' FAZAL KARIM, J.--- This is an appeal from a judgment of the learned Additional Sessions Judge, dated 1-12-1985 convicting Irshad Ahmad and Bashir Ahmad, appellants, on two counts under section 302, read with section 34 of the P.P.C. And sentencing them to death; fine of Rs,10,000 and in default of payment of fine, one year's R.I. Each. The fine, if recovered, was directed to be paid equally to the, heirs of the deceased persons Daim and Allah Bakhsh alias Bakhsha.
2. Also tried with the appellants were six other accused persons Waryam, Bati, Dosa, Umra, Ghulam Qadir and Muhammad. They were acquitted.
3. This will also dispose of the reference under section 374 of the Cr.P.C. And Criminal Revision No, 622 of 1986 by Karam Ali, complainant, by which he seeks to have the acquittal of Bati etc. Reversed.
4. The incident resulting in the death of Daim and Allah Bakhsh alias B'akhsha deceased persons, occurred at Degarwaila on 14-3-1983 in the area of Mauza Rukan and was reported to the police by Karam Ali (P.W.7) vide his statement Exh.P.K. Made to Dildar Ali S.I. (P.W.17) at bus stand More Bhalwal at 6 p.m. On the same day.
5. The prosecution case was as follows. Some 25 or 30 years before this incident, Shera, a real maternal-uncle of Irshad Ahmad, appellant, was killed. For his murder, father of Allah Bakhsh alias Bakhsha, deceased, and 11 others were tried but acquitted. Eight or ten years before this incident, Aroora, an uncle's son of Karam Ali, complainant, was killed by Muhammad (son of Moonda), one of the acquitted accused persons in this case, and six others. A compromise was reached and as a result thereof, Mst. Ghulam Safia, sister of the appellant Irshad Ahmed, and the accused Bati, was married to Muhammad Ashiq son of Aroora. Muhammad Ashiq divorced Mst. Ghulam Safia one and a half months before this incident. The accused persons suspected that Allah Bakhsh alias Bakhsha, deceased, was responsible for this divorce. Then Daim, deceased, had instituted a civil suit in respect of land against Bashir Ahmed, appellant. The accused persons also suspected that he had instituted the suit at the instance of Allah Bakhsh alias Bakhsha. Both were prosecuting the suit.
6. Karam Ali, complainant, was a resident of Bhalwal; Allah Bakhsh alias Bakhsha, deceased, was his nephew. Karam Ali accompanied by Allah Bakhsh alias Bakhsha and Daim, also residents of Bhalwal, had gone to Mandi Bahauddin in the morning of 14-3-1983. They returned from Mandi Bahauddin at Degerwela disembarked from the bus at the bus stand Bhalwal, and started for their village Bhalwal. When they reached near the Dera of Gama son of Gehna, a resident of Mauza Rukan, Karam Ali P.W. Sat to make water; Allah Bakhsh alias Bakhsha and Daim continued walking.
Suddenly, Karam Ali heard a Lalkara and saw the appellants and their co-accused emerging from a wheat crop. The appellants and their co-accused except Muhammad son of Moonda were armed with guns; Muhammad son of Moonda was empty handed. They shouted a Lalkara that Allah Bakhsh alias Bakhsha and Daim should be dealt with for the divorce of Mst. Ghulam Safia and for instituting the civil suit and that they should not escape alive. Irshad Ahmed, appellant, fired a shot at Allah Bakhsh alias Bakhsha hitting him in his head; Dosa fired hitting Allah Bakhsh alias Bakhsha in his right flank. Bashir Ahmad, appellant, fired at Daim hitting him in his right ear; he collapsed. Bati fired at Allah Bakhsh alias Bakhsha also hitting him in his right ear and Waryam fired hitting Daim on his left arm. Then all the accused persons fired shots at Allah Bakhsh alias Bakhsha and Daim hitting them on different parts of their bodies. Muhammad accused kept on exhorting his co-accused to kill them. Karam Ali did not go near for fear of his life but kept on raising alarm. His alarm and the gun reports attracted Amir son of Jiwan (not examined) and Wali son of Sajawal (P.W.11) who were proceeding from their Deras to the village. They also saw the occurrence taking place. Allah Bakhsh alias Bakhsha and Daim died at the spot.
