MUHAMMAD MUNIR KHAN J.-----This Criminal Appeal No 140/84, Murder Reference No. 44 of 1984 and the connected criminal Revision No. 159 of 1986, filed by Sher Samand complainant arise from the judgment of learned Additional Sessions Judge, Mianwali, whereby he on 28-2-1984, while acquitting 13 co-accused, convicted Waif Allah Khan (32), Khan Mir (29), Sardar Khan son of Alam Sher (30), Sardar Khan son of Fateh Khan (30), Noor Khan (30), Muhammad Khan alias Muhammad (42), Muhammad Nawaz (27), Jehan Khan (50) and Sardar Khan son of Khan Zaman Khan (33), appellants under various sections of the Pakistan Penal Code and sentenced them as under:- Under Section 148, P.P.C.(i)All to two years' R.I. Saif Ullah Khan, Khan Mir, The Sardar Khan son of Alam Sher, Sardar Khan son of Fateh- Khan, Noor Khan and Muhammad Khan appellants to death on each count.
Under section 302/149, P.P.C, for double murder of Khan Mir and Hakim Khan.(ii) Muhammad Nawaz, Jehan Khan and Sardar Khan son of Khan Zaman Khan, to imprisonment for life on each count.
All the nine appellants were also sentenced to a fine of Rs.2,000 each on each count or in default thereof two months' R.I. Each on each count. They were also directed to pay Rs.3,000 each on each count as compensation or in default thereof further R.I. For 3 months on each count. It was directed that the fine when recovered be paid to the legal heirs of the deceased.
Under section 307/149, P.P. C. for murderousassaultonSher Samand, Muhammad Aslam, Fateh Fateh Khan son of Sikandar Khan andAll to 7 years' R.I. each and a fine of Rs.20,000 or in default Khan son of Ahmad Khan P.Ws. thereof two months'
R.I. each.
It was directed that each appellant shall pay Rs.2,000 as compensation, or in default thereof further R.I. For two months each, with the direction, that the total amount when recovered be distributed among the four injured P.Ws. Equally. It may be noted that Ahmad Khan son of Alam Sher co- accused had died during the trial. We propose to dispose of them through single judgment.
2. The occurrence took place on 24-3-1976 at 7-30 a.m. On a road within the area of village Chidru at a distance of 7 miles from Police Station Musa Khel, District Mianwali. The F.I.R. Exh.P.Q. Was lodged at the police station on the same day at 11-00 a.m. By Sher Samand P.W.8, brother of Khan- Mir deceased and cousin of Hakim Khan deceased which was recorded by Muhammad Shaft S.I.
(not produced).
3. The appellants as well as acquitted accused except Fateh Khan are closely related inter se. Fateh Khan is friend of Sardar Khan son of Alam Sher appellant. The motive as alleged by the prosecution was blood feuds between the appellants and the complainant party since 1973. There have been murders on both sides in which the parties were either accused or the prosecution witnesses.
4. As for the main occurrence, it has been stated that on the eventful day Hakim Khan deceased, Sher Samand, complainant, P.W.8, Noor Khan P.W.9 and Saif Ullah P.W. (not produced) had to appear in case under section 307, P.P.C. In the Court of Sessions Judge, Mianwali. At the eventful time, Sher Samand P.W.8, two deceased Khan Mir and Hakim Khan, Noor Khan P.W.9, Fateh Khan P.W.10, Muhammad Aslam and Fateh Khan son of Sikandar and others were going from village Chidru to Mianwali in a lorry driven by Sher Samand, complainant, to attend the Court. When the lorry reached near Kothi Noorwali, Saifullah, Muhammad Nawaz and Jehan Khan appellants and Ahmad Khan co-accused (since dead) armed with guns appeared from behind a Kari tree from the Northern side of the road. Ahmad Khan fired a short at lorry which hit it on front. On this Sher Samand stopped lorry. Muhammad Aslam P.W. Who was sitting behind the driver seat in the lorry jumped out and started running to save his life. Saif Ullah appellant fired a shot hitting him in the back and he fell down. Sher Samand complainant came out of the lorry and ran to save his life.
