1. DORAB PATELJ.-The private respondents in .The appeal, to whom we will refer as the respondents were tried with two other accused, Ibrahim and his son Muhammad by the Section 30, Magistrate, Shakargarh, Sialkot District, under section 307/34, P. P. C. For firing at the appellants. Ibrahim died during the pendency of the case and by his judgment dated 30-6-1965, the learned Magistrate acquitted his son Muhammad, but he convicted the respondents under section 307134, P. P. C. And sentenced them to seven years' R. I. Each. Fines were also imposed.
2. The respondents challenged their conviction to an appeal in the Lahore High Court, which was heard with the revision filed by the appellants for the enhancement of the sentence passed against the respondents. By his judgment dated, 6-2-1976, the learned Judge dismissed the revision of the appellants and allowed the appeal of the respondents. As the conviction of the respondents was set aside the appellants filed a petition for leave in this Court and leave was granted in order to examine the question "whether the testimony of the eye-witnesses was not sufficiently corro--borated". The appeal was, therefore heard by us on the 28th of June, 1980, and after considerable arguments, the learned counsel for the appellants and for the respondents asked for further time to prepare arguments, there--fore, the hearing of the appeal was adjourned to 2nd July, 1980. But, on the 2nd July, 1980. Mr. Almas Ali again sought on adjournment and as this request was opposed by his client (the first appellant), we concluded arguments with the assistance of the learned counsel for the State, who supported the plea of the appellants.
3. The occurrence took place in village Mandikhel on 26-9-1971. One Abdul Rauf owns a house in this village, but he was not living in the village and had given possession of the house to the appellant whilst according to the respondents, they had been given the possession of the house by Abdul Rauf. Be that as is it may the appellants and the respondents also own houses near Abdul Rauf's house and it is relevant to note that the house of Shabbir Khan, the brother of the respondent, Rahim Khan (who is a Police constable) is LIBO very near to Abdul Rauf's house. On the day of the occurrence, the appellants and Yaqub, P. W. 1 (the brother of the second appellant) were working on the door of Abdul Rauf's house. At about 10-00 a.m., they saw the respondents coming heavily armed with two other persons. These two other persons were Ibrahim (now deceased) and his son Muhammad. The respondents were armed either with rifles or with guns whilst Ibrahim had a spear and son a danda Yaqub, P. W. I apprehended trouble, because the respondents claimed possession of Abdul Rauf's house, therefore, he told the appellants to stop work and return home.
4. They stopped work and although the motive for so doing was to avoid a fight with the respondents they walked past the house of Shabbir Khan. Meanwhile, the respondents and the other two accused had got on to the roof of Shabbir Khan's house and the respondents fired indiscri-- minately at the appellants and Yaqub, P W. 1 as they walked past. The appellants were hit by the shots and the first appellant was hit in the eyes with the result that he was totally blinded, whilst the other appellants escaped with comparatively minor injuries. The appellants were then taken to the nearest dispensary for treatment and an F. I. R. Was lodged in due course on the basis of the statement of the second appellant. It is, however, relevant to point out here that his statement was recorded at a dispensary at about 6 p.m, which was about eight hours after the occurrence.
5. In order to prove the occurrence, the prosecution attempted to examine five witnesses. The first was Yaqub, P. W. 1, the brother of the second appellant. The second eye-witness was the second appellant. The third eye-witness was cousin of the appellants by the name of Ghulam Rasul. The statement of the first appellant was also recorded by the Magistrate but it was not signed by the Magistrate and Mr. Bashir, learned counsel for the State, submitted that the Magistrate did not bring this appellant's statement on the record because his Police statement had never been recorded. That would appear to be so, but it is unforunate that a Magistrate did not maintain the record of his case properly. Be that as it may, the fifth witness was Yaqub son of Boota Khan to whom we will refer as Yaqub son of Boota, and he was a disinterested witness. Unlike the other witnesses, he did not support the prosecution case.
6. The prosecution also relied on medical evidence and on the evidence of recoveries. But, as no weapons were recovered from the respondents, the prosecution relied only on the pellets recovered from the place of occurrence. We have to note with regret that the recoveries were witnessed by Hafizur Rehman, the brother of the second appellant and by Ghulam Rasul, who was a first cousin of the appellant and was an inimical witness.
