' SH. RIAZ AHMED, J.---Appellant Muhammad Aslam Khan alongwith acquitted co-accused namely Muhammad Latif, Muhammad Zaman, Sher Khan and Muhammad Akbar were tried by an Additional Sessions Judge at Mianwali on charges under sections 302, 148, 149 P.P.C. For having caused murder of Saadullah Khan deceased. Vide judgment dated 27-5-1991 the learned Additional Sessions Judge found only appellant guilty of the charge under section 302, P.P.C. And thus he was convicted and sentenced to death and to pay a fine of Rs,10,000 or in default thereof to suffer R.I. For a term of two years. The co-accused named above not having been found guilty were acquitted. A reference was made to the Lahore High Court under section 374, Cr.P.C., and an appeal was also filed by the appellant to call in question his conviction. A Division Bench of the Lahore High Court declined to confirm the death sentence and it was altered to life imprisonment.
Sentence of fine was maintained, but it was directed that in the event of recovery of fine, half thereof shall be paid to the heirs of the deceased. The benefit of section 382-B, Cr.P.C., was also extended. The appellant assailed his conviction through a petition for leave to appeal and this Court vide order dated 4-9-1995 granted leave to appeal to re-appraise the evidence to consider, inter alia, whether in convicting the appellant the rules enunciated by this Court for the safe administration of justice in criminal cases were kept in view.
2. The occurrence resulting into the death of Saadullah Khan deceased took place on 20-1-1990 at about 2-10 p.m. Within the area of Wan Bachran situated at a distance of 2 furlongs from Police Station Wan Bachran in District Mianwali. The occurrence was reported at the police station by Sher Khan complainant and in the F.I.R. Registered at his instance the complainant stated that on the day of occurrence at about 2-00 p.m. He alongwith his brother Saadullah Khan deceased, Hakam Khan and Niaz Ali after having attended the Court alighted from a bus at the Bus Stop Wan Bachran and proceeded to Malik Jehan Khan's house for offering condolence in respect of death of his son Naeemullah, who had met an accident the same day. While they were proceeding on the road leading to the Railway crossing and as soon as they reached near the saw mill of Haji Abdur Rashid, suddenly from the northern side of the road, appellant Muhammad Aslam Khan, Abdul Latif, Muhammad Zaman and Muhammad Akbar armed with guns and Sher Khan empty-handed reached there. Abdul Latif raised a Lalkara that they have reached to avenge the murder of Mst.
Saif Khatoon and remarked that the complainant side will not go alive. On such exhortation the appellant allegedly fired a shot hitting the back of Saadullah Khan deceased near his right shoulder, who fell down and thereafter all the accused brandishing their weapons went towards Ganjera. Saadullah Khan succumbed to the injury at the spot. The motive for this occurrence as narrated by the first informant was that about 20/25 years before the occurrence, Khan Baiq brother of Saddullah Khan had abducted Mst. Sakina Bibi sister of Muhammad Zaman and Sher Khan acquitted co-accused. Another limb of the motive was that 3/4 months ago Hakam Khan and others had murdered Mst. Sahib Khatoon sister of Muhammad Akbar acquitted co-accused as a result of which a case was registered against 6 persons of the complainant side and thus on account of this grouse appellant and others having formed themselves into an unlawful assembly had killed Saadullah Khan. The occurrence was allegedly seen by the first informant, Hakam Khan and Niaz Ali.
3. Dr. Asmatullah, Medical Officer, DHQ Hospital, Mianwali conducted post-mortem examination on the dead body of Saadullah Khan deceased and the following injuries were noted:- "(1) An entry wound of fire-arm projectile 3 c.m. x 3 c.m. On the right posterior auxiliary fold, 12 c.m.
Below the tip of the right shoulder and 16 c.m. From the mid spinal cord.
(2) A grazing wound measuring 3 c.m. x 3 c.m. On the posterior surface of the right arm, 12 c.m.
Below the tip of the right shoulder and 19 c.m. Above the right elbow-joint.
(3) 9 exit wounds of fire-arm projectile each measuring 1/2 c.m. x 1/2 c.m. On the left interior chest in the area of 11 c.m. x 11 c.m. These were distributed from mid sternal line medically, above bounded by clavicle below 4 c.m. Short of the left nipple, laterally from the left anterior auxiliary line."
' In the opinion of the doctor the death had occurred due to the haemorrhage and shock caused by injury No,1, which was sufficient in the ordinary course of nature to cause death. Injury No,3 was the exit wound of injury No,1 and injury No,2 was of grazing nature, which could have been caused by a fire shot. Two pieces of wads were recovered from the body. The doctor further stated that pieces of wad in the body indicated that the fire was shot from a close range, which could be between 15 and 20 ft depending upon the velocity of the air, the kind of weapon used and the quality of the powder. In cross-examination the doctor further admitted that he had incorrectly stated that the distance is between 15-20 ft. And the maximum distance cannot be more than 6 ft.
4. We have heard the learned counsel for the appellant and the State at length and have also perused the ocular evidence consisting of testimony of first informant Sher Khan and Niaz Ali.
