' Iftikhar Ahmed (28), Abdul Sattar (25), Muhammad Shafique (17), Faqir Hussain (25), Babar Jamal (17), Muhammad Akram (20), Ibrar Ahmed (30), Abdul Jabbar (30), Muhammad Nawaz (26), Anwaar Khan (52), Mukhtar Ahmed (64), Jamal Khan (60), Ajmal Khan (55) and Aslam Khan (53) were tried, for committing the murder of Abdul Haq and Falak Sher, in an Indictment Exh.P.E.
Recorded on 20-8-1990 at 2 p.m. By Liaquat Ali, S.I./S.H.O. (P.W.12) on the statement of Maqbool Ahmed (P.W.6), the real brother of the deceased regarding the occurrence which took place on the same day at 12 noon in village Kalukey at a distance of seven miles from the Police Station, Saddar, Sheikhupura.
(2) The learned Additional Sessions Judge vide his judgment, dated 30-11-1992 convicted the appellants under section 148, P.P.C. And sentenced them to three years' R.I. Each; further convicted them under section 449, P.P.C. And sentenced them to five years' R.I. Each on two counts with a fine of Rs,5,000 each on two counts and in default of payment thereof to undergo further one year's R.I.
Each on each count. They were further convicted under section 302/149, P.P.C. And sentenced to life imprisonment each on two counts with a fine of Rs,20,000 each on two counts and in default of payment of fine to undergo further two years' R.I. Each on each count. The learned trial Court also directed that the fine, if realized, shall be defrayed to the legal heirs of the deceased as compensation to the extent of one half. The sentences were ordered to run concurrently and the benefit of section 382-B, Criminal Procedure Code was also extended to the appellants.
' Abdul Jabbar, Muhammad Nawaz, Anwaar Khan, Mukhtar Ahmed, Jamal Khan, Ajmal Khan, and Aslam Khan were given the benefit of doubt and acquitted by the learned trial Court.
3. The convicts have assailed the legality of the judgment through this appeal.
4. The facts, in brief, of the prosecution case are that on 20-8-1990 Abdul Haq, deceased, brother of the complainant, had gone to the shop of Abdul Hameed to fetch ice but when he did not return for quite some time, the complainant, himself, went to inquire and found his brother sitting and talking to the aforesaid Abdul Hameed. All of a sudden, Iftikhar Ahmed, Faqir Hussain, Muhammad Nawaz, Muhammad Shafique and Abdul Sattar armed with rifles, Akram Khan, Ibrar Hussain, Abdul Jabbar and Babar armed with .12 bore guns reached there while raising Lalkaras and Muhammad Nawaz accused exhorted his co-accused to take revenge of the murder of Zubair Khan whereupon Abdul Haq deceased was caught hold of by Muhammad Shafique accused and dragged out of the shop.
Abdul Haq, after getting rescued, ran towards his house. The aforesaid accused while raising Lalkara ran after him. The deceased on his way to his house, entered into the house of Karam Elahi and through the stairs reached the top roof of the house of Channan Din. All the aforesaid accused followed him to the roof. The complainant also continued running after them while raising alarm.
Iftikhar Ahmed reached on the top of the roof of the house of Channan Din, fired a shot from his rifle which struck Abdul Haq towards the front left side of his head. After sustaining fire-arm injury Abdul Haque fell down. Ibrar Hussain fired with his gun hitting Abdul Haque, while he was lying, on the lower part of his right leg. Abdul Jabbar fired a shot from his gun on the right buttock of the deceased. The accused when satisfied that Abdul Haque had died, ran out from the same stairs.
Falak Sher was statedly present in the house of his uncle Jamal Din. Hearing about the aforesaid incident, he rushed towards his house and when he reached near the Baithak of Anwar Kumhar the accused encountered him. Nawaz Khan again exhorted his companions to do away with Falak Sher also. He himself fired with his rifle hitting on die left side of the neck of Falak Sher deceased.
