1. This appeal is filed against the judgment dated 2nd April, 1987, passed by the learned 1st Additional Sessions Judge, Nawabshah, in Sessions Cases Nos. 167 of 1984 and 188 of 1981, whereby the learned Judge convicted appellant Faizoo, under section 302, P.P.C. And appellant Muhammad Ali under section 302 r/w section 114, P.P.C. And sentenced each of them to undergo imprisonment for life and fine of Rs.5,000 and in default further undergo R.I. For six months.
2. The brief facts of the case are, that the complainant Dodo was hari of one Noor Muhammad Lakho and used to reside on his land. On 1-8-1981 at about sunrise time, complainant Dodo was ploughing his land. He had sent for P.Ws. Peeral and Moula Bux to help him in ploughing the land. Deceased, Kaiser who was son-in-law of the complainant was also staying with complainant at that time. He brought tea for the complainant and witnesses to the land at the time of incident. They saw 12 persons came to the land out of whom appellant, Faizoo, had a rifle and appellant Muhammad Ali had a gun. Out of 10 other co-accused Ali Hassan and Azeem were armed with guns, while rest namely, Dawood Khan, Ramzan, Allah Dad, Ghulam Sarwar, Ismail, Mircho, Sadoro and Haji Tindo, were armed with lathis. Earlier to the incident, the accused persons had asked the complainant not to cultivate the land, as there was dispute between them and Noor Muhammad over this land, but the complainant had refused. On the day of incident, they again asked the complainant to unyoke bullocks, but the complainant refused. Appellant Muhammad Ali is said to have instigated the other accused, whereupon appellant Faizoo fired his rifle, which hit deceased Kaiser, who fell down and died of injuries. The other accused, who were armed with lathis gave lathi blows to the complainant and P.W. Peeral and Moula Bux. The complainant went to the village of Noor Ahmed, who was not present and, therefore, he informed Lal Khan, who took him in a car to Kandiaro Police Station, where complainant lodged F.I.R. With the police on the same day at 10-00 a.m.
3. On the same day at 10-30 a.m. Co-accused Ali Hassan also lodged F.I.R. At the same police station under sections 307/34, 147, 148, 149 and 114, P.P.C. Which has been produced as Exh.
64. In the F.I.R.
4. This Ali Hassan alleged, that on the day of incident, he was ploughing the land of Muhammad Ali Lakho, which was on lease to Dawood Lakho, when at about 7-00 a.m. Dodo, Kaiser, Peer Bux, Moula Bux, Illahi Bux and Ali Gohar, came there out of whom Illahi Bux, and Dodo were armed with guns and others with lathis. They asked Ali Hassan not to plough the land and remove his bullocks. Ali Hassan raised cries on which Dawood and Faizoo and Ramzan came. At the instigation of Ali Gohar, Dodo fired at Ali Hassan causing him injuries. Moula Bux and Peer Bux were caught by Dawood and others, while Dodo and Illahi Bux and Ali Gohar managed to run away. Deceased Kaiser had also fallen down there but Ali Hassan did not know whose blow had hit Kaiser. Ali Hassan then went and lodged F. I. R.
5. After usual investigation the accused were challaned in the Court. All the accused persons including the present appellants pleaded not guilty to the charges under sections 148, 302 r/w 114 and 149 and sections 307 and 201 r/w section 149, P.P.C.
6. All the accused persons denied the prosecution case and put their case which is more or less disclosed in F.I.R. Lodged by Ali Hassan re-produced above.
7. The learned trial Court acquitted the ten accused of all the charges and also acquitted the present appellants of the charges under sections 148, 307 and 201 r/w 149, P.P.C. But convicted the appellants as above.
8. The case filed by Ali Hassan against the complainant party ended in acquittal.
9. There is only occular oral evidence against the appellant of the injured witnesses, namely, the complainant Dodo, and P.Ws. Moula Bux and Peeral. No incriminating articles or. Weapon of offence has been recovered from the possession of the appellants. The only other witness, namely, Lal Khan, whom the complainant is said to have reported the incident immediately and who took him to the police station to lodge the F.I.R. Has been examined. He does not implicate the appellants. He states, that the complainant told him, that Dawood and others had killed Kaiser. He does not give the names of others, but only of Dawood, whom he identified in the Court. This Dawood has already been acquitted by the trial Court.
10. The fact, that Kaiser died of the bullet injury and the complainant Dodo and P.Ws. Moula Bux and Peero did receive injuries, is not disputed. No doubt, Peeral and Moula Bux are chance witnesses, who were called on the day by the complainant for wangar, but their presence at the spot cannot be doubted. Apart from the injuries on their person, their names and presence is mentioned in the counter F.I.R. Exh. 64, lodged by co-accused Ali Hassan on the same day soon after the incident.
