' MUHAMMAD AFZAL LONE, J.---This appeal through leave to appeal has been filed by the complainant from the High Court's judgment, dated 8-4-1985, whereby the appeal of Zulfiqar, Nasar Khan and Niaz Ahmad, respondents Nos. 1 to 3 herein, against their convictions and sentences under section 302/34, P.P.C. By the learned trial Court were set aside and they were acquitted of all the charges against them by giving them benefit of doubt.
2 The facts and points noted in the leave granting order are: "Zulfiqar, Nasar Khan, Niaz Ahmad and Inayat Ullah were tried for the murder of Lai Khan, a Councillor, on 31st of December, 1980, at 9-15 P.M. At Chauk Dakhana in Gojra Town, District Toba Take Singh. Inayat Ullah was acquitted by the trial Court while the other three were convicted under section 302 read with section 34, P.P.C., Zulliqar was sentenced to death while the other two to imprisonment for life.
' The motive which triggered the present incident was a dispute over Local Body's election. The deceased, who was opposed by the accused party, was elected and on the date of the election in September 1979, Muhammad Idris, the brother of Nasar Khan, was murdered and in that 'case Faqir Muhammad, father of the deceased and his brother Muhammad Ashraf were implicated along with other persons. However, the deceased through his influence got his father and one Idris Ahmad declared as innocent. This Idris Ahmad was not connected with either the complainant or the accused party. The convictions turned on the ocular testimony of Muhammad Sharif (P.W.7) and Muhammad Din (P.W.8) a Paleydar employed at the shop of Muhammad Sherif. Muhammad Ashraf, although named in the FIR, was given up as unnecessary witness.
' The trial Court accepted the ocular testimony while convicting Zulfiqar and the other two accused.
On appeal and reference, the High Court acquitted all the three holding that in the absence of independent corroboration, the ocular testimony which was deeply interested and inimical towards these persons could not be accepted. Additionally, the High Court also relied on the statement of the D.S.P. Produced in defence whose testimony mainly related to his investigation and opinion as to the presence of two other witnesses namely, Tufail Whammed and Naeem Zaffar whose presence, according to him, was not probable and that according to Naeem Zaffar it was Idris who had attacked the deceased. All this militated against the version in the FIR.
' The learned Counsel for the petitioner contends that the High Court wrongly took into consideration the material pertaining to investigation as that was inadmissible in evidence and that further the appreciation of the evidence qua its quality was not properly assessed in the facts and circumstances of the case ' Upon examining the material on record, we are of the view that the evidence requires reappraisal in order to avoid miscarriage of justice.
' Accordingly, while refusing leave to appeal against Inayat Ullah, we will grant leave against the other three namely, Zulfiqar, Nasar Khan and Niaz Ahmad to examine as to whether their acquittal was proper."
3. On behalf of the appellant it has been contended that he is brother of the deceased and lodged the FIR promptly. That the deceased suffered a single shot fired from a close range at his back and thus, there was no question of mistaken identity of at least the main culprit. It being so, in the submission of the learned Counsel for the appellant, the eye-witness' account should have been accepted. According to the Medical Officer who conducted the post-mortem on the dead body of the deceased, there was a burning around the wound and blackening on the holes of loee. In the opinion of the doctor, the shot might have been fired within one or two yards. On the basis of the medical evidence, it has been argued that the part ascribed to Nasir Khan and Niaz Ahmed was plausible as the main accused i,e, Zulfiqar could not have fired at the deceased from a close range, unless they held him and facilitated the commission of the offence. An attempt was thus made to delude the rejection of the ocular evidence by the High Court.
' The point urged at the leave granting stage criticising the High Court's reliance on the result of the investigation by the D.S.P. Crimes Branch, has also been reiterated before us.
4 The reasons given by the High Court in the impugned judgment in granting the benefit of doubt to the respondents and acquitting them of the charges against them are: "...Mere there is a background of extreme enmity between the parties. The two eye-witnesses who have been produced are highly interested. Their testimony is not being corroborated by any piece of evidence coming from an independent source. The medical evidence in the instant case, the manner in which the deceased had been fired at, the promptness of the F.I.R., the investigation etc. Are not the factors which could possibly corroborate the tainted and interested ocular testimony. It was also argued on behalf of the complainant that Nasir Khan appellant was the person who was directly connected with the motive and, therefore, if the complainant side was falsely implicating them, they would have ascribed the main role to him rather than to Zulfiqar appellant. But that in our view is irrelevant because Zulfiqar appellant is behnoee (brother-in-law ) of Nasir Khan appellant whereas Nasir Khan appellant and Niaz Ahmad appellant are cousins inter se. We also cannot ignore the fact that the matter was reinvestigated by a D.S.P. From the Crimes Branch who in the course of his investigation had arrived at a different conclusion. We also cannot ignore the fact that usually when there is enmity based on the election rivalry between the parties, there is a possibility of falsely implicating as main accused either the rival himself or some close or dear member of his family, although the job may have been performed by a worker or a servant of one party or the other. Consequently, each of political or election rivalry or enmity between the parties must be considered according to its own peculiar facts and circumstances. In the present case even if one were to say that Nasir Khan appellant was the main political rival, the other members implicated are Niaz Ahmad appellant, cousin of Nasir Khan appellant, and Zulfiqar appellant, behnoee of Nasir Khan appellant, whereas the acquainted co-accused, namely, Inayatullah Khan, is real maternal-uncle of Nasir Khan appellant. As we have pointed out earlier the ocular testimony in the instant case comes forth from highly interested witnesses who might have not been even present on the spot at the time of the occurrence. Even learned counsel for the complainant could not help conceding that even if benefit of doubt could be given in a case of this nature, it could be given to the acquitted co-accused, Inayat Ullah Khan or Nasir Khan and Niaz Ahmad appellants. If we are to arrive at the conclusion that they deserve to be given the benefit of doubt because the ocular testimony was unreliable, being highly interested and hostile and was uncorroborated, then there is no reason why Zulfiqar appellant should also be not given the benefit of doubt and acquitted like others."
