' SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of above-mentioned 5 criminal appeals and Criminal Review Petition No,8 of 1994 by a consolidated judgment, as they arise out of a common judgment of a learned Division Bench of the High Court of Sindh dated 7-9-1993. Leave was granted by this Court in the above appeals as follows:-- "Leave is prayed for in these petitions against the consolidated judgment and order dated 7-9- 1993 passed by the High Court of Sindh, Karachi in connected Criminal Appeals Nos.185 of 1990, 189, 190 and 193 of 1990; and Criminal Revisions Nos.95 of 1990 and 28 of 1991; whereby the appeals filed by the respondents Nos.2 to 7 have been allowed and sentences of life imprisonment etc. Passed against them under section 302 read with sections 149 and 148, P.P.C. Have been set aside and they have been set at liberty and the revision petitions filed by the petitioner in Criminal Petition No,84 of 1993 seeking enhancement of sentences etc. Have been dismissed.
' We have heard the learned counsel for the petitioner and have been led through the relevant record on the points which prevailed with the learned High Court in accepting the respondents Nos.2 to 7 appeals. Leave is granted for reappraisal of evidence and to consider; whether, the judgment of the trial Court convicting the accused/respondents on a charge of murder could be reversed by the learned High Court of Sindh at Karachi, when such conviction was based on reasonable and manifestly sound grounds supported by the evidence on record. And as to whether the reasons for acquittal given by the High Court for upsetting the same are arbitrary, contrary to the record and are based on conjectures and surmises.
' Non available warrants shall issue against the respondents."
2. The case has a very chequered history and it has been brought before this Court through the present appeals for the third time. The case is also a classical example of Court delays on account of negligence or indifferent approach on the part of prosecution agency at the behest of influential parties involved in a criminal case.
3. The incident took place on 6-9-1974 at 1-30 p.m. Near Qadri Hotel, Jackson Bazar, Kemari, Karachi. The F.I.R. In the cases was lodged with the Police Station Jackson, Karachi at 1-45 p.m., within 15 minutes of the occurrence, by the eye-witness, Bakhtiar Khan (P.W. 10) under section 302/ 307/148/149 P.P.C. According to allegations in the F.I.R., the incident took place at about 1-1/2 O'clock on' 6-9-1974 which was a Friday and a public holiday. Habibur Rehman accused allegedly came on the spot driving Jeep No,KAX-7626. Rustam Khan and Zabit Khan were sitting with him on the front seat of the Jeep while accused Zia Abbas, Tariq Saeed, Muhammad Akbar and Hussain Khan were occupying the back seat in the said Jeep. Mir Ajab, another accused, was said to be following the Jeep on a Scooter. The Jeep and the Scooter stopped in front of Qadri Hotel, Masjid Road and the occupants of the Jeep and the Scooter came down. At that time Abdul Hassan and Noor Hassan deceased, and injured Fazal Qayyum were standing outside the hotel and talking with each other. As soon as all the accused came down from their respective vehicles, Zia Abbas accused exhorted Habibur Rehman and others in the case, who were accompanying him, that they should take advantage of the opportunity and finish their enemies. No sooner Zia Abbas uttered these words, Habibur Rehman allegedly opened fire which hit the eye of Noor Hassan. Rustam Khan opened fire which hit the head of Abdul. Hassan. Zabit Khan also fired which hit the hip of Fazal Qayyum. After receiving the shot from Habibur Rehman, Rustam Khan and Zabit Khan, Noor Hassan, Abdul. Hassan and Fazal Qayyum respectively fell down on the ground. All the persons, who were armed with shot guns, revolver and pistols, fired at Abdul Hassan, Noor Hassan and Fazal Qayyum with intention to kill them. Noor Hassan died on the spot and leaving the 2 injured Abdul Hassan and Fazal Qayyum, the complainant Bakhtiar rushed to the Jackson Police Station, which was at a short distance from the scene of incidence and lodged the F.I.R. Police is said to have arrived at the scene of the offence within half an hour. The Investigating Officer (I.0.) on arrival at the scene, found several people gathered at the scene of the occurrence. He then enquired from the persons who had collected at the scene of offence, as to who are those persons who saw the incident. P.Ws. Abdul Qadir, Fazal Qadir, Munir, Muhammad Nawaz and Abdul Malik came forward and disclosed to the Investigating Officer that they had seen the occurrence. The Investigating Officer then proceeded to the spot where incident took place and in presence of Musheers' Fazal Qadir' and Muhammad Nawaz, on the pointation of the complainant, Bakhtiar, prepared a site plan which was produced before the Court as Exh.
140. He secured from the place of occurrence two used bullets, one used cartridge, one live cartridge of black colour of :12 bore and an employ of the pistol. He also secured blood-stained earth from the spot and sealed the same in presence of 'Musheers'. As the dead bodies and the injured were in the meantime removed to the hospital, the Investigating Officer leaving behind the witnesses at the scene of offence, proceeded to the civil hospital where he requested the doctor to allow him to record the statement of injured Abdul Hassan and Fazal Qayyum. The doctor on duty certified that Abdul Hassan was not in a condition to make any statement but he allwoed the Investigating Officer to record statement of Fazal Qayyum. The letter on which doctor A.M. Qureshi certified that Abdul Hassan was not in a fit state to give statement while Fazal Qayyum was fit to give statement, was produced in evidence as Exh.174. The Investigating Officer prepared the inquest report of the dead body of Noor Hassan which was produced before the Court as Exh.118.
While in the hospital, the Investigating Officer recorded statement of Haji Sher Hassan, who had brought the dead and the injured to the hospital. After completing these formalities at the hospital, the Investigating Officer returned to the scene of offence where he recorded the statements of P.
