' SARDAR MUHAMMAD DOGAR, J.--Qurban (47), Sohail Siddiq alias Kukoo (22), Muhammad Khan (57), Abdul Qadeer alias Chand (20), Amjad Ali (24) and Tariq Mahamud (41) were tried by the Additional Sessions Judge, Sialkot under section 148/302/307/149, P.P.C., for having murdered Muhammad Iqbal and for having launched murderous assault on P.Ws. Muhammad Sharif, Mst.
Nasreen, Mst. Sabiran and Mst. Sardaran, on 12-7-1983 at Deegarwela in street in front of the house of Muhammad Khan near vacant plot of Muhammad Hussain in village Bhagwal Awana at a distance of 6 miles from Police Station Sadar, Sialkot. Learned trial Judge side judgment, dated 21- 3-1985 convicted all of them under section 148, P.P.C. And sentenced each of them to undergo R.I.
For one year. Qurban, Sohail Siddiq and Muhammad Khan were convicted under section 302/149, P.P.C. And sentenced to death plus to pay a fine of Rs,5,000 each in default whereof to undergo R.I.
For 3 years each. The fine on realization, has been directed to be paid as compensation to the heirs of the deceased. Sohail Siddiq, Abdul Qadeer, Amjad Ali and Tariq Mahmud were convicted under section 307/149, P.P.C. And sentenced to undergo R.I. For three years each plus to pay a fine of Rs,1,000 each, in default whereof to suffer R.I. For one year each.
2. The convicts have filed appeals. Learned Sessions Judge has made a reference for confirmation of death sentence. The complainant has filed criminal revision challenging acquittal of Abdul Qadeer alias Chand, Amjad Ali and Tariq Mahmud under section 302/149, P.P.C. Prayer has also been made for enhancement of their sentences under sections 307/149 and 148, P.P.C. As all the matters arise from the same judgment, they are being disposed of together.
3. Statement Exh.P.B. Of Muhammad Ramzan P.W.6 was recorded by Arif Hussain A.S.I. P.W.16 on 12- 7-1983 at 9-30 p.m. At Allama Iqbal Memorial Hospital, Sialkot. Formal F.I.R. Exh.P.B./1 was registered on the same day by Liaquat Ali. M.H.C. P.W.3 at 10-00 p.m. On receipt of statement Exh.P.B.
According to F.I.R. The complainant along with his brother Muhammad Iqbal deceased and Muhammad Sharif P.W.9 was going from their home to their Haveli. Muhammad Iqbal and Muhammad Sharif P.W. Were going ahead. When they reached near the vacant plot of Muhammad Hussain, appellants Muhammad Khan, Qurban and Amjad Ali armed with guns, Sohail Siddiq, Abdul Qadeer alias Chand armed with carbines and Tariq Mahmud armed with a revolver appeared from street, in front of the house of Muhammad Khan. Muhammad Khan appellant raised a Lalkara that none of them shall be spared, whereupon Qurban appellant fired a shot which struck Muhammad Iqbal on the abdomen. The shot fired by Sohail Siddiq appellant struck Muhammad Iqbal on the left side of chest and left elbow. The shot fired by Muhammad Khan appellant hit Muhammad lqbal on the right thigh. He fell down. Muhammad Sharif suffered pellet injuries on the chest, right side of abdomen and left shoulder, from the shots fired by Sohail Siddiq and Amjad Ali. Mst. Sardaran given up P.W. And Mst. Nasreen P.W.8 came forward to save Muhammad Iqbal (deceased) whereupon Tariq Mahmud appellant fired from his revolver and Chand (Abdul Qadeer) fired from his carbine, hitting Mst. Sardaran on face and chest and Mst.
Nasreen on left calf. Given up P.W. Mst. Sabiran also suffered injuries as a result of the firing. The complainant took shelter behind a wall and witnessed the whole occurrence from there, while making noise. Abdul Ghani P.W.10 and given up P.Ws. Bashir and Abdur Razzaq were attracted to the spot, hearing noise of the complainant and the shot fired by the accused. The accused ran away on seeing them, towards east.
