1. ' SAEEDUZZAMAN SIDDIQUI, J.--- Leave was granted in the above jail appeal to consider whether it was safe to uphold the conviction and sentence of the appellant on the basis of same evidence which was not believed by the two Courts below in respect of a co-accused in the case.
2. ' According to prosecution story the deceased Gulzar while going in the company of Muhammad Ayub (P.W.10) at about 8 p.m. Between the night of 15/16 February, 1977 was waylaid by the appellant and one Muhammad Nawaz (acquitted accused). Muhammad Nawaz allegedly caught hold of the deceased while appellant gave Chhuri blows to the deceased. The incident was witnessed besides the complainant Muhammad Ayub, by Mst. Karam Jan (P.W.11) who was attracted on the spot by the alarm raised by the deceased. The case was initially registered under section 326/307/34, P.P.C. But later on it was converted into 302/34, P.P.C. As the injured Gulzar subsequently died in the hospital.
3. ' The trial Court acquitted co-accused Muhammad Nawaz in the case having found his involvement in the offence, as alleged by the prosecution, highly improbable and doubtful. The trial Court also discarded the recovery of blood-stained Chhuri at the instance of appellant on account of serious discrepancies in the evidence of recovery Musheer and the I.O. However, the ocular evidence in the case against the appellant was found natural and confidence inspiring and accordingly, appellant was convicted by the trial Court under section 302, P.P.C. And sentenced to life imprisonment and fine of Rs,5,000. On appeal the learned Judge in chambers of Lahore High Court agreed with the analysis of evidence by the Trial Court and maintained the conviction and sentence. Leave was granted in the case on a jail petition by the appellant as aforesaid.
4. ' The learned counsel for the appellant contended before us that the two Courts below having disbelieved the ocular evidence in the case against the co-accused Nawaz, the same evidence could not form the basis of the conviction of appellant and therefore, for the safe administration of justice the High Court should have extended the benefit of doubt to the appellant as well as in the case. It is also contended by the learned counsel for the appellant that the trial Court had expressed doubt about the presence of Muhammad Ayub complainant (P.W.10) at the time of incident and had remarked that the said Muhammad Ayub was probably attracted by the alarm of the deceased as his house was situated about 18/20 paces from the place of incident. The learned counsel accordingly, contended that this conclusion left only the ocular testimony of Mst. Karam Jan (P.W. 11) before the trial Court in the case against the appellant which could not be relied upon as she had admitted in her evidence that she was working in Islamabad as a maid-servant during the period when the incident took place.
5. We have gone through the entire evidence in the case and are of the view that no case for interference is made out. It is true that on the same ocular evidence the trial Court acquitted the co-accused Muhammad Nawaz in the case but this does not mean that the ocular evidence was found to be false: and as such it could not be relied upon for sustaining the conviction and sentence of appellant in the case. Where there are more than one accused persons in a criminal case, the Court in order to ensure the safe administration of justice undertakes the process of sifting of evidence in order to eliminate the possibility of involvement of innocent persons in the case by the complainant side. In this process, if the Court extends the benefit of doubt to some of the accused persons in the case it is only with a view to enforce the principles of safe administration of justice in criminal cases and it is not correct to say that in such a case the Court by implication holds the ocular evidence in the case as false. No such implication about falsity of ocular evidence in the case therefore, arises if some of the accused persons are let off by the Court giving them the benefit of doubt. In the present case the trial Court while acquitting the co- accused Muhammad Nawaz observed as follows:- "18. From the facts stated above, it is clear that the prosecution has not been able to prove the case against accused Muhammad Nawaz. As such he is given benefit of doubt and is acquitted. He is present on bail and his bail bond stands discharged."
6. The above observations cannot be interpreted as meaning that the ocular evidence in the case was held to be false. We are, therefore, of the view that the ocular evidence in the case, if it was found consistent and confidence inspiring against the other co-accused (appellant), could validly form the basis of conviction of the appellant. Both, the trial Court as well as the High Court, found that the ocular evidence in the case inspired confidence. The learned Judge in chambers while commenting on the evidence of two eyewitnesses (P.W. 10 and P.W. 11), in the impugned judgment concluded as follows:- "Testimony of both the eye-witnesses who hail from immediate vicinity is consistent and confidence inspiring, which remained undented during the lengthy cross-examination, therefore, cannot be discredited merely on account of their relationship with the deceased in the admittedly absence of any directed enmity with the appellant and the alleged inimical disposition for the deceased's brother having divorced the complainant's sister is too remote and too far-fetched to adversely reflect on his straightforward testimony, who promptly reported the matter to the police in the hospital upon summoning by the doctor, corroboration whereto is lent by the locale of the injuries; evidence qua immediate motive incident furnished by Nazir P.W.6 remained unquestioned which rules out the theory of unwitnessed occurrence postulated by the learned counsel for the appellant while the first contention seems to have been advanced in oblivion of the fact that sifting of evidence at the trial is a well-founded legal doctrine; consequently, I have no doubt in my mind that the case against the appellant has been established beyond any manner of doubt and the judgment is unexceptionable."
7. ' The learned counsel for the appellant very vehemently argued that in so far as evidence of Mst.
8. Karam Jan (P.W.11) was concerned, she clearly admitted in her deposition that she was working during the relevant period at Islamabad and as such her presence on the spot was highly doubtful.
9. We have gone through the evidence of Mst. Karam Jan (P.W.11) in the case and are unable to discover any inconsistency in her statement. She stated in her cross examination that she was working in Islamabad for the last about 4/5 years, which meant that during the period the above incident took place she used to work in Islamabad, however, there is nothing in the evidence to show that she was also residing at Islamabad during these days. On the contrary, she had shown her residence at village Koka, which is close to Islamabad and she further stated in her cross- examination that she used to wash utensils in the morning and after evening meals and used to clean the house, where she was working. She also categorically denied the suggestion that at the night of the occurrence she was not present in her house and was in Islamabad. The fact that she was examined on the following day by the police and she gave a graphic account of the incident, was rightly considered by the Courts below as confidence inspiring. Even otherwise, in view of her denial that she was not in Islamabad on the day of occurrence, it was for the defence to have established that she was not present at the spot at the time of incident. The two Courts below, therefore, neither misread the evidence nor roverlooked any material piece of evidence on record while convicting the appellant under section 302, P.P.C. No case for interference with the sentence and conviction of appellant is made out. The appeal is, accordingly dismissed. .