MUHAMMAD MUNIR KHAN, J.----This Criminal Appeal No. 545 of 1982, connected Murder Reference No. 165/82 and connected State Appeal No. 16/83 against the acquittal of five co- accused and Criminal Revision No. 804/82 by the complainant for the enhancement of the sentence of Mumtaz Ali appellant and amount of compensation, arise from the judgment of learned Sessions Judge, Sargodha, whereby he on 13-9-1982 while acquitting Muratab Ali, Ghulam Ali, Ahmad Khan, Ahmad Bakhsh, Khalid Hayat, the five co-accused, convicted Ziafat Pinah appellant under section 302, P.P.C., for causing the death of Muhammad Sher, Advocate and convicted Mumtaz Ali under section 302/109, P.P.C. For abetting Ziafat Pinah in the murder of Muhammad Sher deceased and sentenced them as under:- (i)Ziafat Pinah to death and a fine of Rs.30,000 or in default thereof three years' R.I.
(ii)Mumtaz Ali to imprisonment for life and a fine of Rs.20,000 or in default, thereof two years' R.I. It was directed that the fine if realized 2/3rd of it be paid to the legal heirs of the deceased.
We proposed to dispose them of through this single judgment.
2. The occurrence took place on -15-5-198U at 10.45 a. m. Near Mangowala Canal Rest House, on the lower Jhelum canal bank in the area of Chak No. 122/N.B. Five miles away from the Police Station, Silanwali, District Sargodha. F.I.R. Exh. P.F. Was lodged by Muhammad Nawaz P.W. 21 at the Police Station on the same day at 12-30 which was recorded by Muhammad Mumtaz Ahmad P. W.
5. It may be noted that at the trial the writer of the F.I.R. Has stated that he had entered the time of recording the F.I.R. In the relevant column as 11-30 a.m. By mistake.
3. Ziafat Pinah appellant and Mutatab Ali acquitted accused are real brothers. Mumtaz Ali appellant and Ghulam Ali acquitted accused are also brothers inter se. Khalid Hayat acquitted accused is were's brother as well as a ---Malvalir--- of Mumtaz Ali appellant, Ahmad Khan acquitted accused is his paternal-grandfather and Ahmad Bakhsh acquitted accused is car driver of Mumtaz Ali appellant.
4. The background of the occurrence allegedly is that Mst. Kalsoom Akhtar was sister of Ziafat Pinah appellant as well as sister-in-law of Muhammad Sher deceased. The Nikah of Kalsoom Akhtar was solemnized with Mumtaz Ali appellant. Before Rukhsati could take place, Muhammad Sher deceased developed illicit relations with her who refused to marry 'Mumtaz Ali appellant and was therefore, murdered and on 25-8-1975 a case under section 302/34, P.P. C. Was registered against Ziafat Pinch, Mumtaz Ali appellants, Ghulam Ali acquitted accused and one Amir Abdullah, vide F.I.R.
Copy Exh. P.W. 27-A. During investigation Mumtaz Ali, Ghulam Ali and Amir Abdullah were found innocent and Ziafat Pinah alone was challaned who too was acquitted in the year 1978. Since Muhammad Sher deceased paramour of Mst. Kalsoom Akhtar had also been pursuing the case of her murder therefore, the appellants and the acquitted accused were nursing grudge against him hence this murder.
5. As for the main occurrence, it has been stated that Muhammad Sher deceased owned lands in Chak No. 138/S.B. Ghulam Muhammad P.W. 23 was the tenant of Shahid Sultan a nephew of the decease. To the eventful day Muhammad Nawaz complainant sent Ghulam Muhammad P.W. 23 to Muhammad Sher deceased for bringing his Wheat Thrasher and Tractor. Ghulam Muhammad accordingly contacted Muhammad Sher deceased in Sargodha who told him that his tractor and thrasher were in Chak No. 138/S. B. And when the same were spared he would oblige the complainant. The deceased then asked Ghulam Muhammad P.W. 23 to accompany him to Chak No. 138/S.B. Ghulam Muhammad P.W. Accompanied him in his car. He sat on the rear seat and Muhammad Sher drove it. When the car reached near the place of occurrence, there was a barrier, where a light blue car with its bonnet lifted upwards was already parked. There was a person standing near its bonnet. As there was no other passage therefore, Muhammad Sher had to stop there. At that time an unknown person described in the F.I. R. As: armed with .12 bore gun emerged from the side of the canal and fired twice at Muhammad Sher hitting him on the back side of the right shoulder and on the right side of the neck. The window pan of the front seat was broken by the first shot. Immediately thereafter the person standing near the bonnet described in the F.I.R. As: armed with .12 bore gun came near the car of the deceased and fired twice at Muhammad Sher which hit on the right side of his front acid on the back of his right hand. Muhammad Sher succumbed to the injuries then and there. The two persons who had fired at the deceased then occupied the blue car. It has been stated at the trial stage that Ahmad Bakhsh was also seen sitting on the driver's seat in the car in which the two assailants had sat. The car was then driven towards Sillanwali side. The occurrence was also seen by Saad Ullah P.W. 24 and Abdul Sattar (not produced). Leaving them with the dead body, Ghulam Muhammad went to Chak No. 126/N.B.
