' SALEEM AKHTAR, J.---This appeal is directed against the judgment of the High Court of Sindh in a murder case whereby the order of acquittal passed by the learned trial Court was set aside and Hakim Ali, Mohammad Usman, Mohammad Panah and Haji Jaro alias Sultan were sentenced to life imprisonment. A fine of Rs,5,000 and In default of payment to suffer further rigorous imprisonment for six months was also imposed on all these persons. This appeal has been filed by Mohammad Panah, Mohammad Usman and Haji Jaro. Hakim All has not filed appeal against the impugned judgment.
2. The brief facts are that on 26-7-1981 in the morning deceased Abdullah alongwith the complainant Abdul Nabi, his son, and his Haris P.Ws. Azizullah and Mohammad Saleh went to look after the lands situated in Khai Taluka Garhi Yaseen. When they were returning back to their village, at about 7-45 a.m. Suddenly from the western side of the road Hakim Ali, Mohammad Usman, Mohammad Panah and Haji Jaro, residents of Khai appeared. Hakim Ali, Mohammad Usman and Mohammad Panah were armed with guns while Haji Jaro was empty-handed. Haji Jaro abused them and instigated the remaining accused to kill Abdullah because he had tried to forcibly occupy their lands. On such instigation Hakim All fired at Abdullah from the gun which hit him in the head and he fell down. In the meantime Mohammad Usman and Mohammad Panah also fired at the complainant's father Abdullah hitting him in the stomach and other parts of the body. They raised cries and fell down on the ground. The accused then went away abusing them. Leaving the two P.Ws. At the site with the dead body Abdul Nabi reported the matter at 8-15 a.m. To the police station which was 3 kms away from the place of incident. It was alleged that the accused had dispute with the cimplainant and his father over land in respect of which cases were pending in Court. ASI Rafiuddin proceeded to the Wardat and inspected the dead body in the presence of Mashirs Rasool Bux and All Gohar and secured blood-stained earth and two crime empties from the Wardat which were lying there. He prepared Mashirnama and sealed the empties and prepared an inquest report of the dead body and sent it for post-mortem. He recorded the statement of P.Ws. Mohammad Saleh and Azizullah and searched the house of the accused persons. At this stage the investigation was handed over by him to Additional SHO, Sahib Khan. On 30th January, 1981, Sahib Khan arrested all the four accused and recovered a licensed gun with live cartridges from Mohammad Usman in presence of the aforestated Mashirs. 01 8-8-1981 Sahib Khan secured an unlicensed gun of Hakim All at his pointation from the Chappar of his house in the presence of the same Mashir. The appellants and Hakim All denied the allegation made against them. In their statement under Section 342, Cr.P.C. They stated that they have been falsely involved in the case owing to enmity. Haji Jaro stated that he had no enmity with the deceased but was on inimical terms with one All Mohammad, father of P.W. Azizullah and in 1971 the father of Azizullah and All Gohar had filed a suit against him in Civil Court, Shikarpur, in respect of the land which was decreed and he had filed appeal against that judgment. It was also stated that Abdullah had filed a case against the appellants and Hakim All under section 307, P.P.C. In which Azizullah and Mohammad Saleh were also sentenced with other persons. It was also alleged that his cousin Imam Bux had also filed a case against P.Ws.Mohammad Saleh, Azizullah and complainant Abdul Nabi and one Abdul Qadir who was son of P.W. Rasool Bux who had been made Mashir in the case.
P.W. Azizullah had also filed a case against Haji Jaro and Hakim wherein Mohammad Muharram and one Shahmir were also co-accused. The learned trial Court acquitted all the accused in view of the discrepancies pointed out by it in its judgment which reads as follows:-- "The evidence of complainant Abdul Nabi shows that on that day P.Ws. Azizullah and Saleh had come out from their houses on their own accord. His father had gone to mosque earlier and then he came out of his house. On the other hand, P.W. Azizullah denying this fact, has stated that the deceased had called him from his house in the early morning, as he had on the preceding night called him for `Begar' on the said land. He stated further that the deceased and Abdul Nabi came together to him and thereafter they all three went to P.W. Saleh. It is, therefore, clear that the evidence of the complainant and P.W. Azizullah is contradictory to each other. Further the complainant has stated that they had gone to the lands for draining out the rain water and that they had no spade with them and had done the job with their hands. The evidence of P.W. Azizullah is that the spades were already available under the Minah over the lands and that police had seen the spades. There is no evidence of the Investigating Officer that any spade was seen by him.