7. Dr. Nazir Ahmad Anwar (P.W.4) performed the post-mortem examination of the dead bodies of Daim and Allah Bakhsh alias Bakhsha on 15-31983. He found the following injuries on the dead body of Daim:--
(1) A fire-arm wound of inlet 1 c.m. x 1 c.m. Over the front of right pinna, going under the base of skull. One pellet was recovered from subcutaneous tissues below the left pinna.
(2 to 8) 7 wounds of inlet each 1/2 c.m. x 1/2 c.m. In an area of 7 c.m. x 4 c.m. Over the lateral side of left elbow, with fracture of lower part of left humerous. Two pellets were recovered from the area of fracture. Corresponding perforations in the shirt were present.
(9 to 12) Four fire-arm wounds of exit each 1 c.m. x 1 c.m. On the medial side of left elbow.
Perforations in shirt were present.
(13 to 18) Six fire-arm wounds of inlet. Each 1/2 c.m. x 1/2 c.m. x going into the chest in an area of 5 c.m. x 4 c.m. Of the chest wall. On dissection lower part of the heart was found perforated, spleen and stomach were also found perforated. 2 to 4 pints of blood was present in the left side of chest.
3 L.G. Type of pellets were recovered from the tissues of epigaltruim and two from the left side of the chest. Left 6th and 7th ribs were also found fractured under the wound of inlet. Corresponding perforations in the shirt and Saluka were present.
' In his opinion, death was due to haemorrhage and shock resulting from all the injuries which were sufficient to cause death in the ordinary course of nature. All the injuries had been caused by fire- arms and were ante-mortem. Death was immediate and probably time between death and post- mortem examination was 12 to 18 hours. Exh.P.G. Is the post-mortem examination report and Exh.P.G./1 is the diagram of his injuries.
8. On the dead body of Allah Bakhsh alias Bakhsha, the doctor found the following injuries:-
(1) A fire-arm wound of inlet 3 c.m. x 3 c.m. x going into the skull over the front of right pinna. On dissection, the skull was found fractured into many pieces, involving whole of it, the brain matter was mostly damaged. Five pellets and 3 pieces of wad were recovered from the brain matter.
(2) A fire-arm wound of inlet 1 c.m. x 1 c.m. Over the right side of the head going into the skull.
(3) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m. Below the left pinna.
(4) A fire-arm wound of inlet 3 c.m. x 2-1/2 c.m. Going into the chest above and medial to right nipple. On dissection right lung was found perforated.
(5) A fire-arm wound of exit 5 c.m. x 4 c.m. Over the back of right side of chest.
' Perforations corresponding to injuries Nos. 4 and 5 were present in the shirt, sweater and the vest.
(6) A fire-arm wound of inlet 1/2 c.m. x 1/2 c.m. Over the right side of the chest, going into the chest.
(7) A fire-arm wound of inlet 3 c.m. x 3 c.m. Over the right side of abdomen, going into the abdomen, on dissection multiple perforations were present in the liver, gut and right kidney. One large six pellet was recovered from the area corresponding to perforations in the liver.
Corresponding perforations in the sweater, vest and shirt were present.
(8) A fire-arm wound of inlet 2-1/2 x 2-1/2 c.m. Over the back of left hand. There was fracture of 4th and 5th matacarples underneath.
(9) A fire-arm wound of exit 3 c.m. x 3 c.m. Over the palm of left hand.
(10) A fire-arm wound of inlet 3 c.m. x 3 c.m. Over the dorsum of right forearm with fracture of ulna underneath. Pieces of wad (3 in number) were recovered from this area.
(11) A fire-arm wound of exit 8 c.m. x 4 c.m. Over the ventral side of right forearm.
' Death was due to haemorrhage and shock resulting from all the injuries which were sufficient to cause death in the ordinary course of nature. The injuries had been caused by fire-arms and were ante-mortem. Death was immediate and probable time between death and post-mortem examination was 12 to 18 hours. Exh.P.H. Is the post-mortem examination report and Exh.P.H./1 is the diagram of his injuries.
