' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 383 of 1982, connected Murder Reference No, 142 of 1982 and Criminal Revision No, 759 of 1982 filed by Haji Rab Nawaz complainant for the enhancement of the sentence of Mian Sardar Bakhsh, Mian Safdar, Khan Muhammad, Muhammad Sharif, Zafar Ali and Khuda Bakhsh respondents therein, arise from the judgment of learned Sessions Judge, Sargodha, whereby he on 30-6-1982 convicted Asghar Hayat and seven others, appellants, under section 148, P.P.C. For rioting being armed with deadly weapons and under section 302/149, P.P.C. Read with section 120-B, P.P.C. For causing death of Gul Zaman in prosecution of their common object and in pursuance to a criminal conspiracy and sentenced them as under:- (1)Undersection148, P. P. C.Two years' R.I. each (2)Undersection302/149, P.P.C.(i)Asghar Hayat and Sikandar Zulqarnain appellants to death and a fine of Rs.15,000, in default thereof three years' R.I. each
(ii) Khan Muhammad, Muhammad Sharif and Zafar Ali appellants to imprisonment for life and a fine of Rs.10,000, in default thereof two years' R.1. each.
(3) Under section 302/120- B, P.P.C.MianKhudaBakhsh, Mian Sardar Bakhsh, Mian Safdar and Sikandar Zulqarnain appellants to imprisonment for life and a fine of Rs.1,000 in default thereof two years' R.I. each.
' It was directed that 2/3rd of the fine awarded under section 302/120-B, P.P.C. If realized shall be paid to the widow and daughters of Gul Zaman deceased. We propose to dispose of all these matters through single judgment.
2. The occurrence took place on 4-7-1978 at 11-30 p.m. Near the house of Gul Zaman deceased situated in Mohallah Awan Pura of Khushab. The distance between the place of occurrence and the police station is two furlongs. The F.I.R. Exh.P.T. Was lodged by Haji Rab Nawaz P.W.13, the sister's husband of Gul Zaman deceased on 5-7-1978 at 12-15 a.m. At Police Station Khushab which was recorded by Mirza Mehmood Baig, S.H.O., P.W.18.
3. Mian Khuda Bakhsh appellant and Mian Sultan (absconder) are real brothers. Asghar Hayat, Mian Safdar and Mian Sardar Bakhsh are the sons of Mian Khuda Bakhsh appellant and Sikandar Zulqarnain is son of the Khalazad of the father of said Mian Khuda Bakhsh. Haji Rab Nawaz complainant P.W.13 is a Patreir as well as sister's husband of Gul Zaman deceased. Mehmood P.W.14 is the sister's son of the deceased. Haji Muhammad Amir P.W.11 and Muhammad Khan P.W.15 are real brothers.
4. The background of the occurrence as alleged by the prosecution was that before 11-2-1978, a transport company known as "Awan Express Bus Service" was plying its buses on Faisalabad, Sargodha, Khushab and Rawalpindi route. Mian Sultan (absconder), Mian Khuda Bakhsh, Mian Safdar, Mian Sardar bakhsh, Asghar Hayat, Sikander Zulqarnain, Zafar All and Khan Muhammad appellants were the proprietors of the said concern. Muhammad Sharif appellant was the Chief Checker. This Transport Company owned 70/80 buses and 40/50 buses more were on its fleet on commission. The company was having monopoly on this route. On 11-2-1978 another Transport Company in the name of 'Super Awan Bus Service' was commissioned into service on the aforesaid routes Zia-ul-Hasan P.W. And Nawaz-ul-Hasan P.W. (not produced) were its share-holders. Gul Zaman deceased, Pervez, Haji Amir and Haji Rab Nawaz P.Ws. Were the Directors of this concern.
Gul Zaman deceased was the Pioneer. It was because of his devoted work, effective efforts and hard labour that this concern flourished rapidly. There were several fights between the Drivers of the rival transport services which led to the registration of criminal cases against the employees of the two concerns at different police stations. Apprehending that their transport business would collapse, the proprietors of 'Awan Express Bus Service' became jealous of Gul Zaman deceased. So Sikandar Zulqarnain, Mian Safdar, Mian Sardar Bakhsh, Mian Khuda Bakhsh and Mian Sultan (absconder) hatched conspiracy to do away with Gul Zaman, Zia-ulHassan, Muhammad Pervaiz, Nawaz-ul-Hassan and Haji Muhammad Amir P.Ws. Share-holders and Directors of 'Super Awan Bus Service', hence this occurrence.
5. As far the main occurrence, it has been stated that on the eventful night, Gul Zaman deceased Haji Rab Nawaz complainant P.W.13, Mehmood P.W.14 and Haq Nawaz (not produced) left Bus Stand of Super Awan Bus Service, Khushab for the house of Gul Zaman situated in Mohallah Awan Pura, Khushab by a Tonga, reaching there at about 11-30 p.m. They disembarked from the Tonga which went away. Just then there came a rashly driven car which stopped near them. Asghar, Hayat, Sikandar Zulqarnain, Zafar Ali, Muhammad Sharif and Khan Muhammad appellants emerged out of it. They all were carrying guns. Asghar Hayat and Sikandar Zulqarnain declared that Gul Zaman would be taught a lesson for competing with their transport service and his life would not be spared. Sikandar Zulqarnain fired at deceased and the first shot hit on his right wrist. Asghar Hayat fired second shot hitting on the left back side of the chest about a Balisht below the shoulder of Gul Zaman as a result of which he fell down. Muhammad Sharif , Zafar All and Khan Muhammad appellants fired more shots only to frighten the eye-witnesses. All the five assailants then decamped in the same car. Gul Zaman was removed from the place of occurrence on a cot and they had hardly covered a few paces when he succumbed to the injuries. The cot was brought back and placed in the courtyard of the house of the deceased. After some time Haji Muhammad Amir P.W.11 and Muhammad Khan P.W.15 came to the house of Gul Zaman deceased. Muhammad Khan P.W.15 told the complainant and others that Sikandar Zulqarnain, Asghar Hayat, Zafar Ali, Khan Muhammad and Muhammad Sharif appellants had come in the car at the bus stand after the occurrence and had proclaimed sarcastically {{URDU TEXT}}Rab Nawaz then left for the police station to lodge report.