Ws. Abdul Qadir, Fazal Qadir, Munir, Muhammad Nawaz and Abdul Malik under section 161, Cr.P.C. He then went back to Jackson Police Station, where he received information late in the night on telephone from civil hospital that injured Abdul Hassan also died. On receiving this information, the Investigating Officer once again went to civil hospital where he prepared the memo. Of dead body of Abdul Hassan and the inquest report. The inquest report and 'Musheemama' of the dead body were produced in Court as Exhs. 109 and 110 respectively. The Investigating Officer then made search for the accused person and at the same time addressed letters to the medico-legal incharge of civil hospital for post-mortem of the deceased Noor Hassan and Abdul Hassan. The letters addressed to the medico-legal incharge of the civil hopsital were produced as Exhs. 176 and 170 respectively. On 7-91974, the Investigating Officer searched for the accused and arrested accused Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan and Muhammad Akbar from different places. He also seized Jeep No, KAX-7626. The Investigating Officer then interrogated the arrested accused in respect of their crime weapons, whereupon Habibur Rehman accused took him to his house and produced one shot gun .12 bore and 4 cartridges, which were secured by the Investigating Officer under a Masheernama witnessed by Muhammad Azam and Ghulam Ahmed.
The seizure memo. Was produced in Court as Exh,. 197 and Gun No,814689 recovered at the instance of Habibur Rehman was produced as Article 97-A before the Court. Accused Zabit Khan then led the Investigating Officer to his house which was situated within the same compound, where accused Habibur Rehman lived and produced revolver of .32 bore with 12 bullets, which were also secured under a Musheernama in presence of Musheers Muhammad Azam and Ghulam Ahmed. Musheernama was produced in Court as Exh. 98 and revolver as Article 96-B. In the like manner, accused Hussain Khan also led the Investigating Officer to the house, which was within the same compound, and he produced rifle .32 bore bearing No,2473 with 10 live cartridges, which were seized under a Musheernama witnessed by the same witnesses Muhammad Azam and Ghulam Ahmed, and produced under memo. Exh. 99 and Article 96-C. Rustam Khan accused also led the Investigating Officer to his house and produced one pistol and a shot gun alongwith 2 Jive cartridges which were seized under Musheernamas in presence of Muhammad Azam and Ghulam Ahmed. Seizure memo. Was produced as Exh. 100 and pistol and gun were produced in Court as Articles 100 and 100-k respectively. The gun (Article 100-D) recovered at the instance of Rustam Khan was later found to be owned by accused Habibur Rehman. All the arms seized by the Investigating Officer were licensed arms. P.W. Mir Hassan was examined by the Investigating Officer on 7-9-1974 in the evening. Accused Zia Abbas and Tariq Saeed were arrested from Islamabad and their custody was handed over to the Investigating Officer on 11-9-1974. All the arms seized by the Investigating Officer alongwith 2 bullets, one extracted by the doctor from body of Noor Hassan and other from body of Fazal Qayyum, were sent to the ballistic expert for opinion. The receipt of the bullet issued by Dr. A.M. Qureshi on 20-9-1974 was produced as Exh.178 while the receipt dated 6-9-1974 issued by Dr. Abdul Hadi, was produced as Exh.
179. The letter of Investigating Officer forwarding the two bullets to the ballistic expert, was produced in evidence as Exh.
166. Accused Mir Ajab could not be arrested in the case and therefore, he was shown as an absconder. After completing all the formalities in the case, the accused were put to trial before the Sessions Judge, Karachi. As soon as the trial commenced before the trial Court, an application was moved on behalf of the State under section 494, Cr.P.C. For withdrawal of the case against Zia Abbas and Tariq Saeed on 2-7-1976. The trial Court rejected the application by order dated 27-7- 1976. A revision was filed against the order of the trial Court before the High Court of Sindh which was accepted by the learned Chief Justice of that Court by order dated 25-10-1976. The learned Chief Justice set aside the order of the trial Court rejecting the application under section 494, Cr.P.C. And allowed withdrawal of the case against Zia Abbas and Tariq Saeed. The judgment of High Court of Sindh is reported as Tariq Sayed v, State (PLD 1977 Karachi 235). Against the order of the High Court, the complainant filed an appeal before this Court which was allowed and the judgment of the High Court was set aside, with the result the order passed by the trial Court rejecting application filed under section 494, Cr.P.C. Was restored. The judgment of this Court is reported as Muhammad Hassan v. Tariq Saeed (PLD 1977 SC 451). This Court while discussing the principles governing withdrawal from the prosecution under section 494, Cr.P.C. Made the following observations in, respect of the desirability of withdrawal of the case against 2 accused, Zia Abbas and Tariq Saeed:-- "The application for withdrawal from prosecution has not been made in this case on any ground of public policy or public peace and interest, but merely. On grounds which are directly related to the detailed appreciation of evidence, namely, that the only role assigned to respondent Zia Abbas is one of instigation while no overt act has been alleged against Tariq Saeed, that the incident having occurred owing to enmity between the parties, it was not shown whether Zia Abbas and Tariq Saeed were in any manner connected with the two opposing factions, that the number of the jeep in which the assailants are said to have arrived at the spot showed that the vehicle was not a jeep but a Toyota Car, that there was political rivalry between the two respondents and the appellant Mir Hassan; that respectable witnesses in the locality have supported the alibi of the two respondents, and that one person by the name of Muhammad Idrees had categorically stated that the two respondents were not member of the unlawful assembly which had assaulted the deceased. The learned Chief Justice has observed, after a fairly detailed analysis of the evidence, that 'it cannot be said that benefit of these facts and circumstances is not admissible to the applicants', if in the ultimate analysis there is no scope for the prosecution to achieve their convictions.'
