' AJMAL MIAN, J.-- We intend to dispose of the above two appeals by this common judgment.
' Criminal acquittal Appeal No, 212 of 1981.-- This appeal is directed against the judgment dated 14- 7-1981, passed by the learned IInd Additional Sessions Judge, Dadu, acquitting the respondents, who were charged and tried under sections 148, 302/149 and 120-B, P.P.C. Respondent No,1 Ahsan Shah son of Haji Muhammad Shah Syed has expired during the pendency of the above appeal, and therefore, the appeal against him stands abated. We had recorded abatement order on 5-3- 1984 in the main file.
' The brief facts leading to the filing of the above main acquittal appeal are that P.W.1 Muhammad Hussain lodged F.I.R. On 19-9-1979 at 6-30 p.m. At the Police Station Sehwan, which was situated about 4 miles from the place of Wardat namely Bambha minor, Mori of Pakka Road, leading to Dadu towards western side, alleging therein, that on the above day of incident he and P.W. Ismail Rahpoto, after finishing their work at Sehwan, went to the Otaq of Qadero Shuja Ahmed, in Sehwan where they met Wadero Shuja Ahmed and Yakoob Lashari. It was further averred that at about 5- 00 p.m. Wadero Shuja Ahmed on his scooter alongwith Yaqoob Lashari proceeded to his village whereas complainant on his scooter with Ismail proceeded to their village by Pakka road of Dadu. It was further averred that when the complainant and his companion reached near Mori of bambha minor they saw that Wadero Shuja Ahmed and Yaqoob Lashari standing there where Shuja Ahmad was parking his scooter. It was further alleged that soon after that a jeep came behind and stopped near Wadero Shuja Ahmed and two of the occupants of the jeep namely, Ahmed Shah and Ahsan Shah both sons of Haji Muhammad Shah Syed, residents of Village Phito got down from the jeep and gave Hakal of Wadero Shuja Ahmed, who retreated, but suddenly, Ahmed Shah and Ahsan Shah fired gun shots at Wadero Shuja which hit him, with the result, that he fell down. It was further alleged that after that another person, whom the complainant identified as Ali Gohar Shah son of Haji Muhammad Shah Syed also got down from the jeep and also fired upon Wadero Shuja Ahmed. It was also alleged that another person whom he identified as Ibrahim son of Bakar Rahpoto, resident of village Bambha, while sitting in the jeep enquired from Ahmed Shah, whether Wadero Shuja Ahmed had died. It was also averred that the jeep was driven by the driver of Ahsan Shah, whose name the complainant did not remember. It was also averred that 5 accused extended threats to them not to come near them. After that, they went to the Western side in the jeep. It was also stated that at the time of the incident. Yaqoob Lashari and Ismail also identified the accused namely, Ahmed Shah, Ahsan Shah, Ali Gohar, Ibrahim, and the driver of Ahsan Shah.