Ahmad Khan (since dead) fired a shot at him from behind hitting him on his buttock. The other passengers also came out of the lorry and started running. At this juncture, Shah Alam, acquitted accused, Khan Mir, Sardar Khan son of Alam Sher, Sardar Khan son of Fateh Khan, Noor Khan son of Alam Khan, Sardar Khan son of Khan Zaman Khan and Muhammad Khan alias Muhammada appellants, appeared from Kothi Noorwali and came towards the road. Sardar Khan son of Khan Zaman Khan fired a shot hitting Khan Mir on his back. Shah Alam fired a shot hitting Fateh Khan son of Ahmad Khan P.W. On his right arm. Sardar Khan son of Alam Sher fired a shot hitting Fateh Muhammad son of Sikandar Khan P.W. On his knee. Khan Mir appellant fired a shot hitting Hakim Khan deceased on his knee. Sardar Khan son of Fateh Khan, Noor "Khan son of Alam Khan and Muhammad Khan alias Muhammada went her Hakim Khan deceased and fired at him from close range. At this age, the acquitted 12 co-accused namely, Muhammad Sher Khan, Madad Khan, Fateh Khan son of Amir Khan, Abdul Rehman's, Amir Khan, Muzaffar Khan, Bahadur Khan, Khalas Khan, Ahmad Khan, Sher Ali Khan, Noor Khan and Jehangir Khan armed with fire-arms emerged from wheat crop and raised Lalkara that each one of the complainant party should be murdered and they started firing on the lorry. As a result of the attack launched by the appellants and their co-accused Khan Mir and Hakim Khan died on the spot whereas Sher Samand, Fateh Khan son of Sikandar, Fateh Khan son of Ahmad Khan and Muhammad Aslam P.Ws. Received fire-arm wounds.
The occurrence was seen by Sher Samand P.W.8, Noor Khan P.W.9, Fateh Khan son of Ahmad Khan P.W.10, Fateh Khan son of Sikandar Khan (not produced), Muhammad Aslam (not produced) and other passengers of the lorry.
5. Dr. Asghar Ali P.W.1 medically examined Muhammad Aslam, Fateh Khan son of Sikandar Khan, Fateh Khan son of Ahmad Khan and Sher Samand P.Ws. On 24-3-1976. He found a fire-arm wound of entry-on the left lumbar region of Muhammad Aslam and a fire-arm exit wound on the right side of his chest. The wound of entry was grievous in nature. He found a fire-arm wound of entry on the right side of right knee of Fateh Khan son of Sikandar Khan. The injury was simple in nature. He found two fire-arm wounds of entry on the left arm of Fateh Khan son of Ahmad Khan P.W. Which were simple in nature. He found a fire-arm wound of entry on the left buttock of Sher Samand P.W., which was also simple.
6. Dr. Muhammad Akram Khan, P.W.3 conducted post-mortem examination on the dead bodies of Khan Mir and Hakim Khan deceased on 25-3-1976. On the dead body of Khan Mir, he found:- "A fire-arm wound of entry, 1" x 1" on the upper right side of back chest towards right side of middle line 2" towards mid line from right scapular medial margin. No blackening or burning was seen.
There were wounds of exit in the diameter of 4" measuring -- x --". It was 2" under the left axilla and 2" to the outside of left nipple."
The doctor found following injuries on the dead body of Hakim Khan deceased:- (1)"A fire-arm wound of entry on the front of chest 2" away from right nipple to midline and 1" from the mid line. Wound measures 1-- x 1-- ". No burning or blackening was present with seven wounds of exit in the area of 3" diameter on the back under the left scapular margin measuring each --" x - ----.
(2)A wound of entry on the right flank 6" down from right axilla .5" above the illiac crest. The wound was 1" x 1" with blackening at the edges with three wounds of exit on the back one inch to the right side of mid line 2 wounds 2" to the left side of mid line. All measuring -- " x -----.
(3)A fire-arm wound of entry --" x --" on the right flank 2", above the right iliac crest with exit -- " x - - just --" below the wound of entry.
(4)A fire-arm wound of entry on the right side of hip measuring -- x -- going downwards and backward pellet lying two inches under the wound of entry.
(5)A fire-arm wound of entry --" x --" on the upper portion of hip bone below injury No. 4 at two inches. Pellet was lying 3" below the wound.
(6)A fire-arm wound of entry on the front of left leg 8" below the knee joint, measuring --" x --" with the wound of exit on the back side of left --" x --" which was V above the left malleolus (ankle).".
7. Saif Ullah Khan and Khan Mir appellants were arrested on 29-3-1976 by Ghulam Nabi S.I. P.W. 12 Muhammad Khan alias Muhammada appellant was arrested on the same day by Muhammad Shaft S.I. (not produced). Noor Khan and Sardar Khan appellants were arrested on 3-4-1976 by Muhammad Shaft S.I. Jehan Khan was arrested on 4-4-1976 by Muhammad Shaft S.I. Sardar Khan son of Khan Zaman Khan was arrested on 7-4-1976 by Muhammad Shaft S.I. Sardar Khan son of Alam Sher Khan and Muhammad Nawaz appellants were arrested on 9-4-1976 by Muhammad Shaft S.I. On 29-3-1976 at the time of his arrest Saif Ullah appellant produced gun Exh.P.39 and one live cartridge Exh.P.40 before Ghulam Nabi S.I., which were taken into possession, vide memo.