Where he narrated the occurrence to Muhammad Nawaz complainant who brought him (Ghulam Muhammad) back to the spot where Saadullah and Abdul Sattar also apprised the complainant of the details of the occurrence. Muhammad Nawaz then left the spot for Police Station. Sillanwali where he made F.I.R. Exh. P.F. Wherein lie named Ziafat Pinah, Mumtaz Ali, Ahmad Khan and Muratab Ali as suspect culprits who either killed Muhammad Sher or got him killed.
6. On 10-5-1980 at 5-15 p.m. Doctor Muhammad Azeem Majoka, conducted post-mortem examination on the dead body of Muhammad Sher deceased and found following injuries on the dead body; (1)A gunshot wound, 3 c. m. x 2 c. m. Causing fracture of right little finger and ring finger, on back of right hand, closed fist, and exiting from palm where one large pellet was found stuck in second metacarpel bone, causing its fracture; and margins of the wound were charred on back side.
(2)A gunshot wound, 3 c.m. x 2 -- c.m., on top of right shoulder, causing fracture of acromion process of scapula and exiting out from back washing away skin over and area 8 c.m. x 7 c. m. With margins tattooed; (3)A gunshot wound, with margins tattooed on right side of neck, 2 -- c.m. x 2 c.m. Directed from below upwards and medial piercing trachea and one hole of exit on left side of neck near the ear and one pellet found on left side of head causing fracture of skull; (4)Four gunshot holes over an area 10 c.m. x 8 c.m. On right side of upper chest was margins charred, entering the chest cavity and a deformed piece of pellet and the bits of cartridge found in the wound, and the size of each hole was about 11 c.m. Into 3 c. m. And they were circular, the bigger one being at lower level directed backwards."
7. Ejaz Hussain S.I. P.W. 32 visited the spot on the day of occurrence. He took into possession the car of the deceased. He found that the window-pane of the right side was broken and its pieces were lying on the ground outside the car and also inside it. He collected the same and took them into possession. He took into possession two front seats of the car which were blood-stained. He recovered three empty cartridges P. 20/1 to 3 from the spot. He extracted six pellets and a car board of the cartridges from the left window of the car. All the aforesaid articles were taken into possession, vide memo. P. V. Attested by Hameed Anwar P.W. 14 and Noor Muhammad (not produced).
8. On 12-5-1980 Ghulam Ali and Muratab Ali acquitted accused were arrested from near the Law College, Lahore in some other case and lodged in Camp Jail, Lahore. They were arrested in this case on 18-5-1980. Khalid Hayat acquitted accused himself appeared before Assistant Commissioner, Sargodha who sent him to the judicial lock up. Mumtaz Ali appellant was arrested on 14-5-1980 by Ayyaz Ahsan, A.S.I. P.W. 16 Ahmed Khan acquitted accused was arrested on 17-8- 1980 by Pervaiz Shah S.1. P.W.
33. Ahmed Bakhsh and Ziafat Pinah were arrested on 5-10-1980.
Nothing incriminating was recovered from Ghulam Ali, Ahmed Khan and Muratab Ali acquitted accused. Mumtaz Ali appellant was arrested from near Immigration Office. Wagha Border in Pakistan of Ayyaz Ahsan, A.S.I. P.W.
16. He, at that time was carrying two bags, wherefrom Passport P.
4, Identity Card P. 5, a Diary P. 6, Bill of Hotel P. 7, Card of Kabir Hotel Dehli Exh. P. 9, Cash Memo. P. 11 and other articles were recovered and seized, vide memo. P.T. Attested by Mukhtar Ahmed P.W. It and Safdar Nazir (not produced). On 14-10-1980 Ziafat Pinah appellant got recovered gun P. 22 alongwith six cartridges P. 23/1-6 from underneath stones near a hillock which was taken into possession, vide memo. P . Z . Attested by Sikandar P . W . 18 and Karam Ali (not produced). On the same day Ahmed Bakhsh acquitted accused led to the recovery of gun P. 24 along with four cartridges P.25/1 to 4 from underneath stones lying near the hillock which was taken into possession, vide memo. Exh.P.A.A. Attested by the same witness. The recoveries were effected by Pervaiz Shah S.I. P.W.
