JUDGMENTAHMAD SAEED AWAN, J.- Abdullah, Muhammad Aslam and Akhtar alias Kalu were charged along with their 8 co-accused under Section 302/207/148/149/34 P.P.C, vide F.I.R No. 597 dated 21.12.1987 of Police Station Sadar Kamoke for the murder of Bahadur Ali and murderous assault on the injured PW Muhammad Mushtaq and Muhammad Bashir were convicted under Sections 302/34 P.P.C, for life imprisonment and a fine of Rs.20.000/- each; in default of payment of fine to further undergo R.I. For two years each and also each of them held further liable to pay an amount of Rs.20,000/- as compensation to the legal heirs of the deceased; in default each of them of undergo R.I. For six months. Further convicted under Sections 307/34 P.P.C, for three years to each with a fine of Rs. 3,000/-; in default of payment of fine to further undergo R.I. For six months and also to pay an amount of Rs. 1,000/- as compensation to each injured person; in default of which each of accused to further undergo R.I. For one month.
2. The prosecution case in brief is that one Abdul Majeed son ot Qadri made a statement before police on 21.12.1987 at Civil Hospital Kamoke, the literal translation of which is as under:- "I am resident of Tatle Mali and a cultivator. Abdullah son of Meharbon, caste Rajput, also resides in the same village. No.20.11.1987 stud Abdullah and his companions had quarrelled with my son Mushtaq Ahmad in which Bashir son of Niaz Muhammad was injured and a case under Section 307/321/148/149/109/ PPC was registered at the police station against Abdullah etc vide F.I.R.
553/87. Abdullah and his companions had a grudge for it. Today I along with my son Mushtaq Ahmad, Bashir son of Niaz Muhammad , Bahadur Ali son of Niaz Muhammad, Faqir Muhammad son of Karim Bakhsh, Inayat Ali son of Abdul Ghafoor and Abdul Sattar son of Sabir Ali, all Rajput reached Bus Stop of Morr Chananian at 8A.M. In order to leave for Gujranwala we were waiting for the bus, when accused Abdullah son of Meharban armed with a sota, Arshad son of Abdullah, armed with a sota, Arshad son of Abdullah armed with a hatchet, Aslam son of Meharban armed with a sota, Aflatoon son of Rehmat resident of Tetley Aali armed with a sota, Muhammad Yousaf son of Jamal Din caste Arain, armed with 12 bore gun, Abid son of Meer Hussein caste Arain, armed with 12 bore gun, Hanif son of Sadiq caste Gujjar resident of Tatle Mali armed with 12 bore gun, Kalu son of Muhammad Shaft caste Rajput, armed with a knife and Latif son of Abdul Sattar caste Rajput resident of Totley Aali armed with a knife came there who raised Lalkara to me and my companions that we could not go back alive and that we would be taught a lesson for registration of case. Aforesaid Abdullah gave sota blow to Bahadur Ali on his head. Second blow of sota was given by Muhammad Arshad on the forehead of Bahadur Ali due to which he fell down on the ground. Irshad gave blow with a hatchet with blunt side to Bahadur Ali on the left side of forehead while fallen on the ground. Then Muhammad Aslam and Aflatoon gave blows with sotas to Bahadur Ali on his head. Then Kalu son of Muhammad Shafi fired with carbine at Mushtaq Ahmad as a result of which 4/5 pellets struck him on his left thigh. Then Abdullah, Arshad, Aslam and Aflatoon started giving beating with their sotas to Mushtaq Ahmad thus injuring him on his head, both hands and right arm. Then Ghulam Nabi gave knife, blow to Muhammad Bashir on the right side of his chest whereafter Muhammad Latif gave knife blow to Bashir on the left side of his chest due to which Bashir fallen down and then Ghulam Nabi and Latif gave knife blows to him on his back. Abdullah and Aslam gave sota blows to Bashir on his head. Abid, Latif and Hanif who were standing beside continued firing at us with their guns. All the accused in collaboration with each other and due to grievance of previous litigation have injured my companions Bahadur Ali, Mushtaq Ahmad and Bashir with their weapons. When all the accused satisfied themeslves, and ran away by firing, I along with Faqir Muhammad, Inayat Ali and Abdul Sattar brought the injured Bahadur Ali, Mushtaq Ahmad and Muhammad Bashir to CivilHospital Kamoke for obtaining medico legal reports. After medico legal examination of these persons, Bahadur Ali died in the hosptial due to the injuries. I present medico legal reports of all the three injured. This occurrence was seen by myself, Faqir Muhammad, Inayat Ali and Abdul Sattar. I request for action. I have heard my statement which is correct".