5. The reasons given by the High Court in setting aside the conviction and sentences of the respondents are well grounded. The motive set up by the prosecution amply demonstrates that there was severe enmity between the complainant side and the family of the respondents which emanated during the Local Body's election of 1979, wherein the deceased was elected as Councillor. The accused side had supported the opposing candidate. It is in evidence that on the date of election Muhammad Idris, brother of Nasar Khan Respondent, was murdered and a criminal case was registered against the deceased's brother Muhammad Ashraf and his father Faqir Muhammad. It is a different matter that both of them were declared innocent by the Investigating Agency. The respondents, however, dubbed this action of the police as an outcome of the influence exerted on the police. It is noteworthy that Muhammad Ashraf was cited as an eye- witness in the instant case but was given up. It is thus, obvious that grudge and hostility was rife between the parties. The prosecution case is entirely founded on ocular evidence comprising testimony of Muhammad Sharif and Muhammad Din. The former is the brother of deceased and the latter has been working as a Palledar with the father of the deceased for about 9/10 years in the Grain Market Gojra. While appearing as a witness, he admitted the clash between the parties during election and that his uncle Noor Muhammad was a prosecution witness in a criminal case against Idris and others for launching a murderous assault on Muhammad Sharif PW. When the relations between the parties were bedeviled by strong animosity; coupled with the fact that one witness is real brother of the deceased and the other an old servant of his father, the High Court justifiably considered them as highly interested witnesses and inimical towards the accused party.
6. It is well settled that no implicit reliance can be placed on the testimony of such inimical and partisan witnesses unless there is a corroboration in some material particulars as to the facts of the crime and connecting the accused with the commission thereof. Unfortunately, no such corroboration is forthcoming in the instant case. No recovery has been made in this case. Even the blood-stained earth was not taken into possession from the place of occurrence. The argument of the learned Counsel for the appellant, however, is that respondents Nos.2 and 3 overpowered the deceased from his arms, respondent No,1 fired a shot from a close range at his back; he fell down on his face; his chest cavity was filled with blood and it, therefore, did not spilt over the spot. But, this hypothetical explanation hardly finds any support from the record and thus, no weight can be attached to it. It may be added that no crime empty was collected and the weapon of offence was also not recovered from the accused. There is thus, no evidence of recoveries to furnish any corroborative value.
7. It remains to be considered that upon the facts of the case, how far the medical evidence on which much emphasis has been laid down by the appellant's Counsel can provide the requisite corroboration. Significantly, in this connection the learned Judges of the High Court noticed that the fact that the deceased was fired at from a close range, is not disclosed in the F.I.R. In their opinion, it was after receipt of report of the Medical Officer that the witnesses in their deposition before the trial Court took up the stand that the shot was fired from a close quarter. This analysis of the evidence is not without substance. In any case, if the ocular evidence is not found trustworthy, the medical evidence alone cannot offer the required corroboration.
8. For sustenance of the conviction on a capital charge rested wholly on the ocular evidence, such evidence must be of an unimpeachable character. When the evidence is offered by witnesses whose independence is not aboveboard and rather they are inimical, their testimony should be scrutinized cautiously, in the light of the surrounding circumstances of the case, before fixing the responsibility on the accused. On our careful examination of the testimony of the two eyewitnesses we discover the same as tainted with partisanship and wrought with inherent infirmities, casting doubt on. The truthfulness of the charges against the respondents. We are of the view that it shall not be conducive to safe administration of justice, to base conviction on the un-corroborative testimony of such witnesses.
9. As regards High Court's reliance on the testimony of Abdul Waseh, D.S.P. Crimes Branch, mentioned in the leave granting order, the learned Counsel for the appellant, during his arguments, has not touched upon this issue. The tenor of the impugned judgment shows that the part of his testimony relating to investigation, was neither treated by the High Court as substantive piece of evidence nor its decision rested thereon. It was merely looked into by the learned Judges of the Division Bench in an effort to enlist a stray support for the conclusion arrived at by them from appraisal of the prosecution evidence in the broad spectrum of attending circumstances of the case. Such an exercise is not fatal to the legal efficacy of the impugned judgment.
10. It is clear to us that the High Court has followed the principles enunciated by this Court for appreciation of evidence, in the cases like the one in hand; analysed the material on the record properly and then chose to give benefit of doubt to the respondents. This Court ordinarily is loath to intervene in appeal against acquittal unless all the grounds on which the High Court proceeds to acquit the accused are not at all supportable from the evidence on the record. In Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) after consideration of a fairly large .
Number of cases, relating to appraisal of evidence against acquittal, the principle reiterated by this Court for setting aside the acquittal is: "The Court would not interfere with acquittal merely because on the reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
11. In view of the state of the prosecution evidence it is not possible to hold that the findings rendered and the order of acquittal passed by the learned Division Bench of the High. Court are so shocking and unreasonable that this Court should set aside the same. Consequently, this appeal fails, and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.