9. Ch. Dildar Ali S.I. (P.W.17), who partly investigated the case, stated that he was present at bus- stand Rukan on 14-3-1983 when Karam Ali P.W. Appeared before him and made statement (Exh.P.K.). He sent the complaint to the police station and reached the spot. There he prepared the injury statement (Exh.P.O.) and inquest report (Exh.P.Q.) in respect of Daim and injury statement (Exh.P.R.) and inquest report (Exh.P.S.) in respect of Allah Bakhsh alias Bakhsha and sent the dead bodies for post-mortem examination. He collected blood-stained earth from the place where the deceased man Daim had fallen and made it into a sealed parcel vide memo. Exh.P.L. He also collected blood-stained earth from the place where Allah Bakhsh alias Bakhsha had fallen and made it into parcel vide memo. Exh.P.M. He found at the spot ten empties of .12 bore cartridges; they are P.17 to P.26. He made them into a parcel vide memo. Exh.P.N.
10. He arrested the accused persons Dosa, Bashir Ahmad, Bati and Muhammad on 6-4-1983; Ghulam Qadir on 29-4-1983 and Waryam on 3-5-1983. On 6-4-1983, Irshad Ahmad, appellant, led to the recovery of gun P.1 from his residential house; it was made into a parcel vide memo. Exh.PA.
On 13-4-1983, Bashir Ahmad, appellant, led to the recovery of gun P.2 from his residential house; the gun was made into parcel vide memo Exh.P.B. On 29-4-1983, Ghulam Qadir appeared before him and produced gun P3 which was made into a parcel vide memo. Exh.P.C. On 3-5-1983, Waryam accused produced gun P.4 and it was made into a parcel vide memo. Exh.P.D.
11. Razzaq Ahmad A.S.I. (P.W.13) also partly investigated the case. He arrested Irshad Ahmad, appellant, on 31-3-1983 from Wah Factory where he was employed in the Army. While in his custody on 19-4-1983 Bati and Dost Muhammad accused persons led to the recovery of guns P.17 and P.18 which were made into parcels vide memos. Exh.P.O. And Exh.P.Q. Respectively.
12. At the trial, the prosecution called 17 witnesses including Dr. Nazir Ahmad Anwar (P.W.4), Ch. Dildar Ali S.I. (P.W.17) and Razzaq Ahmad A.S.I. (P.W.13). The prosecution case primarily rested upon the ocular testimony of Karam Ali (P.W.7) and Wali (P.W.11). In support of its case, the prosecution also relied upon the fact that 5 crime empties matched with the gun of Irshad Ahmad, appellant, and four crime empties matched with the gun of Bashir Ahmad, appellant. To prove this fact, the prosecution tendered in evidence the report Exh.P.V. Of the Forensic Science Laboratory.
13. The evidence of the remaining P.Ws. Can be dealt with at once and shortly as follows.
14. Anara (P.W.1), a first cousin of Daim, deceased, had witnessed the recovery of gun P.1 from Irshad Ahmad, appellant, vide memo. Exh.PA., and the recovery of gun P.2 from Bashi'. Ahmed, appellant, vide memo. Exh.P.B. He had also witnessed the recovery of gun P.3 from Ghulam Qadir accused. In cross-examination, he said that before the recovery of guns from Irshad Ahmad, and Bashir Ahmad, appellants, 'the police had visited our village and police had been raiding the houses of accused persons in order to effect their arrest', adding that the police had visited their village two or three days before the arrest of Irshad Ahmad, appellant. He was, however, not present when the police had so raided the houses.
15. Muhammad (P.W.2) had witnessed the recovery of gun P.4 from Waryam accused.
16. Lala (P.W.3) had identified the dead bodies of the deceased persons at the time of post-mortem examination. He had also witnessed the recovery of guns P.5 and P.6 from Dosa and Bati accused persons vide memo. E.Xh.P.E. And P.F. Respectively.
17. Naseerud Din Patwari (P.W.5) had prepared the site plan Exh.P.I and P.I./1 in the scale of 20 Karams to an inch on 14-3-1983.