6. On 5-7-1978 at 9-00 Dr. Muhammad Raees P.W.1 conducted post-mortem examination on the dead body of Gul Zaman. He found following injuries on his body:-
(1) Wounds of inlet, five in number, I" x I" each in radius, back of right wrist with three wounds of out- let, each 3/4" x 1/4", 1/2" x 1/4" and 1/2" x 11/2", on the front side. Underlying bones were fractured with blackening and tattooing;
(2) Wound of inlet, 1" x 1" in radius, with three wounds of in-let 1/4" x 1/4" each, on middle 1/3rd of back left side 10" below the top of the shoulder; underlying ribs were fractured. Blackening and tattooing was present."
' Three pellets were found in the body which were removed and sealed in a bottle and handed over to the police.
' On internal examination ribs under injury No,2 were found fractured, left pleura was perforated alongwith left lung, pericordium and heart. Eight ounces of semi digested food was in the stomach.
' In the opinion of the doctor, the death occurred due to shock and haemorrhage from injuries No, 1 and 2 which were sufficient to cause death in the ordinary course of nature. These injuries were grievous in nature and were caused by fire-arm. The death was instantaneous. The time between the death and post-mortem was within 10 hours. In cross-examination the doctor stated that injuries No, 1 and 2 were caused from behind and from a close range and that injury No, 1 individually was not fatal.
7. S.I. Mirza Mehmood Baig arrested Khan Muhammad on 6-7-1978.The rest of the accused were declared as proclaimed offenders. Subsequently, on .15-8-1978 Sikandar Zulqarnain and Asghar Hayat were arrested by Mr. Javaid Feroze S.I. P.W.19 from the premises of Lahore High Court, Lahore after their application for pre-arrest bail had been rejected. On 18-8-1978 Malik Saadullah Khan Retd. S.P., the brother of the wife of Mian Sultan (absconder) produced Mian Khuda Bakhsh, Mien Safdar, Sardar Bakhsh and Muhammad Sharif appellants at Police Station Sadar Sargodha before Mr. Javaid Feroze S.I. P.W. 19 who arrested them. Mian Khuda Bakhsh, Sardar Bakhsh and Mian Safdar appellants produced their passports before him which were taken into possession vide memoranda Exh.P.CCC, P.DDD and P.EEE.
8. On 9-9-1978 D.I.-G., Sargodha transferred the investigation of the case to a panel of police officers headed by Rana Abdul Rashid D.S.P., Faisalabad who submitted his report to the D.I.-G. On 16-9-1978. The investigation was then entrusted to Ghulam Rasul S.P. Crimes Branch, Lahore. He investigated the case and declared Asghar Hayat and Khan Muhammad appellants innocent. The D.I.-G. Crimes Branch verified investigation made by S.P. Crimes Branch. The 1.-G. Police, Punjab, had sent for and examined the investigation file. Ultimately, Asghar Hayat appellant was declared innocent. On 27-3-1980, Salim Khan, S.I. Prepared final report and he placed the name of Asghar Hayat appellant in column No,2.
9. To prove its case at the trial, prosecution produced 19 witnesses. Dr. Muhammad Raees P.W.1 proved the post-mortem examination report of Gul Zaman deceased. Muhammad Sultan P.W.8, Muhammad Pervez P.W.9, Haji Zia-ul-Hassan P.W.10, Haji Muhammad Amir P.W.11 deposed about the background of the murder and the criminal conspiracy hatched by Mian Sultan (absconder) and four others for murdering Gul Zaman etc. Atta Muhammad, Head Constable P.W.5, Muhammad Anwar, Head Constable P.W.6 and Manzoor Ahmad, Head Constable P.W.7 have proved various F.I.Rs, registered at different police stations against drivers and other employee of the two rival Transport Services. Haji Rab Nawaz P.W.13 and Mehmood P.W.14 gave the ocular account of the main occurrence. They supported the prosecution version in all its material particulars. They claimed to have seen and identified Sikandar Zulqarnain and Asghar Hayat appellant firing shots on Gul Zaman deceased, which hit on his wrist and back of his chest respectively. They stated that Khan Muhammad, Muhammad Sharif and Zafar Ali also indulged in firing in order to scare away the eye-witnesses. Muhammad Khan P.W.5 stated that after the occurrence the aforesaid five appellants armed with guns came to the Bus Stand, Khushab, in a car and told him in a taunting manner that and went away. Abdur Rauf F.C. P.W.16, Mubarik Ali A.S.I.
P.W.17 have proved proceedings taken and problamation issued under sections 87/88, Cr.P.C.
Against the absconding appellants.
10. Five persons were examined as Court witnesses. Ghulam Rasul Qureshi C.W.1 was Superintendent of Police Crimes Branch, Lahore. He partly investigated the case. He agreed with the result of the investigation arrived at by the panel of investigations headed by Rana Abdur Rashid D.S.P. Saghirul Hassan C.W.2 was posted as D.S.P. Jauharabad in July, 1977. He stated that on the eventful night at 12-30 a.m. He received information about the occurrence through Station House Officer, Khushab. He directed him on telephone to go to the spot and wait for his arrival. When he reached police station at 1 a.m. He found that the Station House Officer was present there who told him that presence of the police on the place of occurrence was not being tolerated by the people.
