' MUHAMMAD ASLAM ARAIN, J.--- Appellants Muqeem, Bhaledino and Farid were tried on charge under section 302/34, P.P.C. Alongwith acquitted accused Haji Idrees and Muhammad Hayat. On conclusion of trial, appellants Muqeem and Bhaledino are convicted and awarded sentence of death under section 302/34, P.P.C., while appellant Farid is convicted and sentenced to imprisonment for life. Appellant Farid is also directed to pay fine of Rs,50,000 or in default to undergo further R.I. For one year. 2/3rd amount of fine if realised from appellant Farid, is directed to be paid to the heirs of the deceased. We have before us confirmation of death sentence awarded to appellant Muqeem and Bhaledino and also appeal filed by the 3 appellants.
2. Prosecution case, in brief is, that on 26-34990 one Bashir Ahmed P.W.1 lodged F.I:R. At Tharoshah Police Station under sections 302, 147 and 148, P.P.C. In which he stated that he resided in village Khahi Qasim and deceased Shah Nawaz aged about 22 years was his cousin. The deceased owned land in Dch Khahi where there was a mango and lemon garden. On the day of incident at 4 p.m. While he was in his land adjoining to the land of deceased Shah Nawaz who was irrigating his land, appellants and the acquitted accused Haji Idrees and Muhammad Hayat appeared at the land of Shah Nawaz. Appellant Muqeem was carrying a hatchet while Farid and Bhaledino were carrying spades. The acquitted accused had hatchets with them. All the accused started plucking lemons from the garden of deceased Shah Nawaz who objected to such act of the accused. It is also in the F.I.R. That on this, the accused abused and then appellant Muqeem gave sharp-side hatchet blows to deceased on his neck. Appellants Bhaledino and Farid gave sharp-side spade blows to the deceased on his head, neck and shoulder. When the deceased fell down, the acquitted accused Idrees and Hayat gave Lathi blows to the deceased. Complainant Bashir Ahmed raised cries on which his son Ishtiaq and Photal, father of the deceased and some others were attracted and then all the accused ran away. Injured Shah Nawaz succumbed to injuries, whereupon complainant went and lodged report at 15-10 p.m. At Police Station Tharoshah, which is 12 miles from the scene of offence.
3. H.C. Ahmed Khan, who registered the F.I.R. Proceeded to the scene of offence and saw dead body of Shah Nawaz lying near watercourse in the mango garden. He prepared Mashirnama of Wardat in presence of Mashir Zameer and Roshan, collected blood-stained earth and also prepared inquest report in presence of said Mashirs. He also forwarded dead body through P.C. Ali Akbar to Medical Officer Naushero Feroz for post-mortem examination. S.H.O. Muhammad Ashraf then arrived at the Wardat, verified the investigation and recorded statements of P.Ws. Ishtiaq and Muhammad Photal. On 27-3-1990 accused Hayat, Muqeem, Photal and Farid were arrested from village Kouro Memon and he then handed over papers to S.H.O. Inayatullah, who took over charge from Muhammad Ashraf. On 7-4-1990 the 4 accused who arrested, volunteered to produce the crime weapons from the garden of Muhammad Bachal near village Kouro Memon. At the pointation of accused Hayat a Lathi was recovered, while at the pointation of Farid and Bhaledino spades were recovered. At the pointation of Muqeem a hatchet was recovered. On 8-4-1990 statements of P.Ws. Ishtiaq and Photal were recorded by Mukhtiarkar and S.D.M., Naushero Feroz under section 164, Cr.P.C. Challan against 4 accused was sent showing accused Idrees as absconder.
4. Charge under sections 302, 148 and 149, P.P.C. Was framed on 17-12-1990 to which all the 5 accused pleaded not guilty and claimed to be tried.
