1. ' WALI MUHAMMAD KHAN, J.---Israr, appellant herein, through leave of the Court, calls in question the judgment dated 24-6-1990 passed by a Division Bench of the Lahore High Court, whereby his appeal No, 515/87 against the judgment of the Additional Sessions Judge-II, Okara dated 27-8-1987 convicting him under section 302/149, P.P.0 on two counts and sentencing him to death and fine of Rs,15,000 or in default two years' R.I. On each count, and under section 307/149, P.P.0 and awarding him sentence of 10 years' R.I. Plus fine of Rs,5,000 or in default one year R.I., was dismissed and the death sentence confirmed but his conviction under section 148, P.P.0 was set aside. The appeal of his co-accused against their conviction and sentences was, however, accepted and they were acquitted of the charges. The operative part of the leave granting order is reproduced below:-- "The case of the prosecution against the petitioner was rested on the testimony of Ghulam Rasul (P.W.7), Muhammad Younas (P.W.8), Muhammad Rafique (P.W.9), Muhammad Hussain (P.W.11) and Mst. Kaniz Fatima (P.W.12). They implicated the petitioner and some others in the occurrence. The presence of Muhammad Younus (P.W.8), Muhammad Rafique (P.W.9), Muhammad Hussain (P.W.11) and Mst. Kaniz Fatima (P.W.12) could not be seriously disputed as they were all injured during the course of occurrence. It may be mentioned that Ghulam Rasul (P.W.7) who lodged the F.I.R was a real brother of Muhammad Ali, deceased, and a cousin of Imam Bakhsh, deceased. The High Court did not find these witnesses entirely reliable. Thus, it observed: ' We are inclined to agree with the learned counsel for the appellants that the witnesses have made improvements and tried to tune their statements with each other and to accord with the medical evidence.'
2. ' It also did not fmd the first information report to have been recorded in a straightaway manner.
3. In support of this petition it is contended that in view of the above findings of the High Court the petitioner could not have been convicted solely on the statement of the eye-witnesses without independent corroboration which was not available in this case. In fact, the High Court itself had found the evidence of the eyewitnesses unreliable in so far as majority of the accused was concerned.
4. ' The contention raised in support of this petition needs examination. Leave to appeal is granted."
5. ' The facts of the case as disclosed in the F.I.R. Exh.PJ/1 lodged by Ghulam Rasool P.W.7 are that Fateh Din, the relative of the complainant, was the allottee of land comprised in Square No, 40 of which he was in cultivating possession for about 50 years and that Anwar son of Ghulam Muhammad and Tufail son of Ibrahim, caste Arain, intended to take forcible possession thereof in collusion with the Military Farm Department to which Fateh Din was not agreeable. On the day of occurrence viz., 20-4-1984 at 6-00 a.m. Mst. Aisha Bibi (given up P.W.) came to the fields to look after the cattle tethered there, when Wagon No, SGB-7755 carrying Israr appellant armed with .12 bore gun, Ghulam Nabi armed with pistol, Ghaus armed with gun 712 bore, Yousaf armed with gun .12 bore, Anwar armed with pistol and Muhammad Hussain armed with a stick, stopped there from which all the aforementioned inmates alighted and started removing the cattle from the field. Mst.
6. Aisha Bibi raised hue and cry which attracted the complainant Ghulam Rasool, Muhammad Ali, Imam Bakhsh, Muhammad Rafique, Muhammad Younas, Muhammad Akram, Mst. Kanizan Bibi, Mst. Rashida Bibi and Mst. Sughran Bibi and seeing them, Israr appellant fired a shot hitting Muhammad All on his abdomen followed by Muhammad Yousaf hitting Imam Bakhsh also on his belly. Ghaus fired a shot which injured Imam Bakhsh, Master Muhammad Anwar fired at Younas with his .12 bore pistol which proved effective. Muhammad Hussain delivered stick blow to Younas, Muhammad Akram and Ghulam Nabi fired with their respective weapons which caused injuries to Mst. Kanizan Bibi, Mst. Rashida Bibi, Mst. Aisha and Mst. Sughran Bibi. Muhammad Ali and Imam Bakhsh died on the spot. Muhammad Hussain P.W.11 arrived at the spot and witnessed the occurrence. The report of the occurrence was made by Ghulam Rasool, brother of Muhammad All deceased (P.W.7), which was recorded by Nasrullah Khan S.I. P.W.14 vide Exh. PJ correctly incorporated in the F.I.R. Exh. PJ/1. On the same day he recorded supplementary statement Exh. DA in which he named Taj, Bashir, Nazir, Noor, Yasin and Ashraf also as the participants in the crime duly armed with guns and Sotas and having fired indiscriminately at the complainant party. Usual investigation was carried out by the police, recoveries effected at the instance of some of the accused and on the completion of investigation, all the accused including the appellant were put on trial before the Additional Sessions Judge, who, framed charge-sheet against all the accused, recorded evidence of the prosecution witnesses, Court witnesses, statements of the accused under section 342, Cr.P.C. And statement of the defence witnesses, and on their appraisal, vide his judgment dated 27-8-1987, found the appellant and his co-accused, namely, Muhammad Yousaf, Muhammad Akram, Ghulam Nabi, Anwar and Muhammad Hussain guilty for various offences, convicted and sentenced them thereunder Taj, Bashir, Nazir, Noor, Yasin, Ashraf, Riaz Yousaf, Muhammad Din and Shahnaz since dead were, however, acquitted by extending them benefit of doubt. The above named convicts preferred appeal before the High Court and the learned Addl.