4. Muhammad Iqbal, Muhammad Sharif and Mst. Sardaran were removed to the hospital by the complainant in a Suzuki van. Muhammad Iqbal, however, died on way. He placed the dead body of Muhammad Iqbal there and obtained medico-legal results of the injured P.Ws. Mst. Nasreen was not taken by him to the hospital as she had given birth to a girl a few days prior to the occurrence.
5. Motive for the occurrence was that a case under section 307/326, P.P.C. Was registered against Iqbal etc. (three persons) in August, 1982 on the statement of Muhammad Siddiq father of Sohail Siddiq but Muhammad Iqbal etc. Were acquitted in that case. Apart from that the parties were pitched against each other in criminal and civil litigation.
6. Arif Hussain, A.S.I. After recording statement Exh.P.B. Of Muhammad Ramzan, prepared injury statement Exh.P.W. And inquest report Exh.P.X. On the dead body of Muhammad Iqbal and entrusted the same for autopsy to Liaquat Ali and Ali Ahmad Constables. He recorded the statements of Muhammad Sharif and Mst. Sabiran injured P.Ws. After obtaining opinion from the doctor about their fitness to make statements.
' He inspected the spot on 13-7-1983 and collected blood-stained earth from there. Empty cartridges (of .12 bore) Exh.P.7/1-8 and empty cartridges (of revolver) Exh.P.8/1-2 lying on the spot were also taken into possession by him vide memo. Exh.P.R. Both kinds of empties were sealed by him into two separate parcels.
' On the same day he recorded statements of Mst. Nasreen P.W.8 and given up P.W. Mst. Sardaran.
The investigation thereafter was taken over by Rana Muhammad Sarwar, S.H.O. P.W.15.
7. Muhammad Khan, Qurban, Sohail Siddiq, Abdul Qadeer alias Chand and Amjad Ali were arrested by Rana Muhammad Sarwar P.W.15 on 9-8-1983. Amjad Ali led to the recovery of gun P.6 from his house on 15-8-1983, which was taken into possession vide memo. Exh.P.Q. On the same day Sohail Siddiq appellant led to the recovery of carbine P.3 from underneath a Bairi tree in the courtyard of his house, which was taken into possession vide memo. Exh.P.G. Abdul Qadeer appellant, on the same day got recovered carbine P.4 from an iron-box lying in his house, which was taken into possession vide memo. Exh.P.H. Qurban appellant led to the recovery of gun P.11 from his house on 16-8-1983, which was taken into possession vide memo. Exh.P.V. On the same day Muhammad Khan got recovered gun P.9 from his house, which was taken into possession vide memo. Exh.P.S.
8. Tariq Mahmud appellant who was serving in the Pakistan Army, was arrested by Rana Muhammad Sarwar P.W.15 on 11-12-1983 from his Unit 38 Signal Company with the permission of the Company Commander. Licensed revolver P.10 produced by him at the time of his arrest was taken into possession vide memo. Exh.P.T.
' After completion of necessary investigation, the challan was submitted to Court.
9. Statements of seventeen prosecution witnesses were recorded at the trial. Liaquat Ali Constable who had appeared as P.W.1, was re-examined as a Court-witness also. Statement of Sh. Abdur Rashid Fire-arm Expert was also recorded as C.W.2. One Manzur Hussain was examined as D.W.1 at the instance of Tariq Mahmud appellant.
10. Dr. Syed Sajjad Ali, who had medically examined Mst. Sardaran, Muhammad Sharif and Mst.
Sabiran P.Ws. On 12-7-1983, appeared as P.W.4. He had noted six injuries on the person of Mst.
Sardaran. Injury No,1 was 'four small punctured wounds' of 1/8" diameter on the left side of forehead.
Injury No,2 was `four small punctured wounds' on right cheek. Injury No,3 was 'one small punctured wound' on the left cheek. Injury No,4 was 'two small punctured wounds' on the left chin. Injury No,5 was 'three small punctured wounds' on the left side of neck and injury No,6 was`three small punctured wounds' on the left side of neck and injury No,6 was 'three small punctured wounds' on the right upper arm. Injuries Nos. 2 to 6 were of 1/10" diameter each. The injuries were opined to have been caused by fire-arms' and were declared simple after X-Ray examination.