On this he (Saghir-ul-Hassan) went to the spot and in the light of petromax and an electric bulb which was got fixed in the lane by the police officials, he inspected the site and collected two pellets and card-board discs from there. The witness further stated that when he reached the spot Haji Rab Nawaz complainant, Haji Amir P.W. And six/seven other persons of the complainant party were present there. Since there were shrubs of the height of 4/5 feet in between the place of occurrence and the nearby fields, therefore, he directed the S.H.O. To preserve the foot prints of the culprits. The witness further stated that he remained on the spot till 4-00 a.m. But by that time the F.I.R. Could not be registered because the complainant party was waiting for the arrival of certain persons from Sargodha. The witness stated that it was at 6-00 a.m. When S.H.O. Informed him on telephone that the case had been registered. In cross-examination the witness stated that he had inspected the surrounding shrubs and saw foot prints of two persons there. He had advised Pervaiz P.W. On telephone to make report against the actual culprits but the latter insisted on lodging report against 9 persons. Consequently, he told Mirza Mehmood Baig S.H.O. To register case as desired by the complainant party. Rana Abdur Rashid C.W.3 was D.S.P., Faisalabad in August, 1978.
He headed the panel of Investigating Officers. The investigating team inspected the spot on 21-8- 1978 and 29-8-1978 and investigated different aspects of the matter at different places including Karachi, Islamabad, Rawalpindi and Faisalabad Zia Qureshi C.W.4 was Assistant Station Manager, P.I.A. Corporation, Karachi Airport who brought complete record of passengers travelling by flight PK-720 coming from Istambul to Karachi on 20-7-1978. He produced photostat copy of the second leaf of the passengers manifest who travelled on this flight. Muhammad Riaz Malik, C.W.5 was Section Officer, Turkey Section, Foreign Office, Government of Pakistan, Islamabad. He brought file No, TUR-VI/2-80 containing letter, dated 20-2-1981 sent to his office by Consulate-General of Pakistan at Istambul, alongwith his report pertaining to the entry of Pakistani Nationals into Turkey.
Photostat copy of the letter and reports are Exh.C.W.5/A and C.W.5/B.
11. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. They raised the plea of false implication on account of enmity. Asghar Hayat, Sikandar Zulqarnain, Mian Safdar, Mian Sardar Bakhsh and Mian Khuda Bakhsh also raised the plea of alibi. Mian Khuda Bakhsh stated; "I am innocent. I alongwith Sardar Bakhsh, Safdar Khan, Asghar Hayat, Ansar Hayat, Sikandar Zulqarnain and Imdad Hussain Hamdani had gone to Turkey on the night between 2-3/7-1978 from Islamabad Airport for Ziarat. My son, Amir Sultan, had committed suicide on 4-4-1978 and I was very much depressed on account of his sudden death in young age. To get mental and spiritual solace I alongwith my sons firstly applied for Haj-78 on 6-5-1978. But as the Haj in that year was falling in the month of November, 1978 and we needed immediate mental solace, hence we decided to go for Ziarat. Sikandar Zulqarnain and Imdad Hussain Hamdani were the closest friends of my deceased son Amir Sultan and as such they accompanied us in the above-mentioned journey to visit the shrine of Hazrat Abu Ayyub Ansari and to have a view of the relics like 'Kali Kamli' of the Holy Prophet (peace be upon him), Dastar-e-Mubarik, Mahar-e-Nabuwat (Seal of the Holy Prophet), the Bow, which Holy Prophet used in His Wars, Zulfiqar-e-Haideri, and Swords of other Caliphs, the volume of Holy Quran stained with the blood of Hazrat Usman Ghani, the third Caliph and other precious belongings of Holy Prophet Muhammad (peace be upon him). We returned to Pakistan on 20th July, 1978."
' In defence 10 witnesses were examined. Farooq Ahmad, Assistant Station Manager, P.I.A., Rawalpindi/Islamabad Airport, D.W.3, Muhammad Riaz Malik, Section Officer (Turkey Desk), Ministry of Foreign Affairs, Islamabad, D.W.4. Zia Qureshi, Assistant Station Manager, P.I.A., Karachi D.W.7 were produced to prove the alibi pleaded by the 5 appellants. Malik Bashir Ahmad Awan, D.W.1 was Judicial Magistrate, Lahore. He has proved the complaint Exh.D.E. Allegedly filed by Muhammad Sultan P.W.8 list of witnesses Exh.D.G. And Vikalatnama Exh.D.X. Attached with that complaint. He proved statement Exh.D.D. Of Sultan P.W.8 recorded by him and application Exh.D.F. The witness further stated that Sultan P.W.8 had submitted application Exh.D.H. For summoning doctor as a witness and that the photostat copy of the identity card of the complainant, which was on the file of the complaint, was Exh.D.Y. Sh. Bashir Ahmad, S.I. D.W.2 had taken the sample of thumb- impression of Sultan P.W.8 in the presence of the Magistrate and sent the same for comparison with the thumb-impressions of Sultan P.W. On medico-legal report. The report was positive. The witness also obtained application Exh.D.Z. Given by Sultan in the Copying Branch of the District Courts, Lahore. He again sent sample thumb-impressions of Sultan P.W.8 alongwith application Exh.D.EE. Bearing thumb-impression of Sultan, complaint Exh.D.BB. And application Exh.D.Z. To the Finger Print Bureau for comparison. The report was that the thumb-impressions on these documents were identical with the sample thumb-impressions of Sultan. Zafar lqbal D.W.5 has proved Exh.D.W.5/A, the correct photostat copy of report No, 12, dated 19-5-1980 made by Muhammad Pervez P.W. Ehsan Karim D.W.6 stated that the register containing daily diary, dated 7- 7-1978 of P.S. Khushab had been destroyed according to rules. Dr. Tahir Anis, Deputy Police Surgeon, Punjab, Lahore, D.W.8 had examined Sultan P.W.8 on 9-2-1981 at 11-40 a.m. And found 3 contusions on his person caused by blunt weapon. The injuries were simple in nature. Exh. D.W.8/A is the correct carbon copy of the medico-legal report. Ch. Wan Mehmood D.W.9 was Superintendent of Police, Sargodha in July, 1978. He stated that Saghirul Hassan, D.S.P. And Mirza Mehmood Baig, S.H.O.