11. Similarly, the presence of the appellants is also proved from the counter F.I.R. Exh. 64 lodged by the co-accused. However, we have to see, whether the evidence of the injured eye-witness named above is sufficient for conviction of the appellants even without corroboration and if their evidence requires corroboration, whether there is any such corroboration on the record.
12. As already pointed no weapon of offence or any other incriminating article has been recovered from the appellants. Witness Lal Khan to whom the complainant reported does not implicate them.
13. Mr. Kazi, Imdad Hussain, learned counsel appearing for the State contends, that their evidence is corroborated by the Medical evidence and F.I.R. The F.I.R. Was recorded after the deceased as well the witnesses had received injuries, therefore, the mention of such injuries in the F.I.R. Would not necessarily prove as to who caused these injuries. The F.I.R. And the medical evidence corroborates the complainant only to the extent that the injuries whether fatal or otherwise were caused to deceased and other witnesses as alleged by the complainant and the witnesses. In fact, there is no corroborative evidence apart from the word of the complainant and two injured eye-witnesses with respect to the fact, that the appellant Faizoo had fired with rifle at deceased Kaiser at the instance of appellant Ali Muhammad. Therefore, we have to see whether the uncorroborated word of these witnesses can safely be relied upon for the purpose of upholding the conviction of the appellants.
14. Mr. Muhammad Hayat Junejo, learned counsel for the appellant has drawn attention of this Court to the F.I.R. To show, that there was a disinterested witness who could have corroborated the prosecution story, but he has not been examined. According to the F.I.R. Yar Muhammad Brohi had come on the commotion and brought Qur'an Sharif to avert further fight between parties. This Yar Muhammad Brohi has not been examined, either by the complainant party or by the appellant. He was not examined even by the Investigation Officer., The non-examination of this witness by the appellants would not raise any presumption against them, as his presence was shown b the complainant in the F.I. R . But his non-examination by the prosecution would raise presumption against the prosecution, that had he been examined he would not have supported the prosecution case. This presumption is further strenghtened from the conflicting statements about the presence of this Yar Muhammad by the prosecution witnesses. In the examination-in-chief, the complainant does not state about the arrival of Yar Muhammad but in the cross-examination he admits, that Yar Muhammad had come at the place of incident with Holy Qur'an, but the accused persons had gone away and were not visible from there. 1.0. Ashique Hussain, Exh. 63, has admitted in the cross- examination, that he did not examine Yar Muhammad Brohi, because he might not be available.
15. It may be pointed, that in the two FIRS, one lodged by the complainant and other by co-accused Ali Hasan, two different lands are shown as scene of incident. According to the complainant the incident took place on the land near the Kot of Noor Muhammad whereas, according to the accused party the incident took place on the land of Muhammad Ali Lakho cultivated by Ali Hassan, which according to tapedar Ex.32, is at distance of 5 furlongs from the Kot of Noor Muhammad. It is an admitted fact, that the dead body as well as two injured witnesses namely Peero and Moula Bux, were secured by the police from the land of Ali Hassan. In the FIR, it is alleged, that the accused persons took away the dead body and injured Peer Bux and Moula Bux to their land forcibly. Both the mashirs namely P.W. Meer Muhammad Exh.39, and P. W. Soomar Exh.48, have been examined. Both of them state that neither the land of the complainant was ploughed nor was any blood or blood-stains on this land. Even the Mashirnama of scene of offence Exh.40 shows, that there were no marks of blood or quarelling at the scene of offence though it has been shown to be plouged. It may be pointed, that neither mashirs have been declared hostile by the prosecution, nor they have been cross-examined. It is argued by Mr. Junejo, that according to the prosecution story, deceased Kaisar brought tea for the complainant and the witnesses to the land, but neither the mashirs nor police officer disclosed, that any tea-pot or tea-cups, were secured from the scene of offence. He argues, that apart from the fact, that there is contradiction in the evidence of the witnesses as to whether they took tea or not before the incident, the fact, that deceased, Kaisar died would clearly indicate, that he had no opportunity to take back the tea-cups or tea-pot to the house and, therefore, the same would have been found by the police at the scene of offence if the prosecution story was correct.