' While Mr. Muhammad Hayat Juneo, the learned counsel for the respondents, sought to support these conclusions of the High Court by a detailed analysis of the available evidence, Mr. Abdul Wahab Khan, learned counsel for the appellant, rightly submitted that this is precisely the kind of exercise which is not to be undertaken for the purpose of deciding whether consent to the withdrawal application should be accorded or not on the ground that there was insufficient or meagre evidence to sustain the prosecution. He submitted that in this case the first information report was lodged promptly within fifteen minutes of the occurrence, that the two respondents were positively named as being among the assailants, and that the leading role of instigator was assigned to respondent Zia Abbas. He also pointed out that during the investigation of the case seven eye-witnesses had supported the prosecution version, and accordingly this was eminently a case in which it should have been left to the trial Court to decide whether the prosecution evidence was worthy of credit or not.
Having considered the submissions made by the learned counsel for the parties, we are of the view that in the facts and circumstances of the case the application made by the public prosecutor for his withdrawal from the prosecution of the two respondents did amount to an attempt to throttle the prosecution and to interfere with the ordinary course of justice. This is not at all a case where there is no evidence against these respondents such as could sustain a conviction. The real question in the case is whether the prosecution witnesses are worthy of credit and whether there are circumstances the benefit of which should go to respondents. These are questions which can only be determined by a proper trial, and this function of the trial Court cannot be permitted to be pre-empted at a preliminary stage by an application of the kind made in this case by the public prosecutor."
(The underlining is by us).
' The above underlined portion of the observations of this Court sufficiently bear out the dubious role of prosecution in the case from the very beginning, perhaps for the reason that some influential were also involved in the case.
4. The case was thereafter taken up by the learned trial Court and after recording evidence of the parties, all the accused were acquitted by judgment dated 24-4-1978. The State filed an acquittal appeal before the High Court being No,232/78 while the complainant also preferred a revision application against acquittal of the accused. During pendency of the acquittal appeal before the High Court, ballistic expert was examined in the case and thereafter, by judgment dated 4-6-1981 acquittal appeal was dismissed. The matter was once again brought before this Court in an appeal filed by the State. This Court set aside the judgment of the High Court and remanded the case to the trial Court for a de novo trial. The judgment of this Court is reported as State v. Habibur Rahman (PLD 1983 SC 286). This Court while remanding the case to the trial Court once again noticed that because of influence of the parties in the case how the relevant evidence was made to disappear and incorrect material was produced before the Court to cause miscarriage of justice. This Court also noticed some invisible arrangement between the parties to exclude one of the accused from the case and realising its effect on the case of remaining accused provided that this circumstance will not be used in favour of other accused in the case. These were the observations of this Court:- "It is most painful to see very close relations pitched against each other in this case. No doubt both sides, it seems from record and admissions, are highly influential parties. It might have been due to this that attempts seem to have been made to divert the smooth flow of stream of justice, at the initial stage before the trial. There is sufficient guidelines in the governing precedent and the law, that the Courts would not be deterred by reaching their own correct conclusions notwithstanding the in competences of- stories, statements, and records from either side--private or public, individual or otherwise. It is also natural (besides danger of aforementioned influences) that in cases involving deep enmity or even strong adversary/partisan positions that each side would be interested in withholding that part of the case which goes against it."
"In this case it is admitted that the defence complained about authenticity of the police statements recorded under section 161, Cr.P.C., of which copies were initially supplied to them. Thereafter, without enquiry and any finding, the Court supplied to them (on their asking) copies described as Khalasas (summary) of the said statements copied from the Diaries, with caption "under section 161, Cr.P.C." Then the prosecution protested strongly stating that the second supply was of-non- genuine record. Moreover, Faza1 Qayyum's (injured P.W.) statement under section 161, Cr.P.C. Was even then stated to be missing though its 'Khalasa' did exist and was supplied.
' It was not difficult to discover the correct Police statements. We procured one full set carbon copies thereof, from a Higher Police Office. If this did not then occur to anybody, the missing record could be reconstructed. For some aspects of reconstruction no doubt a distussion is available in paras. 6 and 7 of the judgment in Mst. Khudija Begum v. The State and others ( PLD 1971 BJ 19); but observation in para. 8 thereof would need modification with reference to the definition of 'proved' in addition to that of 'evidence' and what is being held in this case. If an elaborate enquiry was not considered necessary or advisable, the Court could give a reasoned finding about which set of copies was 'proved' on the 'probabilities' in pursuance of the definition of the word 'proved' in section 3 of the Evidence Act.
' Next, it has been discovered that the Investigating Officer (it seems under some invisible pressure or at least under badgering of the worst type which the Courts should never allow the counsel for either side to do) made blunders in reading the copies of 'statements' when the defence tried to prove them through his deposition. The only explanation by Mr. Muzaffar, who was then one of the defence counsel, that it was the duty of the public prosecutor to correct the witness, if something wrong was put to and, thus, elicited from the witness (because as has been represented from defence side, it was a practice to do so), is to say the least, not even worth consideration. It was the duty of the counsel of both sides that the witness read the record correctly. And above all the learned Presiding Judge should have supervised and checked it. Neither under the Criminal Procedure Code nor the Evidence Act, he to sit as a mere spectator. He is, even under the adversary system of law required to actively participate in the proceedings with full consciousness of what goes on record. Dependence on others can result into what happened in this case. Same comment would apply to feigning or real, turning of deaf ears, when the Investigating Officer protested that some documents being put to him, purporting to be under his signatures, were not so in reality.