18. Irshad Ahmed Head Constable (P.W.6) had escorted the dead bodies from the spot to the mortuary.
19. Gulzar Hussain Shah Head Constable (P.W.9) had received two sealed parcels containing blood-stained earth and one parcel containing empties from Ch. Dildar Ali S.I. On 16-3-1983. He had kept those parcels in the Malkhana. He gave those parcels to Muhammad Aslam F.C. For delivery at the offices of the Chemical Examiner and the Frorensic Science Laboratory. On 28-3-1983, the Constable brought back the parcel of empties with an objection. He kept that parcel in the Malkhana safely till 1-4-1983 and gave the said parcel to Muhammad Aslam F.C. For delivery at the office of the Forensic Science Laboratory.
20. On 6-4-1983, Ch. Dildar All S.I. Gave him a sealed parcel containing gun; he kept it safely till 12- 4-1983 when he gave it to Rashid Ahmad F.C. On 13-4-1983 Ch. Dildar Ali S.1. Gave him another parcel containing gun; he received two sealed parcels containing guns from Abdur Razzaq S.I. On 19-4-1983. He kept those parcels safely till 29-4-1983 when he gave them to Sardar Khan F.C. For being taken to the office of the Forensic Science Laboratory.
21. Bahadur Khan F.C. (P.W.10) took two sealed parcels containing guns on 17-5-1983 and delivered them in the office of the Forensic Science Laboratory.
22. Ghazanfar Ali (P.W.12) had merely prepared the challan. Alam Dar Hussain Shah F.C. (P.W.14) had given two parcels containing guns to Bahadur Khan Constable for delivery at the office of the Forensic Science Laboratory, Lahore.
23. Muhammad Aslam Constable (P.W.15) stated that the Moharrar Head Constable had, on 24-3- 1983, given him two parcels one containing earth and the other containing empty cartridges and he had delivered the parcel containing blood-stained earth safely. As to the parcel containing empties, it was returned with an objection and he had given it back to the Moharrar Head Constable. The latter again gave the parcel to him on 1-4-1983 and he had delivered it safely on 2- 4-1983. He added that the parcels had remained intact so long as they remained with him.
24. Sardar Khan Constable (P.W.16) testified to the fact that on 29-4-1983, he had taken three parcels containing guns and safely delivered them at the office of the Forensic Science Laboratory, Lahore.
25. In their statements under section 342, Cr.P.C. The appellants and their co-accused denied having had anything to do with the murders of Daim and Allah Bakhsh alias Bakhsla. According to them, they had been falsely implicated on account of enmity. As to the murder of Shera, real maternal-uncle of Irshad Ahmad, appellant, the latter stated that 'there had been a compromise between the parties and Mst. Safia was married in exchange'. He denied the fact that Aroora was murdered 8/10 years earlier and Muhammad accused and others were challaned and the case was compromised. He, however, admitted that Mst. Safia was married to Muhammad Ashiq 'due to a compromise having been effected between the parties and Ashiq had no male issue, she was divorced and then she was married to Ranjha, real brother of Anara P.W. Before the occurrence'.
According to him, Daim had never instituted a civil suit against the accused persons.
26. He tendered in his defence certified copies of the order of Civil Judge, Mandi Bahauddin dated 7-3-1982 (Exh.D.B.) Khasra Girdawri (Exh.D.E.) and Aks Shajra (Exh.P.F.).
27. Bashir Ahmed, appellant, also said that the murder of his maternal-uncle was compromised; he denied that Muhammad etc. Were challaned for the murder of Aroora; according to him, the brother of Muhammad accused was challaned with others.
28. The learned trial Judge found 'that the prosecution has established the motive as against the accused Irshad and to a lesser degree as against Bashir accused. No other motive has been attributed to any other accused nor was even asserted'. As to the ocular testimony of Karam Ali and Wali P.Ws., the learned trial Judge was 'not convinced with the contention of P.W.11 Wali that at the relevant time, he was coming from the Dera of Manak or that of his own Dera as the existence of both the Deras is nowhere established'. In his view, therefore, `the presence of Wali at the time of occurrence cannot be safely believed'. After so excluding the evidence of Wali P.W., the learned trial Judge held that `complainant Karam Ali alongwith his nephew Allah Bakhsh deceased and Daim had gone to Mandi Bahauddin and came back in the evening on the fateful day'.
