' MUHAMMAD AFZAL LONE, J.---This appeal by leave to appeal has arisen out of judgment dated 29- 9-1990, of a D.B. Of the Lahore High Court, Lahore, whereby the appellant's conviction under section 302, P.P.C. With sentence of death and fine passed on him, by the learned Sessions Judge, Mianwali, was upheld and his appeal dismissed.
2. Leave to appeal was granted "to examine whether in view of inimical nature of prosecution evidence, rejection of it in respect of other two accused, and lack of independent corroboration, the conviction of the petitioner could be recorded under section 302, P.P.C."
3. The occurrence took place on 28-10-1984 at 4-45 p.m. In the Chowk of Moliallah Balandkhel of Mochh Town, within the limits of Police Station, Mianwali. As per F.I.R. Lodged by Sana Ullah Khan, when he alongwith his father Aman Ullah Khan deceased, Abdul Aziz (P.W.8) and Ghulam Mustafa, while going to the house of Nawaz Ali Khan, Member Union Council Mochh, reached the Chowk, the appellant alongwith two co-accused, namely, Ata Ullah Khan, Mati Ullah Khan, each armed with gun, appeared on the scene from the Northern side. Mati Ullah Khan raised a Lalkara that they would be taught a lesson for causing injury to Ilam Din. Thereupon, Ata Ullah Khan fired a shot which went amiss. The second shot was fired by the appellant hitting the deceased on the left side of his buttock, who fell down and died subsequently while being removed to the police station in an injured condition. Apart from the complainant, the occurrence was seen by Abdul Aziz, who appeared as P.W. 8 and Ghulam Mustafa. The latter was however, given up being unnecessary. The motive as disclosed by the prosecution was that a week before the occurrence the complainant caused injuries with a knife to Ilam Din, a real brother of the appellant, for which a case under section 324/34, P.P.C., was registered against him and others.
3 A. The trial Court rested the appellant's conviction largely on the statements of the two eye- witnesses, namely, Sana Ullah Khan and Abdul Aziz, the motive, the recovery of gun on the pointation of the appellant, and the medical evidence given by Dr. Wilayat Muhammad Khan (P.W.
5), who performed autopsy on the dead body of the deceased. Before the trial Court, the evidence of two witnesses was sought to be discarded on the ground that they were related to each other and inimical towards the accused, but this argument did not influence its decision. The trial Court maintained that despite lengthy cross-examination, no material discrepancy or contradiction was discovered in their statements which found corroboration from the medical evidence. The learned Sessions Judge noticed that the two co-accused had been declared innocent during police investigation and their names placed in column No, 2 of the challan. It also came on the record that though ineffective firing was attributed to Ata Ullah Khan co-accused, yet there was neither mark of violence on the wall adjacent to the place of occurrence, nor any wad or pallet was found there by the Investigating Officer. Upon these facts and other material borne on the record, the trial Court gave benefit of doubt to the co-accused and acquitted them of the charges against them.
Needless to state that fatal blow with gun suffered by the deceased was assigned only to the appellant.
4. The High Court excluded the gun from consideration for the reason that neither any crime empty was recovered from the spot nor the gun was sent to Forensic Science Laboratory to ascertain whether it was in a working condition. Further, the solitary statement of the Investigating Officer was not considered sufficient to justify reliance on the recovery. With regard to the relationship of the eye-witnesses, with the deceased, in the opinion of the learned Judges of the High Court, it did not militate against their reliability. The High Court was also influenced by the version of the complainant side that the occurrence was motivated by infliction of injuries by then to Ilam Din and observed that, in the circumstances of the case, the appellant could not reap any benefit out of registration of the case against the deceased and others for assaulting 11am Din. It was further held that the medical evidence and the motive lent sufficient corroboration to the ocular account given by the two eyewitnesses. The prosecution evidence was thus considered enough to bring home the guilt to the appellant.
