court 107), in which it was held that before an order of acquittal is reversed, it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. If two conclusions were equally possible, an order of acquittal should not have been reserved. This principle was reiterated in Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan (PLD 1964 SC 426), in which it was observed that "where he (trial Judge) had read the evidence fairly and has formulated grounds of doubt which are not perverse or illogical or unreasonable, there is a clear risk of departure from the rule of benefit of doubt in reversing his findings". More or less, similar view was expressed in State v. Bashir (PLD 1997 SC 408), laying down that in an acquittal appeal, superior Courts generally do not interfere unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on reappraisal of the evidence by the Court hearing the appeal simpliciter would not be sufficient to justify interference with the acquittal judgment."

' In the case of Faizullah Khan v. State (supra), the Court observed as under:-- "Under section 417, Cr.P.C. Where the State exercises its right of appeal against the order of acquittal, and the appeal is admitted for hearing, the entire case is re-opened both on facts and law. No limitations are laid down in the Code of Criminal. Procedure on the appellate powers of the High Court against, the orders of acquittal, although as a matter of prudence and established practice now, the High Court will not interfere with an order of acquittal, if the evidence supports the view formed by the trial Court, although a contrary view may also be possible from that evidence. But, if the reasons given by the trial Judge in rejecting the prosecution evidence are of a speculative and artificial nature, or the findings recorded are based on no evidence or misinterpretation of evidence, thus resulting in miscarriage of justice, it becomes necessary for the appellate Court to re-examine the whole evidence and to draw its own conclusions there from."

22. In my opinion, firstly the judgment impugned herein is bad in law for the reason that the reasons for conviction of respondents Nos.2 to 6 recorded by the trial Court in its judgment dated 26-4-1992 were based on proper appreciation of ocular as well as circumstantial evidence, and secondly the High Court while recording their acquittal, did not even bother to look into, discuss or assign any reason for its disagreement with such findings. Even the question of individual motive in the peculiar facts and circumstances of the present case was of no consequence, as motive is one which necessarily remains in the mind of the accused, therefore, it is always difficult to ascertain in every case.

' Moreover, we are living in a time where the instances of hired assassinates are not uncommon in the wake of availability of professional killers, in which case too, ascertaining the motive of actual participant of the case is very difficult. Taking a monistic and pragmatic view of the case, the ocular evidence is to be read in conjunction to the circumstantial evidence and its cumulative effect is to be pressed into service to exclude any unreasonable hypotheses about the innocence of the accused.

23. Having discussed over all case of the prosecution, particularly, against respondents Nos.3 to 5, in the context of the evidence adduced by the prosecution, defence setup by these respondents, judgment of the trial Court, and the impugned judgment of the appellate Court, when I again minutely look at the case of prosecution against each of these respondents independently, I find that respondent No,3 Abdullah accused was one of the nominated accused in the promptly lodged F.I.R. By complainant Hakim Ali, who 'was none other than father of deceased Shabbir and two injured witnesses Muhammad Zaman and Zamir Ahmed, and had no motive for his false implication in the crime; specific role of causing firearm injury to deceased Shabbir with his .12 bore gun was attributed to him, which was duly corroborated from medical evidence and the evidence of two eye-witnesses, who were inside the baithak along with the deceased at the time when the accused party had attacked them. No doubt, the gun recovered from the possession of this accused, who was arrested after more than five years of occurrence on 23-3-1992, as per FSL report, did not match with the crime empties recovered from the place of occurrence, but mere lack of such corroborative piece of evidence or the fact that both the injured witnesses were real brothers of deceased Shabbir is not sufficient to dislodge the whole case of the prosecution against him. More so, when two eyewitnesses of the occurrence, to whom he was already known, have remained consistent in their evidence about his role during occurrence and had no motive for his false implication so as to spare the actual culprit of the crime.

24. Insofar as respondent No,4 Muhammad Aslam accused is concerned, his name has also appeared in the F.I.R., being duly armed with twelve bore gun, but without attribution of specific role of causing firearm injuries to deceased Shabbir on his chest. However, during their evidence both the injured eye-witnesses of the occurrence have assigned him specific role of firing at deceased Shabbir on his chest, which fact has been fully corroborated from the medical evidence in the form of postmortem report of deceased Shabbir. Admittedly, as per prosecution story, the two injured witnesses of the occurrence were inside the baithak when they along with their brother Shabbir and his friend Rafaqat were attached and targeted by all the accused convicted by the trial Court.

