ASIF SAEED KHAN KHOSA, J.----Muhammad Khalid, Amjad Iqbal and Muhammad Nawaz alias Nawaza appellants were convicted on three counts of an offence under section 302(b)/34, P.P.C.
Vide judgment dated 24-3-1999 rendered by the learned Judge, Special Court (Suppression o Terrorist Activities), Faisalabad and were sentenced to death each by way of Tazir and were ordered to pay a sum of Rs.1,00,001 each to the heirs of Iftikhar alias Goga, Isma Ullah alias Sheri and Khalid deceased each of each count or in default of payment thereof to undergo simple imprisonment for six month; each on each count. Through the same judgment all the co-accused of these appellants were acquitted by the learned trial Court. The appellants have challenged their convictions and sentences before this Court through Criminal Appeal No.288 of 1999 whereas Mst.
Rasool Bibi complainant has challenged the acquittal of the appellants' co-- accused before this Court through Criminal Appeal No.427 of 1999. We have heard both these appeals together and we propose to decide the same together through the present consolidated judgment.
2. According to the prosecution's case Mst. Rasool Bibi complainant and her son-in---law namely Nayyar Mukhtar P.W as well as the complainant's son namely Iftikhar alias Goga alongwith Ismat Ullah alias Sheri and Khalid were traveling on three different motorcycles at 9-30 a,m. On 25-1-1996 in the area of Chak No.186/R.B., Police Station Chak Jhumra, District Faisalabad when suddenly the appellants and their co-accused emerged there with fire-arms. Ghulam Muhammad accused raised a Lalkara that the complainant party ought not to be spared. In the meanwhile Muhammad Nawaz alias Nawaza appellant fired a burst from his Kalashnikov which hit Iftikhar alias Goga, Ismat Ullah alias Sheri and Khalid and they fell down from their motorcycles whereafter the remaining appellants and their co-accused indiscriminately fired at the said three persons and then decamped from the spot while riding on two motorcars. All the three injured persons named above succumbed to their injuries at the spot. The motive for the said incident was stated to be a dispute about land and enmity based upon previous murders. The prosecution had maintained that the said murders had been committed by the appellants and their co-accused with the abetment of Ghulam Rasool and Muhammad Munir accused. Upon receipt of an information about the said occurrence the local police reached the place of occurrence and recorded a statement of Mst.
Rasool Bibi complainant in that regard on the basis of which subsequently F.I.R. No.31 was registered at Police Station, Chak Jhumra, District Faisalabad at 11-15 a.m. On the same day for offences under sections 148/302/149/ 109, P.P.C.
3. Muhammad Naseer, S.-I, (P.W.12) took up the investigation of this case at the spot and he prepared injury statements and inquest reports in respect of the dead bodies, dispatched the same for autopsy, secured blood-stained earth from three places, collected crime-empties from the spot, secured a motorcycle lying at the place of occurrence, prepared a rough site-plan of the spot and recorded the statements of witnesses present thereat.
4. Post-mortem examinations of the dead bodies of Iftikhar alias Goga, Ismat Ullah alias Sheri and Khalid deceased were conducted by Dr. Arshid Ali Cheema (P.W.1) on 25-1-1996. After post-mortem examinations of the dead bodies the last-worn clothes of the deceased were secured by the above-mentioned Investigating Officer. Subsequently the said officer arrested different accused persons and effected recoveries at their instance. He got a formal site-plan of the place of occurrence prepared by a Patwari. Some steps during the investigation of this case were also taken by Muhammad Khalid, Inspector (P.W.5). Upon completion of the investigation a Challan was submitted before the learned trial Court.
5. At the commencement of the trial a charge with four heads under section 148, P.P.C., and section 302/149, P.P.C. (three counts) was framed by the learned trial Court against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
6. During the trial the prosecution produced as many as twelve witnesses in support of its case against the appellants and their co-accused. Mst. Rasool Bibi complainant (P.W.8) and Nayyar Mukhtar (P.W.9) furnished the ocular account of the incident in question and also deposed about the motive. The medical evidence was provided by Dr. Arshid Ali Cheema (P.W.1). Muhammad Khalid, Inspector (P.W.5), Ijaz Hussain Bukhari, S.-I. (P.W.6) and Nayyar Mukhtar (P.W.9) deposed about the recoveries effected during the investigation of this case. Nasrullah (P.W.7) made a statement in respect of abetment provided to the appellants and their co-accused by Ghulam Muhammad and Ghulam Rasool accused. Muhammad Naseer, S.-I. (P.W.12) and Muhammad Khalid, Inspector (P.W.5) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
7. In their statements recorded under sections 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. In their statements all of them had maintained that they had been falsely implicated in this case and the eye-witnesses produced by the prosecution had been procured and planted after the occurrence. The appellants and their co-accused, however, neither made any statement on oath under section 340(2), Cr.P.C. Nor did they produce any witness in their defence.
8. At the conclusion of the trial the learned trial Court acquitted the appellants co-accused whereas the prosecution's case against the appellants was found to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeals before this Court.
9. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. In support of the convict's appeal the learned counsel for the appellants have argued that the eye-witnesses in this case were related, chance and inimical witnesses who had failed to advance any explanation whatsoever for their presence at the place of occurrence at the relevant time. They have also argued that the eye-witnesses produced by the prosecution had failed to receive any corroboration from any independent source. It has, thus, been maintained by them that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the complainant has also urged that the acquittal of the appellant's co-accused ought to be set aside and they should also be convicted and suitably sentenced by this Court.
