' SARDAR MUHAMMAD DOGAR, J.--- Muhammad Naeem alias Gogi, aged 19/20 years, Muhammad Farooq alias Kala, aged 23 years and Moulvi Muhammad Zafar Iqbal, aged 27 years, were tried by Sessions Judge, Lahore, under section 302/307/149/148, P.P.C. Alongwith Muhammad Naeem alias Naji, aged 15 years, Muhammad Bashir, aged 78 years, Zubair Iqbal, aged 18 years, Muhammad Khalid, aged 20/21 years and Muhammad Aslam aged 25 years, for having murdered Muhammad Aslam alias Kala, Muhammad Ashraf alias Sahab and Zulfiqar alias Pomi (their own companion) and for having launched murderous assault on P.Ws. Yusuf Khan, Liaqat Ali, Munir Hussain Shah, Muhammad Anwar and Javid Ahmad. The learned trial Judge vide judgment dated 23-4-1986 convicted Muhammad Naeem alias Gogi, Muhammad Farooq alias Kala and Muhammad Zafar Iqbal under section 302/34, P.P.C., on three counts under section 307/34, P.P.C., on five counts and under section 148, P.P.C. And awarded sentences as follows:-- ' Under section 302, P.P.C. To death on three counts, plus to pay a line of Rs,5,000 on each count, in default whereof to undergo R.I. For one year. They have also been directed to pay a sum of Rs,30,000 each, as compensation to the heirs of Muhammad Aslam and Muhammad Ashraf deceased.
' Under section 307/34, P.P.C. To seven years' R.I. Each on each count.
' Under section 148, P.P.C. To one year's R.I.
' The sentences of imprisonment have been ordered to run concurrently. The remaining five accused were acquitted vide the same judgment.
2. The convicts have filed appeal. The learned Sessions Judge has made reference for confirmation of death sentences. The appeal filed by the State against the acquitted accused has also been admitted to a regular hearing and the same is also before us.
' As all the matters arise from the same judgment, they are being disposed of by a consolidated judgment.
3. It may be mentioned at the very outset that one Muhammad Yousaf, who was named in the F.I.R.
As one of the accused was arrested and challaned but he later escaped and is reported to have died prior to the trial in some police encounter.
' Dera of Muhammad Ashraf (deceased) on the Ganda Nala, Gulshane Ravi Scheme, Multan Road, at a distance of 3 k.m. From Police Station Nawankot, Lahore.
5. F.I.R. (Exh.P.A./1) was registered at the police station at 11-55 p.m. On the same day by Attaullah, A.S.I. (P.W.1), on receipt of the statement (Exh.P.A.) of Yusuf Khan (P.W.13), recorded by Muhammad Aslam, A.S.I. (P.W.17), at 11-35 p.m., on the same day, in the Emergency Ward, Mayo Hospital, Lahore.
' According to F.I.R. The complainant alongwith Muhammad Ashraf alias Sahib, Muhammad Aslam alias Kala (both deceased) Liaqat Ali (P.W.14), Munir Hussain Shah (P.W.15) and given up P.W. Javid were sitting on cots outside the Dera of Muhammad Ashraf (deceased). Suddenly, Gogi (Naeem), armed with a sten-gun, Naji (Nasim) armed with a rifle, Yousaf (since dead) armed with a stengun, Kala (Muhammad Farooq) armed with a rifle, Bashir Kannianwala, Khalid and Babu (Zubair) armed with revolvers, Zulfiqar (died during occurrence) Moulvi Zafar Iqbal and Muhammad Aslam, armed with carbines, came there from the side of Morr Samanabad. They were identified under the light of the bulb burning outside the Dera. They opened immediate indiscriminate firing on the complainant and others, as a result of which the complainant, Muhammad Ashraf, Muhammad Aslam (both deceased), Liaqat Ali, Munir Hussain Shah and Javid suffered injuries. Zulfiqar, one of the accused, also suffered injuries due to their own firing. They tried to lift him away but they could not do so on account of the noise raised by the complainant party.
' Motive for the occurrence was that 3/4 months prior to the occurrence, the accused had quarrelled with Muhammad Ashraf, as a result of which cases under section 307, P.P.C. Were registered and they were pending trial. Security proceedings under section 107/151, Cr.P.C. Inter se the parties were also pending.
' After the occurrence and before recording of the statement (Exh.P.A.), the injured were removed to the hospital.
6. After Muhammad Aslam, A.S.I. (P.W.17) had despatched Exh.PA. To the police station for registration of F.I.R., he came to know about Zulfiqar (accused) having died. He examined the dead body and after preparing inquest report (Exh.P.Z.), sent the dead body for post-mortem examination. After midnight in the early morning of 1-5-1984, he went to the spot. During spot inspection he collected blood-stained earth from the places, sealed the same into a parcel and took into possession vide memo. Exh.P.T. He picked up six empties P.5/1-6 of .12 bore, six empties (P.8/1-6) of 7 mm, nine empties (P.7/1-9) of sten-gun and seven empties (P.7/1-7) of .32 bore. All the empties were sealed into a sealed parcel and were taken into possession vide memo. Exh.P.U.
Munir Shah P.W. Produced his blood-stained Kurta (P.9) and Lacha (P.10). They were taken into possession vide memo. Exh.P.V. Kurta (P.11), Tehmand (P.12) of Liaqat P.W., shirt (P.13), Shalwar (P.14) of Yousaf Khan P.W., Kurta (P.15), Bunyan (P.16) of Anwar P.W., all stained with blood produced by Safarish All P.W. Were taken into possession vide memo. Exhs.P.W., P.K. And P.Y. Respectively.