Khushab were called by him who apprised him of the occurrence and the facts of the case. There were some problems regarding the registration of the case. The F.I.R. Was not wholly in accordance with the facts believed by the two officers in consequence of the preliminary investigation conducted by them. Taj Muhammad D.W.10 was Moharrar, P.S. Mitha Tiwana. He produced daily diary of P.S. Mitha Tiwana relating to the month of February, 1979. It contained report No,4 made by Sultan Ahmad son of Noor Muhammad. He also proved photostat copy of report Exh.D.W.10/A under section 498/148/149, P.P.C. Lodged by Nadir Khan in which Sultan son of Noor Muhammad and Ghulam Ahmad son of Muhammad Khan were challaned alongwith five others. In defence documents Exh.D.GG, D.LL, D.MM, Exh.D.W.4-A, D.W.4/K and D.W.3/A, D.W.3/B, C.W.5/A, C.W.5/D, have been tendered and proved in proof of the plea of alibi of the five appellants.
12. The learned trial Court while disbelieving the plea of alibi raised by the five appellants, has believed the alleged motive, conspiracy, the ocular testimony and the abscondence of the appellants and has convicted and sentenced them as stated above.
13. Mr. A.K. Brohi learned counsel for the appellants contended that prosecution has failed to prove the charges of criminal conspiracy and murder of Gul Zaman in pursuance thereof, beyond reasonable doubt; that the F.I.R. Exh.P.T. Is not a genuine document; that there is no reasonable ground to believe that Sardar Bakhsh, Khuda Bakhsh, Mian Safdar, Sikandar Zulqarnain and Mian Sultan (absconder) had conspired together to do away with Gul Zaman deceased; that the story of alleged criminal conspiracy stated by Muhammad Sultan P.W. Runs counter to the natural probabilities; that the eye-witnesses namely Haji Rab Nawaz and Mehmood are related, inimical and partisan witnesses; that there is no reliable corroborative evidence and that the five appellants namely Mian Sardar Bakhsh, Mian Khuda Bakhsh, Asghar Hayat, Sikandar Zulqarnain and Mien Safdar were physically present in Turkey at the time of occurrence. Conversely the learned counsel for the State has supported the judgment of the trial Court. Mr. Ejaz Hussain Batalvi the learned counsel for the complainant vehemently resisted the arguments of the learned counsel for the appellants. He maintained that the prosecution case does not suffer from any genuine or reasonable doubt; that the charges have successfully been brought home to the appellants through reliable direct and circumstantial evidence; that the F.I.R. Exh.P.T. Was genuinely drawn up at 12-15 a.m. On 5-7-1978 before any investigation could be conducted; that Sultan Ahmad P.W.8 is an absolutely dependable witness; that his statement finds support from the evidence of Muhammad Pervaiz, Haji Amir and Zia-ul-Hasan P.Ws. And document Exh.P.Q. (Copy of which is Exh. P.Q/I) i,e, the leave application, dated 3-7-1978 written by Zia-ul-Hasan P.W.
Containing reference to the alleged conspiracy hatched for his murder; that implicit reliance can be placed on the statement of the two eye-witnesses and that there is ample additional direct/indirect evidence to corroborate the ocular testimony. As far the plea of alibi, the learned counsel for the complainant vigorously stated that it has falsely been created and stands belied by reliable documents.
14. As appeal is continuation of the trial and the proceedings are A also before us for the confirmation of the sentence of death, so we have examined entire oral as well as documentary evidence on file and have attended to the elaborate arguments addressed by the learned counsel for the parties with care. We propose to appreciate the case and evidence in accordance with the well-settled principles for the appreciation of evidence in such like cases. We would first of all discuss and consider the prosecution case in order to come to an independent finding as to the truth or falsity of the story of the prosecution and the credibility of the prosecution witnesses more particularly the eye-witnesses and the witnesses of the alleged criminal conspiracy.
15. To start with its foundation i,e, the F.I.R. The prosecution case is that the occurrence took place at 11-30 p.m. On 4-7-1978 and F.I.R. Exh.P.T. Was registered 45 minutes thereafter at 12-15 a.m. On 5-7- 1978. There is serious dispute between the parties as to the time of the recording of case and circumstance in which F.I.R. Was actually registered. The crucial question to be considered is whether the F.I.R. P.T. Was lodged at 12-15 a.m. On 5-7-1978 at Police Station Khushab before any preliminary investigation could be made or not.
16. On careful examination of the relevant evidence and circumstance appearing in the case, we feel that the recording of the F.I.R. At 12-15 a.m. On 5-7-1978 is highly doubtful. Saghirul Hassan C.W.3 the then concerned S.D.P.O./D.S.P. Has categorically stated that the F.I.R. Was not recorded uptil 4-00 a.m. On 5-7-1978, because the complainant party insisted that they would get the case registered after some persons would arrive from Sargodha. We do not see any reason to disbelieve him. In any case the controversy between S.H.O. Mirza Mehmood Baig P.W.18 and the S.D.P.O.
Saghirul Hassan P.W.3 on the point of the time of the recording of the F.I.R. Exh.P.T. Has made the exact time of recording of case uncertain and shrouded in mystery. Be that as it may the fact remains that in the circumstances of the case there are reasonable apprehensions that the F.I.R.
Was recorded after consultation, deliberation and preliminary investigation. This defect by itself may not be sufficient to throw away the prosecution case yet it is certainly a suspicious circumstance which ordinarily puts the Court on its guard against placing implicit reliance on the prosecution version given therein. The foundation of the prosecution case is thus somewhat shaky.
Whether on this weak foundation, the prosecution has or has not been able to construct a structure strong enough to withstand judicial scrutiny and test is a question to which we shall advert in the later part of the judgment.