33. The Forensic Science Laboratory Report Exh.P.K.K. Reveals that out of the three crime empties recovered from the spot two were fired from gun P. 22 recovered from 'iafat Pinah appellant and one was fired from gun Exh. P. 24 recovered from Ahmed Bakhsh since acquitted.
9. The trial Court framed charge against Ziafat Pinah appellant, Khalid Hayat and Ahmed Bakhsh acquitted accused under section 302/34, P.P.C. That they in furtherance of their common intention and at the instigation of the co-accused committed the murder of Muhammad Sher. Against other co-accused namely, Ahmed Khan, Muratab Ali, Ghulam Ali and Mumtaz Ali appellant a charge under section 302/109, P.P.C. Was framed that they had instigated Ziafat Pinah, Ahmed Bakhsh and Khalid Hayat to murder Muhammad Sher anal thus abetted them in the commission of the murder.
All the accused denied the charge.
10. To prove its case prosecution examined as many as 34 witnesses. Dr. Muhammad Azeem Majoka P.W. 1 has proved the correct carbon copy Exh. P. A. Of the post-mortem examination report of Muhammad Sher. Muhammad Nawaz P.W. 21 has deposed about the motive and the narration of the occurrence to him by Ghulam Muhammad P.W.
23. He has proved the F.I.R. Exh. P.F. Ghulam Muhammad P.W. 23, Saadullah P.W. 24 have given the ocular account of the occurrence. Mukhtar Ahmed P.W. 11, Abdullah Khan P.W. 13 and Muhammad Sarwar P.W. 19 have deposed about the design of the accused persons to kill Muhammad Sher and proclamations made by Ziafat Pinah and Khalid Hayat before them that they had killed Muhammad Sher. Mukhtar Ahmed P.W. 11, Hameed Anwar P. W. 14, Muhammad Hussain P.W. 15, Sikandar P.W. 18, Ayyaz Ahsan P.W. 16, Ejaz Hussain P.W. 32 and Pervaiz Shah, S.I. P.W. 33 have deposed about the recoveries of the articles from the spot, the recoveries of article from Mumtaz Ali, the recovery of the car, recovery of guns from Ziafat Pinah and Ahmed Bakhsh acquitted accused. Chaudhry Irshad Ahmed M.I.C. P.W. 2 and Chaudhry Ghulam Nabi, M.I.C. P.W. 20 have deposed about their having held identification parades of Ziafat Pinah, Ahmed Bakhsh and Khalid Hayat recorded reports Exh. P.C. And Exh. P D D Sikandar Hayat P.W. 12 was produced to state about the alleged abetment by Mumtaz Ali and others in commission of the murder of Muhammad Sher. Zia-ud-Din Zubairi P.W: 7 produced telegram Exh.
P.N. Purporting to have been sent by one Mir Nawaz to Mumtaz Ali at Kabir Hotel Dehli. Muhammad Nawaz Inspector Rangers P.W. 8 Sardar Muhammad P.W. 9, Nasim Hussain Malik P.W. 10, Mukhtar Ahmed P.W. 11, Abdul Qadeer Siddiqui Section Officer P.W. 22, Mumtaz Ahmed, A.S.I., F.I.A. P.W. 29, Musaddaq Ahad Shah P.W. 30 and Muhammad Arshad P.W. 31 have been produced in disproof of the plea of alibi raised by Ziafat Pinah and Mumtaz Ali during the investigation and their design to accomplish their mission. Moazzam Ali, F.C. P.W. 6 and Pervaiz Shah, S.I. P.W. 33 have proved proceedings under section 87/88, Cr.P.C. Against Ziafat Pinah and Ahmed Bakhsh appellants.
Muhammad Yaqoob A.C. P.W. 28 has proved confession P.W. 28-B made by Ghulam Ali in some other case. The prosecution also tendered several documents in disproof of the plea of alibi. Some of the important documents are Exh. P.N., Telegram sent by Mir Nawaz to Mumtaz Ali when the latter was in Kabir Hotel Dehli asking him to "come back soon". Application Exh. P. 21/E made by the complainant for the verification that Ziafat Pinah had come back from India through Attari-Wagha Border on 7-5-1980 and Exit entry certificate Exh. P.W. 22/F attested by Officer Incharge Immigration Check Post, Adtari-Amritsar indicating that Ziafat Pinah had crossed the Border of India into P8Kibtan on 7-5-1980. The rest of the evidence is more less of formal nature.
11. When examined under section 342, Cr.P.C. , the appellants dense, all the incriminating circumstances. They raised the plea of false implication, due to enmity. Ziafat Pinah also raised plea of alibi that at the time of occurrence he was in India. Denying the allegation of abscondance, he explained that he reached India on 3-5-1980 and stayed there upto 27-6-1980. Thereafter he moved application for bail before --the High Court which was however, dismissed. He explained that after the rejection of his bail application he did riot appear before the Policy as he was informed that the complainant party was arranging a fake police encounter to get him Killed. In defence five witnesses were produced.
