Ejaz Afzal Khan, J.--On the day of occurrence when complainant Suhail Saddiqie, since dead, Said Rasool, Iftikhar Ahmad Matta, P.Ws., Shabir Ahmad Biloor and Muhammad Khan deceased, reached a Female Polling Station housed in a Government Primary School for Girls Wazir Bagh, they besides finding Kamal Hussain, appellant in Cr. A. No, 176/99, hereinafter called the appellant, Qamar Abbas, Mad Ali and Noor Muhammad, respondents in Cr. A. No, 174/99, hereinafter called the acquitted co-accused, already present inside the Polling Station with their automatic weapons also found the polling having been stopped at their instance. The complainant and his co-horts as mentioned above, after taking strong exception to their presence and act of stopping polling in the female Polling Station came out. The appellant and his co-accused by immediately following them also came out and after having had an altercation with the latter fired at them with their respective weapons which resulted in death of Shabir Ahmad Biloor, Muhammad Khan and Amanullah Khan, S.H.O. Police Station Yakatoot and injuries on the persons of Hashmat, Jehanzeb, constables and one Nisar. One report of the incident a case under Sections 302/324/353/34 PPC. was registered against the appellant and his acquitted co-accused, vide FIR No, 278 dated 3.4.1997, Police Station Yakatoot.
2. On completion of investigation, the appellant and his co-accused were sent to the Court of the learned Judge Special Court for trial who on its conclusion sentenced the appellant to undergo imprisonment for life under Section 302(b) PPC. and to pay a compensation of Rs, 50,000/- to the legal heirs of deceased Amanullah Khan under Section 544-A Cr.P.C. and acquitted his co- accused vide his judgment dated 17.5.1999. Hence' this appeal whereas the State has preferred an appeal against the acquittal of the respondents and the complainant has filed Cr. Revision for encashment of sentence.
3. As all the three arise out of the same judgment, we would dispose them of through this single judgment.
4. The learned counsel appearing on behalf of, the appellant argued that Suhail Saddiqie who is the first informant in the case has neither leen produced in the Court because of his being dead nor the information furnished by him has been proved in accordance with the requirements of law, therefore, the FIR perse being no evidence in the eye of law cannot be taken into account. It was next argued that the presence of the P.Ws. at the crucial time is highly doubtful, therefore, no implicit reliance can be placed on their testimoney especially when the account furnished by them is in conflict with the medical evidence and no explanation muchless plausible has come forth in the prosecution evidence for their belated examination by the Police. The learned counsel next argued that when the injured witnesses who could be expected to give a fair and impartial account of the occurrence have been withheld without any convincing reason by the Prosecution, the only inescapable conclusion would be that they would have deposed against it if produced.
The learned counsel. by placing reliance on the case of Umar Hayat vs. The State (NLR 1995 SCJ 675) argued that where the ocular evidence has been disbelieved qua the acquitted co-accused, there was absolutely no justification for the conviction of the appellant in the absence of substantial corroboration by independent evidence. The learned counsel to support his contention also relied upon on the case of Abdul Khaliq Vs. The State (1996 SC 1553) and Muhammad Iqbal Vs. Abid Hussain alias Mithu etc. (NLR 1995 SCJ 104).
5. As against that, the learned counsel appearing on behalf of the complainant assisted by the learned State counsel argued that when there is considerable unanimity amongst the P.Ws. as to the material particulars of the occurrence including place, manner and cause of occurrence, the testimony furnished by them has to be relief upon vis-a-vis appellant as well as his acquitted co- accused, moreso when, their presence has been established on the record and even admitted by the appellant and his co-accused in their statements recorded under Section 342 Cr.P.C. With regard to the belated examination of the P.Ws. the learned counsel submitted that it has been plausibly explained by them as they after apprehending their arrest in the cross case registered at the instance of Qamar Abbas under Section 324/34 PPC. chose to be away for a week or so, therefore, no premium can be conceded to the appellant and his co-accused on this count. The learned counsel in this behalf placed reliance on the case of Qadir Bakhsh. Vs. The State (PLD 2002 Quetta 97). The learned counsel by referring to the case of Abdul Ghafoor. Vs. The State (2000 SCMR 919) argued that when the witness has no motive to falsely implicate the accused his testimony cannot be brushed aside so lightly when his presence at the scene of occurrence cannot be doubted. The learned counsel by placing reliance on the case of Ghaus Muhammad alias Ghausia and another Vs. The State (1979 SCMR 579) argued that notwithstanding the death of first informant, the FIR lodged at his instance can be used by prosecution for showing the names of the witnesses mentioned therein to have witnesses the occurrence. The learned counsel by referring to the case of Ghulamullah and another Vs. The State (1996 SCMR 1887) argued that the ocular testimony has to be given preference over the opinion of medical evidence which is based on conflicting opinion of Doctors. With regard to the acquitted co-accused the learned counsel by concluding his arguments argued that since common intention can be developed- at the spur of the moment, they can be saddled with criminal responsibility even though pre-concert or pre- meditation on their part is absent.
6. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
7. In view of the recital in the FIR and the statements of the accused recorded under Section 342 Cr.P.C. the presence of the P.Ws. near and around the scene of occurrence, cannot be doubted even for while but when seen in the light of the evidence recorded in the Court, their presence at the crucial moments appears to be highly doubtful. The statement of Said Rasool who is better known on the record as Faiz Rasool, Shabir Ahmad Biloor was hit when he and the accused were facing each other is belied by the medical evidence as according to the latter both the entry wounds are on such part of his back which cannot be termed as front by any stretch of imagination. Similarly the statement of Iftikhar Ahmad Matta according to which Shabir Ahmad Biloor and Muhammad Khan were fired at from the front side, runs counter to the medical evidence as in both the cases the entry wounds are on their back rather than front.
