' RANA BHAGWAN DAS, J.--- This judgment shall dispose of the aforesaid two appeals filed by appellant Ghulam Hussain and five others convict/appellants which are directed against the judgment and conviction recorded by S.T.A. Court No,I, Hyderabad on 27-12-1994 convicting and sentencing the appellants under section 302 read with section 149, P.P.C. And sentencing them to life imprisonment and a fine of Rs,50,000 or in default to undergo R.I. For two years.
2. Fateful incident leading to the death of deceased Mohib Ali and others took place on or about 20-4-1992 at about 7-30 p.m. Near village Gahelo Taluka Matiari D6irict Hyderabad. Report of the incident was lodged by first informant Jan Muhanunad at Police Station Matiari on the next day at 1-00 p.m. Prosecution case in nut-shell is that on the material day at relevant time first informant Jan Muhammad accompanied by P.Ws. Muhib and Sadiq was returning home when on the Link Road leading towards village Sono Khan Khushk, 7/8 persons duly armed surrounded them and made them to sit in the ditches where they saw their relatives namely Muhib Ali son of Misri, Khawand Bux son of Muhammad Khan, Imam Ali son of Morio, Zulfiqar son of Ghulam Hussain, Mehar son of Obhayo, Iqbal son of Ibrahim, Obhayo son of Muhammad Umar, Ghulam Hyder son of Mala, Noor Muhammad son of Mitho, Hussain son of Allah Bux and two young boys namely Allah Bux son of Haroon and Najam son of Sadiq, all by caste Khushk. One Ghulam Shabbir son of Muhammad Issa Khaskheli was also found sitting over there and all of them were being guarded by 10/12 dacoits. It is said that all of them were tied with ropes and asked to go ahead. One of the criminals whistled upon which 10/12 other criminals arrived and the number of the culprits was raised to 30/32 persons. The witnesses were able to identify Major Khoso, Jurio alias Sepoy Makrani Khoso, Ghulam Muhammad, Zahroo, Nangar, Metlo, Ali Sher Makrani Khoso amongst the criminals.
All the persons were taken to mountain side after crossing protective Bund where Major Khoso told them that their companion Jalal Khoso had been killed. Major Khoso untied the first informant and his companions Muhib and Sadiq as well as Ghulam Shabbir Khaskheli and informed them that the culprits were avenging the murder of Jalal Khoso upon other captives. He handed over a chit to the witnesses to be delivered to Muhammad Ali and Madad Khushk and warned the P. Ws. To disappear from the scene for securing their own lives. In the meanwhile culprits who were armed with Kalashnikovs, rifles and guns fired straight at the captives and fled away leaving Muhib Ali and nine others with burst injuries of deadly weapons. First informant leaving the witnesses to watch the dead bodies left for police station and on way came across Muhammad Yousuf, S.H.O. Matiari and his staff. He narrated the incident to police who visited the scene of offence, prepared relevant Memos. And referred the bodies to Rural Health Centre Matiari where post-mortem on the dead bodies was performed by Dr. Zahiruddin Ahmed.
3. Appellant Ghulam Hussain was arrested on 26-6-1992 whereas appellants Fazal Muhammad, Allauddin, Dur Muhammad and Mehmood came to be arrested on 6-4-1993 while appellant Zahroo who was shown as absconder in the initial charge-sheet was arrested on 15-4-1993. On completion of investigation including identification parade in respect of the appellants they are sent up for trial before the Special Court for Suppression of Terrorist Activities, Hyderabad where their trial intended and conviction and sentence as stated above.
4. In support of its case prosecution examined Jan Muhammad P.W.1, Muhammad Sadiq P.W.2, Muhib Ali P.W.3, Dr. Zahiruddin Ahmed Qazi P.W.4, Mashir Muhammad Murad P.W.5, Taj Muhammad Pathan, Mukhtiarkar Matiari P.W.6, Rashid Ahmed Channa, Assistant Mukhtiarkar, Matiari P.W.7, S.-I.P.
Khalid Taggar P.W.8, Muhammad Uris Tapedar P.W.9 and S.-I.P. Ashique Ali P.W.10.
5. The points for determination in this case are:--
(1) Whether deceased Muhib Ali and others died unnatural death as a result of fire-arm wounds?
6. We have heard learned counsel for the appellants and the Assistant Advocate-General on behalf of State and with their assistance gone through the relevant evidence on record. Point No,1
7. Unnatural death as a result of fire-arm injuries on the persons of the deceased is conclusively established beyond doubt by medical evidence on record and is beyond the pale of any controversy. The point is, therefore, answered in affirmative. Point No,2
8. Prosecution case rests on (i) ocular evidence, (ii) motive and (iii) identification parade of the appellants except appellant Zahroo.
