ABDUL SHAKOOR PARACHA, J. - Criminal Appeal No. 87/1995, Murder Reference No. 113/1995, and Criminal Revision No. 71 of 1996 have been taken-up together and are being disposed of through this single judgment as all of them arise out of a common judgment dated 7.5.1995 passed by Additional Sessions Judge, Islamabad, whereby Tazeem Akhtar, appellant under Section 302, PPC was sentenced to death as Qisas with compensation of Rs.50,000/- to be paid to the legal heirs of the deceased, but Asif Beg and Gul Bahar, co-accused of-the convict were acquitted of the charge.
2. The prosecution case in brief, as disclosed in complaint (Exh.PA) by Mukhtar Ahmad (PW-9) is that he along with with Subedar Sher Afzal, Ajmal Khan, Abdur Rashid son of Sher Khan, and Sher Akbar son of Said Akbar while boarding in Jeep No. 2682-KTA on 16.11.1992 at 7:30 a.m. Were going to attend the Court proceedings of a murder case. Mukhtar Ahmad, complainant, was driving the jeep. Sher Afzal deceased was his brother. Abdur Rashid was sitting on the front seat adjacent to the driving seat. On the back seats, Sher Akbar was sitting on right side, whereas Sher Afzal and Ajmal Khan were sitting on the left seat. When they crossed the house of Sabir Hussain at link road, Nai Abadi, Village Kirpa, Tazeem Akhtar, Asif Beg sons of Muhammad Sadiq, and Gul Bahar son of Sajawal Khan, all armed with 7 mm rifles, emerged at the road. Gul Bahar fired his 7 MM rifle shot hitting under the front screen of the jeep. Tazeem Akhtar fired a 7MM rifle shot which passed through the front screen and hit on the left chest of Sher Afzal, who was seriously injured. Asif Beg fired a shot hitting on the front screen of the jeep. Meanwhile, the jeep went out of control and went down the road, which was managed with difficulty. Thereafter the accused persons resorted to indiscriminate firing towards the left side of the jeep. During the firing Mukhtar Ahmad and his companions drove away the jeep and saved themselves.
Motive for the occurrence was allegedly previous murder of Muhammad Ishaq, brother of Tazeem Akhtar and Asif accused, lt is alleged that this occurrence was motivated on the instigation of Zahid Hussain son of Kala Khan.
3. During the course of preliminary investigation Muhammad Yousaf, SI, prepared the inquest report (Exh.PK) of the dead-body and despatched it with application (Exh.PK/1) to the Medical Officer for post-mortem examination at District Headquarter Hospital, Rawalpindi. Thereafter the S.L with the eyewitnesses went to the place of occurrence. During spot inspection two crime empties (Exh.P.5/1-2) were secured and sealed into a parcel vide memo. Exh.PF, attested by Ajmal Khan, PW-10, and Abdur Rashid. The jeep was taken into possession from Japan Road vide memo. Exh.F'D.
The recovery was witnessed by Abdur Rashid and Mukhtar Ahmad (PW-9). The jeep had firing marks. Blood-stained mat and carpet of the jeep were also secured and sealed into a parcel. The remaining portion of the carpet was separately secured and sealed vide memo. (Exh.PG) which was attested by Sher Akbar and Ajmal Khan (PW-10). One lead of a bullet and five bullet pieces were secured from inside the jeep, which were sealed into parcel vide memo. Exh.PH. Blood-stained clothes of the deceased (Exh.P.1 to P.3) and foot-wear (Exh.P.4/1- 2) of the deceased, received from the Medical Officer, were taken and sealed into parcel vide Exh.PE. The memo, was signed by Mukhtar Ahmad, PW-9 and Abdur Rashid. AppeNant Tazeem AKhtar was arrested on 9.12.1992.
While being interrogated, he led to the recovery of 7MM rifle (Exh.P.6) from a room of his house. The recovery was witnessed by Musharraf and Mushtaq (PW-11). The rifle was sealed into a parcel vide memo. Exh.PJ. Sketch Exh.PJ/1 was prepared in respect of the place of recovery. On 24.12.1992 the Patwari prepared the site-plan in duplicate (Exh.PB and Exh.PB/1). The S.I. Recorded the marginal notes in red ink and signed it. He recorded the statements under Section 161 of the PWs and challaned the appellant on completion of investigation proceedings. During investigation, participation of Asif Beg and Gul Bahar was found doubtful as reported in . Incomplete report under Section 173, Cr.P.C., but both of them were challaned and placed at the mercy of the Court subject to trial. Zaid Hussain was found innocent and placed in column No. 2 of the challan. However, he was not challaned in the final report under Section 1 73, Cr.P.C.
