This Criminal Revision filed by five petitioners is directed against the judgment of the Sessions Judge, Rawalpindi, dated the 7th of September 19b7, by which he maintained their conviction under sections 148, 307/ 149, P. P. C. Recorded by the learned trial Magistrate with a concurrent award of one year and three years' R.
1. Respectively. They were also sentenced to a fine of Rs. 100 each under the second count or in default to undergo further four months' R:
1. Each. The appeal of the petitioners four co-accused who were similarly convicted was accepted giving them the benefit of doubt by the learned Sessions Judge.
2. The background of the case is that in the year 1965 one Banaras, a brother of Sabir, was allegedly murdered in village Soti-di-Pari, Police Station Bhara Kahu, District Rawal--pindi, to which the parties belong. Sher Ahmad, father of Mahboob Khan complainant in the instant case, his two brothers Muhammad Akhtar and Muhammad Ashmf and his uncle Faiz Ahmed were sent up by the police on charge of murder. The case was till pending inquiry when on the night between the 12th and the 13th of September 1965 the five petitioners along with four acquitted co-accused allegedly trespassed into the courtyard of the house of complainant Mahboob Khan P. W.
1. It was a moon-fit night corresponding to the 15th of the lunar month when the time of sun set was 6-16 p. m. And that of moon rise 7-23 p. m. Having been awakened by the barking of a dog, the inmates suddenly found all the nine accused including the five petitioners present inside the court--yard. Out of the four acquitted co-accused Muhammad Khan and Faqir Khan wielded sticks while Abad Khan and Muhammad jar had hatchets with them. Significantly enough none of the injured persons was found to sustain any stick or hatchets injury which, inter alia, led to their acquittal. Yaqoob and Mir Afsar petitioners were allegedly armed with guns while the remaining three had pistols. Besides Mahboob Khan complainant, Mst.-Rifaqat Jan P. W. 2, wife of his brother Muhammad Ashraf iris sister Mst. Venus Jan,. P. W. 3, his brothers Muhammad Safdar who did not enter the witness-box and Nazarat Ali P. W. 5 lay asleep at the relevant time. Petitioners Yaqoob and Mir Afsar who were armed with guns allegedly ascended the roof of the house and started firing with their guns, and challenging that any body who dared come near would be shot dead. To start with Mir Afsar abused Safdar, aimed his pistol at him and then shot at him which hit instead Mst. Rifaqat Jan P. W.
2 in the neck on her sudden intervention. Sparas petitioner then fired at Safdar hitting him in the left leg. A pistol shot was fired at Sabir petitioner hitting Mst. Venus Jan P. W. 3 in the left arm. Yaqoob and Mir Afsar kept on firing in, the air to keep away any possible rescuer. The alarm raised by the inmates attracted (to the scene of occurrence) Samundar P. W. 4, LalP. W. 6 and Mst. Barkat Jan P.
W. 9 mother-in-law of Mahboob Khan complainant. She did not however support the prosecution at the trial and was declared hostile. Having thus injured Mst. Rifaqat Jan P. W. 2, Venus Jan P. N. 3 and Safdar, the accused ran away. On the following morning at 9 a. m. a report was lodged at Bhara Kahu Police Station by Mahboob Khan complainant at a distance of twelve miles from the village. It might be observed that before lodging the report the complainant took the injured persons to the Civil Dispensary. Zafarwal where they were examined by Dr. Muhammad Azha.r P. W.
8. Vide medico-legal report Exh. P. W. 8/1, Mst. Rifaqat Bibi was found to sustain two lacerated wounds of entrance and exit each -- " in diameter on the neck, one on the left side while the other on the back. Similarly vide medico-legal report P.W. 8/2 Safdar had two lacerated wounds of entrance and exit on the left thigh. Vide M. L. R. P. W. 8/3 Mst. Venus Jan was found to sustain 3 lacerated wound -- " in diameter on the forearm lower part on the medial side. All the injuries were caused with Fire Arms and were found to be simple except the one, sustained by Mst. Venus Jan which was declared grievous on the basis ofX-ray report.