Muhammad Shafique, fired a shot from his rifle hitting Falak Sher on the left side of his chest. Falak Sher fell down. Then Abdul Sattar fired with his rifle which struck the jugular vein of Falak Sher deceased. Akram accused fired a shot hitting Falak Sher on his back. Babar Khan fired with his gun striking the right shoulder of Falak Sher. Faqir Hussain fired with his rifle hitting the deceased on the right upper arm. Iftikhar fired a shot which hit Falai( Sher on his left wrist. Some of them continued firing in the air to create terror so as to prevent anybody coming near them. On seeing number of people gathered at the place of occurrence, the accused ran away from the spot. Falak Sher died instantaneously.
' The motive behind the murder of Abdul Haq and Falak Sher was that a case for committing the murder of Zubair Khan, nephew of Muhammad Nawaz accused was registered about 8/9 years ago against Abdul Haque, deceased and another. All the accused while wreaking vengeance of the murder of Zubair Khan in consultation with each other and on instigation of Anwar Khan, Haji Mukhtar Khan, Jamal Khan, Ajmal Khan and Aslam Khan had committed the murder of Abdul Haque and Falak Sher, the real brothers of the complainant.
5. Liaquat Ali, S.I./S.H.O. (P.W.12) after recording the F.I.R. Assumed the investigation and proceeded to the place of occurrence. He took the dead body of Abdul Haq in custody, prepared the inquest report Exh.P.N. And the injury statement Exh.P.O. He collected the blood-stained earth from the place of occurrence. It was taken into possession vide recovery memo. Exh.P.F. Site Plan Exh.P.T. Was prepared. He, therefore, proceeded to the place of occurrence of the murder of Falak Sher, prepared the inquest report Exh.P.Q. And the injury statement Exh.15.R. The dead bodies, escorted by Shaukat Ali (P.W.1) and Sarfraz Hussain (P.W.9) Constables, were dispatched to the mortuary for post-mortem examination. The blood-stained search was secured vide memo.- Exh.P.G. Rough sketch Exh.P.U. Of the place of the second murder was prepared. Last worn clothes of Falak Sher, Shaiwar P.1, Shirt P.2, Bunyan P.3 were sealed in phial and the last worn clothes of Abdul Haq, deceased Shalwar P.4, Shirt P.5, Bunyan P.6 were produced before him and he vide memo. Exh.P.A.
And Exh.P.B. Respectively took into possession. On 25-8-1990 he arrested the accused Faqir Hussain, Babar Jamal, Abdul Jabbar, Abdul Sattar, Muhammad Shafique, Akram Khan, Iftikhar Ahmed, Ibrar Ahmed and Muhammad Nawaz. Jabar and Sattar while in custody led to the recovery of crime weapons gun P.7 and rifle P.8 from their residential place and the same were taken into possession vide recovery memos. Exh.P.H. And Exh.P.I. Respectively. He recorded the statement of the P.Ws. Under section 161, Cr.P.C. The investigation, thereafter, was carried out by Muhammad Sharif S.I. (P.W.10), who effected the recovery of the crime weapon from Muhammad Shafique and Iftikhar on their pointing out from their residential places, gun P.9 and the gun P.10 were secured vide recovery memos. Exhs.P.J. And P.K. Respectively. He also recorded the statements of the P.Ws-.
Under section 161, Cr. P.0 .
6. Dr. Sajid Bashir, Medical Officer, D.H.Q. Hospital, Sheikhupura (P.W.11) had conducted the post- mortem examination on the dead body of Abdul Haq, deceased, on 21-8-1990 and found the following injuries:--
(1) A lacerated wound 3.5 c.m. x 3 c.m. With blackening of edges at middle of forehead near hair margin damaging skull, brain matter was protruding out of wound.
(2) Fire-arm wound of entry 2.5 c.m. x 2.5 c.m. With burning of edges at front of abdomen just left to the mid line 4 c.m. Below umbilicus damaging greater momentum, small and large intestines, blood vessels of that particular region, right hip bone and made exit wound 4 c.m. x 3.5 c.m. At right thigh upper and outer part.
