MUHAMMAD BANARAS vs THE STATE

' RASHID AZIZ KHAN, J.---Facts leading to the filing of this appeal, with the leave of this Court vide order dated 8-5-2000, are that appellant Muhammad Banaras, alongwith Sher Afzal and Rab Nawaz, was reported against with Police Station Chontra, District Rawalpindi for the murder of Muhammad Azad. The case was got registered by Muhammad Mushtaq, son of the deceased, with the allegation that on 11-11-1988 at about 11-30 a.m. The first informant, alongwith his real brother Muhammad Arif and step-mother Mst. Sardar Begum, came out of their house to bid farewell to his father who was going to Islamabad to join his duty. They parted near the lands of one Muhammard Sarwar. The deceased had hardly covered 75 yards when appellant Muhammad Banaras, along his co-accused Sher Afzal and Rab Nawaz, armed with .12 bore gun emerged and simultaneously all of them started firing on Muhammad Azad who was hit by the fires of above said 3 assailants and died at the spot. Thereafter, the assailants decamped with their respective weapons. Motive for the occurrence was that many years earlier one Saudagar Khan, maternal grandfather of the appellant and paternal grandfather of his co-accused, was murdered by Muhammad Azad.

Muhammad Azad was sentenced to imprisonment for life but on appeal he was allowed bail, therefore, the present case.

2. After usual investigation, challan was submitted in Court. It came up for hearing before Additional Sessions Judge, Rawalpindi, who vide his judgment dated 26-3-1991 convicted and sentenced each of the accused to imprisonment for life with fine of Rs,10,000 or in default, 2 years'

R.I. The convicts appealed. A learned Judge of Lahore High Court, Rawalpindi Bench, vide his judgment dated 2-12-1999, extended benefit of doubt and acquitted Sher Afzal and Rab Nawa.z.

The appeal to the extent of Muhammad Banaras appellant was, however, dismissed and his conviction was maintained.

3. The prosecution in support of its case had mainly relied upon ocular account furnished by Muhammad Mushtaq, Muhammad Arif and Mst. Saudagar Begum P.Ws. 3, 4 and 5 sons and widow of the deceased respectively. Corroboration to the testimony of the eye-witnesses was sought from medical evidence as well as recovery of fire-arms at the instance of Muhammad Banaras appellant and the evidence of motive.

4. It was contended by the learned counsel for the appellant that the eye-witnesses have since been disbelieved as far participation of Sher Afzal and Rab Nawaz, co-accused of the appellant, is concerned, therefore, they could not be relied upon qua the appellant. Argued that the motive also could not be of any use to the prosecution because it was directed against each of the accused and not particularly the appellant. The contentions were opposed by the learned counsel for the State. We have heard both sides at length and gone through the file with their assistance.

5. Motive in the instant case was that one Saudagar Khan, maternal. Grandfather of appellant Muhammad Banaras and paternal grandfather of Sher Afzal and Rab Nawaz, was murdered by Muhammad Azad who was convicted for the said murder. His appeal was pending before the High Court and he was released on bail. We have noticed that this motive is- equally available to all the accused. It cannot be said that it was only directed against Muhammad Banaras appellant. If the motive qua Sher Afzal and Rab Nawaz has not been relied upon, it would be very difficult, in the absence of any other evidence, to use it as corroboration against Muhammad Banaras appellant.

The recovery of fire-arms at the instance of appellant and recovery of empties from the spot, are of no use to the prosecution at all. As a matter of fact, it belied the prosecution version on account of report of ballistic expert which was negative.

6. The ocular account was furnished by Muhammad Mushtaq, Muhammad Arif and Mst. Sardaran Begum, sons and widow of the deceased. We are not inclined to accept the contention of the learned counsel for the appellant that the eye-witnesses may not be relied upon because of their relationship with the deceased. A close relation of the deceased can also be a truthful witness and worth reliance. It would depend upon circumstances of each case. The consistent story of all the eye-witnesses was that appellant Muhammad Banaras and acquitted accused Sher Afzal and Rab Nawaz while armed with guns came and started firing. Resultantly, Muhammad Azad was injured on account of the firing of said 3 accused and died at the spot. The statement of eye-witnesses as far Sher Afzal and Rab Nawaz accused are concerned, has not been relied upon as both the accused were acquitted. In other Words, the eye-witnesses stand belied as far participation of Sher Afzal and Rab Nawaz is concerned. In absence of a very strong corroboration, it would not be possible to rely upon testimony of those eye-witnesses who stand belied qua the participation of other accused. In the instant case, as discussed above, recovery of gun at the instance of Muhammad Banaras appellant could not be connected with the occurrence as empties recovered from the spot did not match with the said gun. It is also not the case of prosecution that Muhammad Banaras alone had fired. In such-like cases, the credibility of a witness cannot be divisible.

7. In view of the above discussion, we are of the view that prosecution has not been able to establish its case beyond reasonable doubt against the appellant, therefore, we accept this appeal, set aside his conviction and sentence and direct that Muhammad Banaras, appellant be released forthwith if not required in any other case.