9. According to the contents of F.I.R. Recorded after about 17-1/2 hours of the incident, witnesses Jan Muhammad, Monib Ali, Muhammad Sadiq, Ghulam Shabbir, Najam and Allah Bux had witnessed the occurrence. Out of six persons cited in the F.I.R. At the trial prosecution examined only first informant Jan Muhammad and P.Ws. Mohib Ali and Muhammad Sadiq. While Ghulam Shabbir was given up at the trial, ocular witnesses Najam and Allah Bux though cited in the F.I.R., their names were not mentioned in the calendar of the witnesses filed along with the charge-sheet. Irrespective of the circumstance whether the witnesses examined at the trial have given true account of the incident and whether their evidence meets the normal standards of acceptance of their testimony for basing a conviction on a capital charge, non-examination of three more witnesses cannot be said to be without any material consequences. From the record it seems that P.W. Ghulam Shabbir was given up by the State Counsel for the reason that his evidence was identical to that of other eyewitnesses who were already examined. We should have no reasons to doubt the bona fides of the statement filed by the State Counsel for giving up this witness but at the same time an adverse presumption may be raised that had this witness been examined, his evidence would have been unfavorable to the prosecution. It is not apparent on the face of record whether this witness was in attendance before Special Court on 7-3-1993 when he was given up. the fact of the matter is that the evidence of remaining three witnesses examined that the trial was concluded on 30-10-1993. In the circumstances it is hardly possible to subscribe to the view of the learned State Counsel that he had given up P.W. Ghulam Shabbir for the reason that other witnesses who were examined on identical facts had supported the prosecution case. At any rate, there is absolutely no explanation for non-examination of P.Ws. Najam and Allah Bux whose names A transpired in the F.I.R. As ocular witnesses. In the absence of any plausible circumstance to indicate the contrary it cannot be justifiably inferred that such witnesses if examined, might not have corroborated the prosecution case. In any event this circumstance cannot be lightly ignored and the prosecution owes an explanation to this Court for not examining material witness whose evidence would be otherwise material and admissible in order to arrive at a just and correct conclusion.
10. Adverting to the ocular evidence, we find that P.W. Jan Muhammad in his evidence at the trial did not name the appellants having fired at the deceased persons. According to him after being released by criminals he and other witnesses had covered some distance when they heard bursts of Klashnikov. On his own showing all of them concealed themselves but after sometime they saw dead bodies of their relatives at a distance of about 70/80 feet away from the place of concealment. However, in Court he was able to identify all the appellants and named Ghulam Hussain and Zahroo. On his part P.W. Muhammad Sadiq who had not named the appellants in his statement before Investigating Officer under section 161, Cr.P.C. At the trial attempted to give an impression that he had seen the present appellants duly armed with klashnikovs and rifles firing bursts at the deceased and killing them in his presence. From his cross-examination it transpires that he had not mentioned the exact features of the criminals/appellants before police during the course of investigation. To the same effect is the evidence of P.W. Mohib who claimed to have identified the appellants on moonlit night. Obviously he had not named the appellants in his previous statement before the Investigating Officer and admittedly he did not mention their exact features in his initial statement before the Investigating Officer. From the evidence on record we are thus convinced that these witnesses cannot be said to be eye-witnesses and their statements are not free from a reasonable doubt. At any rate, it is difficult to accept their evidence as ocular evidence as unimpeachable or reliable. It is for this reason that it was all the more necessary and incumbent upon the prosecution to examine remaining eyewitnesses who were not adduced at the trial. It may be observed that P.Ws. Najam and Allah Bux are said to be persons of tender age but this circumstance by itself would not lean in favour of the prosecution for withholding such evidence. On the contrary experience shows that witnesses of tender age if intelligent enough do not ordinarily speak lies and their evidence carries higher value than ordinary witnesses. The reason for this assumption precisely is that persons of tender age are generally considered to be innocent and oblivious of motives and evil considerations.
11. As to the motive for the commission of the crime, the sole circumstance given out by the first informant in the F.I.R. As well as his evidence is that the criminals while firing at the deceased persons after holding them as captive said that they were avenging the murder of their companion Jalal Khoso who had been allegedly killed at the hands of people of Khushk caste. Be that as it may, in the first instance motive by itself is not adequate enough to base a conviction on a capital charge but a strong motive, if established may serve as corroboration to the remaining evidence provided such evidence is trustworthy and unassailable for recording a finding of guilt.
We are unable to find from thel evidence on record as to when was Jalal Khoso murdered and if so by whom and whether the persons responsible for commission of his murder have any close relationship with the present appellants. It is not established even remotely as to how the murder of deceased Jalal Khoso was a consideration relevant for the commission of murder in this case at the hands of the appellants against whom the evidence is scanty and not free from a reasonable doubt. It is true that in all criminal cases it is not necessary to establish motive for the commission of the crime as motiveless crime do occur in the present day society. The fact however, remains that once a motive is alleged for the commission of a crime on the part of a person it is always necessary to prove such motive which may otherwise reflect upon the truth and bona fides of the prosecution version. In the case in hand there is not enough material on record to warrant a finding that the appellants had a strong motive and as good reason for holding the deceased persons as captives and to commit their murders as alleged. After all the eyewitnesses examined at the trial are also Khushk by caste and in case the appellants had any grievance against the persons of Khushk caste there is no sound reason for releasing the present witnesses as well as the witnesses not examined by the prosecution in support of its case.