' Muhammad Sharif P.W. Was found to have suffered ten injuries. Injuries Nos. 1 and 2 were abrasions on the right cheek and left pinna. Injury No,3 was a `small punctured wound' on the right side of chest. Injury No, 4 was a 'small punctured wound' on the right side of chest. Injury No,5 was a 'small punctured wound' on the left side of chest. Injury No,6 was a 'small punctured wound' on the abdomen. Injury No,7 was a 'small punctured wound' on the left side of abdomen. Injury No, 8 was 'six small punctured wounds' on the right upper arm and shoulder. Injury No, 9 was 'four small punctured wounds' on the left upper arm, and injury No, 10 was 'two small punctured wounds' on the left forearm. Injuries Nos. 3 to 10 were of 1/10" diameter each. Injuries Nos. 1 and 2 were opined to have been caused by a blunt weapon while the remaining were opined to have been caused by a fire-arm, and were declared simple after X-Ray examination.
' The only injury found on the person of Mst. Sabiran was a circular wound 1/8" diameter, on the right thigh. The injury was opined to have been caused by a fire-arm, and was declared simple.
11. Dr. Muhammad Yunas, who had performed autopsy on the body of Muhammad Iqbal deceased on 13-7-1983 appeared as P.W.7. He had noted ten injuries on the body of the deceased. Injury No,1 was a punctured wound on the left side of chest, below the left nipple. Injury No, 2 was a punctured wound on the abdomen, above umbilicus. Injury No,3 was also on the abdomen, on left side of umbilicus. Injury No, 4 was on the left ileac fossa. Injury No,5 was on the right thigh. Injury No, 6 was on the left upper arm. All these injuries had inverted margins and were of 1/4" diameter each. There was blackening on these wounds at the seat of entry.
' Injury No,7 was a punctured wound on the back of left side of chest. Injury No, 8 was on the back of left side of abdomen. Injury No, 9 was on the back of right thigh upper part, while injury No, 10 was on the back of left upper arm. The margins of these four injuries were everted and they were of 1/3" diameter each.
' During dissection, 2 bullets were removed from within the body. They were sealed in a bottle and sent to the police. Injuries Nos. 1 to 4 were declared grievous and dangerous to life, while injuries Nos. 5 and 6 were opined to be simple. Injuries Nos. 7 to 10 were opined to be exit wounds of injuries Nos. 1, 2, 5 and 6. The cause of death was opined to be due to shock and haemorrhage resulting from injuries Nos. 1 to 4, which were sufficient to cause death individually and collectively, in the ordinary course of nature.
' The same doctor had medically examined Mst. Nasreen Bibi P.W.8 on 13-7-1983 at 8-30 a.m. And had noted a punctured wound 1/4" x 1/4" depth not probed, circular in shape with inverted margins on the inner aspect of the left leg just below the left knee. The opinion about the nature of injury and the weapon used, was kept under observation. After X-Ray examination it was opined on 3-8- 1983 that the injury was simple and had been caused by a fire-arm.
12. During cross-examination, he expressed inability to say definitely whether the deceased had received bullet injuries or pellet injuries. He also expressed inability to say as to which wound, the extracted bullets, related. He however, stated that pellets were distinguishable from bullets. In answer to another question, he stated that bullets recovered from body of the deceased, were not intact, but were mutilated due to deflection with the ones. While expressing inability to say as to what kind of fire-arm was used, he stated that the deceased was fired at from a very close range, i,e,, 1 to 6 feet. According to him, no foreign matter was found underneath the wound on the person of Mst. Nasreen.
13. Muhammad Ramzan who had lodged the F.I.R. Appeared as P.W.6. He repeated the facts given by him in the F.I.R. He however, made improvement by specifically stating that Mst. Sardaran was hit on the face, chest and shoulders, as a result of the shots fired by Abdul Qadeer alias Chand when she had fallen on the deceased in order to save his life, and that Mst. Nasreen P.W. Had suffered injury on the left calf, as a result of the shot fired by Tariq Mahmud from his revolver. He also specifically assigned the injury of Mst. Sabiran to Tariq Mahmud appellant from a shot fired by him with the revolver. He also stated Of having witnessed the recovery of carbine P.3 at the instance of Sohail Siddiq, carbine P.4 at the instance of Abdul Qadeer alias Chand, and of having attested the recovery memos. Exh.P.G. And P.H. Respectively of the said weapons.
