1. ' MUHAMMAD ASLAM ARAIN, J.--- This judgment would dispose of Criminal Appeals Nos.185 of 1990 filed by appellant Mir Ajab Khan, No,189 of 1990 filed by appellant Muhammad Akber, No,190 of 1990 filed by appellants Rustam Khan and Hussain Khan, No,193 of 1990 filed by appellants Habibur Rehman and Zabit Khan and Criminal Revisions Nos.95 of 1990 and No,28 of 1991 filed by Mir Hassan.
2. These matters have arisen out of the judgment delivered by the Sessions Judge, Karachi-West on 10-11-1990 in Sessions Case No,613 of 1988 (old No,4486 of 1976) which was outcome of F.I.R. 91 of 1974 of Police Station Jackson, Karachi.
2. According to the prosecution, on 6-9-1974 at about 1-30 p.m. Appellant Habibur Rehman, who was driving Jeep No,KAK-7626 arrived at Qadri Hotel, Kemari, Karachi carrying in his jeep appellants Zabit Khan, Rustam Khan, Muhammad Akbar, Hussain Khan and acquitted accused Zia Abbas and one Tariq Saeed. Appellant Mir Ajab Khan was following the said jeep by driving a scooter. At that time P.W. Fazal Qayoom, deceased Abdul Hassan and deceased Noor Hassan, were present outside the hotel which belonged to Mir Hassan. Complainant Bukhtiar Khan was present at a Ration Shop situated on the ground floor of Khalifa Manzil at a distance of 5/6 paces and a road from the hotel. On reaching said hotel, Zia Abbas and the appellants got down from their vehicles.
3. Zia Abbas told his companions to take advantage of the opportunity and finish the enemies. At instance of Zia Abbas, Habibur Rehman fired his gun which hit Noor Hassan, who received injury over his eye. Thereafter Rustam Khan fired his revolver which hit Abdul Hassan. Zabit Khan fired his revolver which caused injuries to Fazal Qayoom on his buttock. Thereafter the assailants fired guns, rifles and pistols at Abdul Hassan, Noor Hassan and Fazal Qayoom so as to kill them. Nor Hassan succumbed to his injuries at the spot. Abdul Hassan and Fazal Qayoom were seriously injured and they fell down at the Wardat. The incident was witnessed by P. Ws. Muhammad Nawaz, Mansoor and others. On seeing from a ration shop the incident in which Habibur Rehman, Rustam and Zabit Khan fired at Noor Hassan, Abdul Hassan and Fazal Qayoom, respectively, and observing death of Noor Hassan at the spot after receipt of gun shot fired by Habibur Rehman, P.W. Bakhtiar Khark.Rushed to Police Station Jackson, where he lodged F.I.R. On the same day at 1-45 p.m. Motive for the incident as per the F.I.R. Was old enmity. Firing by the assailants was motivated to kill Noor Hassan, Abdul Hassan and Fazal Qayoom, as added in the F.I.R.
3. After recording F.I.R. Of Bakhtiar Khan, Inspector Akhtar Ahmed Siddiqui of Police Station Jackson took over the investigation. He proceeded to the Wardat, where he saw two empty bullets, one used cartridge of .12 bore, and one empty bullet of a pistol which were secured and sealed besides the bloodstained earth. Inspector Akhtar Ahmed visited Civil Hospital, where he examined Fazal Qayoom while Abdul Hassan .Waecertified by the doctors to be unable to nariate the. Facts. The Inspector prepared memo. And inquest report of the -dead body of Noor Hassan lying in the hospital. The post-mortem examination was conducted by Mr. Abdul Hadi, Police Surgeon, Karachi.
4. On return to the police station Inspector Akhtar received information that injured Abdul Hassan had died. Before his death, injured Abdul Hassan was examined by Dr. Abdul Muqeet, Casualty Medical Officer. After death of Abdul Hassan, his dead body was taken by F.C. Khadim Hussain to Dr. Abdul Hadi Khan for autopsy. Dr. Abdul Hadi did autopsy on the dead body of Abdul Hassan. Injured Fazal Qayoom was examined by Dr. Abdul Muqeet and operated upon by Mr. Rahim Vohra who removed from his body a bullet. Inspector Akhtar Ahmed Siddiqui arrested appellants Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan and Muhammad Akbar on 7-9-1974. He secured Jeep No,KAK-7626 which took the assailants to the Wardat. Habibur Rehman took police to his house and produced from there a shot-gun having emitting small and four cartridges. Zabit Khan led police to his house and produced from there one revolver having emitting small, and .12 live cartridges which were secured by police under a Mashirnama. Hussain Khan led police to his house and produced from there a revolver having emitting small and 10 lives cartridges. Appellant Rustam Khan led police to his house and produced from there one pistol, a shot-gun and two live cartridges which were secured by the S.H.O. The shot-gun was said to be belonging to Habibur Rehman. The recovered weapons were licensed.
5. ' Under a judgment, dated 26-1-1983 reported in PLD 1983 SC 286; Honourable Supreme Court of Pakistan accepted the two appeals, set aside the impugned judgment and remanded the case for fresh trial by a Judge other than the Judge who decided the case. It was argued before the Honourable Supreme Court that innocent police statements were put to the witnesses, in a wrong manner, without proper confrontations and the. Investigating Officer's statement was recorded and used in an illegal manner and that there were several instances of misreading of record and evidence. While remanding the case the Supreme Court of Pakistan observed in the case that it was painful to see very close relations pitched against each other and that both the sides seemed highly influential parties. The Supreme Court of Pakistan desired fresh trial of the persons who were accused in the case except Tariq Saeed.
7. After remand, a fresh trial took place against the appellants and Zia Abbas. A fresh charge was framed against them on 15-8-1983 by the then learned Sessions Judge, Karachi for the offences punishable under sections 148, P.P.C., 302/149, P.P.C. And 307/149, P.P.C. All the appellants as well as Zia Abbas pleaded not guilty to the charge.
8. Prosecution examined complainant Bakhtiar Khan Exh.115 and P.Ws.-- Fazal Qayoom Exh.24, Haji Sher Hassan Exh.35, Mir Hassan Exh.38, Abdul Qadir Exh.75, Akbar Ali Exh.75, Fazal Qadir Exh.81, Muneer Muhammad Asam Exh.96, Nasir Khan Exh.108, Dr. Abdul Hadi Exh.112, Muhammad Nawaz Exh.139, Dr. Abdul Muqeet Exh.141, Muhammad Bashir Exh.146, Dr. Abdul Rahim Bohra Exh.147, Khadim Hussain Exh.162, Mukhtar Ahmed Exh.164 and Akhtar Siddiqui Exh.174.
6. Prosecution was closed under statement Exh.197.
9. The trial Court examined Muhammad Nazir Exh.18, Muhammad Suleman Exh.22, Zaheer Ahmed Exh.148, Syed Alamdar Hussain Exh.163 and Muhammad Lateef Exh.186 as Court-witnesses.
10. In their statements Exh.198, Exh.199, Exh.200, Exh.201, Exh.202, Exh.203 and Exh.204, the appellants and co-accused Zia Abbas denied the prosecution allegations. In respect of the prosecution witnesses, the appellants said that P.Ws. Muhammad Nawaz and Azam were servants of P.W. Mir Hassan who was related to other witnesses. They alleged that P.W. Mir Hassan had produced in Court a fictitious person namely Amir Ahmad as Munir. It was added that the witnesses had deposed falsely at instance of P.W. Mir Hassan. Habibur Rehman in his statement Exh.198 added that jeep No,KAK-7626 was not involved in any incident and an application for its restoration was moved by his brother Azimur Rehman. Habibur Rehman added that P.W. Mir Hassan after purchasing Dubash Building vested Rustam and his brother Younus to vacate a shop in said building. Habibur Rehman claimed to have supported Younus and Rustam against Mir Hassan. Mir Hassan was said to haVe obtained an ex parte order of ejectment, after implicating Habibur Rehman in that case. Rustam Khan in his statement Exh.199 stated that Habibur Rehman was his cousin and that he was carrying hotel business without any rivalry with the complainant party. In respect of the day of incident viz. 6-9-1974, Rustam Khan stated that on said date there was lot of rush of people as it was Defence Day, and all the Naval Ships were open to public and that on the same day Habibur Rehman was having Qur'an Khawani on the death anniversary of his father. He denied if there were provocative speeches over loudspeakers by accused Habibur Rehman, Zia Abbas and Tariq Saeed against P.W. Mir Hassan and deceased Noor Hassan, Abdul Hassan and injured Fazal Qayoom. Rustam added that he was falsely implicated because he refused to vacate certain premises in Dubash Building. Appellant Zabit Khan in his statement Exh.200 adopted the statement of Rustam Khan, his brother. Appellant Hussain Khan in his statement Exh.201 added that he was cousin and sister's husband of Rustam. That he was transporter having no business rivalry with the complainant party. Hussain Khan also stated that on 6-9-1974 it was Friday but there was rush of people and Habibur Rehman was having death anniversary of his father. He did not deny living in same compound with co-appellants. Hussain Khan denied recovery of shotgun and four cartridges by police at his instance on 7-9-1974. Hussain Khan adopted statement of Rustam. He pleaded false implication due to being related to Rustam. Appellant Muhammad Akbar in his statement Exh.202 added that on 6-9-1974 it was Friday but there was rush of people due to its being Defence Day. Muhammad Akbar denied recovery of a shot-gun and four cartridges from his house or at his instance by police on 7-9-1974. Muhammad Akbar adopted statement of Rustam.
7. Appellant Mir Ajab Khan in his statement Exh.203 added that he was falsely implicated in the case because appellants Rustam and Zabit Khan were husbands of his sisters. He denied living in the cousin compound with them. He admitted running a hotel far away from hotel of the complainant party. He stated that on 6-9-1974 it was Friday but there were lot of people as it was Defence Day when Naval Ships were open to public. Mir Ajab further stated that on 6-9-1974 he was lying sick at Hyderabad. Mir Ajab denied recovery of a shot-gun and four cartridges from his house or at his instance by police on 7-9-1974. Mir Ajab adopted the statement of appellant Rustam. Acquitted accused Zia Abbas in his statement Exh.204 admitted being General Secretary of Pakistan Muslim League with Tariq Saeed and P.W. Mir Hassan as President and General Secretary respectively, of Muslim League (Qayoom Group) Karachi Zone. He admitted having gone to Karachi Airport to see off Khan Abdul Qayum Khan but denied having created an ugly scene. Zia Abbas denied having incited the appellants to shoot at Noor Hassan, Abdul Hassan, Fazal Qayoom. He also denied rest of the .Allegations and produced his statement in writing Exh.204/A and documents Exh.204/B to Exh.204/C. Appellants Habibur Rehman and Rustam Khan filed a statement in writing Exh.204/R under section 265-P(5) of Cr.P.C.
11. Appellants Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan, Muhammad Akbar, Mir Ajab Khan and co-accused Zia Abbas gave depositions Exh.205, Exh.206, Exh.207, Exh.208, Exh.209, Exh.210 and Exh.211 respectively in disproof of the allegations.
12. Appellants examined in defence P.Ws. Waheedun Nabi Exh.213, Mushtaq Ahmed Exh.214, Salahuddin Exh.219, Muhammad Rafiq Exh.222, Raees Ahmed Exh.223, Amanullah Khan Exh.224 and Baqar Hussain Exh.225. After close of defence evidence on 8-1-1990 under statement Exh.226, the Court recorded deposition of P.Ws. Mukhtar Ahmad Exh.227 Handwriting Expert on 26-5-1990, 22-7- 1990, 23-7-1990 and 24-7-1990.
13. At conclusion of the trial, the learned Sessions Judge, Karachi-West under the impugned judgment, dated 10-11-1990 convicted appellants Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan, Muhammad Akbar and Mir Ajab Khan for the offence punishable under section 148, section 302 read with section 149 and section 307 read with section 149 of P.P.C. For the offence under section 148, P.P.C. The appellants were sentenced to suffer rigorous imprisonment for 3 months, for the offence under section 302 read with section 149 of P.P.C. The appellants were sentenced to suffer imprisonment for life and to pay fine of Rs,50,000 each or to.. Suffer R.I. For one year, for the offence under section 307 read with section 149 of P.P.C. The appellants were sentenced to suffer imprisonment for three years and to pay fine of Rs,10,000 each or to suffer further R.I. For three months. Half of the fine imposed for offence under section 302/149, P.P.C. Was to go to heirs of the deceased persons. Half of the fine imposed for offence under section 307/149, P.P.C. Was ordered to be paid to injured Fazal Qayoom. Hence the appeals. Mir Hassan filed Criminal Revision Application No,95 of 1990 for awarding of death sentence to the appellants and Criminal Revision Application No,28 of 1991 against acquittal of Zia Abbas.
14. We have heard at length the learned Advocates for the parties as well as Mr. K.M. Nadeem, A.A.- G. For the State. Mr. Khawaja Naveed Ahmad, learned Advocate for Mir Ajab Khan (appellant in Criminal Appeal No,185 of 1990) contended that the only role attributed to Mir Ajab Khan in the F.I.R.
8. Is that of following by Scooter the jeep which carried the co-accused, that no overt act is attributed to Mir Ajab Khan even by injured Fazal Qayoom; that no injury is attributed to Mir Ajab Khan and that no incriminating article was recovered from possession of Mir Ajab Khan. It was added that Mir Ajab is involved in the case because his two sisters are married to Rustam Khan and Zabit Khan and he is member of the same family. Mr. Sarwar Khan, learned Advocate for Muhammad Akbar (appellant in Criminal Appeal No,189 of 1990) argued that no specific injury is attributed to appellant Muhammad Akbar who was not carrying any arm as per the F.I.R., although in evidence it is shown that he was carrying gun, that there was no recovery from him of any gun, that he is not shown to be having any motive for participating in the incident. It was also argued that names of P.Ws. Abdul Qadir and Fazal Qadir did not figure in the F.I.R. To have witnessed the incident and both of them are caste-fellows of lite complainant as well as of the deceased. Mr. Sarwar Khan further argued that appellant Muhammad Akbar had no connection with the hotel business as admitted by P.W. Fazal Qayoom and he is falsely implicated because he is uncle of Rustam and Zabit Khan. It was added that case of Muhammad Akbar was better than case of Zia Abbas.