' On coming to know of the expiry of Muhammad Ashraf, he reached Mayo Hospital and prepared inquest report (Exh.P.AA.). The dead body was sent for post-mortem.
' Bashir, Zubair Iqbal and Muhammad Aslam acquitted accused were arrested by him on 3-5-1984.
' On coming to know about the death of Muhammad Aslam on 10-5-1984, in General Hospital, he reached there and despatched the dead body for postmortem examination, after preparing inquest report (Exh.P.BB.).
' He applied to the Ilaqa Magistrate for issuance of warrants of arrest of Naeem alias Gogi, Naseem alias Naji, Yousaf alias Achhi, Farooq alias Kala, Maulvi Zafar Butt and Khalid accused persons vide application (Exh.P.CC.) on 26-5-1984. The warrants of arrest were issued vide order, dated 28-5- 1984. The investigation was handed over by him to Rehmatullah Inspector on 29-5-1984.
7. Mukhtar Hussain S.I. (P.W.11) was also connected with the investigation of this case. He got transferred Naeem alias Gogi and Yousaf alias Achhi from Police Station Sadar Sheikhupura, where they were under arrest in another case and effected their arrest in this case on 15-6-1984. Yousaf (since dead) got recovered sten-gun (P.2) from the Baithak of his house on 30-6-1984. On the same day Zafar Butt (Maulvi Zafar) also got recovered carbine (P.3) along with four live cartridges (P.3) and four live cartridges (P.4/1-4) from his house. The same were taken into possession vide memo. Exh.P.S.
8. Rehmatullah Niazi, S.H.O. (P.W.19) partly investigated the case. Naeem alias Gogi led to the recovery of sten-gun (P.1) alongwith magazine lying in a brief case in his house by opening the lock of the same by operating numbers on 21-6-1984. They were taken into possession vide memo.
Exh.P.Q.
' After completion of necessary investigation, challan was submitted to Court.
9. Statements of 22 P.Ws. Were recorded at the trial. Positive reports (Exhs.P.NN and P.00) from the Chemical Examiner and the Serologist were tendered in evidence. Report (Exh.P.PP) from the office of the Forensic Science Laboratory was also submitted in evidence. In addition, copy of F.I.R. No,487, dated 18-11-1983 (Exh.P.KK) and copy of F.I.R. No,492, dated 2-12-1983 (Exh.P.RR) were also tendered in evidence.
10. Dr. Khalid Jamil Akhtar, who had medically examined Muhammad Ashraf (deceased) and Muhammad Aslam (deceased) whilst alive and P.Ws. Yousaf Khan, Liaqat Ali, Munir Hussain Shah and Muhammad Anwar, and given up P.W. Javid Ahmad on 30-4-1984, from 9-45 to 10-30 p.m., appeared as P.W.7 and stated about having noted two lacerated punctured wounds on the person of Muhammad Ashraf, four lacerated punctured wounds and one lacerated wound, on the person of Zulfiqar, one lacerated wound on the person of Muhammad Aslam; two lacerated wounds, one of which was an exit wound, on Javid Ahmad P.W. (given up), one lacerated wound on Liaqat Ali P.W. Two lacerated punctured wounds on Muhammad Anwar P.W., two injuries (lacerated wounds) on Muhammad Yousaf Khan P.W., and two lacerated wounds on Muhammad Munir, one of which was an exit wound.
' The injuries on all the persons were opined to have been caused by firearm. The duration was opined to be fresh. During cross-examination, he stated that all the patients were produced before him turn by turn and they were accompanied by private persons.
11. Dr. Zaheer Anjum Sherazi (P.W.6) had performed autopsy on the dead body of Muhammad Ashraf at 12-30 p.m. On 1-5-1984. He had noted eight wounds on the body of the deceased. Four of which, i,e, 3 to 6 were opined to have resulted due to surgical intervention, while the rest were opined to have been caused by fire-arm.
' Death was opined to have occurred due to shock and haemorrhage. Probable time between death and post-mortem was opined to be 12 hours. Time between injuries and death was also opined to be the same.
' He had performed autopsy on the dead body of Zulfiqar also on 1-5-1984 at 1-30 p.m. He had noted six fire-arm injuries on his body.
' Death, according to him, had resulted due to injuries to vital organs (lung and heart), resulting in haemorrhage and shock. Probable time between injuries and death was opined to be six hours while time between death and postmortem was opined to be within 18 hours.
' The same doctor had performed autopsy on the dead body of Muhammad Aslam on 10-5-1984 at 1 p.m. He had noted three injuries on the body of the deceased.
' Death was opined to have resulted due to head injury, leading to intracranial hemorrhage and damage to brain. Probable time between injuries and death was opined to be 8 to 10 hours while time between death and post-mortem was opined to be 12 to 24 hours.
' During cross-examination, he stated that he had not found any bullet under injuries 2 and 8, on the body of Muhammad Ashraf deceased. He expressed inability to say whether the said injuries on Muhammad Ashraf would have resulted from pellet or bullet. However, he ruled out the possibility of infliction of those injuries by any weapon other than fire-arm. He expressed inability to say as to through which injury or injuries, the bullet had entered the stomach of Muhammad Ashraf. In answer to another question, he stated that injuries to Muhammad Zulfiqar deceased would have been caused from near distance. He did not rule out the possibility of all the six injuries on the body of Zulfiqar having been the result of one shot. According to him, charring would occur from a maximum distance of four feet while blackening can occur up to the range of ten feet.