12. The trial Court examined Ghulam Haider as C.W.
1. He was a record-keeper with the T.I. A. At Karachi Air Port. He brought before the Court the record of the arrival of the passengers at the Karachi Airport by International Flights and proved documents C.W. 1/A to D relatable to the arrival of passengers particularly Ziafat Pinah.
13. The learned trial Court has acquitted Khalid Hayat and Ahmad Bakhsh of the charge, under section 302/34, P.P.C. And Ahmad Khan, Ghulam Ali, Muratab Ali of the charge under section 302/109, P.P.C. And has convicted Ziafat Pinah for the murder of Muhammad Sher and Mumtaz Ali for abetting the commission of murder by instigating Ziafat Pinah 11/ 12 days before the occurrence.
The trial Court disbelieved the prosecution case to the extent of five accused. It also disbelieved Saadullah eye-witness, the proceeding of identification parade and testimony of Mukhtar Ahmad P.W. 11 and Sikandar Hayat P.W. 12 about the design of the accused persons to, kill Muhammad Sher.
It further disbelieved testimony of Abdullah Khan P.W. 13 and Muhammad Sarwar P.W. 19 regarding Extra-Judicial Confession made by Ziafat Pinah and Khalid Hayat in the shape of proclamation that they had killed the deceased. While believing Ghulam Hussain P.W. 3, to the extent of Ziafat Pinah, recoveries of the crime empties from the spot, recoveries of gun from the Ziafat Pinah, Forensic Science Laboratory Report to the extent of Ziafat Pinah and the circumstances relatable to the conduct of Ziafat Pinah told by Muhammad Nawaz P.N. 8 and Sardar Muhammad P.W. 9 convicted and sentenced him as stated above. So far as Mumtaz Ali is concerned the trial Court though disbelieved the witnesses of the alleged abetment namely, Mukhtar Ahmad P.W. 11 and Sikandar Hayat P.W. 12 yet convicted him on the strength of circumstances in the form of his departure to India his stay at Kabir Hotel Dehli. Telegram Exh. P.N. Sent to him from Pakistan "come soon back", recovery of cash memo. Issued by the Kabir Hotel Manager, the conduct of Mumtaz Ali in approaching Muhammad Nawaz P.W. 8 and Sardar Muhammad P.W. 9 for helping him and Ziafat Pinah in their illegal return to Pakistan.
14. The learned counsel for the convict appellant contended that prosecution has failed to prove its case against the appellants beyond treasonable doubt; that the learned trial Court after having disbelieved 3/4of the prosecution story and its evidence, should not have believed Ghulam Muhammad P.W. 23 to the extent of Ziafat, Pinah particularly when his statement was in conflict with medic evidence; that the guns and the rime empties were sent together to the Forensic Science Laboratory, therefore, the possibility that empties were prepared by firing live cartridges from these guns by the Police itself and then sent to the laboratory cannot be excluded; that exit entry certificate P.W. 22/F was not admissible in evidence; that Muhammad Nawaz and Sardar Muhammad are not reliable witnesses and that circumstances relied upon by the trial Court do not connect the appellants with the murder and do not prove abetment within the definition of section 107, P.P. C. It may be noted that the learned counsel for the convict appellants have not pressed the plea of alibi of Ziafat Pinah before us.
15. While arguing connected appeal against acquittal, the learned A.A.-G, submitted that prosecution had successfully brought home the charge of murder to Khalid Hayat and abetment thereof to Ahmad Khan, Muratab Ali and Ghulam Ali acquitted accused; that the five accused were acquitted without legal and factual justification; that the reasons given by the trial Court for the acquittal of the co-accused were flimsy and far fetched and that Mukhtar Ahmad P. W. 11, Sikandar Ali P.W.
12. Abdullah Khan P.W. 13, Muhammad Sarwar P.W. 19 are quite independent witnesses and they have wrongly been disbelieved by the trial Court. The learned counsel appearing for the State in the Murder Reference and the appeal filed by Ziafat Pinah and Mumtaz Ali has supported the learned A.A.-G. In order to bring home guilt to the accused, the prosecution produced 34 witnesses and mass of documents in disproof of the plea of alibi raised by Ziafat Pinah and Mumtaz Ali appellants and relied on various categories of evidence in proof of the charges. To prove charge under section 302/34, P. P. C., against Ziafat Pinah appellant, Khalid Hayat and Ahmad Bakhsh acquitted accused, the prosecution relied on the following categories of evidence:- (1)Ocular evidence furnished by Ghulam Muhammad P.W. 23 and Saadullah P.W.
24. Saadullah has been disbelieved by the trial Court.
(2)Identification parade proceedings Exhs. P.C. And P.D. Proved by Chaudhry Irshad Ahmad, M. I. C.