Hakam Khan, another eye-witness named in the F.I.R was given up by the prosecution as unnecessary. ' It was vehemently contended on behalf of the appellant that the deceased was killed by some unknown persons and the occurrence was also unseen and the complainant had lodged the false F.I.R. With a view to exert pressure on the accused side to effect a compromise in the murder case of Mst. Sahib Khatoon. It was also suggested in the cross-examination that it was only one assailant whose identity was unknown, who had fired at the deceased. It is pertinent to mention that during investigation the police had challenged only Latif acquitted co-accused while the appellant and the other acquitted co-accused were declared innocent. The statement of the investigating officer and his cross-examination also reveal that right from the beginning the appellant and the acquitted co-accused had pleaded their innocence and had also undertaken to take;special oath and had also offered Sher Khan to take special oath about their guilt. Sher Khan sought some time to think over till 9-2-1990, but on the said date he did not appear before the investigating officer and thus the taking of oath was postponed to 12-2-1990, but Sher Khan declined to take oath. The investigating officer further stated that he had thoroughly investigated this case and he had recorded the statements of at least 130 persons and on the basis of the conclusions arrived at by him he had only challaned Latif while the remaining accused, including the appellant were placed in column No,2. This investigation was also verified by the D.S.P. It is also pertinent to mention that the record reveals that there were at least 10 shopkeepers near the place of occurrence and their statements had also been recorded by the investigating officer, but strangely enough none of them was produced by the prosecution to depose about the occurrence.
Obviously, our society lacks the civic sense, which has also been taken note by this Court in the case reported as Muhammad lqbal alias Javed lqbal v. The State (PLD 1976 SC 291) and it seems that on account of the fear of reprisal, these shopkeepers might not have come forward to depose in favour of the prosecution.
5. Admittedly both sides are inimical towards each other and therefore unless unimpeachable and independent corroboration comes forth on the record, the, prosecution story cannot be believed.
The occurrence had taken place in broad daylight at a busy place and unfortunately the best possible evidence as already stated, has been withheld by the prosecution. The enmity between the parties is further highlighted by the cross-examination and the first informant, who admitted to have received fire-arm injuries in 1974 at the hands of Muhammad Khan and Muhammad Amu of the accused side and they had been acquitted. It was also brought to the limelight that in 1988 Sardar son of Hakam Khan P.W., wife of Sardar, Hakam son of Manzoor and his niece Mst. Sakina daughter of Madad Khan also sustained fire-arm injuries in that case and Sardar injured was complainant in the said case. In that case 9 persons including the appellant and the acquitted co- accused were nominated as culprits and after investigation 8 of them were discharged and only Sher Khan was challaned in that case. The said case is still pending. It is thus obvious that Sher Khan and Hakim Khan P.W.; are inimical to each other. No doubt that this Court in the case reported as Niaz v:The State (PLD 1960 SC 387) has laid down that it is not necessary that inimical evidence should not be believed without corroboration if otherwise the Court is convinced that they were present at the scene of occurrence and thus appreciation of inimical evidence rests upon its intrinsic worth. The facts and circumstances of this case clearly reveal that this is a case in which conviction could only be recorded if there was unimpeachable/independent corroborative evidence on the record. Furthermore, the enmity of the deceased with persons other than the accused was also brought to limelight in the cross-examination. The first informant was cross- examined to the effect that his son Muhammad lqbal had abducted Mst. Zaitun sister of Shafaullah about 9 months prior to this occurrence. The complainant denied that in retaliation thereof Shafaullah had attacked Muhammad Iqbal aforesaid and his brother Muhammad Sharif. The complainant also denied that any such case against Iqbal or Sharif was at all registered. The complainant however deposed that he did not know if Shafaullah subsequently attacked Mst.
Zaitun and fired at Iqbal and Sharif. The witness also repelled the suggestion that there was exchange of fires and the deceased Saadullah was inimical alongwith his son to Shafaullah. It was also suggested to the witness that the deceased had enmity towards Khishkey Khel Tribe. The witness however admitted that Niaz Ali brother of deceased Saadullah was murdered about 30-35 years ago and the case was registered against Khishkey Khel family. The witness admitted that three accused challaned in that case were acquitted and later on Saadullah deceased and others took revenge and murdered Sher Khan son of Abdur Rehman. Deceased Saadullah was challaned in that case alongwith Tora Khan, paternal uncle of Amir Khan P.W. It was thus contended by the learned counsel for the appellant that the appellant has been falsely implicated in this case. The possibility cannot be ruled out that the deceased might have been killed by his other enemies.
6. Considering all the facts and circumstances of the case and after hearing the learned counsel for the appellant it is unintelligible to us as to why Hakam who had murdered Mst. Sahib Khatoon sister of Akbar was spared. If at all as alleged by the prosecution, Akbar was accompanying the appellant and the other acquitted co-accused, then in the said event the motive lay with Akbar to kill Hakam, who had in fact murdered his sister, but strangely enough Hakam was not at all fired at although Akbar was armed with a gun. Hakam Khan was not produced in the witness box and only Niaz Ali, a first cousin of the deceased was produced. In our view, the testimony of Niaz Ali and that of Sher Khan are tainted with animus and, therefore, both of them cannot corroborate each other and further no independent corroboration exists on record so as to connect the appellant with the commission of the crime. The medical evidence in this case also falsifies the ocular account. The presence of wad in the body of the deceased proves it beyond any shadow of doubt that he was fired from a close range. The doctor volunteered to state in the witness-box that the distance could have been 15-20 ft., but in answer to another question he replied that distance could not be more than 6 ft. The recovery of wads during post-mortem examination clearly proves that the shots were fired from a close range.
7. In the light of the above, it is abundantly clear that the witnesses had not seen the occurrence and the case as attempted to be established by the prosecution is not free from doubt. The evidence being tainted, with no independent corroboration to lend strength to the same and the falsification of oral testimony through medical evidence takes bottom out of the prosecution case.
Resultantly, this appeal is allowed. The conviction and sentence of the appellant is set side. The appellant shall be set at liberty forthwith if not required in any other case.