16. This brings us to another important part of the prosecution story i,e, criminal conspiracy in pursuance whereof Gul Zaman was allegedly murdered. The prosecution case is that Mian Sultan, Mian Khuda Bakhsh, Mian Sardar Bakhsh, Mian Safdar, and Sikandar had conspired to kill Gul Zaman etc. And it was in execution of that plan that Sikandar Zulqarnain, Asghar Hayat, Khan Muhammad, Zafar Ali and Muhammad Sharif had gunned down Gul Zaman at eventful time. There were two important witnesses of the conspiracy, namely, Muhammad Sultan and Nazar Muhammad. Out of them, only Muhammad Sultan was produced and Nazar Muhammad was given up as having been won over. The prosecution in this regard also relied on the statements made by Muhammad Pervaiz P.W.9, Ziaul Hassan P.W.10, Haji Muhammad Amir P.W.11 and document Exh.P.Q. Muhammad Sultan P.W.8 stated that on 30-6-1978 one Fateh Muhammad came to him and told him that Mian Sultan (absconder) wanted to see him and Nazar Muhammad in the office of Awan Express Service in Sargodha and that when he and Nazar Muhammad went to the office of Awan Express Service on 1-7-1978 Mian Sultan (absconder), Mian Khuda Bakhsh, Mian Sardar Bakhsh, Mian Safdar and Sikandar Zulqarnain were present in the Chaubari of their office.
Mian Sultan told that he had summoned them for doing an important job, that is, to say that Gul Zaman had become a source of trouble as a result whereof his Bus Service was about to collapse, so they had prepared a plan to kill Gul Zaman, Pervaiz, Haji Amir, Ziaul Hassan and Nawaz-ul- Hassan P.Ws. And that they were preparing separate squads for achieving the object. He disclosed that the assignment had to be completed in between 4-7-1978 and 15-7-1978. He offered adequate compensation and assured that in case they (Muhammad Sultan and Nazar) were arrested and prosecuted he would bear all the expenses of litigation to save them. Mian Sultan then asked them, to kill any one of the propbsed victims. At this he (Muhammad Sultan P.W.) and Nazar went into deep thought whereupon Mian Safdar, Mian Sardar Bakhsh, Mian Khuda Bakhsh and Sikandar Zulqarnain remarked that it was not too big a job to make them ponder over and declared that they would by the grace of God fulfil the mission. Sikandar Zulqarnain took upon himself to murder Gul Zaman and asked them to choose any of the remaining persons planned to be killed. He and Nazar again went in state of meditation and ultimately expressed their disagreement whereupon Mien Sultan felt annoyed and asked them to buz off and simultaneously requested them to keep it secret. The witness further stated that after having thought over the matter, they met Haji Muhammad Amir and Muhammad Pervaiz P.Ws. At New Bus Stand Sargodha and apprised them of the aforesaid conspiracy. Muhammad Pervaiz P.W.9 and Haji Muhammad Amir P.W.11 stated that on 3-7-1978 Sultan and Nazar Muhammad had apprised them of the aforesaid conspiracy.
Muhammad Pervaiz P.W.9 added that he had informed Ziaul Hassan and Nawaz ul Hassan P.Ws.
About the conspiracy. Zia ul Hassan P.W.10 stated that on 3-7-1978 at 11-00 a.m. Muhammad Pervaiz P.W. Met him in his office at Jauharabad and told him that through very authentic sources he had come to know that Mian Sultan and four others had conspired to kill him, Gul Zaman and others between 4-7-1978 to 15-7-1978, so he contacted Zonal Head Office at Sargodha on telephone and told the entire situation and made request for leave for twenty days which was verbally allowed and he was directed to hand over leave application to the Second Officer of the United Bank Limited. He drafted application Exh.P.Q. (Photostat copy Exh.P.Q. /1) and gave it to the Second Officer for despatching it to the Zonal Office for formal sanction. Haji Muhammad Amir P.W.11 stated that he had conveyed the information with regard to the criminal conspiracy as disclosed to him by Muhammad Sultan and Nazar Muhammad to Gul Zeman deceased and Rab Nawaz P.W. Before the occurrence. It is very much obvious from the above narration that as to conspiracy, the evidence of the statements made by Mien Sultan, Sikandar Zulqarnain, Mian Khuda Bakhsh, Mian Safdar All and Mian Sardar Bakhsh to Muhammad Sultan P.W.8 on 1-7-1978, recital of conspiracy by P.W.8 to Muhammad Pervaiz and Muhammad Amir P.Ws. On 3-7-1978 and its communication by them to Zia-ul-Hasan and Rab Nawaz complainant before the occurrence, coupled with a reference of conspiracy given by Zia-ul-Hasan P.W. In his leave application Exh.P.Q., dated 3-7-1978 wherein he stated:- "I have come to know by some reliable source that plan has been chalked and persons have been deputed to get himself murdered by my opponent group so under this circumstance I am not in a position to attend my office atleast for twenty days i,e, 4th July, to 23rd July, 1978." ' forms the only evidence of conspiracy in this case which the Court has to go upon. Besides this, there is no other evidence of conspiracy qua agreement (reached amongst the appellants charged under section 302/120-B, P.P.C.) to commit unlawful act/murder of Gul Zaman etc. So the fate of the charge of conspiracy mostly hinges upon the words said by the alleged conspirators Mian Sultan and four others, to Muhammad Sultan P.W.8 and the evidentiary weight to be attached to its recital by the latter to Muhammad Pervaiz and Haji Muhammad Amir P.Ws. And onward passing on of this information by them to Zia-ul-Hassan and Rab Nawaz P.Ws. The first and foremost question for consideration and determination is as to whether the evidence of conspiracy produced by the prosecution in the form of statements/declarations made by the five alleged conspirators on 1-7-1978, which were not only heard by Muhammad Sultan P.W.8 but also were subsequently conveyed to various persons, can be used against anyone or all of the conspirators?