P.W. 2 and Chaudhry Ghulam Nabi, M.I.C., P.W.
20. It may be noted that the identification tests have not been relied upon by the trial Court.
(3)Extra-judicial confession by Ziafat Pinah and Khalid Hayat before Mukhtar Ahmad P.W. 11, Abdullah P.W. 13 and Muhammad Sarwar P. W.
19. It may be noted that Saadullah P. W. 24, the identifications test P. C. And P. D. And witnesses of extra-judicial confession have not been believed and acted upon by the trial Court.th (4)Recovery of crimes empty P. 20/1-3 from the spot supported by Hameed Anwar P.W. 14 and Ejaz Hussain S.I. P.W. 32.
(5)Recovery of gun P. 22 from Ziafat Pinah supported by Sikandar Hayat P.W. 18 and Pervaiz Shah, S.I. P.W.
33. Forensic Science Laboratory Report Exh. PKK that out of the three crime empties two were fired from the gun recovered by Ziafat Pinah and one from gun P. 24 recovered from Ahmad Bakhsh acquitted accused.
(6)Circumstantial evidence in the form of motive, suspicious conduct of Ziafat Pinah an his approaching Muhammad Nawaz P.W. 8 and Sardar Muhammad P. W. 9 for his entry into and exit from India and exit entry certificate Exh. P. 22/F to the effect that Ziafat Pinah has entered into Pakistan on 7-5-1980 via Attars-Wagha Border.
(i)Direct evidence supported by Mukthar Ahmad P.W. 11 and Sikandar Hayat P.W.
12. It may be mentioned here that both o them have been disbelieved by the trial Court; (ii)Circumstantial evidence in the shape of: (a)Motive supported by Muhammad Nawaz P.W. 21.
(b)Suspecious conduct of Mumtaz Ali of going to India on a mission supported by Muhammad Nawaz P.W. 8 and Sardar Muhammad P. W. 9.
(c)His presence in Kabir Hotel, Dehli India on the day of occurrence and sending of telegram Exh.
P.N. By Mir Muhammad Nawaz to him asking him to come back soon and the recovery of the cash memo. Of Kabir Hotel, Dehli from him.
16. The State filed appeal against acquittal against Ahmad Bakhsh, Khalid Hayat, Ahmad Khan.
Ghulam Ali and Muratab Ali. The High Court has dismissed the appeal to the extent of Ahmad Bakhsh who was charged under 'section 302/34, P.P.C. At limine stage and notice was given to the others.
17. As appeal against acquittal filed by the State has already been admitted to examine the reasons given by the trial Court for the acquittal of Khalid Hayat, charged under section 302/34, P.P.C. And Ahmad Bakhsh, Ghulam Ali and Muratab Ali charged under section 302/109, P.P. C., and the appeal against conviction of Ziafat Pinah and Mumtaz Ali and proceedings are also before us for the confirmation of the sentence of death of Ziafat Pinah, so we have examined entire evidence oral as well as documentary on the file in the light of the guiding principles laid down by superior Courts which have been consistently followed by this Court in justifying interference with the judgments of conviction and acquittal. We have also attended to the elaborate argument advanced by the learned counsel for the parties with utmost care. In the circumstances of the case, we consider it appropriate to discuss prosecution case first in order to arrive at an independent findings as to the truth or falsity of the prosecution case and credibility of the` prosecution witnesses more particularly the alleged eye-witnesses, the witnesses of extra-judicial Confession and the recovery of incriminating articles and the witnesses of the alleged abetment.
18. Starting from the foundation of the prosecution case i. e. F. I. R. We find that by 12-30 noon on 10- 5-1980 when the F.I.R. Was recorded, the names of the culprits were not known; that only descriptions of the two culprits were given in the F.I.R., that the number of the culprits who were seen at the place of occurrence was two and that Mumtaz Ali, Ziafat Pinah, Muratab Ali and Ghulam Ali were suspected as culprits who either killed Muhammad Sher or got him killed. On careful examination of the F.I.R. Which was lodged by Muhammad Nawaz after having visited the spot and talked to the three eye-witnesses, it seems to us that the prosecution case at the initial stage was that two of Muhammad Sher by firing render any substantial of the guilt/innocence of the culprits is to be judged in relation to the facts and circumstances established in evidence at the trial.
19. This brings us to the abetment part of the prosecution version. The allegations are that 11/12 days before the murder. Mumtaz Ali appellant, Ghulam Ali, Muratab Ali and Ahmad Khan acquitted accused had instigated Ziafat Pinah appellant, Khalid Hayat and Ahmad Bakhsh acquitted accused to commit the murder of Muhammad Sher and that it was in pursuance of this instigation that Ziafat Pinah, Ahmad Bakhsh and Khalid Hayat allegedly had gunned down Muhammad Sher.
