IFTIKHAR HUSSAIN BUTT, J.--- Since all three.Appeals arise out of the same incident and judgment, they have been consolidated and will be disposed of by this single judgment.
2. The F.I.R. Of this case was lodged by Abdul Rasheed (P.W.2) brother-in-law of the deceased at 9- 30 a.m. On June, 24, 1985, who stated that Fazal-ur-Rehman was a political worker of Muslim Conference, whereas Abdul Qayyum, accused and Feroze Khan, his father, also were member of the same party. The popularity earned by Fazal-ur-Rehman in the party, particularly during the last general election, was the cause of annoyance to the accused party who were not feeling happy with the situation, nursed a grievance against the accused and decided to kill him. Consequently, prior to the fateful day of occurrence there had been altercation between Abdul Qayyum, accused, and Fazal-ur-Rehman, deceased. On 24-6-1985, at about 8-00 a.m., when the complainant alongwith Fazal-ur-Rehman, deceased was on his way to Barnala, when Fazal-ur-Rehman purchased a packet of cigarettes from the shop of Muhammad Yousaf and came out of the shop, was ambushed and attacked by the accused party, armed with guns and sticks. Abdul Ghaffar opened fire which hit the left armpit of Fazal-urRehman and he fell down when Abdul Qayyum accused fired which instead of Fazal-ur-Rehman, hit Muhammad Siddique on his left index finger.
The other accused were ascribed to be in possession of sticks and that they kicked the feet of Fazal-ur-Rehman with sticks to satisfy that he was dead. Muhammad Feroze accused conspired and abetted the murder. On this report, a case under section 4/5, Islamic Penal Laws Act, 1974 read with sections 307/147, 148 and 149/109, A.P.C. Was registered by Syed Nazir Hussain Shah, Head Constable Police (P.W.22). The accused persons were accordingly arrested and after necessary investigation they were challaned before the learned Additional District Criminal Court, Bhimber.
The accused-persons denied their guilt in their statements recorded under section 242, Cr.P.C. The prosecution examined as many as 19 witnesses, including three eye-witnesses. The prosecution also relied upon other incriminating evidence and on the existence of motive. In their statements under section 342, Cr.P.C. The accused-respondents denied their involvement in the crime and claimed that they had been falsely implicated. No defence evidence was produced. After assessing the evidence before it the learned trial Court found Abdul Ghaffar appellant guilty of murder and vide impugned judgment, dated 16-10-1995 sentence of life imprisonment allongwith Diyyat in the sum of Rs,50,000 was awarded to him, on recovery, was ordered to be paid to the legal heirs of the deceased whereas the other accused-respondent, by giving the benefit of doubt were acquitted. Abdul Ghaffar, appellant has challenged his conviction and sentence. The complainant and the legal heirs of the deceased also filed two separate appeals to award death sentence to Abdul Ghaffar convict and to pass an order of sentence and conviction against other accused-respondents.
3. I have heard learned counsel for the parties and have perused the record of the case with their assistance.
4. Mr. Abdul Majeed Mallick, the learned counsel for the appellant Abdul Ghaffar and other accused-respondents argued with vehemence that the occurrence was not witnessed by the prosecution witnesses and Abdur Rasheed complainant was not present on the scene of occurrence. He also contended that during examination of the accused-persons under section 242, Cr.P.C. The evidence pertaining to the previous incidents was not put to the accused. Likewise an explanation about these facts was not sought by the accused-person during their statements recorded under section 342, Cr.P.C.