7. Sessions Judge made reference for confirmation of the death sentence which were heard together and the learned High Court, through the impugned judgment, set aside the convictions and sentences of the co-accused of the appellant but maintained conviction and sentences of the appellant under section 302/149, and 307/149, but his conviction and sentence under section 148, P.P.C. Was set aside. Hence the instant appeal through leave of the Court.
8. ' We have heard Mr. A.Karim Malik, Advocate, for the appellant; Raja Abdul Ghafoor, Advocate, for the State; and have perused the record of the case.
9. ' The learned counsel for the appellant submitted that though Muhammad Younas P.W.8, Muhammad Rafique P.W.9, Muhammad Hussain P.W.11 and Mst. Kanizan Bibi P.W.12 had the stamp of injuries on their person which proved their presence on the spot at the time of occurrence but their version was not believed by the High Court in toto; that Ghulam Rasool complainant had not been consistent in the charge against all the accused, inasmuch as, seven out of them were charged in the F.I.R. For causing the death of two deceased and causing injuries to the injured persons, but soon after the lodging of the F.I.R. He made supplementary statement implicating six other persons who were found innocent by the trial Court and acquitted; that the recovery of weapons of offence from some of the accused was not free from doubt and was kept out of the consideration by the High Court; that the evidence produced in the case was partisan in nature and explicit reliance could not be placed upon them without independent corroboration; that the mere fact that Anwar, the alleged allottee, is the brother of Israr appellant could not legally furnish sufficient corroboration for distinguishing his case from his co-accused, more so when Muhammad Yousaf, appellant before the High Court, was also related but exonerated of the charge; that the right hand of the appellant was incapacitated due to which he could not conveniently handle the gun to fire at the complainant party which fact had been established from the statement of Dr. Nazir Hussain P.W.16, and that the opinion of the doctor that there can be possibility of firing with the left hand was a mere far-fetched possibility which could not be made basis for the proof of the charge against him; that the motive was not established through independent evidence rather it was belied by the defence version; and finally, that the case of the appellant could not be distinguished from his co-accused and that he was entitled to the benefit of doubt. The learned counsel for the State, on the other hand, defended the judgment of the High Court.
10. ' We have anxiously considered the arguments of the learned counsel for the parties and have minutely scanned the evidence on record. As conceded by the learned counsel for the appellant, the presence of Muhammad Younas P.W.8, Muhammad Rafique P.W.9, Muhammad Hussain P.W.11 and Mst. Kanizan Bibi P.W.12 on the spot at the time of the tragedy cannot be doubted as all of them have injuries on their person. However, the moot point for determination before the lower forums as well as this Court is whether they have stated the whole truth, or have exaggerated the incident or suppressed the material facts. Admittedly, they are interested witnesses and in the absence of any strong corroboration their depositions could not be made the sole basis for the conviction of the accused charged by them and keeping this yardstick in view, the learned trial Court, as a measure of abundant caution, acquitted those persons who were not charged in the F.I.R. Though implicated subsequently by the complainant. The learned High Court in the appeal filed by the convicted accused, again resorted to sifting and accepted the appeal, set aside the conviction of the rest of the convicted persons other than the appellant and thereby materially disbelieved the statement of the aforementioned injured witnesses, so much so, that those who were attributed fire shots and blows by the injured P.Ws. Were also let off. No doubt, it is by now well settled that the maxim falsus in uno falsus in omnibus has no universal application and that the grain can be shifted from the chaff, but in this particular case that is not possible as the very P.Ws.
11. On whose statement conviction of the appellant has been maintained have been held to be not worthy of credence so far as the other accused charged for effectively firing at Imam Bakhsh and the other deceased and committed murderous assault on the injured P.Ws. And other persons having received their injuries in the same transaction are concerned. The case of the appellant is identical with his co-accused and the fact that he happens to be the brother of Anwar, the allottee of the land, would not strengthen the prosecution case against him. Additionally, the right hand of the appellant was incapacitated due to which he must be experiencing great difficulty in holding the gun in his left hand and firing at the opposite party when the object could be achieved by his other kith and kin. We are, therefore, of the considered opinion that the prosecution had not been able to establish the guilt of the appellant beyond reasonable doubt.
12. ' Resultantly, we accept this appeal, set aside the impugned judgment of IC the High Court and acquit the appellant as well.