4. Tazeem Akhtar, Asif Beg and Gul Sahar were charge- sheeted by the learned Trial Court. All the accused denied the charges. They pleaded not guilty and faced the trial.
5. The prosecution in order to prove its case examined: witnesses in all. Out of them, Dr. Muhammad Arshad, PW-7 conducted the post-mortem examination, on the dead-body of Subedar Sher Afzal and noticed the following injuries on his person:-
(i) A wound of entry on the left chest front measuring 2 c,m. In diameter, it was 7 c.m. Below the left nipple and TO c.m. From midline (sternum). No blackening, no charring.
(ii) A wound of exit 2 c.m. x 2.5 c.m. On right lower chest back. Tissues were protruding through the wound which was 10 c.m! fr6m spine and 11 c.m. Above the iliac chest. There were corresponding entry and exit holes at Qamiz and Bunyan, worn by the deceased.
All the injuries were ante-mortem and had been caused with fire-arm. These injuries were sufficient to cause death in the ordinary course of nature. SI.
6. Mukhtar Ahmad, PW-9, and Ajmal Khan, PW-10 furnished the eye-witness account of the occurrence, Mukhtar Ahmad PW-9, repeated the statement which he had already made in Exh.PA, on the basis of which formal FIR Exh.PA/1 was registered. According to him, all the accused armed with 7MM rifles came in front of the jeep on the road. First shot was fired by ftiGuj Ejahar accused with his 7MM rifle, which hit the body of the jeep below the wind screen; second shot was fired by Tazeem Akhtar appellant with his rifle, piercing the screen and hitting Sher Afzal deceased on left side of his chest who became injured due to jbis^ftre-shot; third shot was fired by Asif Beg accused with his +7K/fK/!' rifle hitting the wind screen and during this the jeep became uncontroTable and slipped downward the road, and the jeep was controlled by the witness with great difficulty.
Thereafter the accused resorted to indiscriminate firing hitting the jeep on its lefi side. PW-10 Ajmal Khan also made his statement on similar lines and According to him also all the accused persons came armec with 7MM rifles. They started firing towards the jeep. Gul Bahai accused fired the first shot with his rifle, which hit the body of th$ jeep and thereafter accused Tazeem Akhtar fired a shot which pierced the wind screen of the jeep and then hit Sher Afzal deceased on the left side of his chest near the armpit and went out from the right side of his chest. The third shot'was fired by Asif Beg accused hitting the wind screen of the jeep.
7. Out of remaining prosecution witnesses, Muhammac Bashir, S.I., the then Moharrir at Police Station Sihala, PW-1 recorded formal FIR Exh.PA/1 on receipt of complaint Exh.PA. Muhammad Azeem, Patwari, PW-4 prepared the site-plan Exh.PE and PB/1. PW-11 Mushtaq Ahmad attested the recovery memo Exh.PJ of rifle which the appellant Tazeem Akhtar got effectee from his house. PW- 12 Muhammad Yousaf, SI investigated the case, arrested the accused and submitted the challan in the Court The remaining witnesses are more or less of formal nature, therefore, need not be discussed.
8. On the conclusion of the prosecution evidence, the learned prosecutor tendered in evidence report of the Chemica Examiner Exh.PM, report of the Serologist Exh.PN and reports o Forensic Science Laboratory Exh.PO and Exh.PP and closed the prosecution case.
9. All the accused persons were examined under Sectior 342, Cr.P.C. Tazeem Akhtar, appellant, when confronted with the allegation against him, denied the same and stated that the witnesses had deposed against him falsely and the case has beer brought against them falsely in order to pressurize them tc compromise with the complainant party regarding the case o' murder of his brother Muhammad Ishaq registered against Dali Akbar, son of maternal aunt of both the eye- witnesses. The appellant claimed that he is innocent. However, no evidence ir defence was produced nor he appeared as his own witness as envisaged in Section 340(2), Cr.P.C. The remaining accused came up with straight denial and pleaded their false implication in the case.