29. After a scrutiny of the evidence of Karam Ali P.W. The learned trial Judge reached the conclusion that 'except accused Irshad and Bashir the participation of the remaining six accused is not fully established and is shrouded under mystery. At the time when the offence was committed, it is not plausible to believe that the complainant Karam Ali would have identified each and every accused with minute details of firing at the deceased. He himself was in the close range of the accused and was having inimical terms towards them but he was not injured at all'. Thus it seems to him that 'by way of abundant caution and safe dispensation of justice, it will be feasible to give benefit of doubt to the accused Bati, Dosa, Umra, Qadir, Waryam and Muhammad'. As regards the appellants, their case, it was held by the learned Additional Sessions Judge, stood on different footing. As against them, if any corroboration was needed, so observed the learned trial Judge', 'it can be found in the report of Director Forensic Science Laboratory Exh.P.V. According to which the crime empties mark C.1 to C.2, C.6 and C.10 were fired from the gun P.1 secured from the accused Irshad, wheras empties C.4, C.5, C.8 and C.9 were found to have been fired with the gun P.2 secured from the accused Bashir. The securing of 10 fire empties P.17 to P.26 from the place of occurrence is not a disputed fact'.
30. Learned counsel for the appellants argued that Wali P.W. Was rightly disbelieved by the learned trial Court; he referred to the observations of the learned trial Judge regarding Karam Ali P.W. And contended that his evidence was also doubtful and should haNYe been disbelieved. In this connection, he particularly called our attention to the observations of the learned trial Judge that Karam Ali P.W. Had made improvements in his statement at the trial. For instance, in his statement (Exh.P.K.) he had said that 'it was Irshad who gave a straight fire shot to Bakhsha on his head whereas second shot was made by Dosa on his right flank on which Bakhsha fell down. Bashir son of Lala gave a fire shot to Daim on his right car, whereas Waryam fired a gun shot to Daim on his right arm who fell down. Thereafter, all the accused started firing one by one to both the deceased on the various parts of their body. Same version was narrated by him in his statement before the Court out here he improved his version by stating that Qadir accused also fired at Daim on his belly'. This specific injury, so commented the learned trial Judge, was not mentioned by him in his statement Exh.P.K. During cross-examination, he further improved his version and deposed that Umra accused had also fired at Bakhsha by putting his muzzle on his right arm. 'This specific attribution of injury to Umra was not earlier mentioned in his statement Exh.P.K.' It appeared to the learned trial Court, therefore, that the complainant was interested to exaggerate his version in order to implicate maximum number of accused by giving them specific roles. Learned counsel also referred to the criticism of Karam Ali P.W.'s testimony by the learned trial Court, namely, that Karam Ali 'did not know as to how many fires were being made by the accused persons after both the deceased had fallen on the ground' adding that `this witness was not clear in his mind as to the actual firing attributed to each of the accused'. In support of his contention that Karam Ali P.W. Had not seen the occurrence taking place, learned counsel pointed out that if Karam Ali and the deceased persons had travelled by bus before the incident, the bus tickets should have been on the dead bodies or should have been with Karam Ali P.W. In this behalf, he also referred to the Investigating Officer's admission that no money was found on the dead bodies. Learned counsel also contended that the story that Karam Ali had reported the incident to Dildar Ali S.I. At the bus stand is belied by the fact that the former stated that Karam Ali was present at the spot when he reached there and that Wali P.W. Said that Karam Ali P.W.'s statement was recorded at the spot. In any case, so runs the argument, Karam Ali P.W. Himself was an interested witness and his testimony required corroboration. In his view, the alleged recovery of empties from the spot and the guns from the appellants was doubtful and it could not serve as corroboration to the testimony of Karam Ali P.W. The empties, it was pointed out, did not find mention in the F.I.R. Or in the inquest reports and Wali P.W., himself, an interested witness, who deposed to the recovery of empties, admitted that he had not signed any papers on that day. As to the guns, the only public witness Anara, it was argued, was an enemy of the appellants and their co-accused; he had admitted that houses of the accused persons had been raided before the guns were recovered which according to the learned counsel should mean that the houses of the appellants had been searched before the recovery but no guns had been found.