Further there is also unreliable evidence with regard to the time of the incident. According to the complainant the incident occured at about 7-45 a.m. The report was lodged with the police at about 8-15 a.m. At Police Station, Garhi Yasin, which is about 3 km. Away from the scene of the occurence. Mashirnama of the inspection of Wardat shows that Wardat had been inspected at 8- 45 a.m. This means that about 30 minutes were taken by police in reaching the place of the occurrence from Police Station, Garhi Yasin. Inquest report of the dead body was also prepared at the spot. It is important to note that the evidence of Medical Officer is that the dead body had reached in the hospital at 8-30 a.m. If police had visited Wardat at 8-45 a.m. When the dead body was still lying there, then how it was possible to the Medical Officer to receive the dead body at about 8-30 a.m. At Garhi Yasin Police Station. Further the postmorten examination was conducted at about 9-00 a.m. According to the Medical Officer, the time that elapsed between the death and the post-mortem examination was about 4 hours. It means that the deceased had been done to death at about 5-00 a.m. Similarly, the evidence of the complainant is that the accused had fired on the deceased while standing together in the line on the right side of the deceased. The Medical Officer has belied this fact by stating that the deceased had been fired at from right as well as left side."
' In the acquittal appeal the learned Judges of the High Court did not agree with the reasonings of the learned trial Court and set aside the judgment making the following observation:- "We would like to point out that the occurrence of descrepancies in the evidence of the prosecution witnesses is not uncommon but the question which would require determination is, whether, the descrepancies are material so as to render the veracity of evidence of the witnesses doubtful. For determination of such question the Court would always look to the overall structure of the prosecution case in order to see whether the evidence of the witnesses otherwise coincides with the other circumstances of the case. If the evidence given by the witnesses coincides with the other circumstances of the case, then minor descrepancies occurring in the evidence can always be overlooked. We cannot be oblivious of the fact that the report of the incident which occurred at 7-45 a.m. Was promptly lodged by the complainant with the police at 8-15 a.m., the distance between the place of the incident and the police station being three kms. The F.I.R. Explicitly discloses the names of the witnesses, the names of the accused, the weapons carried by them and the part played by each one of them in the commission of the crime. The promptness with which the F.I.R. Was lodged leaves no room for any kind of consultation or deliberation. The evidence given by the eye-witnesses at the trial and at the time of the recording of their 164, Cr.P.C.
Statements also fully coincides with the version given by the complainant in the F.I.R. The genuineness of the F.I.R. Is further confirmed by the medical evidence, as the injuries, according to the doctor, had been received by the deceased on his head, abdomen, legs and other parts of the body. The above evidence is further corroborated by that of the Mashirs namely P.Ws. All Gohar and Rasool Bux. The motive for the crime, alleged by the prosecution also remained the same throughout without any improvement therein. The above evidence coupled with that of the recoveries of the crime weapons and the empties from the Wardat and their matching with each other are the additional circumstances, which cannot be overlooked by the Court, It may be pointed out that the evidence is to be evaluated in the light of the above circumstances and consequently we fmd it hard to discredit the evidence of the material witnesses in the case merely on the ground of the descrepancies referred to by the learned trial Court in its judgment.