Thus, the prosecution failed to prove the past enmity and motive. He further submitted that the inquest report and injury form of the deceased were prepared by Zulqarnain A.S.-I. Police but the said Zulqarnain was neither cited as prosecution witness in the challan-form nor produced before the Court. The learned counsel pointed out that F.I.R. Exh.P.B. Was registered by Nazir Hussain Shah, Head Constable Police (P.W.22), who appeared in the Court but the prosecution failed to get it proved by him. He maintained that the inquest report does not bear any number or date and the same was not proved by any prosecution witnesses. The learned counsel agitated that the injury form of the deceased Exh.P.1 also does not bear any number. He pressed into service the submission that according to Key Note No,1 of site plan Exh.P.K. The place of occurrence has been described as Raveeda Salma Mutta (URDU TEXT) but according to the inquest report the place of occurrence has been shown as Jhand Pir (URDU TEXT) . According to him, all the above mentioned facts lead to the conclusion that the whole story of the prosecution is shrouded in the mystery. The learned counsel further maintained that according to the inquest report and the post-mortem report, Raja Muhammad Hafeez and Raja Abdul Aziz identified the dead body but both the abovementioned persons were not produced as prosecution witnesses during the trial. He also argued that the prosecution version suffers from inherent contradictions and defects, as according to the medical evidence, the deceased expired three hours after receiving injury whereas the alleged eyewitnesses described his death spontaneously. He contended that the prosecution introduced false eye-witnesses who are closely related to the deceased and obviously inimical to the accused persons. The learned Counsel agitated that the natural witness Muhammad Yousaf (P.W.4) was withheld and not produced. He further submitted that the ocular version has not been corroborated by the medical evidence. It was also argued by the learned counsel that the alleged weapon of offence was not used in the incident and the recovery evidence is fake which cannot be relied upon. He also pointed out that according to the report of Forensic Science Laboratory both crime empties were found to be fired by the short gun allegedly recovered by Abdul Ghaffar- appellant, which is not the prosecution case. Finally, it was submitted by the learned counsel that the alleged eye-witnesses were chance witnesses and their evidence suffers from material contradictions, discrepancies and inconsistencies but the trial Court failed to appreciate the material facts, as such the impugned judgment is bad in law and liable to be set aside, and the appellant Abdul Ghaffar be acquitted. The learned counsel has referred us to the following case law in support of his contention:-
(i) PLD 163 SC 17-25, (ii) PLD 1963 Kar. 92, (iii) PLD 1964 Kar. 428 and (iv) PLD 1976 Kar.
438.
5. Controverting the arguments raised by the learned. Counsel for the appellant-convict, Chaudhry Muhammad Afzal, learned counsel for the complainant contended that the prosecution case stood fully established from the ocular version which has been corroborated by other incriminating evidence. He further argued that the prosecution witnesses are illiterate villagers and their evidence has been recorded after three years of the occurrence, therefore, the minor discrepancies appearing in the evidence are but natural and does not effect the prosecution case adversely. He also submitted that Muhammad Siddique (P.W.4) is a injured eye-witness whose testimony is sufficient to bring guilt home to the accused-persons. The learned counsel submitted that according to section 26 of Islamic Penal Laws Act, 1974. The required quantum of evidence is present in the instant case, therefore, the trial Court has wrongly extended concession to Abdul Ghaffar convict while awarding him sentence of life imprisonment instead of death and other accused be also punished under law. He has relied upon the following authorities in support of his arguments:---
(i) PLD 1979 SC (AJ&K) 23-44, (ii) 1980 PCr.LJ 749, (iii) PLD 1983 SC (AJ&K) 211, (iv) NLR 1984 (Criminal)
578, (v) 1986 PCr.LJ 877, (vi) PLD 1987 Sh.C.(AJK) 47, (vii) 1996 PCr.LJ 1076-1522 and (viii) 1997 PCr.LJ 1865.
6. Mr. Ejaz Ali Gillani, the learned Assistant Advocate-General, fully supported the impugned judgment to the extent of Abdul Ghaffar appellant and submitted that the prosecution has amply proved its case against the other accused-persons, therefore, the accused-respondents may also be punished.
