' MUHAMMAD MUNIR KHAN, J.-- These five Criminal Appeals No, 69 of 1988 against conviction, Criminal (State) Appeal No,65 of 1988 for enhancement of sentences, Criminal (State) Appeal No, 66 of 1988 against acquittal, Criminal (Private) Appeal No, 67 of 1988 for enhancement of sentences and Criminal (Private) Appeal No, 68 of 1988 against acquittal arise from the judgment of learned Judge, Punjab Special Court for Speedy Trials No,VI Bahawalpur, whereby he on 23-11-1988, while acquitting Abdul Shakoor and Ghulam Qadir, convicted Mukhtar Ahmad (25), Haji Khan Muhammad (32) Fayyaz Khan (20) and Muhammad Alam Khan (28) under sections 302 and 427, P.P.C. And sentenced them as under:-
(1) Under section 302 P.P.C. Mukhtar Ahmad and Muhammad Alam Khan for the murder of Akhtar Shah.to imprisonment for life and a fine of Rs.20,000 in default thereof 4 years' R.I. each.
(2) Under section 302 P.P.C. Haji Khan Muhammad and Fayyaz Khan appellants for the murder of Mazhar Shahto imprisonment for life and a fine of Rs.20,000 in default thereof 4 years' R.I. each.
It was directed that the fine if recovered, half of the same be paid to heirs of both the deceased.
(3) Under section 427, P.P.C. Mukhtar Ahmad appellant for committing mischief by firing in the tyre of the bus.to two years' R.I. and a fine of Rs.1,000, in default thereof 3 months' R.I.' with the direction that the fine if recovered be paid to the owner of the bus as compensation.
' We propose to dispose of the five appeals through single judgment.
2. The occurrence took place on 29-6-1988 at 10-00 a.m. At bridge Phatianwala, Basti Noor Shah of village Chhon, Tehsil Hasilpur at a distance of 10 k.m. From Police Station Hasilpur. F.I.R. Exh.P.P. Was lodged by Rahim Shah P.W.8, cousin of the deceased on the same day at 10-45 a.m. And was recorded by Abid Akhtar, S.1. P.W.12.Haji Khan Muhammad, Mukhtar Ahmad appellants and Ghulam Qadir, acquitted accused are real brothers. Muhammad Alam Khan is husband of their sister.
Brother of Abdul Shakoor, acquitted accused is husband of their sister. Fayyaz Khan appellant is their nephew. The two deceased were real brothers.
3. The motive as alleged by the prosecution was that before the present occurrence, Jahan Khan, brother of Mukhtar Ahmad, Haji Khan Muhammad appellants and Ghulam Qadir, acquitted accused was killed by Ahmad Shah, Jalal Shah, brothers of the two deceased and Altaf Shah son of Rahim Shah complainant. To take the revenge of that murder, the two deceased have allegedly been killed by the appellants and the acquitted accused.
4. As for the main occurrence, it has been stated that on the fateful day, both parties had to ,appear before Magistrate 1st Class, Hasilpur, where they were being proceeded against under section 107/151, Cr.P.C. The Court was on tour. On return both parties travelled by the same bus as they previously did. When the bus reached near bridge Phatianwala, Haji Khan Muhammad, Fayyaz Khan, Muhammad Aslam and Mukhtar appellants got down from the bus. Ghulam Qadir and Abdul Shakoor acquitted accused dragged Mazhar Shah and Akhtar Shah, the two deceased, out of the bus. The four appellants took out pistols from the Dubs, of their Chadars. Mukhtar Ahmad fired and the tyre of the bus was burst. Mukhtar Ahmad and Muhammad Alam Khan fired at Akhtar Shah killing ,him. Haji Khan Muhammad and Fayyaz Khan fired shots hitting Mazhar Shah who fell down.
The appellants and the co-accused then ran away taking weapons with them. Mazhar Shah and Akhtar Shah succumbed to the injuries on the spot. The occurrence was seen by Rahim Shah P.W.8, Peer Shah P.W.9, Anwar Shah P.W.10 and Akbar Afi P.W.6, Conductor of the bus.