31. Learned counsel for the State and the learned counsel for the complainant on the other hand were of the view that the learned trial Court had wrongly disbelieved Wali P.W. They maintained that the F.I.R. Was lodged promptly and the recovery of empties from the spot and the guns from the appellants was fully proved.
32. The first contention of the learned counsel for the appellants calls for some comments on the concept of corroboration. The word 'corroboration' is not a technical term of art but a dictionary word bearing its dictionary meaning which by itself means no more than evidence tending to confirm other evidence. (Lord Hailsham in D.P.P. V. Kilbourne 1973 (A.C.) 729; nor is there anything technical in the idea of corroboration. 'When in ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statement or circumstances with which it fits in.' (Lord Reid in D.P.P. v. Kilbourne's case referred to above). In that case Lord Hailsham had (at page 746) said that:-- "Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness's testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness's testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise."
' Elaborating upon these observations in Boardman v. D.P.P. (1975) 60 Criminal Appeal Reports 165 at 183), Lord Hailsham said:-- "What I said in Kilbourne (Supra) was not that to give or require corroboration a witness must be believed without doubt. What I said, and what I meant, was that unless a witness's evidence was intrinsically credible, he could neither afford corroboration nor be thought to require it. In such cases, the witness's evidence is rejected before the question of corroboration arises. Of course, a conviction in such a case can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is strong enough. But this is because the independent evidence has proved the case independently of the unreliable witness, and not because the unreliable witness is corroborated."
33. Along the same lines, we venture to think, has the law of corroboration developed in Pakistan. In the leading authority on the point, Niaz v. The State PLD 1960 SC 387 it was held that 'whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony'. Elaborating upon these observations in Nazir and others v. The State PLD 1962 SC 269 it was held:-- "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 alongwith 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."
' In Asadullah v. Muhammad Ali PLD 1971 SC 541, the High Court had considered the evidence of the eye-witnesses, Mst. Rajan and Mst. Munawar Bibi, in isolation from the corroborative evidence comprising the incriminating recoveries and had 'in the first instance rejected the evidence of Mst.
Rajan and Mst. Munawar and then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused persons with the crime more particularly as the entire ocular evidence had been disbelieved'. Disapproving this approach it was ' The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case.
Indeed it would be anamolous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be the basis of conviction."
34. The principle to be gleaned from decided cases may be summed up as follows. In the case of an ordinary interested witness, as in the case of any other witness, the first question the Court must ask is whether he had seen the incident taking place and was in a position to identify the culprit. In other words, the Court must first decide if the evidence of a witness is intrinsically credible. Only if the answer be in the affirmative, can the question of corroboration of an ordinary interested witness arise. For, it is not the purpose of corroboration to give validity or credence to evidence which is intrinsically incredible. To illustrate, suppose that in this case, the accused were able to show by unimpeachable evidence that Karam Ali P.W. Was, at the time of the occurrence, confined in jail in Lahore and it was, therefore, impossible for him to be present at the place of occurrence.
Assuredly, no amount of corroborative evidence would make this evidence, that it was the appellants who had shot and killed the deceased men, credible. In such a case, the evidence of a witness is rejected before the question of corroboration arises. While an ordinary interested witness is one of that category of witnesses whose evidence is suspect evidence, it may well be that the evidence of an otherwise disinterested witness is, in some respects, open to doubt. In either case, the prosecution can legitimately call to its aid other evidence which confirms in some material particular not only the evidence that the crime has been committed but also that the accused person committed it In such cases both the ocular evidence and the corroborative evidence must be read together.