' During cross-examination, he stated that he was under-Matric and was a retired Subedar of Pak.
Army. He added that he had gone to the house of the deceased on the day of occurrence at 4-00 p.m. And had accompanied him to the place of occurrence from his (deceased's) house. He gave the width of the lane where the occurrence had taken place, to be 6 feet. According to him, Muhammad Iqbal deceased was fired at from a distance of 8 Karams. He stated that he was at a distance of one Karam from Muhammad Sharif P.W. And that he had also been fired at, but he escaped unhurt. He admitted that the place of occurrence was a thoroughfare and was thickly populated. He added that almost all the male members of the village were attracted to the fire reports. He was not found to have stated that Mst. Sardaran had fallen on Muhammad Iqbal deceased to save him, in statement Exh.P.B., on the basis of which F.I.R. Was registered. He stated that Mst. Sardaran P.W. Had arrived at the spot after the deceased had suffered three fire-shots and fallen on the ground and that she was followed by Mst. Nasreen (P.W.8). He admitted that Mst.
Nasreen was daughter-in-law of the deceased. He stated that other members of the family of Abdul Qadeer alias Chand were present when the carbine was recovered from his house. He conceded that his cousin Nur Hussain was employed in the Police as an A.S.I. According to him there were three Lambardars and two B.D. Members in the village.
' He denied the suggestion that there was exchange of abuses between the womenfolk of the complainant party and Sohail Siddiq appellant on the day of occurrence and that Muhammad Iqbal deceased armed with a gun and Muhammad Sharif P.W. Armed with a carbine had indiscriminately fired at Sohail Siddiq when he was passing by the place of occurrence, suspecting that he was staring at their ladies. He also denied the suggestion that Sohail Siddiq took refuge in the house of his maternal-uncle Mazhar Hussain who had a licensed gun with him and that as a result of the shots fired by said Mazhar Hussain, Muhammad Iqbal (deceased) died and Muhammad Sharif P.W. Suffered injuries. He denied the suggestion that he had not witnessed the occurrence.
14. Mst. Nasreen P.W.8 and Muhammad Sharif P.W.9 corroborated the statement made by Muhammad Ramzan, in so far as it pertains to the actual occurrence.
' Mst. Nasreen during cross-examination stated that the deceased was fired at from a distance of 15/16 yards, by Qurban (appellant) and from a distance of 10/15 yards by Muhammad Khan (appellant). In answer to another question she stated that all the accused persons had fired while standing at the same place. According to her Mst. Sardaran was also fired at from a distance of 8/10 yards. Tariq Mahmud, according to her, had fired at her from a distance of 14/15 yards. Her claim that she was present in front of her house in the lane when the occurrence took place, was not found to have been stated by her in her statement Exh.DA. Before the police. Her statement that bullet had remained in her calf and was extracted by the doctor during treatment, was also not corroborated by the doctor who had examined her. The suggestion put to her about Sohail Siddiq having been attacked by Muhammad Iqbal deceased and Muhammad Sharif P.W. And of his maternal-uncle Mazhar Hussain having returned the firing with gun, as a result of which Muhammad Iqbal (deceased) died and others suffered injuries, was denied by her.
' Muhammad Sharif P.W. During cross-examination admitted that Sohail Siddiq and Amjad All accused had appeared as witnesses against Muhammad Hanif (his cousin) and others in case under section 307/34, P.P.C. He also admitted that Mazhar Hussain maternal-uncle of Sohail Siddiq had also appeared as a P.W. In that case. He gave out that Muhammad Iqbal deceased was also an accused in that case. He conceded that Muhammad Ishaq, his nephew and son-in- law, had got a case registered under section 307/326, P.P.C. Etc. Against Amjad, Muhammad Khan and Sohail Siddiq and that the case was still pending. He admitted that the deceased was a witness in that case. The suggestion that he along with the deceased had fired shots at Sohail Siddiq and that the maternal-uncle of Sohail Siddiq had in turn opened fire on them as a result of which Muhammad Iqbal had died and the others had suffered injuries, was denied by him also.
