1. ' BASHIR A. MUJAHID, J.--- Ghulam Hussain alias Pateeli son of Muhammad Anwar and Muhammad Iqbal alias Behloli son of Muhammad Boota had challenged judgment, dated 7;1-1996 passed by learned Judge, Special Court No,3, Suppression of Terrorist Activities, Lahore whereby they were convicted under section 302/34, P.P.C. And sentenced to death for causing murders of Qasim Raza, Iftikhar alias Astoo, Muhammad Javed, Muhammad Aslam and Nasim Begum. They were also directed to pay Rs,50,000 on each count as a compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased persons, in default thereof, they had to undergo six months' S.I. On each count. They were further convicted under section 307/34, P.P.C. And sentenced to 5 years' R.I. Each for making murderous assault on Muhammad Anwar, P.W. They were also directed to pay Rs,20,000 each as fine, if realized, half was to be paid to injured witness as a compensation, and for non- payihent of the fine, they had to undergo one year's R.I. Through the same judgment Muhammad Naseer, Khalid Mahmood and Mahmoodul Hassan were acquitted of the charge.
2. ' The brief facts of the prosecution case as narrated in complaint Exh.P.B. Filed by Nisar Ahmad, P.W.1 are that on 17-9-1990, the complainant accompanied by Ghulam Rasool, Mansab Ali and Sharafat Ali in Car No,340-BRC while his brother-in-law Iftikhar alias Astoo Muhammad Anwar, Syed Qasim Raza alias Zahoor Shah were in another Car No,394-SAC, were going to Sessions Court, Lahore to appear in a murder case. The car of Iftikhar alias Astoo was ahead of car of the complainant. At about 7-00 a.m., when they reached near Chowk Yateem Khana two cars without number plate, one of those was Suzuki driven by Mahmoodul Hassan, accused, with Ghulam Hussain alias Pateeli (appellant), Sajjad Haider, Muhammad Naseer, Muhammad Jamil armed with kalashnikovs while in the other car Toyota Corolla driven by Iqbal alias Behloli who was armed with .30 bore Mauzer, alongwith him were Muhammad Arif Havellian Wala, Muhammad Anwar, Nazir alias Jeera armed with kalashnikovs and Khadim Hussain armed with .12 bore gun came on the right side of car of Iftikhar Ahmad. All of them started firing at Iftikhar Ahmad and Qasim Raza. Resultantly, Iftikhar Ahmad, Qasim Raza and Anwar received bullet injuries and their car ramped into foot-path. The accused fired more shots which hit Muhammad Javed who was a trolley driver of Iftikhar Ahmad.
3. Seven passerby namely, Nasim Begum, Muhammad Aslam son of M. Shafi, Abdul Aziz, Muhammad Sadiq, Muhammad Iqbal and Muhammad Hanif were also injured. The accused drove away their cars towards Samanabad. Iftikhar Ahmad, Qasim Raza and one Nasim Begum and Muhammad Aslam died at the spot. Muhammad Anwar and Muhammad Javed were taken to the hospital in injured condition where Muhammad Javed also succumbed to the injuries on 28-9-1990. The motive alleged for the occurrence was previous blood fued between the parties and pendency of cases. The complainant got F.I.R. Exh.P.A. Recorded at Police Station Nawan Kot with Bashir Ahmad, S.-I., P.W.14 who then arrived at the place of occurrence and deputed a constable to keep guard the spot and he himself arrived Dead House and took into possession, the dead bodies and prepared the inquest reports Exh.P.N., Exh.P.O. And Exh.P.P. Of Muhammad Aslam, Iftikhar Ahmad and Qasim Raza deceased and handed over the dead bodies for post-mortem examination to Liaqat Ali and Rasheed Ahmad, F.Cs. Thereafter, he arrived at the place of occurrence and took into possession 20 empties from Yateem Khana Chowk and 35 empties from the place where the car of the deceased had stopped vide memo. Exh.P.J. He also took into possession the blood-stained earth from the places where Mst. Naseem Begum was murdered vide memo. Exh.P.H. And from other places through memo. Exh.P.G. And Exh.P.I. On 18-9-1990, the investigation was taken over by Azmat Ullah, Inspector C.W.9. The complainant Nisar. Ahmad, P.W.1 being dissatisfied with the investigation conducted by the police filed a private complaint Exh.P.B. Before the learned Judge, Special Court, Suppression of Terrorist Activities against 17 persons. Out of them ten were of conspiracy and were not summoned while Muhammad Anwar was murdered meanwhile, therefore, only five persons namely, Ghulam Hussain alias Pateeli, Muhammad Iqbal alias Bhaloli, Muhammad Naseer, Mahmoodul Hassan and Khadim Hussain were summoned. They pleaded not guilty and claimed trial.