7. We would firstly deal with the eye-witnesses of the incident. Abdur Rasheed (P.W.2) is complainant. He is first cousin and brother-in-law of the deceased Fazal-ur-Rehman. He stated that he and the deceased were proceedings towards Barnala and they, reached at the shop of Muhammad Yousaf wherefrom the deceased purchased a packet of cigarette. At that time Willayat Khan (P.W.3) and Muhammad Siddique (P.W.5) were also present, but Muhammad Siddique (P.W.5) deposed that he and Fazal-ur-Rehman deceased went at the shop of Muhammad Yousaf to purchase some household while Fazal-ur-Rehman purchased a packet of cigarette, thus, Muhammad Siddique has excluded Abdur Rasheed (P.W.2). He further stated that when he went forward to rescue the deceased then Muhammad Shafi accused told Abdul Ghaffar to kill him and when he went forward, Muhammad Shafi accused gave him two blows of stick and asked the other accused to kill him otherwise he (Muhammad Siddique) will be a witness of the occurrence. Meanwhile, Abdur Rasheed (P.W.2) and Willayat Khan (P.W.3) also reached there. The above testimony of Muhammad Siddique (P.W.5) shows that the deceased was not accompanied by Abdur Rashid (P.W.2) rather he was accompanied by Muhammad Siddique (P.W.5). It will be useful to mention here that Muhammad Siddique (P.W.5) resides in village Kotehra whereas deceased belonged to village Jhand Pir. It transpires from the abovementioned statement of Muhammad Siddique (P.W.5) that other prosecution witnesses were not present on the spot.
Furthermore, it also appears that the crime was not committed on the shop of Muhammad Yousaf (P.W.4). It was also admitted by Muhammad Siddique (P.W.5) that his ex-wife Perveen did not enjoy good reputation and she was having illicit relations with Muhammad Rafique-accused. He further deposed that Parveen has obtained a decree of dissolution of marriage from him. He has admitted this fact that the deceased belongs to his family.
8. It is on the record that Muhammad Siddique (P.W.5) and his brother Muhammad Sharif were involved in criminal litigation with Muhammad Shafi-accused and his brother Allah Ditta. The perusal of his testimony reveals that Muhammad Siddique not only tried to suppress his relationship with the deceased rather he also avoided to depose about the fact of divorce of his ex-wife and fact of criminal litigation between him and the accused party. It is also the prosecution case that Muhammad Yousaf Shopkeeper (P.W.4) witnessed the occurrence but Muhammad Siddique (P.W.5) stated that he can not tell as to whether Muhammad Yousaf (P.W.4) witnessed the commission of crime or not but he made hue and cry on the spot. In this connection Abdur Rashid (P.W.2) deposed before the Court that at the time of the occurrence Muhammad Yousaf (P.W.4) was present in the shop but he does not remember that during the occurrence he came out of the shop or not, rather he saw him after two minutes of the occurrence. He further stated that the key- note No,9 site plan Exh.P.K. Has not been written according to his version to the extent that Muhammad Yousaf (P.W.4) saw the accused persons tiring shots. The statement reads as under.
(URDU TEXT)
' He has admitted the fact that in spite of the injury he did not get any treatment or dressing of his finger for three days. He is also not definite about his statement recorded under section 161, Cr.P.C.