There are two witnesses namely, Mukhtar Ahmad P.W. 11 and Sikandar Hayat P.W. 12 of the alleged abetment. P.W. 11 has made a vague statement that while present in room No. 66, Old Hostel of Law College, Lahore, Ziafat Pinah, Muratab Ali, Ghulam Ali and Mumtaz Ali had deliberated the question of doing away with somebody. He explained that their plan was that Ziafat Pinah and Mumtaz Ali would leave for India. Ghulam Ali and Muratab Ali would manage their arrest by the Police in connection with some lawlessness or commission of an offence. The witness stated that 5/6 days, thereafter Ziafat Pinah came in Room No. 66 to visit Shaukat Ali. He expressed the intention to kill the relative of him living in Sargodha. The prosecution case is that on both occasions Safdar Ali and Nazir Ali were present. Sikandar Hayat P.W. 12 stated that 11/12 days before the murder of Muhammad Sher, Mumtaz Ali appellant came at his house in Chak No. 130/N.B. And took him to the house of his grandfather Ahmad Khan accused situated in Civil Lines, Sargodha where, Ahmad Khan, Ziafat Pinah, Muratab Ali and Ghulam Ali and Khalid Hayat were already present. Ahmad Khan told him that Muhammad Sher was their enemy he should be killed and that he would bear all the expenses of litigation. Ahmad Khan then directed Ghulam Ali and Muratab Ali to follow Muhammad Sher at Lahore. Ziafat Pinah and Khalid Hayat were asked by him to look for Muhammad Sher at Sargodha. Ahmad Khan told Mumtaz Ali to take care of the litigation that would ensue. Ahmad Khan then enquired from him (the witness) as to what help could he render to which he (Sikandar Hayat) asked for time to think over. The learned counsel for the State submitted that Mukhtar Ahmad and Sikandar Hayat being disinterested persons, their testimony should not have been disbelieved by the trial Court.
20. We are not impressed by the statements made by Mukhtar Ahmad P.W. 11 and Sikandar Hayat P.W.
12. Mukhtar Ahmad has made almost a vague statement. Sikandar Hayat had not given information of the alleged intention and scheme of Ahmad Khan and others to murder Muhammad Sher, to the police or to Muhammad Sher himself. He did not disclose what he heard from Ahmad Khan to any one for 11/12 days. He was, therefore, not better than an accomplice. It is highly improbable that Ahmad Khan, Ziafat Pinah would have disclosed their B mission before Mukhtar Ahmad with whom they had no direct relations. Ahmad Khan was the head of the family.
The co-accused were at his back and call and as such it does not appeal to reason that he would have sent for Sikandar Hayat to create evidence against themselves. Be that as it may, the fact remains, that the statements made by Mukhtar Ahmad P.W. 11 and Sikandar Hayat P.W. 12 accepted at its face value, the same do not make out case of abetment against Ghulam Ali, Mumtaz Ali and Muratab Ali because they did not say that three accused had instigated Ziafat Pinah to kill Muhammad Sher. The statements made by these witnesses run counter to the natural probabilities. The learned trial Court has given good reasons for disbelieving them. If the direct evidence furnished by these two witnesses on the charge of abetment, is eliminated there remains no other evidence direct or circumstantial against Ahmad Khan, Ghulam Ali and Muratab Ali respondents. As for Mumtaz Ali, the prosecution and the learned trial Court as well, had relied on the circumstantial evidence in the form of motive, his conduct of creating alibi in India and telegram Exh. P.N. Purporting to have been sent to him in India asking him to "come back soon".
There can be no two opinions that enmity is a double-edged weapon and it cuts both ways. In the circumstances of the case, that Mumtaz Ali was also named as a suspect culprit alongwith others, the benefit of the maxim that "enmity/motive cuts both ways" should not be given to the prosecution. The rest of the circumstances relied on by the trial Court against Mumtaz Ali appellant even if accepted, do not prove that he had instigated Ziafat Pinah, Khalid Hayat and Ahmad Bakhsh to kill Muhammad Sher 11/12 days before his murder.