12. Lastly as to the identification parade suffice to say appellant Ghulam Hussain was arrested on 26-6-1992 by S.H.O. Muhammad Yousuf as a suspect and taken to Police Station Matiari but all the witnesses through whom this appellant was put to identification, had been to police station the same day when he directed them to attend the Court of Mukhtiarkar and First Class Magistrate on the next day for identification purpose. The presence of this appellant as well as the witnesses at the police station prima facie does not rule out the chance of the appellant having been seen by the witnesses. It is also not unusual that such witnesses are confronted with the arrested accused to facilitate his identification to be held under the supervision of an Executive Magistrate. No doubt the evidence of the S.H.O. Muhammad Yousuf, Mukhtiarkar Taj Muhammad and these witnesses tend to show that the witnesses correctly identified this appellant who was made to stand alongwith nine dummies, the fact of the matter is that this circumstance alone is not per se sufficient and adequate enough to hold him guilty of the offence charged.
13. As regards the identification in respect of remaining appellants with the exception of appellant Zahroo, they were arrested by the same Investigating Officer on 6-4-1993 i,e, after about the passage of nearly one year whereas their identification under the supervision of P.W. Raees Ahmed, Assistant Mukhtiarkar and First Class Magistrate Matiari was arranged after 11 days i,e, on 17-4-1993.
We are least impressed by the circumstantial evidence reflecting the identification of these appellants for the reasons firstly that the delay of 11 days in arranging identification parade has not at all been explained, secondly that the appellants as well as the witnesses were taken to the office of the Magistrate together;' and tastly four appellants were mixed up with nine dummies which proportion is far from satisfactory. Admittedly the witnesses were not summoned by the Magistrate supervising the parade and the circumstance that they were produced by local police alongwith appellants leaves no room for taking the view that the appellants were already shown to them well in advance of the parade. This circumstance is fatal to the prosecution case which is inherently weak and full of material defects, inconsistencies and infirmities. It is, therefore, of very little assistance to the prosecution. Reliance is placed on Muhammad Ameer v. State PLD 1977 Kar. 695 and Lal Pasand v. State PLD 1981 SC 142.
14. There is another aspect of the case brought to our notice by the learned counsel appearing for the appellants. According to the first informant namely Jan Muhammad unfortunate cold blooded murder took place at about 7-30 p.m. On 20-4-1992 whereas he lodged F.I.R. At Police Station Matiari on the next day at about 1-00 p.m. From the evidence of S.H.O. Muhammad Yousuf it transpires that he came across the first informant just after the occurrence and was taken to the first place where the witnesses and the deceased persons were made captives and to sit in ditches and the second place where the deceased persons were done to death by brutal use of automatic weapons. According to the Investigating Officer it took he about four hours in completing all formalities where after the first informant went to lodge report at the police station. According to the first informant dead bodies of the deceased persons were handed over to him at about 1-30 a.m. On 21-4-1992 and the burial took place at about 12 noon or 1-00 p.m. Whereas the evidence of Dr. Zahiruddin Ahmed suggests that he received dead bodies for post-mortem examination at 2-10 a.m., he started post-mortem examination at 2-15 a.m. And finished the same at about 2 p.m. The same day. Such discrepancies in the evidence remain unexplained and it is not possible to reconcile the two versions. At least one thing is clear that the F.I.R. Recorded after detailed investigation in relation to the crime and dead bodies were returned to the witnesses at a time when these were not handed over to the Medical Officer. It is difficult to grasp such shrouded mystery which creates a reasonable suspicion about the truth of prosecution version which as observed earlier is not at all free from a reasonable doubt and capable of being safely relied upon.
Reference is made to Muhammad Nawaz v. State 1991 PCr.LJ 133, Muhammad Ameer v. State PLD 1977 Kar. '695 and Lal Pasand v. State PLD 1981 SC 142.
15. Taking .Up the case of appellant Zahroo, no doubt his name transpires in the belated F.I.R., there is hardly any evidence to hold him guilty of the charge. Even the author of the F.I.R. Was unable to name him in his evidence at the trial except a general statement to the effect that all the six appellants present in Court committed the crime. Since we are not inclined to accept the evidence on record as against the remaining appellants it would neither be proper nor legal to accept it against this appellant for the sole reason that his name was disclosed in the F.I.R. Alongwith many others. The fact the matter is that the whole easel F.I.R. Along with many others. The fact of the matter is that the whole case appears to have been set up after long deliberations and investigation into it was virtually completed even before recording of the F.I.R. In the absence of any other strong circumstance to distinguish the case of this appellant, it is neither just nor proper to uphold the conviction in his case.
16. For the aforesaid facts and reasons, these appeals are allowed and sentences and convictions are set aside. Appellants shall be released forthwith I I unless required to be detained for any other cause.