3. The case was investigated by A. S. I. Murid Ahmad Shah who had recorded the F. I. R. Exh. P. A.
After recording the F. I. R. Exh. P A. Murid Ahmad Shah A. S. I. Himself repaired to the place of occurrence. He took into possession shalwar, shirt and chaddar of Sadar vide memo. Exh. P. B.
Produced by his brother Mahboob complainant. He also recovered two pieces of led Exhs. P. 3 and P. 4 from the courtyard. Vide Robkars Exits. P. C., P. D. And P. E. Addressed to the Medical Officer, he enquired whether Safdar, Venus Jan and Rifaqar Jan were in a fit condition to make statements, which were all replied in the affirmative. He prepared site plan Exh. P. F and took into possession blood-stained shirt of Mst. Rifaqat Jan vide memo. Exh. P. W. 7/1. He arrested all the nine accused and sent them up to face the trial. No recoveries of the weapons of offence including the guns or pistols were effected.
4. At the trial all the accused including the petitioners pleaded not guilty to ` the charge. Yaqoob, Mir Afsar and Sabir petitioners raised a plea of alibi and produced evidence in defence in support of the same. Muhammad Azam D. W. 1, a B. D. Member of village Chajiana and also a Depot Holder, stated that on 12-9-1965 at about 5-00 p. m. Mir Afsar petitioner along with one Fateh Khan visited him .And spent the night with him. On the next morning he accompanied them to Rawalpindi to get their quota of wheat-flour divided which was the object of their visit to him. He could not produce any record and was disbelieved. Mst. Rifaqat Jan P. W. Was also re-examined in defence. Even as aprosecution witness she gave the number of the accused as three were allegedly armed with pistols. Mir Afsar petitioner abused Safdar in the first instance and then aimed his pistol at him hitting her instead she having intervened with the result that she fell down and became unconscious. Obviously her testimony did not fit in with the prosecution version. While re-examined in defence she went even further and deposed that the sky was over-cast and the moon could be visible only occasionally. What was still worse for the prosecution was that according to her the accused had muffled their faces. Sajawal Khan D. W. 2, a Lambardar and Member of the Union Council, stated that at the relevant time he went to the house of Yaqoob petitioner at his request to mediate between him and Mir Afsar in a dispute over the repayment of some loan. The latter was also called and the matter was settled. Since it had become very late, he and Mir Afsar spent the night at the house of Yaqoob. He was further supported in this by Muhammad Aslam D. W.
3. The last witness-who supported the defence version was Subedar Mansabdar Khan, Head Security Officer, Nilore Factory, Rawalpindi. The object of his statement was to support the plea of alibi of Sabir petitioner who had stated that, at the relevant time he was employed as a Chowkidar in the aforesaid factory and had remained on duty from 9 p.m. On 12-9-1965 till 5 a.m. On 13-9-1965. The witness produced an attendance register of the Chowkidar of the factory. The entries were made in the hands of Shift-Commander Muhammad Amin, who was not summoned in defence.
5. As would be clear from the foregoing narration, the prosecution version did not receive full support from any 9f the three injured witnesses namely Mst. Rifaqat Jan P. W. 2, Asst. Venus Jan P.
W. 3 and Safdar who did not enter the witness --box. Even Mst. Barkat Jan P. W. 9 mother-in-law of the complainant, stated nothing incriminating against the petitioners and was declared hostile.
Except two pieces of lead recovered from the spot and the blood-stained clothes of the injured persons no other recoveries were made. The statement of Mst. Rifaqat Jan and Mst. Venus Jan coupled with the non-appearance of a material witness like Safdar the real brother of the complainant obviously causing serious prejudice to the prosecution case. Although nothing specifically has been brought on the record in this regard yet the conduct of the aforesaid witnesses clearly indicates that they had softened their attitude towards the accused persons presumable on account of some compromise that might have been erected between the parties in this as well as the previous murder case which was still pending.