5. Prosecution examined P.W.1 complainant Bashir Ahmed (Exh.11) who produced F.I.R. Exh.12, death certificate of P.W. Photal (father of deceased Shah Nawaz) (Exh.13), P.W.2 Ishtiaq Ahmed (Exh.14) said to be an eye-witness, and he produced his statement under section 164, Cr.P.C. (Exh.15). P.W.3 Zameerul Hassan (Exh.16) was the Mashir of Wardat (Exh.17) inquest report (Exh.18), arrest of the accused Muqeem, Muhammad Hayat, Farid and Bhaledino (Exh.19) and recoveries of hatchet and spades from the accused (Exh.20), P.W.4 Dr. Imtiaz Ali (Exh.21) was the Medical Officer, Naushero Feroz on 26-3-1990 and he stated that he had received the dead body of deceased Shah Nawaz and conducted post-mortem examination and produced report (Exh.22). The Medical Officer has given the description and nature of injuries total being 8.In number, 6 of which were incised wounds. P.W.5 Ghulam Mustafa (Exh.23) was Tapedar who prepared sketch of Wardat and produced the same as (Exh.24) P.W.8 Ahmed Khan (Exh.25) was Head Constable and he had recorded F.I.R. Of the case (Exh.12), had prepared Mashirnama of Wardat (Exh.12) and inquest report (Exh.18). P.W.7 Muhammad Ashraf (Exh.26) was S.H.O., Police Station Tharoshah on the date of incident and as he was busy in the investigation of some other crime, when on his return he was informed of the F.I.R. Of this case. He proceeded to the Wardat and conducted investigation as already stated and on his transfer he handed over papers to S.H.O. Inayatullah. P.W.8 All Akbar (Exh.27) was the corpse-bearer and he had handed over the dead body to the heirs of the deceased. P.W.9 Inayatullah (Exh.28) was S.H.O., P.W. Naushero Feroze having taken over charge from P.W. Muhammad Ashraf. At the pointation of accused he had recovered the weapons from the garden. The report of the. Chemical Analyser was produced by the Public Prosecutor (Exh.30) and the blood-stained earth and the clothes on the person of deceased were opined to be stained with human blood.
5. Statements of the accused Muqeem (Exh.32), accused Bhaledino (Exh.33), accused Farid (Exh.37), accused Muhammad Hayat (Exh.35) and accused Haji Idrees (Exh.36) were recorded and all accused denied the allegations against them . Accused Muqeem, Farid and Muhammad Hayat further stated that they were Kamdars of Justice (Retd.) Abdul Hafeez Memon and looked after his garden adjacent to the lands of complainant. There was dispute with complainant over rotation of water and cattle trespass which fact they had brought to the notice of their Zamindar and therefore, they were falsely implicated. Accused Haji Idrees stated that on the day of incident he was with Justice (Retd.) Abdul Hafeez Memon at Karachi, where he was informed on telephone that a murder had taken place in his village for which he and his brothers and nephews were involved by the complainant.
6. Justice (Retd.) Abdul Hafeez Memon appeared as D.W.1, who stated that he had relationship with deceased Shah Nawaz. It was further stated that accused Haji Idrees was his Kamdar and was with him on 26-3-1990 at his. Karachi residence at 6 p.m. And had come to him one day prior to the said date and remained with him till sunset time on 26-3-1990. He also confirmed that this information regarding murder of deceased was received through telephone. He also stated that he did not have cordial relations with Zamindars of Khahi Qasim and relations of accused with complainant party were strained, complaints regarding which he had received many times. On conclusion of trial, the learned trial Court acquitted Haji Idrees and Muhammad Hayat while convicted 3 appellants herein, as stated above.
7. The trial Court has taken evidence of complainant Bashir Ahmed and P.W. Ishtiaq as ocular testimony, and recoveries of hatchet and spades from accused and medical evidence as supporting evidence. The trial Court did not believe the motive as given in the F.I.R. And discarded the evidence on that score.
8. The contentions of Mr. A.Q. Halepota, learned counsel for the appellants are that the ocular testimony of P.Ws. Bashir and Ishtiaq was not relied upon so far acquitted accused Haji Idrees and Hayat were concerned and evidence of same witnesses could not form basis of conviction of appellants in absence of any independent corroboratory evidence; that medical evidence did not corroborate testimony qua appellants; the evidence regarding recovery of crime weapons which was allegedly made after 10 days of arrest of accused, was not worthy of reliance and it furnished no corroboration to ocular testimony; the crime weapons were allegedly recovered on the joint pointation of appellants which weapons admittedly were not blood-stained; and lastly that on same evidence, which is disbelieved in respect of the two acquitted accused, conviction on a capital charge could not be recorded.
9. Mr. Muhammad Zubair Qureshi, learned Advocate appearing for the State, supported the conviction but suggested that the retrial of all accused be directed as one of the accused namely, Farid being 16 years of age was minor and could not be tried with co-accused.
10. In this case, ocular testimony is furnished by complainant Bashir Ahmed and his son Ishtiaq Ahmed. Their evidence was not believed and accepted by the trial Court in respect of the acquitted co-accused Haji Idrees and Muhammad Hayat. Again on analysis of the evidence of P.W. Ishtiaq Ahmed, it is observed that he had seen the accused going away after the incident. In his statement P.W. Ishtiaq stated, "thereafter my father told us that there was dispute over lemons on which accused persons killed Shah Nawaz". Complainant Bashir Ahmed, howeyer, did not state in his evidence that he told his son P.W. Ishtiaq Ahmed that on account of some dispute over plucking of lemons the accused persons killed Shah Nawaz. The evidence of P.W. Ishtiaq Ahmed, therefore, is hit by the provisions of Article 60 of Qanun-e-Shahadat, 1984 and is inadmissible.