5. On 29-6-1988, Dr. Rashid Masood Ahmad P.W.1 conducted postmortem examination on the dead body of Mazhar Shah and found following injuries on his person:-
(1) "A multiple lacerated wound 4" number, with blackened and burnt edges. The margin of the wound were inverted. Three of the wounds measured 1 x 1 c.m. x going deep. The fourth one measured 3 x 3 c.m. x going deep. The said wounds were on the back of chest 5 c.m. To the right of midline at the level of 8th rib. These were the wounds of entry.
(2) (1)
A lacerated wound of entry circular in shape with punched in blackened and burnt margins measuring 4 x 4 c.m. x going deep on the left side of anterior aspect of the chest on the mid clavicle line of the left nipple. A lacerated wound of entry, oval shaped with punched in blackened and burnt margins measuring 3 x 2 c.m. x going deep on the left cheek 2 c.m. Anterior to the left ear.
(4) A large lacerated wound almost oblong in shape situated on upper 15 c.m. Of the ventral aspect of the right forearm. It was 15 x 7.5 c.m. x muscle deep. The medial margins of the wound alongwith medial part of its led was blackened and burnt, while on its lateral part there was burning and blackening. The skin had totally been lost in the area of the wound and only a few tags were present on its lower margins."
' On dissection he found 16 pellets. Stomach contained semi-digested ' In his opinion, the cause of death was injuries to vital organs like heart and lungs and hemorrhage and shock. The injuries were caused by fire-arm. Injuries Nos. 1 to 3 were sufficient to cause death individually and collectively in the ordinary course of events. On the same day, he performed post- mortem examination on the dead body of Akhtar Shah and found following injuries:-
(1) "A lacerated circular wound of entry with punched in, blackened and burnt margins measuring 3 x 3 c.m. x going deep on the back of chest, about 6 c.m. To the left of mid-line at the level of inferior angle of scapula.
(2) A wound of entry having multiple lacerated wound (5 in number) with punched in, blackened and burnt margins measuring between 1 x 1-c m. x going deep, to 2 x 2 c.m. x going deep on the back of chest, 4 c.m. Above lateral to injury No,1."
' In his opinion, the cause of death was injuries on the vital organs like heart, lungs and also shock and haemorrhage. The injuries were caused by firearm and were individually and collectively sufficient to cause death in the ordinary course of nature.
' The doctor also examined Akbar Ali P.W.6. He found following injuries on his person:-
(1) "A lacerated rounded wound measuring 1 x 1 c.m. x going deep with punched in, blackened margins situated on the medial aspect of the upper part of the middle 3rd of right leg i,e, 7" from right knee joint. This was a wound of entry.
(2) A lacerated wound nearly rounded measuring about 3/4 x 3/4 c.m. x going deep with punched out margins on the posterior aspect of the upper part of the middle 3rd of the right lower leg about 1 c.m. Below the line of injury No,1. This was a wound of exit."
' The injuries were caused by sharp-edged weapon and were simple in nature.
7. On 29-6-1988, Abid Akhtar S.I. P.W.12 lifted 9 crime empties Exh.P.11/1 to 9 from the spot and took them into possession vide memo. Exh.P.T. Attested by Peer Shah P.W.9 and Iqbal Shah (not produced). On the same day he took into possession punctured tyre Exh.P.10 of the bus vide memo.
Exh.P.8 attested by the same witnesses. The appellants were arrested on 30-6-1988. On 2-7-1988 Mukhtar Ahmad appellant led to the recovery of carbine Exh.P.15 from his Dera which was taken into possession vide memo. Exh.P.K. Attested by Allah Yar P.W.11 and Syed Yousaf Shah (not produced). On 5-7-1988 Fayyaz Khan got recovered carbine Exh.P.12 from his house which was taken into possession vide memo. Exh.P.U. Attested by Peer Shah P.W.9. On the same day Muhammad Alam Khan appellant got recovered pistol Exh.P.13 from earthen bin lying in the compound of his house which was taken into possession vide memo. Exh.P.V. Attested by the same witnesses. On 13-7-1988 Haji Khan Muhammad got recovered pistol Exh.P.14 from cluster of a date tree which was taken into possession vide memo. Exh.P.W. Attested by Peer Bakhsh P.W.9 and Buland Shah (not produced). The aforesaid memoranda were prepared by Ghulam Mustafa, Inspector, P.W.13. Forensic Science Laboratory Report Exh.P.BB. Revealed that the empties recovered from the spot had been fired from the weapons recovered from the appellants. The recovery has, however, been disbelieved by the trial Court in para. 11 of the judgment.
