' This is an appeal by Muhammad Ayub, Ghulam Muhammad alias Gulla, Nadir, Akbar and Muhammad Anwar accused-appellants against their convictions under sections 148, 302/149 and 307/149, P.P.C. By learned Sessions Judge, Jhelum vide judgment dated 20-12-1980. All the five appellants were sentenced to one year's R.I. Each under section 148, P.P.C., seven years' R.I. And a fine of Rs,1,000 or in default six months' R.I. Each under sections 307/149, P.P.C. And to imprisonment for life plus a fine of Rs,2,000 or in default one year's R.I.
On two counts each under sections 302/149, P.P.C. They have come up in appeal against their convictions and sentences. The complainant filed Criminal Revision No,24 of 1981 for enhancement of sentence and against acquittal of the co--accused of the present appellants. Both these matters will be disposed of by this judgment.
2. The prosecution case in brief is that on 29-4-1980, at 2.45 a.m., Muhammad Ramzan complainant alongwith Ahmad Khan deceased, Muhammad lqbal deceased, Ahmad Khan P.W.. Fazal Hussain P.W., and Qadir P.W., was present at Railway Station Lilla for proceeding to Pind Dadan Khan in connection with a criminal case. The train was entering the yard of the railway station when all of a sudden, Muhammad Ayub armed with rifle, Ghulam Muhammad alias Gulla armed with .12 bore gun, Nadir armed with a rifle, Muhammad Anwar armed with a rifle alongwith nine others out of whom Nasarullah, Muhammad Ashraf, Munawwar, Bashir Ullah, and Sikandar had .12 bore guns while Fatah Khan and Mehdi had hatchets, came there. Munawwar accused allegedly challenged the complainant party and fired which hit on the chest of Ahmad Khan deceased.
Thereafter, Sikandar fired which hit the right flank of Ahmad Khan. The fire by Nasarullah also hit the chest of Ahmad Khan deceased. The fire by Anwar appellant hit the thigh of Ahmad Khan deceased. Nadir appellant then fired which hit on the back lumbar of Ahmad Khan deceased who fell down. Muhammad Ashraf fired by placing his gun on the temple of Ahmad Khan deceased. Bashir Ullah fired at Muhammad Iqbal deceased which hit on the right side of his back. The fire by Ayub appellant hit the right leg of Muhammad Iqbal deceased.
Ghulam Muhammad alias Gulls appellant fired at 'Muhammad lqbal deceased hitting various parts of his body.
Akbar appellant fired two shots at Fazal Hussain P.W. And injured him. It is alleged that Muhammad lqbal deceased staggered to nearby stairs and fell down there. Mehdi Khan and Fateh Khan, the two acquitted accused, caused injuries to Ahmad Khan deceased and severed his head which was taken away by them. The accused also lifted the dead body of Ahmad Khan to some distance but they threw the same on the platform.
The occurrence was witnessed by Muhammad Ramzan and his companions Fazal Hussain P.W., Ahmad Khan P.W. And Ghulam Qadir (given up P W )
' It was stated in the F.I.R. That Ahmad Khan deceased had a dispute with Munawwar accused on some land; that in the year 1970, Ahmad Khan deceased etc. Had fired at Munawwar for which they were prosecuted in a case under section 307, P.P.C. Which was pending at the time of occurrence; that about nine months before the present occurrence, the parties exchanged fires and were prosecuted under section 307, P.P.C. But acquitted; and that on 12-9-1979, Muhammad Din and Muhammad Khan, two party-men of Bashir Ullah accused were murdered for which Ahmad Khan deceased etc. Were facing prosecution. The complainant party was proceeding to Pind Dadan Khan to attend hearing of this case. It is alleged that on account of the above enmity, the accused who were all partymen inter se, attacked and murdered Ahamd Khan and Muhammad lqbal deceased and caused injuries to Fazal Hussain P.W.
3. After registration of this case, the police undertook investigation. Muhammad Ayub appellant was arrested on 9-5-1980, Akbar and Ghulam Muhammad alias Gulla appellants on 24-5-1980, Muhammad Anwar appellant on 2-6-1930 and Nadir appellant on 2-7-1980. No recovery of any crime weapon or any incriminating article was made from the five appellants or their acquitted co-accused.