3. The prosecution in support of its version produced as many as 15 prosecution witnesses; PW-1 Nazir Ahmad A.S J, PW-2 Arif Hussain, PW-4 Nazir Ahmad constable, PW-5 Talib HUssain, PW-6 Shaukat! Ali Constable PW-11 Mukhtar Ahmad Constable, PW-14 Manzoor Hussain and PW-15 Muhammad Bashir appeared as formal witnesses except PW-5, who also appeared as recovery witnesses;; all the above-mentioned prosecution witnesses supported the version of the prosecution.
4. The Investigating Officer Muhammad Bashir S.I. And PW-13 Mobarik Ali Shah S.I. And PW-15 Muhammad Bashir in their deposition gave details of investigation and proved all the documents and memos prepared by them and supported the prosecution version with one voice.
5. Dr. Muhammad Afzal PW-9 on 21.12.1987 at. 10.40 AM examined Bahadur Ali son of Niaz Muhammad aged 28 years and found on his person five injuries. Bahadur Ali was unconscious at that time. Puplis were detailed and reaction to light was slugish. Pulse was 110 P.M.B.P not recorded and patient's condition was serious and referred to General Hospital, Lahore. All the injuries were kept under observation and advised X-rays skull. According to doctor injuries were caused by blunt weapon and probable duration of injuries was 1 to 4 hours. On the same day at 10.45 A.M. PW-9 Dr. Muhammad Afzal examined Mushtaq Ahmad injured PW-10 and found on his person 15 injuries out of which injuries No.1, 23,45,6,11,13,14, and 15 were caused by blunt weapon while injuries No.7,8,9,10,12 were caused by firearms. Injuries No.10,12,13,14 were found simple, rest were kept under observation and advised X-rays. According to doctor probable duration of injuries was within 4 hours. On the same day PW-9 examined injured PW-8 Muhammad Bashir and found on his person 6 injuries.
Injuries No3,4,5, were simple while injuries No. 1,2,6, were kept under observation and was advised X- Tays skull and chest.
Injruries No.1, and 6 were caused by blunt weapon while injuries No. 23,45. Were caused by sharp edged weapon according to doctor's opinion. Probable duration of injuries was within 4 horns.
6. PW-3 Dr. Muhammad Ramzan Pervez on 22.12.1987 posted at T.H.Q. Hospital Kamoke conducted post-mortem examination on the dead body of Bahadur Ali deceased. The dead body was received on 21.12.1987 at 2.00 P.M. And police papers received on 22.12.1987. According to PW-3, he found on his person 7 injuries. All the injuries and ante mortem and caused with blunt weapon.
Injuries No.13, and 5 were grievous and dangerous to life. According to his opinion death occurred due to shock! And intra cranial haemorrhage as a result of injuries No.13, and 5 which were sufficient to cause death in the ordinary course of nature. Time between injuries and death was about 6 hours. Time between death and post-mortem was about 20 hours. After due investigation the accused were challaned and were sent to trial under Sections 302/307/148/149/ P.P.C, and charge was framed against the accused to which they pleaded not guilty, hence the prosecution evidence was recorded.
7. PW-7 Abdul Majid, injured PW-8 Muhammad Bashir and injured PW-10 Mushtaq Ahmad appeared as eye-witnesses to the occurrence and supported the prosecution version and contents of the F.I.R; PW-7 and PW-10 also supported the motive as alleged by the prosecution. PW- 5 Talib Hussain and PW-14 Manzoor Hussain Constable appeared as recovery witnesses. Inayat Ah, Faqiria, Abdul Sattar and Taj Muhammad PWS were given up as having been won-over by the accused party while Murad Ah and Tahsin PWs were left being unnecessary and Irfan Beg Constable being not available. The report of chemical examiner Ex.P.V. And that of Serologist Ex.P.W was tendered in evidence by the learned D.D A.
8. The learned trial Judge in his judgment observed that none of ffife sotas or hatchet was found blood-stained, no person from the locality where the recoveries were effected had been joined in the proceedings although according to PWs about 20/30 persons had assembled in the school where from they had started for recoveries. Inspite of this a relative of the deceased who happened to be resident of another district was chosen to become a witness of recovery. This casts serious doubt on the genuineness of the proceedings. Murad Ali a witness of recovery of knife P-11 has been given up. Although he police officials are competent witnesses but as the remaining recoveries are found to be doubtful, therefore, recovery of knife P-11 is also not above board.