The motive was also disclosed in the F.I.R., namely, that the accused Hasan Shah suspected that Wadero Shuja Ahmed had involved his brothers accused Ahmed Shah and Ahsan Shah in the case under section 110, Cr.P.C. For which they were challaned. It was also stated that after leaving Yaqoob and Ismail, the complainant had come to lodge the report. The above F.I.R. Was recorded by the then S.H.O., Sehwan P.W. Haji Senwan Khan. After recording the F.I.R., he proceeded to the place of Wardat and carried out the necessary formalities of preparing Mashirnama of Wardat, inquest report etc. The accused namely Gul Muhammad alias Guloo son of Ismail alias Muhammad Aleem Sanjrani, resident of near Shikarpur District, Sukkur was arrested near Shikarpur bridge Petrol pump on 22-9-1972 at 10-30 a.m. Under Mashirnama Exh.26, accused Ibrahim son of Bakar Rajpoto resident of Bambha, Taluka Sehwan was arrested on 22-9-1972 at 11-30 p.m. From village Bambha, Taluka Sehwa under Mashirnama Exh.27, accused Ahmed Shah son of Haji Muhammad Shah Syed, resident of Phito was arrested on 23-9-1972 at 12-00 noon from Shahoo Hajan under Mashirnama Exh.29, accused Ahsan Ali Shah son of Haji Muhammad Shah Syed was arrested on 23-9-1972 at 12-30 hours. It is alleged that Ahsan Ali Shah voluntarily led to the recovery of a small gun under Mashirnama Exh.30, whereas accused Ibrahim is said to have led to the recovery of two SBBL guns of .12 bore from the Til cultivation' under Mashirnama Exh.28 allegedly handed over to him by accused Ahmad Shah and Ali Gohar. The prosecution had charged real brothers, namely Ahsan Shah, Ali Gohar Shah and Hassan Shah all sons of Haji Muhammad Shah Syed, Ibrahim son of Bakar Rajpoto and Gul Muhammad the driver of the jeep with the commission of the offences under sections 148, 302/149 and 120-B, P.P.C. Since Gul Muhammad was declared as absconder, the trial proceeded against the remaining five respondents, which culminated in the above acquittal judgment. The State has filed the above acquittal appeal.
2(a) In support of the above appeal, it was vehemently urged by Mr. Murtaza Hussain, learned counsel for the State that there was ample evidence on record to record convictions against the respondents and that the acquittal judgment is not sustainable. Mr. Muhammad Hayat Junejo, learned counsel for the complainant party adopted the arguments of Mr. Murtaza Hussain.
(b) On the other hand, Mr. Azizullah K. Shaikh, learned counsel for the respondents has urged that the evidence on record was not sufficient to record convictions and that in any case this Court will not allow the above acquittal appeal unless the Court finds that the judgment cannot be sustained in any view of the matter.
3. It will be appropriate to take up each piece of evidence produced by the prosecution and to analyse the same. The prosecution has relied upon inter alia on the following pieces of evidence:-
(i) testimony of 3 alleged eye-witnesses, namely, P.W.1 Muhammad Hussain complainant, P.W.3 Ismail and P.W.4 Muhammad Yaqoob;
(ii) recoveries;
(iii) retracted judicial confessions of Ibrahim;
(iv) evidence on conspiracy of P.W. Gul Muhammad;
(v) medical evidence;
(vi) motive.
4(a) The three eye-witnesses have been disbelieved by the learned trial Court inter alia for the reason that they are interested witnesses as there was deep rooted enmity between the complainant party and the accused, their evidence cannot be relied upon in the absence of independent corroborative piece of evidence. It may be observed that there is ample documentary evidence on record to indicate that there were criminal rases pending between deceased Wadero, Shuja Ahmed and the accused. The accused Hassan Ali Shah in his statement under section 342, Cr.P.C. Has produced as many as 24 documents to indicate the previous litigations between the parties. Admittedly, P.W. Muhammad Hussain was very thick with the deceased inasmuch as he stated that he knew him since the childhood and that he was the `Nekmard' of his village. From the cross-examination, it is evident that there was some criminal cases between him and the accused. He was allegedly robbed of his money by Sarwar Shah a brother of accused Ahsan Shah. He was also allegedly taken in injured condition to the hospital. He has admitted that accused Hasan Ali Shah filed a case under section 307, P.P.C. Against him and Ali Sher brother of deceased Shuja Ahmed. The other alleged eye-witness P.W. Ismail also belonged to the deceased's caste and had family relations with the deceased. The third eye-witness Muhammad Yakoob also admitted facts which indicate that he was on inimical terms with the accused. He has admitted that he was challaned under the Sind Crimes Control Act at the behest of the accused. It was also suggested to him that he was a witness against the accused in a case under section 107, Cr.P.C. And that he was provided a permit of a sugar depot and a loan of Rs,50,000 for opening a poultry farm by S. Abdullah Shah who admittedly belonged to deceased Shuja Ahmed group.