9. Learned counsel for Muhammad Akbar Khan joined the other defence counsel in arguing that there were interpolations in the . Record about time of registration of the case and about the incident.
10. That the time of incident shown in the F.I.R. Exh.117 was 1-30 p.m. And this was believed by inquest report about dead body of Noor Hassan. Learned counsel for appellant Muhammad Akbar further argued that there was no mention in the F.I.R. About butt injuries having been caused to anybody and about Sher Hassan talking to Fazal Qayoom at end of the incident. That names of witnesses Fazal Qayoom, Abdul Qadir, Fazal Qadir, Haji Sher Hassan and Mir Hassan did not appear in the F.I.R.
11. That the F.I.R. Did not specify as to what particular weapon was carried by appellant Muhammad Akbar. It was also argued that appellant Muhammad Akbar had no gun as per belated police statement of Fazal Qayoom. It was also argued that P.Ws. Abdul Qadir and Fazal Qadir resisted 12/15 miles away from Wardat and in their cross-examination they admitted their relationship with the complainant although the same was earlier suppressed. They were said to be chance witnesses and related to the complainant, as per P.W. Sher Hassan. P.W. Munir was said to be fictitious person with his actual name being Muhammad Amir Khan and he being servant of Mir Hassan. In respect of P.W. Muhammad Nawaz it was argued that he was called from Saudi Arabia at instance of the complainant to give evidence because his name. Appeared in the F.I.R. With name of Munir. Muhammad Nawaz did not tell police that Noor Hassan was given butt blows, as further argued. Learned counsel for appellant Muhammad Akbar was vociferous about the evidence of P.W. Fazal Qayoom said to be star witness for the prosecution. He argued that P.W.
12. Fazal Qayoom was not examined by police when first trial of the appellants and the co-accused took place, that even if he was so examined copy of his police statement was not applied to the appellants and the co-accused, that name of Fazal Qayoom did not appear in the challan, that copies of belated police statements of Fazal Qayoom were supplied to the appellants on the eve of fresh trial ordered by the Supreme Court of Pakistan, that in his belated police statement P.W. Fazal Qayoom had not given name of the witnesses, that in his deposition Exh.24 Fazal Qayoom gave his father's name as Haji Sher Hassan while in the Medical Certificate Exh.144 about his injuries, his father's name was given as Haji Muhammad Hassan. In reply learned A.A.-G. Explained that in the Medical Certificate Exh.144. Fazal Qayoom's grandfather's name was given as his father's name by mistake. It was further argued on behalf of appellant Muhammad Akbar that in his deposition recorded on 12-5-1984 Fazal Qayoom gave his age to be 25 years and his occupation as hotel business although he was a boy below 24 years and studying in 9th class. Fazal Qayoom was said to have admitted in Court that in his police statement he did not state that deceased Noor Hassan was given butt blows. Muhammad Nawaz did not give name of any eye-witness in his police statement as further argued. P.W. Sher Hassan was said to have suppressed the evidence about property of the deceased, who were his brothers. It was argued that he was running a hotel at Boultan Market and he could not be available at the Wardat. Mr. Sarwar Khan further argued that the medical evidence destroys the prosecution case, because post-mortem report about dead body of Noor Hassan showed that he had received one fire-arm injury with blackening and this indicates that the injury was caused not by a .12 bore gun but by a pistol or a revolver. It was also argued that the medical evidence indicates that Noor Hassan was fired at from a close range. It was added that at the time of alleged incident the two deceased and the said injured were said to be talking with one another, but the injured had received simple injury without blackening or charring. It was also argued that the trial Court had disbelieved the evidence of motive while Fazal Qayoom had stated that Muhammad Akbar had no hotel. That Muhammad Akbar was entitled to be given the benefit of doubt.
13. ' Mr. Azizullah Shaikh, learned counsel for the appellant Rustam, argued that there was misreading of evidence by the trial CcSun and that the reasons for believing the evidence were incorrect. In this respect reference was made to pages 28, 29, 31, 32, 33, 39 and 40 of the judgment. It was further argued that credibility of the evidence was divided and as such the evidence was to be scrutinised cautiously. Learned counsel further argued that the evidence about instigation by Zia Abbas was disbelieved and yet evidence of Fazal Qayoom was believed for the purpose of conviction and that this was illogical approach. Referring tolhe medical evidence learned counsel argued that it did not support the ocular evidence and that the post-mortem report in respect of deceased Abdul Hassan Exh.114 and evidence of Abdul Hadi Khan Exh.112 showed that dead body of Abdul Hassan had no wound of entry of exit but had received injuries due to forceful and violent impact with a hard blunt object like Lathi, Danda or iron bar etc. Learned counsel also argued that Mashirnama of arrest of Rustam was not prepared and the Mashirnama of Wardat Exh.140 shows that two used bullets, one empty cartridge and one misfired live cartridge were recovered from the Wardat while Investigating Officer Akhtar Exh.174 deposed that two aged bullets one used cartridge and one empty of pistol were recovered. It was also argued that as per ocular evidence appellant Rustam was armed either with a revolver or a pistol while according to Mashir Azam Exh.96 and Mashirnama Exh.100 one shot-gun and one pistol were recovered from house of Rustam. Learned counsel referred to evidence of Ballistic Expert Mukhtar Ahmad Exh.227. Learned counsel for Rustam challenged that this evidence was doubtful. He also argued that these kinds of motive were given for commission of offence but the motive and credibility of the witnesses had been divided and if motive is held to be false in respect of one set of accused it cannot be believed in respect of other set of accused as done by the trial Court. The trial Court was said to have believed the evidence of Fazal Qayoom. Abdul Qadir, Fazal Qadir, Munir, Nawaz and Bakhtiar with regard to what appellants did, but the evidence of instigation was disbelieved when Zia Abbas was acquitted. Learned counsel for Rustam argued that recovery of weapons from the respective appellants did not tally with recovery of empties from Wardat. Evidence of Fazal Qayoom was criticised and it was argued that it did not corroborate motive or the medical evidence. P.Ws. Abdul Qadir and Fazal Qadir were said to be chance witnesses and their evidence was said to have been disbelieved by the trial Court when it acquitted Zia Abbas. Learned counsel challenged grounds given by the trial Court for accept;ng evidence of P.W. Muhammad Nawaz Exh.139 and argued that his evidenc was conflicting with evidence of P.Ws. Abdul Qadir and Munir Ahmad. P.W. Bakhtiar Ahmad was said to have changed his parentage and hence he was not reliable. P.W. Mir Hassan was said to have mala fidely tried to exclude some of the heirs of his deceased brothers while applying for mutation in the record of the property of his brother and hence he was unreliable. In conclusion learned counsel for Rustam argued that the ocular evidence was inherently defective and it is contradicted by medical evidence and hence the same could not have been believed. In support learned counsel for Rustam cited the case of:-
(i) Habibullah and others v. The State PLD 1969 SC 127,
(ii) Hadi Bakhsh v. The State PLD 1963 (W.P.) Kar. 805,
(iii) Nasir Muhammad alias Nazir Ahmad v. The State PLD 1974 Kar. 274,
(iv) Rahim Bux v. Crown PLD 1952 SC 1,
(v) Rehmat and others v. The State and connected Appeals Nos.15 and 86 of 1958 PLD 1959 SC (Pak.) 109,
(vi) Attaullah and another v. The State PLD 1990 Pesh. 10,
(vii) Ghulam Sikandar and another v. Muhammad Khan and others PLD 1985 SC 11,
(viii) Illahi Bux v. The State 1982 SCMR 57,
(ix) Bagh Ali and 4 others PLD 1973 SC 231,
(x) Darey Khan and others v. The State 1972 SCMR 578, and
(xi) Muhammad Achar v. The State PLD 1990 Kar.
14. 314.
15. ' Mr. A.Q. Halepota, learned counsel for appellant Habibur Rehman, argued that his client was alleged to have fired a gun at Noor Hassan. It was pointed out that the recovery evidence about recovery of a shot-gun from house of Habibur Rehman was of no consequence because Ballistic Expert had given opinion in the negative and moreover Habibur Rehman was not sent up for offence punishable under section 13-B of Arms Act. It was further argued that enmity was a double-edged sword and it can be a motive for false implication. Learned counsel for Habibur Rehman next argued that there was admitted enmity between the parties and hence the question arose as to what would be the principle of appraisal of evidence. He also touched the point about acquittal of Zia Abbas and questioned as to what would be the effect of the evidence which was not believed in respect of Zia Abbas. Learned counsel referred to the medical evidence given by Abdul Hadi Exh.112 and argued that since the injury on person of Noor Hassan had not been caused from a shot-gun of .12 bore, hence the ocular evidence about Habibur Rehman to have fired at Noor Hassan with a gun was not correct. Evidence of motive given by P.W. Mir Hassan was criticized to be highly tainted and partisan, lacking independent corroboration. In respect of the ocular evidence it was argued that the F.I.R. Gave names of Muhammad Nawaz and Munir only to have witnessed the incident besides other whose names were not given. It was argued that P.W. Abdul Qadir and Fazal Qadir were known to complainant Bakhtiar but he had not named them in the F.I.R.
16. Evidence of witnesses not named in the F.I.R. Was said to the improvement upon F.I.R. Abdul Qadir and Fazal Qadir were also said to be chance witnesses introduced by P.W. Mir Hassan. Learned counsel for Habibur Rehman next argued that F.I.R. Was silent about the weapon carried by Habibur Rehman. It did not show if Habibur Rehman gave butt blows to the deceased or to the injured. Act of Bakhtiar in running to the police station and not trying to. Rescue the deceased or the injured was said to be against human conduct and such conduct was said to be militating against his trustworthiness. P.W.
17. ' Muhammad Nawaz was said to have come all along from Saudi Arabia to give evidence. He was purposely kept book and was produced in Court after medical evidence was recorded. Learned counsel pointed out a contradiction about Muhammad Nawaz having stated that Habibur Rehman had a revolver with which he fired at Noor Hassan while the other witnesses said that Habibur Rehman had a gun which he fired at Noor Hassan. P.W. Abdul Qadir is said to be cousin of Mir Hassan and two deceased and he purposely avoided to give name of his grandfather, every time he was examined as a witness. He showed his ignorance as to whether Noor Hassan received any fire-arm shot. P.W. Fazal Qayoom was contended to be an interested witness being nephew of the two deceased and having strained relations with the accused. It was argued that it was against human conduct that Fazal Qayoom saw the incident but did not give details of the name of his father Sher Hassan. It was also argued that Habibur Rehman was not likely to participate in the incident on a day when he was organizing death anniversary .Of his father. It was also argued that mere fact of Fazal Qayoom being injured does not mean that he would speak nothing but truth. It was argued that evidence of Fazal Qayoom cannot be corroborated by evidence of Haji Sher Hassan and Mir Hassan as one tainted piece of evidence cannot corroborate another tainted piece of evidence. It was added that Fazal Qayoom did not state if he informed Haji Sher Hassan that Habibur Rehman had fired shots which struck on eye of Noor Hassan and hence such evidence by Sher Hassan was inadmissible. P.W. Sher Hassan was said to have managed false implication of the accused and he filed two revision applications one against acquittal of Zia Abbas and another for enhancement of sentence although he was not present at Wardat and his statement was recorded on the next day. Learned counsel for Habibur Rehman challenged the investigation which according to him was dishonest. Exception was taken to the interpolation in the F.I.R. Where time of the incident was said to ha'e been changed from 12 noon to 1-30 p.m. And this according to learned counsel was done to make the evidence consistent with the me lical evidence. Reference was made to an entry Exh.223 in column 2 of the crime register, Police Station Jackson where time of the incident was shown to \.)e 12 noon on 6-9-1974. Lastly Mr. A.Q. Halepota argued that Habibur.
18. Rothman was said to be driving the jeep and in the normal course of things a driver does not leave his seat for participating in an act of violence. In support learned counsel for Habibur Rehman cited the cases of:--
(1) Nawab and another v. The State 1979 PCr.LJ 736,
(2) Nawaz Ali and another v. The State 1981 SCMR 132,
(3) Rasool Bux and another v. The State 1980 SCMR 225,
(4) Nihal Singh Sewa Singh and others v. Emperor AIR 1940 Lah. 157,
(5) Abdul Hamid and another v. The State 1985 PCr.LJ 1992,
(6) Sahib Masih and another v. The State 1982 SCMR 178,
(7) Lash Kari and 4 others v. The State PLD 1981 Kar. 1,
(8) Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214,
(9) Sikandar v. The State and also Ranjha Abdul Aziz and others PLD 1963 SC 17,
(10) Khursheed v. Qubool and others PLD 1964 (W.P.) Kar. 356,
(11) Yousuf v. The State PLD 1988 Kar. 521,
(12) Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292,
(13) Abdul Ghafoor v. The State 1982 SCMR 162,
(14) Ahmad etc. v. The State 1982 SCMR 1049,
(15) Muhammad Nawaz The State 1984 SCMR 190,
(16) Zulfiqar v. The State PLD 1986 SC 477, ' Mr. Muhammad Ilyas Khan, learned counsel for appellant Zabit adopted arguments of Messrs.'
19. Azizullah Shaikh and A.Q. Halepota and criticized the ocular evidence. Referring to the evidence of P.W. Muhammad Azam Exh.96, he argued that his evidence cannot be relied upon as his cross- examination was yet to continue and secondly he had sworn an affidavit Exh.103. In affidavit Exh.103 Muhammad Azam stated that Muhammad Younus son of Amir Akbar was doing business at Rust am Hotel Kemari and he was not residing in Bhutta village. It was also argued -that the revolver allegedly recovered from Zabit Khan was not used for firing or any empty recovered from the Ward at as per evidence of Ballistic Expert. Learned counsel for Zabit referred to the evidence in respect of P.W. Fazal Qayoom who had received one wound of entry with no charring around the wound and no tattooing. It was also argued that name of Fazal Qayoom's father was wrongly mentioned in the medical certificate and he was not cited in the challah as a witness and his presence in the hospital and extraction of bullet from him by Dr. Abdul Rahim was doubtful. It was also argued that clothes of Fazal Qayoom were not sent to the Chemical Examiner and there was no explanation as to why the bullet secured from Fazal Qayoom was not given to police because the bullet in question is missing.
20. ' Mr. Iftikhar Chaudhry, Advocate for appellant Hussain Khan adopted the arguments of Messrs.'
