' MUHAMMAD ROSHAN ESSANI, J.--- The appellant have impugned the judgment, dated 1-10-1998 delivered by learned Judge, Special Court (Suppression of Terrorist Activities), Hyderabad in Special Case No,11 of 1997 (State v. Iqbal alias Ladla and others) under section 302134, P.P.C. Arising out of Crime No,488 of 1990, Police Station City Hyderabad, whereby the appellants were sentenced to suffer imprisonment for life and fine of Rs,50,000, in default of payment they have to undergo R.I.
For 6 months.
2. The complainant Ehteshamuddin lodged F.I.R. On 6-9-1998 at 10-35 wherein he stated that appellant Mushtaq Choopa wanted to construct his general store illegally and the complainant made such complaint to Anjuman in this respect. The settlement was to be made on 6-9-1990 at 1- 00 p.m.
3. On 6-9-1990 appellant Mushtaq Choopa started demolishing his shop at morning time. Upon which complainant, his nephew Iqbal Uddin, Mehtabuddin and Muhammad Tariq restrained him from doing so. It is alleged that Mushtaq went to Bhai Khan Chari and came alongwith lqbal Ladla, Mehtab alias Mamoon Kathiawari and Yameen. Appellant Iqbal came with automatic repeater gun and the others were armed with kalashnikoves. On reaching there appellant Mushtaq instigated others to commit murder of Mehtabuddin. Appellant Iqbal fired from his repeater gun to Mehtabuddin who sustained injuries and fell down. The remaining accused fired from their kalashnikoves at complainant party but they managed to conceal themselves. The appellants decamped and the complainant party found Mehtabuddin dead. The deceased was removed to hospital where from the dead body was brought to his house, thereafter the complainant went to police station and lodged the F.I.R.
4. The police took up investigation and submitted challan on its conclusion. At the trial prosecution examined P.W. Muhammad Tariq Exh.9, complainant Ehteshamuddin Exh.10, P.W. Muhammad Khalid Exh.11, S.I.P. Allah Dino Exh.12, Iqbaluddin Exh.14, Medical Officer Dr. Ahmed Ali Memon Exh.15, Muhammad Aslam Exh.16, S.I.P. Soona Khan Exh.18 and Inspector Muhammad Yousuf Exh.20.
5. Ultimately, learned Special Judge came to the conclusion that the prosecution has been able to bring home the guilt of appellants, hence he convicted them in the terms stated above.
6. It is contended by the A.Q. Halepota learned counsel for appellants that the trial Court has come to an erroneous conclusion by placing reliance on the interested testimonies of complainant Ehteshamuddin, P.Ws. Muhammad Tariq and Iqbaluddin. He has argued that the alleged recovery of repeater gun from accused Iqbal alias Ladla is of no consequence as neither the empty was recovered from the Wardat nor such Expert report is produced on the record. According to him the appellant has been acquitted in the 13-D case against him and the alleged recovery was made after about 28 days of his arrest in presence of two police officials. It is further pleaded that medical evidence is inconsistent to ocular evidence.
7. It is contended that so far motive is concerned the same is only alleged against the appellant Mushtaq. The said Faisla was fixed before the Anjuman but none of the member of said Anjuman Resham Gali was examined. The labour for demolition of the shop in question was available according. To the prosecution but none of them was examined. It is further argued that nothing incriminating was recovered by the police as the demolition material could have been collected by the police in order to prove that actually demolition took place on the day of incident at relevant time. The learned counsel has placed reliance on Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 Kar. 274, Muhammad Sadiq v. Muhammad Sarwar and 2 others PLD 1973 SC 469, Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCM R 1928, Criminal Appeal No,7 of 1958 Rehmat and others v. The State and Criminal Appeal No,15 of 1958 Sardara v. Nazira and others and Jail Petition No,86 of 1958 Mathela v. The State PLD 1958 SC 109, Rasool Bux and another v. The State 1980 SCM R 225.
8. The pieces of evidence available on the record which need reevaluation are the ocular testimony of complainant Ehteshamuddin, P.W. Muhammad Tariq, Muhammad Khalid and P.W.
Iqbaluddin and recovery of repeater gun from accused Iqbal alias Ladla. The next piece of evidence is the motive against appellant Mushtaq.
9. The complainant Ehteshamuddin is the father of P.W. Muhammad Tariq and Muhammad Khalid and uncle of P.W. Muhammad Iqbal. He is uncle of deceased. Mere relationship of witnesses is no reason to disbelieve their testimonies but the way they have testified has disturbed our mind. The complainant Ehtshamuddin has deposed in the Court while replying to a question as under:-- "It is correct that I had stated in my earlier deposition that I am unable to identify the culprits who were sitting in Court alongwith many other accused."
10. Similarly, the witness Muhammad Khalid Exh.11 has stated in the end of his examination-in-chief as follows:-- "Accused Mushtaq present in Court is same, while rest 3 accused not identified."