Exh.P.LL. On the same day Khan Mir appellant produced gun Exh.P.37 and cartridge Exh.P.38 before Ghulam Nabi S.I. Which were taken into possession, vide memo. Exh.P.LL. Sardar Khan son of Fateh Khan produced gun Exh. P.15 on 3-4-1976 which was taken into possession, vide memo. Exh.P.Z. On the same day, Noor Khan appellant produced gun Exh.P.17 and a live cartridge Exh.P.18, which were taken into possession, vide memo. Exh . P.A.A. On 7-4-1976 Sardar Khan son of Khan Zaman Khan appellant produced gun Exh.P.33 and two live cartridges Exh.P. 34/1 and 2 which were taken into possession, vide memo. Exh.P.J.J. On 4-4-1976 Jehan Khan produced gun Exh.P.31 and a cartridge Exh.P.32 which were taken into possession, vide memo. Exh .P.H.H. On 29-3 1976 Muhammad Khan alias Muhammada had produced gun Exh.P.35 and live cartridge Exh.P.36 which were taken into possession, vide memo. Exh.P.K.K. The recovery memoranda were attested by Sher Samand P.W 8, Noor Khan P.W.9, Ghulam Nabi S-.I. P.W.12 and Muhammad Shafi S.I. (not produced). It may be noted that no crime empty was recovered from the place of occurrence and as such the guns recovered from the appellants were not sent to the Forensic Science Laboratory. The aforesaid recoveries are thus of no consequence.
8. To prove its case prosecution examined 13 witnesses. Sher Samand P.W.8, Noor Khan P.W.9 and Fateh Khan P.W.10 have given the ocular account of the occurrence They claim to have seen the appellants and the acquitted accused participating in the occurrence and causing the double murder of Khan Mir and Hakim Khan and fire-arm injuries to Sher Samand. Muhammad Aslam, Fateh Khan son of Ahmad Khan and Fateh Khan son of Sikandar Khan P.W.10. Sher Samand P.W.8 and Noor Khan P.W.9 have also supported the recoveries of guns from Satfullah Khan, Khan Mir, Sardar son of Fateh Khan, Noor Khan, Sardar Khan, Jehan Khan and Muhammad Khan appellants.
Dr. Muhammad Akram P.W.3 has proved the post-mortem reports of Khan Mir and Hakim Khan deceased. Dr. Asghar Ali P.W.1 has proved the medico-legal reports of the injured prosecution witnesses. Ghulam Nabi S.I. P.W.12 had partly investigated the case. He supported the recoveries of guns from Saifullah Khan and Khan Mir appellants. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence they did not produce any witness.
10. The trial Court while believing the statement of Ghulam Nabi S.I. P.W. 12 with regard to the alibi of Shah Alam Khan co-accused that he was present in his unit at Rawalpindi at the time of occurrence and considering the participation of the 12 co-accused who had allegedly fired at the lorry to be shrouded with doubts has acquitted them and while believing the ocular evidence, motive and circumstances of the case against the appellant has convicted and sentenced them as stated above.
11. Learned counsel for the appellants mainly contended that the prosecution has not been able to prove its case against the appellants beyond reasonable doubts in that, the alleged eye-witnesses are' related, inimical and partisan; and that there is no independent corroboration of their statements qua each appellant. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant have supported the judgment of the trial Court. Learned counsel for the complainant maintained that since there was blood feud between the parties, therefore, no independent witness was prepared to come forward and depose against the appellants that by the facts of injuries on the person of Sher Samand and Fateh Muhammad P.Ws., their presence on the spot at the time of occurrence is very much established and that their statements qua the appellants find corroboration from the circumstances appearing in the case, e.g. Motive and medical evidence.
12. We have considered the arguments advanced by the learned counsel for the parties with care and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellant under sections 342, Cr.P.C. And the attending circumstances of the case.
Keeping in mind that in the instant case, the appellants have not raised any special plea so, the onus heavily lies on the prosecution to prove its case qua each appellant beyond reasonable doubt and that the fate of the case rests upon the ocular account of the occurrence given by the three eye-witnesses namely, Sher Samand P.W.8, Noor Khan P.W.9, Fateh Khan P.W.10, the medical evidence and the evidence of emotive furnished by the three aforesaid eye-witnesses. We have appreciated the entire evidence on record in accordance with the guiding principles laid down by the superior Courts in this behalf. We find that the three eye-witnesses are related. Sher Samand P.W.8 and Noor Khan P.W.9 are real brothers of Khan Mir deceased and are also paternal-cousins of Hakim Khan deceased. Fateh Khan P.W.10 is also their paternal-cousin. Sardar Khan son of Alam Sher, Sardar Khan son, of Khan Zaman Khan, Sardar Khan son of Fateh Khan and Muhammad Nawaz appellants belong to Naurang Khel tribe. Noor Khan, Jehan Khan, Saif Ullah and Muhammad Khan alias Muhammada appellants belong to Gola Khel tribe. We find that the three eye-witnesses are not only inimical towards the appellants but can safely be termed and treated as partisan witnesses. Sher Samand P.W. 8 has stated:--- "We have blood fends with Naurang Khel tribe who are accused in this case. Since 1973, there have been murders on our side in which persons of the Naurang Khel tribe were challaned, including some of the accused persons and also murders on the side of Naurang Khel accused in which persons from our side were challaned. It is also correct that, we are on inimical terms involving in murder cases with Gola Khel accused persons since 14/15 years.