(3) Three fire-arm wounds of entry each 1 c.m. x 1 c.m. At right leg upper and front part in area 6 c.m. x 4 c.m. Making one fire-arm wound of exit at the back of right leg lower part. Two pellets were removed from deep skin of right leg back and middle part. There was no bony injury detected.
' In the opinion of the doctor the death was occurred due to severe shock and hemorrhage resulting into cardio pulmonary failure and that injuries Nos.1 and 2 individually and all injuries collectively were sufficient to cause death of a person in ordinary course of nature.
' According to him the probable time that elapsed between injuries and death was immediate while that between death and post-mortem examination was 20 to 36 hours.
7. On the same day at 1-40 p.m. Dr. Sajid Bashir, Medical Officer had also conducted the post- mortem examination on the dead body of Falak Sher and found the following injuries:--
(1) Fire-arm wound of entrance at front of neck upper part in mid line measuring 2 c.m. x 2 c.m.
With blackening of edges making wound at left side of neck upper and outer side measuring 3 c.m. x 2 c.m. On damaging trachea, esophagus and big blood vessels of that region.
(2) Fire-arm wound of entrance 3.5 c.m. With blackening and tattooing of edges of right shoulder front part making exit wound 5 c.m. x 4 c.m. At right upper arm outer and upper part damaging muscles, blood vessels and upper part of numerous bone (fracturing the bone).
(3) Fire-arm wound of entrance 2 c.m. x 2 c.m. With blackening of edges at left front of chest upper part inner to left nipple involving sma ll part of nipple also. Fire-arm damaged blood vessels of the region left 3rd and 4th ribs from front left lung, heart, 2nd, 3rd and 4th left ribs from behind, also some part of 3rd thoracic vertebrae damaged. The fire-arm made exit at left back of chest upper part 4 c.m. x 4 c.m. Near mid line. As small piece of bullet was removed from left chest wall back part (posterior chest wall).
(4) Four fire-arm wounds of entrance each 1 c.m. x 1 c.m. In area 9 c.m. x 7 c.m. At back of chest middle part just left to mid line damaging left lung, heart blood vessels. All four pellets were recovered from tissues of left lung.
(5) A fire-arm abrasion 2 c.m. x 2 c.m. At left fire-arm lower and outer part.
' In his opinion the death occurred due to several shock and profuse hemorrhage leading to cardio respiratory failure. Injuries Nos.l, 3 and 4 individually and all injuries collectively were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem examination was 20 to 36 hours.
7. On the completion of the investigation, all the accused persons were challaned, placing Faqir Hussain, Babar Jamal, Muhammad Akram, Ibrar Ahmed, Muhammad Nawaz, Anwafir Khan, Haji Mukhtar Ahmed, Jamal Khan, Ajmal Khan and Aslam Khan in Column No,2.
8. The prosecution, in order to substantiate its case, produced twelve witnesses in all. Shaukat Ali, Constable (P.W.1) had escorted the dead bodies along with Sarfraz Hussain, Constable.
Muhammad Ibrahim son of Mehr Din (P.W.2) had identified the dead bodies of the deceased before the post-mortem examination. Muhammad Rafique (P.W.3), Moharrir of the police station was handed over the sealed parcel containing blood-stained earth and he had kept the same in the Malkhana of the police station intact. Muhammad Riaz (P.W.4) draftsman had prepared the site plan Exh.P.C. And Exh.P.C./1, Exh.P.D. And Exh.P.D./1 of both the murders under the instructions of the police and on the potation of the witnesses. Sabir Ali (P.W.5) deposed to the conspiracy hatched by Mukhtar, Jamal, Aslam, Ajmal Khan and Anwaar while sitting in the Baithak of Mukhtar Ahmed.
Maqbool Ahmed (P.W.6) reiterated his version as he had given in the F.I.R. Channan Din (P.W.7) and Jamal Din (P.W.8) furnished the ocular account in support of the version of the complainant giving the details of the occurrence of both the murders. Sarfraz Hussain, Constable (P.W.9) had also escorted the dead bodies along with Shaukat Ali, Constable. Muhammad Sharif (P.W.10), S.I./S.H.O.