' The third major argument regarding police statements is that even the disputed copies were not put to the witnesses is a proper manner so as to confront them in accordance with law, if at all there were noticable conflicts. The only explanation from defence is that it is a practice not to invite attention of the witness to properly marked/exhibited statements or parts thereof (e.g. 'portions marked A to A or B to B in copy of police statement Exh. D.A. Etc.) This, apart from being unfair to the witnesses, to the prosecution and the defence, is not in accord with the provisions of section 162, Criminal Procedure Code and section 145, Evidence Act. Same question having been raised earlier was adequately answered in Shah Nawaz and others v. The State (PLD 1959 Kar. 383)....We approve this authority and expect that no time would be lost in following the same.
' The foregoing serious irregularities resulted in a failure to afford opportunity to witnesses to explain their assumed previous, so-called contradictory, statements. All the foregoing circumstances and the reliance on the same, for deciding a case on a capital charge, has resulted in serious prejudice and miscarriage of justice."
"It appears as if due to some arrangement, both the State and the complainant have not appealed against Tariq Saeed. This remand order even though otherwise an open one, would neither be used against that accused; nor, this circumstance shall be used in favour of the other accused.
' We accordingly accept these appeals, set aside the impugned judgments and remand the case for a fresh trial by a learned Judge other than who decided the case earlier."
' After remand of the case by this Court, as aforesaid, accused Tariq saeed was not proceeded against and, therefore, the post remand proceedings before the trial Court were only against the respondents herein. The learned trial court recorded fresh evidence in the case in accordance with the remand order of his Court dated 26-1-1983 and through a detailed judgment dated 10-11-1990, found accused Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan, Muhammad Akbar and Mir Ajab Khan guilty of offence udue section 302/148/ 07/149, P.P.C. And convicted and sentenced them as follows: "(a) Under Section 148, P.P.C. To suffer R.I. For 3 months each.
(b) Under section 302 read with section 149, P.P.C. Imprisonment for life each and a fine of Rs,50,000 (Rupees fifty thousand) each or in default to suffer R.I. For one year more. Out of the fine if realised half of the amount shall be paid to the heirs of the two deceased under section 544-A, Cr.P.C. As compensation.
(c) Under section 307 read with section 149, P.P.C. To suffer R.I. For three years and to pay a fine of Rs,10,000 (Rupees Ten thousand) each or in default to suffer R.I. For three months more. Out of the fine if realised a sum of Rs,5,000 (Rupees five thousand) to be paid to injured Fazal Qayyum as compensation under section 544-A, Cr,P.C."
' Accused Zia Abbas was, however, acquitted in the case giving him benefit of doubt, From the judgment of the learned trial Court 4 appeals, being Criminal Appeals Nos.185, 189, 190 and 193 of 1990 were filed by Mir Ajab Khan, Muhammad Akbar, Rustam Khan, Hussain Khan, Habibur Rehman and Zabit Khan respectively, Mir Hassan, brother of the two deceased in the case, filed Criminal Revision No, 95 of 1990 and 28 of 1990 for enhancement of the sentence of the accused persons.
The High Court through judgment dated 7-9-1993 allowed the appeals of the convicted persons and dismissed the 2 revision applications filed by Mir Hassan by judgment dated 7-9-1993. It may be mentioned here, at this stage, that Mir Hassan in his criminal revision application deleted the name of accused Zia Abbas, who was respondent in the revision application in compliance with the order of the High Court in Criminal Revision No,95 of 1990 dated 15-1-1991. The affect of this deletion is that before the High Court, there was neither any revision application nor an acquittal appeal against the acquittal of accused Zia Abbas in the case. The leave granted by this Court against the judgment of the High Court dated 7-9-1993, therefore, did not extend to the acquitted accused Zia Abbas.
5. At the hearing of these appeals, Mr. S.M. Zafar, the learned counsel for Zia Abbas, contended that the leave granting order does not extend to Zia Abbas as there was neither any appeal nor any revision against his acquittal by the trial Court, before the High Court. This position is not disputed by the learned counsel for the appellants and we accordingly, drop the name of Zia Abbas from the list of respondents in the above cases. He is on bail, his bail bonds are discharged. Criminal Review Petition No,8 of 1994 stands disposed of, accordingly.
6. We have heard the learned counsel for the private appellants, and the learned Additional Advocate-General, Sindh in support of these appeals, Mr. Aziz Ullah K. Shaikh, and Mr. K.M.A.
Samdani appeared for the respondents.
7. The learned counsel for the appellants as well as State, while criticising the judgment of learned Division Bench of High Court of Sindh, vehemently contended that the. Learned Judges committed gross misreading of evidence in the case while acquitting the respondents from the charges under section 302/307/ 149/148, P.P.C. The learned counsel jointly contended that the learned Judges of the Division Bench while holding that the time of recording of the F.I.R. Was changed in order to bring it in accord with the medical evidence in the case and as such no reliance could be placed on the said F.I.R., grossly misread the evidence on record. It is further contended by the learned counsel for the State and the private appellants that the learned Judges of the High Court discarded the evidence of injured witness Fazal Qadir on the ground that his name was not mentioned in the F.I.R. As a witness, Similarly, the evidence of P.W. Muhammad Nawaz was also discarded by the learned Judges of the High Court on the ground that his statement was recorded by the police after 1 month and 11 days of the incident. Both the conclusions, according to learned counsel for the private appellants and the State, were based on gross misreading of evidence and non-considerable of relevant pieces of evidence on record. It is lastly contended by, the learned counsel for the private appellants as well as the State that the learned Judges reached the conclusion, that the ocular evidence in the case is falsified by the medical evidence and, therefore, no reliance can be placed on the ocular testimony in the case, which was interested, as enmity between the parties was fully established. This conclusion of the learned Judges too, contended by the learned counsel for the private appellant and the State, is the result of misreading of evidence and overlooking of the principles laid down by this Court for appreciation of evidence, in such cases.