Once he stated that with an half an hour of the occurrence his statement was recorded by police and again he deposed that his statement was recorded on the next day. In such state of affairs it will not be safe to rely upon the testimony of Muhammad Siddique (P.W.5). According to the cothplainant Abdur Rashid (P.W.2) the occurrence took place on the shop of Muhammad Yousaf (P.W.4) who was cited as a prosecution witness in the calendar of challan but later on withheld by the prosecution. It is also alleged that the deceased purchased a packet of cigarette from the shop of Muhammad Yousaf (P.W.4) but neither a packet of cigarette was recovered from the clothing of the deceased nor it was taken into possession from the place of occurrence. The recovery of packet of cigarette is also not mentioned in the site plan Exh.P.K. Abdur Rashid (P.W.2) is complainant who lodged F.I.R. Exh.P.A. But he stated before the Court that when he lodged the report he did not sign any paper. He further deposed that the accused party came at the spot with an intention to commit the murder of deceased from a distance of three miles, therefore, in the light of the said statement it is also to be considered that how the accused party came to know that at the time of the commission of the crime the deceased will be present on the shop of Muhammad Yousaf (P.W.4). He also stated that on the day of occurrence his statement was recorded whereas the Investigating Officer also recorded the statement of Willayat Khan (P.W.3)
Muhammad Yousaf (P.W.4) and Muhammad Siddique (P.W.5) but as it has been mentioned earlier Muhammad Siddique (P.W.5) testified that on the next day of occurrence police recorded his statement alongwith statements of P.Ws. Abdur Rashid, Willayat Khan, and Muhammad Yousaf.
Abdur Rashid (P.W.2) further stated that A.S.-I. Police and a head constable took into possession cartridges and blood-stained clay and also recorded the statement of Birbal (P.W.10) and Muhammad Yousaf son of Munshi (P.W.11) and except this they did nothing but Akhter Hussain, S.-I.
Police (P.W.23) deposed before the Court that he took into possession the blood-stained clay and two empties of .12 bore gun. It will also be relevant to mention here that the blood-stained clay P.2 was taken into possession vide recovery memo. Exh.P.Z. And two empties P.1 and P.3 were taken into possession vide recovery memo. Exh.P.Y. And Exh.P.X by Akhtar Hussain, S.-I. Police (P.W.23) and not by A.S.-1. Police and Head Constable Muhammad Khaliq (P.W.19). Muhammad Khaliq Head Constable Police (P.W.19) also appeared before the Court as a prosecution witness but the prosecution did not ask any question about the recovery of the abovementioned recoveries.
9. After the careful scrutiny of the statement of Willayat Khan (P.W.3) it transpires that he is not an eye-witness. He belongs to Kotehra which is three miles away from the place of occurrence and his presence at the spot is not natural. He stated altogether a different story from other P.Ws. He also suppressed the relationship between himself and the complainant party. He refused to tell the name of his grandfather. He also did not mention the name of grandfather of the deceased. Once he deposed that the accused were present on the shop of Muhammad Yousaf (P.W.4), before his arrival but after that he stated that accused came there after three minutes of his arrival. He did not mention that the deceased came with Muhammad Siddique (P.W.5) on the shop of Muhammad Yousaf (P.W.4) as stated by said Muhammad Siddique. He further deposed that Muhammad Yousaf (P.W.4) was first person who came on the spot and witnessed the occurrence but later on he changed his statement and deposed that at the time of occurrence Muhammad Yousaf was inside the shop who came out after firing. The witness did not know any of the inhabitants of the area. He also stated that his statement was written by Head Constable, which is not the prosecution case. According to him he stayed on the spot one and half hours and during this time the police did nothing except recording the statements of the prosecution witnesses.
According to him he never saw the accused Abdul Ghaffar before . The occurrence. He deposed that after recording of his statement police recorded the statement of Muhammad Yousaf (P.W.4) and Muhammad Siddique (P.W.5). According to him he volunteered himself to be a prosecution witness. He also stated that at the time of the occurrence Feroze-accused was not present. The witness has been declared Adil in purgation by the trial Court but he cannot recite prayers or first and second (URDU TEXT)'Kalma' (URDU TEXT). After a careful perusal of the statement of the witness it transpires t at at the most he is a chance witness and it is for this reason that we have examined his evidence with great care and caution and arrived at the conclusion that it will be dangerous to place reliance upon his evidence. PLD 1963 SC 17. The above analysis of the ocular version shows that the prosecution witnesses namely Abdur Rashid (P.W.2) and Muhammad Siddique (P.W.5) are not only related to the deceased but they are also inimical towards the accused party. Whereas Willayat Khan (P.W.3) does not seem to be an eye-witness, therefore, it will not be safe to base the conviction on such type of evidence. We are aware of the fact that Muhammad Siddique (P.W.5) is an injured eye-witness but the mere existence.Of this injury does not make his testimony reliable, for we find that according to injury form Exh.P.M. The said injury is simple one caused by a blunt weapon as the prosecution case is that Muhammad Siddique was injured by a fire-arm which was also not recovered from the accused AbdulQayyum. The existence of the injury, therefore, does not in any way better the case of prosecution and we do not believe that the 'occurrence was witnessed by Muhammad Siddique (P.W.5). In this respect reliance can be placed on a case reported as Daud alias Dadan and another v. The State PLD 1.964 (W.P.) Kar.