9. The appellant accused Abdullah, Muhammad Aslam were armed with sota; while Akhtar alias Kalu son of Muhammad Shafi, as alleged was armed with 12-bore gun. The learned trial Judge did not consider properly the evidence on record and on the basis of same evidence without differentiating; ignoring the medico legal report that the PWs received injuries caused by sharp- edged weapon and firearms acquitted all those armed with knifes and 12-bore gun but sentenced the three appellants; out of whom two were armed with sotas and one with 12-bore carbine.
10. An interesting feature of the prosecution version which has not been given due weight by the learned trial Judge is that PW-13 Mobarik Ali Shah S.I. Admitted that shopkeepers Zafar Iqbal, Muhammad Yousaf, Zulfiqar and Khurshid had appeared before him at the spot and got recorded their statements and claimed to be the eye-witnesses; Habib Khan D.S.P, on 28.12.1987 also recorded the statement of the shopkeepers at the spot who did not support the version as contained in the F.I.R, but these shopkeepers were not cited as PWs. The PW also deposed that shopkeepers, namely, Saeed, Abdul Rashid and Suleman had also appeared before him at the spot and claimed to be eyewitnesses, who stated the number of assailants as 5/6. The auther of F.I.R.
Ex.PK/1 Muhammad Tahsin Head Constable No.162; who had registered formal F.I.R, was not produced by the prosecution on the plea that he was not traceable is unbelievable.
11. The prosecution neither cited the shopkeepers as PWs nor produced the natural witnesses like Inayat Ali, Faqiria, Abdul Sattar and Taj Muhammad; even Muhammad Tahsin Head Constable PW who had drafted the formal F.I.R; this attitude of the prosecution in the given circumstances creats doubts against the prosecution; the contention of learned counsel for the appellant carries weight that the prosecution has intentionally withheld the evidence, if would have produced the witnesses, who were natural witnesses; might have not favoured the prosecution; in such circumstances; the true facts would have been placed before the Court; in the circumstances presumption goes in favour of the appellant and against the prosecution.
12. As the learned trial Judge while acquitting 8 co-accused observed that the evidence against them was not inspiring the confidence; it is rule of law that ocular evidence must be of an impeachable character; if the prosecution witnesses can falsely implicate 8 innocent persons as observed by the learned trial Judge; can also involve the appellants when the enmity is proved but no motive to kill has been established.
13. The prosecution witnesses are closely related as discussed above and are admittedly inimical towards each other; in the circumstances as observed by the learned trial Court possibility of the accused being falsely implicated cannot be ruled out as held in case Muhammad Nawaz and 2 others vs. The State "1970 S.C.M.R. 220". It is established that the incident took place in a busy market; the shopkeepers had appeared before the I.O. As well as before the D.S.P, at the spot, got their statements recorded and claimed to be eye-witnesses but had not supported the version as contained in the F.I.R; the shopkeepers were natural and independent witnesses to the occurrence; non-production of such independent and natural witnesses by either side means neither the prosecution nor the defence had come out with true version; the benefit certainly goes to the accused.
14. The learned trial Judge after discussing at length pros and cons of the evidence regarding motive came to the conclusion that motive as set up by the prosecution has not been proved as there was ample evidence on the record to prove enmity and litigation between Abdullah etc on one side and the complainant on the other side. It is an admitted fact that the deceased Bahadur Ali was son-in-law of Talib Hussain PW-5; Abdul Majid PW-7 is father of Mushtaq Ahmad PW-10; PW-8 Muhammad Bashir is a convict whereas other two eye-witnesses had been challaned in so many criminal cases including theft etc and Abdullah co-accused (acquitted) had made many applications against the eyewitnesses Arshad and Irshad co-accused (acquitted) are sons of Abdullah accused.