10. The learned Additional Sessions Judge, Islamabad, vide his judgment dated 7.5.1995 convicted the appellant under Section 302, PPC and sentenced him to death. He was also directed to pay compensation of Rs.50,000/- to the legal heirs of the deceased Sher Afzal. The compensation amount was ordered to be recovered as arrears of land revenue, and in default thereof, he was to suffer R.I. For six months. However, benefit of doubt was extended to Asif Beg and Gul Bahar and they were acquitted of the charge. Hence this appeal by the convict Tazeem AKhtar, whereas the Reference has been sent by the Trial Court and complainant Mukhtar Ahmad has also filed Criminal Appeal No. 87/96 against the acquittal of Asif Beg .And Gul Bahar, co-accused of the appellant, as well as Criminal Revision No. 71/96 seeking enhancement of the compensation amount, awarded by the Trial Court.
11. Ch. Tariq Azam, Advocate, learned counsel for the appellant has argued that there is admitted enmity between the parties on the record due to the murder of Muhammad Ishaq, brother of the appellant, and both the witnesses namely Mukhtar Ahmad and Ajmal Khan, PWs-9 and 10, being real brothers of deceased Sher Afzal had motive to falsely implicate the appellant in this case. Their testimony on ocular account and recovery of weapon from the appellant cannot be accepted and relied being related, inimical and interested, having motive to falsely implicate the appellant.
Reliance has been placed on:- PLD 1960 SC 387 (Niaz v. The State))
PLD 1962 SC 269 (Nazir and others v. The State); PLD 1976 SC 452 (Muhammad Sharif v. Javed alias Jeda Tedi and 5 others).
Further contends that there is direct conflict of ocular evidence with the medical evidence on the record therefore the case of the prosecution is of doubtful nature. The appellant is entitled for acquittal as the slightest doubt arising out of the prosecution case must go to the appellant.
Further contends that there is no independent corroboration available on the record of evidence/ocular account given by PW-9 and 10 Mukhtar Ahmad and Ajmal Khan therefore the conviction of the appellant by the Additional Sessions Judge was illegally recorded. He has relied on:- PLD 1991 SC 1090 (Muhammad Sharif v. Zulfiqar and 4 others).
Finally, he has argued that the recovery of 7MM rifle is not helpful to the prosecution as the Trial Court has not believed it. Lt is argued that possibility that the occurrence was unseen cannot be ruled out and the appellant was therefore entitled for acquittal. Finally he argued that on the same evidence other two co- accused, namely, Asif Beg and Gul Bahar have been acquitted by the Trial Court and that an other accused, namely, Zahid, was declared innocent during investigation.
12. Raja Muhammad Anwar, Senior Advocate, assisted by Raja Shafqat Khan Abbasi, Advocate, on behalf of the complainant has argued that the ocular account has not inherent infirmities which could be detrimental to the prosecution case, and that the relationship by itself is no ground to discard the confidence inspiring evidence in spite of existing earlier enmity. They further argued that the recovery of 7MM rifle corroborates the ocular account and that some concession from the official witnesses cannot be considered a piece of evidence and they are not relevant for the purposes of considering the case of the appellant for acquittal. Finally they argued that the appellant Tazeem Akhtar remained fugitive from law for a sufficient time and this is the best piece of evidence which can be taken as corroborative evidence against the appellant. They argued that the medical evidence and the motive, as set-up by the prosecution, has proved the case against the appellant.
13. We have gone through the evidence and other relevant material on the file with the help of the learned counsel for the parties. After very careful consideration, we find that the prosecution case against the appellant and his co-accused is that the complainant along with Sher Afzal, Ajmal Khan, his brothers, and Abdur Rashid and Sher Akbar was going for pursuing the murder case in the District Court on Jeep on 2682-KTA and when they crossed the link road, Nabi Abadi, Village Kirpa near the house of Sabir Hussain, at that time Tazeem Akhtar appellant along with his co-accused Asif Beg and Gul Bahar all armed with 7MM rifles came in front of them and all of them resorted to firing. Lt is alleged that second shot was fired by Tazeem Akhtar with his 7MM rifle which piercing the screen of the jeep hit Sher Afzal on the left side of chest who go injured due to the is fire shot.