428.
10. Needless to emphasize that in cases of like nature based on the evidence of interested witnesses, the prosecution is required to produce independent corroborative evidence, direct or circumstantial, before reliance can be placed on the deposition of such interested witnesses. In the present case, we do not find any independent corroboration of unimpeachable character. The circumstantial evidence does not support the prosecution version rather it is in direct conflict with the same. According to the prosecution, a .12 bore gun, pullthrough (URDU TEXT) and two live cartridges were recovered and taken into possession from Abdul Ghaffarconvict at his instance vide recovery memo. Exh.P.L. In the presence of Inayat Ali (P.W.12) and Naseer Ahmed (P.W.13) but Exh.P.L. Was not put to both the witnesses. Inayat Ali (P.W.12) is real maternal-uncle of the deceased's wife whereas Naseer Ahmed is brother-in-law of the deceased. Both of the witnesses do not reside in the village of the accused-persons. It is also on the record that despite of the presence of a large number of people at the time of the recovery, no respectable witness of the Illaqa (URDU TEXT) was associated with the recovery. It will also be appropriate to mention here that according to the report of Forensic Science Laboratory both the crime empties had been fired from the shot-gun of .12 bore No,(1732), allegedly recovered from Abdul Ghaffar-convict, which is not the prosecution case. According to the prosecution story Abdul Ghaffar shot a single fire from .12 bore gun whereas the other shot was fired by Abdul Qayyum-accused by another .12 bore gun which hit Muhammad Siddique (P.W.5). In view of our estimate of the ocular witnesses, these recoveries are of no avail against the accused-persons.
11. Two empties and blood-stained clay was taken into possession vide recovery memos. Exh.P.Y., Exh.P.X. And Exh.P.Z. In the presence of Raja Birbal (P.W.10) and Muhammad Yousaf son of Munshi (P.W.11): Birbal (P.W.10) is closely related to the deceased who deposed that the articles P.1, P.2 and P.3 were taken into possession in his presence while Muhammad Yousaf son of Munshi (P.W.11) was also present there. He also stated that he and Muhammad Yousaf (P.W.11) affixed their thumb- impressions in the police station but Muhammad Yousaf (P.W.11) denied the fact of recovery. He was declared hostile but no fruitful evidence benefitting the case of prosecution came forward. The statement of Muhammad Yousaf (P.W.11) was recorded on 3-5-1994, when he was already given up by the prosecution on 14-12-1991. We wonder how the trial Court permitted Muhammad Yousaf (P.W.11) to record his statement before the Court when he was already given up by the prosecution.
12. The recovery of two sticks from Saghir Ahmed-accused and Muhammad Shaffi-accused and a children hockey from Muhammad Rafiqueaccused were also allegedly taken into possession at the instance of the accused-persons in the presence of Inayat Ali (P.W.12) and Naseer Ahmed (P.W.13) vide recovery memos. Exh.P.F, Exh.P.G. And Exh.P.H. It has already been held above in detail that the reliance cannot be kept upon the statements of these witnesses, therefore, no more comments are required. Furthermore, Akhtar Hussain Shah S.-I. (P.W.23) deposed that the gun, sticks and hockey were recovered on 24-6-1985 but according to the record the abovementioned recoveries were affected on 25-6-1985.