(b) It may be observed that apart from the fact that these witnesses were interested, their very presence at the place of Wardat is shrouded with doubts. According to P.W. Haji Senwan Khan, the S.H.O., Police Station Sehwan who recorded the F.I.R. And investigated the case, the deceased was present on the day of the incident upto 5 p.m. In the meeting called at the Inspection Bungalow No,7 Sehwan by S. Abdullah Shah, the then Deputy Speaker of Sind Assembly. If that was so, the prosecution story that deceased Wadero Shuja Ahmed came to Sehwan from his village early in the morning to attend some work alongwith P.W. Yakoob Lashari becomes highly doubtful, particularly, in view of the fact that P.W. Yakoob Lashari belonged to a different village than that of deceased Shuja Ahmed. It may be observed that P.W. Yakoob belonged to the village to which the complainant Muhammad Hussain belonged at the relevant time. The story that P.W. Muhammad Hussain reached Bhan Saeedabad on his scooter and there he met by chance P.W. Muhammad Ismail in a restaurant, and from there he accompanied him to Sehwan, though had no prior appointment or any work and thereafter at 4 p.m. They called at the Otaq of deceased Wadero Shuja Ahmed in Sehwan is also not free from doubts. The impression, which one gathers from the B facts of the instant case is that the incident was an unwitnessed incident. These alleged eye- witnesses seem to have been set up, and have been provided by the complainant party.
(c) It was vehemently urged by Mr. Murtaza Hussain learned counsel that simpliciter the fact that the witnesses were on friendly terms with the deceased would not be sufficient to ignore their testimony. In furtherance of his above submission, he has referred to the case of Shahzado v. State and 8 others, reported in PLD 1977 SC 413, the case of Roshan and 4 others v. The State reported in PLD 1977 SC 557. In the first case the Honourable Supreme Court held that the fact that the witnesses were interested alone would not be sufficient to altogether discard their evidence and that the evidence is to be properly sifted and weighed with necessary care and caution before rejecting the chaff and accepting the grain in the light of the facts of each case. Whereas in the second case Muhammad Yakoob Ali, C.J., who had written one of the majority judgments, observed that there is no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence and if that would have been so, then why should the Court at all take into account the testimony of the interested witnesses. It was further observed that if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration.
(d) There cannot be any cavil to the above proposition of law propounded by the Honourable Supreme Court of Pakistan. However, in the instant case the alleged eye-witnesses were not only interested but two of them were also on inimical terms with the accused. Furthermore, their very presence at the place of Wardat at the time of incident is not free from doubt as pointed out hereinabove. We are, therefore, of the view that the learned Additional Sessions Judge was justified in not placing implicit reliance on their testimony.
5(a) The second piece of evidence produced by the prosecution was the alleged recoveries of the three SBBL guns i,e, one from respondent No,1 since deceased and two from respondent No,4 Ibrahim. The prosecution did not rely upon the alleged recoveries before the learned Additional Sessions Judge. However, Mr. Murtaza Hussain has pressed into service the above piece of evidence as well in support of the above appeal.*In the F.I.R. It was not stated that three empties were recovered from the place of Wardat nor this was stated by the alleged eye-witnesses in their police or 164, Cr.P.C. Statements. According to the F.I.R. As well as the testimony of the alleged eye- witnesses, respondent No,4 Ibrahim had not used any SBBL gun. The only part assigned to him by the witnesses is that he peeped outside from the jeep and inquired from respondents Nos. 1 and 2, whether Wadero Shuja Ahmed had died because of the shots fired by them. It is alleged that the two single barrel guns produced by him were allegedly handed over to him by respondents Nos.2 and 3 Ahmed Shah and Ali Gohar Shah, which he had hidden in the I'll cultivation' after the commission of the crime. The above version does not stand to logic. It is not understandable, as to why the above co-accused would have handed over their guns to respondent No, 4 Ibrahim for concealing.