15. The learned trial Judge after going minutely.Through the evidence relating to occurrence and analysing it came to conclusion that possibility of false implication of some of the accused is not ruled out. Further observed it is worth noting that PWs Inayat Ali, Faqiria, Abdul Sattar and Taj Muhammad were given up by the prosecution as having been won-over. Faqir Muhammad, Inayat Ali and Abdul Sattar are eye-witnesses mentioned in the F.I.R; as some of the independent witnesses have been given up and only related persons produced as witnesses; much weight may be given to the fact that the shopkeepers of the vicinity who also witnessed the occurrence had exonerated some of the accused; under the circumstances adverse inference is to be drawn against the prosecution to the extent of some of the accused. Hence false implication in the case also cannot be ruled out against the appellant because it has become fashion in criminal litigation to throw a wid net. The learned trial Judge also observed that there is sufficient material to suggest that many cases were registered against the three eye-witnesses. It is on record that name of Muhammad Bashir PW had been entered in bundle of PW and was habitual of Filing false applications. The learned trial Judge also observed that three PWs being involved fully in criminal litigation and are well versed into subject and can easily involve innocent persons in the cases; hence the learned trial Judge giving benefit of doubt acquitted 8 co-accused persons.
16. I have heard the arguments of both the counsel and have gone through the record with their able assistance. As per prosecution version Arshad son of Abdullah, armed with sota, Irshad son of Abdullah, armed with a hatchet, Aflatoon armed with a sota, Muhammad Yousaf, armed with 12- Bore gun, Abid, armed with 12-Bore gun, Hanif son of Sadiq armed with 12-Bore gun, Ghulam Nabi, armed with a knife and Latif son of Abdul Sattar armed with a knife werer alleged specific role with certainty having inflicted injuries to the deceased and injured PWs. As per medico legal report injuries to PW Mushtaq Ahmad are 15 in number, out of which 5 injuries were caused by firearms; similarly injured PW Muhammad Bashir received 6 injuries, out of which 4 injuries were caused with sharp edged weapon. The learned trial Judge acquitted all those accused persons who were armed with knife and 12-Bore guns but convicted appellants who are armed with stotas only. The learned trial Judge convicted the appellants with-out giving due consideration to the relevant different versions which came into light which were different by the prosecution itself during investigation; as there were three versions before the police; according to the eye-witnesses and contents of FJ.R; there were 11 accused persons who inflicted injuries to the deceased and injured PWs; and each of the assailant was attributed a specific role to cause injuries; according to shopkeepers the second version was that 5 to 6 assailants had attacked and inflicted injuries to the deceased as well as to the injured PWs and 3rd version was brought on record vide Ex.DC that it was not considered at all.
17. Injured PW-10 Mushtaq Ahmad conceded in cross-examination that his statement was recorded by the police after 5 days of ,the occurrence and deposed; "police had informed me that a case had been registered. They told me number of accused was 11. Names of some accused with their respective arms were told by them as I have deposed today".PW-7 Abdul Majid confirmed the statement of PW-10 Mushtaq Ahmad by deposing in cross-examination; "their statement were recorded on 5th day of their regaining consciousness I had informed them that I had got registered a case. I had also informed them about details of accused nominated and weapon used by them".
The learned trial Judge relied upon the evidence of injured PWs; that in no way is admissible as direct evidence and cannot be relied upon as an eye-witness under Section 71 of the Qanoon-e- Shahadat Ordinance, 1984; as the witnesses were tutor by the police as well as by the PW-7 who had jjot his statement Ex.PK i.e. F.I.R, recorded. The learned trial Judge reached to the conclusion to convict the appellants without taking into consideration all the relevant evidence and facts. The evidence, particularly of eye-witnesses in not inspiring the confidence which cannot be relied upon at any cost, as laid down in case Abdul Rauf vs. The Crown "1971 S.C.M.R. 256".
18. Neither the motive for the occurrence has been proved through direct; nor the recovery of incriminating articles have been proved.
19. The conviction of an accused depends upon the quality of evidence and not on the quantity of evidence; the tuitored evidence is worst evidence which, should be rejected straightaway and benefit of doubt be given to the accused without any hesitation.
20. For what has been discussed above, I have noticed that the eyewitnesses have been disbelieved in regard to their evidence against the other 8 co- accused(acquitted) and so far as the motive is concerned; similarly, no reliance on the tuitored statement of the witnesses can be placed. The witnesses have been dis-believed about the motive and recovery of incriminating articles.
21. I feel it may not be in the interest of administration of criminal justice to rely upon the tuitored testimony of interested and inimical witnesses who have been held not reliable as for the other 8 accused persons. Therefore, giving the benefit of doubt, I accept the appeal and set-aside the convictions and sentences of the appellants and direct that they be released forthwith it not required in any other case.