Had effected the recovery of crime weapon from Muhammad Shafique and Iftikhar while in police custody. Dr. Sajid Bashir (P.W.11) had performed the autopsy upon the dead bodies of Abdul Haq and Falak Sher deceased. Liaquat Ali (P.W.12)/Inspector, S.H.O. Gave the details of the investigation conducted by him.
9. On the conclusion of the prosecution evidence, the same as put to the accused persons who refuted the allegations leveled by the prosecution and professed their innocence. They were examined under section 342, Cr.P.C. However, none of the appellants volunteered to make the statement on oath under section 340(2), Cr.P.C. In disproof of the charges and the allegations against them.
10. I have carefully considered the arguments advanced by the learned counsel for the respective parties and have gone through the entire evidence on the record with their assistance. I have also given my anxious considerations to the material and the circumstances contradictions and improbability pointed out from the evidence of the witnesses. I may refer to the evidence brought on the record by the prosecution in order to appreciate the worth of it.
11. The prosecution in support of the ocular account produced Maqbool Ahmed (P.W.9) lodger of the F.I.R. Exh.P.E. And Channan Din (P.W.7) and Jamal Din (P.W.8) who also deposed with regard to the recoveries.
12. Maqbool Ahmed (P.W.6) lodged the F.I.R. Exh.P.E. Alleging that he had sent his brother Abdul Haq deceased to fetch the ice from the shop. He came out from the house to sde as to why Abdul Haq had not returned. He saw Abdul Haq sitting inside the shop talking with the shopkeeper Abdul Hameed alias Muhammad Ibrahim (P.W.2). He had hardly reached there when Iftikhar, Faqir Hussain, Abdul Sattar, Muhammad Shafique and Muhammad Nawaz armed with rifle, and Ibrar, Abdul Jabbar, Akram and Babar armed with .12 bore guns reached there and on the exhortation of Nawaz, Muhammad Shafique caught hold of Abdul Haq from his shirt dragging him out of the shop.
Abdul Haq got himself rescued in order to save his life, ran towards his house. He was chased. The complainant also followed. Abdul Haq through the stairs of the house of Karam Ellahi, reached the roof of the house of Channan Din, P.W. The complainant, Muhammad Siddique (given up P.W.), Channan Din and Jamal Din (P.Ws.) climbed the roof through the stairs of the house of Channan Din P.W. He gave the details of firing of the accused persons hitting the deceased Abdul Haq attributing different injuries to Iftikhar, Faqir Hussain, Ibrar and Abdul Jabbar. Falak Sher another brother of the complainant was, thereafter, attacked by the accused within the view of the P.Ws. All of them except Jabbar and Ibrar resorted to firing which struck the deceased Falak Sher. He also narrated the motive behind the murders stating that a case was registered against Abdul Haq and Abbas regarding the murder of Zubair Khan wjiereas the deceased Falak Sher and the complainant were not named in that case. Another case under section 307, P.P.C. Was also got registered against Abdul Haq, Manzoor and Lal Din, father of the complainant. In his cross- examination he stated that he had not been living permanently in that village. He was a labourer and was doing his work while moving from place to place. He admitted that he had visited this village off and on. In an answer to a question he stated that the house of Abdul Haq, deceased, falls prior to the house of Channan Din. The village is big one and thickly populated. Nobody was attracted to the place of occurrence. None had appeared during the investigation to support the prosecution version. He further stated that the people had gathered there but none of them had seen the accused running away from the place of occurrence. On the other hand, the people had asked them as to what had happened.
13. The next witness who provided the ocular account is Channan Din (P.W.7). He testified the statement of the complainant and stated that he was present in the house alongwith his brother Jamal (P.W.8). He heard the noise and tried to come up through the stairs. Muhammad Siddique (given up P.W.), Maqbool Ahmed (P.W.6) also had gone upstairs with them. He also gave the details of the firing made by the accused in corroboration of the statement of the complainant. He stated that they had followed the accused and also witnessed the second occurrence. In cross- examination he stated that Jabbar had fired hitting Abdul Haq on right shoulder. He, in an answer to a question, stated that he had not attested any document during the investigation.