(b) Even otherwise, alleged recoveries of the two guns at the pointation of respondent No,4 Ibrahim cannot constitute recoveries from respondents Nos. 2 and 3 nor it can be used against them. It may be observed that it is by now a well-settled principle of law that even a joint recovery at the pointation of two co-accused cannot be used against them, what to say about the alleged recovery at the pointation of a co-accused who had not admittedly used the gun and to whom the guns did not belong.
(c) Furthermore, the above alleged recoveries suffer from other fatal infirmities, the Mashir to the recoveries P.W. Nabi Bux admittedly did not belong to the places from where the recoveries were made. On the other hand, he admitted that he was co-villager of the deceased Shuja Ahmed and his house was situated at two calls distance from the house of the deceased. He also admitted that his village was situated at 2 or 2-1/2 miles away from the village of the four accused namely Ahsan Shah and his three brothers. According to the Ballistic Expert's report Exh.60 only two empties marked C-1 and C-3 tallied with the two SBBL guns of .12 bore. As regards their empty, he was unable to give any opinion for want of sufficient data. The very fact that empties were not mentioned in the F.I.R. And also by the alleged eye-witnesses in their statements under sections 161 and 164, Cr.P.C. The type of the Mashir to alleged recoveries, and the factum that the two SBBL guns were recovered at the pointation of accused Ibrahim who had not used any of them, react adversely on the above piece of evidence. In our view, the learned A.P.P. Was justified in not relying upon the same before the learned Additional Sessions Judge.
6(a) Reverting to the retracted judicial confession of accused Ibrahim, it may be observed that the above piece of evidence has also been discarded by the learned Additional Sessions Judge. It has been urged by Mr. Murtaza Hussain that the learned Additional Sessions Judge was not justified in discarding the above retracted judicial confession on the ground that it was exculpatory. It is true that if the portion of the above retracted judicial confession relating to hatching of a conspiracy to murder Shuja Ahmed is to be believed, in that event it cannot be said that the above retracted judicial confession is exculpatory as accused Ibrahim would be vicariously liable. However, even otherwise, the above retracted judicial confession merits no consideration for more than one reason, firstly though the S.H.O. Of Sehwan Police Station P.W. Haji Senwan Khan recorded the F.I.R.
And investigated the case, but it is not understandable as to why S.H.O. Bhan Saeedabad Police Station Mian Muhammad was associated with the investigation and why he allegedly on 23-9-1972 produced Ibrahim for recording judicial confession before the Resident Magistrate, Dadu and not P.W. Haji Senwan Khan; secondly, admittedly in Schwan there was a Civil Judge and F.C.M., who could have recorded the judicial confession but instead of that Ibrahim was allegedly produced before the Resident Magistrate, of Dadu about 20 to 25 miles away from Sehwan for no cogent reason; thirdly, from the statement of P.W. Noor Muhammad the Resident Magistrate, Dadu, it is evident that he had no experience of recording judicial confession at the relevant time and that he had not taken requisite precautionary step.
(b) Apart from the foregoing reasons, even otherwise, a retracted judicial confession requires corroboration by an independent piece of evidence. As pointed out hereinabove, the alleged judicial confession does not in fact implicate Ibrahim in the actual commission of the crime but implicates him if the conspiracy to commit murder of deceased Wadero Shuja Ahmad is proved.