16. It may be pointed, that there is admission of P.W. Moula Bux in the cross-examination, that the injuries on the person of deceased as well as injured bled profusely but in spite of that no bloodstains were found from the alleged scene of offence or on the route by which the deceased and injured are alleged to have been taken away by the accused party from the alleged scene of offence to the land near their house. Mr. Junejo argues, that it clearly shows, that the incident did not take place at the place and in the manner as disclosed by the prosecution, but in fact that the incident did take place at the place and in the manner as put up by the accused party in the counter FIR, Exh.64, Mr. Junejo also points out, that in the FIR, the complainant had implicated accused Tindo and Sadoro, but the witnesses in their statement before the police did not implicate them, therefore, they were not challaned but the complainant again filed a direct complaint against them and process was issued by the Court. It is argued by Mr. Junejo, that all this shows, the intention of complainant party to implicate as many as possible persons of accused party, who are closely inter-related and it also shows, the malice of the prosecution witnesses, who all are admittedly heirs of Noor Muhammad Lakho.
17. It may be pointed, that the medical evidence shows four injuries on the person of P.W. Peer Bux out of which one, injury was caused by discharge of fire-arms and while rest by hard and blunt substance. The medical officer also found four injuries on the person of P.W. Moula Bux caused by hard and blunt substance and six injuries on the person of complainant Dodo which were also caused by blunt and hard substance. He found two injuries or, the person of co-accused Ali Hassan, which were caused by discharge of fire-arm.
18. It is argued by Mr. Junejo, that evidence of these witnesses has been did believed by the trial Court, so far 10 co-accused are concerned. Their evidence has been disbelieved with regard to persons who allegedly caused injuries to them. In the circumstances, it will be against the principle of the safe dispensation of justice if their word is believed against appellants only because, they had attributed specific part to them in their statements as well as in the F.I.R. Mr'. Junejo has relied upon an unreported judgment in case of Mitho and others v The State (Cr. Appeal No.225/1986). In this case Division Bench of this Court has held, where the trial Court finds the evidence of alleged eye- witnesses in respect one appellant was not reliable, some evidence cannot be relied upon against the co-accused without having some corroborative piece of evidence." Reliance is also placed on the case of Abdul Ghafoor v The State (1982 SCMR 162). In this case the co-accused were acquitted by High Court, holding the case against them not proved but convicted the appellant on the ground, that he was only person stated to be armed with rifle and the deceased suffered bullet injuries. Their Lordships of the Supreme Court observed. "It becomes difficult to accept the reasoning of the High Court, that as he was consistently attributed the part of the possession a rifle then it must be he who must have fired. It again leads to the error of relying of the word of prosecution witnesses whose evidence was held to be tainted and not believable in regard to others, and as it came from the mouth of those witnesses whose credibility was highly doubtful, such an assertion did not have any corroboratory value for the reasons, that a bullet injury noticed as that would only show, that some one armed with rifle had fired the shot but not as regards the identity of assailants which had to be established by independent and corroboratory evidence."
19. This principle was also reiterated by their Lordships in unreported judgment in Criminal Appeal No. K-2/1982 Changu v. The State.
20. Reference may be made to the case of Machi and 2 others v. The State PLD 1976 SC 695 wherein it was held as under:- "However, on the assumption, that the medical evidence is consistent with that of the eye- witnesses can medical evidence corroborate ocular evidence which is tainted by enmity? Medical evidence by itself and without more cannot throw any light on the identity of the assailants but in case of inimical evidence it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact, that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses have spoken the truth."
21. The question as to how for evidence of witnesses can be relied upon against one accused person when their evidence has been disbelieved against other was discussed by their Lordships of the Supreme Court in the case of Ghulam Sikandar v. Mamariz 'Khan PLD 1985 SC 11 wherein it was held: "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is half-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 propounded by late Chief Justice Muhammad Munir, that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused."
22. In the instant case also there is only evidence of the three eye-witnesses namely complainant Dodo, Moula Bux, and Peer Bux, that the appellant Faizoo was armed with rifle who fired at the deceased. Their evidence with respect to 10 co-accused as pointeu above, has been disbelieved by the trial Court. As such their evidence cannot be believed against the present appellants, unless corroborated by some independent evidence. As already pointed their's is the only evidence against the appellants. Rifle has not recovered from appellant Faizoo. Even Lal Khan, who was immediately reported about the incident, does not implicate the present appellants. Admittedly, there is enmity between the parties over the land, which makes it more imperative that their evidence should be corroborated by the independent evidence, which is lacking in this case.
23. With regard to the appellant Muhammad Ali, the only part assigned to him, is that he instigated the appellants. The part assigned to him for instigating 10 co-accused, has already been disbelieved by the trial Court and under the circumstance on the same evidence he cannot be convicted of having instigated the appellant Faizoo.
24. For the aforesaid reasons I allow this appeal, and set aside the conviction and sentence. The appellant shall be set free forthwith unless they are required in some other case.
25. The appeal was allowed by a short order dated 27-7-1987. Above are the reasons in support of the said order.