Noor Khan P.W.9 has stated:- "We have murder feuds and enmity with the accused since 1973. On 15-9-1975 my brother Ata Muhammad was killed and during the same occurrence Khan Muhammad, brother of Khalas Khan sustained injuries i.e. Deceased, Hakim Khan, Sher Samand, Saif Ullah P.Ws. In this case were challaned for having caused murderous assault on Khan Muhammad."
Fateh Khan P.W. 10 has stated:--- "Both the deceased namely, Hakim Khan and Khan Mir were my first cousins. We have got murder fueds with the accused party since 12/13 years."
Since the three eye-witnesses, who are admittedly interested witnesses, claim to have seen the appellants and their co-accused causing the double murder of Hakim Khan and Khan Mir and injuries to the prosecution witnesses, so we propose to appreciate their evidence in accordance with the guidelines given by the Honourable Supreme Court in case Muhammad Hussain v. The State reported as PLD 1960 SC 387, where it has been stated:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of any thing making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence' and cannot be assumed, and he who sets up the plea of substitution has to lay they foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence."
Starting with the first question, we find that by the facts of injuries on the person of Sher Samand P.W. 8 and Fateh Khan, P.W.i0, their presence on the spot at the time of occurrence is very much established. Noor Khan P.W.9 has also given plausible cause of his presence at the time of occurrence. The appellants and the co-accused were previously known to the witnesses. The occurrence also took place in the light of the day and as such, there was no difficulty in the identification of the culprits. So, we do not see any reason to doubt that three eye-witnesses, in fact, saw the occurrence and were in a position to identify the offenders. This brings us to the further question i.e. Whether they can be relied upon for convicting/ maintaining the conviction of the appellants without independent corroboration qua each appellant? Our answer to this question is certainly., in negative.
The three eye-witnesses have named 23 persons as accused in the case; that they have involved Shah Alam acquitted accused whose alibi has not only been proved on record but has also been accepted and acted upon by the learned trial Court for good reasons; that they are capable of involving innocent persons in the occurrence. If they can involve Shah Alam who was far away from the place of occurrence, they can also falsely involve any other person; that by involving Shah Alam in the case, the eye-witnesses have shown reckless disregard for the truth and the sanctity of oath taken by them; that the number of the accused persons named by the eye-witnesses and the number and nature of the injuries found on the two deceased and the injured prosecution witnesses do not commensurate; that since the three eye-witnesses have shown no respect for the truth, therefore, the reasonable apprehension that they might have attributed false parts in the occurrence to the appellants cannot be excluded. We are convinced that in the peculiar circumstances of the case that the eye-witnesses are related inimical and partisan and that they have involved 23 persons in the case, including Shah Alam, it would be highly unsafe to place implicit reliance on their evidence without corroboration qua each appellant. There is, however, no circumstantial guarantee and judicial certainty that the eye-witnesses have spoken the truth with regard to the appellants. Learned counsel for the State and the learned counsel for the complainant have argued that the corroboration qua each appellant is available in the shape of medical evidence and the alleged motive. We are afraid that in the peculiar circumstances of the case, the alleged motive and medical evidence as well, do not corroborate the statements of the three eye-witnesses qua each appellant. It is well-settled that whenever the rule of prudence requires corroboration of the ocular testimony that is always with regard to the identity of the accused as well as of the story of the prosecution. We feel that the medical evidence' has no corroborative value at all. It is merely indicative of type and dimension of injuries as well as type of weapons used to cause such injuries and also of the cause of death. The medical evidence can in no manner connect the accused with the crime and support the version of the occurrence given by the eye-witnesses. As for the motive, it is a double-edged weapon. It cuts both ways and which way it actually cuts that depends upon the facts of each case. In the instant case, the blood feuds between the parties could equally be a reason not only for the false implication of the appellants but also for attributing active roles to them. We are of the opinion that in this case, it would be too much to give benefit of old enmity and blood feuds between the parties, to the prosecution.
13. In our view, on the evidence in this case, as it stands, there is no satisfactory legal basis on which conviction of the appellants can safely be maintained. We are, therefore, constrained to set aside the convictions and sentences and accepting the appeal, direct that they shall be released forthwith, if not required to be detained in any other case. Resultantly, the connected revision is dismissed.
S.G.D. Acquittal ordered