The description of the injuries as given by the Doctor shows that the injury sustained by the deceased was not from the front side of the'body. Dr. Muhammad Arshad, PW-7 while appearing in Court has categorically stated that the direction of the injury was from upward to downward and also from left to right side. He stated in the Court:- "I cannot rule out the possibility that the assailant fired at the deceased about 8 or 10 feet higher level from him."
After examining the injuries and the statement of the doctor, it appears that the direction of the injury was from upward to downward and also from left to right side and that the assailant fired at the deceased about 8 or 10 feet higher level from him. The impression that the assailant fired at the deceased about 8 or 10 feet higher level from him and not from the front side, as alleged by the prosecution, is further fortified by the fact that when we take into account the exit wound, there is one entry wound and one exit wound noted by the doctor, which have been reproduced above. The statement of the doctor and the medical evidence leave no doubt in believing that somebody had fired at the deceased about 10 feet higher level from him. The site plan Exh'PB and' PB/T prepared by PW-4 Muhammad Azeem Patwari, shbws that the assailant fired from point '6'. He has admitted that point No. 6 Shown by him in the site-plan was a depressed place. Then'he stated that:- "Volunteered this place was at a higher level from the rest of the area around it." ln case reported as Saindad and 2 others v. The State (1972 SGMR 74) it has been held by the Supreme Court:- "Section 302--Murder trial-Benefit of doubt-Conviction based on oral testimony of eye-witnesses- Medical evidence inconsistent with account of occurrence as given by eye-witness--.....Accused in circumstances, given benefit of doubt and acquitted."
The medical evidence, therefore, strongly belies the prosecution version on this point. We have lifted a paragraph from the book namely "Fire-arm and Forensic/Ballistic" by Major Sir Gerald Burrad, wherein it has been observed:- "Bullet fired from fire-arm generally tends to continue in straight line form point of entrance to point of exit, such wounds-, however, very frequently are not straight but curved due to deflection of missile by slightest obstacles."
According to the witnesses, all the three accused resorted to firing and thereafter caused injuries to the deceased by Tazeem Akhtar on his person, lt appears that the witnesses had not seen the occurrence. They were in the hospital where the deao1 tody was taken, and then on the arrival of the police after the investigation and noting down the number of injuries on tho person of the deceased all the three accused were implicated and each and every assailant was attributed specific role, lt 3 well- established rule of law that FIR recorded after preliminary investigation is not admissible in evidence. This Court in Anwar v. The State (1975 P.Cr.L.J. 750) and Muhammad Hand v.
Thu State (PLJ 1978 Cr.C. (Lah) 16) held that no reliance can be placed on the FIR which has been recorded after preliminary investigation.
The learned Trial Court did not believe the prosecution version and discarded the testimony of the witnesses viz-a-viz two co- accused of the appellant who were sent-up to face the trial. He however, proceeded to believe the version of the prosecution against the appellant only on the ground that he had caused injuries to Sher Afzal with his 7MM rifle.
Lt is true that according to the prosecution, fatal injury wa? Caused by the appellant, and in some cases it has been held tha t the accused responsible for causing the injury is liable fo r conviction.
But, in the instant case, however, the matter a; different. According to ' both the eye-witnesses, who are rea I brothers of the deceased, all the three accused persons came or 1 the road in front of the jeep, opened firing which hit on different parts of the screen and body of the jeep, and one bullet hit Sher Afzal deceased, which caused his death. Eye-witnesses have been I found to be false qua the implication of the co-accused, therefore, their testimony has to be assessed and evaluated with extra caution against the appellant.
Both the eye-witnesses, as stated above, are inimical and interested ones, lt is true that relationship of the deceased with the witnesses is no ground to discard their testimony, but in. Our view, in this case is that the eye-witnesses had the motive to implicate the appellant, therefore, they are interested witnesses. Interested witness has been defined in case reported as Niaz v. The State (PLD 1960 SC (Pak) 387) as follows:- "Whenever interested persons claiming to be eyewitnesses 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 occurrence."
This definition of interested witnesses has been relied by the Hon'ble Supreme Court in case reported as Nazir and others v. The State (1962 SC 269) and Muhammad AH v. The State (1985 SCMR 203). Ln Nazir's case (supra), ' interested' witness has been defined as under:- "Interested' witness--"One who has a motive for falsely implicating an accused person."