The question, therefore, arises whether this part of the judicial confession is corroborated by any reliable evidence on record. The prosecution in order to prove commission of conspiracy has examined P.W.7 Gul Muhammad, who has deposed that 15 or 20 days prior to the murder of Shuja Ahmed, he had gone to the Otaq of accused Hassan Shah at about 9 or 10 p.m. In connection with the search of his cow which was missing, where he found accused Ahsan Shah, Hassan Shah, Ali Gohar Shah and Ahmed Shah and Ibrahim, were conspiring to kill Wadero Shuja Ahmed However, in the cross-examination he has admitted that he belonged to deceased's village and deceased was the Nekmard' of his village. He has further admitted that accused belonged to a different village. It may be observed that it is highly improbable that P.W. Gul Muhammad would have gone to the accused persons for help for tracing out his cow instead of approaching his own Nekmard' and co-villager deceased Wadero Shuja Ahmed. Furthermore, it is absurd to believe that the accused persons in presence of P.W. Gul Muhammad would have chalked out to conspiracy to kill deceased Shuja Ahmed as admittedly above P.W. Gul Muhammad was neither a friend nor a co- villager of the accused nor their caste-fellow. P.W. Haji Sehwan Khan in his deposition has stated that P.W. Gul Muhammad in his police statement before him had stated that he had lost the cow two or three months prior to the incident. If in fact the cow was lost 2 or 3 months prior to the incident, the testimony of P.W. Gul Muhammad is further belied, the above testimony of the factum of conspiracy suffers from inherent improbabilities and, is liable to be discarded. We are, therefore, inclined to hold that the above retracted confession has been,. Rightly discarded by the learned Additional Sessions Judge.
7. The medical evidence comprises testimony of P.W. Dr. Syed Hamid Hussain and the post-mortem report Exh.67. He has deposed that on external examination he found 3 punctured wounds and one lacerated wound. He also found 2 wads and two pellets from the chest cavity. The above medical evidence establishes that the deceased died on account of fire-arm injuries, but the same does not prove that the respondents had committed the above murder.
8. Reverting to the motive, it will suffice to observe that though in the F.I.R. The motive alleged is that respondent Hassan Shah had suspicion that Wadero Shuja Ahmed had involved his brothers Ahmed Shah and Ahsan Shah in 110, Cr.P.C. Proceedings. Through the evidence of eye-witnesses and the other witnesses on record it has come on record that there was also the political rivalry between the accused and deceased group. Admittedly the deceased belonged to Abdullah Shah group, whereas the accused opposed the above group. It will suffice to observe that simpliciter motive is not sufficient to prove the commission of the offence.
9(a) It was also contended by Mr. Murtaza Hussain that the view that an acquittal appeal can only be allowed if the view found favour with the trial Court is perverse, is not tenable. In furtherance of the above submission, he has referred to the case of Ghulam Muhammad v. Muhammad Sharif and another reported in PLD 1969 SC page 398. On the other hand Mr. Azizullah has referred to the case of Sheo Swaru and others v. King Emperor reported in AIR 1934 PC 227. In the above Supreme Court case the Honourable Supreme Court of Pakistan while construing section 417, Cr.P.C. Held that under the above section the State has the right to appeal from an order of acquittal both on facts and law and, therefore, it is not permissible to read into section 417, Cr.P.C. a limitation that the High Court would allow an acquittal appeal only when trial Judge's view had been perverse or foolish. It was further held that, however, a practice has grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court.
Whereas the Privy Council in the above cited case has laid down the guidelines for deciding an acquittal appeal. It was held by the Privy Council that the High Court should and will always give proper weight and consideration to such matters as `(i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (iii) the right of the accused to the benefit of any doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
(b) We arc of the view that in the instant case of the view found favour with the learned Additional Sessions Judge could- have been taken on the basis of evidence on record and, therefore, the above acquittal appeal, has no merits and, therefore, it is-dismissed. The bail bonds shall stand discharged.
Criminal Acquittal Appeal No, 212 of 1981.--
10. Since we have discarded the recoveries allegedly made on the pointation of accused Ibrahim in above Acquittal Appeal, Acquittal Appeal No, 213 of 1981 filed by the State against the judgment, dated 14-7-1981 passed by the learned IInd Additional Sessions Judge, Dadu in Sessions Case No, 511/75, acquitting accused Ibrahim from the charge under section 13(c) of the Arms Ordinance, has no merits and, therefore, the same is also dismissed.