8. Mr. Azizullah K. Shaikh and Mr. K.M.A. Samdani, the learned counsel for the respondents on the other hand, supported the judgment of the High Court and further contended that the ocular testimony in the case was not believed thrice in the case. Once by the trial Court and twice by the High Court and even at the retrial, it is contended by the learned counsel for the respondents jointly, the trial Court only partially believed the eye-witnesses as Zia Abbas and Tariq Saeed were acquitted on the same evidence. It is accordingly, contended by the learned counsel that ocular account in these circumstances cannot inspire confidence. The learned counsel also jointly contended that, there are serious contradictions in the statements of the prosecution witnesses as pointed out by the learned Judges of the High Court, and therfore, no conviction on a capital charge can be based on such evidence. The learned counsel very vehemently, jointly, argued that Fazal Qadir and Munir were disbelieved by the Court and because all the eye-witnesses had involved both Zia Abbas and Tariq Saeed who were let off by the trial Court, the testimony of eye- witnesses could not be relied upon for . Conviction of the remaining accused in the case. The learned counsel very vehemently argued that the medical evidence clearly established that Abdul Hassan did not suffer any fire-arm injury, which totally belied the eye-witnesses in the case and as such the learned Judges of the High Court rightly refused to rely on the ocular account in the case.
It is further argued that the eye-witnesses being related to the deceased, were highly interested and, therefore, without independent corroboration, the Court could not accept their testimony. The learned counsel lastly, jointly, contended that the principles for appreciation of evidence in an acquittal appeal are totally different from those applicable to appeals in a case against conviction.
It is, accordingly contended that even if this Court, after re-appraisal of evidence reaches the conclusion different from the one arrived at by the High Court, it would not substitute its own conclusion unless the reasons assigned by the High Court for acquitting the accused are found to be arbitrary, fanciful or perverse. It is also argued that unless all the grounds on which the High Court reversed the judgment of trial Court, are found to be not sustainable, this Court would not interfere with the acquittal judgment. The learned counsel in support of their contention, with regard to the scope of an acquittal appeal, relied on the following judgments:--
(1) Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11);
(2) Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); and
(3) Yaqoob Khan v. State (1994 SCMR 672).
9. Before considering the above contentions of the learned counsel for the parties, we would like to state here some of the broad principles laid down by this Court for appreciation of evidence of witnesses generally and the interested witnesses in particular, in a criminal case involving a capital charge and the approach of the Court in an acquittal appeal when the judgment of High Court is at variance with the judgment of the trial Court.
' In Niaz v. State (PLD 1960 SC 387), this Court laid down the following principles for appreciation of evidence of an interested witness, who claims to be the eye-witness of an occurrence:-- 'Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to ley the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points out the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt: This rule of prudence requiring corroboration of partisan evidence has generally been accepted by Courts and was accepted by all the Judges of the Federal Court of Pakistan in Ashraf and others v. The Crown (1955 FCR 93) although the learned Judges were not in agreement as to what constituted corroboration."
10. Niaz'z case (supra), was explained by this Court in the case of Nazir v. State (PLD 1962 SC 269), as follows:- "By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts.
But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statements so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinary needs corroboration. For corroboration is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the ,circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
' The above quotation in Nazir's case also lays down as to how corroboration is to be sought by the Court to the testimony of an interested witness. In the case of Abdul Subhan v. Raheem (PLD 1994 SC 178), the majority judgment laid down the following rule for appreciation of evidence in a second appeal by this Court while the judgment of High Court is at variance from that of the trial Court:-- "It is no doubt open to the First Appellate Court to reach a conclusion different from the one arrived at by the trial Court on re-appraisal of the evidence on record on a point of fact but in doing so the First Appellate Court cannot totally ignore the reasonings given by the trial Court in support of its conclusions. The First Appellate Court while disagreeing with the conclusion of the trial Court, on a point of fact, will have to take into account the reasons advanced by the trial Court and if it disagrees with the reasonings of the trial Court it must give its own reasons for such disagreement which should proceed on some logical basis. If the First Appellate Court merely says that it does not agree with the conclusion of the trial Court without adverting to the reasons given by the trial Court in support of the conclusion and without disclosing any logical basis for such disagreement, such finding by the First Appellate Court which is at variance with trial Court's finding, cannot be 'binding. In the case before us the reasons given by the trial Court for holding that the two eye- witnesses in the case were present at the time of occurrence at the spot, were not only convincing but the evidence of these two witnesses remained totally unshaken in spite of a very lengthy and searching cross-examination by the counsel for respondents. The learned Judges of the High Court, however, totally ignored the reasons given by the trial Court in believing these two witnesses while disagreeing with the trial Court. The trial Court, in our view for good reasons reached the conclusion that the evidence of the two eye-witnesses in the case inspired confidence."
' In the case of Sardar Khan v. State (1998 SCMR 1823), this Court sated the following broad principles for appreciation of evidence while deciding the cases involving capital punishment: "7. Before considering the above contentions on merits, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he w the occurrence and was in a position to identify the accused and secondly whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then In the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case.0(see Niaz v. State PLD 1960 SC 387). The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness, Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice (see Nazir v. State PLD 1962 SC 269).
8. An interested witness in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (See lqbal alias Bhala v. State 1994 SCMR 1).