5. In support of this appeal, the argument reflected by the leave grant order has been reiterated before us. It is additionally contended that one Abdul Hamid was also one of the eye-witnesses, his name appeared in the calendar of witnesses, but he was not examined by the prosecution. It was urged that he was a truthful witness and since he did not support the prosecution, he was dropped.
This, in the submission of the learned counsel, would react on the veracity of the prosecution case.
6. It is correct that Sana Ullah Khan complainant is the son of the deceased and Abdul Aziz, the other eye-witness, was married to the sister of the deceased and there are issues out of this wedlock; though she died many years ago, yet his connection with the complainant party can hardly be erased. Regarding the enmity, it may be stated that there was no background of previous ill-will between the parties, except the assault on Ilam Din by the complainant side, which, as already stated, has been set up by the latter as a motive for commission of the murder of the deceased. Is the involvement of the appellant in the case and the role attributed to him actuated by malice nourished by the eye-witnesses against him? In the light of the facts appearing on the record it is difficult to give an . The occurrence took place at 4-45 p.m.; within 1/2 hour the report was lodged with the police and the role of the appellant particularised therein. There was hardly any time for manipulation. It is highly improbable that the complainant would let off the real culprit, who murdered his father and substitute him by the appellant; or that the other eye-witness chose to follow the same wake on account of vindictiveness. In any case, time and again the rule laid down by this Court in this behalf is that mere relationship of an eye-witness with the deceased or his enmity with the accused by itself does not furnish a valid basis to reject his testimony, and in a such like case, as a rule of prudence what is required is the C proper scrutiny of his testimony and to seek corroboration before its acceptance. It is clear to us that both the trial Court and the High Court scrutinized the evidence of the two eye-witnesses properly and so far as corroboration is concerned, it was provided by the medical evidence, as rightly held by the two Courts below.
7. As regards the acquittal of two co-accused, it has been noticed earlier that this is anchored on grant of benefit of doubt. In the administration of criminal justice, the Court takes the maximum care in convicting an accused person and the principle underlying the grant of benefit of doubt is that the degree of proof against the accused is not enough to infuse a moral certainty in the mind of the Judge as to the commission of the offence with which he is charged. If there is a reasonable doubt regarding his guilt, benefit of doubt is extended to him. The trial Court's judgment is replete with reasons and indicative of features capable of giving rise to inferences other than that of the guilt of the co-accused. It is not that the evidence of the eye-witnesses qua co-accused was disbelieved, but the possibility of their innocence could not be ruled out which entitled them to the benefit of doubt. In any case, the rule falsus in uno falsus in omnibus is no longer applicable and not un often the Court has to sift the grain from the chaff. Reference in this connection may be made to Khairu and another v. The State (1981 SCM R 1136).
8. Nothing turns out on the failure of the prosecution to examine Abdul Hamid, because the prosecution is not bound to examine a witness to whom it considers as unnecessary or having been won over by the accused.
9. After going through the record and hearing the learned counsel for the parties, we are of the view that the appellant's conviction under section 302, P.P.C. Is in conformity with law and no interference therewith is called for by this Court. However, the question whether in the circumstances of the case the sentence of death should have been awarded to him requires examination. It is on the record that the co-accused Mati Ullah Khan is the grandfather of the appellant. From the F.I.R. And the statement of the complainant it is quite evident that on approaching the deceased and his companions, Mati Ullah Khan raised a Lalkara that he would see as to how Ilam Din was stabbed and that they would not be spared but taught a lesson. This exhortation was followed by firing by the appellant at the deceased. He was of a young age and presumably acted under the influence of his grandfather. This would provide an extenuating circumstance to inflict lesser sentence on him. We would alter the sentence of death passed on the appellant into one for imprisonment of life. The sentence of fine is, however, not disturbed. The request for grant of benefit of section 382-B, Cr.P.C. Is declined.
' Sentence reduced.