Our answer is in the negative. The relevant provisions of law may be reproduced advantageously.
"Section 10 of the Evidence Act.-- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
' It is thus, crystal clear that before using anything said by Mian Sultan.
Sikandar Zulqarnain and three others the alleged conspirators to Muhammad Sultan P.W.8 against one or all of them, this Court has to be satisfied that there is a reasonable ground to believe the existence of conspiracy residing in agreement among them to commit unlawful C act/murder of Gul Zaman and others. Under the law accused person/ persons would be fully justified in asking and insisting upon that evidence be led first to the effect that he/they conspired together before words said/statements made by one or all of them are used against him/them. Since in the case in hand there is no evidence disclosing reasonable ground of the existence of conspiracy among them except words uttered by themselves before Muhammad Sultan P.W.8, therefore, we are of the view that the evidence of statements made by Mian Sultan and others in the presence of Muhammad Sultan produced by the prosecution as P.W.8 cannot be used against them and has, therefore, to be excluded from consideration. Resultantly, the superstructure raised on the statement of Muhammad Sultan P.W.8, in the shape of recital of conspiracy to Muhammad Amir and Muhammad Pervaiz P.Ws. Further communication thereof by them to Zia-ul-Hasan and Rab Nawaz, coupled with application Exh.P.Q. Falls down to the ground. Despite these observations, we would like to express our views on the credibility of Muhammad Sultan P.W.8 and evidentiary value of the statements of Muhammad Amir, Muhammad Pervaiz, Zia-ul-Hassan and Rab Nawaz P.Ws.
And -document Exh. P.Q. The position in the case is that there is nothing but statement of Muhammad Sultan P.W.8 and circumstances depending thereon which forms the entire evidence with which the Court has to deal. It is necessary, in order to sustain E a conviction on the above charge, that Muhammad Sultan P.W.8 should be found wholly dependable or it should be found that his statement is corroborated in all material particulars by independent evidence/ circumstances. We find that the statement made by Muhammad Sultan at trial is not in consonance with probabalities. It does not fit in with the other evidence on record and has failed to inspire in our mind confidence of its truth. There are genuine reasons to doubt that he was summoned by Mian Sultan (absconder) accused or that he alongwith Nazar Muhammad had met Mien Sultan and others in the Chaubara of their office on 1-7-1978 or that there was any conspiracy incident on 1-7-1978 as stated by him. His statement also suffers from infirmities such as major contradictions, material discrepancies and dishonest improvements. It is a matter of record that on 9-2-1981 he filed complaint Exh.D.E. Under section 307, P.P.C. against Muhammad Sarwar and Rab Nawaz P.Ws. Before Malik Bashir Ahmad Awan, Magistrate First Class, D.W.1 alleging that he was taken to Lahore where Rab Nawaz and Pervaiz P.Ws. Coerced him to make statement of conspiracy before M.I.C. And when he tried to escape he was over-powered and that Muhammad Pervaiz and Rab Nawaz had also attempted to throttle him and that he did not know of conspiracy of Mian Sultan and others in the murder of Gul Zaman. The Magistrate recorded his statement Exh.DD.
Wherein he stated that Mian Sultan and others had no hand in the murder of Gul Zaman. Malik Bashir Ahmad Awan, Magistrate, when he was in the witness-box as D.W.1, not only identified Muhammad Sultan as the person who had filed complaint Exh.D.E and made statement Exh.DD before him but also stated that Muhammad Sultan P.W.8 had thumb-marked his statements.
Strangely enough, Muhammad Sultan disowned complaint Exh.DE and his statement Exh.DD and his thumb-impressions thereon. It has sufficiently been proved through the statements of Malik Bashir Ahmad Awan, Magistrate D.W.1, Dr. Tahir Anees D.W.8, Bashir Ahmad S.I., D.W.2 and report Exh.D.GG of Finger Print Bureau that Muhammad Sultan had not only filed complaint Exh.D.E. And made his statement Exh.DD before the Magistrate but had also appeared before Dr. Tahir Anees on 19-2-1981 and got himself examined with regard to injuries found on his person; that he got medico-legal report; that he filed the list of witnesses Exh.D.G., that he moved application Exh.D.H.
For issuing summons to the doctor; that he gave application Exh.D.Z. In the Copying Branch for the supply of copies but he has contumaciously not only denied his appearance before the doctor and the Magistrate but also disowned aforesaid applications and his thumb-marks thereon. The above-mentioned defence witnesses are quite dependable. Their statements do not suffer from any inherent infirmity; rather the same stand supported by the reports of the Finger Prints Expert. It seems to us that Muhammad Sultan P.W.8 is basically a dishonest witness. He has given evidence with a motive other than that of telling the truth. It is prosecution's own case that Muhammad Sultan P.W.8 had met Muhammad Pervaiz and Muhammad Amir P.Ws. On 3-7-1978 and told them about the conspiracy hatched by Mian Sultan and four others and their designs to murder Gul Zaman etc. Muhammad Amir P.W.8 thus became fully aware of the names of the witnesses of conspiracy namely Muhammad Sultan and Nazar Muhammad and also the names of the persons planned to be done away with. He did meet Rab Nawaz complainant on 3-7-1978 and informed him of the conspiracy. He also met Rab Nawaz complainant after the occurrence before the latter left for police station to lodge report. He has stated:- "I reached the spot after occurrence at 12-15 a.m. Police did not arrive there yet. Rab Naw. Az and others were present there. After my arrival on the spot Rab Nawaz left for police station. I did not tell Haji Rab Nawaz of the conspiracy as I had already informed him about the conspiracy on 3-7- 1978."