21. Adverting to the charge under section 302/34, P.P.C., against Ziafat Pinah appellant, Khalid Hayat and Ahmad Bakhsh respondents, it is a matter of record that three P.Ws. Namely, Ghulam Muhammad, Saad Ullah and Abdul Sattar were cited as eye-witnesses of the occurrence. Abdul Sattar was given up by the prosecution. Ghulam Muhammad P.W. 23 and Saad Ullah P.W. 24 have given the ocular account of the occurrence. They claim to have seen Ziafat Pinah and Khalid Hayat firing two shots each at the deceased resulting in his death. They have also named Ahmad Bakhsh acquitted accused (to whose extent appeal against acquittal has already been dismissed by the High Court at limine stage) as a companion of the assailants. They claim to have seen him sitting on the driver seat of the blue car used by Ziafat Pinah and Khalid Hayat in the occurrence. The learned trial Court has totally disbelieved Saad Ullah and that too, for good reasons. As for the ocular testimony, the statement of Ghulam Muhammad P.W. i3 alone remained in the field. The trial Court has declined to place implicit reliance on his statement to the extent of Khalid Hayat and Ahmad Bakhsh acquitted accused. We propose to appreciate the ocular evidence in accordance with the guidelines given by the Supreme Court in case Muhammad Hussain v. State PLD 1960 SC 387, where it has been stated:----- "Whenever interested persons claiming to be eye-witnesses of an occurrence charged person 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 offender, 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 anything 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 of the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their words cannot be made the basis of conviction and the Courts will have to look for some additional circumstances which corroborate their testimony."
22. Having re-appraised the ocular testimony, we find that there are reasonable doubts that Ghulam Muhammad P.W. 24 and Saadullah P. W. 24 in fact saw the occurrence or identified Ziafat Pinah and Khalid Hayat accused. Ghulam Muhammad and Saadullan arms not the injured witnesses so there is no circumstantial guarantee or judicial certainty of their presence on the scene of occurrence. Saadullah was a chance witness. Ghulam Muhammad was living 10/11 miles away from the place of occurrence. He was tenant of the nephew of the deceased and as such could easily have been influenced and induced to become an eye-witness of the occurrence.
There is serious conflict between the ocular testimony and the medical evidence. The medical evidence shows that margins of wound Nos. 1 and 4 were charred and the margins of injuries No. 2 and 3 tattooed and that wound No. 3 was directed from below upward. In cross-examination the Doctor categorically stated that charring would not be there if the shot comes after piercing a window glass. Conversely the two eye-witnesses have stated that first shot hit the deceased after breaking the window pane. Further, had the shots been fired by the assailant standing outside the car on Muhammad Sher who was sitting on the seat of the car then injury No. 3 could not form the track from below upward. This shows that perhaps the occurrence was not seen by them. Despite this observation since the names of the culprits are not given in the F.I.R. And the fate of the case hinges upon the evidence of the witnesses who identify the culprits in identification test we would still like to give our views on the question of identification of Ziafat Pinah and Khalid Hayat and evidentiary value to be attached to the statements of the eye-witnesses. The prosecution case is that Ziafat Pinah, Khalid Hayat and Ahmad Bakhsh were not previously known to the three eye- witnesses, therefore, their names were not mentioned in the F.I.R., instead their description were detailed therein. The learned trial Judge who laid the advantage of seeing Khalid Hayat accused throughout the trial has observed that the description of the culprits given in the F.I.R. Does not tally with Khalid Hayat accused. We do not see any reason to disagree with him. The occurrence took place all of a sudden. The culprits were not known to the eye-witnesses. The four shots were fired successively in a short span of time and as such eye-witnesses could catch momentary glimpse of the culprits and that too in confusion. The evidence in the Court was recorded after about 16 months of the occurrence. It was, therefore, highly improbable for the eye-witnesses to retain in their memory the features of the culprits. The testimony of sense cannot be implicitly relied upon when the identification parades were held after 3 -- months and 5 months of the occurrence.
Furthermore the trial Court has also discarded the identification test, of course, by giving convincing reasons. As for the credibility of two eye-witnesses specially of Ghulam Muhammad P.W. 23 who has been found as a truthful and genuine eye-witness by the trial Court, it is necessary, in order to sustain a conviction that he should be found wholly dependable or it should be found that his statement is corroborated in all material particulars by independent evidence/ circumstances qua each accused. On careful examination, we find that eye-witnesses have deliberately exaggerated the number of the culprits from two to three. Before the F.I.R. Could be lodged, Muhammad Nawaz complainant had met the three eye-witnesses who had narrated the occurrence to him. Had the eye-witnesses seen third companion of the culprits, sitting on the driver seat they would not have restrained themselves from divulging his presence to Muhammad Nawaz complainant, more particularly when they know that Muhammad Nawaz was leaving for police station for lodging the report. Had the eye-witnesses disclosed the presence of third accused to the complainant he could not have possibly omitted the same in the F.I.R. The omission to mention the presence of Ahmad Bakhsh in the F.I.R. Gives rise to the irresistible conclusion that the eye- witnesses and the complainant have dishonestly exaggerated the number of the accused and have, liven evidence with a motive other than that of telling the truth. Consequence of the above observations must necessarily be, that not only the two eye-witnesses but also Muhammad Nawaz complainant be declared as wholly unreliable witness and their testimony should be ruled out from consideration. In any case, in order to be satisfied that no innocent person is convicted it has become imperative to look for some additional evidence/ circumstance that give support to their statements so as to create that degree of probabilities of guilt which can be made the basis of safe conviction. The learned A. A.-G. Stated that if such corroboration was at all necessary it is there in the shape of extra-judicial confession, recovery of gun P. 22 from Ziafat Pinah, positive Forensic Science Laboratory Report Exh. PK K, motive, abscondance of Ziafat Pinah appellant; the conduct of Ziafat Pinah of approaching Muhammad Nawaz P.W. 8 and Sardar Muhammad P.W. 9 seeking their assistance in the matter of their entry into India and exit from there, the Exit-entry certificate Exh. P. 22/F to the effect that Ziafat Pinah has come to Pakistan on 7-5-1980 through Attari-Wagha Border and other circumstances of the case itself.