13. Abdur Rashid (P.W.2) has also been cited as witness of the recovery of licence of .12 bore gun P.6 but he deposed in his examination-in-chief that the gun P.6 was recovered and taken into possession in his presence and in this respect he testified the recovery memo. Exh.P.E. Which is not the prosecution version. How testimony of such type of witness can be relied upon. In the context of recovery Abdur Rashid further stated that the cartridges and blood-stained clay were taken into possession by A.S.-I. Police and a Head Constable but Akhtar Hussain Shah (P.W.23) while negating this testimony stated that the aforesaid articles were taken into possession by himself and not by A.S.-I. Police or head constable. A recovery memo. Of a bottle of pellets has been inadvertently exhibited as Exh.P.Z. Whereas recovery memo. Of blood-stained clay has already been exhibited as Exh.P.Z, therefore, while recording this judgment we have marked the recovery memo. Of bottle of pellets as Exh.P.Z./1. The aforementioned recovery was witnessed by Muhammad Ilyas (P.W.14) and Hadayat Khan (P.W.15) but both of the witnesses did not support this recovery and were declared hostile but even though the prosecution could not gain anything out of their testimony. It is also worth-mentioning that the aforesaid statements of Muhammad Ilyas (P.W.14) and Hadayat Khan (P.W.15) were recorded by the trial Court on 3rd of July, 1994, when they were already given up vide order dated 20-9-1992.
14. It will also be useful to note here that injury form of the deceased Exh.P.1 and inquest report do not bear any F.I.R. Number or dated which were prepared by Zulqaranain A.S.-I. Of Police but neither inquest report was proved in the trial Court nor Zulqarnain A.S.-I. Police was cited as prosecution witness in the challan. He was also produced in the trial Court. Furthermore, F.I.R. Exh.P.B. Was registered by Nazir Hussain Shah Head Constable Police (P.W.22) who appeared before the trial Court but F.I.R. Was not put to him, thus, could not be proved. The dead body was identified by Raja Muhammad Hafeez and Raja Abdul Aziz at the time of the preparation of inquest report and at the time of the post-mortem but both the abovementioned persons were neither cited as prosecution witness in the challan nor produced before the trial Court.
15. There is another inconsistency in the prosecution evidence whereby according to the F.I.R.
Exh.P.A. The place of occurrence has been shown as Jand Pir (URDU TEXT) and same has also been described in the inquest report but according to key-note No,1 of site plan Exh P.K. The place of occurrence has been shown as Raveeda Salma Matta ((URDU TEXT) and this grave difference between two places of occurrence was never explained by the prosecution which makes its case very suspicious.
16. Now, let us see whethei the prosecution story fits in with the injuries on the person of the deceased because if it does not then the reasonable inference would be that none of these witnesses had actually witnessed the occurrence. The dead body of Fazal-ur-Rehman was sent to the medical officer Dr. Muhammad Akram Chaudhry (P.W.17) by Zulqarnain A.S.-I. Police. It is alleged by the P.Ws. That deceased suffered a fire-arm injury at 8-00 a.m. And died on the spot spontaneously but according to the post-mortem report the deceased expired three hours after receiving the injury. Besides this according to the post-mortem report the deceased suffered one entrance wound 1" circumference, oval, lacerated edges and the shirt of the deceased was also found burnt and second rib of the deceased was also shown to be fractured near its head and the left lung and pericardium were found pierced by bullet but according to the prosecution story three pellets were extracted from the dead body of the deceased and no bullet was recovered whereas the rib cannot be fractured by pellets. Furthermore, the injury of pellet is never in oval shape, it will be either punctured or lacerated. It is very important to observe that burning on the body always takes place when the distance between the assailant and the victim is not more than 6" upto 4 feet but the ocular version has described a different story. The prosecution case is that one shot of 12 bore gun was fired by Abdul Ghaffar convict from a distance of five to seven yards.