21. Azizullah Shaikh and A.Q. Halepota. He contended that the injury on person of Fazal Qayoom was self-suffered and that he was not present at the time of the incident. His police statement was not said to have been supplied to the accused during first trial. His age in the medical certificate was said to be wrong. It was next argued that evidence of Dr. Abdul Rahim Vera did not show if Fazal Qayoom son of Sher Hassan was separated upon and that in this respect even record of the hospital was missing and hence it was open to question as to how Dr. Abdul Rahim mentioned name of Fazal Qayoom. It was further argued that there were improvements in the prosecution case and that P.W. Bakhtiar who was complainant had admitted that he was in contact with his counsel and that expenses were borne by Mir Hassan. It was added that prosecution examined the complainant in the end while the Sessions Judge ordered the complainant to be examined first and such order was challenged in the High Court. The identity card of Bakhtiar was alleged to be forged document. Bakhtiar was mentioned as son of Akbar Khan in the F.I.R. And as son of Muhammad Ishaque in the identity card. The identity card Exh.138 who alleged to be a forged document because complainant Bakhtiar denied possession of two identity cards. Learned counsel for Hussain Khan challenged genuineness of P.W. Munir Exh.90 who according to him was a fictitious person. It was further argued that brothers of deceased Noor Hassan have an affidavit that their mother had died although she was alive and that Mir Naseem and Sher Hassan brothers of the deceased wanted to usurp property of the two deceased. It was also argued that appellant Husain Khan was not put any question in his statement about recovery of revolver from him and the question was put to him about recovery of shot-gun. Learned counsel took the line of other counsel that medical evidence was in conflict with the ocular evidence. In support learned counsel for Husain Khan cited the cases of:--
(1) Allahyar v. Rajab and others 1979 SCMR 557,
(2) Hussain v. The State 1968 PCr.LJ 167-171,
(3) Jehangir Khan v. The State 1972 SCMR 221,
(4) Mangio v. The State 1976 PCr.LJ 243,
(5) Bashir Ahmad v. The State 1974 PCr.LJ 385,
(6) Ahmad Din and 5 others v. The State 1974 PCr.LJ 385,
(7) Ahmad etc. v. The State 1982 SCMR 1049,
(8) Shahbaz Khan Jakhrani v. Lal Beg Jakhrani 1984 SCMR 42,
(9) Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292, ' Mr. K.M. Nadeem, learned A.A.-G. For State argued that the F.I.R. Was lodged promptly, that the complainant Bakhtiar was an eye-witness, that the names of appellants and Zia Abbas appear in the F.I.R. And that the appellants Habibur Rehman and Zabit Khan were assigned the specific role and that they were shown to be armed with weapons. It was also argued that eye-witnesses Munir and Nawaz were named in the F.I.R. Learned A.A.-G. Refuted the contention that there was interpolation in the F.I.R. And referred to body of the F.I.R. Where the incident is shown to have taken place at 1-30 p.m. And not at 12-00 noon. Learned A.A.-G. Added that in any case there was no dispute about the time of registration of the case mentioned in the F.I.R. But the dispute was about time of the incident. Motive for the offence was said to have been mentioned in the F.I.R. It was further argued that mere relationship of a witness with the deceased was no ground to reject his evidence because truth and interest may go together. It was also argued that when there was sufficient ocular evidence, independent corroboration was not to be insisted upon and that mistake in mentioning father's name by P.W. Fazal Qayoom was no ground for interference.
22. Referring to evidence of Mir Hassan and Fazal Qayoom, learned A.A.-G., states that motive can be proved by any witness. He also argued that motive was immaterial in a murder case. In respect of the recovery evidence, learned A.A.-G. Pointed out that it was not uncustomary for Pathans to produce weapons. That appellants Rustam, Habibur Rehman and Zabit Khan had to explain as to how licensed weapons came in their possession. In respect of Muhammad Azam, it was conceded that his cross-examination was not concluded but it was argued that defence did not insist for his being recalled for cross-examination and hence his evidence cannot be brushed aside. In respect of the medical evidence, learned A.A.-G. Was of the view that the same can be divided in two parts.
23. That in the first part come the facts observed by the doctor and in the second part comes his opinion. Learned A.A.-G. Argued that even if there is inconsistency between medical evidence and ocular evidence, the latter is to be believed. As regards divisibility or credibility of witnesses learned A.A.-G. Argued that the maxim "falsies in uno falsies in omni bus" was not of universal application and that if some accused have been acquitted, that does not mean that the oral evidence requires corroboration. It was also argued that if name of Fazal Qayoom did not figure in the F.I.R. It did not mean that he was a false witness and on that ground his evidence cannot be discarded. Learned A.A.-G. Refuted the contention about the investigation being dishonest and pointed out that the Investigating Officer was lenient in favor of the accused because although Fazal Qayoom was injured, but his name was not put in the challah. Learned A.A.-G. Conceded that there was no revision by State for enhancement of sentence and there was no acquittal appeal by State in respect of Zia Abbas. Learned A.A.-G. Cited the cases of:--
(1) Faiz Muhammad and another v. The State PLD 1988 Lah. 149,
(2) Qazi Sirajuddin v. Misbahul Islam and 3 others PLD 1977 SC 14,
(3) Mst. Hamida Bano v. Ashiq Hussain and others PLD 1963 SC 109,
(4) Miran Shah v. The State 1992 SCMR 1475,
(5) Muhammad Naim v. The State 1992 SCMR 1617,
(6) Muhammad Hanif v. The State PLD 1992 Lah. 314,
(7) Hadi Kirmani v. The State AIR 1966 Orisa 21-13,
(8) Mir Khan and others v. The State PLD 1976 SC 53-54,
(9) Yaqoob Shah v. The State PLD 1976 SC 53-54,
(10) Tazaib Khan and another v. The State PLD 1970 SC 13 and
(11) Samano v. The State and Rajab Ali v. The State 1973 SCMR 162.
24. ' Mr. A. Wahab Khan, learned counsel for the complainant conceded that name of Fazal Qayoom did not appear in the F.I.R. But argued that his name appeared in evidence and his statement was not allowed by the doctor to be recorded on the day of the incident because he was injured and that his evidence deserved being believed. Mr. A. Wahab Khan Advocate gave a long list of reported cases to be followed, but with such cases he also cited the case of State v. Rab Nawaz and another PLD 1974 SC 87 where it was held that everything said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case. In respect of the controversy about the time of the incident it was argued that correct time of the incident was 1-30 p.m. And this was also mentioned by a Magistrate in his order but the same was not challenged in cross. Learned counsel referred two letters Exh.177 and Exh.180 of the S.H.O. In which time of incident was written to be 1-30 p.m. Learned counsel for the complainant further argued that P.W. Bakhtiar had to rush to the police station and in this he may have omitted to give names of all the eye-witnesses and that he had left the Wardat before the assailants left the Wardat. It was explained that in a case of this nature, outsiders do not come forward to give evidence and only the relatives can come to give evidence. Learned counsel pointed out that Fazal Qayoom Exh.24 had given evidence against his own maternal-uncle Habibur Rehman and such evidence was entitled to great weight and should be believed. Reference was made to the statement of Investigating Officer Akhtar Exh.174 who said that Mir Ajab, Zia Abbas and Tariq Saeed had run away to Islamabad after the incident. Dr. Abdul Hadi Exh.112 was said to have given obliging statement that Abdul Hassan had received injuries with hard and blunt weapon and that he had no wound of entry. It was argued that Dr. Abdul Hadi was not a Ballistic Expert to give such evidence. In respect of the evidence of Abdul Qadir and Fazal Qadir alleged to be chance witnesses, learned counsel for the complainant argued that such evidence cannot be rejected in view of the observations made in 1978 SCMR 114. Relying on PLD 1978 SC 255, it was argued that relatives can be believed as witnesses. Relying on PLD 1962 SC 269, learned counsel for the complainant argued that no witness can be termed as interested unless he has a motive to falsely implicate an accused person. It was next argued that the appellants were supplied copies of police papers including copy of statement of P.W. Fazal Qayoom and their receipts were obtained on 5-4- 1975 and yet they denied receipt of police statement of Fazal Qayoom to obstruct and delay the trial. That the appellants succeeded in obtaining order of Court about supply of copy of brief statement of Fazal Qayoom recorded in police diaries. That the appellants did their best to mislead the Court on the basis of incorrect certified copy of the F.I.R. That the incident took place at 12-00 noon and not 1-30 p.m. Although F.I.R. Book, various Bail Applications, Revision Application No,99 of 1976 indicated time of incident to be 1-30 p.m. That the appellants tried to mislead the Court by contending that real name of P.W. Fazal Qayoom's father was Muhammad Hassan and not Haji Sher Hassan. That the Crime Register of Jackson Police Station was sought to be used in favor of defense although it cannot be preferred to the F.I.R., as it was neither signed by any officer of Jackson Police Station nor it was sealed. Learned counsel for the complainant criticized conduct of the appellants and the acquitted accused after the order of retrial passed by the Supreme Court of Pakistan. They created unnecessary hurdles in the retrial of the case by moving applications after applications on every date of hearing as further argued. Learned counsel made grievance against the trial Judge who ordered that no other witness be examined unless the complainant's deposition was recorded. Said order was challenged in Revision No,40 of 1984 which was accepted on 24-4-1984. It was conceded that name of Fazal Qayoom was not mentioned in the list of witnesses due to oversight. However, application for permission to examine Fazal Qayoom moved by the A.P.P. Was not opposed by any of the defense counsel, as argued. It was also argued that Haji Sher Hassan, father of Fazal Qayoom and step-brother-in-law of appellants Rustam Khan and Zabit Khan was important witness so he is also connected with appellants Muhammad Akbar, Mir Ajab and Habibur Rehman. It was conceded that police statement of Mir Hassan was recorded on 7-9-1974 and the explanation given was that on 6-9-1974 he was awfully busy in family affairs. In respect of P.W. Fazal Qayoom it was argued that his father name was Sher Hassan and it was wrongfully written as Haji Muhammad Hassan. Haji Sher Hassan is said to have given a cogent and acceptable reason for his presence in Jamia Mosque and it was added that he was not a chance witness. Learned counsel for the complainant further argued that the incident occurred due to previous enmity. It was also argued that Fazal Qayoom and Mir Hassan never expected the appellants to join hands with Zia Abbas and Tariq Saeed. It was conceded that Investigating Officer Akhtar could not recover these weapons which were actually used by the appellants and the co- accused, and those weapons could be identified only by the accused out of which Tariq Saeed and Zia Abbas had fled away to Rawalpindi. In respect of the evidence of Ballistic Expert Mukhtiar Ahmad, it was argued that he had implicated Rustam Khan only. Appellants Habibur Rehman, Zabit Khan and Husain Khan were said to have deceived the Investigating Officer by handing over to him his licensed weapons and not the weapons used by them. In support learned counsel for the complainants cited the cases of:--
(1) Rab Nawaz v. The State PLD 1974 SC 87,
(2) Lai and another v. The State 1972 PCr.LJ 1317,
(3) Shahbaz and another v. The State PLD 1953 Lah. 566,
(4) Khushi Muhammad v. The State 1983 SCMR 697,
(5) Khalil Ahmad alias Khalil and another v. The State 1975 SCMR 442,
(6) Yaqoob Shah v. The State PLD 1976 SC 53,
(7) Riaz Ahmad alias Rajoo v. The State PLD 1970 Lah. 689, '
(8) Javed Ahmad alias Jaida v. The State 1978 SCMR 114,
(9) Fida Hussain v. The State 1975 SCMR 150,
(10) Aurangzeb v. The State 1978 SCMR 255,
(11) Roshan and others v. The State PLD 1977 SC 557,
(12) Nasir and others v. The State PLD 1962 SC 269,
(13) State v. Rab Nawaz PLD 1974 SC 87,
(14) Muhammad Rafiq alias Titai v. State PLD 1974 SC 65,
(15) Samano v. State 1973 SCMR 162,
(16) Muhammad Shafi and others v. State PLD 1967 SC 167,
(17) Shamsher and another v. State 1973 SCMR 69,
(18) Khairdi Khan v. State PLD 1953 FC 223 and
(19) Iain Hussain Siddiqui v. State 1992 PCr.LJ 1322.
25. ' Besides the appeals, we also heard two revision applications moved by Mir Hassan, one for enhancement of the sentence and another challenging acquittal of Zia Abbas. In support of the revision applications Mr. Mir Muhammad Shaikh, learned counsel argued that protracted trial cannot be extenuating circumstances for not awarding death sentence to the persons found guilty of murder. For this reliance was placed on the cases of 1973 SCMR 162 and PLD 1975 SC 174. In respect of credentials of Mir Hassan to file the revision application it was argued that he was real brother of the two deceased and he was uncle of injured Fazal Qayoom. Learned counsel further argued that the element of cruelty was present in the present case and that expectancy of death is no ground for not awarding death penalty.
26. ' Mr. K.M. Nadeem, learned A.A.-G., opposed the two revision applications and was not in favor of interference with the impugned judgment.
27. ' Mr. M. Ilyas Khan learned counsel for the respondents in the revision applications argued that the incident took place as long ago as on 6-9-1974 and in such an old case the trial Court had rightly given certain concessions in sentence. Learned counsel cited the case of PLD 1975 SC 174 where the Supreme Court of Pakistan refused to enhance the sentence because trial was delayed by seven years. He referred to the case of PLD 1977 SC 4 for the view that enhancement in sentence at late stage was not in public interest. Learned counsel also cited the cases reported in PLD 1977 SC 159, 1973 SCMR 300, 1991 PCr.LJ 133, 1988 PCr.LJ 1959 and PLD 1957 Kar.
28. 824.