12. Dr. Rasheed Hussain Sherazi (P.W.21) stated about condition, nature of injuries and their impact on Muhammad Aslam deceased while admitted to the General Hospital, before death.
13. The ocular account was deposed to by Yusuf Khan (P.W.13), Liaqat Ali (P.W.14), Munir Hussain Shah (P.W.15) and Muhammad Anwar (P.W.16).
' Yusuf Khan while repeating the facts given by him in the F.I.R. Made a significant improvement. In that he stated about Muhammad Anwar P.W. Also having suffered injuries during the occurrence.
While stating motive mentioned in the F.I.R., he specifically stated that 4/5 months prior to the occurrence, Muhammad Ashraf deceased and Naeem alias Gogi had quarrelled, as a result of which a case was registered against him and Ashraf deceased from their side while a case was registered against Yousaf alias Achhi and Naeem alias Gogi on the other side. He stated that both of them could not be arrested in that case due to their absconsion. He also stated about having been shifted to Mayo Hospital and of having been medically examined prior to his making statement (Exh.P.A.) to the police at 11-30 p.m. On 30-4-1984. He gave out that as a result of the injuries his knee joint had stiffened and he was unable to walk. During cross-examination he admitted that Bashir accused had civil litigation with Ashraf deceased about the demolishing of the shops by Muhammad Bashir. According to him, Muhammad Aslam was seen by him once or twice before the incident. Although he expressed ignorance about the pendency of the case under section 307, P.P.C., between the deceased and the above-named accused for lack of memory and of the security proceedings having been taken between them and Muhammad Ashraf deceased but he was found to have given these facts in the statement under section 161, Cr.P.C. He admitted that he was named as an accused in a case registered at the instance of one Muhammad Afzal under section 307, P.P.C. On 10-1-1986 and of having been allowed bail in that case by the Additional Sessions Judge, on account of a compromise having been effected with said Muhammad Afzal. He gave out that he was a witness against Nacem alias Gogi in case under section 307, P.P.C. Alongwith Muhammad Anwar, which was lodged by Abbas Ali brother of Shafarish Ali P.W. He stated that he had seen the accused persons after he was hit and fallen on the ground. He clarified that he had failed to mention the name of Muhammad Anwar P.W. Having suffered injuries in the occurrence, on account of pain due to injuries.
14. Liaqat Ali (P.W.14) corroborated the statement made by P.W.13 in so far as it pertained to the actual occurrence. During cross-examination, he adlnitted that Shafarish Ali P.W. Was his brother, while Ashraf deceased was his maternal-uncle's son. According to him, the accused were standing in a line when they had fired at them. He stated that the accused were at a distance of 4 feet when he was hit by their firing. He admitted that he was married to the sister of one Muhammad Tufail, who was married to the sister of Ashraf deceased. He gave out that Anwar P.W. Was his maternal- uncle's son. He admitted that Ashraf deceased had filed a suit against Muhammad Bashir and L.M.C. He conceded that application for issuance of injunction moved by Ashraf deceased in that suit had been dismissed by the Civil Judge. Aslam according to him, was known to him since over a month before the occurrence.
15. Munir Hussain Shah (P.W.15) also corroborated the statement made by P.W.13. He stated that two criminal cases were pending between the parties, in one of them Naeem alias. Gogi (appellant) had accused Ashraf deceased as culprit while in the other Naeem alias Gogi has been named as accused. He also claimed having witnessed the collection of blood-stained earth from the spot and collection of six empties of revolver (P.5/1-6), seven empties of revolver (P.6/17), nine empties of sten-gun (P.7/1-9) and six empties of .7 mm (P.8/1-6) and of having attested the relevant memos in that regard. During cross-examination, he stated that he had been moving about in the hospital after medical examination and had seen the Investigating Officer present there. He proclaimed to be an employee of Post and Telegraph Department. He stated that while in Lahore he used to go and sit at the Dera of Muhammad Ashraf deceased off and on. He stated that he had seen the accused for the first time when he had fallen down after receiving injuries. According to him, the culprits were not standing in the line, but were scattered at the time of firing.
16. Muhammad Anwar (P.W.16) also corroborated the statement made by P.W.13. He stated that he had got a case registered against the father of Naeem alias Gogi, Ayub, Yousaf alias Achhi and Pervaiz, brother of Moulvi Zafar under section 302, P.P.C. He expressed ignorance about the case having been cancelled. He was not found to have stated in his statement before the police about Zulfiqar deceased-accused having suffered injuries during the occurrence. In answer to a question, he stated, 'I saw the accused persons and their companions for the first time when I was hit'. He admitted that he and Ashraf deceased had instituted a suit against Bashir accused and Lahore Municipal Corporation, for an injunction restraining them from demolishing their shops. He conceded that they had withdrawn that suit and had filed a fresh suit. He did not deny the investigation of the case having been carried out apart from the local police by Mr. Humayun Raza, A.S.P. And Ch. Sultan, S.P.
' All the eye-witnesses denied the suggestion that Aslam and Ashraf had died during the encounter which took place between Zulfiqar deceased in this case and Yousaf Khan (who is reported to have died after escape in this case in some police encounter) and that they had also suffered injuries during the same encounter. They denied to be members of the gang alongwith Ashraf deceased and Aslam deceased, purpose and purport of which was to collect Goonda tax. They did not deny of Muhammad Afzal having got a case registered against them but the date of registration of the case was given as 10-1-1986, i,e, one and half years after the present occurrence.