14. The third eye-witness examined by the prosecution was Jamal (P.W.8), who also deposed, corroborating the other ocular evidence. However, he stated that the crime empties were not seen ,by him lying at both the places of the occurrence. There were five Lambardars and nine Councilors in the village but the Police Officer did not ask any one of them to associate with the investigation.
He in cross-examination also insisted that the injury sustained by Falak Sher, deceased was on the right arm and right buttock and on the left side of the neck and the injuries suffered by Abdul Hague on the lower part of his right leg were not exit wounds.
15. Muhammad Ibrahim alias Abdul Hameed (P.W.2), the witness of genesis of occurrence had identified the dead bodies before the post-mortem examination. He stated in his cross- examination that he was not present in the shop at the relevant time.
16. Liaquat Ali, S.I./S.H.O. (P.W.11), investigated the case and prepared all the necessary papers. He, in his cross-examination stated that he had, after thorough investigation, placed Faqir Hussain, Babar Khan, Jamal Khan, Akram, Ibrar, Muhammad Nawaz, Anwaar Khan, Haji Mukhtar Khan, Ajmal Khan and Aslam Khan in Column No,2 of the challan as he could not find sufficient material to forward their case for trial and he had found them innocent whereas Iftikhar Ahmed, Abdul Jabbar, Abdul Sattar and Muhammad Shafique were placed in Column No,3 of the challan. He, in an answer to a question, stated that the dead body of Abdul Haq was lying on the roof of Channan Din and Chaddar had been spread beneath his dead body. He further stated that it was not lying on the cot. He stated that in Column No,1 of the inquest report Exh.P.N. He had not shown cot but in the last column he had shown the same. He categorically stated that, in fact, the dead body was lying on the cot. He also did not mention specifying the places or the houses where the dead bodies were lying at the time of his arrival at the spot.
17. From the above survey of the evidence of the prosecution, it is clear that the motive for the double murder in this case was asserted to be a previous murder of Zubair Khan, nephew of Muhammad Anwar, acquitted accused, by Abdul Haq deceased and another. This motive is obviously double-edged weapon. On the one hand, it could be a motive for murder of two deceased persons. It would, on the other hand, also be a cause of false involvement of the appellants and the acquitted accused persons in this case. The prosecution witnesses alleged to be the eye-witnesses of the occurrence viz., Maqbool Ahmed (P.W.6), Channan Din and Jamal (P.Ws. 7 and 8), respectively all the three are admittedly close relatives of the deceased. Maqbool Ahmed is a real brother, Channan Din and Jamal Din are the real paternal-uncles of the deceased.
The motive asserted by the prosecution for the murder in this case proved the pre-existing enmity between the two parties. All the three eyewitnesses being closed relation of the deceased are thus interested witnesses and had inimically deposed towards the accused persons. The principle of prudence which has virtually matured as a principle of law by now, is well-settled by way of authority of our Supreme Court that in case of interested witnesses deposing on capital charge.