8. To prove its case, prosecution examined 13 witnesses. Akbar Bus-Conductor, P.W.6, Rahim Shah P.W.8, Peer Shah P.W.9 and Anwar Shah P.W.10 have given the ocular account of the occurrence.
Akbar Ali P.W.6 could not name and identify the appellants and the co-accused. He was declared hostile and cross-examined by the learned Prosecutor. Rahim Shah, Peer Shah and Anwar Shah P.Ws. Claim to have seen the two acquitted accused dragging out the two deceased out of the bus and the appellants causing injuries to the two deceased with their fire-arms and Mukhtar Ahmad appellant puncturing tyre of the bus with shot fired from his pistol. Rahim Shah has also deposed about the alleged motive. Peer Shah P.W.9, Allah Yar P.W.11, Abid Akhtar, S.I. P.W.12 and Ghulam Mustafa, Inspector, P.W.13 have supported the recovery of crime empties from the spot and pistols and carbine from the appellants. Dr. Rashid Masood Ahmad P.W.1 has proved post-mortem examination reports of the two deceased and medico-legal report of Akbar Ali P.W.6. 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. In defence Abdul Majeed D.W.1 and Ali Muhammad D.W.2 were produced to prove the alibi of Haji Khan Muhammad appellant and Ghulam Qadir, acquitted accused. The learned trial Court examined Ikram Ullah Niazi, D.S.P., as C.W.1. He stated that he had found Haji Khan Muhammad appellant and Ghulam Qadir, acquitted accused as innocent.
10. Giving benefit of doubt to Abdul Shakoor and Ghulam Qadir and believing ocular evidence and disbelieving the plea of alibi raised by Haji Khan Muhammad, the learned trial Court acquitted the co-accused and convicted and sentenced the appellants as stated above.
11. Learned counsel for the appellants contended that Rahim Shah, Peer Shah and Anwar Shah are interested witnesses; that the only independent witness namely Akbar Ali P.W.6, has not supported the prosecution case; that the presence of Rahim Shah, Peer Shah and Anwar Shah on the spot is highly doubtful; that the story of the prosecution that Ghulam Qadir and Abdul Shakoor had dragged the two deceased out of the bus is highly improbable; that the eyewitnesses have not been believed to the extent of Ghulam Qadir and Abdul Shakoor; Akbar Ali P.W.6 has stated that the culprits had muffled their faces at the time of occurrence and that the alibi of Haji Khan Muhammad has wrongly been rejected by the trial Court. The learned Assistant Advocate-General assisted by the learned counsel for the complainant argued that the prosecution has proved its case against the appellants and the acquitted accused beyond reasonable doubts; that the learned trial Court has wrongly acquitted Abdul Shakoor and Ghulam Qadir co-accused; that the reasons given by the trial Court for disbelieving the incriminating recoveries from the appellants are not sound and that since cases under sections 107/151, Cr.P.C. Were fixed for hearing before the Magistrate, Hasilpur and normally the accused and the P.Ws. Would go and return together, therefore, the presence of the eye-witnesses in the bus wherefrom the two deceased were dragged out and killed, was very much natural. The learned A.A.-G. Was also of the view that there were no mitigating circumstances in favour of the appellants for lesser penalty.
12. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, statements made by the appellants and the acquitted accused under section 342, Cr.P.C., defence evidence, statement made by Ikram Ullah Niazi, D.S.P., C.W.1 and the circumstances appearing in the case, carefully.
From the aforesaid state of affairs, it is very much clear that the fate of the case almost depends upon believing/disbelieving the ocular evidence furnished by the 4 eyewitnesses namely Akbar Ali P.W.6, Rahim Shah P.W.8, Peer Shah P.W.9 and Anwar Shah P.W.10. Peer Shah and Rahim Shah P.Ws.
Are first cousin of the deceased. Anwar Shah P.W.10 is brother of the deceased. Akbar Ali P.W.6 is not related to the deceased. He being Conductor of the bus, in which the parties were travelling, was/is natural witness of the occurrence. By the fact of fire-arm injury on his person, his presence at the eventful time is very much established. While supporting the prosecution story of the occurrence as told by Rahim Shah P.W.8, the witness stated:- "I do not know any accused by name or face. I cannot identify if any of the accused present in Court had fired at the two deceased at the time of occurrence."