' Dr. Sharif Khan Bhatti P.W.1 on 30-4-1980 at 6_30 a.m., conducted post-mortem examination on the dead body of Ahmad Khan deceased and found 17 injuries in all. Injury No,1 had been caused by a sharp-edged weapon while the remaining injuries had been caused by fire-arms. The pleura, the right and left lungs, pericardium and heart were found ruptured. Chest cavity was full of blood. Four pellets and three pieces of cardboard were removed from the chest cavity. The larynx and tracheae were found missing. In the abdomen, the walls, pericar dium stomach, small intestines, liver and right kidney were ruptured. The head of the dead body was missing. In the opinion of the Medical Officer, the death was due to shock and haemorrhage caused by injuries Nos. 1, 5, 7, 8, 9 and 10 which were sufficient in the ordinary course of nature to cause death. The fire-arm injuries had blackened margins and according to the evidence of this witness, had been caused from a close range.
' He also conducted post-mortem examination on the dead body of Muhammad lqbal deceased on the same day at 10.45 a.m. He found eight injuries on the dead body of Muhammad lqbal. All had been caused by fire- arms. Injuries Nos. 4 and 7 were grievous. Injury No,8 was fatal while other injuries were of simple nature. In the opinion of the Medical Officer, injuries Nos. 4, 7 and 8 were sufficient in the ordinary course of nature to cause death. All the injuries had blackened margins. The fatal injuries caused extensive haemorrhage in the abdominal cavity.
' Fazal Hussain P.W. Was examined by the same doctor on 29-4-1980, at 4.40 p.m. He was found to be having seven injuries in all. Injuries Nos. 1 to 5 which had blackened margins were the result of fire-arms and injuries Nos. 6 and 7 had been caused by blunt weapon. Injuries Nos.1 to 4 only were found grievous.
4. During the spot inspection, the Investigating Officer collected crime empties P.9/1-5 and P.9/6-7 on 29-4-1980 which were taken in possession vide memo. Exh. P.N. In the presence of Muhammad Ramzan P.W.6 and Ghulam Qadir (given up P.W). On 24-5-1980, one Haq Dad produced the licensed gun of Nasarullah Khan (acquitted accused) which was taken in possession vide memo. Exh.P.H. By the Investigating Officer. This memo. Was signed by Haq Dad Khan (not examined). After completion of the investigation, the appellants and their acquitted co-accused were challaned and sent up for trial.
5. The prosecution, during the trial, examined 13 witnesses in all. Muhammad Ramzan P.W. 6, Fazal Hussain P.W.7 and Ahmad Khan P.W.10 were examined as the eye-witnesses. Ghulam Qadir P.W. Was given up as having been won over. Dr. Sharif Khan Bhatti conducted post-mortem examination on the dead bodies of Ahmad Khan and Muhammad Iqbal, the two deceased and medically examined Fazal Hussain P.W. Hakam Khan A.S.I. P.W.12 investigated the case. Ashiq Hussain S.I. P.W.13 partly investigated the case and arrested some of the accused. The evidence of rest of the witnesses was of formal nature. The appellants denied the charge while their acquitted co-accused pleaded alibi and produced defence.
6. The learned Sessions Judge convicted the five appellants and acquitted their nine co-accused. The learned trial Judge disbelieved the testimony of Fazal Hussain P.W.7 and Ahmad Khan P.W.10. He placed reliance only on the evidence of Muhammad Ramzan P.W.6 and convicted the five appellants.
7. I have gone through the entire evidence on record as also the impugned judgment with the assistance of learned counsel for the appellants and the learned counsel appearing on behalf of the complainant and the State.
8. It will be noted that there was no recovery of any crime weapon, or incriminating article from any of the appellants or their acquitted co-accused. There is, therefore, no circumstantial evidence whatsoever to support the ocular account in this case. Fazal Hussain P.W.7 is the maternal- uncle of Ahmad Khan P.W.10. The paternal aunt of Ahmad Khan P.W.10 is the grandmother of Muhammad Ramzan P.W.6. Thus, all the three eye-witnesses were closely related to each other. Fazal Hussain P.W. In his statement admitted that he was a resident of village Toba, about eight miles from the place of occurrence; that he did not know any Lambardar or Chaukidar of the village; that he was not aware of any of the relatives of the accused in this case; and that he was able to identify the accused only on account of the moonlight and the oil lamp burning at the platform. In my view, although this witness was present at the spot and injured during the occurrence but was not able to identify any of the accused at the time of occurrence. It is stated by him that he took shelter behind a Tharra at the time of occurrence. According to the site plan, this Tharra is 119 feet from the place of occurrence. It was, therefore, not possible for him toB identify any of the accused in that dim light and in that malee which was going on at the time of occurrence. Fazal Hussain P.W.