The nature of the injury shows that the shot was not fired from very far. Dr. Muhammad Akram Chaudhry (P.W.17) did not rule out the possibility that when the deceased was fired upon rifle was affixed with his body. This fact gets further support from the nature of the injury when the alleged injury took place on the armpit. Thus, the nature of the injuries clearly establish this fact that the shot causing injury was fired from a close range and it might be of a bullet fired by the revolver or pistol. It will be pertinent to note here that Dr. Muhammad Akram Chaudhry stated before the Court that he had extracted a bullet from the body of the deceased. This directly contradicts the evidence of the eye-witnesses because of the evidence read together would show that these three eye-witnesses had not actually witnessed the attack. Therefore, evidence of the aforenamed witnesses of the prosecution is not of such an unimpeachable quality as can be implicitly relied upon in a capital charge.
17. It was also contended by the learned counsel for the defence that P.Ws. Have deliberately implicated five more innocent persons and their evidence was also disbelieved by the trial Court against these accused-persons for the same reasons, therefore, it will not be safe to rely on their evidence in regard to the remaining accused Abdul Ghaffar, the appellant, in absence of some independent corroboration which is conspicuously absent in this case. This contention appears to be well-founded and requires serious consideration. Indeed all the prosecution witnesses had, in one voice, implicated co-accused Muhammad Shaffi, Muhammad Rafique, Saghir Ahmed and Abdul Qayyum. Feroze Khan accused was extended the benefit of section 169, Cr.P.C. Who was later on acquitted by the trial Court vide its order dated 6-4-1988 even though he was forcefully implicated by P.Ws. The nature of accusation against Muhammad Rafique, Muhammad Shaffi and Saghir Ahmed is that after death of Fazal-ur-Rehman they kicked the feet of Fazal-ur-Rehman with stick to satisfy themselves that he was dead whereas Feroze Khan accused conspired and abetted the murder. Abdul Qayyum accused is charged of causing a fire upon deceased which did not hit him. The alleged gun was not recovered from Abdul Qayyum. These accused have not been alleged to attack the deceased with sticks. The recovery of sticks and hockey have also not been proved. The alleged weapon of offence is a children hockey. The evidence implicating these accused persons is also not truthful or worthy. Muhammad Anwar (P.W.7) for alleged incident of 22-6-1985 was withheld by the prosecution whereas the testimony of Muhammad Shafi (P.W.6) is not trustworthy who is closely related to the deceased and obviously inimical to the accused party.
The trial Court also reached the same conclusion and disbelieved the prosecution evidence to the extent of the aforesaid accused persons. Having done so, the trial Court, however, proceeded to rely on the same ocular version with regard to the appellant Abdul Ghaffar but acquitted other accused-persons regarding their evidence as an exaggerated eye-witnesses account and convicted the appellant Abdul Ghaffar on the ground that their evidence stood proved against appellant Abdul Ghaffar. I am afraid that this is not a correct mode of appreciation and evaluation of the evidence when the P. Ws. Exaggerate their evidence to the extent of implicating five innocent persons, where is the guarantee that they had not exaggerated it with regard to the appellant Abdul Ghaffar; It is a well-established rule of prudence that when prosecution witnesses are discredited in respect of majority of accused, it will not be safe to believe their evidence in respect of remaining accused unless there is some independent corroboration in respect of such accused- persons. (PLD 1976 Kar. 438). It will, thus, be noticed that according to the prosecution when Fazal- ur-Rehman fell down after first fire allegedly caused by Abdul Ghaffar and died spontaneously then there was no necessity for Abdul Qayyumaccused to shot a fire upon a dead person, as rightly observed by the trial Court.