' In cross-examination by the District Attorney, he stated:- "I cannot identify if Mukhtar, Fayyaz Hussain, Alam Khan and Khan Muhammad accused, who are present in Court were the persons who had pistols and who had fired at the two deceased."
' In cross-examination by the learned defence counsel he stated:- "The accused had muffled faces and for this reason I could not identify them."
The remaining 3 eye-witnesses namely Rahim Shah P.W.8, Peer Shah P.W.9 and Anwar Shah P.W.10 are not only closely related to the deceased but are also inimical and partisan witnesses. Altaf Shah accused in the murder case of Jahan Khan, brother of Mukhtar Ahmad appellant, is son of Rahim Shah P.W.8 and nephew of Peer Shah P.W.9 and Anwar Shah P.W.10. The other accused of that case namely Muhammad All Shah, Ahmad Shah and Jalal Shah are also related to the eye- witnesses. Before the present occurrence, both parties were arrested under section 107/151, Cr.P.C.
On the side of the appellants Mukhtar Ahmad, Alam Khan, Fayyaz Khan appellants, Ghulam Qadir and Abdul Shakoor acquitted accused and on the side of the complainant party, Anwar Shah P.W.10, Akhtar Shah and Mazhar Shah, deceased, Riaz Shah and Zahoor Shah, were arrested and produced before the Court. They were released on bail on 29-6-1988, i,e, the date of occurrence, was the date fixed for hearing of the case under section 107/151, Cr.P.C. Before the learned Assistant Commissioner, Hasilpur. In this view of the matter, the 3 eye-witnesses can safely be termed as interested witnesses. There are reasons to doubt that they were present on the spot and had seen the occurrence. They are not injured witnesses. So, there is no circumstantial guarantee or judicial certainty of their presence on the spot at the time of occurrence. They are closely related to the accused who allegedly had killed Jahan Khan, brother of Mukhtar Ahmad, Haji Khan Muhammad appellants and Ghulam Qadir, acquitted accused. Anwar Shah is the real brother of the two deceased. Had they been present in the bus, they might not have been allowed to live to depose against the appellants. According to the prosecution version, Rahim Shah and Peer Shah had gone to the Court of A.C., Hasilpur alon with the two deceased to execute surety bonds for deceased and other accused in case under section 107/151, Cr.P.C. Both of them were not party in the case under section 107/151, Cr.P.C. The reasons for their going to Hasilpur alongwith the deceased stands belied by documents Exh.P.L. And P.M., which show that surety bonds for appearance of accused persons in case under section 107/151, Cr.P.C. Had already been filed on 25-5-1988. The fact that the two deceased and other accused of case under section 107/151, Cr.P.C. Were on bail also falsifies the reason given by these two witnesses for accompanying the two deceased to Hasilpur. Since Anwar Shah along with the two deceased and others, was accused in case under section 107/151, Cr.P.C.
Therefore, they, normally would go and return together. However, his statement that he had seen the occurrence while sitting in the bus from beginning to end runs counter to the natural probabilities. He being real brother of the deceased, the appellants had equal motive against him.
So instead of watching the occurrence minutely, he would have hidden himself for life. Now we proceed to consider the further question as to whether they can be relied upon for convicting the appellants and the co-accused without corroboration. We have already found them interested and partisan witnesses, so the rule of prudence does require independent corroboration of their statements qua each appellant. The incriminating recoveries from the appellants have been disbelieved by the trial COurt for cogent reasons. The weapons allegedly recovered from them and crime empties lifted from the spot were despatched together to the Forensic Science Laboratory, therefore, the trial Court has rightly excluded this piece of evidence from consideration. There is no other corroboration of their statements in qua the appellants.
' The upshot of the above discussion is that there is no satisfactory basis to uphold the conviction of the appellants. So, giving them the benefit of doubt, they are acquitted of the charges. They shall be released forthwith, if not required to be detained in any other case. The criminal appeals filed by the State for the enhancement of sentence of the appellants and against acquittal of the co- accused automatically fail. The appeal filed by Rahim Shah complainant for enhancement of sentence of the appellants and against acquittal of the co-accused cannot be entertained as under the relevant law, the Provincial Government alone and not the private complainant can present appeal against acquittal as well as for the enhancement of sentence.