11. It is now to be seen if the ocular testimony coming from P.Ws. Bashir Ahmed and his son Ishtiaq Ahmed is worthy of credence and could be relied upon for sustaining conviction of appellants is believed by the trial Court in respect of the acquitted co-accused when the learned trial Court observed that there was exaggeration made out the number of culprits. In our view, their testimony could be accepted for recording conviction against the appellants provided it was corroborated by independent evidence. In Ahmad etc. v. The State 1984 SCMR 1049, the Honourable Supreme Court of Pakistan observed at page 105.0 as under:-- "In believing the recoveries and the expert opinion and giving effect to the same, the learned Judges in the High Court rejected a material part of the statements of all these eye-witnesses in so far as the implication of Nemat was concerned. This fact itself detracted from the intrinsic worth of their testimony as ocular witnesses. The conclusion that could naturally be drawn after so rejecting a part of their evidence was that either they were not present at all at the spot and had not witnessed the occurrence, or that they had implicated falsely others who had not participated in the occurrence. As the occurrence had taken place during the morning hours of April, not very late in the day and on a village path, it is natural that there should have been people present. Mst.
Maqboolan and others had properly accounted for their presence and both the Courts had believed their presence at or near the spot at the time of occurrence. This much having been established, their testimony, of necessity, required independent corroboration because it had been found to be at variance in material particulars in so far as they had implicated Nemat.
Corroboration has to be looked for and found not only where the witnesses are interested but also in cases where by itself the ocular testimony is not so sound and doubt-free as to independently suffice for the conviction of the accused."
12. In Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11, the Honourable Supreme Court observed at page 23 as under:-- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as individual although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hallmark of Islamic jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused."
13. In view of the above case-law, since the two witnesses who claimed to be the eye-witnesses of the occurrence have been disbelieved by the trial Court in respect of the acquitted accused, their evidence would need strong and independent corroboration in respect of convicted accused. The learned trial Court for that matter seems to have taken corroboration from the recoveries of hatchet and spades from the appellants. It is admitted that the recoveries were made from a garden after 10 days of the arrest of the accused and said articles were not even stained with human blood. It is further a joint recovery on joint pointation of accused which does not connect the appellants or acquitted accused with the commission of the offence and as such it in no manner corroborates the ocular testimony.
14. Motive to commit the offence is not even believed by the learned trial Court and the exact words used in the judgment are "the motive in this case is of no significance as in this case the accused have committed this offence without any motive". As such there was no evidence of motive and on that account again ocular testimony does not get any corroboration. In the case of Nawab and others v. The State 1979 P Cr. L J 736 a Division Bench of this Court held that motive for offence, however strong, cannot provide corroboration to other pieces of evidence. The rule laid down in the case of Hamzo v. The State PLD 1960 Kar. 817 and Nazo v. The State 1974 P Cr. L J 313 was followed and the accused were acquitted.
15. The above discussion would lead to unrebuttable conclusion that the ocular testimony of interested witnesses which is held unreliable in respect of acquitted accused, and is not corroborated by another strong evidence, cannot form basis of conviction on a capital charge.
Admittedly, from the evidence of defence witness Justice (Retd.) Abdul Hafeez Memon, it was proved conclusively that Haji Idrees was present with him at Karachi on the day of occurrence and still the complainant had audacity to name Haji Idrees as an accused who participated in the commission of offence.
16. Complainant Bashir Ahmed, in our view is highly unworthy of credit. Except his son Ishtiaq Ahmed and one Photal father of the deceased, nobody was attracted from nearby villages, admittedly at call's distance. We even doubt if Bashir Ahmed and Ishtiaq Ahmed were present at the scene of offence and to us it appears that the incident was unwitnessed and as stated by the defence witness, there was dispute with the adjoining Zamindars who were displeased with appellants and co-accused working on the lands of Justice (Retd.) Abdul Hafeez Memon. There is no independent and reliable evidence in the case and the evidence which even according to the trial Court was based on exaggerations made by complainant Bashir Ahmed and P.W. Ishtiaq Ahmed, cannot be accepted in respect of the appellants.
17. The upshot of the above discussion is that the prosecution had failed to prove their case against appellants beyond all reasonable doubts. We, therefore, give benefit of doubt to the appellants, accept the appeal, set aside the conviction and sentence, and acquit them. They shall be released forthwith if not required in any other case. In the circumstances, the confirmation of death sentence is declined.