6. Placing full reliance on the testimony of the other P. Ws. Supported by medical evidence and the existence of a strong motive, the learned trial Magistrate came to the conclusion that the offence had been fully brought home to the nine accused who faced the trial'. Four of them however were acquitted in appeal by the learned Sessions Judge who maintained the conviction and sentences of the five petitioners giving rise to the present Criminal revision.
7. Learned counsel for the petitioners raised the following contentions, before me :-
(1) That the prosecution versions suffered from basic falsities and inherent improbabilities inasmuch as if nine persons had come to wreak vengeance of murder at the mid of night taking the inmates unaware in the midst of their sleep, much more serious consequences would have followed whereas only three persons were injured as a result of the shots fired by the assailants.
(2) That the failure of Mst. Rifaqat Jan P. W. 2 and Mst. Venus Jan P. W. 3 to give full support to the prosecution version coupled with the conspicuous non-appearance ofthe third injured P. W.
Namely Safdar, the brother of the complainant, had caused irreparable damage to the prosecution version by picking serious holes in it and' thus making it extremely doubtful.
(3) That although three shots in all were allegedly fired one each by Sparas, Mir Afsar and Sabir who were armed with pistols yet only two pieces of lead were recovered from the spot which could not exclude the possibility of their having been fired by one person in rapid succession.
(4) That in view of the fact that it was a case of mid-night occurrence, the possibility of mistaken identity could not be completely ruled out.
(5) That admittedly the prosecution evidence in the case forming the basis of the petitioners' conviction was of partisan nature which needed independent corroboration, which was not forthcoming.
(6) That the petitioners' conviction has been maintained in complete disregard of the principle of indivisibility of the credibility of witnesses.
8. The first contention is not without force. The motive of the alleged assault as attributed to the petitioners was that they wanted to wreak vengeance of the murder of Banaras, a brother of Sabir petitioner. Obviously if nine persons had gone fully armed of whom five wielded fire-arms with that object in view without having met any resistance whatever, they would have caused many more serious injuries which could possibly have resulted in death. It is again significant that none of the acquitted accused namely Muhammad Khan and Faqir Khan who Khan and Muhammad Zar who were caused any injury to any body and appear remained just passive spectators. Sparas, Mir Afsar and Sabir petitioners who wielded pistols stopped short at firing one shot each. From all this one cannot avoid an impression that the prosecution version is not entirely free from doubt inasmuch as the possibility of some innocent persons having been roped in cannot be safely ruled out.
9. As regards the next contention namely the failure of Mst. Rifaqat Jan P. W. 2 and Venus Jan P. W.
3 to give full support to the prosecution version, coupled with the non--appearance of Safdar, the third injured P. W. Who was none else than thebrother of Mahboob Khan complainant it may be observ--ed that the damage done to the prosecution version on this point is undisputedly considerable. As already stated in the earlier part of the judgment, there are clear indication to the effect that the P. Ws. Had softened their attitude towards the petitioners presumably on account of some compromise having been effected between the parties in both the cases. Although there is no direct evidence available on the record in this regard yet the impression is unavoidable. In ,view of the deliberate soft paddling of the two injured ladies, it. Can safely be presumed that the non- production of Safdar who had also gun-shot injury on his person was not on account of any difficulty in procuring his attendance but was the result of deliberate and intentional evasion on his part and in all probability, if produced, he would also have followed the suit. In this view of the matter, his non-production would certainly give rise to an adverse presumption and 1 find it difficult to agree with the observation made by the learned Sessions 'Judge that he being a real brother of the complainant "was expected to lend full support to the case of the prosecution". In cases like this where the Court comes to the conclusion that a deliberate attempt is being made by the P. Ws. To distort or suppress the real facts, the entire evidence on the record has got to be very carefully sifted to arrive at a correct conclusion.
10. As regards the next contention that only two .Pieces of lead were recovered from the spot which could not exclude the possibility of having been fired by one person in rapid succession, it may be observed that a reference to the recovery memo. Exh. P. W. 4/1 would clearly indicate that the pieces of lead were of unequal size and as such in all probability were fired from two different weapons. But the number of assailants cannot be pinned down to the number of lead shots recovered from the spot in utter disregard of ocular evidence to the contrary.