7. The respondents proved that the father of the respondents Ilyas and Yunis had successfully prosecuted all the prosecution witnesses except Yaqub son of Boota. This was admitted not only by the second appellant, but also by the Investigating Officer. Therefore, even though the appellants allege enmity on the part of the respondents, it is clear that it was they, who were inimical to the respondents, because the father of the two respondents had been successful in obtaining their conviction. In this background, as Yaqub son of Boota, the only independent eye-witness, had totally repudiated the prosecution case, the obvious question for consideration was whether the evidence of Yaqub, P. W. 1, of Ghulam Rasul and of the second appellant was sufficient to prove the prosecution case with independent corroboration, inculpating the respondents.
8. Additionally all the respondents pleaded alibi and examined four eye--witnesses in order to prove their case. One of these witnesses was Yunis, a Police constable. He was a treasury guard in the Narowal Police Station, and he said that he had taken leave for one day from the afternoon of the 25th September, to the afternoon of the 26th of September and that the respondent, Rahim Khan had deputed for him during his leave. Now, if this evidence be true as the occurrence took place at about 10-00 a.m. On 26th September, 1971, it is obvious that the respondent Rahim Khan could not have been at the place of occurrence.
9. The learned Magistrate rejected the evidence of the four witnesses examined by the respondents, and as to the evidence produced by the prosecution, he rightly held that the second appellant's evidence, which fully implicated the respondents, could not be accepted without corroboration.
10. But, Ghulam Rasul had also supported the prosecution case and the learned Magistrate held that this witness was a disinterested witness. We would pause to observe here that we are astonished at this finding of the learned Magistrate, because it is contrary to the admissions made by Ghulam Rasul in his cross-examination. Thus it was only in his cross-examination that he admitted that he was the first cousin of the appellants, and, although the appellant, Ilyas, had been convicted in a case filed by the father of the respondent, Ilyas, and Yunis, the witness initially professed not to know about his cousin's conviction. In view of these and other admissions, it is clear that Ghulam Rasul was both a hostile and an unreliable witness.
11. But the only other eye-witnesses, according to the prosecution, were Yaqub son of Boota, who totally repudiated the prosecution case, and YaqubP. W. 1 the brother of second appellant who fully supported the prosecution case and was not cross-examined. Thus it was a question of the evidence of Yaqub, P. W. 1, the brother of the second appellant, against the evidence of Yaqub son of Boota. And, the learned Magistrate rejected the evidence of Yaqub, son of Boota, although he was a disinterested witness, because be (the Magistrate) arbitrarily declared him hostile. We will presently revert in this respect of the case, but as Yaqub, P. W. 1 the brother of the second appellant had not cross-examined, the learned Magistrate held that there was no reason whatever to doubt this witness's evidence which fully implicated the respondents. In this background, he held that the ocular evidence was amply corroborated by evidence of motive and the evidence of recoveries.
12. But, as the injuries to the appellants had been caused by gunshots, it was obvious that Muhammad son of Ibrahim, deceased, had played no part in the attack although he was with the respondent. Therefore, the Magistrate acquitted the said Muhammad but he convicted the respondents as stated herein.
13. In the appeal filed by the respondents, in the Lahore High Court, the learned Judge re-examined the evidence. He failed to notice that the respondents had not cross-examined Yaqub, P. W. 1 the brother of the second appellant, but he rightly held that except for Yaqub, son of Boota, the other witnesses were inimical witnesses, and unlike the learned Magistrate, he was implicated by the evidence of this witness, because he was a disinterested witness. But, as we pointed out, this witness had totally repudiated the prosecution case.
14. The learned Judge then turned to the evidence of the recoveries and he pointed out that neither the medical evidence nor the recoveries could throw any light on the identity of the assailants, therefore, on the basis of the law declared by this Court in Niaz v. The State (PLD1960SC387), he held that the ocular evidence was tainted by enmity and was not corroborated. He also accepted the plea of alibi of the second respondent, but this finding is very damaging to the ocular evidence, because Yaqub, P. W. 1, the brother of the second appellant, and Ghulam Rasul had fully implicated the second respondent. In these circumstances, the learned Judge dismissed the revision of the appellants and allowed the appeal of the respondents.
15. We are satisfied that Ghulam Rasul and the second appellant were inimical and unreliable witnesses, and their evidence is not fit to be accepted without corroboration by independent evidence which implicates, the respondents. Nor was it Mr. Almas Ali's case that the evidence of these witnesses could be accepted without corroboration by independent evidence, but he submitted that this independent corroboration was furnished by the evidence of Yaqub, P. W. 1, because the witness had not been cross-examined. The submission appears at first sight to be paradoxical. Because Yaqub, P. W. 1 is the brother of the second appellant and they had not been convicted at the instance of the father of the third and the fourth respondent. And, even, Mr. Almas Ali admitted 'that the second appellant's evidence required corroboration, but it is a trite observation that independent witnesses may not always be witnesses of truth, whilst a hostile witness may sometimes be a witness of truth; and Mr. Almas Ali rightly places great stress on the evidence of Yaqub, P. W. 1, because the witness was notcross-examined at all. As he was not cross- examined, his evidence has to be accepted as correct, unless it can be shown by independent evidence to be unreliable. Therefore, Mr. Rahman submitted that the evidence of Yaqub, P. W. 1 was falsified by the evidence of the other eye-witnesses and by circumstantial evidence.