11. The P.W. Iqbaluddin has also failed to identify three of the accused in the Court by their names and stated as under:-- "Accused Mushtaq present in Court is same, while rest not identified by names."
12. These sentences of eye-witnesses have shaked us as the question of identity is deep rooted in the case. The complainant had failed to identify the accused when he was examined at the time of his deposition of first trial. The witness Muhammad Khalid and Iqbaluddin who are also eye- witnesses failed to identify three accused even in second trial. Although, they had seen the same accused at the time of their first trial, when they were produced during second trial the witnesses had not been able to identify three of the accused except accused Mushtaq who was admittedly their neighbour. This fact itself reflects upon the veracity of witnesses as they failed to identify the accused in Court after the lapse of much time after the incident. This leaves room for suspicioning as how they could be able to recognize and nominate them in F.I.R. As well as 161, Cr.P.C.
Statements.
13. The witnesses have further given twist to a story regarding removal of dead body from hospital.
The complainant in his F.I.R. Which was lodged at 10-35 a.m. Stated that he had taken the dead body from hospital, left it at home and has come to lodge the report. This statement of complainant is falsified by the doctor who has stated that he started post-mortem of deceased at 10-30 a.m. And finished at 1-30 p.m.
14. The third version in this regard which has come on record is the deposition of Investigating Officer Allah Dino Exh.12, who has testified that dead body of deceased Mehtab was handed over to their relatives at 9-45 a.m. Or 10-00 a.m. And he prepared inquest report at 9-35 a.m. The eyewitnesses have contradicted the evidence of doctor and the evidence of police officials. The complainant and the police and doctor all have suppressed the true facts from the Court and it appears that some other hands were keeping control over all these things. Neither the post- mortem report was conducted nor the F.I.R. Was lodged but the police came in action and carried investigation unauthorisedly.
' The witness Muhammad Tariq deposed that accused had fired towards Mehtab from the distance of about 5/6 feet whereas complainant Ehteshamuddin has stated that accused Iqbal fired at Mehtab from a distance of 16/18 yards and the other accused were standing at the distance of 14/15 yards from them.
16. So far the first incident is concerned Muhammad Tariq has stated that his father had prevented accused Mushtaq from demolition of the shop one day prior to this incident arid he approached to Anjuman Resham Gali for settlement. On the other hand complainant Ehteshamuddin has stated that the first incident had occurred 5/6 days prior to the incident. P.W. Muhammad Khalid also deposed that the first incident had occurred one day earlier to the present incident. The two P.Ws.
Muhammad Tariq and Muhammad Khalid have both contradicted complainant on this material aspect of the case. This material contradictions have caused a serious prejudice to the prosecution story. The most vital question of identity gets support from these discrepancies and gives an impression that the accused were not known to complainant party previously as suggested by the defence. They are relatives and admittedly they had the enmity with accused Mushtaq.
' Furthermore, on the record we find that map of scene of offence produced by the Tapedar indicates that all the P.Ws. Were standing at different points and they have rushed to take shelter in any shopping centre. This shopping centre is more nearer to the place from where fires are attributed. In view of the facts, the P.Ws. Would prefer to escape to backside rather than to come nearer to the fire place. The other important document which is found on the record is the entry which was kept in Roznamcha by S.H.O. Police Station City at 9-30 a.m. Indicating that the complainant stated before him that they would bury the dead body and then they would lodge their report. This fact reflected that the police, doctor and the eye-witnesses were collusively acting and the Government officials were working under the hands of said M.P.A. Who was admittedly the nephew of complainant Ehteshamuddin and brother-in-law of deceased Mehtab. To us, it appears that the first information report in this case has been lodged after the burial of dead body and investigation was being conducted without F.I.R. In view of the aforesaid reasons we have not been able to believe the version of these three witnesses and the grave doubts have affected the entire prosecution story and evidence. The evidence is to be evaluated on the basis of honesty of witness and on these basis, the test of veracity can be calculated. But these witnesses have left very poor impression about their veracity. The learned counsel referred us to the pronouncement in a case of Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCM R 214 wherein their Lordships have held as under:-- "A casual perusal of the evidence would suggest that it was riddled by absurdities, therefore, I am surprised that both the Courts were impressed by it, and as far as I can see, they were impressed by it because the accused had failed to prove their allegation that the eyewitness were hostile to them. Now, there can be no dispute about the proposition that as a rule of prudence, the evidence of a hostile witness in a criminal case requires corroboration, but the primary question in a case is not whether the witness is a hostile witness or a disinterested witness, but whether he is an honest witness or a dishonest witness. Sometimes, even a hostile witness may speak the truth, whilst a totally disinterested witness may be bribed or pressurized into giving false evidence, therefore, if I may be permitted to say so, the test of enmity is a rule of thumb method for ascertaining the veracity of a witness, and the question whether the evidence is inherently probable and whether it is consistent with the circumstantial evidence."