11. Coming now to the next contention that in a case of mid-night occurrence possibility of mistaken identity could not be ruled out, it may be observed that the date of occurrence, namely, the 12th of September 1965 corresponded to the 15th of the lunar month when the time of sunset was 6-15 p. m. And that of moon rise was 7-23 p.m. It was obviously a full moon which could have facilitated from close quarters the identification of the assailants who were all previously known to the P. Ws. Belonging to the same village except Mir Afsar petitioner. As already observed the statement of Mst. Rifaqat Jan, when recalled in defence, that the weather was cloudy and the moon was not visible at the relevant time was yet another attempt to shield the petitioners.
Nevertheless, as a matter of abundant caution and making sufficient allowance for the possibility of mistaken identity in moments of consternation, the learned Sessions Judge gave benefit of doubt to all the accused persons except those to whom active participation was specifically attributed.
11-A. Mahboob Khan complainant P. W. 1 stuck to the version given by him in the F. I. R. In this he was supported by his brother Nazarat Ali P. W. 5, a youngster of about 11/12 years of age. Their sister Mst.
Venus Jan appeared as P. W. 3 and supported the complainant's version in all its material aspects.
She claimed to have identified all the nine accused persons including the petitioners and admitted having been injured at the hands of Sabir petitioner. She also deposed that Sparas petitioner fired a pistol shot at her brother Safdar which hit him on the thigh and the shot fired by Mir Afsar had hit Rifaqat Jan in the neck who had fallen unconscious. Mst. Rifaqat Jan, wife of the complainant's' brother Ashraf, an accused in the earlier murder case, appeared as P. W. 2 and mentioned only three assailants as against nine implicated by Mahboob Khan. Out of these three she named only Mir Afsar petitioner, the other two being unknown to her. She supported the com--plainant's version in so far as the part attributed to Mir Afsar petitioner was concerned, who allegedly abused Safdar, aimed his pistol at him, and fired a shot which hit Mst. Rifaqat Jan instead. Mst. Rifaqat Jan was recalled at the defence stage and made further concession in favour of the defence. She stated that the assailants had muffled their faces at the relevant time when the moon was behind the clouds and that she only suspected the accused as the assailants. She denied the suggestion made to her by the Public Prosecutor that they had compromised the case with the accused and that she was deposing falsely in order to save their skin, Mst. Barkat Jan P. W. 9 did not identify any of the accused persons and could only state that she found Safdar, Mst. Venus Jan and Mst.
Rifaqat Jan in an injured state. No part of her deposition could be entertained as an important piece of evidence on the principle of res gestae. No pistol or gun was recovered which could be matched with two pieces of lead recovered from the spot vide memo. Exh. P. W. 4 / 1. This would also indicate, though not positively, that two or three shots had been fired.
12. As against this there are several important factors which militate against the veracity of the prosecution version. I have already referred to one of its inherent improbabilities namely that if the occurrence had taken place after 9 persons had come fully armed to wreak vengeance of murder the damage would have been much more extensive and serious, Again there is not a single disinterested witness in the case Muhammad Akhtar; Muhammad Ashraf brothers and Sher Ahmad father of Mahboob Khan complainant were being tried at the relevant time for the murder of Banaras, a brother of Sabir petitioner. Similarly, Mushtaq son of Samundar P. W. 4 and Mahboob son of Lal Khan P. W. 6 were also accused in the same murder case. Mst. Rifaqat Jan P. W. 2 only implicated Mir Afsar petitioner who allegedly appeared at the scene of occurrence along with two unnamed persons who though armed with pistols did not fire. She supported Mahboob Khan in that Mir Afsar abused Safdar and aimed his pistol at him but hit Mst. Rifaqat instead.
13. As stated at the outset, the learned trial Magistrate had convicted all the nine accused for offences under sections 148 and 307/149, P. P. C. In appeal the learned Sessions Judge maintained the conviction and sentences of the five petitioners acquitting the other four who were given the benefit of doubt.