4. ' During the trial, the prosecution examined as many as 14 witnesses to prove the guilt of the accused. While Muhammad Aslam, C.W.1, Muhammad Akbar, S.-I. C.W.2, Siraj Din, C.W.3, Javed Iqbal, A.S.-I. C.W.4, Muhammad Hussain, C.W.5, Faryad Hussain C.W.6, Rehmat Ali C.W.7, Khurshid Ahmad C.W.8 and Azmat Ullah Gondal, D.S.P. C.W.9 appeared as Court witnesses, as it appears the trial of complaint and police case commenced together.
5. ' The medical evidence was furnished by Dr. Mudassar Hussain, P.W.7, who conducted the post- mortem examination of the dead body of Iftikhar Ahmad alias Astoo and found six injuries on his body. On the same day he also conducted post-mortem examination on the dead body of Muhammad Aslam son of Muhammad Shafi and found four injuries on his dead body. Dr. Zia-ud- Din, P.W.6 conducted post-mortem examination on the dead body of Muhammad Javed and found five injuries on his body.
6. ' The ocular account was furnished by Nisar Ahmad, complainant who was examined as P.W.1. He had supported the version of his complaint and motive for the occurrence. Muhammad Anwar son of Shah Muhammad was examined as P.W.2. He was an injured witness in the same occurrence. He also supported the prosecution case as an eyewitness of the occurrence. Mansab Ali was examined as P.W.3. He also corroborated the statement Nisar Ahmad and Muhammad Anwar as an eye-witness of the occurrence. Muhammad Anwar, P.W.4 had identified the dead bodies of Qasim Raza and Iftikhar alias Astoo Younas Ali Shah, P.W.5 was Draftsman, who had prepared the site plan. Musharaf Ali, S.-I. P.W.10 and Bashir Ahmad, S.-I. P.W.14 had partly investigated the case.
7. Azmat Ullah Gondal, C.W.9 had also investigated the case.
8. ' The statements of the accused were recorded under section 342, Cr.P.C. They denied the charge and claimed their innocence and false involvement. Abdul Qadir Khan was examined as D.W.1, Muhammad Sarwar as D.W.2 Ghulam Abbas as D.W.3, Muhammad Akram, D.W.4, Muhammad Ali, D.W.5 and Akhtar Hussain, Inspector D.W.6 were examined in defence.
9. ' The trial culminated into conviction of the appellants as mentioned above. Both the appellants had filed Criminal Appeal No,41 of 1996 against their conviction and sentence. During the pendency of appeal, Muhammad Iqbal alias Behloli died in jail, therefore, to his extent the appeal has not been pressed as having abated.
10. ' Learned counsel .For Ghulam Hussain alias Pateeli convict has argued that the learned trial Judge has disbelieved the ocular account furnished by Nisar Ahmad, P.W.1, Mansab Ali, P.W.2 and Muhammad Ashiq, P.W.3 qua the acquitted co-accused and their statements cannot be made basis for the conviction against the present appellant. Regarding Nisar Ahmad complainant P.W.1, it has been found by the trial Court that he had not witnessed the occurrence as had he present at the place of occurrence, he would not have been spared by the accused. As far as testimony of Muhammad Anwar, PW..4 is concerned, although his presence at the spot could not be doubted as he was a party man of the complainant. He has tried to be an independent witness and not connected with the complainant party but during his cross-examination he admitted certain facts to show that he was interested witness. As far as Mansab Ali, P.W.3 is- concerned he was carrying .12 bore rifle licensed in the name of Nisar complainant. He was also eye-witness of another case under section 302, P.P.C. Alongwith Nisar Ahmad, complainant registered against Muhammad Naseer, accused and others, therefore, both Muhammad Anwar and Mansab Ali were found to be party men and interested, therefore, to place reliance on their statements corroboration from some independent source was essential which is not available on the record. The learned trial Judge sought the corroboration from abscondence of the appellant which has not been proved from the evidence, therefore, it has been maintained that the prosecution has miserably failed to connect the appellant with the commission of offence by independent and unimpeachable evidence. It is further argued that allegation against all the accused was of general firing. No specific injury to a particular person i,e, deceased or injured was attributed to the appellant then he could not be convicted on five counts. Therefore, he is entitled for acquittal by giving him benefit of doubt. Reliance has been placed on Rehmat and others v. The State PLD 1959 SC (Pak.) 109, Abdul Rauf v. The Crown 1971 SCM R 256 and Wali Muhammad v. The State PLD 1973 Pesh.