The Supreme Court of Azad Jammu and Kashmir in a ease reported as Abdu! Rashid and others v.
Abdu! Ghaffar and others (2001 P.Cr.L.J, page 524) + (SLR 2001 77) has held that:- "interested witness is on who falsely implicates an innocent person in the commission of offence with ulterior motive."
Similar view has been adopted by Quetta Bench of Baluchistan High Court in case reported as Durani Bibi v. Jehanzaib and others (PLD 2001 Quetta 103) + (2001 PLR (Qta) 1127).
We are conscious of the law laid down by their Lordship^ f the Hon'ble Supreme Court in Tawaib Khan's case (PLD 19l0 SC 13) and Abdu! Rashid and 3 others v. Abdu! Ghaffar and 5 other (2001 P.Cr.L.J. 524 S.C. AJ&K) + (SLR 2001 77) that the Court : has to sift the grains of truth from the chaff of falsehood. However, the principle, which has already been laid down earlier in case PLD 1959 P.C. 24 that credibility of witnesses is indivisible and if a witness is found to be false against one accused, he cannot be disbelieved against the other accused. However, the M doctrine of ' faisus in uno falses in omnibus' was held to be of no , useful application in case of Tawaib Khan and Abdu/ Rashid^ ,, referred, to above, ln order to do complete justice and to ensure . That the real culprit may not escape from punishment it was . Provided that the grain may be sifted from chaff, but if it is found that it would be unsafe to sift the grain from the chaff and the testimony of the witness is not confidence inspiring, then it will be unsafe to record conviction by singling out one of the accused persons as real culprit merely on the ground that he was allegedly attributed the fatal injury.
Unfortunately, when the prosecution falsely imp spates innocent persons along with guilty ones at times it becomes extremely different rather to pick-up real culprits out of various accused persons.
As discussed above, we are of the firm view that the deceased lost his life due to single shot.
According to the prosecution, all the three persons resorted to firing, ln this situation, it will be highly Unsafe to convict the appellant merely because he is stated to be the main culprit who was attributed the injury.
Apart from what has been observed above, we have not been persuaded to believe that the prosecution has successfully established the motive. Mere assertion that the criminal litigation is pepping between the parties and the occurrence took place on account of a case pending adjudication, the defence version as nn by the learned counsel for the appellant has some force, because it isadlfiitied position that the complainant party Was ihvblvecf'in ' murder of Muhammad Ishaq, real brother of the appellant, and 'oect of the case cannot be completely ignored or neglected. In ruled in case reported as AUah Bakhsh and another v. 1978 SO 171) that motive is a; double edited reV'-itMS cbm mort in the society .That the motive The above rule that 'benefit of doubt' is to be extended in favour of the accused was based on the case reported as Sikandar v. The State (PLD 1963 SC 17), where it was held that:- "Benefit of doubt to go to accused." ln case reported as Bashir Ahmad and another v. The State (1974 P.Cr.L.J. Lah. 385) it was held that:- "Murder case--Benefit of doubt--Benefit of doubt arising on any material point-Must be given to accused."
We are not persuaded with the argument of the learned counsel for the complainant that there was absconsion of the appellant in this case. Even' otherwise, in cases reported as Farzand Ali v.
The State (2001 P.Cr.L.J. 1601) + (2001 PCrR 856) and Khan Akbar v. Mohib Gul and another (2001 P.Cr.L.J. 1617) it has been ruled that, "Abscondance of accused at the most can be taken as corroborative of the charge and the evidence of the charge."
Concluding the above discussion, we find that the eye-witness account neither finds support from the medical evidence nor from the motive. There is also no other credible evidence by way of recovery etc. We are, therefore, constrained to extend benefit of doubt to Tazeem Akhtar appellant as well. Resultantly, Crl.Appeal No. 87/95 filed by appellant Tazeem AKhtar is allowed, his conviction and sentence awarded by the Additional. Sessions Judge, Islamabad vide his judgment dated 7.5.1995 in case FIR No. 48, dated 14.5.1992, registered at Police Station Sihala, District Islamabad, under Section 302/34, PPC, is set aside. He is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case. Murder Reference is answered in the negative.
For the same reasons, Crl. Appeal No: 87/96 and Crl.Revision No. 71/96 filed by complainant Mukhtar Ahmad are dismissed.
Death sentence not confirmed.