13-A. An important question arises as to whether in a case like this where the testimony of the prosecution witnesses has been found to be doubtful in respect of the four of the nine accused, the conviction of the five petitioners would not be hit by the principle of indivisibility of credibility. In support of his contention that in cases of this kind independent confirmatory evidence would be necessary to justify conviction of the petitioners on the same testimony which has been disbelieved in respect of other accused resulting in their acquittal, learned counsel referred me to a large number of authorities of which to quote only a few Muhammad Afsar v. Crown (PLD 1954 FC 170), Rehmat and other, v. State (PLD 1959 SC (Pak.) 109), Wasiullah v. Mirza and others(PLD 1963 SC 25), Thoba and another v. State (PLD 1963 'SC 40), Muhammad Fak Bakhsh v. Queen (PLD 1959 P C 24), Ahmad Khan v. State (PLD 1962 Lah. 390) and Muhammad Akhtar v. State (PLD 1957 SC (Pak.) 297) may be mentioned, In Muhammad Sher and others v. The Crown (PLD 1954 FC 84) while accepting an appeal against a judgment of the High Court acquitting eleven out of 13 persons convicted by the Sessions Judge. Their Lordships of the Federal Court observed as follows:- "We are further of the opinion that where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance."
In Muhammad Afsar v. Crown considering it unsafe to rely on uncorroborated statement of a single witness, Mst. Shah Jehan, the learned Sessions Judge acquitted them of the charge of murder. On appeal filed by the Crown under section 417, Cr. P. C., the High Court came to the conclusion that the offence had been brought home to Muhammad Afsar one of the accused. And that the other co-accused Muhammad Azim to whom only a minor part of holding the deceased was assigned, had been unjustly roped in. Muhammad Afsar appealed to the Federal Court. While allowing the appeal their Lordships made the following observations :- "When the direct evidence of an incident involving more than one accused person is reduced to the statement of a single witness, and the Court is satisfied that it is false in relation to some of the accused persons, that testimony becomes subject to reasonable doubt as against the remaining accused persons as well. That doubt cannot be deemed to be satisfactorily resolved unless there be against each or all of the latter persons, material corroboration from independent sources, indicating that he or they did participate in the crime. With the exception of the fact that the petitioner was arrested two days after the occurrence, to which we can attach no importance in the proved circumstances, no corroboratory material at all is available to connect Muhammad Afsar with the crime.
In the absence of inherent improbability, the testimony must be weighed as a whole, and the only reliable check on its truth, in whole or in part, must be found in other credible evidence coming from independent sources.
In these circumstances, it seems to us that the true criterion to be applied by the Court of Appeal, if it regarded Mst. Shah Jahan's testimony as doubtful (as appears from the decision that Muhammad Azim was roped in unjustly) was to rely on the estimate of her credibility formed by the trial Court which had enjoyed the advantage of seeing and hearing the witness when she was under examination in the witness-box.
Where the, appellate Court itself found it impossible to accept a great part of the witness's story, believing that such part was purely fabricated, there need have been no hesita--tion in upholding the view formed of the witness's credibility as a whole by the trial Judge.
In consequence it was observed: If these principles had been borne in mind by the Court of Appeal, we entertain no doubt that it would not have found it possible to convict one of the accused persons while uphold--ing the acquittal of the other, on the same evidence. All the conditions necessary for giving effect to the trial Judge's estimate of the credibility of Mst. Shah Jehan are present in this case, in full measure.
We accordingly allow this appeal, and direct that Muhammad Afsar be acquitted.