35. Having perused the evidence of Wali PM, in the light of the criticism to Which it was subjected by the learned trial Judge, we find that the learned trial Judge was not right in excluding the testimony of Wali P.W. He said that he and Amir P.W. Were coming from the Dera of Manak where they cultivated land as tenants. That Dera was towards the east of place of occurrence at a distance of 14/15 Killas. He had been cultivating that land for the last 7/8 years as tenant of Manak. He did not know that father's name of Manak. The learned trial Judge referred to the statement of Anara P.W., namely, that Wall P.W. Had no Dera of his own and that he resided at the Dera of Nazar, resident of Rukan. In this connection, he also referred to the statement of Nasir-ud-Din (P.W3) who had prepared the site plan (Exh.P.I.) namely, that the P.Ws. Had told them that they were coming to the Dera of Umar Hayat and Khizar sons of Saee. That Dera was at a distance of 500 Karams to the east of the place of occurrence. Now what Anara P.W. Said was that Wall P.W. Resided at the Dera of Nazar, resident of Rukan; he did not say that Wali P.W. Had no cultivation at the Dera of Manak or that Manak did not own a Dera at his lands. The alleged statement of the P.Ws. To the Patwari, which statement was not put to Wall P.W., namely, that they were coming to the Dera of Umar Hayat and Khizar Hayat also did not affect the claim of Wali P.W. That he and Amir were coming from the Dera of Manak; nor did the statement of Dildar Ali Si. That Amir and Wali P.Ws. Were coming from their Deras to the village side when they saw the occurrence, in any way, affected the truth of Wali's claim. In our opinion, therefore, the reasoning on which the learned trial Judge proceeded to reject the testimony of Wali P.W. Cannot be sustained. Karam Ali P.W. Said that he alongwith the deceased persons had gone to Mandi Bahauddin; they had dismounted the bus at Bhallowal More and they had covered a distance of three squares from the bus stand when the appellants and their co-accused launched the attack. He had sat for urination and was at a distance of 70/72 Karams from the deceased persons when the deceased persons were shot and killed. He was cross-examined with reference to their going to Mandi Bahauddin. He said:-- "We had proceeded to Mandi Bahauddin in connection with the bail matter of Bati son of Piran of our village who is Sohla by caste. He was arrested by the police 5/10 days before the occurrence.
He had his hearing before Abdus Sattar Magistrate at Mandi Bahauddin. But the date was adjourned to 16-3-1983. We had not participated in any proceedings of the bail matter. We had reached the Court premises at 910 a.m. We were free from the Court at Peshiwela. It took us two hours from Mandi Bahauddin to Bhallowal More."
Thus, if we may say so, he satisfactorily explained his going to Mandi Bahauddin in the company of the deceased persons. Nothing was brought out in his cross-examination to bely him. In our view, the absence of bus tickets or any money on E the dead bodies does not by itself afford reason to think that Karam Ali P.W. And the deceased persons were not together at the time of occurrence.
Nor was the failure of Karam Ali P.W. To produce the bus tickets before the Investigating Officer was a circumstance militating against the truth of Karam Ali P.W.'s testimony. After a passenger has left the bus, the ticket loses its utility and it is a mere waste paper. It was, therefore, idle to expect Karam Ali P.W. Or the deceased persons to preserve the bus tickets. We find no inconsistency in the testimony of Karam Ali P.W. And Dildar Ali S.I. As regards the recording of the I statement (Exh.P.K.) at the bus stand. Karam Ali said that his statement was recorded at the bus stand and this was what Dildar Ali S.I. Also said. In cross-examination, Dildar Ali S.I. Did say that Karam Ali was present when he reached the spot but it may well be that Karam Ali had reached the spot before the Investigating Officer. Reference was then made to Wali P.W.'s so-called admission that 'Karam Ali P.W. Had narrated the occurrence before the police at the time of arrival. It is correct that the case was registered at the instance of Karam Ali and he had thumb-marked his statement at the spot'.
He added that `only the case was registered but no thumb-impression was obtained. The police took one and a half hour for the registration of the case'. Read as a whole, this statement shows that what Wali P.W. Was referring to as the registration of the case was the preparation of inquest reports etc. At the spot. As to the alleged improvements in Karam All P.W's. Statement they related to the acquitted accused persons, who were, in our view, rightly given the benefit of doubt.
36. A word about the learned trial Judge's observation that Karam Ali 'was not clear in his mind as to the actual firing attributed to each accused'. We have noticed a tendency among the witnesses to enter into great details of the incident and to state with particularity the part each accused had played, irrespective of the number of the accused persons. This tendency, it appears, is fostered by the Investigating Officers and the prosecutors and is also to a large extent attributable to questions in cross-examination directed at eliciting the minutest details from the witnesses. The result is that witnesses go so far as to say whose shot hit whom and where. However, keen the sense of observation of a person may be, we wonder if it is possible for him to see whose shot hit the victim and where. In this connection, we would be content to say, so far as the Court is concerned, that too much concern for details can sometimes cause one not to see the forest for the trees.