They cannot be relied upon unless it is corroborated through some unimpeachable, reliable and trustworthy source or strong circumstances that might remove inherent doubt attaching to evidence of such interested or partisan witnesses. The evidence regarding the motive has come on the file from the mouth of the same witnesses whose testimony requires corroboration through independent and trustworthy source, 'especially when the testimony of eyewitnesses is tinged with hatred against the appellants. The evidence pertaining to the motive, in the circumstances of the case, cannot be relied upon as it is settled principle of law that one tainted piece of evidence cannot be taken as corroborative to other tainted piece of deposition. The prosecution has mainly relied upon the testimony of the eye-witnesses. But it is strange to note that Muhammad Siddique P.W. Was shown to be present along with Channan Din and the complainant on the roof of Channan Din at the time of the murder of Abdul Haq. The said P.W. Was neither relative of the complainant nor he was inimical to depose against anybody; withholding such evidence is indicative to draw the inference that he had not surrendered to depose in support of prosecution versionIt has been held in case titled Wasiullah v. Khizar Ali and others PLD 1963 SC 25 that where there is a strong motive to include as many persons as accused as possible and some of them have been found to be falsely implicated, it definitely leads to a person of ordinary prudence to the suspicious circumstances and the possibility of false implications of other accused cannot be ruled out. It is prosecution's own case that the occurrence took place in the midday within the densely populated village but it is strange to note that no independent witness could be produced by the prosecution to support its version. Rather Maqbool Ahmed (P.W.6) in an answer to a question admitted that the people of the village instead of their version, supported the versions of the appellants during the investigation. Muhammad Siddique seems to be an independent witness cited in the challan but he too was given up by the prosecution as being unnecessary. Obviously it attracts the provision under Article 129, illustration (g) of the Qanun-e-Shahadat Order, 1984 reads as follows:--
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
18. It makes evidently clear that had he been produced, he would have not supported the prosecution version. (A perusal of the record indicates that the name of Ibrahim (P.W.2) has inadvertently been mentioned in the statement of D.D.A. Instead of Muhammad Siddique).
19. The genesis is that the occurrence took place in the shop of Ibrahim known as Abdul Hameed (P.W.2) from whose shop Abdul Haq deceased was alleged to have been dragged out by Muhammad Shafique, accused. He appeared as P.W.2 but he did not support the prosecution version. The story that Abdul Haq deceased ran from the said shop and the accused persons equipped with firearms were chasing him; that he went to the roof of the house of his uncle Channan Din through the house of Karam Ellahi; that he was killed at the said roof by the accused persons is absolutely improbable and unnatural in view of the admitted circumstances that the house of Abdul Haq, deceased, fell prior to the house of Channan Din and next to Karam Ellahi as per statement of Maqbool Ahmed (P.W.6).
20. It is not understandable as to why Abdul Haq deceased did not enter into his own house which fell on the way, and instead he entered in the house of Karam Ellahi and using the stair-case reached all the way to the roof of Channan Din P.W. Again it is also highly improbable that the accused persons would have chased Abdul Haq, deceased, right up to the roof of Channan Din and not opened fire upon the deceased in the street itself. The astonishing feature of the case is that, according to Maqbool Ahmed (P.W.6), the complainant, real brother of Abdul Haq deceased had been running after the accused but none of the accused turned up to fire at him. Moreover a large number of persons armed with deadly weapons after killing two brothers, could have easily done away with the complainant and two other eye-witnesses but they did not receive even a single injury at the hands of the assailants. All this leads one to believe that the witnesses were not present at the time of occurrence and the story seems to have been concocted after due deliberation.
21. The trial Judge very carefully discussed the injures meted to each accused separately in Paras.
Nos.50 to 61 of his judgment and proceeded to acquit Abdul Jabbar and Nawaz accused on the very cogent grounds that according to the medical evidence of Dr. Sajid Bashir (P.W.11) and that injuries attributed to the said two accused were merely exit wounds and not independent injuries but it is strange that he believed the ocular evidence as to the injuries caused by each of the accused although there were injuries meted out to some of the appellants which were also proved by the same medical evidence to be the exit wound. The injury meted out to Babar Jamal appellant to have been caused by him to Falk Sher deceased on the right shoulder front part making exit wound at right upper arm which was ascribed to Faqir Hussain appellant and the same cannot be, by any stretch of imagination, said an independent injury. Similarly the injury ascribed to Shafique Hussain appellant, to have been caused by him to Falak Sher, deceased, was also similarly proved to be the exit wound on the left side of front of chest upper part inner to left nipple making exit wound at left below of chest upper part. This injury was attributed to Ibrar Khan which was not an independent injury, but Faqir Hussain and Ibrar Khan appellants were convicted by the trial Court on the same set of evidence on which Abdul Jabbar and Muhammad Nawaz, accused, were acquitted. The ground which rightly prevailed with the trial Court for acquitting Abdul Jabbar and Muhammad Nawaz, accused, was overlooked in the case of Faqir Hussain and Ibrar Ahmed Khan.