' Astonishingly in the F.I.R. Lodged by Rab Nawaz, the names of Muhammad Sultan and Nazar Muhammad, the witnesses of the conspiracy, the fact that he had recited the incident of conspiracy, dated 1-7-1978 to Muhammad Pervaiz and Muhammad Amir P.Ws. The fact that Muhammad Amir and Muhammad Pervaiz had communicated the information so received to the deceased Rab Nawaz complainant and Zia-ul-Hassan and the fact that Mian Sultan and others were also after the lives of Muhammad Pervaiz, Zia-ul-Hasan and Nawaz-ul-Hasan are not mentioned. It rather contains one bald sentence that:- {{URDU TEXT}} ' It was most natural that Rab Nawaz who was to make the F.I.R. Must have asked the details of the conspiracy more particularly the names of the witnesses. In the peculiar circumstances of the case, Muhammad Amir could not have restrained himself from divulging the names of Muhammad Sultan and Muhammad Nazar before Haji Rab Nawaz complainant on 3-7-1978 when he met Rab Nawaz and communicated him the information of conspiracy received by him from Muhammad Sultan and Muhammad Nazar and more particularly when he met Rab Nawaz on the spot after the occurrence, before the complainant could leave for police station to lodge report of the murder of Gul Zaman. The explanation given by Rab Nawaz that neither he asked the names of the witnesses of conspiracy I nor did Muhammad Amir tell him of his own, runs counter to the natural probabilities. It is rather an attempt at perjury. In the circumstances of the case, these omissions in the F.I.R. Are of great significance and lead to irresistible conclusion that not only the story of conspiracy, dated 1-7-1978 was fabricated subsequently but also Sultan P.W.8 was procured after the registration of the case. The silence of the complainant himself on the points of the names of the witnesses of conspiracy and story thereof at the time of lodging the F.I.R. Is a strong point against prosecution and it renders the version of conspiracy as given by Muhammad Sultan P.W.8 highly doubtful and as such no implicit reliance can be placed on his statement. The eminent jurists have classified the ocular testimony into three categories.
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Partly reliable and partly non-reliable.
In the first category conviction may safely be sustained on uncorroborated!_ testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. The damage done to his integrity and doubt thrown to his veracity by Muhammad Sultan P.W.8 is so great that it Cannot be repaired and cured even by strongest possible corroborative evidence. We are, therefore, of the view that the testimony of Muhammad Sultan P.W.8 falls within the second category and as such his entire statement has to be excluded from consideration. In any case, it is necessary that before finding accused guilty of conspiracy in pursuance whereof Gul Zaman was killed, we should be satisfied', that Sultan's statement is corroborated by independent direct/ circumstantial evidence connecting them with the crime or at least by a circumstance which may serve to show that Muhammad Sultan P.W.8's story of conspiracy is true. This brings us to the evidence of conspiracy furnished by Muhammad Pervaiz, Haji Muhammad Amir, Zia-ul-Hassan and Rab Nawaz P.Ws. And document Exh.P.Q. Containing narration of conspiracy and the circumstance of alleged abscondence of the accused persons. We find that aforesaid witnesses are partisan and one partisan witness cannot corroborate other partisan witness. Mere fact of the story having been told by Muhammad Sultan to Muhammad Pervaiz and Muhammad Amir after two days is not independent corroboration as the same does not come from distinct and independent source. Equally the fact of the story of conspiracy having been communicated by Muhammad Amir and Muhammad Pervaiz to Rab Nawaz and Zia-ul-Hassan respectively is by no means independent or sufficient corroboration. Again the fact that Zia-ul-Hasan made reference to conspiracy in document P.Q. Is not independent in the sense that the same had also arisen from already tainted source. Document Exh.P.Q. Even otherwise contains vague statement and cannot be interpreted as to include conspiracy incident, dated 1-7-1979 as stated by Muhammad Sultan P.W.8. The circumstance of abscondence being equally consistent with the innocence is capable of explanation upon any other reasonable hypothesis than that of guilt. We would deal with the circumstances of abscondence in detail while appreciating the corroborative evidence of the ocular testimony.
17. Adverting to the main occurrence, it is a matter of record that the two witnesses who claim to have seen the murder of Gul Zaman by Asghar Hayat, Sikandar Zulqarnain, Zafar Ali, Muhammad Sharif and Khan Muhammad appellants are related, partisan and interested witnesses. Haji Rab Nawaz is first cousin as well as husband of the sister of Gul Zaman deceased. Mahmood P.W. Is the son of the sister of the deceased..
' He was also a partner in the business of Gul Zaman deceased. There was transport business rivalry between the parties. The accused belonged to 'Awan Express Bus Service' and the eye- witnesses belonged to the rival 'Super Awan Bus Service'. The rivalry became acute, when the drivers and employees of two transports services, launched attacks and counter-attacks on each other which led to the registration of cases and counter-cases between the parties at different police stations. The charges mostly being that one party had attacked employees of the other party. They are, therefore, interested witnesses and cannot be regarded as incapable of falsely implicating the accused or of exaggerating number of the accused. There were two fire-arm wounds on the dead body of Gul Zaman whereas they have charged five persons with the commission of the murder of Gul Zaman. Consequence of the above observations must necessarily be that their evidence should be examined froth close and should not be accepted and relied upon unless substantially corroborated qua each appellant as it would not be safe to rely upon their uncorroborated statements in respect of every accused against whom they have deposed. So, in order to be satisfied that no innocent person is convicted, it has become imperative to seek corroboration of their evidence more particularly in the light of ever-present tendency to implicate innocent with guilty. We have thus, decided to look for some additional evidence/circumstance that gives support to their statements so as to create that degree of probabilities of guilt which can be made basis of conviction. Mr. Ejaz Hussain Batalvi, the learned counsel for the complainant, argued that if such corroboration was at all necessary it is to be found in the circumstances of the case itself e.g. Mentioning the names of the appellants and the names of the eye-witnesses in F.I.R. Exh.P.T. Promptly lodged within an hour of the occurrence; that in view of the motive alleged and proved by the prosecution, the appellants are the persons most likely to be the assailants of the deceased and the circumstance of abscondence of Asghar Hayat and Sikandar Zulqarnain appellants.