' The learned trial Court has also ruled the evidence regarding the recovery of the crime weapons and the empties out of consideration for the same reasons, viz. That the evidence of the prosecution witnesses in this regard was not reliable. Both the Mashirs in the case, namely, Ali Gohar and Rasool Bux had supported the prosecution case on the point of recoveries. Their evidence is further supported by that of the Investigating Officer. As we have pointed out above, the evidence of these witnesses cannot be discarded as interested evidence. The defence, no doubt, tried to show that P.W. Rasool Bux was related to the complainant party, but the same was denied by the prosecution witnesses. Furthermore, no enmity has been alleged by the defence against the Investigating Officer whose evidence materially supports that of the Mashirs.
Consequently, we fmd it very hard to disbelieve the evidence regarding recoveries of incirminating articles from the accused.
' The learned trial Court has also disbelieved the evidence regarding the opinion of the Ballistic Expert given in respect of the crime weapon and the crime empties on the ground of delay.
However, the factual position is that the Investigating Officer was not cross-examined on this point to show that the parcel containing the crime weapons or the empties had been tampered with by the police before it had been sent for the opinion of the expert."
3. Mr. Azizullah Shaikh, the learned counsel for the appellants, contended that all the prosecution witnesses were inimical to the appellants and were closely related with each other, therefore, firstly their evidence should not have been accepted and secondly if it was at all to be accepted there should have been a strong independent corroborative evidence to support them. The learned counsel further contended that recoveries cannot form a corroborative evidence as the Mashirs are also interested persons and cannot be relied upon. The report of the ballistic expert cannot be relied upon as the empties were forwarded by him after an unexplained delay. The learned counsel also pointed out that as High Court was considering an acquittal appeal the principles laid down for consideration of such appeal have not been observed.
4. It is true that the High Court was considering an acquittal appeal and, therefore, the principles which require consideration to decide such appeal were to be kept in mind. In this regard several authorities have been referred in the impugned judgment to explain the principles for deciding an acquittal appeal. In the impugned judgment reference has been made to Niaz v. The State PLD 1960 SC (Pak.) 387, which was reconsidered and explained in Nazir and others v. The State PLD 1962 SC
269. Reference was also made to Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Khan and 6 others v. The Crown 1971 SCMR 264. The learned counsel has referred to a recent judgment of this Court in Yar Mohammad and 3 others v. The State in Criminal Appeal No,9-K of 1989, decided on 2nd July, 1991, in which besides referring to the cases of Niaz and Nazir reference has been made to Shoe Swarup v. King-Emperor AIR 1934 Privy Council 227 (1), Ahmed v.
The Crown PLD 1951 Federal Court 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, Ghulam Mohammad v. Mohammad Sharif and another PLD 1969 SC 398, Hamifuddin Khan v. The State 1972 SCMR 672, Khalid Sahgal v. The State PLD 1962 SC 495, Gul Nawaz v. The State 1968 SCMR 1182, Qazi Rehman Gul v. The State 1970 SCMR 755, Abdul Rasheed v. The State 1971 SCMR 521, Billu alias Inayatullah v. The State PLD 1979 SC 956. The principles of considering the acquittal appeal have been stated in Ghulam Sikandar's case which are as follows:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well accepted presumptions: One initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on 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."
These principles are so well-settled by a series of authorities mentioned above that they need no further discussion. There is sufficient material on record to establish that there existed some enmity between the parties and the eyewitnesses were also inimical and interested parties. In the face of such situation the evidence of such witnesses has to be very carefully scrutinized by applying the rule of "separating the grain from the chaff' as pointed out in Ghulam Sikandar's case, and to examine whether 'the same tainted evidence has received corroboration from independent and equally strong inculpatory evidence/circumstances'.