11. 135.
12. ' Conversely, the appeal has been opposed by the learned counsel for the State, who has supported the impugned judgment.
13. ' We have heard the learned counsel for the parties and perused the record.
14. The motive of the occurrence was considered to be double-edged weapon by the trial Court as the same is for commission of crime as well as reasons for false implication of the opponents. The evidence of motive was not furnished by any independent witness. As far as the ocular account was concerned, Nisar Ahmad complainant was close relative of the deceased. He was not injured in the occurrence. He neither accompanied the injured to the hospital nor escorted the dead bodies, therefore, his presence at the spot was rightly fdund doubtful by the trial Court.
15. Muhammad Anwar out of the injured prosecution witnesses appeared as a prosecution witness. He was partisan, interested and also inimical. He was witness in an earlier murder case against the accused party alongwith the complainant. Likewise, Mansab Ali, P.W.3 was accompanying the complainant as his Gunman and was also interested and the learned trial Court rightly observed in para.17 of his judgment that all the three eye-witnesses hail from different localities situated at about six miles from the place of occurrence so they were .Not natural witnesses of the occurrence.
16. They were interested and inimical, therefore, the ocular account furnished by them is/was to be closely and critically examined which required independent corroboration. Neither the motive could corroborate the ocular account nor the medical evidence as no specific injury was attributed to any of the assailants including the present appellant. No weapon of offence was recovered from his possession; therefore, recovery of empties from the spot was immaterial.
17. ' Learned trial Court sought corroboration from the absconsion of the present appellant: The only evidence regarding his absconsion on the record is statement of Ashfaq Ahmad, P.W.11, who stated that non-bailable warrants of Ghulam Hussain accused were entrusted to him for execution and he searched for him at the given address and in the vicinity but he was not traceable. In case reported as Wali Muhammad and others v. The State PLD 1973 Peshawar 135 it has been held that the essential requisites for the proof of abscondence, are, firstly the issue of process of summons or warrant under section 204, Cr.P.C. When a Magistrate takes cognizance of an offence, and secondly, the publishing of a written proclamation under section 87, Cr.P.C. Requiring the person against whom process had been issued to appear if after the issue of the warrant any Court has reason to believe that any person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed. In case reported as Abdul Rauf v.
18. The Crown 1971 SCM R 256 it has been held that the observation of the learned Judicial Commissioners to the effect that it is seldom that an accused person absconds in the Frontier Province unless he is guilty of the offence with which he has been charged does not in my opinion serve to establish the guilt of the appellant beyond reasonable doubt in view of the unsatisfactory nature of the two alleged eye-witnesses on which reliance was placed by the learned Judicial Commissioners. In the instant case, learned counsel for the appellant has drawn our attention to the order sheet of the trial Court wherein on 5-5-1993 which was the first date fixed for the presence of the accused-appellant Ghulam Hussain appeared in custody, therefore, we agree with the contentions raised on behalf of the appellant that he never absconded and the prosecution could not prove his absconsion during the trial, therefore, the B statements of the eye-witnesses remained uncorroborated from any independent source.
19. ' As far as the ocular account is concerned, Honourable Supreme Court in case reported as PLD 1959 SC (Pak.) 109 has laid down at page 118 that 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 aliunde 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.
20. After deep reappraisal of evidence and following the principle laid down by apex Court in various judgments for safe administration of justice, in our view, the appellant was also entitled to acquittal on the ground that the case had not been proved against all or anyone by the prosecution evidence and the benefit of doubt is to be extended in favour of Ghulam Hussain, appellant also, therefore, we allow his appeal, set aside his conviction and sentence. He is directed to be released forthwith if not required to be detained in any other case.