17. Muhammad Aslam, A.S.I., who had recorded the statement (Exh.P.A.) of Yousaf Khan in the Mayo Hospital, after obtaining opinion from the doctor about his fitness to make the statement, had visited the spot and collected bloodstained earth as well as empties of different types of weapons, had taken into possession blood-stained clothes of the persons who were medically examined by the doctor after occurrence on 30-4-1984, including the three deceased, had prepared inquest reports and despatched the dead bodies for post-mortem examination appeared as P.W.17 and deposed those facts. He also stated having applied to the Ilaqa Magistrate for warrants of arrest of Naeem alias Gogi, Naseem alias Naji, Yousaf alias Achhi; Farooq alias Kala, Moulvi Zafar Butt and Khalid, vide application (Exh.P.CC). He admitted of having instructed Inam Ali Shah, Draftsman (P.W.3) for preparing the site plan, but admitted that he had not recorded any note on the site plans (Exhs.P.C. And P.C/1) prepared by Inam Ali Shah. He claimed to have reached Mayo Hospital while the doctor was still examining the injured persons of this case. He admitted that he had scored off F.I.R. No, written on the inquest report (Exh.P.Z.), after writing the same on that. He conceded that Bashir, Zubair and Aslam, on appearance before him, had pleaded innocence in their first version.
18. Safarish Ali, who had produced blood-stained clothes of P.Ws. Yousaf, Anwar and Liaqat before the Investigating Officer, appeared as P.W.18. During cross-examination, he stated that he had not noticed police during his presence in the hospital. He gave the time of his departure from the hospital as 12-30 p.m. Or 1 a.m.
19. Rehmatullah Niazi, Inspector/S.H.O. (P.W.19) stated that Naeem alias Gogi had led to his house on 21-6-1984 during interrogation and had got recovered sten-gun (P.1) along with magazine from a brief-case lying there. The brief-case, according to him, was opened by Gogi by operating numbers. He gave out that he had submitted the report under section 173, Cr.P.C. On 13-9-1984, wherein he had made prayer for discharge of Muhammad Aslam, Muhammad Bashir, Zubair Iqbal and Khalid Bashir. According to him, the Magistrate had not passed the order of discharge. He also stated that Yousaf (died before the trial), Naseem, Naeem and Farooq were challenged vide the same report. During cross-examination, he stated that Muhammad Bashir, Zubair Iqbal, Khalid Bashir and Muhammad Aslam had pleaded innocence before him and had produced witnesses in defence. He gave out that Hymayun Raza, A.S.P. And Ch. Sultan, S.P. Had also investigated the case and reached the same conclusion about four accused whom he had declared innocent. During cross-examination he conceded that there were no notes by any of the Investigating Officers on the site plans (Exhs.P.C. And P.C./1). After examining the police file, he stated that carbine had been recovered from Zafar Butt. He stated that revolver was recovered from Farooq alias Kala. According to him, Zafar, Nasim, Farooq and Yousaf were present when Naeem alias Gogi accused had offered to lead to the recovery of sten-gun after interrogation. He stated that he had taken two of the accused from Police Station Nawankot and the other three were sent for from Police Station Old Anarkali. According to him, Moulvi Zafar had also pleaded having not participated in the occurrence, but he (Moulvi Zafar) had not told him that he was under treatment of Prof. Ehsanullah.
He denied the suggestion of having planted the stcn-gun.
20. Mukhtar Hussain, A.S.I. (P.W.11) stated that he had effected the arrest of Naeem and Yousaf on 15-6-1984 after having got them transferred from police lock-up of Police Station Sadar Sheikhupura, to Lahore on 14-6-1984. According to him, Yousaf had led to the recovery of sten-gun (P.2) on 21-6-1984 while Zafar had led to the recovery of carbine (P.3) on the same day. He denied the suggestion of having planted the recoveries.
21. Ismail (P.W.10), claimed to have witnessed the recovery of sten-gun (P.1) at the instance of Naeem, recovery of sten-gun (P.2) at the instance of Yousaf and recovery of carbine (P.3) alongwith four cartridges at the instance of Zafar Butt. During cross-examination, he stated that only three persons were in the custody of the police when he was summoned to join investigation while sitting at a hotel. He stated that Farooq was not one of them. He denied the suggestion that he was ordinarily resident of Faisalabad District. He failed to give the number of the house in which he was residing in Lahore. He denied that he was an associate of Yousaf son of Karamulla in dealing of illicit opium.
22. Muhammad Ashraf, Constable, who had carried the parcels containing empties and blood- stained earth to the offices of Ballistic Expert and the Chemical Examiner appeared as P.W.5 and deposed those facts. While Abdur Razzaq, who had taken the parcels pertaining to the weapons of offence appeared as P.W.9 and deposed about the deposit of the weapons in the office of the Ballistic Expert.
23. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Naeem alias Gogi and Moulvi Zafar Iqbal denied of having led to the recovery of weapons of offence.
24. The respondents in the appeal filed by the State also denied the prosecution case as a whole and pleaded innocence. Khalid and Zubair produced some certificates and testimonials in proof of their being students. Zafar Iqbal appellant produced in defence Tauseef Raza, Dispenser (D.W.1) and Syed Zulfiqar Ali, Junior Clerk Services Hospital, Lahore as D.W.2, to prove that he was admitted in the hospital on the day of occurrence.