37. There is, however, no doubt that both Karam Ali and Wali P.Ws. Were interested witnesses in the accepted sense of that expression. Wali P.W. Admitted that his nephew Bashir Ahmad was murdered in an incident in which he was also injured and that Karam Ali P.W. Was an eye-witness in that case. He also admitted that Shera, a maternal-uncle of Irshad, appellant, had attacked his (Wali's) brother Ali with a hatchet and his hand was cut off. A case was registered against them.
Then the said Shera alongwith Lala, father of Bashir Ahmad, appellant, had given Sota blows to Wali P.W. They were challaned and acquitted. Karam Ali P.W. Was an uncle of Allah Bakhsh alias Bakhsha, deceased. As has been noticed above, one of the alleged motives was that Shera, a maternal-uncle of Irshad Ahmad, appellant, was murdered by the father of Allah Bakhsh alias Bakhsha, deceased. They were tried and acquitted. Then Aroora was murdered and the relatives of Muhammad accused were challaned; it was in connection with that murder that a compromise was effected and the hand of Mst. Safia, sister of Irshad Ahmad, appellant, was given to Ashiq son of Aroora. Shortly before this incident, Ashiq had divorced Mst. Safia. Karam Ali P.W. Went so far as to say that they were 'inimical with each other since our forefathers'. It, therefore, inevitably follows that the testimony of Karam Ali and Wali P.Ws. Required corroboration.
38. The recovery of empties from the place of occurrence was deposed to at the trial by Wali (P.W.11) and Dildar Ali S.I. (P.W.17). The empties were ten in number. It was argued that Wali being an interested witness, his testimony required corroboration on this point also. But then there is the testimony of Dildar Ali S.I. He had visited the spot immediately after recording the statement (Exh.P.K.) at the bus stand and had while inspecting it found the empties at the place from where the appellants had fired shots. That place was in a wheat field at a distance of 15 Karams from the dead bodies and that accounts for the absence of their mention in the F.I.R. And in the inquest reports. The parcel containing empties was received in the office of the Forensic Science Laboratory on 2-4-1983. The guns from the appellants were recovered long thereafter, from Irshad Ahmad on 6-4-1983 and from Bashir Ahmad on 13-4-1983. There was, therefore, no question of fabricating the empties from the guns of the appellants. The recovery of guns from the appellants was deposed to by Anara (P.W.1) and Dildar Ali S.I. (P.W.17). Anara was an interested witness but as held above, there is no reason to discard the testimony of Dildar Ali S.I. As to the raid at their houses before the recoveries, what Anara P.W. Said was that the 'police had visited our village and police had been raiding the houses of accused persons in order to effect their arrest. The police visited our village 2/3 days earlier of the arrest of Irshad accused'. He had not accompanied the police at the time of those raids. In any case, the raids were for the purpose of the arrest of the appellants and there is no evidence that the houses of the appellants were searched and no guns were found.
39. Learned counsel for the appellants at one stage expressed some doubt that the guns G.1 and G.2 mentioned in the Forensic Science Laboratory's report (Exh.P.V.) were the very guns recovered from the appellants. We, therefore, summoned the guns and after examining them, learned counsel for the appellants was satisfied that the guns marked as G.1 and G.2 in the Forensic Science Laboratory's report were the guns of the appellants.
40. For these reasons we hold that the appellants were rightly convicted under section 302, read with section 34 of the P.P.C.; we also hold that there is no reason warranting interference with the sentences either. We would, therefore, dismiss the appeal of Irshad Ahmad and Bashir Ahmad, appellants, and confirm their death sentence. The appeal and the reference under section 374, Cr.P.C. Are disposed of accordingly.
41. As to the acquittal of Bati, Dosa, Umra, Ghulam Qadir, Waryam and Muhammad, we do not think that any interference is called for. To each of them, other than Muhammad, were ascribed shots but no empties were found to have been fired from the guns recovered from them. Further, the testimony of Karam Ali and Wali P.Ws., as regards all the acquitted accused persons, also required corroboration and none was forthcoming. We would, therefore, dismiss the revision of Karam Ali complainant.
Appeal and .