18. Another significant reason for not relying on the evidence of eyewitnesses that the alleged motive was fake and fabricated in view of the status and position of the deceased because, the appellant Abdul Ghaffar was in Army service as such he was falsely ascribed the alleged motive of incident. Some incidents prior to the occurrence were mentioned in the F.I.R. To establish the motive on the part of the accused persons for the alleged crime but these incidents could not be proved through direct, cogent and reliable evidence. Furthermore, these incidents were neither put to the accused-persons in their statement recorded under section 242, Cr.P.C. Nor an explanation was obtained by them in their examination under section 342, Cr.P.C. The prosecution, however, did not bring anything on record to substantiate such allegation. In this view of the matter, there is complete absence of motive in this case. Of course, we are cognisant of the fact that if the prosecution case is based on direct evidence, absence of motive would not matter but as held earlier, the ocular version in the instant case suffers from material contradictions, discrepancies and inconsistencies which is I incredible and unreliable. Absence of motive in such a case, therefore, does assume importance.
19. We cannot, therefore, agree with the findings of the learned Additional District Criminal Court, Bhimber that the testimony of eyewitnesses is reliable and ought to be accepted nor we do agree that the contradictions in their statements are not of material particular. They are material in the assessm ent of the prosecution case, as we disbelieve the testimony of Abdur Rashid (P.W.2), Willayat Khan (P.W.3) and Muhammad Siddique (P.W.5). Furthermore, the ocular version was not corroborated by any strong and independent circumstances and it failed to pass the test of close and. Severe scrutiny. Suffice it to say that in the absence of corroboration of a material extent in all material particulars, it could be extremely hazardous to convict the appellant Abdur Ghaffar on the basis of the testimony of those highly interested, inimical and partisan witness when it bristles with improbable versions and material infirmities. There is no other evidence to sustain the conviction of Abdur Ghaffar appellant.
20. I am not inclined to discuss the case law referred to by the learned counsel for the prosecution in detail because of distinguishable facts and circumstances. For instance, Eid Wali's case PLD 1979 SC (AJ&K) 44 is a case of double murder of Ghaffar Shaikh and Mst. Fatima wherein the appellant absconded after the occurrence and was apprehended after 3-1/2 years from Kotri Amin Abbas, District Dadu Sindh. Another case reported as Manzoor Hussain v. The State 1980 PCr.LJ 749 deals with brutal triple murder. There can be no cavil with the preposition that the evidence of P.Ws.
Cannot be rejected merely on the ground of relationship if their evidence rings true and uncontradicted by cogent circumstances, as held in Niaz Muhammad's case PLD 1983 SC (AJ&K) 211 and in Mehboob Shah's case PLD 1987 Sh.C. (AJ&K) 47 and Pervaiz Khan's case 1986 PCr.LJ 877.
21. Before parting with the judgment, it will be appropriate to note here that the file of the trial Court has not been maintained in an appropriate manner. The statement of Muhammad Siddique was recorded on 10-2-1990 which has been affixed on page 89 of the file while the statement of Willayat Khan (P.W.3) was recorded on 8-12-1988 which was kept on page 25 of the evidence of Abdur Rashid (P.W.2) was recorded on 13-10-1988 which was kept on page 118. This negligence of the reader is highly deplorable and it is directed that District and Sessions Judge, Bhimberm will take necessary action against the relevant clerk of the Court, who will accordingly inform the Registrar, Shariat Court, Muzaffarabad, of the action taken.
22. For the reasons listed above, we have arrived at the conclusion that the prosecution case against the appellant-Abdul Ghaffar and other accused respondents is not free from doubt and they are, therefore, entitled to acquittal. We accordingly allow the appeal of Abdul Ghaffar and set aside the conviction and sentence passed on the appellant Abdul Ghaffar and order that he be released forthwith unless not required in any other case or offence.
The other two appeals filed by the heirs of the deceased accordingly fail and hereby dismissed.