25. Learned counsel for the appellants after having taken us through the evidence, contended that the F.I.R. Was not recorded as claimed by the prosecution and instead appeared to have been recorded after consultations and deliberations, that the ocular account in this case has been furnished by interested and inimical witnesses and so convictions on capital charges cannot be maintained without strong corroboration, which is not coming forth in this case, particularly, in view of the fact that the evidence of recoveries of empties from the spot as well as recoveries of weapons of offence, had been deposed to by unreliable witnesses. In that, learned counsel laid stress that the witnesses examined by the prosecution on both the counts, i,e, recoveries from the spot and recoveries from the accused, had made widely discrepant statements. Learned counsel particularly pointed out that Munir Hussain Shah P.W. Being injured could not have been at the spot to witness the recoveries. Learned counsel contended that the evidence of absconsion also cannot lend corroboration, in view of the fact that all of them (accused) had been arrested prior to the date fixed for their appearance in the proclamation. Learned counsel contended that the observations of the trial Judge that failure of Zafar Iqbal accused to prove his alibi recoiled on the plea of innocence was absolutely an erroneous view.
26. Learned counsel for the State/complainant on the other hand contended that the prosecution has succeeded in proving the case against the appellants as well as the acquitted accused. Both of them particularly stressed that all the eyewitnesses being injured, their presence at the spot cannot be doubted. According to them, the ocular account stands corroborated by evidence of recoveries effected from some of the accused and from positive report from the office of the Forensic Science Laboratory and the absconsion of the accused for a pretty long days.
27. Learned counsel appearing for the respondents in the appeal filed by the State against acquittal, defended the judgment of the trial Court to the extent of acquittal of the respondents.
Learned counsel submitted that the conclusions arrived at by the trial Judge about non- participation of the respondents in the State appeal were based on facts and were supported by cogent reasons.
28. In this case ten persons were named in the F.I.R. To have launched attack on the complainant party armed with weapons like sten-gun, rifle, revolvers and carbine. One of them, i,e, Zulfiqar, according to the prosectuion, had suffered injuries at the hands of his own companions and died in the hospital on the same night. Yousaf alias Achhi, another accused, whose arrest had been effected, escaped before commencement of trial and was reported to have died later in some police encounter. Out of the remaining eight, five were acquitted by the trial Judge and three stands convicted for various offences, i,e, 302, 307, 148, P.P.C.
29. The argument of the learned counsel for the appellants that the F.1.R. In this case appears to have been recorded after consultations and deliberations is based on the facts, that, Safarish Ali P.W.18 during cross-examination stated that while being in the hospital along with other P.Ws. Till 12-30 or 1 a.m. During night he had not seen the Police Officer there, and as such the recording of statement (Exh.PA.) at 11-35 p.m. Cannot be believed, that although Muhammad Aslam, A.S.I.
Mentioned the motive for the occurrence in the inquest report (Exh.P.AA) ua Muhammad Ashraf deceased, but he did not note the motive for the occurrence in the inquest report (Exh.P.Z.) pertaining to Zulfiqar deceased, prepared prior to Exh.P.AA that the said A.S.I. Noted the number of the F.I.R. In the inquest report (Exh.P.Z.) but later on scored off the same, recollecting that by that time he had not been supplied the number of the F.I.R.
30. We have examined these points after going through the record. We find that Safarish Ali P.W.
Had not categorically stated about having not seen the police in the hospital. All he stated during cross-examination, is, that he did not remember if during his presence in the hospital the police had recorded statement (Exh.PA.). Same was his reply with regard to having seen the police in the hospital till his return from there.
31. Zulfiqar deceased was not the target of the assailants. Nobody had a motive to murder him. He met his death at the hands of his own companions. The Investigating Officer, in the circumstances, might not have considered it necessary to mention the motive for his murder. The non-mentioning of the motive in the body of the brief facts in the inquest report pertaining to him, therefore, in our view, does not adversely affect the prosecution case in any manner.
' The mere fact of the F.I.R. No, having been noted in the inquest report and the same having been scored off, in our view, does not lend support to the argument that the statement of the complainant might not have been recorded till that time. On the other hand, sufficient material is available on record to hold that statement (Exh.P.A.) would have been recorded in the hospital and F.I.R. (Exh.P.A./1) would have been registered at the police station, as claimed by the prosecution. In that, reference can be made to the fact that nothing was stated in the F.I.R. About Muhammad Anwar P.W. Having suffered injuries in the occurrence. The details given in the inquest report (Exh.P.Z.) about number of the accused and the weapons held by them also tally with the facts given in Exh.PA. Still another aspect worth noticing is that if the F.I.R. Had been recorded after consultations and deliberations, the details of the previous history of relations between the parties would have been mentioned in the F.I.R.
32. All the eye-witnesses in this case are inter-connected except Munk Hussain Shah, and they are inter-related too. Their relationship with the deceased also stands admitted. There is evidence of registration of criminal cases amongst the deceased, P.Ws. And some of the accused named in the F.I.R. Although no case was registered against Moulvi Zafar, but his brother Pervaiz was named as an accused in a case under section 307, P.P.C. In the case of Bashir and his two sons, Zubair and Khalid (respondents in the State appeal), nothing is on record to hold that they were accused in any criminal case prior to the registration of this case or were complainants against any of the complainants in this case. However, there is evidence of civil litigation between them and Ashraf deceased prior to the registration of case. In that, it has been admitted by some of the witnesses that the suit was filed by Ashraf deceased against Bashir, but he had failed to obtain an injunction in that suit. One of the witnesses also conceded that the said suit had been dismissed, although he added that the suit had been dismissed as withdrawn and fresh suit was filed. There is evidence that the suit pertained to the demolishing of shops by Bashir 5/6 years prior to the occurrence.