Was not made to join in test identification parade in jail to identify the accused persons of this case. He had taken shelter behind a Tharra and thus was not in a position to see the whole occurrence where according to the prosecution, all the accused had opened fire at the deceased. Secondly, according to the medical evidence, this witness had five fire-arm injuries with blackened margins. This would mean that Fazal Hussain P.W. Was fired at from a close range, but according to the site plan and the evidence of this witness, he was at a distance of 119 feet from the place of occurrence. The medical evidence thus contradicts the testimony of Fazal Hussain P.W. He received four injuries on his wrist, hand and forearm and one injury on the right side of the chin. It appears that he received injuries by stray pellets at the time of occurrence and could not identify any of his assailants. He had rightly been disbelieved by the learned trial Judge. Ahmad Khan P.W.10 was not involved as a witness or as an accused in any of the cases pending in Pind Dadan Khan Court for which the complainant party was proceeding to Pind Dadan Khan. He had made improvements in his statement. According to Muhammad Ramzan P.W., Ahmad Khan and Fazal Hussain P.Ws. Met them per chance and were proceeding to Pind Dadan Khan for their own personal job but according to the F.I.R., both these witnesses were accompanying them. The medical evidence contradicts the testimony of this witness as well. At the time of occurrence, Ahmad Khan P.W. Was present at a distance of about 137 feet from the place of occurrence and as such, even if all the accused were previously known to him, it was not possible for him to identify all the accused at that hour of the night and in that malee. The learned trial Judge has placed reliance on the testimony of Muhammad Ramzan P.W.6 simply for the reason that he was one of the accused in the criminal case alongwith Ahmad Khan and Muhammad Iqbal deceased and therefore, was naturally accompanying them to Pind Dadan Khan. Muhammad Ramzan P.W. Admitted that his presence in the proceedings had been excused and that he was being represented by a counsel in those proceedings. As such, he was not expected to accompany his co- accused to Pind Dadan Khan at the time of occurrence. Secondly, if he had been there, he would not have been spared by the accused. He was a brother of the deceased and had deep-rooted enmities with the accused. It is admitted by Muhammad Ramzan that one of their relatives played a bus from Lilla to Pind Dadan Khan. As such, it was not possible for the accused to foresee that the complainant party would in all circumstances proceed to Pind Dadan Khan by morning train. The accused are divided in five different groups. All these five groups are not inter-related. The only allegation against them is that they are of one party. It, therefore, seems improbable that all these partymen would join together and sit in an ambush to commit the present crime. I am, therefore, not prepared to accept the evidence of Muhammad Ramzan P.W.6 specially when he is not being corroborated by any other independent circumstantial or ocular evidence. It is in evidence that there were a large number of passengers present at the railway station at the time of occurt'ence. It is also in evidence that the police employees and the railway employees were present on duty at that time but no one of them had been cited or examined as a prosecution witness in this case.
9. A perusal of the two inquest reports Exh.P.Q. And Exh.P.S. Indicates that the detail of the injuries individually attributed to all the accused has not been given therein. The F.I.R., on the other hand, contains all these details.
It is stated by the Investigating Officer that he entered all the facts in the two inquest reports which were given in the F.I.R. This is factually incorrect. I am, therefore, of the view, as has also been held by the learned trial Judge, that the F.I.R. Was recorded after the post-mortem and medical examination and after mutual consultations by the complainant party. Muhammad Ramzan P.W. Implicated a large number of accused in this case. As stated above, he is not corroborated by any other independent evidence. In such a situation when the "evidence of prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance". Reliance is placed on Muhammad and Sher v. The Crown PLD 1954 FC 1984. It is correct that conviction in a criminal case can be based on the evidence of a solitary witness but Courts do not base conviction on the evidence of solitary witness unless such witness is found absolutely reliable and his evidence is corroborated by reliable evidence. Reliance for this view is placed on Mumtaz-ud-Din v. The State PLD 1978 SC 114. Muhammad Ramzan P.W. Had been relied upon by the learned trial Judge as against the five appellants without giving any reasons for that and without there being any independent corroborating circumstance in this case. The appellants were convicted without there being any distinguishing feature in evidence against them. In my view, the evidence against the appellants and against the acquitted accused was not divisible. All the accused challaned in this case were attributed specific injuries. The conviction by the learned trial Judge is based on the evidence of Muhammad Ramzan P.W. Alone who in my view, is not a reliable witness.
10. In view of the above, this appeal is accepted. The convictions and sentences of the appellants are set aside.
The appellants are set at liberty, if not required in any other case.
11. In view of the above, Criminal Revision No,24 of 1981 is dismissed in limine.