15. Abdul Ghani P.W.10 stated that he had gone to the spot hearing the reports of gunshots and hue and cry and had found the deceased, Mst. Nasreen, Mst. Sardaran and Muhammad Sharif P.Ws.
Lying there in injured condition. He stated that he had reached there after the firing and had seen the accused retreating from the street with arms in their hands. He stated about having witnessed the recovery of gun P.6 at the instance of Amjad appellant.
' During cross-examination he admitted that the deceased was his first cousin. He admitted that his wife was the real sister of the wife of Bashir P.W.12.
16. Muhammad Bashir P.W.12 deposed about having witnessed therecovery of gun P.9 at the instance of Muhammad Khan appellant.
17. Rana Muhammad Sarwar S.I. Who appeared as P.W.15, deposed about the arrest of the accused effected by him and the recoveries effected at their instance during custody with him.
' Arif Hussain, A.S.I. Who appeared as P.W.16 deposed about the registration of case, of taking into possession empties from the spot and of his having sealed them into two separate parcels.
' Rana Muhammad Sarwar, Sub-Inspector during cross-examination stated that revolver P.10 was, 6-chambered and that it contained an ejector and all the empties or less, could be ejected simultaneously.
18. Liaquat Ali, Constable P.W.1, Liaquat Ali Moharrir Head Constable P.W.3 and Sh. Abdur Rashid C.W.2 were examined about the transmission, despatch and receipt of the parcels of empties and the fire-arms, from the Malkhana of the police station to the office of the Director, Forensic Science Laboratory, Lahore, (the relevant portions of their testimonies will appear in the later part of the judgment, at the stage of appreciation of evidence).
19. Manzur Hussain, resident of village Malka, who appeared as D.W. Stated of having seen the deceased and Muhammad Sharif P.W. Firing at Sohail Siddiq on the day of occurrence and Mazhar Hussain firing at them in return. The firing according to him, had continued for about half an hour, During cross-examination he admitted that he had not attended the funeral ceremony of Muhammad Iqbal (deceased) as the complainant party was determined to implicate him in the instant case. He also admitted that Muhammad Ramzan complainant was married to his sister Mst. Khurshid Begum but had divorced her and that she was still alive. He denied the suggestion that he was making a false statement.
20. Two reports from the office of the Director, Forensic Science Laboratory, Lahore were tendered in evidence, as Exh.P.FF and Exh.P.DD. The reports are the opinion about the weapons of offence, which were given by Muhammad Ashraf Malik, who had appeared as C.W.2. Positive reports from the office of the Chemical Examiner, and the Serologist were also tendered in evidence as Exhs.P.HH.
And P.GG., respectively.
21. All the appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole. All of them denied the alleged recoveries. They, however, admitted that criminal and civil litigation was pending between them and the complainant party.
' Sohail Siddiq appellant while answering to the question 'why this case against you?' stated that a fight in fact had taken place between the deceased on one side and Qurban and Tariq Mahmud accused on the other side and that he was involved falsely in the case, while the other accused took up the position, answering to the same question, that Sohail Siddiq was attacked by the deceased and Muhammad Sharif P.W. When he was passing by his house and that his maternal- uncle Mazhar Hussain had fired at them when he had taken refuge in his house and the deceased died as a result of the said firing and the P.Ws. Had also suffered the injuries.
22. Learned counsel for the appellants after taking us through the evidence, criticised the impugned judgment and contended that the eye-witnesses admitted that the complainant party was pitched against the appellants in criminal and civil litigation and that there was a long- standing enmity and so the conviction cannot be maintained on the statements of such a group of inimical witnesses. Learned counsel argued that even if the presence of the injured P.Ws. At the spot is admitted, it cannot be assumed that they had made true statements and that there was sufficient material to hold that they might have made false statements.
' Learned counsel admitted that conviction cannot be recorded on the statements of such inimical witnesses without corroboration, which was not coming forth in this case as the opinion of the Fire- arm Expert according to which the weapons recovered from the appellants wedded with the crime empties taken into possession from the spot, cannot be relied upon for the reason that the P.Ws.