8. The ocular account furnished by these two P.Ws. is also not worth credence with regard to the death of Amanullah Khan, S.H.O. as the dimension of the wound found on his dead body which according to the post-mortem report is 3 cm x 2 cm appears to be one of re-entry rather than entry for two reasons : (i) it has no exit in spite of the fact that he was fired at from a distance of 9 paces and (ii) no other entry wound on the dead bodies of the other deceased has such dimension notwithstanding that they too were caused by Kalashnikovs. Therefore, we have no hesitation to hold that even this part of the occurrence also wen un-witnesses and thus no reliance altogether muchless implicit can be placed on the testimony of these P.Ws.
9. In the case of Abdul Khaliq Vs. The State (Supra), the Hon'ble Supreme Court reversed the concurrent findings of the Courts below when the ocular account in almost similar situation was found at variance with medical evidence. The relevant paragraph of the judgment may thus be referred which reads as under:-- "These injuries show that the victim was fired at from front and not from behind, as witnesses Muhammad Shah and Abdul Jabbar would like the Court to believe. Such conflict between the ocular evidence and medical evidence cannot be called a simple variance and ignored. In the case of Mardan 'Ali v. Gulistan and others (1980 SCMR, 889) it was observed that ocular evidence as to the time of the occurrence cannot be accepted to an extent inconsistent with medical evidence. In the case of Saindad and others v. The State (1972 SCMR 74) the accused was acquitted on the ground of medical evidence being inconsistent with account of the occurrence as given by eye-witnesses. In the case of Saeedullah Khan v. The State (1986 SCMR 1027) cited on behalf of the State, the conflict between the medical evidence and the ocular evidence was not as such, as in the instant case."
10. How P.W. Iftikhar Matta happened to be on the scene of occurrence when he was admittedly a resident of another village may unravel yet another mystery but the fact that he accompanied the complainant party on the eventful day to a place far off from his village for visiting Polling Stations would inexorably suggest his partial and partisan character as a P.Ws., hence it will not be safe to rely on his testimony in an occurrence of this type unless it is substantially corroborated by independent and impartial sources.
11. The status of P.W. Faiz Rasool is rather worse as compared to the former. P.W. when admittedly he is a servant of the father of the deceased for the last 10/11 years and as such being more partizan cannot be expected to give an in dependent and impartial account of the occurrence, quite apart from the fact that the testimony furnished- by him is also in conflict with the medical evidence.
12. How and why these two P.Ws. chose to be away from the Investigating Agency for 7/8 days and even more is also not understandable. Though in their attempt to explain it they sought refuse in their supposed apprehension by the Police in a case registered against them at the instance of Qamar Abbas under Section 324 PPC. but this explanation, to say the least, is not plausible on any count as they were not charged in the case mentioned above during the relevant days. Even if it be so their evidence in a tripple murder case was more important than their apprehension in a case registered against them under Section 324 PPC. Their escapist attitude over and above their failure to give a prompt version of the incident beside giving rise to the inference that the account furnished by them is fabricated, will also suggest that they too one way or the other contributed to the tragedy resulting in death of the three and injuries to many.
13. Why the .witnesses bearing the stamps of injuries on their persons were with-held is again a question awaiting answer with much greater impatience and intensity. In an ordinary case their non-production could have been ignored but in view of the partisan character of the examined P.Ws. their belated examination by the Police, and a glaring inconsistency between the ocular account furnished by them and the medical evidence, their production was all the more essential rather indispensable to prove the charges against the appellant and the acquitted co-accused beyond doubt. It is here that the law of evidence would call for drawing adverse inference against such non-production.
14. The empty handed arrest of Qamar Abbas and Asad Ali in a state of their being injured and the arrest of Noor Muhammad with a rifle of .223 bore wherefrom not even a single empty recovered from the spot was found to have been fired would further mystify nay .deepen the mystery about the manner of the occurrence when despite admission about their injured state, no explanation whatever has been given by the prosecution therefore.
15. The argument addressed by the learned counsel for the respondents on the strength of Ghulamullah vs The State (Supra) has no relevance to the case in hand as in this case neither the medical evidence is on the brim of possibility nor it is based on conflicting opinions of the Doctors.
16. The positive report of the Ballistic expert showing that the bullet recovered from the dead-body of one of the deceased was fired from the Kalashnikov recovered from the possession of the appellant on the spot at the time of his arrest will not in any way improve the case of prosecution firstly because it appears to have been dispatched to the expert twice with two different seals, secondly because the failure on the part of the Investigation Agency to have sent it to the serologist to ascertain whether it was stained with blood of human origin and of the same group will not establish that it was in fact recovered from the dead-body of one of the deceased and 3rdly because the evidence of the expert even if accepted without much questioning about it can at the most be taken as corroborative and not evidence of the charge that two when the presence of the P.Ws. had been held to be doubtful at the crucial moments of the occurrence.
17. From whatever angle the prosecution evidence is looked at, it does not inspire confidence and as such the charges against any appellant and his co-accused cannot be held to have been proved beyond any shadow of reasonable doubt. The judgments cited at the bar by the learned counsel for the respondents because of different and distinguishable facts and circumstances have, therefore, no perceptible relevance to the case in hand.
18. For the reasons discussed above, this appeal is allowed, the impugned conviction and sentence recorded by the learned trial Judge are set aside and the appellant is acquitted of the charges. He be set free forthwith if not required in any other case. The appeal filed by the State against the acquittal is dismissed. However, the revision filed by the complainant besides being incompetent in view of the provisions contained in Section 7(1) of the STA is also dismissed for the same reasons.