29. ' Challenging acquittal of Zia Abbas Mr. Mir Muhammad Shaikh counsel for applicant Mir Hassan argued that motive for commission of the offence in respect of Zia Abbas was not found false and that sufficiency of motive cannot be measured by the action taken in commission of the offence. It was added that Zia Abbas was the main perpetrator of the offence. It was further argued that all the eye-witnesses had named Zia Abbas to have instigated commission of the offence and that he happened to be present at the Wardat. Mr. Mir Muhammad Shaikh refuted the contention that police statement of Fazal Qayoom was not supplied to defense. It was added that Fazal Qayoom had implicated even his maternal-uncle Habibur Rehman, besides implicating Zia Abbas. Learned counsel argued that if bullet extracted from Fazal Qayoom was not sent by police to ballistic expert the prosecution was not to suffer for that. It was added that the Investigating Officer was under pressure and this was also noted by the Supreme Court of Pakistan and he did not show Fazal Qayoom in the challah as a witness although Fazal Qayoom was a genuine witness and he was also injured. P.W. Sher Hassan was also said to have implicated Zia Abbas. Mir Hassan alleged by defense to be a her was believed by the trial Conn. He was said to be main witness against Zia Abbas and he gave evidence of motive also. Learned counsel cited the cases reported in PLD 1955 FC 185, 1991 PCr.LJ 728, 1991 PCr.LJ 65.
30. ' Mr. I.A. Hashmi, learned counsel for Zia Abbas argued that thrice Zia Abbas had been acquitted and that Fazal Qayoom made false statement that he had cordial relations with Zia Abbas. It was argued that Zia Abbas had no motive to kill Noor Hassan or Abdul Hassan but Mir Hassan had a motive to falsely involve Zia Abbas. Learned counsel further argued that in the revision application no grounds were taken about illegality or irregularity in the proceedings and that even the Supreme Court of Pakistan had taken no exception to acquittal of Zia Abbas. In support learned counsel cited the cases of:--
(1) Feroze Khan v. Capt. Ghulam Nabi Khan and another PLD 1966 SC 424,
(2) Muzaffar and another v. State PLD 1961 Lah. 561,
(3) Mrs. Ana Coleman v. Arif A. Lukmani and State PLD 1964 Kar. 81 and
(4) Muhammad Yousuf v. Muhammad Akhtar and 3 others 1971 PCr.LJ 794.
31. ' Having referred to the evidence, on record, the contentions of the learned counsel for the parties as well as the learned A.A.-G., we would now deal with the evidence in the case. The learned trial Court has categorised the discussion under four heads and those are, (i) motive, (ii) ocular evidence, (iii) medical evidence and (iv) circumstantial evidence about recovery of crime weapons from some of the accused. Learned counsel for the parties chose to argue on these topics and we shall also deal with the, Matter in the similar manner. But before doing so, we would like to deal with the controversy about the time of occurrence shown in the F.I.R.
32. ' In the F.I.R. (Exh.116) time of occurrence is shown as 1-1/2 hours but according to learned defense Advocates the time of occurrence initially shown in the F.I.R. Was 12-00 noon and this was changed by way of tampering to 1-1/2 hours to make it consistent with the other prosecution evidence. It was vociferously contended by Mr. Halepota, one of the counsel for appellants that had the time of the incident been initially shown as 1-1/2 hours in the F.I.R. The same would have been written as 13-30 hours as was usual with police and not as 1-1/2 hour. It was added that figure 12-00 could conveniently be changed to 1-1/2 as was done in the instant case but change of figure from 12-00 to 13-30 may have caused some difficulty and hence more convenient way was adopted to achieve the object of making time of the incident in the F.I.R. Agree with rest of the evidence. To certify such contention learned counsel referred to column No,1 of the F.I.R. Where the date and hour of report is shown as 6-9-1974 at 13-45 hours viz. Within 15 minutes of the incident. According to the learned counsel, the F.I.R. Was lodged late at night after due deliberations between P.W. Mir Hassan and Investigating Officer Akhtar Siddiqui. That the time of incident was falsely changed from 12-00 to 1-1/2 hours to suit the prosecution story. We have also been referred to Crime Register of Police Station Jackson in which time of the occurrence is shown as 6-9-1974, 12-00 hours. This register was produced through D.W.11 Muhammad Rafique, D.S.P. Marbour who deposed that F.I.R.
33. No,91/74 of Police Station Jackson was entered at Serial No,28/74 under which the date and time of the occurrence of the incident was mentioned. Inquest report Exh.117 of the dead body of Noor Hassan mentions time of the occurrence to be 1-00 p.m. And not 1-1/2 hours. Moreover, in an order (copy Exh.118) (A/3) dated 26-9-1974 passed by the A.C. And S.D.M. On the bail application of accused Tariq Saeed it is mentioned in paragraph No,2 that the incident allegedly took place at 12- 00 noon and the F.I.R. Was lodged just within two hours of the incident i,e, 1-45 p.m." Thus, there is substance in the contention of learned counsel for the appellants that figure 12-00 noon was changed to 1-1/2 hours so as to bring the time of incident in harmony with the time shown by the doctor about the deceased and injured having been brought to the hospital. To us, it appears, that right from the inception endeavors were made to register F.I.R. Under the dictates of someone highly interested in the case and it would be no one other than P.W. Mir Hassan, with whom the appellants had either business rivalry or political differences. Figure 12-00 hours appears to have subsequently been changed to 1-1/2 hours. Mentioning of time of occurrence in the body of F.I.R. At 1-30 p.m. Would be inconsequential because the time of incident, shown in the Crime Register maintained at Police Station Jackson would be more authentic. There is force in the defense contention that said change in the F.I.R. Is an afterthought.
34. ' As regards motive for commission of the offence, the learned trial Court discussed the same in para. 18 of the impugned judgment. It is observed that the evidence of motive has come through P.W. Mir Hassan who stated that the appellants and the co-accused except accused Zia Abbas had inimical terms with him and other members of his family because of dispute over immovable property. Regarding Zia Abbas and Tariq Saeed, P.W. Mir Hassan stated that he had political rivalry with them. Regarding motive against remaining accused it was stated by P.W. Mir Hassan that they had dispute with him in respect of an Anjuman known as "Anjuman Ittehad Formally". Said evidence of motive, is not believed by the trial Court against acquitted accused Zia Abbas but it has been believed against the appellants, who according to the trial Court admitted the hostilities between them and the complainant party over immovable property and over political differences.
35. The credibility of witnesses on motive has thus been divided by the trial Court. The motive suggested by the prosecution, in our view, is so weak that it lends no corroboration to other pieces of evidence, which will be discussed hereinafter. If appellant Habibur Rehman and others had any grudge, the same was against P.W. Mir Hassan anti not against anyone else. The two deceased or injured Fazal Qayoom were never intended to be made a target. P.W. Mir Hassan in his evidence, speaking about the political rivalry with Tariq Saeed and Zia Abbas, deposed that he had a meeting with Khan Abdul Qayoom Khan whom he informed about the conduct of Tariq Saeed and Zia Abbas working against party interests. Mir Hassan added that Tariq Saeed and Zia Abbas advanced threats to him on telephone and through his friends. Yet, Tariq Saeed and Zia Abbas caused no harm to Mir Hassan, when the latter saw them on 6-8-1974 at 1-15 p.m. Going in a jeep with Habibur Rehman, Rustam, Zabit Khan, Hussain Khan and Muhammad Akbar towards direction of Qadri Hotel. Instead of Mir Hassan, two innocent persons, with whom the appellants and the co- accused had no enmity, were murdered and Fazal Qayoom was caused injuries. The evidence of motive against the appellants has not come from an independent source but from P.W. Mir Hassan who admittedly was at loggers head with the appellants over property matters. In view of such enmity between the parties, if evidence of motive coming from P.W. Mir Hassan can be believed, it can also be a reason for false implication of the appellants. For those reasons, we do not consider the evidence of motive as a reliable piece of evidence and discard it.
36. ' The ocular evidence comes from P.Ws. Fazal Qayoom, Exh.24, Abdul Qadir Exh.75, Fazal Qadir Exh.81, Munir Exh.90, Bakhtiar Khan Exh.115 and Muhammad Nawaz Exh.139, Haji Sher Hassan Exh.35 came to the Wardat after the incident and saw the assailants and the injured. Similarly Mir Hassan Exh.38 was informed about the incident by his mother although earlier he had seen the appellants and Zia Abbas going towards the direction of Qadri Hotel. Out of said witnesses P.W. Fazal Qayoom Exh.24 was not included in the challah and he was examined on the basis of an application moved under section 540, Cr.P.C. Exh.23 by the prosecution which was not opposed by defense. Fazal Qayoom Exh.24 claimed that on 6-9-1974 he closed his hotel at 1-00 p.m. For performing Juma prayer as it was Friday. He added that he along with Abdul Hassan and Noor Hassan were having talks at the road near his hotel, 5/6 paces away from Qadri Hotel when he saw the jeep coming from Masjid Road, being driven by Habibur Rehman and carrying Rustam and Zabit Khan at the front seat and Hussain Khan, Akbar, Zia Abbas and Tariq Saeed at the back seat. That the jeep was being followed by scooter being driven by Mir Ajab Khan. Fazal Qayoom added that the jeep and the scooter stopped at a place 6/7 paces away from him and Abdul Hassan and Noor Hassan and then all the persons got down from the two vehicles. That thereafter Zia Abbas told his companions that it was a good opportunity to do away with enemies and that his companions should do so. Abdul Qadir Exh.75, Fazal Qadir Exh.81 deposed that on the day of incident they had gone to Kemari to see their relatives. They claimed to have seen a jeep and a scooter carrying the appellants and Zia Abbas and Tariq Saeed at a place near Qadri Hotel. Munir Exh.90 who showed his residence at Kemari and deposed that on the day of incident at about 12 or 12-15 he took meals at Sher Muhammad Hotel in Gulshan Bazar and was going to a mosque for offering Juma prayers when at Qadri Hotel he found a jeep and scooter coming from front side and stopping at Qadri Hotel with the appellants and Zia Abbas and Tariq Saeed who came out from the two vehicles. He added that Abdul Hassan and Fazal Qayoom owners of Qadri Hotel were standing outside their hotel when Zia Abbas told his companions that enemies were there and it was good opportunity to finish. Bakhtiar Exh.115 deposed that at the time of the incident he was present at a cotton shop situated on the ground floor of Khaliq Manzil when he saw a jeep coming from mosque side being followed by a scooter.
37. He named all the appellants including Zia Abbas and Tariq Saeed to be in the two vehicles which stopped in front of Qadir Hotel where Abdul Hassan, Noor Hassan and Fazal Qayoom were present outside the hostel. That the appellant and the co-accused got down from the two vehicles.
38. Bakhtiar Khan added that Zia Abbas told his companions that the enemies were standing and they be finished. Muhammad Nawaz Exh.139 who is serving in Saudi Arabia stated that on the day of incident at about 1-30 p.m. He had gone to offer Juma prayers in a mosque. That he was coming down on the stairs for offering prayer when he saw a jeep and a scooter which stopped there and from which the appellants Zia Abbas and Tariq Saeed got down. He added that Zia Abbas pointed to the others that the enemies were present. All the three witnesses further deposed that at instance of Zia Abbas, Habibur Rehman fired his gun at Noor Hassan while Rustam fired with his pistol/revolver at Abdul Hassan whose forehead was hit and that Zabit Khan fired his pistol/revolver at Fazal Qayoom who received the injuries. Mir Hassan Exh.38 deposed that on the day of incident at 10-00 a.m. Or 11-00 a.m. He was present at Qadri Hotel with his brothers Noor Hassan and Abdul Hassan and nephew Fazal Qayoom. That he went to his house for changing the clothes for Juma prayer. That subsequently at 1-15 p.m. He was going to Masjid Kuba for offering Juma prayer and on the way he saw a jeep and a scooter carrying the appellants and Zia Abbas and Tariq Saeed who were going towards Qadri Hotel. Mir Hassan added that after offering Juma prayers he returned to his house at 2-00 p.m. When his mother informed him about the appellants having attacked Qadri Hotel where Noor Hassan was dead and Abdul Hassan and Fazal Qayoom injured.
39. Mother of Mir Hassan was not examined and hence whatever he heard from her is inadmissible. Mir Hassan claimed to have gone to Qadri Hotel where he saw many people having collected there. He was informed that injured and the deceased were removed for Civil Hospital by Haji Sher Hassan.
40. P.W. Sher Hassan Exh.35 deposed that on the day of incident he left Muhammadi Hotel at 1-00 p.m.
41. For offering Juma prayers at Jamia Masjid Kemari. He added that he was performing ablution in Jamia Masjid at 1-30 p.m. When he heard commotion and fire-arm shots. In response he rushed towards Qadri Hotel where he saw the appellants and Zia Abbas and Tariq Saeed in a jeep and a scooter. He saw guns in hands of Habibur Rehman and Muhammad Akbar and pistol/revolver in hands of remaining persons accompanying Habibur Rehman. At the same time he found Noor Hassan lying dead and Abdul Hassan and Fazal Qayoom lying injured on the ground. Clothes of Noor Hassan were blood-stained as further stated. Sher Hassan claimed to have learnt from his son Fazal Qayoom that he and Noor Hassan and Abdul Hassan were present outside Qadri Hotel when all of a sudden there was attack from the appellants. Sher Hassan claimed to have further learnt from Fazal Qayoom that Halibut Rehman fired gunshot which hit Noor Hassan who died and Rustam fired pistol shot at Abdul Hassan who fell down after receiving the injury. Fazal Qayoom was said to have told Sher Hassan that he was standing when Zabit Khan had fired. P.W. Sher Hassan added that he took the injured and the dead body to the Civil Hospital, Karachi where the injured Fazal Qayoom and Abdul Hassan were admitted while dead body of Noor Hassan was sent to mortuary.
42. ' There is lot of criticism against the ocular evidence as has been mentioned above. It is a matter of fact that P.Ws. Abdul Qadir and Fazal Qadir reside at Majid Colony and Dalmia Colony respectively and their presence at the place of Wardat in Kemari at the time of the incident was unusual. P.Ws.
43. Mir Hassan and Sher Hassan are brothers of deceased Noor Hassan and Abdul Hassan. P.W. Munir Exh.90 is said to be a fictitious person. Certain contradictions have also been pointed out in the ocular evidence.