16. According to Yaqub, P. W. 1, the three respondents were armed with rifles, whilst according to the other eye-witnesses, the respondents were armed with guns. Further as only pellets were recovered from the place of occurrence and as the appellants also had only been hit by pellets, it is clear that the statement of Yaqub, P. W. 1 that the respondents were armed with rifles is not correct. But, this discrepancy is too minor to warrant the rejection of his evidence. Learned counsel then submitted that the prosecution version of the occurrence was inherently improbable. So we may explain here that like all the other eye-witnesses, Yaqub, P. W. 1 said that they were working on the door of Abdul Rauf's house when he saw the five assailants coming heavily armed therefore, he advised his brother and cousin to leave for their house immediately, lest there be a fight.
17. Now, as according to the witness, the three respondents were armed with rifles, whilst Ibrahim, deceased had a spear, Mr. Rehman submitted that if there had been any truth in the witness's story, the assailants would have attacked the witnesses immediately instead of walking past without even giving a threat. Further, according to learned counsel, as the witness advised his brother and cousins to leave for their own safety, they should have left for their house by a route which would not take them past the assailants. But, as they went to their house past the house of Shabbir Khan, the brother of the respondent Rahim Khan, they deliberately made themselves available for an attack by armed assailants, therefore, learned counsel submitted that the prosecution version of the occurrence was inherently improbable. We are disturbed by this aspect of the case, but as rightly submitted by Mr. Almas Ali, the respondents failed to cross-examine the eye-witnesses on the question why they went past the house of Shabbir Khan.
18. However, whatever be the position if the matter had stood here, Yaqub son of Boota, was stated to be an eye-witness in the F. I. R. And even Mr. Almas Ali had to admit he was the only independent eye-witness of the occurrence. But, as he repudiated the prosecution case, if we may be permitted to say so, the evidence of P. W. 1, Yaqub, if offset by that of Yaqub, son of Boota, and the latter's evidence is as damaging to the prosecu--tion case as the failure to cross-examine Yaqub, P. W. 1 is to the case of the respondents. The evidence of the two witnesses as cannot be reconciled and it is clear that if Yaqub, P. W. 1 spoke the truth, the evidence of the other Yaqub, son of Boota was false and vice versa. Therefore, the question is which of the two witnesses was fit to be believed. Mr. Rehman rightly submitted that the evidence of Yaqub, P. W. 1 should be preferred, because he was admittedly a disinterested witness and had been named in the F. I.. R. As Mr. Almas Ali could not advance any arguments to show that the evidence of Yaqub, P. W. 1 should be preferred to that of Yaqub son of Boota, he merely referred us to paragraph 5 of the judgment of the learned Magistrate. The learned Magistrate had rejected the evidence of Yaqub son of Boota with the observation that the witness has resiled from his previous statement which he made before the police and was declared hostile.
19. Now, if a witness resiles from his police statementor his lower Court statement he has to be confronted with that statement before he can be declared hostile. That is elementary. However, when we examined the evidence of Yaqub son of Boota, we found that he had been declared hostile on the mere ipse dixit of the P. S. I. Therefore, as the witness was not confronted with his earlier statement, even Mr. Almas Ali was compelled to admit that the witness had been illegally declared hostile. And, further because the witness had not been confronted with his Police statement, we have no means of knowing what he had said in that statement. Not only does this cast doubt on the manner in which the trial of the respondents was conducted but as the witness was not confronted with his earlier statement, to hold that he had resiled from his earlier statement, and was, therefore, not a reliable witness, would be to substitute evidence by con-- jectures. Therefore, it is clear that the trial Court erred in law in rejecting the evidence of this witness. But, admittedly, he was a disinterested witness unlike Yaqub, P. W.
1. And as his evidence falsifies that of Yaqub, P. W. 1, the evidence of Yaqub P. W. 1, cannot be accepted without corroboration and, therefore, it cannot furnish corroboration of the evidence of the second appellant or of Ghulam Rasul.