Who were entrusted with keeping of the parcels of empties and the guns in safe custody and of their transmission to the office of the Forensic Science Laboratory have made so much incongruent statements that it cannot be assumed that the parcels were kept safely, intact and were delivered intact without being tampered with, to the office of the Forensic Science Laboratory, apart from the fact that the evidence of recoveries was also not worth acting upon. Learned counsel vehemently argued that the value of the ocular account furnished by the interested and inimical witnesses further deminishes on account of the fact that it was directly in contradiction with the medical evidence. In support of the argument that conviction cannot be maintained on the statements of inimical witnesses even if their presence is admitted at the spot, being injured, learned counsel placed reliance on Elahi Bakhsh v. The State 1982 SCMR 57.
' Lastly learned counsel submitted that in spite of the fact that the occurrence had taken place in a thickly populated area on Eid day and many persons had come there, even according to the complainant, no independent witness either was named in the F.I.R. Nor produced at the trial.
23. Learned counsel for the State/complainant defended the judgment of the trial Court and submitted that the occurrence had taken place during daylight and there was no question of mistaken identity, that the F.I.R. Was lodged without any delay, assigning specific roles to the appellants and that the statements of the eye-witnesses stand fully corroborated by the medical evidence and the reports of the Fire-arm Expert.
' Learned counsel submitted that non-appearance of the independent witnesses in the case was due to the apathy of the people to become a witness in the cases where the parties are ferociously pitched against each other.
24. Motive for the occurrence in this case was previous enmity between the parties, which had resulted due to the criminal and civil litigation. This fact has not been denied by the appellants. In that, their stance, is that they have been involved in this case due to the long-standing enmity of the complainant party with them.
On scanning the evidence in this regard, we have come to the conclusion that the parties because of the long-standing enmity were pitched against each other with all the might at their command to harm the other either by eliminating the opponent by way of aggression or sending them to jail by involving falsely in the cases. The motive in this case is thus of a type which cuts both ways and, therefore, no particular benefit can be taken by the complainant only.
25. The weapons recovered except from appellants Amjad Ali and Tariq had wedded with some of .12 bore empties said to have been taken into possession from the spot. The two empties of revolver taken into possession from the spot were found to have been fired from the licensed revolver produced by Tariq Mahmud appellant at the time of his arrest. The opinion of the Expert thus connects the weapons recovered from the appellants other than Amjad Ali. However, the matter is not concluded merely by the opinion of the Expert showing the empties to have been fired from the weapons. For placing safe reliance upon the evidence of the Expert, the preliminaries required are, the reliable evidence qua the empties and the weapons having been kept intact in safe custody and of their having been transmitted to the office of the Forensic Science Laboratory without any chance of their being tampered with and without admission of any doubt in this regard. Further, it has also to be seen whether the witnesses who deposed about taking into possession of the empties from the spot and the witnesses who deposed about the recovery of the weapons at the instance of the accused, are also reliable and can be believed without any admission of doubt.
26. Unfortunately, in this case evidence of keeping of the parcels in safe custody and of their transmission to the office of the Fire-arm Expert has been given in a very slipshod manner, and is not only contradictory but is full of doubts too.
27. Sh. Abdur Rashid, Fire-arm Expert of the office of Forensic Science Laboratory, who was examined as C.W.2 for clarification, stated that fifteen parcels were received in the office of the Forensic Science Laboratory in two installments, i,e, one of ten parcels while the other of five parcels, apart from the parcels containing weapons, while the case of the Investigating Officer is that he had prepared only two sealed parcels of the empties recovered from the spot.
28. Liaquat Ali, Constable No,573 while appearing as P.W.1 had stated that he had been entrusted 3 sealed parcels by Liaquat Ali, H.M.C. On 27-7-1983 for onward transmission to the office of the Chemical Examiner. According to him he had delivered one of those parcels to the office of the Director, Forensic Science Laboratory, Lahore and the other to the office of the Chemical Examiner.