9. The Maxim 'falsus in uno falsus in omnibus' has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v.
State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176)."
' Having stated the above broad principles laid down by this Court for deciding cases involving capital punishment, we now proceed to consider the contentions of the learned counsel for the parties in the above cases.
10. The ocular testimony in the case was furnished by Fazal Qayyum P.W.1, who was injured during the incident, Abdul Qadir. P.W.4, Fazal Qadir P.W.5, Munir P.W.6, Bakhtiar Khan P.W.10 and Muhammad Nawaz P.W.
11. Fazal Qadir and Munir P.Ws 5 and 6 respectively, were not relied upon by the Court for the reason that these 2 witnesses were not found straightforward in their statements before the Court. The trial Court, however, found Fazal Qayyum P.W.1, Abdul Qadir P.W.4, Muhammad Nawaz P.W. 11 and Bakhtiar complainant P.W.10 worthy of reliance. Of these witnesses, Fazal Qayyum was injured during the incident. Muhammad Nawaz was found not related to any of the parties in the case and was, thus, considered as an independent witness. Abdul Qadir though not resident of the area, where the incident took place, was found by the Court to be a reliable witness. The statement of complainant Bakhtiar was also found confidence inspiring by the trial Court. The learned Judges of the High Court while acquitting the accused in the case, discarded the evidence of Fazal Qayyum P.W.1 on the ground that his name did not appear in the F.I.R. As a witness. The reasoning given by the learned Judges of the High Court, for discarding the evidence of Fazal Qayyum to say the least, is artificial and arbitrary. Fazal Qayyum's name appear in the F.I.R. As a person who suffered bullet injury at the hands of Zabit Khan accused during the incident. Fazal Qayyum's presence at the scene of offence was not denied even by the accused. One of the defences suggested to the eye- witnesses in cross-examination was that the two deceased in the case and the witness Fazal Qayyum fought amongst themselves and as a result of inter se firing between them the two deceased died while Fazal Qayyum was injured. All the accused in their statements under section 342, Cr.P.C. When questioned why Fazal Qayyum deposed against them, they stated that he deposed against them because of his relations with the deceased and Mir Hassan P.W. At the instance of latter. An attempt was made by the defence counsel during cross-examination of Fazal Qayyum to establish that Fazal Qayyum who suffered injury, was a different person as his father's name mentioned in the medical report, was different from the father's name of Fazal Qayyum who appeared as a witness in the case. It is significant that all the accused in their statements under section 342, Cr.P.c. Though alleged that a fictitious person Amin Ahmed was produced as Munir Ahmed in the case but they did not challenge the identity of Fazal Qayyum. The learned trial Court satisfactorily attended this aspect of the case in its judgment and rightly came to the conclusion that the name of the grandfather of Fazal Qayyum was mentioned by mistake as his father's name in the medical report. It is inconceivable that the evidence of person mentioned in the F.I.R. As an injured in the case, should be excluded from consideration because in the F.I.R. His name did not appear as a witness. The learned counsel for the respondents very vehemently argued that the Investigating Officer and other witnesses in the case specifically admitted that the name of Fazal Qayyum was not mentioned in the F.I.R. As a witness. These admissions referred to and relied upon by the learned counsel for the respondents are hardly of any significance in view of the fact that the name of Fazal Qayyum was mentioned in the F.I.R. As a person who suffered injury at the hands of the accused. Fazal Qayyum was subjected to gruelling cross-examination by the defence counsel but his testimony could not be shaken. He is the son of real sister of Habibur Rehman accused besides being closely related to other accused/respondents in the case. It is unthinkable that he would falsely involve his real maternal uncle and other close relations in a case involving capital punishment because of his relationship with the deceased or P.W. Mir Hassan. No doubt he is related to the two deceased in the case, who were his paternal uncles but in view of his equally close relationship with the accused person, his evidence could not be lightly ignored. The learned trial Court, therefore, rightly relied on the evidence of Fazal Qayyum as confidence inspiring.
11. The learned Judges of the High Court refused to rely on the statement of P.W.11, Muhammad Nawaz, firstly for the reason that he was examined by the police after about 1 month and 11 days of the incident, secondly, in the postmortem report it was stated that he identified the body of Noor Hassan as a friend and he stayed in the hospital where dead body of Noor Hassan was lying and, therefore, he was an interested witness, and thirdly, he contradicted his entire evidence by saying that Habibur Rehman accused was armed with a rifle. The above reasons given by the learned Judges not to rely on the testimony of Muhammad Nawaz besides being artificial and fanciful, were also the result of gross misreading of evidence on record. The name of this witness is mentioned in the F.I.R. Which was lodged within 15 minutes of the incident. The Investigating Officer who reached the place of incident within half an hour, in his statement before the Court on oath, categorically stated that on arrival at the scene of the offence within half an hour of the incident, he was told by Muhammad Nawaz, Abdul Qadir, Munir and Fazal Qadir that they had seen the incident and he recorded their statements under section 161, Cr.P.C. On the same day. The statement of Muhammad Nawaz under section 161, Cr.P.C. Confronted to him in cross-examination shows that it was recorded on the same day the incident took place. We have not been able to understand as to how the learned Judges of the High Court came to the conclusion that the statement of witness Muhammad Nawaz was recorded by the police after 1 month and 11 days of the incident. We asked the learned counsel for the, respondents to demonstrate from the record of the case before us that the observations of the learned Judges that Muhammad Nawaz was examined by the police under section 161, Cr.P.C. After 1 month and 11 days of the incident, is supported from the evidence on the record of the case, but they were unable to state anything in reply. Muhammad Nawaz is admittedly a person who is neither related to the complainant nor to the accused. Nothing was brought on record to show that Muhammad Nawaz had any motive to involve the accused persons falsely in the case. The fact that he stated in his evidence that he was a friend of the two deceased in the case, could not make him an interested witness, in the absence of a motive on his part to involve the accused in the case falsely. Muhammad Nawaz in his evidence stated that he was resident of Farooq Manzil, situated above Qadri Hotel. The incident took place on Friday at 1-30 p.m. Which was a holiday. The incident having taken place at a public place at broad daylight, could not have gone unnoticed. The statement of Muhammad Nawaz was consistent in spite of lengthy cross-examination. He fully supported the prosecution case. The presence of Muhammad Nawaz in these circumstances on the spot was quite natural. The trial Court, therefore, rightly observed that Muhammad Nawaz was an independent witness and we see no reason to disagree with this conclusion of the learned trial Court. The contradictions pointed out by the learned Judges in the evidence of Muhammad Nawaz and specially that he stated Habibur Rehman was armed with rifle instead of a gun were not only minor in nature but totally inconsequential as they did not contradict the material and essential features of prosecution case.