' The same view get support from case of Rehmat and others v. The State, Sardara v. Nazira and others and Mathela v. The State PLD 1959 SC (Pak.) 109 and PLD 1974 Kar. 274 wherein their Lordships have held as under:-- "Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliened e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence."
16. The apex Court in the case of Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 SC 274 has held as under:-- "With regard to the evidence of these witnesses the learned Additional Sessions Judge observed that they had no grouse against the appellants and their evidence was substantially corroborated by circumstances and independent evidence and, therefore, they could not be disbelieved. We feel no hesitation in saying that the treatment of the evidence of the witness was rather artificial. Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances which provides the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief."
17. The next piece of evidence is recovery of repeater gun at the pointation of accused Iqbal Ladla.
This recovery was effected on 15-10-1990. The accused was taken in custody by S.-I. Allah Dino who interrogated him and the accused volunteered to produce gun allegedly used in the commission of offence. The gun was produced and taken under the cover of Mashirnama prepared in presence of Mashir S.I.P. Sonda Khan and A.S.-I. Fateh Muhammad. A.S.-I. Fateh Muhammad has not been examined by the prosecution. Mashir Sonda Khan has been examined. The accused was arrested on 8-9-1990 in Crime No,333 of 1990 and the alleged recovery was made after about 5 weeks of his arrest. The accused is acquitted in 13-D case. This judgment is produced on record. The alleged recovery was made from thickly populated area but no private Mashir was joined by the police.
' Furthermore, Allah Dino Investigating Officer has been examined in this case but he has said not a single word about the said recovery of crime weapon from accused. The gun was not sent to Expert. There is no such report on record. No empty was recovered from the Wardat. Under these circumstances the recovery of alleged gun from accused is of no consequence and cannot corroborate the ocular evidence in this case. Reference can be had to a case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCM R 1928 wherein it is observed as under:-- "When we talk of corroboration, it is always required with regard to the version of the prosecution and with regard to the identity of each accused. Since no empty was recovered from the spot, therefore, the recoveries of fire-arms from the accused/respondents are of no consequence. The medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence, duration between the injuries and the death and the presence of the injured P.W. Or the accused on the spot, but it would not connect the accused with the commission of the crime. The factum of the presence of the witnesses being natural would establish their presence on the spot but would not take the prosecution case any further. The three eye-witnesses were not believed by the trial Court to the extent of the charge of the murder of Shahzad Akhtar, so, all the accused were acquitted of his charge. The absence of enmity of the eye-witnesses with the accused would also not stamp their statements with truth."
18. We would now discuss the evidence on the point of motive. The motive appearing against appellant Mushtaq is that he wanted to reconstruct his shop illegally. The complainant placed such complaint before Anjuman Resham Gali and they fixed the time for settlement on 6-9-1990 at 1-00 p.m. The appellant is said to have started demolition of the said shop on the day of incident in the morning.
19. The motive has come from the mouth of same witnesses whose evidence needs corroboration and none of the witness from said Anjuman has been examined in order to substantiate the plea of motive. The reference can be made to a case of Rasool Bux and another v. The State 1980 SCM R
225. The prosecution has further not been able to collect the demolition material from the Wardat in order to show that in fact demolition had taken place on fateful day. The evidence of motive is always considered by the superior Courts to be a weak piece of evidence and is a double-edged weapon which cuts both ways. The motive is considered to be second name of enmity and is considered to be sufficient for commission of offence and for false implication as well. Reference can be made to a case of Criminal Appeal No,55 of 1992 The State v. Muhammad Sharif and 3 others Criminal Appeal No,303 of 1993 The State v. Muhammad Yasin 1995 SCM R 635 wherein their Lordships have held as under:-- "So far as enmity is concerned, it is a double-edged weapon and cuts both ways. I find it is considered as sufficient motive for commission of offence, it can also be considered as sufficient for false implication as well."
20. It is further noticed that complainant Ehteshamuddin has stated in his deposition that his house is at the back of Mushtaq's shop and is separated by wall. He has further admitted that earlier he had stated that accused Mushtaq had encroached in front of his shop and he had no concern with portion of the shop of appellant. The alleged motive would only be the reason for committing any damage to the complainant and his sons and not to the deceased Mehtabuddin as no special act of deceased is displayed during the proceedings that he committed any overt act for restraining the appellant Mushtaq from construction of his shop. For the said reasons it can hardly be believed that the motive was existing against the deceased for which the accused could commit such a heinous offence.
21. For the foregoing reasons, the sentence, awarded to appellants cannot be sustained.
Resultantly, Criminal Appeals Nos.148 of 1998, 167 of 1998 are allowed and the sentence is set aside.
The Criminal Revision No,4 of 1999 is hereby dismissed. The appellants shall be released forthwith if not required in any other case.