This obviously is in direct contrast with the statement made by C.W.2. When he was re-examined as C.W.1, he stated that he had received ten sealed parcels from Liaquat Ali M.H.C. For onward transmission to the office of the Forensic Science Laboratory on 3-8-1983 which he had brought back under objection and had redeposit that in the said office on 6-8-1983. The statement made by him in re-examination, instead of clarifying, further confused the position. Liaquat Ali, M.H.C., who had received the parcels of the empties for safe custody on 13-?-1983, while appearing as P.W.3 stated that he had entrusted one out of the said two parcels to Liaquat Ali Constable on 27-7-1983 for onward transmission to the office of the Chemical Examiper and that he had handed over the second parcel to the same Constable on 3-9-'1983 for onward transmission to the office of the Director, Forensic Science Laboratory. The said Constable according to him, had brought back the parcel with some objection and he had handed over the same to him again after removal of the objection, on 6-8-1983, for onward transmission to the office of the Director, Foresic Science Laboratory. His statement qua the number of the parcels and the dates about the number of the parcels that he gave to Liaquat Ali, Constable, are also contradictory. The evidence of these witnesses, i,e, Liaquat Aii Constable P.W.1, Liaquat Ali, M.H.C. P.W.3 and Sh. Abdur Rashid C.W.2, and the second statement made by Liaquat Ali, Constable as C.W.i as enumerated above, instead of being corroborative to each other, is inter se contradictory. In these circumstances, the foremost care that has to be taken before accepting the evidence of the Fire-arm Expert about the parcels having been kept in safe custody and of the same having been delivered intact and safely to the office of the Forensic Science Laboratory, in this case is not free of doubts and so cannot be acted upon, even if the evidence of recoveries is believed which in our assessment, is also interested and not free from doubt. The evidence of recoveries of weapons of offence and of the opinion of the Fire-arm Expert, tendered in evidence, therefore, does not advance the case of the prosecution and the same is not of the standard which can lend corroboration to the ocular account furnished by the interested and inimical witnesses.
29. Apart from the evidence of motive and the evidence of recoveries of weapons of offence and the opinion of the Fire-arm Expert, the prosecution case rests upon the ocular account furnished by P,Ws. 6, 8 and 9 and the Wajtakkar evidence deposed to, by P.W.10 and the medical evidence.
30. Dr. Muhammad Yunas P.W.7 who had performed autopsy on the dead body of Muhammad Iqbal deceased had noted blackening around the wounds found on the body of the deceased, and noted as injuries Nos. 1 to 6. According to his opinion, these injuries would have resulted from a shot fired from a very close range, i,e, 1 to 6 feet. His opinion, about the distance from which the shots would have been fired, which resulted into the injuries to the deceased (entry wounds), is supported by the fact of the wounds of entry bearing blackening around them. It is also corroborated by the fact that out of the six shots which had caused entry wounds on the body of the deceased, four had made apertures as injuries Nos. 7 to 10 which also is indicative of the fact that the shots must have been fired from a close range. This is in contradiction to the statements made by P.Ws. 6, 8 and 9, according to whom the shots were fired from a range between 40 to 50 feet. It has to be noted here that the occurrence had taken place in a lane which was of 6 feet width and if the witnesses had really witnessed the infliction of injuries to the deceased by the assailants, they would not have made such a mistake. Yet the other aspect which makes their statements doubtful, is, about the weapon used for the infliction of injuries. In that, their claim is that the injuries had resulted due to the shots fired by two accused with .12 bore guns and by one, with a carbine, (which also fires .12 bore cartridges), while the doctor had found two bullets lodged in the body of the deceased. The doctor clarified that he knew the difference between a bullet and a pellet, meaning thereby that he was sure that the foreign matter he had extracted from the body of the deceased, were bullets and not pellets. Bullets can, of course, be fired from pistols, revolvers or rifles and not from .12 bore guns.
Another factor which appears to be incongruent between the medical evidence and the eye- witness account is, that all the 6 entry wounds on the body of the deceased were of 1/4" diameter.
We wonder, if there could be co-incidence of all the three accused having fired cartridges of same number and power from the same distance, causing exactly similar injuries of the same dimensions. Although possibility of coincidences cannot be ruled out, yet in the circumstances of this case, this appears to be a little more than improbable and rather leaves behind thick screen of smokes.
31. According to Muhammad Ramzan complainant P.W.6, Tariq Mahmud appellant had caused injuries to Mst. Nasreen and Mst. Sabiran by firing revolver shots. The dimension of injury on the person of Mst. Nasreen P.W.8 was 1/4" x 1/4" while the injury on the person of Mst. Sabiran was of 1/8" diameter. We wonder if the same weapon with same bullet from almost the same distance, could have caused injuries of different dimensions. The ocular account with regard to the injuries suffered by these two P.Ws. Is, therefore, also contradictory to the medical evidence.