44. ' Fazal Qayoom Exh.24 admitted in his cross that his age was 13/14 years at the time of the incident and he was studying in 9th Class. He corrected his statement by saying that his age was 14/15 years at the time of the incident. He contradicted his father Sher Hassan by saying that he did not give details of the incident to his father Sher Hassan as to which accused caused injuries to which deceased or to which injured. Fazal Qayoom further stated in cross that the hotel business was being run jointly in name of Gul Hassan, Sher Hassan, Mir Hassan, Abdul Hassan, Noor Hassan, Wazir Hassan and Muhammad Hassan who were brothers inter se. He further stated that all legal affairs of the property were looked after by Mir Hassan who had contacted with K.P.T., K.M.C. And other offices and who was more active in politics as compared with his other family members. Fazal Qayoom further stated that his mother was sister of Habibur Rehman and his father's sister was wife of P.W. Bakhtiar Khan. He also stated that appellants Zabit Khan, Rustam Khan, Habibur Rehman, Hussain Khan and Muhammad Akbar were cousins inter se and that Muhammad Akbar and Mir Ajab Khan were married to sisters of Habibur Rehman. That a sister of Mir Ajab Khan was married with Rustam Khan while his other sister was married with Zabit Khan. That one sister of Rustam Khan was married with Hussain Khan. His evidence further shows that Hussain Khan, Rustam Khan, Zabit Khan and Habibur Rehman used to live in a house adjacent to his house with intervening wall being common. Fazal Qayoom admitted that on the day of incident death anniversary of Habibur Rehman's father was celebrated but neither he nor his mother participated in the same. This shows that although Habibur Rehman was maternal-uncle of Fazal Qayoom but there was no such enmity between the two that even death anniversary of Habibur Rehman's father was not attended by sister of Habibur Rehman. Fazal Qayoom further stated that he had received injuries and he was under shock and hence he had summarized the incident while making statement before the police. That he did not tell police about receipt of threats through telephone to the effect that Mir Hassan be stopped from continuing campaign against Zia Abbas and Tariq Saeed or else dire consequences would follow. Fazal Qayoom admitted that he did not tell that he along with Abdul Hassan and Noor Hassan continued to remain with Mir Hassan to safeguard his life and acted as his bodyguards. Fazal Qayoom also stated that during days of the incident his father was running Muhammadi Hotel at Boulten Market at distance of 3/4 miles from the residence and that there were mosques near said hotel. He admitted that appellant Habibur Rehman was owning New Taj Hotel at Kharadar and Mir Ajab a hotel at Kemari near the last stop of K.P.T., and appellant Hussain Khan had a hotel at K.P.T. Ground and that appellant Akbar had no hotel. Fazal Qayoom also admitted that Qadir Hotel was opened around the clock and it was one or two miles away from his house and that ration shop of P.W. Bakhtiar was 5/6 furlongs away from Qadri Hotel and his house was at same distance. Fazal Qayoom admitted that in his police statement he did not state that the accused were armed with fire-arms consisting of pistols. He denied having stated before police that he was not definite whether the accused were armed with pistols and that such arms were under their shirts. He admitted that he did not state before police that after closing the hotel some time was left for Juma prayer and hence Noor Hassan. Adbul Hassan were talking with each other. Fazal Qayoom admitted that he did not state before police that the jeep and scooter stopped 6/7 paces away from him and that all the accused came down from the jeep and the scooter and that Habibur Rehman, Rustam and Zabit Khan were sitting on the front seat and Hussain Khan, Akbar, Zia Abbas and Tariq Saeed were sitting at the back seat of the jeep. He admitted that he did not tell police due to serious pain and fear he summarized the incident. Fazal Qayoom further stated in his cross-examination that he was unconscious and hence he was not in a position to state whether he was taken to the hospital at 2-15 p.m. This statement shows that he did not inform his father Sher Hassan about the incident. He further stated that police examined him while he was on stretcher. Lastly, Fazal Qayoom admitted that his name was not put by police in the challah.
45. ' P.W. Haji Sher Hassan cannot be called as an eye-witness of the incident although he claimed to have seen the appellants and the co-accused after the incident. He also claimed to have seen his son Fazal Qayoom and his brother Abdul Hassan lying injured and his brother Noor Hassan lying dead. Sher Hassan admitted in his evidence that the appellants had inimical terms with is family and there was business rivalry. In respect of Tariq Saeed and Zia Abbas P.W. Sher Hassan stated that they had political rivalry with Mir Hassan who was General Secretary of Muslim League. In his cross-examination Sher Hassan stated that all his property was joint with his brothers, two of whom were murdered. That the joint property included Qadri Hotel. Muhammadi Hotel, Muslim Hotel, Farooq Manzil, Hussain Manzil, Qayoom Manzil, Bajwa Building. Dubash Building, Gul Chamber at Butta Village where he was living during days of incident. Sher Hassan admitted in his cross- examination that Noor Hassan had left behind his wife, mother, one son and one daughter while Abdul Hassan had left behind a widow and his mother but the properties of the deceased were not mutated in names of their legal heirs because the same were joint properties in the name of Gul Hassan and other brothers. Sher Hassan denied having sworn an affidavit before the City Deputy Collector that his deceased brother had left no legal heirs and on the basis such affidavit the property was mutated in names of remaining five brothers of the deceased including Sher Hassan.
46. Sher Hassan admitted that on the day of incident there was Qur'an Khawani in the house of appellant Habibur Rehman due to death anniversary of his father. He admitted that there were other mosques near Muhammadi Hotel but explained that he used to offer his prayer because Qari Habibullah of Jamia Masjid was of Ahle-Sunnah people. Sher Hassan went to explain by saying that clothes were also blood-stained and so also seats of his car but neither the car was inspected by police nor his clothes were secured by police as admitted by him. Sher Hassan did not give most of the facts in his police statement. P.W. Akhtar Siddiqui Exh.174 stated in cross that in his police statement Sher Hassan had not stated that he had seen Rustam in the jeep with other accused. He also stated that Sher Hassan in his police statement did not give the particulars and type of weapons carried by all the accused whom he saw leaving the Wardat. P.W. Sher Hassan did not state in police statement that he had seen clothes of the deceased stained with blood at the Wardat. He did not state before police that before that he had seen deceased and injured standing outside the hotel. In police statement Sher Hassan did not give his relationship with accused persons. Sher Hassan did not state in his police statement that on the day of incident he was at Muhammadi Hotel and at 1'-00 p.m. He left for Juma prayers and that Akbar and Hussain had come with pistol respectively. Inspector Akhtar Siddiqui stated that when he inspected the Wardat for the second time on return from the hospital he remained there upto sun set.
47. ' P.W. Bakhtiar Khan Exh.115 claimed to have witnessed the incident when Habibur Rehman fired at Noor Hassan and Rustam Khan fired at Abdul Hassan and Zabit Khan fired at Fazal Qayoom but he said that on seeing the injured he rushed to the police station although on the day he heard more shots. It is contrary to the natural conduct of a person to make such haste in leaving for the police station when the assailants were still at the Wardat and presence of Bakhtiar Khan at the Wardat could have given some moral support to the victim, even if he was not in a position to rescue the victim. It has come on record that Bakhtiar Khan had obtained two National identity Cards copies Exhs.137 and 138. Moreover in one of such cards father's name of Bakhtiar Khan is one and in the other card his father's name is different. This reflects badly on conduct of P.W. Bakhtiar Khan.
48. Learned trial Judge in the impugned judgment has observed that P.W. Bakhtiar Khan is not wholly unreliable. P.W. Bakhtiar Khan is husband of sister of deceased Noor Hassan and Abdul Hassan as per his deposition Exh.115. Bakhtiar Khan admitted in cross that he had enmity against the accused except Zia Abbas for proceeding 18/19 years and that this was because the accused had no good relations with his brother-in-law. He stated in cross that he engaged Messrs Abdul Wahab and Ijaz Batalvi for conducting this case in the trial Court and in the Supreme Court. This shows this interestedness. He admitted that he had moved application for cancellation of bail to some of the accused. He stated that in his absence P.W. Mir Hassan with whom he had cardial relations had been pursuing the matter. He also stated that while he was in Pakistan he had been contacting his Advocate and that he had always been aware of the proceedings in the Courts. He added that he had been enquiring about the proceedings of this case from Mir Hassan and from his counsel while he was out of Pakistan and that he had been receiving information out of Pakistan about progress of this case. Bakhtiar Khan named Mir Hassan to be paying fee for the Advocates. Like other witnesses, Bakhtiar Khan admitted that on the day of incident there was death anniversary of father of Habibur Rehman in latter's house. Bakhtiar Khan admitted that he was living one furlong away from Qadri Hotel while another hotel namely New Pakistan Hotel was at the distance of 8/10 paces from his house. Bakhtiar Khan claimed to be present at the Wardat because according to him he had gone to purchase the cotton for a Razai and that at the cotton shop the shopkeeper was not present and his son desired Bakhtiar to wait for the arrival of shopkeeper. Bakhtiar Khan denied having told police that he had gone to the shop of Nona for lifting his Razai. In his police statement Bakhtiar Khan did not state if appellants Akbar and Habibur Rehman were carrying guns as per cross of Akhtar Siddiqui Exh.174. In his cross-examination Inspector Akhtar Siddiqui Exh.174 denied having examined certain persons as witnesses but claimed to have mentioned their names in the case diary. Contents of the case diary would not be admissible in evidence. Inspector Akhtar also recorded the F.I.R. Of Bakhtiar Khan but clarified in his cross-examination that the same was written at his dictation by A.S.I. Muhammad Hussain. He admitted that in the F.I.R. It was not mentioned that the same was written by A.S.I. Muhammad Hussain at dictation of Inspector Akhtar.
49. In his cross P.W. Bakhtiar Khan stated that he remained at the police station for 10 minutes when his F.I.R. Was recorded. He admitted that he was unable to read Urdu and that the F.I.R. Was written not by the S.H.O. But by another Police Officer at dictation of the In charge. Bakhtiar Khan further stated that three shots were fired in his presence and rest were fired after he left. He admitted that he did not go near Noor Hassan to find if he was alive or dead. Yet he mentioned in the F.I.R. Exh.117 that Noor Hassan had died. He added that it was his estimation that Noor Hassan had died. Bakhtiar Khan further stated that he reached the hospital at 2-00 or 2-30 p.m. And remained there till 8-00 p.m. When he left for his house. He showed his ignorance if he said in F.I.R. That he saw Fazal Qayoom fell on the ground. P.W. Bakhtiar Khan admitted that on the day of incident he was present at his house till 1-15 p.m. If the incident took place at 12-00 noon as contended by the defense and not at 1-30 p.m. Then Bakhtiar Khan could not have been witness of the incident. Bakhtiar did not know Urdu and he admitted that his F.I.R. Was written in Paki Urdu and he was unable to go through the same. In the circumstances very F.I.R. Become a controversial document. Bakhtiar Khan admitted in cross-examination that there was a dispute over a plot between him and Zahir Shah his uncle who was denied his share of property as alleged. Bakhtiar Khan denied suggestion that Habibur Rehman had asked his father to give proper share to Zahir Shah. Bakhtiar Khan produced photo copy of Exh.137 of his Identity Card containing his signature and photograph had admitted that in said card his father's name was mentioned to be Muhammad Ishaq. The witness gave his father's name in the evidence as Akbar Khan to whom he claimed to be his real father. Bakhtiar Khan further stated that he did not see Fazal Qayoom and Abdul Hassan in the hospital. Bakhtiar Khan admitted having stated in F.I.R. That there was K.P.T. Quarters and three storeyed building at back and in front respectively of Qadri Hotel and that there were 3/5 shops on ground floor of Khatib Builders. These admissions show that the alleged incident could have been witnessed by so many persons. P.W. Bakhtiar Khan does not appear to be reliable witness. He managed to obtain two National Identity Cards but in Court denied such fact and he admitted his enmity with the appellants in unambiguous words. He omitted to state as to what weapons were carried by Habibur Rehman and did not state in the F.I.R. .If Noor Hassan was caused contusion and abrasion.
50. Moreover, P.W. Bakhtiar Khan has not been able to explain his presence at the Wardat when he remained in his house upto 1-15 p.m. In his F.I.R. He did not state if he had gone to the Wardat to purchase cotton for Razai. It was argued on behalf of Habibur Rehman that in hot summer Bakhtiar Khan could not have gone to purchase cotton for Razai. It was also argued thatBakhtiar Khan did not go near his brother-in-law Noor Hassan who had received injuries.
51. ' P.W. Munir Exh.90 claims to be residing at Kemari and at the time of the incident he had gone to Jackson Bazar to take meals at Sher Muhammad's hotel from where he was going to the mosque to offer prayers when he saw the incident at Qadri Hotel. In his cross-examination Munir stated that he was working as daily worker at different places and that he was living in Fatima Compound and then shifted from there for a period of 3/4 years and again resettled there. He showed his inability to produce Ration Card, rent receipts or anything else to show his residential address. He stated that he obtained identity card but did not know his address given in his card. Likewise he produced passport but did not know address given in the same. Munir added that during the days of the incident he was living with Zareen Khan who was doing job with him and leading a bachelor life and that he was taking meals at different hotels and that Qadri Hotel was near to him than Sher Muhammad's hotel. Munir in his police statement did not name P.Ws. Muhammad Nawaz and Fazal Qadir to be the eye-witnesses as admitted by him and by the S.H.O. Munir did not state before police that Sher Hassan had a talk with the deceased and the injured and then brought a car.
52. Munir did not state before police that on the day of incident he had gone to Jackson Bazar at 12-15 noon for taking meals as admitted by S.H.O. Akhtar Exh.174. Akhtar added that Munir did not tell him that after taking his meal he was going on his way when the present incident took place. Munir did not state before police that Habibur Rehman was driving the jeep, as per the S.H.O.; S.H.O. Added that Munir did not disclose in his police statement name of any witness. Munir gave his father's name to the Ghulam Nabi but stated inc cross-examination that his identity card showed that he was son of Ghulam Muhammad. Munir admitted that he declined to come for evidence when approached by Sher Hassan. Munir denied suggestion that he was compelled to give evidence after his brother was confined in a hospital at Lahore. Munir produced photo copy of his identity card Exh.91 and photo copies of Exhs.92 to 95 of his passport. Munir admitted that he did not tell police that accused were known to him as they were doing hotel business. It is relevant to mention here that trial Court under the impugned judgment took view that Munir is a fictitious person whose real name was Amir Ahmad as mentioned in the photo copies of his national identity card and passport Exhs.92 to 95. Defence examined Salahuddin Exh.219 who is an officer in District Registration Office, Karachi South. On seeing photo copy Exh.91, Salahuddin stated that it was copy of national identity card issued to Amir Ahmad son of Ghulam Hussain. In presence of such evidence we have no alternative but to agree with the trial Court that P.W. Munir is originally Amir Ahmad and he is a fictitious witness.