20. There is yet another circumstance which casts doubt on the evidence of Yaqub, P. W.
1. We pointed out that all the accused had produced evidence of alibi, but we are only concerned with the plea of alibi of the respondents, and as both the Courts have rejected the alibi of the respondents, Ilyas and Yunis, we will not examine this evidence. But, as the learned Judge has accepted the alibi of the respondent, Rahim Khan, we would recall here that this respondent was a Police constable and his claim was that at the time of the occurrence, he was temporarily posted as a guard at the Treasury in Narowal. Now the Treasury guard for Narowal in September, 1971. Was Muhammad Yunas Khan. Head Constable No. 449, but he bad taken leave for 24 hours from the afternoon of the 25th of September,.1-971 and he said in his evidence on behalf of the respondent Rahim Khan that this respondent had acted as the treasury guard during the period of his absence. The prosecution had to produce the relevant entry from the roznamcha of the Narowal Police Station, and the roznamcha and the entry was produced, but it would appear that by the time evidence of the Investigation Officer was recorded, the entry had disappeared. Therefore, the witness said that there would be an investigation into the disappearance of this entry.
21. However, as the results of the enquiry were not known, the Magistrate appears to have treated the disappearance of this entry as a circumstance against the respondent Rahim Khan. Mr. Bashir Ahmed invited us to hold that the view taken by the trial Court was correct, because in the circum- - stances Rahim Khan had clearly failed to prove his plea of alibi beyond reasonable doubt. The submission that the respondent Rahim Khan has failed to prove his plea of alibi beyond reasonable double is correct and that appears to have been the main consideration, which led the trial Court to reject the plea of alibi. But an accused does not have to prove his plea beyond doubt. That follows from the rule laid down by the Federal Court in Safdar Ali v. The Crown(PLD 1953 FC 93).
22. Unfortunately, the attention of the trial Court was not drawn to the law declared in Safdar's case, the object, as the firstappellate Court the learned Judge had to make a reappraisal of the evidence and having made that reappraisal, he reached the conclu-- sion that -in the circumstances, the plea of alibi of the respondent Rahim Khan should be accepted. This view is reasonable and possible view on the evidence and is in accordance with the law declared in Safdar All's 0ase- Therefore, we would not be justified to interfere with the conclusion of the learned Single Judge that the respondent. Rahim Khan, had established his alibi. But, as Yaqub, P. W. Had fully implicated this respondent, this is another circumstance which casts great doubt on the evidence of Yaqub, P. W. 1.
23. In the circumstances discussed, it is obvious that medical evidence can not have corroborative value nor did Mr. Almas Ali place reliance on it. He, however, placed great stress on the recovery of the pellet, because more than seventy pellets had been recovered therefore, the further submission was that so many pellets would have been recovered only if there had been at least three gunmen, and, therefore, this was a circum--stance which proved that the three respondents including Rahim Khan had participated in the occurrence.
24. We are unable to accept this submission for more than one reason. In the first place two persons firing continuously can fire as many shots as three or four persons. That is obvious. Secondly, we indicated our regret earlier that the recovery witnesses for the recovery of these pellets were Ghulam Rasul and Yaqub, P. W. 1, the brother of the second appellant. As these witnesses were hostile or unreliable witnesses, this is another circum-- stance which casts doubt on the recoveries.
25. In any event, the learned Judge of the view that the mere recovery of pellets could not corroborate the ocular evidence as because the recoveries could not throw any light on theidentity of the assailants.
26. Now, according to Mr. Almas Ali, the view thus taken was contrary to the law declared by this Court in Niaz's case, but Kaikaus, J., who pronounced the judgment of the Court in that case, observed while discussing the nature of the corroboratory evidence: "This circumstance need not be such that it can of its own probative force bring home the charge to accused. It should, however be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt. This rule of prudence requiring corroboration of pertinent evidence has generally been accepted by the Courts and was accepted by all the Judges of the Federal Court of Pakistan in Ashraf and others v. The Crown (PLD 1956 FC 86) although the learned Judges were not in agreement as to what constituted corroboration."
27. As emphasized by Kaikaus, J., the question of the sufficiency of corroboration must depend on the particular circumstance of each case." And, on the circumstances of this case, the learned Judge held that the recoveries were of no corroborative value, because they could not throw any light on the identity of the assailants. As the ocular evidence was tainted by entity, the conclusion of the learned Judge is in accordance with the observations of Kaikaus, J., because the evidence of the recoveries is not a circumstance which in the words of Kaikaus, J., "points to the inference that the particular accused whose case is being considered did participate in the commission of the offence". We, therefore, see no error in the finding of the learned Judge that the prosecution had failed to prove beyond reasonable doubt the guilt of the appellants and we dismiss the appeal. The bail bond furnished by the respondents shall be cancelled.