Suggestions were also put to the witnesses that they were members of a gang and used to collect Jagga tax from different persons which some time used to result in quarrels and encounters. It is with such a background that the statements of the eye-witnesses have to be weighed and assessed qua the appellants and the respondents in the State appeal.
We are of the view that with such a background none of these witnessses can be termed as independent witness and so their testimonies need corroboration from other sources for maintaining convictions of the appellants and for setting aside the acquittal of the respondents in the Slate appeal. Before coming to this conclusion we had considered the contention raised by the learned counsel for the complainant that Munir Hussain Shah P.W.I, was an independent witness, being not related to the other witnesses and the deceased, so his statement lends sufficient corroboration to the statements made by the other eyewitnesses. Regrettably we do not agree with him, as according to our assessment, he was a person deeply connected with the complainant party. In that, in spite of being a Government servant and belonging to a different caste, it was his usual routine to go and sit at the Dera of Ashraf deceased. In spite of being injured, he moved out of the hospital to help in the investigation of the case during night on the evening of which the occurrence had taken place. His interest in the deceased and the other injured P.Ws. Is not only obvious but is outspoken too. Yet the other fact which has put us on guard to look for corroboration of the ocular account furnished by eye-witnesses is that P.Ws. 13, 15 and 16 admitted during cross-examination distinctly that they had seen the accused after having been hit and fallen. We are of the view that in such a state, the possibility of their having mistakenly taken some of the accused named in the F.I.R. For the ones they may have failed to clearly identify cannot be ruled out.
33. No doubt all the eye-witnesses in this case are injured but the stamp dig injuries on them is no proof that all of them had stated the whole truth.
34. Before reaching the conclusion that the statements of the eye-witnesses can be relied upon if they are corroborated from any other evidence we have weighed and assessed the argument of the learned counsel for the appellants that absolutely no reliance can be placed on the statements of the eye-witnesses in this case, for the reason that they could not have identified their assailants on account of lack of light. Their stance was that the bulbs, under the light of which the eyewitnesses claimed to have seen and identified the accused, was not found affixed in the holder. In fact, learned counsel challenged that there was no wiring even for affixation of the holder.
We, however, do not feel convinced with the arguments in that regard. There was no discrepancy in the statement of any of the witnesses, i,e, eye-witnesses and the formal witnesses, about the electric connection for the light outside the Dera. The draftsman, who stated that bulbs were not found affixed in the holders also volunteered that he was informed that the bulbs used to be removed in the day and affixed in the evening. Even otherwise it is not a disputed fact that the occurrence had taken place at the Dera, on the bank of Ganda Nalla, which was used for sitting and gossiping. Naturally there must be arrangements at the Dera for light where there used to be daily sittings.
' The omissions pointed out by the learned counsel for the appellants in the site plans prepared by the Draftsman and the failure of the Investigating Officer to record notes on them also, in our view, was not sufficient ground to discard the ocular account altogether.
35. For corroboration to the ocular account the prosecution can fall back upon the motive that each of them had for participating in the occurrence, ascension of the appellants and the respondents, the recoveries of weapons of offence alleged to have been recovered from some of them, the recoveries from the spot, the effect of the failure of Zafar Iqbal appellant to prove the alibi, the medical evidence and the opinion from the Forensic Science Laboratory.
36. While looking for corroboration, the case of each of the appellants andIC the respondents in the State appeal shall have to be examined.
' Before undergoing the exercise of looking for corroboratory evidence in the case of each of the appellants and the respondents in the State appeal, we deem it proper to note here that Inspector/S.H.O., Police Station Nawankot, an A.S.P. And a S.P. Had not only found Muhammad Bashir, aged 78 years, his sons, Zubair Iqbal and Khalid, who were then students, and Muhammad Aslam, innocent during investigation but report under section 173, Cr.P.C. Had also been submitted to the Magistrate for their discharge from the case. Although opinion expressed by the police is no proof of innocence or guilt of any of the accused, but the factum of impact of such an opinion cannot be thrown away to winds altogether.
37. Bashir, Zubair Iqbal and Muhammad Aslam were arrested on 3-5-1984, i,e, three days after the occurrence. The question of their absconsion, therefore, does not arise. Out of the remaining accused, Naeem alias Gogi and Yousaf (since dead) were arrested on 15-4-1984 while being in the custody of police of Police Station Sadar, Sheikhupura. Nascem alias Naji, Zafar Butt and Farooq were arrested on 15-6-1984. Khalid was arrested on 5-7-1984. Although the arrests of last six were effected quite a few weeks after the date of occurrence, but the fact remains that all were arrested prior to the date, i,e, 7-7-1984, given in the proclamations issued against them for appearance. Yet the other fact is that two of them were found to be in the custody of Sheikhupura Police prior to their arrest in this case. There is nothing on record to draw a final conclusion as to since when they were in the custody of Police Station Sadar Sheikhupura. (of course they must have been in the custody from some date after the date of occurrence in this case, otherwise, they would have pleaded being in police custody.) Still another aspect is that although Khalid, was arrested last of all, but he was not found to have participated in the occurrence by three different agencies of police. In the circumstances, we are of the view that non-appearance of the accused, other than those arrested on 3-5-1984, cannot be deemed to be incompatible with their innocence. As such, the same cannot lend corroboration to the ocular account.