53. ' P.W. Muhammad Nawaz Exh.239 is normally residing in Saudi Arabia. He claimed to have gone to mosque near Qadri Hotel to offer Juma prayer on the day of incident. He added that he was coming down from the stair of the mosque when he saw the jeep and a scooter carrying the assailants and others and then the incident occurred. This witness is also added as Mashir of Wardat. Muhammad Nawaz did not give his address in his deposition Exh.139. In the Mashirnama of Wardat Exh.140 he gave his address as Care of Qadri Hotel Jackson Bazar, Karachi. In his cross- examination Muhammad Nawaz admitted that there was no documentary proof that he was living in Karachi since 1956 and that he went to Saudi Arabia in 1975 and remained there almost all the period with short interval. He also stated that from 1956 upto 1974 he resided with Abdul Rehman in a flat above Qadri Hotel in Farooq Manzil. Muhammad lawaz stated in cross that when Noor Hassan was admitted in hospital he also remained there for one hour or so. That he found Noor Hassan lying dead and he identified his dead body. He stated that in his 164 statement he had not named Fazal Qadir and Munir to be the witnesses. S.H.O. Akhtar Exh.174 stated that P.W. Muhammad Nawaz in his police statement gave his address of Farooq Manzil, Jackson Bazar, Kemari, and in Mashirnama Exh.140 he gave his address as resident of Qadri Hotel. S.H.O. Further stated that Muhammad Nawaz did not state in police statement that the accused persons fired in the air while fleeing away from the Wardat. Muhammad Nawaz did not state in police statement that Noor Hassan had bullet injury on his person. S.H.O. Explained that Muhammad Nawaz had said that Noor Hassan had injuries on head and on the left eye. S.H.O. Added that Muhammad Nawaz did not state in police statement that Noor Hassan was given butt blows. In his cross-examination Exh.139 Muhammad Nawaz admitted that he did not state before police that the accused fired in the air and that the culprits fired on Noor Hassan Abdul Hassan and Fazal Qayoom who fell down and that Abdul Hassan got injured from the pistol of Rustam. Muhammad Nawaz admitted that the culprits did not fire on the victim when they fell down. He denied having stated in police statement that the culprits fired on the victim after they fell down. He claimed to have told the police that Fazal Qayoom sustained injury and at the same time Abdul Hassan also fell down. Muhammad Nawaz claimed that he was 6/7 feet away from Noor Hassan when the culprits fired at the victim. He claimed to have told police that Noor Hassan sustained bullet injuries at the hands of the accused.
54. Muhammad Nawaz was probably the only witness who alleged that Habibur Rehman was armed with a rifle. Muhammad Nawaz also stated in his evidence that Abdul Hassan and Noor Hassan were given butt blows by the accused and thereafter the accused opened fire in the air and went away. This was not stated by him before police. The S.H.O. Stated in cross Exh.174 that Muhammad Nawaz in his police statement had not specifically stated if any particular weapon was in the hands of Hussain Akbar, Mir Ajab, Tariq Saeed and Zia Abbas. Inspector Akhtar added that Muhammad Nawaz in his police statement clarified that Habibur Rehman, Rustam Khan and Zabit Khan had specific arms in their hands and yet Muhammad Nawaz told police that all the accused except Tariq Saeed and Zia Abbas fired at the deceased and the injured. S.H.O. Akhtar admitted in his cross Exh.174 that in his previous statement he had not named Muhammad Nawaz, Munir, Abdul Qadir and Abdul Malik to have come to the Wardat during his visit. Muhammad Nawaz was examined by police on 17-10-1987 viz. One month and 11 days after the incident. Muhammad Nawaz is mentioned in the postmortem report Exh.113 of the dead body of Noor Hassan as a friend of said deceased. He went to the extent of staying in the hospital where body of Noor Hassan was lying.
55. Muhammad Nawaz therefore, appears to be an interested witness who contradicted rest of the evidence by saying that Habibur Rehman had a rifle.
56. ' P.W. Mir Hassan Exh.38 is said to be resident of Kashani Muhammad Yousif Road and he is brother of the two deceased and uncle of injured Fazal Qayoom. He spoke about his enmity and family disputes with all the appellants. He claimed to be at Qadri Hotel with is deceased brothers and his nephew Fazal Qayoom. He left them and went to his house for change of clothes. He claimed to have seen to appellants and the co-accused going by a jeep and a scooter towards the direction of Qadri Hotel. In spite of all this, witness did not care to go to Qadri Hotel and left for the mosque.
57. He did not witness the incident but he was informed about the incident by his mother who is not a witness. Mir Hassan rushed to the Wardat where he saw many people and learnt that the injured had been removed to the Civil Hospital. Mir Hassan is an interested witness because he; besides being related to the injured, had admitted enmity with the appellants. Defence brought on record an affidavit Exh.40 sworn by Mir Hassan to the effect that his brothers Noor Hassan and Abdul Hassan had died on 6-9-1974 and they were not married and their parents had also died and they had no sister. Contrary to this, P.W. Mir Hassan Exh.38 admitted in cross-examination that Noor Hassan and Abdul Hassan were married. That Noor Hassan had left behind one daughter, one son and a widow who was alive. Mir'Hassan admitted that he had four sisters who were alive and that his deceased brothers left property which was not mutated in names of the legal heirs. He added that one of the widows had been married with his younger brother and he had one son. Mir Hassan admitted that an application was moved by him for mutation in respect of certain property at Kemari and that a heirship certificate was also obtained. He denied if it was stated in his application that deceased Noor Hassan and Abdul Hassan were bachelors. He produced certified copy of his application as Exh.39 and his affidavit Exh.40 and heirship certificate Exh.41. In the application Exh.39 Mir Hassan had stated that both the deceased were unmarried and that their five brothers were their only legal heirs. The- heirship certificate in-respect of Noor Hassan and Abdul Hassan was issued merely showing that they had not left any child or widow except five brothers. This reflects badly on conduct of Mir Hassan who had tried to usurp the property of his deceased brothers and who has tried to deprive the real heirs from inheriting the property.
58. ' Lastly there remain P.Ws. Abdul Qadir Exh.75 and Fazal Qadir Exh.81. Former is resident of 15 Majeed Colony and lattei is resident of Sabzi Mandi and they appeared to be chance witnesses. Their evidence has been dealt with under para. 25 of the impugned judgment where the trial Court rejected the evidence of Fazal Qadir as an unreliable witness. He was said to have made a false statement regarding his K.M.C. Election and filing of an election petition, a review petition and an affidavit. P.W. Abdul Qadir admitted in cross that his grand-father was father of Mir Hassan. In an earlier statement dated 3-12-1977 P.W. Abdul Qadir had stated that his father and grand-father of Mir Hassan were cousins. He contradicted himself by saying that his grand-father and father of Mir Hassan was one and the same person. He also admitted that in his previous statement he had stated that his father's mother and mother of Mir Hassan's father were different. He clarified that his father's mother and mother of Mir Hassan's father had common father and different mothers. He admitted that Sarwar was his brother and Mirzada was his nephew. He admitted that Fazal Qadir's sister was married with Sarwar. He also admitted that his nephew Mirzada was married with daughter of Fazal Qadir. Abdul Qadir also spoke about his relationship with appellant Habibur Rehman, whose sister is married with Haji Sher. He admitted that his cousin Sher Baz was married with mother's sister of Rustam Khan, Zabit Khan and Mir Ajab Khan. Abdul Qadir admitted living 15/16 miles away from Qadri Hotel but claimed that 60/70 persons related to him were living at Kemari,-at Qadri Hotel, at Jackson Bazar and Muslim Hotel. Apparently Abdul Qadir did not give purpose of his visit to Qadri Hotel after finding Rustam's hotel closed. In his earlier statements dated 16-10-1977 and 28-11-1977 Abdul Qadir did not state that Rustam fired at Abdul Hassan. He admitted that he did not state before police that the accused gave butt blows on person of Noor Hassan. He added that Abdul Hassan received only one fire shot and so also Fazal Qadir. He was not sure if Noor Hassan received any firearm shot. He admitted that he did not state before police that when all said persons fell down on the ground they were fired at by the accused. Abdul Qadir admitted having told police that many persons collected when the assailants left the spot. He admitted that the assailants did not fire on the injured persons, who had fallen down. Abdul Qadir admitted that no identification parade was carried out by police. He also stated that the people who collected at the Wardat before or at the time of the incident were not known to him by face or by name. He added that Abdul Hassan was found injured but it was not known if he received the injury by means of fire-arm shot. P.W. Abdul Qadir showed his inability to explain, as to, how Abdul Hassan fell down and sustained injury. He also stated that Haji Sher Hassan put the injured in his car with the help of other persons. Abdul Qadir admitted that he did not put any injured in car while helping Sher Hassan. Abdul Qadir explained that during the day of the incident he was living in a Jhuggi with his family members in Majeed Colony and hence he was not called by police for his statement. He claimed to have stayed for 2/3 days with his brother at Kemari. P.W. Abdul Qadir further stated that on the day of incident he had come from Landhi to see his relatives in Bhutta Village, which was in different part of the city like Kemari and Jackson Bazar. In his statement dated 15-10-1977 Abdul Qadir did not state if the appellants and the co-accused accused except Tariq Saeed and Zia Abbas were related to him but he claimed relationship with Rustam Khan in his cross-examination. In his police statement Abdul Qadir did not state if Mir Hassan had a talk with Fazal Qayoom at the Wardat, as per Inspector Akhtar Exh.174. Akhtar added that Abdul Qadir did not mention in police statement that the accused persons fired in the air while escaping. As per Akhtar, P.W. Abdul Qadir stated in his polide statement that all the accused jointly fired at Noor Hassan, Abdul Hassan and Fazal Qayoom after the latter fell down on sustaining injuries. While in Court Abdul Qadir said that the assailants gave beating with gun, butts and pistols to Noor Hassan and Abdul Hassan and then they issued fire in the air and ran away. As per Akhtar Exh.174, Abdul Qadir did not state before police that he got down from the bus at Post Office Bus Stand and then proceeded by foot to Qadir Hotel. Abdul Qadir in his police statement did not disclose his relationship with the accused except Rustam Khan and Mir Hassan as per Akhtar. Abdul Qadir did not tell police that Akhtar, Mir Ajib, Hussain Khan, Zia Abbas, Tariq Saeed had firearm weapons but he named Habibur Rehman, Rustam and Zabit Khan to be armed with fire-arms. As per Akhtar, Abdul Qadir stated before police that deceased Abdul Hassan had bullet injury on his forehead.
59. Abdul Qadir admitted that Noor Hassan and Abdul Hassan were sons of his uncle. He denied having stated before police that Abdul Hassan had a head injury although he has stated so. As per Akhtar, Abdul Qadir admitted that there was a criminal case under sections 506 and 120-B of P.P.C.
60. Against him and Mir Hassan. Abdul Qadir further stated that he raised no cries and did not go to the police station as informer and did not telephone police and had no talk with anybody present at the spot and had no meeting with any relative on the day of incident. Abdul Qadir in his previous statement had stated that he did not know the names of his relations. He admitted having stated earlier that he reached the hospital at 11 or 12 night and that after 10/15 minutes he went to police station to see Rustam and Zabit Khan. Abdul Qadir contradicted himself by saying in Court that in his previous statement he had stated that he went to police station with Zabit Khan and Rustam Khan, although he had not stated so in his previous statement.
61. ' P.W. Fazal Qadir Exh.81, admitted in cross that his sister was wife of Sarwar who was brother of P.W.
62. Abdul Qadir. He admitted that his daughter was married with son of Sarwar. In his brief statement copy Exh.83, Fazal Qadir had stated that his daughter was married with Mirzada son of Niamat Khan. In his police statement Fazal Qadir did not state that Noor Hassan was given blows with butts, but he added that butt blows were given to Abdul Hassan, as per Akhtar Exh.174. Fazal Qadir did not state before police that firstly he came to Lee Market by bus and then got down from the bus at Post Office Bus Stand of Kemari and then proceeded to Qadri Hotel through Muslim Hotel. He did not inform police that on reaching Kemari Jackson Bazar near Muslim Hotel he heard gun shots. He did not specify in his police statement that Habibur Rehman fired a bullet which hit left eye of Noor Hassan. He did not state in police statement that Akbar Khan had a gun. Fazal Qadir did not specifically assign any role to Rustam and Zabit Khan firing on Fazal Qayoom and Abdul Hassan in the police statement but he had stated that all the accused were firing at the two deceased and the injured. Fazal Qadir did not tell police that the accused fired in the air while escaping from the Wardat. He did not tell police that Haji Sher Hassan came from side of the mosque and had a talk with Fazal Qayoom although there is mentioned in the police statement of Sher Hassan who removed the three injured to the hospital. Fazal Qadir did not tell police that Bakhtiar reached at the Wardat after 10/15 minutes of the incident. Akhtar denied having examined Fazal Qadir on second day of the incident. Fazal Qadir stated in his statement dated 18-12-1977 that Qadir Hotel was not visible from Muslim Hotel and distance between them was 60/70 paces, but in Court he denied having said so. Fazal Qadir contradicted himself by denying to have filed appeal against election contested by Muhammad Fazal against Fazal Qayoom but appellants filed copy Exh.82 of such appeal. Fazal Qadir added that the assailants fired 7/8 fires in the air when they were 6/7 paces away from Qadri Hotel and that they fired at the injured from the distance of 12/13 paces.
63. This statement is belied by the medical evidence. Fazal Qadir also stated that he did not know as to, what was the talk between Sher Hassan and Fazal Qayoom. Fazal Qadir admitted that many persons were collected at the Wardat when police came. He claimed to have told police that he had heard gun shot after covering 5/6 paces from Muslim Hotel but this was not correct. He claimed to have told police that Habibur Rehman fired a shot which hit on eye of Noor Hassan and that Akbar was armed with gun and that Rustam and Zabit Khan fired at Fazal Qayoom and he fell down. Fazal Qadir admitted that there are cloth shops, carbine, hotels, etc. Between Qadri Hotel and Jamia Masjid. Fazal Qadir denied having assisted Sher Hassan while removing the injured from the Wardat. He admitted that he had been visiting Mir Hassan on matrimonial affairs and that Abdul Qadir was his co-villager. Besides being chance witnesses, Fazal Qadir and Abdul Qadir were highly interested persons and their evidence did not add anything material to the prosecution case.