10. After hearing the learned counsel for the parties and going through the record we have noticed that Mst. Rasool Bibi complainant is the mother of Iftikhar alias Goga deceased and Nayyar Mukhtar (P.W.9) is married to a sister of the said deceased and is, thus, a son-in-law of the complainant. It is admitted at all hands that both these witnesses lived many a mile away from the place of occurrence and they had failed to advance any explanation whatsoever either before the police or before the learned trial Court regarding their presence at the spot at the relevant time. It is also the prosecution's own case that the parties to this case were locked in a murder feud for the last about 20/25 years during which many persons from both the sides had lost their lives, including the husband of Mst. Rasool Bibi complainant (P.W.8) and the father-in-law of Nayyar Mukhtar (P.W.9) at the hands of the accused party of this case. It cannot, therefore, be controverted that both the eye-witnesses produced by the prosecution in this case were related and inimical witnesses who were also chance witnesses and had failed to advance any explanation for their presence at the place of occurrence. The law is quite settled that before placing a whole-hearted reliance upon the statements of such witnesses in a case involving a capital charge the Court should look for material corroboration of such statements from some independent sources which we have found to be lacking in the present case.
11. The motive pertaining to a landed dispute mentioned in the F.I.R. Had remained far from being proved before the learned trial Court as no detail of such a dispute was ever brought on the record of the learned trial Court. While appearing before the learned trial Court. Mst. Rasool Bibi complainant (P.W.8) could not refer to any particular, litigation between the parties over land.
Reliance upon the existence of a murder feud between the parties for the last about 20/25 years as corroboration has been found by us to be quite risky in the peculiar circumstances of this case as it is by now proverbial that motive is a double-edged weapon which can cut both ways. In the present case if presence of the above-mentioned chance witnesses is doubted by this Court then it can be visualized that the said witnesses could also have a motive to falsely implicate the appellants and their co-accused in an unwitnessed occurrence so as to get even with them in the on-going murder feud. We have, therefore, found it to be quite unsafe to look for corroboration to the ocular account from the motive set up in this case by the prosecution.
12. The alleged recovery of weapons from the appellants and their co-accused during the investigation of this case is clearly inconsequential as none of the recovered fire--arms could be wedded with the crime-empties recovered from the place of occurrence. Thus, the evidence regarding recoveries cannot provide corroboration to the ocular account in the present case.
13. The alleged absconsion of Muhammad Nawaz alias Nawaza appellant was not proved by the prosecution through any evidence whatsoever and, thus, no corroboration is forthcoming even on this score.
14. The prosecution's case regarding abetment and hatching of a conspiracy amongst the appellants and their co-accused was quite weak and the same had been discarded by the learned trial Court itself for good reasons and, therefore, even that aspect of the matter is of no avail to the prosecution.
15. Medical evidence, by its nature, cannot provide the requisite corroboration where needed as it cannot identify or point an accusing finger towards any particular person and at best it can only be termed as a supportive piece of evidence. In a case like the one in hand where the eye- witnesses produced by the prosecution are related, inimical and chance witnesses and where all the other corroboratory pieces of evidence are discarded by the Court or found to be unsafe to be relied upon their medical evidence loses even its supportive worth and the same can hardly provide a valid basis for recording or maintaining an accused person's conviction on a capital charge.
16. An interesting feature of this case is that there was practically no distinction available on the record between the roles allegedly played during the occurrence by Muhammad Khalid and Amjad Iqbal appellants and the roles attributed to their acquitted co-accused and the learned trial Court had convicted the above-mentioned appellants only because allegedly some weapons were recovered from their possession during the investigation of this case. That distinction has been found by us to be illusory, if not non-existent, because the weapons allegedly recovered from the said appellants never stood connected with the alleged offences. In these circumstances we have failed to understand as to how the said appellants could be convicted by the learned trial Court at a time when their co-accused attributed an identical role were being acquitted.
17. It is available on the record of this case that Iftikhar alias Goga deceased was involved in a number of criminal cases including those of murder and other serious offences registered at different Police Stations and, thus, he had many enemies scattered all over. The occurrence in this case had taken place far away from the normal abodes of the complainant party. Upon a careful evaluation of the evidence we have come to the conclusion that the eye-witnesses produced by the prosecution were, in all probability, not present at the place of occurrence at the relevant time and the three persons losing their lives in this case could well have been murdered by any other enemy of theirs at a place where the relatives of the said murdered persons would not be in a position to witness the occurrence. Reaching of the police at the spot on its own and recording of the first statement of Mst. Rasool Bibi complainant (P.W.8) by the police at the spot fortifies our impression that in all likelihood she and her son-in-law namely Nayyar Mukhtar (P.W.9) were not present at the scene of the crime when the same was perpetrated and that they were procured and planted in this case at a subsequent stage on account of their close relationship with one of the deceased. In such a situation these witnesses could conveniently falsely implicate their long standing enemies so as to get even with them in their on-going murder feud. In these circumstances we have found it to be unsafe to place a whole-hearted reliance upon the statements of such witnesses.
18. The upshot of the above discussion is that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As a result of this conclusion Criminal Appeal No.288 of 1999 filed by the appellants is allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. They shall be released from the jail forthwith if not required in any other case. As a necessary corollary to the discussion made above Criminal Appeal No.427 of 1999 filed by the complainant seeking setting aside of the acquittal of the respondents therein is hereby dismissed.