Iftikhar Muhammad Chaudhry, J.--This appeal by leave of the Court is directed against the judgment dated 7th June 1994 whereby Respondents (1-3) have been acquitted of the charge.
2. Precisely stating the facts of the case are that vide FIR No, 170 dated 16.5.1990 (Exb.PF) lodged by Dildar Hussain-appellant complainant registered with Police Station Jalalpur Jattan, Gujrat, wherein it was alleged that on the fateful day complainant alongwith his brother Akhtar Mahmood deceased went to their plot located in the area of village Nathowal for its partition. Muhammad Azam (PW-8), Basharat and Fazal Elahi PWs (not produced) also accompanied them. Akhtar Mahmood deceased at that time was standing in the east north corner of the plot and his other companions were busy in the partition proceedings of the plot. At about 9.00 a.m., a white coloured car arrived there from the north side and Afzaal alias Chaala Respondent No, 1 armed with Kalashnikove, Yahya Bakhtiar Respondent No, 3 armed with Kalashnikove, Riasat Ali (absconder), Dilawar, Khizar Hayat and Raham Dad (acquitted accused) alighted from it. Raham Dad accused raised a `Lalkara' saying that Akhtar Mahmood should not let go alive. On this Afzaal alias Chaala accused fired from his Kalashnikove at Akhtar Mahmood deceased hitting the left side of his head.
Second shot was fired by Yahya Bakhtiar accused with Kalashnikove hitting Akhtar Mahmood deceased in the left cheek. On this Akhtar Mahmood turned back as such Afzaal alias Chaala fired another shot at Akhtar Mahmood hitting on the back of his left shoulder due to which he fell down.
Riasat Ali (absconder) fired with his rifle at Akhtar Malimood deceased hitting the front of his chest.
Dilawar accused fired with his rifle at Akhtar Mahmood hitting on the front of his neck. Khizar's shot hit Akhtar Mahmood on the right eye. Raham Dad accused fired with his rifle which hit Akhtar Mahmood deceased on the front of his chest, left side. Thereafter all the six accused showered the bullets at Akhtar Mahmood who succumbed to injuries at the spot instantaneously. In the meantime, Mazhar Hussain ASI/IO of Police Station Jalalpur Jattan on receiving information of the incident reached there and recorded the statement of Dildar Hussain (Exb.PF/1) and sent it for the registration of the case. On reaching at the spot he collected blood-stained earth from the scene of occurrence vide memo (Exb.P.C). Site-plan (Exb. PJ) was also prepared. He also recorded the statements of eye-witnesses and recovery witnesses.
3. It is to be noted that no crime empties were recovered from the place of incident However, on 2nd June 1990 he arrested respondents Yahya Bakhtiar and Afzaal. It is also to be noted that respondent Khizar Hayat was arrested on 25th July 1990. Motive for the commission of the crime as disclosed in the FIR was that 8/9 years ago one Nisar Ahmad alias Nasir son of Feroze Ali caste Gujar r/o Saabowal Police Station Saddar Gujrat who was the cousin of the husband of the sister of Akhtar Mahmood was done to death by Muhammad Akram son of Raham Dad and four others. In that case Muhammad Akram son of Raham Dad and Nemat Ali, a real brother of Riasat Ali absconder were sentenced to death and executed. Statedly due to that grievance, respondents alongwith co-accused committed the murder of Akhtar Mahmood in furtherance of their common intention. The respondents and others during trial pleaded not guilty to the charge read over to them by the Judge Special Court (Suppression of Terrorist Activities) Gujranwala Division, Gujranwala, therefore, prosecution to substantiate accusation against them examined as many as thirteen witnesses including PWs Dildar Hussain and Muhammad Azam as eye-witnesses.
Thereafter respondents alongwith co-accused were examined under Section 342 Cr.P.C. They denied the prosecution case and pleaded innocence. They did not opt to enter into witness-box as their own witnesses in terms of Section 340(2) Cr.P.C. Learned trial Court by means of judgment dated 22nd September 1992 acquitted Dilawar Hussain and Raham Dad. Reasons prevailed upon the Court for acquitting them read as under thus: "31. It is a general tendency in our society and particularly in the rural areas to throw the net in the wider manner to involve some innocent persons in the case alongwith the real culprits.