32. The claim made by Mst. Nasreen that a foreign body was recovered from the seat of her injury, has been contradicted by Dr.Muhammad Yunas who stated during cross-examination that no foreign matter was found in the wound of Mst. Nasreen.
In view of the above enumeration of facts and discussion, we are of the firm view that the medical evidence in this case is contradictory to the ocular account.
33. As noted in the earlier part of the judgment the eye-witnesses in this case are interested and inimically disposed towards the appellants and this fact had not been denied by them.
' Muhammad Ramzan who had lodged the F.I.R. Although claimed that Lalkara was raised to exhort the accused to finish all of them and that he had been also fired at by the accused with aim, yet had not suffered any injury. As mentioned earlier, the occurrence had taken place in a street which was of six feet width. Not only four persons including three ladies, apart from the deceased had suffered injuries in the occurrence but pellet marks were also found on the walls in the street. The complainant party, according to them, was not armed with anything. In the circumstances this is unimaginable to believe that the complainant if he had been there, would have escaped absolutely unhurt. His narration about infliction of injuries has also been found to be contradictory to the medical evidence. In the circumstances, had the complainant been there, he would not have escaped unhurt. We, therefore, do not feel hesitation in ruling out his presence at the spot.
34. The presence of Muhammad Sharif P.W. And Mst. Nasreen at the spot cannot be ruled out, for, they had suffered injuries during the occurrence and evidence qua the injuries suffered by them has also been brought.
35. Their statements were not believed although their presence at the spot was not denied, and the appellants were acquitted. The facts assimilated therein are to greater extent consistent with the facts of the case in hand.
36. The injured witnesses herein have also made statements in line with the narration of the occurrence given in the F.I.R. And the statement made by the first informant at the trial. The observations at page 63 of the above-cited judgment that 'no doubt it is indeed possible and even probable that the real culprit was amongst the assailants named by the eye-witnesses but if the prosecution chooses to put up a false version before the Court, and the witnesses too, go out of their way to support it and deliberately make palpably false statements, it would only result in the acquittal of the accused. For this, the prosecution and witnesses have only to thank themselves', in our view is very relevant and helpful for coming to a conclusion in this case.
37. Even the pursuit of principle of sifting the grain from the chaff does not take the case of the prosecution anywhere because there is nothing on record to sort out real culprits from amongst the innocent ones, as the evidence provided by the Investigating Agencies in matters of recoveries of empties and guns and their despatch to the Forensic Science Laboratory admits grave doubts and adversely affects the credentials of the prosecution story. In the circumstances, evidence of the degree, on the basis of which the accused can be convicted on capital charges with extreme penalty, is not coming forth from the inimical and interested ocular account.
38. The observations made by learned trial Judge about the suggestions put on behalf of the accused during cross-examination about statement of the only defence witness, and the fact of Tariq Mahmud appellant having failed to prove his alibi, in our view, cannot form basis for maintaining the conviction of the appellants, as apart from the fact that there is no corroboration of the statement made by the defence witness, Sohail Siddiq himself also denied that any such incident had taken place. He in fact, took up a stance that he was not present at the spot at 11. The suggestions made during cross-examination about that theory cannot be acted upon as admission of the accused. In this regard reference can be made to Riaz Hussain v. The State PLD 1984 FSC 1, wherein it has been observed as follows:- "Cross-examination--Line of--Accused--Inference against--Counsel putting defence question from different angles, of his own--Held: Unless each question be shown to have been put under proper and specific instructions of accused party, no inference against accused to be drawn from merely line of cross-examination--Evidence Act (I of 1872)-S.137. (p.50) B."
' For all the reasons enumerated above, we are of the view that the prosecution has not been able to prove the case against the appellants beyond reasonable shadow of doubt. The appeals filed by them are, therefore, allowed and they are acquitted by way of grant of benefit of doubt.
' Since the prosecution evidence has not been believed and the appeals tiled by the respondents have been allowed, the revision petition fails and is dismiss missed as such.