64. ' Learned counsel for the complainant cited a number of authorities on various points but at the same time cited the case of State v. Rab Nawaz and another PLD 1975 SC 86 where it was held that everything said in a judgment more particularly in a Criminal judgment must be understood as having been said with reference to the facts of that particular case. This authority reduces impact of the decided cases on the case in hand. The other cases cited by Mr. Abdul Wahab also require brief discussion. In Lal and another 1972 PCr.LJ 1317, the view taken was that absence of name of a witness in F.I.R. Was not sufficient to discard evidence of such witness. In said case the F.I.R. Was disowned by its author and in the peculiar circumstance of that case it could not be said as to who was witness of F.I.R. And who was not. In the case of Shahbaz and another PLD 1953 Lah. 566, the view taken was that sometimes false witnesses are named in F.I.R. And sometimes true witnesses are forgotten to be named in F.I.R. By makers of the same and that presence of names of the witnesses in the F.I.R. Is only a test for determining whether they were present at the time of the occurrence or not but such mention of names in the F.I.R. Is not proof of their veracity. In the case of Khushi Muhammad 1983 SCMR 697 it was held that F.I.R. Is never intended or considered to be a document describing minor or incidental details of the incident in question. In the case of Khalil Ahmad 1975 SCMR 442, the F.I.R. Was lodged by son of the deceased without loss of time and it was held that such circumstance eliminates the possibility of fabrication on the part of a boy of 15 years of age. In the instant case there is controversy about the time of the incident as mentioned in the F.I,R., which was not lodged by a boy of 15 years of age. In the case of Yahoo Shah PLD 1976 SC 53, the F.I.R. Was lodged within half an hour of the incident and it was held that such circumstance entirely eliminates probability of falsification or false implication. In the cited case the accused was caught red-handed at the spot and was produced before police and the deceased's identity remained undiscovered until investigation and it was held that mere fact of the eye-witnesses being police officials and deceased being brother of another police official posted in a distant village, was not reason to doubt the veracity of witnesses. Present appellants were not caught red- handed and there is controversy about the time of the incident and there is doubt about the F.I.R.
65. Having been lodged promptly. In the case of Riaz Ahmad alias Rajoo and another PLD 1970 Lah. 689 the view taken was that making of F.I.R. With great promptitude gives rise to conclusions that the eye-witnesses mentioned in the F.I.R. Could not have been procured if not witnesses of occurrence and that maker of the F.I.R. Was either witness to the incident or was otherwise connected with it. In the instant case the time of the incident as mentioned in the F.I.R. Is doubtful. Even otherwise all the eyewitnesses examined in the case have not been mentioned in the F.I.R. And out of the two witnesses mentioned in the F.I.R., Munir appears to be not Munir but some other person with name Amir Ahmad. Munir Ahmad Exh.90 was shown National Identity Card copy Exh.91 and passport copies Exhs.92 to 95 in name of Amir Ahmad and he did not disown the case. Evidence of another witness named in the F.I.R. Viz. Muhammad Nawaz Exh.l39 has already been discussed. He materially contradicted the prosecution version by saying that Habibur Rehman was armed with a rifle, which he fired at Noor Hassan who was caused a punctured wound at left side of bridge of nose from a fire-arm, at a close range and eight other injuries with a hard and blunt object. Dr. Abdul Hadi Exh.112 who performed autopsy on dead body of Noor Hassan did not say if the fire-arm used was rifle. Muhammad Nawaz is admittedly serving in Saudi Arabia and his presence at the Wardat at the time of the incident appears to be doubtful. Rest of the eye-witnesses were not mentioned in the F.I.R. However, case of Riaz Ahmad does not help the prosecution. In the case of Javed Ahmad alias Jaida 1978 SCMR 114, the crime was committed at a public place and it was held that evidence of passers-by cannot be rejected by describing them as chance witnesses unless they are unable to give satisfactory explanation of their presence or their testimony is inherently weak. In the instant case the evidence has come from interested persons and the two chance witnesses namely Fazal Qadir and Abdul Qadir are also interested witnesses. They have not given satisfactory explanation of their presence at Wardat. Cited case is, therefore distinguishable from the instant case. In the case of Fida Hussain 1975 SCMR 150 brother of the deceased, was believed because his evidence was corroborated by independent witness. There is no independent corroboration in this case. In the case of Aurangzeb 1978 SCMR 255, eye-witnesses were related to the deceased but there was no serious enmity between the parties and it was held that it was inconceivable for the witnesses to involve accused in an offence of murder without reason. In the instant case even the prosecution evidence shows that there is serious enmity between the parties.
66. In the case of Roshan and others PLD 1977 SC 557, it was held that no corroboration is necessary if presence of a witness was proved beyond doubt and that it was not a universal rule that evidence of an interested witness must be corroborated by independent evidence. Corroboration of interested witness has been emphasized in a number of decisions of the Superior Courts. In the case of Sahib Masih 1982 SCMR 178. Cited by Mr. Halepota, it was held that testimony of interested witnesses in order to be believed must ring true and be not tyrannically unsound or inconsistent and in case of ordinary interested witnesses independent corroboration of some sort is necessary.
67. In the case of Khursheed PLD 1964 Kar. 356 the view taken was that where eye-witnesses are inter- related and inimically disposed towards the accused, the corroborative evidence must be exceptionally strong and sufficient by itself to establish guilt of the accused beyond reasonable doubt. In the case of Ahmad, etc. 1982 SCMR 1049 it was held that corroboration has to be looked for and found not only where the witnesses are interested but in cases whereby itself the ocular evidence is not so sound and doubt free as to independently suffice for conviction of the accused.
68. In the case of Mangio 1976 PCr.LJ 243 it was held that where the eye-witnesses were closely related to the deceased, the testimony of such witnesses cannot be explicitly relied upon without independent corroboration. In the case of Muhammad Sadiq 1979 SCMR 214, it was held that there can be no dispute about the proposition that as a rule of prudence, the evidence of a hostile witness in a criminal case requires corroboration and the primary question is whether such witness is a hostile witness as some time hostile witness may speak the truth while a disinterested witness may be bribed or pressurized into giving false evidence and that the question will always be of the veracity of the witness and in addition to the question about interestedness of a witness the Court must examine whether the evidence is inherently probable and consistent with the circumstantial evidence. Independent corroboration of witnesses whose presence at the Wardat at the time of the incident was doubted, has been emphasized in the case of Ahmad, etc 1982 SCMR 1049 cited by Mr. Halepota. In the ease of Mangio 1976 PCr.LJ 243 cited by Mr. Chaudhry Iftikhar the view taken was that where the eye-witnesses were closely .Related to the deceased the testimony of such witnesses cannot be explicitly relied upon without independent corroboration. In the case of Inam Hussain Siddiqui 1972 PCr.LJ 1322 conviction based on ocular testimony and dying declaration and motive was maintained but the sentence was reduced as the accused was 17 years old at the time of occurrence. In the case of Nazir and others PLD 1962 SC 269 it was held that there may be an interested witness when the Court regards as incapable of falsely implicating an innocent person, but such a witness would be exceptional and an ordinary interested witness cannot be relied upon unless there are circumstances given sufficient support to such statement so as to create that degree of probability which can be made the basis of conviction. It would thus appear that it is only in exceptional cases that Court may not look for some circumstance giving support to statement of an interested witness. With enmity between the parties, present case cannot be covered by the exception. In the case of Muhammad Rafiq PLD 1974 SC 65, the prosecution witnesses were related inter se but none of them were connected with the deceased or had any enmity with accused and their testimony was held to be not assailable. In same case it was held that it was too much to accept from illiterate person to indicate the distance from which a fire-arm was fired and that charring of entry wounds on person of the deceased signifies that the pistol has been fired from range of 6". In the case of Samano 1973 SCMR 162 it was held that although opinion of the expert witness was entitled to great weight yet it cannot override factual observations by other equally competent expert witnesses recorded at relevant time. In said case the person who made dying declaration was examined by two doctors who had the opportunity of actually observing the condition at the relevant time. A third doctor called as a specialist to perform an emergency operation stated in respect of the maker of the dying declaration that he was talking a lot in an excited manner and it could not be said if he was talking sense. In this respect opinion of the two Courts below that theoretically opinion cannot override the factual observation of the two doctors was upheld. In the case of Muhammad Shafi PLD 1976 SC 167 it was held that there is a regrettable practice among a class of lawyers to use prolonged cross-examination for the purpose of loading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the form of leading questions has thereby been reduced, and such a practice is plainly designed not for the disclosure of truth but for the manipulation of error and use of such method was disapproved. This may have relevance to the cross-examination by Ch. Iftikhar who went on putting relevant as well as irrelevant questions to the prosecution witnesses. However, learned A.A.-G. Could not point out the answers given in cross-examination which were influenced by the lengthy cross-examination. In the case of Shams her and another 1973 SCMR 69 it was held that common intention can be formed spontaneously at the spur of the moment, and where the accused as well as the absconder fired at the deceased in quick succession, it showed unmistakably that they were acting in furtherance of their common intention to cause the death of the deceased. In the present case the appellants did not fire in quick succession rather Habibur Rehman allegedly fired at Noor Hassan. Rustam allegedly fired at Abdul Hassan and Zabit allegedly fired at Fazal Qayoom hence cited case does not apply. In the case of Khairdi Khan and others PLD 1953 FC 223 the High Court in revision had reappraised evidence and had come to definite and precise findings of tact in the order for retrial and it was held that such findings amounted to a direction to convict., In the same case it was also held that weight was to be given to opinion of Court of first instance about character and credibility of the witnesses. If this observation is followed without considering facts of each case then each case of conviction the Appellate Court would be obliged to maintain the same. In the instant case when the matter was remanded to the Sessions Judge for retrial there was no observation to give any indication to Sessions Judge to convict the appellants. Hence the said case does not apply.
69. ' It is necessary to discuss the authorities cited by learned A.A.-G. In the case of Faiz Muhammad PLD 1988 Lah. 149 the Court took view that it was neither a principle of law that an interested witness was unworthy of credit without corroboration, nor it was correct that interest of a witness affected his credit though it can be said that interest might affect his credit for interest and truth go together. Detailed observations on this topic have been given in the case of Nazir PLD 162 SC 269 discussed above. In the case of Qazi Sirajuddin PLD 1977 SC 14, it was held that motive can be proved by any person having knowledge of facts. In the case of Mst. Hamida Bano PLD 1963 SC 109, it was held that where accused himself produced weapon, such production may be taken as supporting circumstantial evidence. In the case of Miran Shah 1982 SCMR 1475, it was held that recovery and search made under sections 94 to 105 of Cr.P.C. Can be initiated on instance of a summon or warrant by the Court and that the Court will not insist strict compliance of section 103, Cr.P.C. If such compliance is not possible. In the case of Muhammad Naim 1992 SCMR 1617 it was held that the police officials are as good witnesses as other citizens and their deposition cannot be brushed aside on the ground that they belonged to police. In the case of Muhammad Hanif PLD 1992 Lah. 314 attention was drawn between "opinion" and "fact". In the case of Hadi Kireani AIR 1966 Orissa 21 it was held that post-mortem report was not a piece of substantive evidence and that evidence of doctor alone could be treated as substantive evidence. In case of Yacioob Shah PLD 1976 SC 53 it was held that the expert evidence is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence and if there is direct evidence which is definite forthright creditworthy confirmatory that such evidence cannot be outweighed by the medical evidence. In the case of Tawaib Khan and another PLD 1970 SC 13 it was held that the maxim "falsies in Uno falsies in omnibus" has all along been discarded by the Courts in this country.
70. The case of Samano 1973 SCMR 162 has already been discussed above. In the case of Muhammad Khan and others 1973 PCr.LJ 957 the view taken by Lahore High Court was that mere acquittal of some accused _ on the ground of their case being doubtful does not imply that the, evidence in absence of corroboration cannot be acted upon against another accused and that surrounding circumstances can provide sufficient corroboration even if it was to be looked in the case. In the case of Mir Khan PLD 1968 Kar. 903 the medical officer gave age of the injury to be 18/20 hours and the witnesses gave age of the injury to be 24 hours and it was held that such discrepancy was not so material as to discard evidence of the witness and that evidence of doctor was always subject to an allowance being given on such issue. There can be no cavil with the observation made in the aforesaid authorities but present case is not covered by any of said authorities. The evidence of motive has directly come from witnesses and hence the case of Qazi Sirajuddin has no application.
71. The evidence of recovery was against Habibur Rehman. Rustam Khan, Hussain Khan and Zabit Khan only. They allegedly led police to their house and produced from there certain weapons which were not unlicensed. Habibur Rehman produced shot-gun with four cartridges. Sabit Khan produced one revolver and 12 live cartridges. Hussain Khan produced a revolver and 10 live cartridges. Rustam produced one pistol one short-gun and two live cartridges. Said weapons were referred to the Ballistic Expert with the bullets, one recovered form dead body of Noor Hassan and another recovered from dead body of Abdul Hassan. Ballistic Expert Bukhtiar Ahmad Exh.164 deposed that he received 10 sealed parcels from Jackson police and the same were opened. That the sealed parcel contained weapons and five crime-empties. The expert produced his report'
72. Exh.67 according to which crime-empties C-3 to C-5 were fired from Pistol No,762548. This evidence was given only in respect of pistol No,762548 allegedly recovered from Rustam Khan under Mashirnama Exh.100 supported by recovery Mashir Muhammad Azim Exh.96. The evidence of Ballistic Expert has been discarded by the trial Court on the ground of his answers in the cross- examination and on the ground that he was not found reliable during hearing of the acquittal appeal by learned D.B. Of this Court. In his cross-examination Ballistic Expert Mukhtiar Ahmad admitted that file of this case was handed over to Ghulam Abbas Jafari who was Director of Forensic Science Laboratory. Government of Sindh, but the case property was to be examined by this witness because Ghulam Abbas Jaffari was under suspension. Mukhtiar Ahmad admitted that in documents Exh.165 to Exh.169 he had not mentioned smell of gun powder coming from the pistol.