5. Mr. Mangi, the learned counsel for the State, has pointed out that the accused were known to the complainant and the eye-witnesses. The incident occurred in the morning at 7-45 a.m. Report was lodged immediatley within 1/2 hours in which the names of the accused were specifically mentioned and the recoveries made from the accused persons supported. By inquest and medical report leave no doubt that the accused were correctly convicted by the Court. The statements of the eye-witnesses cannot be accepted without strong corroborative evidence. No doubt there is enmity between the parties and the witnesses are also related and can be termed as interested witnesses. It was, therefore, basically essential to seek corroboration against each one of them. In Ghulam Sikandar's case while 'referring to Ghulam Mohammad v. The Crown PLD 1951 Lahore 66 reliance was placed on the observations of Mohammad Munir, CJ. That 'where it is found that a witness has falesly 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 witness is corroborated by a very strong and independent circumstance regarding other the reliance might then be placed on the witness for convicting the other accused.' In support of this rule several authorities have been cited in Ghulam Sikandar's case which may be instructive as well as informative. Therefore, it has now been ruled by this Court that where witness is interested and also inimical and has falsely implicated one accused reliance on his evidence can be placed in respect of other accused provided it is corroborated by strong and unimpeachable circumstances or evidence regarding such other accused. The contradictions which have led the learned trial Court to acquit the appellants have been pointed out and referred to us during the hearing and the learned counsel has taken us to the entire evidence to demonstrate that the evidence of the prosecution witnesses particularly eye-witnesses suffers from contradictions and cannot be relied upon. The contradictions pointed out are of a nature which do not directly affect the wain incident on which all the three eyewitnesses are consistent and have not been shaken in 'cross- examination. So4ar the endeavour of these witnesses to conceal relationship with the deceased or each other seems to surface on record but mainly in respect of P.Ws. Abdul Nabi and to some minor extent P.W.2 as well. In our view P.Ws. 1, 2 and 3 have been consistent in their statement about the incident and the fact that before the incident in what manner they had met is not consistently stated by the witnesses or is contradictory to each other or after the firing the three P.Ws. Had fallen on the ground which statement has not been consistently stated and maintained, will not lead to complete exclusion or discrediting their entire evidence in toto. In that regard the High Court has correctly appreciated the evidence and applied correct principles for taking out the 'grain from the chaff'.
6. Now it is to be considered whether the evidence of the eye-witnesses finds corroboration from independent witnesses. The prosecution has tried to corroborate the incident from the medical report. Medical report gives description of the injury suffered by the deceased and there can be no doubt that the description of injuries corroborates the statement of the eye-witnesses. Mr. Azizullah Shaikh, the learned counsel for the appellants, has strongly relied on that part of the statement of Dr. Shamsuddin P.W.4 where he has stated that he had received the dead body at 8-30 a.m.
According to the learned counsel it completely contradicts the statement of the complainant and the other two eye-witnesses as the S.H.O. Is stated to have reached at the place of incident at 8-45 a.m. We have examined the medical report and do not fmd any statement showing that the dead body was received at 8-30 a.m. The statement of the doctor seems to be based on no evidence or under some misconception of facts. However, the timings given in such documents are not 'to be taken with exactitude but are normally approximate timings. This statement itself is not sufficient to discredit the statement of all the eyewitnesses.
7. The prosecution has also relied on recoveries as a corroborating evidence. Its veracity has been attacked on the ground that Mashir All Gohar, P.W.7, was related to the deceased. He was his nephew and brother of Azizullah, P.W.2, while Rasool Bux, P.W.8, another Mashir, is also stated to be related. It was also pointed out that they were not resident of the locality and have acted as Mashir on all occasions at different places and at different times. Ali Gohar was Mashir for recovery of empties which were secured and sealed in his presence. He had witnessed the inquest report. He was also witness for the arrest of Haji Sultan, Muhammad Usman, Hakim All and Panah. Rasool Bux was co-Mashir with him in all those Mashirnamas. These witnesses for recovery of empties and inquest report were available and as the incident had occurred on the road in the field and there is nothing on record to show that there were houses at the Wardat from where the Mashirs could be picked up, the objection cannot be sustained. Mr. Mangi has contended that Sahib Khan, I.O., P.W.10, could be