14. In Muhammad Akhtar v. The State their Lordships of the Supreme Court placed reliance on Muhammad Sher and others v. The Crown referred to earlier and set aside the conviction of the appellant under section 323/324, P. P. C. In the absence of confirmatory evidence when the prosecution version had been found unreliable in some material aspects resulting in the acquittal of most of the accused. Wasiullah v. Mirza Ali and others was an appeal by Special Leave from a judgment of the High Court of West Pakistan reversing the order of conviction passed by the trial Judge in acquitting all the six accused of the charge of murder. Wasiullah complainant had undeniably roped. In one innocent person, namely, Hasan Ali who at the relevant time was found to be in judicial lock-up. While granting Special Leave their Lordships of the Supreme Court posed the following question :- "The major question which arises is whether, having regard to all the circumstances of the case, the ocular evidence at all required the kind of corroboration which the learned Judges in the High Court felt it their duty to seek. The danger is evident that, by basing a conviction in such cases on some ancillary piece of evidence e.g., a blood-stain on clothes, of which the accused may himself not be aware, safety in the dispensation of justice is gravely prejudiced. The present case affords an opportunity for examining this general question which we find to arise in an increasingly large number of cases."
At the time of hearing their Lordships observed as follows : - "In the order of this Court admitting the appeal, it was observed that the High Court judgment had dealt with the case as one resting on interested evidence, with no reliable corroboration to ensure against the false addition of one or more names in the list of accused persons, but the following factors had not been noticed, viz. :-
(1) that the eye-witnesses were all natural witnesses ;
(2) that the results produced were commensurate with the number of persons charged, viz. Six; '
(3) that there was visibility, and the trial Court had believed a number of the witnesses after seeing and hearing them ; and
(4) that the feud had been dormant for 20 years.
The question was asked whether in view of these factors, ,corroboration was at all necessary.
On further examination, it appears that the case is not free from doubts of a general character.
These are caused by (1) the false inclusion of the name of Hassan Ali at the outset, and the circumstances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged "crime empties" and (3) the dubious manner of the arrest of five of the accused persons, and of the recovery of weapons and cartridges, both live and empties from them". Their.
Lordships observed, "When such be the case, and the main direct evidence be also that of interested persons i.e. Enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt."
It was on the above view that the High Court's judgment of acquittal was upheld by their Lordships.
In Thoba v. State while allowing an appeal by Special Leave against the confirm--ation of death sentence of appellants by the High Court, their Lordships made the following observation :- "It is thus clear that the appraisement of the evidence of eye-witnesses was not based' upon full consideration and evaluation of all the circumstances to connect the two accused persons with the crime, and there being no proximate motive for the attack, the existence of a feud-based enmity operated as strongly to explain the implication of the two accused persons, as it did to support the allegation of an unprovoked attack by them upon a feudal enemy. In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available, it must be supported by some strong circum--stance, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected."
In Rehmat and others v. The State, while allowing the appeals of five convicts and dismissing the appeal against the acquittal of the remaining five by the High Court their Lordships of the Supreme Court made the following observa--tions :- "The mode of appraisement of the evidence adopted by the learned Judges, while it might be appropriate in a case not affected by general doubts, was wholly unsuitable to the for--mation of a correct conclusion in a case of the present character. We have enumerated above, the circumstances we find not to have received any consideration or due consideration at the hands of the learned Judges. The point that persons, who were only outside .Accessories in the abduction, were not likely to join in the execution of the dreadful crime of murdering three persons, against whom they had no animus at all, has been entirely ignored. Appreciation of the admittedly false implica--tion of Nuri, brother of one of these outside accessories, namely, Matbela, could only be properly made in relation to the general doubt regarding the participation of these outsiders. In declaring that this false implication affected only the statement of Sardara, and accepting the evidence of the other witnesses, the learned Judges have overlooked the very important nature of the impact upon the Whole case of this clearly false implication of one innocent man. They have not noticed the near impossibility of accepting the story that Mst. Rajan was not observed at all by the assailants, when it was obvious that they were entirely unhampered in their movements prior to the firing of the first shot at Bashir, which was probably simultaneous with the firing at Sarja, coupled with the strange admission of Mst. Rajan, that it was "completely light" at the time. In holding that. Mahando struck Sarja on the neck with his chhavi, the learned Judges have omitted to notice that the medical evidence completely contradicts the suggestion that any chhavi blow was delivered at Sarja's neck. If they had noticed this very important fact, they would have been bound to ask themselves further whether, witnesses who said that before their very eyes such a blow was struck by Mahando and that Mahando was excited by Mathela to strike this blow, could be accepted as eye-witnesses at all. In the face of such grave doubts affecting the entire prosecution evidence, the view that Sardara's slight injuries, which could easily have been caused by a fall, served as concrete proof that he was hit by Mehra is clearly insupportable". "In our opinion, the approach of the learned Judges to the appraisement of the evidence of individual witnesses was not based upon a full comprehension of all the circumstances appearing in the case, from the making of the initial report, up to the recording of evidence at the trial. When the evidence of the eye-witnesses is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the eleven persons accused in the case was based, not upon direct knowledge of their participation, but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e. g., a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence."
