' WALI MUHAMMAD KHAN, J.---Zulfiqar Ali, appellant herein, through leave of the Court, calls in question the judgment dated 23-4-1991 passed by the Lahore High Court, whereby his appeal against the judgment of the Additional Sessions Judge, Gujranwala dated 7-5-1987 convicting him under section 302/34, P.P.C. For the murder of Muhammad Saleem deceased and sentencing him to death and a fine of Rs,5,000 or in default one year R.I. And payment of Rs,10,000 as compensation to the heirs of the deceased or in default further six months' R.I. Was dismissed. The leave granting order is as follows:-- "It is pointed out by the learned counsel for the petitioner that it has been found by the learned Judges of the High Court that the F.I.R. Was not recorded in straightforward manner. He further contends that the evidence was hostile and there is no valid corroboration. To consider the contentions leave to appeal is &anted."
2. The facts of the case, briefly stated, are that Muhammad Saeed complainant and his brother-in- law Muhammad Saleem deceased were running a cloth shop at Haji Pura, Gujranwala. After the day's business on the day of occurrence viz., 24-7-1986, they closed the shop at 7-30 p.m. And started for their residence on their scooter alongwith Muhammad Nadeem P.W.11, the brother of the deceased. On reaching Chowk Niain at about 8-00 p.m. Zulfiqar All appellant alongwith his co- accused namely, Aslam armed with daggers, Jamil with a Chhuri, Barkat All with revolver and Khuda Baldish with a pistol were present there and on seeing them Khuda Bakhsh shouted that the deceased should not go alive and simultaneously Barkat All fired with which the deceased was hit on his abdomen and fell down from the scooter followed by a fire-shot by Khuda Bakhsh from his pistol which hit the deceased at his left knee. Thereafter Zulfiqar All appellant gave two dagger blows and the other accused delivered two blows each hitting the deceased on various parts of his body. Nadeem P.W.11 tried to rescue his brother but Zulfiqar All appellant gave him a blow injuring him on the little finger of his hand. The accused thereafter decamped. Muhammad Yousaf P.W.10 also reached the spot and witnessed the occurrence. The deceased, then in injured condition was taken to D.H.O. Hospital, Gujranwala on rickshaw by Muhammad Saeed P.W.9 and Muhammad Nadeem P.W.11 where Dr. Saeed Iqbal P.W.12 examined him for his injuries but advised the complainant to remove the injured to Lahore for proper medical aid as his condition was precarious. They acted accordingly but before any treatment could be given to the injured he expired in the Emergency Ward. Javaid Aftab S.I. Police Station City Kamoke (P.W.14) who was then posted as S.I. At P.S. Baghbanpura, on receipt of information that a quarrel had taken place at Nowshera Road and that the injured person has been removed to hospital rushed to D.H.Q.
Hospital, Gujranwala where he was told at 10-00 p.m. By the staff of the hospital that the injured had been removed to Mayo Hospital, Lahore due to his serious condition. He went to Mayo Hospital, Lahore and reaching there at 12 night, recorded the statement Exh.PB of Muhammad Saeed complainant and sent the same to P.S. For formal registration of the case. He prepared injury sheet Exh.PN, inquest report Exh.PO and sent the dead body for post-mortem examination. He then visitd the spot of occurrence in the company of the complainant, prepared the rough site plan, took into possession blood-stained earth from the spot vide memo Exh.PL and sealed the same, scooter Exh.P7 vide recovery memo. Exh.PM, the blood-stained clothes of the deceased alongwith a sealed phial containing lead pieces produced by Zafar Iqbal Constable at the spot vide memo. Exh.PQ, the blood-stained clothes of the deceased Shalwar P.9 Kamzeez Exh.P10 and Buniyn Exh.P.11 vide memo.
Exh.PR and investigated the case. Muhammad Nadeem P.W. Was injured and he got him medically examined. After the completion of the usual investigation all the accused were placed for trial before the learned Additional Sessions Judge, Gujranwala, who, after recording the prosecution evidence, statements of the accused under section 342, Cr.P.C. And their statements on oath under section 340(2), Cr.P.C. Found the appellant and Muhammad Aslam and Muhammad Jamil guilty for the murder of the deceased and sentenced the appellant to death subject to confirmation by the High Court plus fine and compensation as stated above and Muhammad Aslam and Muhammad Jamil to imprisonment for life and fine of Rs,5,000 each or in default one year R.I. Each plus compensation of Rs,10,000 each under section 544-A, Cr.P.C. To the legal heirs of the deceased Muhammad Saleem or in default six months' R.I., vide judgment dated 7-5-1987. Khuda Baldish and Barkat All accused were, however, extended the benefit of doubt and acquitted. All the three convicts preferred a joint appeal before the High Court and the complainant filed revision petition while the trial Court made reference for the confirmation of death sentence. The appeal and revision petition were dismissed by the High Court and confirmed the murder reference vide the impugned judgment dated 23-4-1991. Hence the instant appeal through leave of the Court.
3. We have heard Mr. Ijaz Hussain Batalvi, Senior Advocate, for the appellant, Raja Abdul Ghafoor, Advocate for the State and have perused the record of the case.
4. The learned counsel for the appellant argued with vehemence that the witnesses produced by the prosecution in support of their version were highly interested being close relation of the deceased and inimical to the appellant and in the absence of any independent corroboration, their statements could not be made the sole basis for the conviction of the appellant; that the occurrence took place in a crowded Chowk but no independent person from the locality volunteered to support the prosecution case; that the acquitted accused, namely, Barkat All and Khuda Bakhsh were ascribed the role of firing with the revolver and pistol in their respective possession and the deceased had the fire-arm injuries on his person as well but the trial Court disbelieved this part of the deposition of the eye-witnesses and acquitted the accused and on the principle of falsus in uno falsus in omnibus the trial Court legally erred in basing the conviction of the appellant on the testimony of these very witnesses; that the motive attributed to the appellant for the commission of the offence could equally be a motive for false charge against the accused; that the injury on the person of Muhammad Nadeem P.W.11 was superficial in nature and according to the opinion of the doctor that the same having been caused through a friendly hand or self- suffered, could not be considered a proof of the presence of Muhammad Nadeem P.W.11 on the spot; that the investigation in the case was not fair; and that at any rate, the implication of the appellant was not free from doubt and he was also entitled to acquittal on the benefit of doubt.
The learned State Counsel, on the other hand, reiterated the grounds mentioned in the impugned judgment in support of the conviction of the appellant.
5. We have given our anxious consideration to the arguments advanced by the learned counsel on either side. It is by now well settled that the maxim falsus in uno falsus in omnibus has no universal application and the Courts can sift the grain from the chaff and convict those accused whose guilt is established beyond any doubt and on acquit those whose involvement is not free from doubt.
The learned trial court, as a measure of abundant caution , acquitted Barkat All and Khuda Bakhsh for substantial reasons. So far as the appellant is concerned, he was attributed the role of stabbing the deceased twice and also for the injury to Muhammad Nadeem P.W.11 who was a young boy at the time of the occurrence as at the time of recording of his statement his age is recorded as 14 years and a student. We have minutely gone through the statement of this witness and find it coherent and confidence inspiring. He has been thoroughly cross-examined but nothing could be elicited from him to cast any aspersion on his veracity and he has been able to convincingly explain his presence on the day of occurrence in the shop and his accompanying his deceased brother over the scooter to see the unfortunate tragedy. We are convinced about his presence at the spot at the time of occurrence.
6. Resultantly, there is no merit in the instant appeal and the same is dismissed.