As against it, Hakim Ali, the complainant in the F.I.R., had reached there on hearing fire shots and hue and cries, in the company of his brother Bahawal Bakhsh (P.W.4), who has also firmly deposed so. In such circumstances, it is to be noted here that deceased Hakim Ali, complainant of the crime, was not an eye-witness of the whole occurrence, but had reached the place of occurrence as per statement of P.W.4 Bahawal Bakhsh, after hearing the noise of firing, which continued for five minutes, as per deposition of eye-witness Muhammad Zaman (P.W.5), and witnessed the occurrence from that stage. Thus, mere non-mentioning of the fact of firing by Muhammad Aslam at the deceased in the F.I.R. Cannot be considered an improvement in the prosecution case or material contradiction in` the evidence of eyewitnesses of the occurrence whose presence at the place of occurrence is fully proved from their injuries, which they had suffered during the same occurrence. Another important aspect of the prosecution case against respondent Muhammad Aslam is the recovery of crime weapon single barrel twelve bore gun (Exh-PJ) on 30-1-1987 on his pointation/possession, which, per report of FSL, matched with foui of the crime empties marked C-1 to C-4, and an important corroborative piece of evidence to prove his involvement in the crime. In addition to it, his plea in reply to question No,11 of his ' section 342, Cr.P.C. Statement, as reproduced above, is also of no avail for the reason that at the time of occurrence his age was about 50 years and alleged defect in his left eye sight or complete closure of right eye was not established from any evidence, as erroneously held by the learned Division Bench of the High Court in its impugned judgment. More over, not an iota of evidence was produced by respondent No,3 to substantiate such nature of his alleged incapacity/ailment at the time of occurrence in the year 1986, whereas Mst. Seema Akhtar, sister of accused Mukhtar, with whom as per attributed motive, deceased Shabbir had illicit relationship, was none else but wife of accused Muhammad Aslam. Thus, I am satisfied that prosecution fully succeeded to bring home the guilt of respondent No,4 from all four corners for committing qatl-e-amd of deceased Shabbir beyond reasonable doubt.

25. The respondent No,5 Painday Khan is one of the other nominated accused in the commission of crime with specific role of firing with his rifle at one of the injured witness of the occurrence Muhammad Zaman (P.W.5), who was arrested on 24-1-1987. Both the eye-witnesses of the occurrence P.W.5 Muhammad Zaman and P.W.6 Zamir Ahmed have firmly and in a confidence inspiring manner deposed against him for his common intention and role in the commission of crime, while the firearm injuries sustained by Muhammad Zaman, attributed to him are corroborated from his medical report and the evidence of P.W.16 Dr. Tahir Abbas Gondal, who had examined both the injured brothers on the very day of occurrence and found four injuries on the body of P.W.5 Muhammad Zaman and two injuries on the body of P.W.6 Zamir. Ahmed, all caused by firearm. In the case of accused Painday Khan too, the rifle/crime weapon was recovered on his pointation but not matched with the crime empties recovered from the place of occurrence. The fact, however, remains that ocular testimony of the two eye-witnesses of the occurrence to whom he was already known has proved his guilt and role in the commission of crime in a satisfactory manner. In my opinion, in such circumstances some minor inconsistency in the evidence of two eye-witnesses when compared with the contents of the F.I.R., which has otherwise no evidentiary value, will not dislodge the case of prosecution against accused Painday Khan/respondent No,5.

Needless to mention here that it has also come on record before the trial Court that the complainant of Crime No,332 of 1986, Police Station Dinga, Hakim Ali was abducted after about four months of the occurrence, while coming back to his village due to grudge with opposite party as he was pursuing the proceedings in the present sessions case and later on his beheaded dead body was recovered in the shape that his both legs were also imputed and not available with his corpus. For this brutal act again fingers were raised against the same accused party and as a result of this subsequent event he could not appear in this case as prosecution witness to say a single word about the contents of the F.I.R.

26. As a result of above discussion, I am of the considered view that the impugned judgment of acquittal in favour.Of respondents Nos.3 to 5 is liable to be set aside. This appeal is, therefore, allowed and the conviction and sentence awarded to respondents Nos.3 to 5 in terms of the judgment of the trial Court dated 26-4-1992 are restored.