The next case Ahmad Khan and another v. The State relied upon in this regard was a D. B. Authority in which considerable case--law on the point of indivisibility of the credibility was examined by their Lordships including the authorities referred to earlier. And the following observation made by Lord Tucker in a decision of the Privy Council reported as Muhammad Faiz v. The Queen was also reproduced :--- "If these statements afforded material for serious challenge to the credibility or reliability of these witnesses on matters vital to the case for the prosecution it follows that by cross-examination or by proof of the statements if the witnesses denied making them the defence might have destroyed the whole case against both the accused or at any rate shown that the evidence of these witnesses could not be relied upon as sufficient to displace the evidence in support of the alibis.
Their credibility cannot be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question it cannot be right to accept their verdict against one and reopen it in the case of the other. Their Lordships are accordingly of opinion that a new trial should have been ordered in both cases."
To the same effect is Gul Sher and others v. The State (1968 SCMR 756) in which Justice Fazl-e- Akbar, who delivered the judgment, observed as follows :- ". . . It is now well settled that the evidence of such inimical witnesses which the eye-witnesses plainly were, must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused's implication upon it. The following observation from Mst. Hamida Bano v. Ashiq Hussain and others PLD 1963 SC 109 may be aptly quoted to show as to the nature of corroboration that would be necessary in such a case :- Hostility between the family of the murdered persons and that of the accused persons was the cause of the attack, and there being clear proof of false implication from the outset, a general doubt was cast over the truth of the accusation against any of the accused. No value could possibly attach to the evidence of interested witnesses in such a case, merely by reason of his deposing to a specific act, e.g. a blow, or the use of a particular weapon, by a particular accused person, for the purpose of fixing responsibility upon him in a criminal case. It is clear beyond question that the circumstances of the case of Niaz were . So wholly different from those of the present case that nothing said of a general nature regarding the evaluation of the statements of witnesses in `Niaz's case can conceivably be relevant to the appreciation of the evidence in the present case."
15. As against the above authorities insisting on independent corroboration against each of the accused so as to' confirm a basis of conviction. Nazir and another v. The State (PLD 1962 SC 269) may be cited in support of the proposition that such an insistence cannot be taken as .An inflexible rule of universal application. The background of this appeal before the Supreme Court was that six persons were killed on the night between 26th and 27th of April 1957 in village Baigowala of Sialkot District at the hands of six assailants. Allowing appeal against acquittal, the High Court ordered a retrial on which all the six accused were convicted inter alia under section 302/149, P. P. C. With an award of sentence of death to Nazir and of transportation to the remaining five. They appealed to the High Court against their convictions while the complainant filed an application ' for enhancement of the sentence of transportation to death. The High Court dismissed the appeal of the convicts and accepted the application for enhancement of sentence to death. Their Lordships of the Supreme Court dismissed the appeal of all the convicts except . That of Riaz Ahmad who was acquitted. At the time of the assault he was about thirteen years of age and was given the benefit of doubt. In this case the learned Judges of the High Court had taken the view that there was nothing illegal in acting upon the evidence of interested witnesses and that Niaz v. State (PLD 1960 SC 387) could not be relied as laying down a legal rule that the testimony of interested witnesses could not be accepted without corroboration, for the weight to be attached to a piece of evidence was not a question of law. The learned Judges of the High Court were prepared to act on the evidence of the interested witness alone although they found that the statement of the approver also corroborated the eye-witnesses. It was contended before their Lordships of the Supreme Court that the eye-witnesses being interested their statements could not be accepted without corroboration and secondly that such corroboration could not be afforded by the tainted evidence of the approver. While addressing to this aspect of the matter, B. Z. Kaikaus, J., who delivered the judgment, observed as follows :- "It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no intention of laying down (Niaz v. State) an inflexible rule that the statement of an interested witness (By which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction.