38. Bashir, who was 78 at the time of trial, and his sons Khalid and Zubair were not involved in any criminal case with any of the deceased i,e, Ashraf or Aslam, nor with any of the P.Ws. In the civil suit filed by Ashraf deceased against Bashir, it was Ashraf who had failed to obtain the desired injunction. Bashir and his two sons could, therefore, have no motive of joining hands with others to take the life of Ashraf or Aslam, nor they had any motive to launch murderous assault on any of the P.Ws. On the other hand, the complainants could have a grievance against them on account of having demolished the shops of the deceased. Similar is the case of Muhammad Aslam. He also had no motive. In fact, his case appears to be a case of lateral entry. In that one of the eye- witnesses had clearly stated that he had come to know about Aslam, about a month prior to the occurrence and had seen him only once or twice.
Nothing incriminating was recovered from any of the above-named four persons. Obviously there is no corroboration to the ocular account qua them.
39. Naseem alias Naji was 15 years old at the time when his statement was recorded, i,e, 1-3-1986.
He would thus be 13 years at the time of occurrence. Nothing incriminating was recovered from him. He is real brother of Naeem alias Gogi. The observations of the learned trial Judge in his case that he might have been involved for being brother of Naeem alias Gogi, who was inimical to the complainant party, in our view, possesses weight.. The discrepancy noted by the trial Judge in the statements of Liaqat and other P.Ws. With regard to the weapon held by him also lends support to his not having participated in the occurrence. In that, according to Liaqat P.W. He was holding sten- gun while according to others he was holding a rifle.
40. As a result of the above analysis of the prosecution evidence against Muhammad Bashir, his sons Khalid and Zafar Iqbal, Muhammad Aslam son of Gulzar Ahmad and Muhammad Naseem alias Naji, we are of the clear view that their acquittal does not call for any interference. The State appeal filed against them, therefore, fails and the same is dismissed.
41. Except that eye-witnesses have named Farooq alias Kala as one of the assailants, there is no other intrinsic evidence on record against him. He had no motive for participating in the occurrence. Nothing incriminating was recovered from him after arrest.
' The learned trial Judge while coming to the conclusion regarding his culpability in the crime observed that the fact of his being brother of Yousaf alias Achhi (who had escaped after arrest and had later died in some police encounter) coupled with the fact that he was arrested alongwith Naseem alias Naji and Moulvi Zafar on the same day viz. 15-6-1984 shows that they all belonged to the same group. The learned trial Judge also took into account that Muhammad Anwar P.W. Had stated that he had got a case registered on 17-4-1985 against the father of Naeem alias Gogi, Pervaiz, brother of Moulvi Zafar and Ayub, brother of Yousaf alias Achhi.
We regret to observe that none of the reasons noted above lends any sort of corroboration to the ocular account to bring home charge against Farooq alias Kala. We are of the view that mere fact of some persons having been arrested on the same day is no ground to hold that they might have been jointly associated in the crime committed some days prior to that. Moreover, A.S.I. Mukhtar Hussain, who had effected his arrest did not clearly state that he had arrested him alongwith other two. All he stated is that he had arrested him and the other two on 15-6-1986. Nothing can be read from his statement to hold that their arrest was affected while being together. Be that as it may, the learned trial Judge did not consider this to be sufficient incriminating factor, as he acquitted Naseem alias Naji vide the same judgment.
' The mere fact that he was a brother of a person named as accused in the case, who later happened to have escaped and died in some police encounter, also, in our view, is no sufficient material to hold him guilty on a capital charge. The reference made to the case registered at the instance of Anwar P.W. Against Ayub, brother of appellant Farooq, was registered on 17-4-1985, i,e, almost a year after the present occurrence. Registration of a case after the occurrence could not have any bearing on the merits of this case. It is apparent from the above discussion that no corroboration whatsoever to the ocular account in his case is available. We have observed in the earlier part of the judgment that it would be unsafe to award or maintain conviction in this case without material corroboration to the ocular account. The appeal qua Farooq alias Kala appellant is, therefore, allowed and he is acquitted of all the charges.
42. Although carbine is stated to have been recovered at the instance of Moulvi Zafar appellant, but that was of no consequence, as the same was not found wedded with any of the empties taken into possession from the spot. He had no motive of his own to join the assailants of the occurrence. Although his brother was co-accused with father of Naeem alias Gogi and other persons connected in this case, but the said case was registered on 17-4-1985, i,e, a year after the occurrence. It is, therefore, not possible to hold squarely that he was a regular partyman of the assailants at the time of this occurrence. The learned trial Judge while holding him guilty drew inferences against him on account of his having failed to prove alibi he pleaded at the trial.
Learned trial Judge observed that the false plea pleaded by him goes a long way to show that he had committed the offence. It appears from the tenor of the impugned judgment that, had this fact, been not there, learned trial Judge might not have convicted him.
' Moulvi Zafar appellant not only pleaded alibi, but he had examined in defence two witnesses also.
Tauseef Raza (D.W.1) stated that one Zafar Iqbal, who had come to Emergency Out door was referred to Surgical Unit No,4 on 28-44984. Syed Zulfiqar Ali (D.W.2), who had produced the record of admission of Zafar Iqbal, as a patient on 28-4-1984, stated during cross-examination that the patient was not found present in the Ward on the evenings of 28th, 29th and 30th of April, 1984 and on 1-5-1984. He also stated that he had not provided results of the tests to the doctor that he was asked to.