a reliable witness for the recovery. In this regard reliance has been placed on Muhammad v. The State PLD 1981 SC 635, to show that the evidence of an Investigating Officer can be relied upon unless from cross-examination he has been discredited or has been guilty of dishonesty during the investigation. In the present case even if we discredit the evidence of All Gohar and Rasool Bux for the purposes of recovery of guns the I G evidence of I.O. Can be accepted. The recovery of guns was made from the house of Muhammad Usman. It was a licensed gun. Ali Gohar had also witnessed the recovery of gun from Hakim All which was unlicensed. Both these guns were sent to Ballistic Expert. According to his report one empty was fired with the gun of Muhammad Usman. Therefore, there is a corroborative evidence against Muhammad Usman. The learned counsel for the appellant contended that empties were sent to the Ballistic Expert after undue delay. It is true that there was delay but on this aspect of the case the prosecution witnesses particularly I.O. Was not cross-examined. There is nothing to suggest that the gun or the empties were substituted. The learned counsel for the State has referred to Sikandar and 2 others v. The State PLD 1981 SC 477, where it was observed that as the articles secured were properly sealed and there was not even a suggestion of any tampering and the Investigation Officer was also not cross-examined as to the delay in sending the parcels to the Chemical Examiner the recoveries could be treated as corroboration of the ocular evidence. While making this observation reliancee was placed on Noor Alam v. The State PLD 1978 SC 137, and the following observation was quoted:- ".............. There is also no evidence to show that the empties and the gun were not kept in sealed parcels, as soon as they were secured. The delay in forwarding them has to be considered in this background. There is no evidence that the sealed parcels were tampered with. And, on the other hand, as there might have been an explanation for the delay in forwarding the sealed parcels, the appellant should have cross-examined P.W. Nek Muhammad Khan about the delay in forwarding the gun and the empties. As he did not, the cases cited do not help the appellant's case, and we agree with the view of the High Court that the recoveries have been proved."
Similar situation seems to have appeared in the present case also and the observations of the aforestated authorities fully apply to the extent of appellant Usman. Another fact which may weigh to accept the evidence of the Ballastic Expert as corroborative evidence is that the gun recovered from Muhammad Usman was a licensed gun. The possibility of substituting the gun can be eliminated. As the gun was licensed which belonged to Muhammad Usman and the empty had matched with it, there was ample proof for the inference that the empty found was fired at the time of incident and, it thus, corroborates I the testimony of the ocular witnesses. It can be seen that even if recovery of gun from Usman is not accepted the fact that it was licensed one standing in his name, its ownership cannot be challenged. In his statement under section 342, Cr.P.C, Usman stated that he was working in the field and produced the gun, licence book and cartridges. These facts coupled with the report of the Ballistic Expert provide a strong corroboration to the evidence of P.Ws. 1, 2 and 3. This element is lacking in the case of Muhammad Panah.
8. So far the gun of Muhammad Panah is concerned, the corroborative evidence against him is lacking. If the evidence of Mashirs for recovery of gun from the house of Panah is not accepted, there is nothing to establish that it belonged to him or was recovered from his possession. In such circumstances the report of Ballistic Expert loses its effect and significance. In view of this situation there is hardly a corroborative evidence to support the evidence of P.Ws. Against Panah. He should be given benefit of doubt.
9. So far Haji Jaro is concerned, there is no corroborative evidence against him. The learned Additional Advocate-General contended that as the complainant is closely related to Haji Jaro it is not possible to falsely implicate him in a case of murder which may result in death penalty. This possibility cannot take place of a strong corroborative evidence required for accepting the testimony of P.Ws. 1, 2 and 3 and convicting him for the offence he is charged.
10. Now applying the time tested and well-recognised principles governing the setting aside of an acquittal as discussed above we are of the view that so far Muhammad Usman is concerned, on appraisal of evidence no reasonable man would conceivably reach the conclusion as reached by the learned trial Court. There is overwhelming proof against Muhammad Usman and, thus, it was necessary to set aside his acquittal with a view to avoid miscarriage of justice. In respect of Muhammad Panah and Haji Jaro alias Sultan on appraisal of evidence they should have been acquitted.
11. We, therefore, dismiss the appeal filed by Muhammad Usman.
12. We allow the appeal filed by Muhammad Panah and Haji Jaro alias Sultan, set aside the judgment passed by the Honourable High Court and acquit them.