Unfortunately I have observed the existence of this tradition in this case as well. Rahmdad accused is an old man of 80 years age. His one son Muhammad Akram was executed in Nasar's case and his two sons were done to death in 1984 in an alleged police encounter. In other words before this occurrence he had already seen the agony, mental torture and the misery of the loss of this three sons. In such circumstances it is too much to expect this accused to put the lives of his remaining two young sons Khizar Hayat and Afzaal accused at stake. He could not naturally go to the extent of elimination of his entire progeny. Had he the knowledge of the intention of his present sons he would have certainly preferred to stand in their way to avoid the dire consequences. His participation in the crime as alleged by the prosecution is not logical. The other aspect of his case is that he is too old to take part in this felony. I have seen him physically and found him an old infirm person, who could not be in a position to hold the rifle and participate in the crime. He has been involved, perhaps to deprive the accused of fatherly support. It has become a trend not to leave any male member of the family of accused behind to obstruct the course of pursuing the case.
32. As far as Dilawar accused is concerned, I find no reason for him to indulge into this incident or to side with the accused. He has got no concern whatsoever with the episode, which happened in 1984 i,e, the police encounter mentioned above. He was not a party in that incident nor any of his relatives. I have already discarded the motive advanced by the prosecution referring Nasar's murder case. In that case, of course, his brother Amanat was executed. But Akhtar Mehmood deceased of this case was not responsible for any event of that case. In this view of the matter, Dilawar could have no grouse against Akhtar Mehmood deceased. On the other hand, he is related with accused Raham Dad distantly. He could not be so insane, in these circumstances, to become a party in this ferocity and brutality. There was no cause for him to plunge himself in this bloody carnage. No sane person can be expected to involve himself unnecessarily in such like a heinous crime. To my mind, he has been roped in simply for the reason that he is the brother of Riasat P.O.
The conclusion of Investigating Agencies regarding the innocence of these two accused, seems to be tangible."
4. As far as respondents are concerned they were convicted/ sentenced as follows: 1.Muhammad AfzaalU/S. 302/34 PPCSentenced to death with fine of Rs, 25,000/- or in default whereof to undergo R.I. for one year, with direction to pay Rs, 50,000/. as compensation to the legal heirs of deceased.
Khizar HayatU/S. 302/34 PPCSentenced to death with fine of
2. Rs, 25,000/- or in default whereof to undergo R.I. for one year, with direction to pay Rs, 50,000/- as compensation to the legal heirs of deceased.
3.Yahya Bakhtiar U/S. 302/34 PPCSentenced to imprisonment for life with fine of Rs, 25,000/- or in default whereof to undergo R.I. for one year, with direction to pay Rs, 50,000/- as compen- sation to the legal heirs of deceased.
5. Against the above judgment respondents preferred appeal before the High Court which has been accepted vide impugned judgment as such instant appeal by leave of the Court has been filed.
6. It is to be noted that despite of issuing process time and again for enforcing the attendance of respondents, they could not be arrested, except Yahya Bakhtiar who has been ordered to be kept in custody by means of order dated 12th January 2004. As far as respondents Muhammad Afzaal and Khizar Hayat are concerned there is no likelihood of their arrest in near future as per the reports which have been submitted by the process serving agencies, therefore, instead of delaying the disposal of instant appeal particularly in view of the fact that respondent Yahya Bakhtiar is in custody we have decided to proceed with the case to his extent. The file will be kept in dormant against rest of the respondents i,e, Muhammad Afzaal and Khizar Hayat and their perpetual warrants of arrest shall be issued.
7. Learned counsel appearing for appellant contended that acquittal of respondents in presence of the ocular statement of PWs-7 and 8 i,e, Dildar Hussain and Muhammad Azam is unwarranted and uncalled for as according to him they had fully implicated all the respondents in the commission of the offence. He further stated that both the witnesses have furnished independent corroboration to the statement of each other. Besides it as far as PW-Muhammad Azam is concerned he is an independent person and has no motive to falsely involve the respondents in the commission of the offence, therefore, the learned High Court ought not to have acquitted them of the charge.
8. Mr. Muhammad Zaman Bhatti, learned counsel appearing on behalf of the State supported the contentions raised by the appellant's counsel.
9. Learned counsel appearing for Respondent No, 3, however, vehemently contended that the statements of PWs Dildar Hussain and Muhammad Azam, eye-witnesses, have not been believed to the extent of Dilawar Hussain and Raham Dad accused who have been acquitted of the charge, therefore, their statements cannot be believed against the respondents. According to him there is deep rooted enmity between the respondents and the deceased party as such the evidence of PWs Dildar Hussain and Muhammad Azam who were interested in the prosecution of the case and as they have got ulterior motive against the accused/ respondents, therefore, they have rightly been disbelieved by the High Court against all the respondents. It is also contended by him that if at all the Court following the principle enshrined in the maxim "falsus in uno falsus in omnibus" intends to believe their evidence then there must be some independent corroboration which according to him is lacking in the instant case.