' It appears that the learned trial Judge was mostly influenced from the absence of the appellant on the evenings of above-noted dates from the hospital. The occurrence had taken place on 30-4- 1984. The appellant (Moulvi Zafar) had not absented only on that evening but he was also found absent on two evenings prior to 30-4-1984 and on the following evening too. Even otherwise, it is known that the indoor admitted patients, whose ailments are not very serious, sometimes move out of the ward for stroll etc. In the circumstances, we do not differ with the learned trial Judge that Zafar Iqbal had not been able to prove that he was present in the Services Hospital at the time of occurrence, but we are not prone to accept that the whole story of his admission in the hospital was a false one. In our view, the settled principle of criminal law is that the prosecution case has to stand on its own legs; failure on the part of the accused to prove his innocence or laxities in the defence pleaded by him cannot form the basis of proof of his guilt. It is admitted principle of criminal jurisprudence that an accused can take more than one pleas and sometimes alternate too. If the failure of the accused to prove one of the pleas taken by him is to result in burdering him with the responsibility of commission of crime, then how will he be able to avail and earn the benefit of the second plea? In this respect we have gone through the judgments cited by the learned counsel for the appellants. In Sadiq v. State PLD 1967 SC 356, the learned Judges observed, 'The correct principle is that falsities appearing in the statements of accused persons do not bar the allowance to them of an advantage that the law permits, on the basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted in the case'. The judgment was delivered by his Lordship Mr. Justice Cornelius, C.J. In Illahi Bux etc. v. State 1969 SCMR 584, their Lordships of the Supreme Court observed as follows at page 588:-- "With all respect, if an accused person in his defence is entitled to take up whatever plea he likes, true or false, the fact that he fails to establish all or anyone of them, should not recoil to his disadvantage for the drawing of any inferences regarding his guilt which has to be clearly and satisfactorily established by the prosecution. In criminal cases, the onus always remains on the prosecution to prove its case."
' We may observe here that in the said case the learned trial Judge had used the false defence of alibi as corroborative circumstance against the appellants.
43. For the aforesaid reasons, we have no hesitation in saying that the learned trial Judge erred in convicting Moulvi Muhammad Zafar Iqbal on the basis of his failure to prove alibi. The same, in our view, has to be excluded from consideration against him. As a result of that the only evidence available against him is the evidence of the eye-witnesses, regarding which we have already held that the same by itself is not sufficient, in the circumstances of this case, to maintain conviction.
The appeal qua him is also, therefore, accepted. He is acquitted.
44. In the case of Naeem alias Gogi, the ocular account stands corroborated from the evidence of recovery of sten-gun from him, which, according to the report (Exh.P.PP) from the office of the Forensic Science Laboratory, was found 0 wedded with nine crime empties (C/20 to 28) taken into posession from the spot. In that, we have considered the contention of the learned counsel for the appellants that the evidence of recovery of empties from the spot as well as the evidence of recovery of sten-gun at the instance of Naeeni is not worth reliance.
' The argument that the learned counui advanced for rejecting the evidence of taking into possession of the empties from the spot, was that Munir Hussain Shah, the only witness from the public, who deposed about that, had suffered injuries during the occurrence and was taken to Mayo Hospital immediately thereafter, according to him, he could not be at the spot at the time of spot inspection to witness the taking into possession of the empties. He was found to have suffered two injuries on the front of his right thigh, above the right knee. One of the injuries was an exit wound. The pellet was found to have made exit through flesh, without causing any damage to the bone. He clearly stated that while in the hospital also he was moving about. Obviously, he was not incapacitated. He could, therefore, have conveniently come to the spot to join the investigation.
Apart from that we find hardly any reason to reject the evidence of Muhammad Aslam, A.S.I.
(P.W.17) also in that connection. He could not have known at that time as to which of the accused named in the F.I.R. Would ultimately lead to recovery of which weapon. He, therefore, would not have conceived the idea of substituting the empties.
' The evidence of recovery of sten-gun also, in our view, does not smack of mala fides. In that Ismail P.W.10 was definitely not connected with the complainant party as a relative or partner in the business. The reference made by the learned counsel with regard to the discrepant statement made by him about the presence of three persons only with the Investigating Officer at the time of recoveries, stands explained from the statement made by Rehmatullah Niazi (P.W.19). In that he clearly stated during cross-examination that two accused had been taken from Police Station Nawankot while the other three accused had been sent for from Police Station Old Anarkali. It is quite possible that Ismail may have joined investigation only when the three accused sent for from Police Station Old Anarkali were being interrogated for recoveries. Still another fact which has attracted our mind in this connection is that no bias or mala fides can be imputed to Rehmatullah Niazi, as the said Police Officer had acted independently in so far as accused party is concerned by declaring four of the accused named in the F.I.R. To be innocent. In fact, he had moved for their discharge too. If any motive can be imputed to him of being partisan, it would be for being a party on the accused side and not the complainants.
' The empties in this case had been sent and received at the Forensic Science Laboratory much prior to the date on which recovery of the sten-gun was effected from Gogi. No doubts, therefore, can be entertained about the fabrication or substitution of the empties found to be wedded with the sten-gun. In the circumstances, we are clear in our mind that the prosecution has succeeded in proving the case against him. The appeal qua Naeem alias Gogi is, therefore, dismissed. The sentence of death awarded to him on three counts is confirmed.