It is also to be kept in mind that the incident had taken place in 1974 while the witness was examined in 1987, after about 13 years and, therefore, such variations were the natural result of passage of time between the date of incident and recording of the evidence of the witness. Abdul Qadir P.W.4 was discredited by the learned Judges on the ground that he was not a resident of the place where the incident took place and as such he was a chance witness. The incident had occurred at public place frequented by the public, on a public holiday. Abdul Qadir stated in his evidence that he had come to meet his relations who resided in that locality where the incident took place. The Investigating Officer who arrived at the spot within half an hour of the incident found him present at the spot. His statement under section 161, Cr.P.C. Was also recorded by the police on the same day. His explanations for being present on the spot was accepted by the learned trial Court. The learned Judges while holding his presence on the spot doubtful did not attend to any of the reasons given above. The details of the occurrence given by this witness were not possible unless he had seen the incident with his own eyes. In the case of Javed Ahmed v. State (1978 SCMR 114), this Court held that when a crime is committed in a public thoroughfare or at a place frequented by public generally, the presence of a passerby cannot be rejected by describing him as a chance witness unless he is unable to explain to his evidence satisfactorily or there is some inherent weakness in his evidence. After going through his evidence we find that the trial Court for very valid reasons found his evidence confidence inspiring which could not be contradicted by the learned Judges of the High Court. Similarly the evidence .Of Bakhtiar Khan was ignored by the learned Judges without noticing that he lodged the F.I.R. Within fifteen minutes and he could not have named the accused and the witnesses who saw the incident, unless he himself had seen the occurrence. The reason given by the trial Court to believe the testimony of this witness were again not attended to by the learned Judges while refusing to place reliance on' the testimony of this witness. We have ourselves gone through the evidence of this witness which is consistent with his statement in the F.I.R. And we do not find any reason to disbelieve him.
12. After going through the entire evidence in the case, we are of the view that the ocular account of the incident furnished by Fazal Qayyum P.W.1 Abdul Qadir P.W.4, Bakhtiar Khan P.W. 10 and Muhammad Nawaz P.W.11 was not only consistent but also confidence inspiring as these witnesses stood the test of cross-examination fully. The contradictions in the statement of these witnesses pointed out by the learned counsel were insignificant and did not contradict essential features of the prosecution case and were natural variations which were bound to happen as these witnesses were exmained in the year 1987, after about 13 years of the incident.
' The learned Judges of the Division Bench were much swayed by the fact that an attempt was made by the prosecution to change the time of F.I.R. In the case. In this connection reliance was placed on Exh. 118, an English version of the F.I.R. In 'which date and hour of occurrence was shown as 12 noon. Reliance was also placed on the bail granting order of one of the accused persons, wherein time of occurrence was mentioned as 12 noon. Reference was also made by the learned counsel to the crime register produced in the case wherein the time of occurrence was said to have been mentioned as 12 noon. We have already reproduced the observations of this Court with regard to the disappearance of relevant papers of this case and the direction for reconstruction of the record made when this matter was brought in appeal in the year 1983 and the case was remanded for retrial. The learned Judges ought to have carefully gone through the record while dealing with the allegations of alleged tampering of time mentioned in the F.I.R. We are, sorry to say that the learned Judges while holding that the time of occurrence in the F.I.R. Was tampered with or changed by the prosecution, they did not care to look into the original record available before them. In the original, F.I.R. (Exh. 116) which is written in Urdu, the time of incident is clearly stated as 1- 1/2 O'clock and there is no overwriting or tampering. Even otherwise, this assertion of the defence was of no significance as in the body of the F.I.R. (Exh. 118) it is clearly stated "it was time of about 1- 1/2 O'clock in the day when Habibur Rehman came driving Jeep No, KAX.7626" which the learned Judges totally overlooked. The Investigating Officer denied any tampering or change in the time of occurrence in the F.I.R. And categorically stated that the time of incident as stated in the F.I.R. Was recorded as 1-1/2 while F.I.R. Was registered at 1345 hours. We have failed to understand how the prosecution could be benefited by changing the time of occurrence from 12 noon to 1-1/2 hours. On the face of overwhelming evidence in the case which established that the incident took place at 1- 1/2 O'clock, we are unable to understand how the learned Judges reached the conclusion that time of occurrence was changed from 1-1/2 O'clock to 12 noon.