This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corro--boration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corrobora--tion it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circum--stance relied upon must have a bearing on this question.
In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
Their Lordships of the Supreme Court approved of the High Court's acceptance of the unprejudiced testimony of the eye--witness on the two-fold consideration: (i) that the number of the culprits was in consonance with the probable number required for an attack of that kind and (ii) that the person named as culprits were such as would be accepted to joint in the attack.
16. Having carefully considered the correct legal position in the light of the aforesaid authorities, I am of the view that the Courts below should have insisted on the availability of independent corroborative evidence before recording the conviction of the petitioners. My reasons are: (i) that as elaborated earlier, the possibility of some innocent person having been falsely implicated cannot be safely ruled out particularly when no part could be justifiably ascribed to the four acquitted petitioners, without running the risk of a conflict between the prosecution version and the medical evidence, inasmuch as they were allegedly armed with sticks and hatchets and yet, did not use them, (ii) that there is not, a single disinterested eye-witness in the case, (iii) that even the eye-witnesses includ--ing the injured P. Ws. Have not given a consistent version, (iv) that a presumption adverse to the prosecution could be legitimately raised on account of the non- production of the only male P. W., who was injured during the course, not--withstanding the fact that in all probability the softened attitude of the P. Ws. Towards the petitioners indicated some sort of compromise between the parties and (v) that the recovery of only two lead shots from the spot of unequal size also gives some indication of the number of shots fired particularly when no empties were recovered from the top of the roof where Yaqoob and Mir Afsar petitioners had allegedly fired several shots each in order to scare away any possible rescuers.
17. The upshot of the discussion, therefore, is that like, their acquitted co-accused the criminal liability in regard to their firing cannot be safely and squarely laid on the shoulders of the five petitioners. Consequently, therefore, giving them the benefit of doubt I allow the revision and set aside their convictions and sentences. Yaqoob and Mir Afsar are already on bail. Their bail bonds are discharged. The other three petitioners, namely. Khan Afsar, Sparas Khan and Muhammad Sabir, who are detained in jail, should be released forthwith, if not required in any other case.
18. Before parting with this case it appears to me necessary to make one or two comments on the judgment which is otherwise quite elaborate and well considered. The first of these relates to an observation made by the learned Sessions Judge in para: 9 of the judgment wherein while referring to the plea of alibi of Sabir petitioner the learned Sessions Judge observed that he had never come up with this plea at any earlier stage of the proceedings. Although I agree with the learned Sessions Judge that the pleas did not hold much water notwithstanding the statements of the D. Ws. In that regard and as such were rightly discarded yet the above observations seem to be factually incorrect. It was suggested in cross-examination to Mahboob Khan P. W. 1 that Sabir was an employee of the Nilore factory regarding which the witness expressed his ignorance. A similar suggestion was made to Mst. Venus Jan P. W. 3 who likewise expressed her ignorance as to whether Sabir was an employee of Nilore factory.
19. Again, in the concluding sentence of the judgment, the learned Sessions Judge observed as follows :- "In such cases it is essential to bring out relationship of the accused inter se so as to find how far motive attributed to the accused could be used as effective corroboration of direct evidence in the case."
From this one cannot avoid an impression as if according to the learned Sessions Judge evidence of motive could be used as a substitute for corroborative evidence. It may be observed that although evidence of motive is not only relevant, but at times assumes considerable importance, yet it cannot take the place of corroborative evidence and cannot be used as such.