73. He admitted that he carried on the test on a closed holiday because of load of work. That he put two signatures at two different places in the document Exh.165 with different dates below his signature. He admitted that his opinion in this case was not on the prescribed form and the final opinion was sent to police on printed form but its carbon copy was not in the file which was given to him. The trial Court discarded the opinion of the Ballistic Expert on weighty grounds. After his evidence is discarded nothing remains against appellants Rustam except that a licensed pistol was recovered from him. Even if the recovered weapons had emitting smell that would not by itself prove that the injuries to the two deceased and the injured were caused with said weapons.
74. Consequently, the case of Mst. Hamida Bano PLD 1963 SC 109 and the case of Mirza Shah 1982 SCMr 1475 do not apply. Consequently, case of Tawaib Khan and another PLD 1970 SC 13 has no 'application. All the eye-witnesses cited in the case were private persons and none of them was a police official and hence the case of Muhammad Naim 1992 SCMR 1617 has no application for the purposes of deciding this case. It is not necessary to enter into controversy about the difference between the words "opinion" and "fact" and hence the case of Muhammad Hanif PLD 1992 Lah. 314 has no application.
75. ' In the instant case there is a material contradiction about the medical evidence and the ocular evidence. Dr. Abdul Hadi Exh.112 performed postmortem examination of the dead bodies of Noor Hassan and Abdul Hassan. He deposed that dead body of Abdul Hassan had lacerated wounds abrasion and contusion and all those were sustained due to forceful and hard and blunt object like Danda and Lathi or other similar weapon. The Medical Officer was clear that there is no entry of exit in the body of Abdul Hassan. The medical evidence falsifies the ocular evidence that Abdul Hassan was fired by Rustam with a gun. Dr. Abdul Hadi was personally examined in Court and hence case of Hadi Kirsani AIR 1966 Orissa 21 has no application. The inconsistency between the ocular evidence and the medical evidence is so material that even if some allowance is given for the inconsistency the same cannot be reconciled. Hence the case of Mir Khan PLD 1968 Kar. 903 has no application. There can be no cavil with the observation made in the case of Yaqoob Shah PLD 1976 SC 53 that expert evidence is in the nature of confirmatory or explanatory of other evidence but if such evidence falsifies the ocular evidence then obviously no reliance can be placed on such ocular evidence. It may be relevant to refer to the case of Yousuf PLD 1988 Kar. 521 where the view taken was that the prosecution is obliged to clarify the position in case of conflict between medical evidence and ocular evidence. In the case of Bagh Ali 1983 SCMR 1292 it was held that where there are apparently contradictions in medical report and ocular testimony, the prosecution and not the accused is obliged to clarify the position. In the case of Jahangir Khan 1972 SCMR 221 it was held that where there was material inconsistency between the statements of prosecution witnesses made at initial stage and the medical evidence, the accused were given benefit of doubt. In the case of Bashir Ahmad 1974 PCr.LJ 385 medical evidence was preferred to the ocular evidence where there was contradiction regarding description of the injury and range of the shot.
76. Consequently in the light of the case-law the ocular evidence does not deserve to be relied upon.
77. ' It is a matter of fact that the ocular evidence which came against the applicants also implicated Zia Abbas and Tariq Saeed. The question arisen as to whether the same evidence disbelieved in respect of said accused can be believed in respect of the appellants. On this point lot of case-laws were cited. It was held that the maxim "falsies in uno falsies in omnibus" has been discarded in this country as held in the case of Tawaib Khan and another PLD 1970 SC 13 which has already been discussed' and also the case of Samano 1973 SCMR 162. Similar principle was followed in the case of Muhammad Khan and others 1975 PCr.LJ 957 discussed above. Contrary view was taken in the case of Illahi Bux 1982 SCMR 57 where it was observed that no doubt the Court can sift grain from chaff yet relying only on certain portions of statement of prosecution witnesses, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate portion of their statements. In the case of Ghulam Sikander and another PLD 1985 SC 11 a witness was found false with regard to the implication of one accused and it was held that it was essential to seek corroboration of such witnesses in respect of remaining accused. In the case of Abdul Ghafoor 1982 SCMR 162 it was held that where evidence of prosecution was tainted and not believed in regard to acquitted accused and case of convicted accused was not distinguishable, the latter were entitled to benefit of doubt. However, in the instant case conviction of the appellants could have been maintained despite acquittal of Zia Abbas and Tariq Saeed, had the ocular evidence been inspiring confidence and had it been corroborated by some material evidence.
78. ' Adverting now to the recoveries of crime weapons from the appellants, in our view, these recoveries are not of any significance as all the weapons allegedly recovered are licensed ones and the evidence of Ballistic Expert P.W. Mukhtiar Ahmad which can incriminate only Rustam has been discarded by the trial Court, which observed: "I have gone through the deposition of this witness and from the answers given by him in the cross-examination and the points raised by the learned defense counsel and the fact that he was not found reliable by the Honourable High Court, I am not prepared to accept his opinion in this case". We further find that recoveries are effected in presence of P.Ws. Aman and Ghulam Hyder, of whom only Aman is examined vide Exh.96. This Mashir was a co-accused with complainant party in some criminal cases. He is thus directly linked with complainant and the P.Ws. There is clear violation of the provision of section 103 of Cr.P.C. As no efforts were made to associate respectable persons of the locality when the weapons were allegedly recovered from the house of accused at their potation. For these reasons, the recovery evidence, in respect of the weapons recovered from houses of some of the accused, does not lend any support to ocular testimony.
79. ' Having discussed various pieces of evidence, we consider it necessary to dilate upon the investigation conducted by Investigating Officer Akhtar Siddiqui. He has admitted that he took time to find out eye-witnesses, which means that the persons made eye-witnesses by Investigating officer were not readily available on his first visit to Wardat, when he did nothing except preparing Mashimama. It is this Officer with whose collaboration time of incident in the F.I.R. Seems to have been manipulated. He made no attempts to find out if the incident was actually witnessed by any independent witness other than those who were examined during trial. He even failed to examine injured P.W. Fazal Qayoom or include his name in the calendar of the witnesses in the challah. Such lapse on the part of Investigating Officer would mean that either he never verified the facts himself and acted under somebody's dictation, or if that be so he willingly agreed to join as accused even those who were never involved in the commission of offence.
80. ' We shall now advert to the contentions of learned A.A.-G. And Mr. Abdul Wahab, Advocate who have appeared for the prosecution. The contention of Mr. K.N. Nadeem, learned A.A.-G., that names of the accused, weapons being carried by each one of them and the role attributed to them are all spelt out from the F.I.R. And that the discrepancy about the time of occurrence in the F.I.R. (Exh.116) is insignificant because in the body of F.I.R. Time of occurrence is correctly shown. In respect of the contentions raised above, it shall suffice to say that merely because the time of occurrence is correctly shown in the body of F.I.R., would not mean that time of occurrence which was initially shown at 12-00 hours is not erased and changed to 1-1/2 hours. It would also not mean that complainant Bakhtiar who did not show which accused carried what weapons and who out of them fired at deceased or the injured could be brushed aside. The F.I.R. Is a basic document and entire evidence led at the trial would revolve around it. In F.I.R., although details of incident need not be shown as held in the case of Khushi Muhammad 1983 SCMR 697, but at least the details of the incident, the names of the culprits and the part taken by such culprit in the commission of the offence have necessarily to be mentioned. If that is not done, anything in addition to and beyond the contents of F.I.R. Are to be treated as additions and improvements. We, therefore, repel such contention of A.A.-G. His next contention that if certain witnesses are disbelieved in respect of acquitted accused Zia Abbas, the same can be believed in respect of the convicted accused.
81. There is no cavil to such proposition of law but the fact which would remain to be considered is whether evidence of these witnesses is trustworthy, free from taint or came from impartial witnesses. If that is not the situation and if said witnesses are found unreliable and partisan, their evidence cannot be accepted against the remaining accused without independent corroboration.
82. We also do not agree with the learned A.A.-G. That the facts observed by a Medical Officer may be believed although opinion given by such expert may not be believed. This is misconstruing the legal position. It is not only the facts which are observed by an expert which are to be taken into consideration but also his opinion which is based on many observations. We, therefore, have no hesitation in holding that evidence of the two doctors has to be read in its entirety and not that one portion favorable to prosecution should be accepted and that which favors accused is to be rejected.
83. ' We agree with the learned A.A.-G. That evidence of prosecution witnesses cannot be rejected on the ground of their being related to the complainant or deceased. The question again would be whether such evidence is trustworthy, has come through witnesses who could possibly have witnessed the occurrence and whether these witnesses were not prompted by considerations other than those of having testified truth while under oath. The evidence of P.Ws. Mir Hassan, Munir and Nawaz, to say the least for P.W. Abdul Qadir does not confirm to such requirements. Each one of them had, at one or the other stage either deliberately avoided to divulge truth or truth had to be extorted from them through lengthy cross-examination. Such conduct of the witnesses which does not confirm to the required standards, cannot be said to be either independent, trustworthy or reliable.
84. ' Mr. Abdul Wahab's contention that all precedents referred by the learned defense counsel cannot be taken into consideration while deciding the appeals of the convicts because such judgments relate to the facts of the cases in which the judgments were pronounced, in our view is a misconception of law. This contention of Mr. Abdul Wahab, Advocate was based on the judgment reported PLD 1974 SC 87 in which the Honorable Supreme Court of Pakistan at page 96 observed as under:- "Mr. Rashid Murtaza, learned counsel for the respondents strenuously canvassed that proposition passing himself on the two judgments of the Federal Court in Safdar Ali v. Crown PLD 1973 FC 93 and in Muhammad Aslam v. Crown PLD 1953 FC 115 by the argument in my opinion proceeds on a superficial reading of the precedent case in which -the facts were materially different. It also overlooks the general principles, that everything said in a judgment more particularly in a original judgment must be understood as having been said with reference to the facts of that particular case."
85. ' The above' would not mean that the judgments of the Superior Courts wherein law is laid down on any particular point cannot be a precedent for other cases. If the contention of Mr. Abdul Wahab, Advocate is accepted, it would mean that while deciding a case the Courts cannot either refer to or rely upon the precedent of the Superior Courts. In our view therefore, contention of learned Advocate is devoid of any legal force. His other contention that merely because names of Abdul Qadir and Fazal Qadir were not mentioned in F.I.R. By complainant Bakhtiar Khan would be insignificant as Bakhtiar had not stayed at Wardat for sufficient time to witness as to who came and saw the incident, is also without any force. The witnesses not named by P.W. Bakhtiar were none other than his own people who were known to him very well. If he could name P.Ws. Munir and Nawaz to have witnessed the incident, he could also name P.Ws. Abdul Qadir and Fazal Qadir to have witnessed the incident. Such omission by P.W. Bakhtiar cannot be countenanced on mere assumption of its insignificance. Mr. Abdul Wahab's contention that Dr. Abdill Hadi may not be believed but Dr. Abdul Muqeet may be believed is, in our view, not a sound proposition. Both doctors were involved in the examination and or post-mortem of the deceased or examination of P.W. Fazal Qayoom and their evidence is to be read as a whole and if anyone of them stated the facts which helped the accused the same has to be taken into consideration.
86. ' Mr. Mir Muhammad Shaikh who argued the two revision applications filed by P.W. Mir Hassan has contended, firstly, that Zia Abbas should not have been acquitted and, secondly, that inadequate sentence is awarded to appellants against whom prosecution case was proved beyond doubt. For this contention all that can be said is that acquittal of Zia Abbas is not challenged by 'the State and under subsection (5) of section 439 of Cr.P.C. No revision is maintainable. Even on merits evidence against Zia Abbas was not sufficient to warrant his conviction. In so far as awarding lesser sentence to appellants than that of death PCr.Lj sentence, we may observe that, in our view, no conviction could have been recorded at all against appellants. We deliberately have avoided discussing the case-law referred by Mr. Mir Muhammad Shaikh, Advocate because the same would be applicable only in case it is found that evidence against appellants/convicts is sufficient and is trustworthy or has come through witnesses whose integrity is above doubt.
87. ' For the same reasons and for brevity sake we shall avoid to refer the case-law cited by Mr. H. Ilyas Khan, Advocate and Mr. I.A. Hashmi, Advocate for the respondents in two criminal revision applications.
88. ' From the above discussion we are constrained to arrive precisely at the following conclusions:--
(a) The version of incident given by complainant Bakhtiar Khan, besides being brief is not supported by alleged eye-witnesses but there have been improvements on the same;
(b) During second trial there have been material improvements made by witnesses to their earlier statements during first trial and such improvements have been proved by bringing extracts of their evidence on record;
(c) Names of P.Ws. Abdul Qadir and Fazal Qadir, who were both chance witnesses were subsequently, added after due deliberations when, in fact, they were not present at the scene of offence but both resided at more than 10 miles from Wardat;
(d) P.Ws. Fazal Qadir and Munir have rightly been disbelieved by the trial Court and, of course, for valid reasons;
(e) Opinion of Ballistic Expert which does not support prosecution case that weapons allegedly recovered from accused were used in the commission of the offence is rightly discarded by the trial Court;
(I) Evidence on record was not sufficient to warrant conviction of appellants who were charged for a capital offence;
(g) Enmity between parties before the incident was well-established for which a plethora of documentary evidence is brought on record during cross-examination of prosecution witnesses;
(h) Deliberate attempts were made to rope in maximum number of accused who may have had any link with the accused directly charged with the commission of the offence;
(i) Investigation was carried out dishonestly and in flagrant violation of the rules; and
(j) Defence evidence which created dents in prosecution evidence, particularly of Bakhtiar Khan and Munir has been discarded by the learned trial Court for no legitimate reasons.
89. We would also like to record our dis-satisfaction over the manner in which some of the learned defense counsel conducted themselves during the trial. There has been unnecessarily lengthy cross-examination of some of the witnesses and even irrelevant questions have been put to the witnesses. May be that the witnesses were not readily willing to admit a particular fact, yet we feel that such a practice could have been avoided as far as possible for minimizing agony of the accused.
90. ' The upshot of our above discussion is that evidence of motive a untrustworthy, ocular testimony is discrepant, unreliable, full of incoherence and not of quality which could be made basis of conviction, the medical evidence and the evidence of recovery lends no support to ocular testimony and the case as a whole is not free from doubt. In the result we accept all the appeals, set aside the conviction and sentence of the appellants and direct acquittal of all the appellants.
91. As a consequence of this, the criminal revision applications are dismissed.