23. Coming to the alleged extra-judicial confession made by Khalid Hayat and Ziafat Pinch and their proclamations that they had killed Muhammad Sher, we find that the three concerned witnesses namely, Mukhtar Ahmed, Abdullah Khan and Muhammad Sarwar have been disbelieved by the trial Court. We have examined the reasons given by the trial Court in this behalf. We feel that the statements given by these witnesses are not in consonance with the probabilities and do not fit in with the circumstances of the case. The culprits were not identified at the spot by anyone. Our observation is that it was an unseen affair. In these circumstances, it does not appeal to reason that Khalid Hayat and Ziafat Pinah would have proclaimed before the aforesaid witnesses that they had murdered Muhammad Sher. It seems to us that their statements that Ziafat Pinah appellant and Khalid Hayat had openly declared that they had done away with Muhammad Sher, are attempts at perjury. Adverting to the recovery of gun Exh. P. 22 from Ziafat Pinah, we find that according to Forensic Science Laboratory Report Exh. PKK, crime empties Exhs. P.20/1 to 3 and the guns Exh. P. 22 and P. 24 allegedly recovered from Ziafat Pinah appellant and Ahmad Bakhsh acquitted accused, were received together in the office on 28-10-1980, whereas the prosecution case is that the crime empties were sent to the laboratory before the recovery of guns. Although the contradiction was pulpable enough to attract the attention, yet the prosecution did not care to clear the differences by summoning the fire-arm examiner. Strangely enough Ghulam Hussain P.W.
3 stated that he had deposited the two parcels containing empties and guns on 2-6-1980 and 29- 10-1980 respectively. The benefit of this glaring. Contradiction, therefore, has to be given to the defence. So far as the circumstantial evidence enumerated above is concerned, we are of the view that in the circumstances of the case that Ziafat Pinch was suspected as author of the crime, the possibility of the eye-witnesses having deposed against him on account of suspicion cannot be excluded, so, the benefit of enmity/motive cannot be given to the prosecution. It is also well-settled that circumstance of abscondence of an accused person gives reflection of guilty mind and is also consistent with innocence. It has judicially been recognized that different persons are differently constituted and some accused persons though innocent, deliberately abscond rather than face the ordeal of a criminal trial. It may be nested that Ziafat Pinan after having come back to Pakistan had surrendered himself before the Court by making application seeking pre-arrest bail. So there appears no justification to give the benefit of this circumstance to the prosecution. We feel that all the items of corroboration stressed by the learned Assistant Advocate-General and relied upon by learned trial Court against Ziafat Pinah appellant accepted at its face value, the same do not prove the commission of the murder of Muhammad Sher by Z'iafat Pinah and Khalid Hayat and do not corroborate the prosecution story of the main occurrence and the identity of Khalid Hayat and Ziafat Pinah. As a -consequence of our findings, on the evidence of alleged abetment, ocular testimony and the corroborative evidence/ circumstances relied upon by the prosecution and the trial Court, must entail rejection of prosecution case. Having examined the evidence and circumstances of the case, we have come to the conclusion that the order of acquittal cannot be said to have been based either on non-substantial or irrelevant considerations. On our independent examination, we are satisfied that the evidence and circumstances in the case are neither in quality nor in quantity, adequate to support conviction of Ziafat Pinah and Mumtaz Ali. We also hold that the doubts which induced the learned trial Judge to acquit the co-accused were substantial one. As for the acquittal of Khalid Hayat, Ahmad Khan, Muratab Ali and Ghulam Ali, we find ourselves in agreement with the trial Court. We are also clear in our mind that it is not a case in which the findings of "guilty" of Ziafat Pinah and Mumtaz Ali could have been recorded with confidence.
24. The upshot of the above discussion is that we hold that there are no satisfactory basis to uphold the conviction of Ziafat Pinah and Mumtaz Ali appellants, while giving them the benefit of doubt, we order that they shall be released forthwith if not required to be detained in any other case. Resultantly the appeal against acquittal as well as criminal revision are dismissed.