10. We have heard parties counsel and have also gone through the impugned judgment as well as the available record carefully with the help of learned counsel for the parties. It is to be noted that as far as Dilawar Hussain and Raham Dad are concerned they were acquitted by the trial Court and no appeal was filed challenging the said order to that extent, therefore, question for consideration would be "when the statements of PWs Dildar Hussain and Muhammad Azam against two acquitted accused persons are disbelieved, whether their evidence can be accepted against the remaining accused persons?" It may be noted that as far as accused Dilawar Hussain and Raham Dad are concerned learned trial Court had not acquitted them of the charge disbelieving the statements of PWs Dildar Hussain and Muhammad Azam but for extraneous reasons noted supra. Now in view of such situation it can safely be held that the statements of PWs Dildar Hussain and Muhammad Azam had not been disbelieved or discarded qua Dilawar Hussain and Raham Dad accused. Undoubtedly there is a deep rooted enmity between the parties as it has come on record, therefore, the statements of PWs Dildar Hussain and Muhammad Azam could be accepted after close scrutiny and getting them confirmed through strong corroborative evidence available on record on material points. It is true that PW-Dildar Hussain is real brother of Akhtar Mahmood and against him it is alleged that he was not present at the place of incident otherwise the accused persons who had no sympathy with him would have also caused his death as well rather than enabling him to furnish ocular testimony against them. It is an admitted fact that no empty has been recovered from the place of incident nor there is any evidence sufficient to furnish corroboration to the statements of both the PWs i,e, Dildar Hussain and Muhammad Azam. As far as motive to commit a crime is concerned, it has not been attributed to Yahya Bakhtiar for the commission of the murder of Akhtar Mahmood. As far as the medical evidence is concerned, it is always treated to be in the nature of confirmatory and it does not identify the accused involved in the commission of offence, in view of the law laid down by this Court in the case of The State v.
Muhammad Sharif and three others (1995 SCM R 635), wherein it has been held that medical evidence is normally used for confirmation of ocular testimony but only to the extent of nature and number of injuries but not co-accused. This principle has been reiterated in the cases of Mahmood Ahmed v. The State (1995 SCM R 127) and Muhammad Sharif v. The State (1997 SCM R 866).
11.Thus for sake of safe administration of justice, if the statement of PW-Dildar Hussain is kept out of consideration qua respondent Yahya Bakhtiar then the prosecution is left only with the evidence of PWMuhammad Azam. Learned counsel appearing for Respondent No, 3 contended that as far as this witness is concerned, he is also related to the complainant party as it has been admitted by PW-Dildar Hussain in his cross-examination. We inquired from him as to whether such question was put to him, his answer was in negative. It may be noted that firstly mere relationship with the complainant party is not sufficient to discard evidence unless it is proved that he has ulterior motive to involve the Respondent No, 3 in the commission of the offence; and secondly when Muhammad Azam was examined as an eye-witness, during cross-examination, no such question was put to him with regard to his relationship with the complainant party neither it has been proved on record that on account of such relationship, he has deposed with ulterior motive against the accused persons. Careful close scrutiny of the evidence produced by PW-Muhammad Azam, persuades us to hold that he has fully supported the prosecution case qua accused Yahya Bakhtiar. The deposition furnished by him in examination-in-chief has not been shaken in the cross-examination as well, therefore, we are inclined to hold that in view of the facts and circumstances of the case solitary deposition of PW-Muhammad Azam had furnished trustworthy incriminating evidence against Yahya Bakhtiar (Respondent No, 3). Thus following the principle that in criminal cases it is the quality and not the quantity of the evidence, which settles the guilt or innocence of accused, we accept his evidence. In this behalf we are fortified by the judgment reported as Allah Bakhsh v. Shammi (PLD 1980 SC 225), wherein it has been held that conviction can be based on the testimony of a single 13 witness, if the Court is satisfied that he is reliable.
Therefore, the evidence furnished by PW-Muhammad Azam can safely be relied upon for the purpose of recording conviction against respondent Yahya Bakhtiar.
12.It is to be noted that learned High Court had not taken into consideration the statement of PW- Muhammad Azam from this angle, therefore, acquittal order warrants interference by this Court, as an important piece of evidence was ignored by the learned High Court. In forming this opinion we are fortified by the judgment in the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).
13. Thus for the foregoing reasons, appeal is allowed against Respondent No, 3 i,e, Yahya Bakhtiar, as a result whereof impugned judgment to his extent is set aside and the judgment of the trial Court dated 22nd September 1992 is restored and he is directed to undergo imprisonment for life with fine of Rs, 25,000/. or in default whereof to undergo R.I. for one year, with direction to pay Rs, 50,000/- as compensation to the legal heirs of deceased. Benefit of Section 328(b) is also extended to him.
14. As far as Respondents 1 and 2 are concerned, their perpetual non-bailable warrants, executable by the Sessions Judge Gujrat, be issued and till their arrest, file be kept in dormant.