Though we find the ocular testimony alone in the case, sufficient to sustain the conviction of respondents, the motive and medical evidence furnished further corroboration to the prosecution story. The dispute regarding landed properties between the complainant and the accused party was alleged to be the motive in the case. This motive was not only admitted by all the accused in their statements under section 342, Cr.P.C. But through lengthy cross-examination of Mir Hassan P.W.3 and production of voluminous documentary evidence, the respondents tried to establish enmity between the accused and Mir Hassan. Therefore, motive part of the prosecution story was not only established by the evidence of Mir Hassan, Bakhtiar and Sher Khan but it was also fully established by the evidence of the accused themselves. The trial Court, therefore, rightly reached the conclusion that the respondents had the motive to commit the murder of two deceased, and to make attempt on the life of injured Fazal Qayyum.
' The learned counsel for the respondents lastly, contended that the medical evidence in the case did not support ,the ocular account as it was categorically stated by Police Surgeon Dr. Hadi, that Abdul Hassan did not suffer any injury from a fire-arm. This statement of the police surgeon appear to be an obliging statement. Firstly, the inquest report prepared by the Investigating Officer at the time of handing over the dead body of deceased Abdul Hassan for post-mortem clearly stated that the injuries suffered by him were by a fire-arm. Secondly, Dr. A.M. Qureshi, who first examined Abdul, Hassan in injured condition before his death, in his report clearly described injury No,1 as fire-arm and an entry wound and injury No,3 as the exit wound. Both the wounds were found stitched by the doctor who carried the post-mortem of the dead body of Abdul Hassan. It is also significant that the Investigating Officer in his statement before the Court said that 2 bullets were recovered from the bodies of the 2 deceased, one from the body of Noor Hassan and other from the body of Abdul Hassan. This statement of the Investigating Officer was not at all challenged in the cross-examination. Even otherwise, the overwhelming ocular evidence in the case in support of the prosecution story, could not be bypassed or ignored on the basis of solitary statement of Dr. Hadi, which was contradicted by the evidence of another doctor who examined the deceased Abdul Hassan first in the injured condition. In these circumstances, after going through the ocular testimony in the case, we are satisfied that the prosecution had succeeded in establishing the case against accused Habibur Rehman, Rustam Khan and Zabit Khan beyond reasonable doubt.
The consistent testimony of the witnesses in the case is that Habibur Rehman fired at Noor Hassan, Rustam Khan fired at Abdul Hassan while Zabit Khan fired at Fazal Qayyum. With regard to other accused in the case namely, Hassan Khan, Muhammad Akbar and Mir Ajab, there are no allegations of any overt act having been committed by them in the F.I.R. None of the witnesses examined in the case alleged that these accused persons had fired on any of the deceased or the injured in the case. Keeping in view the fact that Hassan Khan, Muhammad Akbar and Mir Ajab Khan have not been assigned any specific role of firing on the deceased or the injured in the case and taking judicial notice of the fact that there is a tendency among the people to involve more persons related to the accused in the case, we are inclined to give them the benefit of doubt in the case. We accordingly, II maintain conviction and sentences awarded by the trial Court to accused Habibur Rehman, Rustam Khan and Zabit Khan by converting their conviction under sections 302/34 and 307/34, P.P.C. With fine as awarded by the trial Court. However, their conviction under section 148, P.P.C. Is set aside. Hassan Khan, Muhammad Akbar and Mir Ajab Khan accused are acquitted in the case giving them the benefit of doubt. The sentences of imprisonment for life awarded under section 302/34 and the sentences under section 307/34, P.P.C. Will run concurrently and the respondents shall also be entitled to the benefit of section 382-B, Cr.P.C.
Before parting with the case, we would like to observe that the object of cross-examination is to extract truth from the witness. To achieve this objective, the cross-examination must confine to matters which are relevant. The witness may be questioned to establish his bias, interest, corruption or perjury. The witness may also be questioned to discover his position with reference to the controversy or to shake his credit by drawing his attention to any of his previous inconsistent statement as to relevant facts or to his previous statement containing admissions. So long the cross-examination proceeds on these lines, the Court may allow it to continue. However, it is noticed that of late, a tendency has developed amongst the counsel specially in criminal cases to intimidate and scare away the witnesses through prolonged cross-examination by asking them irrelevant and misleading questions. It is here that the Court should not remain as silent spectator for the right of cross-examination by a party is neither unlimited nor unbridled. As soon as the Court feels that the right of cross-examination is being abused by a party by asking questions to the witness which arc irrelevant and intended only to prolong the cross-examination with the object of intimidating or scaring the witness, the Court should intervene and disallow such cross- examination. It cannot be denied that witnesses in adversary litigation, occupy pivotal position.
Without truthful witness, it may well-neigh be impossible for the Courts to reach a correct conclusion in the case. The witnesses, therefore, should be treated with dignity and respect by the Courts in cases. The witness while deposing in cases should feel assured that any attempt by party. Against whom he is deposing, to intimate or to humiliate him, will not be allowed by the Court and that he will be provided full protection against all such attempts. It cannot he denied that reluctant on the part of witnesses to give evidence in cases has been largely due to the rough and undignified treatment meted out to them by the Court and the humiliation and intimidation they suffer at the hands of the counsel for the party against whom they appear to depose in the case. The Court possesses ample power to provide protection to witnesses when confronted with such a situation. The present case is an example where cross-examination of prosecution witnesses continued unabated for days together on matters which were mostly irrelevant creating an impression that the Court was not alive to the proceedings going on before it. Much of the Court time could have been saved and the witnesses protected against unsavoury cross-examination by the defence counsel, with the timely intervention of the Court. The Courts should keep in view the guidelines mentioned above while regulating the cross-examination of a witness before them in cases.
' We had disposed of the above appeals by a short order announced at the conclusion of proceedings on 1-3-1999. These are the reasons of our short order.