18.. We are fully conscious that for corroboration, it is not necessary that there should be words of an independent witness supporting the statements of an interested witness and that same may be afforded by anything in the circumstance of case which may satisfy a reasonable mind that the witness has spoken truth while naming the individual accused. We have anxiously looked around for independent corroborative evidence which may be relied upon to rehabilitate the evidence of the eye-witnesses. On careful appraisal of the direct/circumstantial evidence, we do not find any reliable independent corroborative evidence in the circumstances relied upon by the learned counsel for the complainant. It has already been found by us that F.I.R. Exh.P.T. Is not a genuine document as it was not recorded at least uptil 4-00 a.m. On 5-7-1978. Furthermore, the mentioning of the names of the eye-witnesses and the five assailants of the deceased in the F.I.R. Cannot be regarded independent circumstance for reason that same were stated by Rab Nawaz one of the eye-witnesses and did not come from any distinct source. This circumstance, therefore, cannot serve as independent corroboration. The next circumstance relied upon by the learned counsel for the complainant was the motive. There can be no two opinions that enmity is a double-edged weapon and it cuts both ways; which way it actually cuts depends on the circumstances of each case. In the instant case, there was acute business rivalry between the parties and there have been several cases and counter-cases between them. In the circumstances, we are of the opinion that benefit of the maxim that enmity/motive cuts both the ways should not be given to the prosecution. The presence of reasonable possibility of the false implication of all the accused or exaggeration of number or their implication on account of ill will or suspicion that they might have killed the deceased or might have hand in the said murder, cannot be ruled out. There remains the circumstance of the abscondence of Asghar Hayat, and Sikandar Zulqarnain appellants. The prosecution case is that they remain absconder from 5-7-1978 to 15-8-1978 i,e, for more than a month. There plea is that they were in Turkey at the time of occurrence and had not absconded at all. The prosecution has proved proceedings under section 87/88, Cr.P.C. Taken against them for declaring them proclaimed offenders. The learned counsel for the complainant vehemently stressed that this circumstance is consistent with the guilt of the aforesaid appellants. On the other hand, the learned counsel for the appellants vigorously maintained that the appellants were really in Turkey at the time of occurrence. They came back to Pakistan on 20-7-1978 and moved application for pre-arrest bail and surrendered themselves before the Court and it was on the rejection of their plea for pre-arrest bail on 15-8-1978 that they were arrested. The learned counsel relied on mass of documentary evidence produced by the defence. He argued that the circumstance of alleged abscondence is equally consistent with the innocence because a person who has been named as murderer, whether rightly or wrongly, usually makes himself scarce. No doubt, abscondence of an accused person is a relevant circumstance and in some cases it does automatically amount to evidence of guilty mind but facts of twoV cases seldom coincide and each case has to be decided on its own facts. In the instant case, the allegations are that Asghar Hayat and Sikandar Zulqarnain remained absconder for more than a month. They have refuted this allegation. They rather raised plea of alibi and have also produced numerous documents in proof thereof. Admittedly, they moved application for pre-arrest bail in the High Court, surrendered themselves before the Court and were arrested after their application was rejected. It is well- settled that circumstance of abscondence gives reflection of guilty mind and also is equally consistent with innocence. Hence it is very much necessary that in the instant case circumstance of abscondence must be found to be incompatible with innocence of the accused and incapable of explanation upon any reasonable hypothesis other than that of guilt. It has judiciously been accepted that different persons are differently constituted and some accused persons though innocent deliberately abscond rather than face the ordeal of a criminal trial. Therefore, in the circumstance of the case it cannot be said that this circumstance is incapable of explanation upon any reasonable hypothesis other than that of the guilt. It is not less well-recognized that when two inferences can be drawn from a particular fact/ circumstance, then the inference which is less harmful to an accused x person should be preferred. There is thus, no justification to give the benefit of this circumstance to the prosecution. We feel that all these items of corroboration stressed by the learned counsel do not serve to corroborate the story of the main occurrence as well as identity of the five assailants. The statement made by Khan Muhammad P.W.15 that after the occurrence the five accused armed with guns came in a car at the bus stand and told him in taunting manner that ' is a ridiculous type of evidence. In the circumstances of the case resting on allegation that murder was in pursuance to alleged conspiracy, Y the story of unnecessary open declaration by the five accused before the witness and thereby creating evidence against themselves appears to be highly doubtful. Rab Nawaz and Mahmood eye-witnesses are related, partisan and interested witnesses and that they are capable of falsely implicating the accused or atleast exaggerating the number of the accused. The ocular account of occurrence is unnatural in some respects and dubious in others. As a consequence of our findings on the evidence relatable to conspiracy, ocular testimony and the corroborative evidence/ circumstances relied on by the prosecution, must entail on rejection of prosecution case. Since the prosecution has failed to prove its case against the appellants beyond reasonable doubt, so we need not discuss and determine the truth or falsehood of the plea of alibi raised by the appellants. Suffice it to say that onus of proving its case against the accused lies entirely upon the prosecution and it does not shift at any point of time whether or not defence succeeds in proving the plea of alibi. The prosecution was under an obligation to prove the case against each and every accused beyond reasonable doubt.
Even if the defence fails to prove the plea of alibi 'out upon evidence in the case it succeeds in raising a reasonable doubt in the mind of Court qua the guilt of accused, it will result in a situation in which the prosecution must be held to have failed to prove its case against the accused beyond reasonable doubt.
18. The upshot of the above discussion is that we hold that there is no satisfactory basis to uphold the convictions of the appellants. While giving them benefit of doubt we order that they are acquitted of the charges. They shall be released forthwith if not required to be detained in any other case. Resultantly the connected revision fails.
The death sentence is not confirmed.