Although the principle contained in the maxim "Falsus in uno falsus in omni bus" has been held not to be of universal application yet it has been ruled by the Supreme Court that where the evidence of eye-witnesses had been disbelieved by the trial Court for some of the acquitted accused, the same could not be relied upon to convict the other accused persons in the absence of independent corroboration through a reliable source. In the present case, such corroboration is patently missing. The reliance can safely be placed on Rehmat and others v. The State PLD 1959 SC (Pak.)
109. The relevant para. Reads as follows:- "In our opinion, the approach of the learned Judges to the appraisement of the evidence of individual witnesses was not based upon a full comprehension of all the circumstances appearing in the case, from the making of the initial report, up to the recording of evidence at the trial. When the evidence of the eye-witnesses is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the eleven persons accused in the case was based, not upon direct knowledge of their participation, but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g., a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence . "
22. This principle was, thereafter, followed in the following authorities:--
(1) Bagh Ali and 4 others v. State PLD 1973 SC 321,
(2) Manchia and 2 others v. The State PLD 1976 SC 695,
(3) Mushtaq Ahmed and others v. State 1991 SCM R 2270.
' Another important feature of the case which was overlooked by the trial Court was that Liaquat Ali, Inspector/S.H.O. (P.W.12) made a strange contradictory statement in his cross-examination. He stated that when he reached the spot the dead body of Abdul Haq was not lying on any cot but in the same breath he deposed "it is correct that in the last column of the inquest report Exh.P.N. I had shown that the dead body of Abdul Haq was lying on the cot. The dead body was lying on the cot when I visited the spot". But it is not the case of the prosecution that Abdul Haq, deceased, had spread himself on any cot on the roof of Channan Din. This indicates that cogent efforts had been made by the complainant side for concocting the story.
In view of the above discussion, I am of the considered view that the prosecution had failed to prove the charge against the appellants beyond any reasonable doubt. The case of the appellants is in no way distinguishable from the cases of Abdul Jabbar and Muhammad Nawaz, the acquitted accused. There is no independent corroboration or the circumstance for sustaining the conviction of the appellants on the very evidence on the basis of which two accused persons had been acquitted. The reliance can very safely be placed on Elahi Bux v. The State 1982 SCM R 57 and the relevant portion of which reads as follows:-- "No doubt it is open to the Court to sift grain from the chaff. But before relying only certain portions of the statements of the prosecution witnesses who have deliberately perjured themselves with regard to another portion of the prosecution story, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate the portion of their statements on which it wishes to rely."
While summing up the case I have noticed that the occurrence stately took place in the thickly populated village but none of the residents came ahead to depose independently. The medical evidence is not in consonance with the ocular evidence qua the four accused persons. So the recoveries of crime weapon from them have become doubtful. The ocular evidence was tainted with animosity against the appellants. The most independent evidence was withheld by the prosecution. The close and further scrutiny of the record is warranted to find out as to whether the occurrence had taken place in a manner as alleged by the eye-witnesses or whether there was any possibility of the said occurrence having been taken place in some other manner when the case was seen in its perspective there is a reasonable possibility that the occurrence had not taken place in the manner in which the eye-witnesses claimed. The genesis of this occurrence is unclear.
The minute scrutiny of the record leads to draw the inference that the occurrences had taken place in a different manner and unfortunate occurrences were not witnessed by the eye- witnesses.
' The upshot of the a fore going discussion is that am satisfied that the case of Muhammad Shafique and Ibrar Ahmed Khan is at par with the case of co-accused namely Muhammad Nawaz and Abdul Jabbar since acquitted and in this way grave doubts have arisen as to who had killed the deceased persons which makes the whole case of the prosecution as doubtful. Consequently, the appeal is accepted, the conviction and sentence awarded to the appellants are set aside and they are acquitted of the charge by giving them the benefit of doubt. They shall be released forthwith from the jail if not required to be detained in any other criminal case.