' MUHAMMAD MUNIR KHAN, J.---This Criminal Appeal arises from the facts that in the occurrence which took place on 30-8-1988 at 5-00 p.m. In the fields of Square No, 226 near the Dera of Bati (P.W.8) in village Jallan Makhdoom, Muhammad Hayat was killed and Khizara (P.W.9) received grievous and simple injuries. According to the prosecution, at the eventful time, Bati (complainant/P.W.9) alongwith Hayat deceased and Khizara (P.W.9) was present at his Dera near the place of occurrence when Atta Muhammad and Muhammad Yousaf (appellants) armed with guns alongwith eight acquitted accused namely, Muhammad Nazir armed with gun, Monda armed with Barcha, Amir armed with hatchet, Aslam armed with Ballam, Umra armed with Sota, Riaz armed with Sota, Nawaz armed with Sota and Iqbal armed with Sota, arrived there and let loose their cattle in the land of the complainant. Atta Muhammad (appellant No,1) and Muhammad Nazir accused shouted that whosoever would intervene would be killed. When Hayat tried to remove the cattle from the land Atta Muhammad fired shot hitting on his flank who fell down. Yousaf (appellant No,2) and Muhammad Nazir fired shots at Khizara (P.W.9) hitting on his legs. Bati complainant ran towards his Dera whereupon Atta Muhammad, Muhammad Yousaf and Muhammad Nazir fired at him but he escaped unhurt. Bati brought out his licensed gun from his Dera and fired towards the accused as a result whereof they (accused) retreated and ran away. The occurrence was seen by Lala and Hayat son of Malku. Hayat son of Mahla died on the spot.
2. The motive allegedly was the dispute over possession of three Killas of land. The accused had let loose cattle in the land at the time of occurrence in order to assert their possession.
3. Bati (P.W.8) lodged F.I.R. (Exh.PA) on the same day at 7-00 p.m. At Police Station Midh Ranjha, District Sargodha. In the opinion of the doctor (Riaz Ahmad Awan P.W.3) death of Hayat occurred due to fire-arm injury which was sufficient to cause death in the ordinary course of nature. Dr. Ijazul-Haq (P.W.4) found three firearm wounds of entry, two fire-arm wounds of exit and one abrasion on the person of Khizara (P.W.9). The injuries caused by fire-arm were declared grievous and others simple. No crime empty was recovered from the place of occurrence. During the investigation Muhammad Yousaf (appellant No,2) got recovered gun (P.8) in the presence of Bati (P.W.8) on 28-9-1988. Atta Muhammad (appellant No,1) got recovered gun (P.9) from his house on 28-9-1988 in the presence of Eati (P.W.8). Haq Nawaz S.I. (P.W.10) have effected the recoveries.
Monda, Umra, Riaz and Amir accused got recovered Ballam, Sota, Sota and hatchet respectively, on 24-9-1988 in the presence of Bati (P.W.8) and Haq Nawaz S.I. (P.W. 10). Since the empties were not recovered from the place of occurrence, the guns were not sent to the Forensic Science Laboratory for comparison. The weapons recovered from Monda, Umra, Riaz and Amir were not stained with blood.
4. To prove its case, prosecution produced eleven witnesses in all. Bati (P.W.8) and Khizara (P.W.9) have given the ocular account of the occurrence. They have supported the prosecution version of the occurrence. They claim to have seen Atta Muhammad appellant firing at the deceased and Yousaf appellant and Muhammad Nazir firing shots at Khizara P.W. Which hit on his legs. Dr. Riaz Ahmad Awan (P.W. 3) has proved the post-mortem examination report. Dr. Ijazul Haq (P.W.4) has proved the Medico-Legal Report of injuries of Khizara P.W. Bati (P.W.8) has deposed about the alleged motive and also has supported the recoveries of the weapons from Atta Muhammad, Muhammad Yousaf, Monda, Umra, Riaz and Amir accused. The rest of the evidence is more or less of formal nature.
5. When examined under section 342, Cr.P.C. Atta Muhammad and Muhammad Yousaf appellant denied all the incriminating circumstances. They raised plea of false implication. In answer to Question No,7, Ata Muhammad stated "I was not present at the time of occurrence. The dispute started over the scuffle of women which led to a melee and persons from both sides collected there and in that melee the deceased also received injuries. It was rumoured that the deceased received injuries at the hands of his own companions". He made statement under section 340 (2), Cr.P.C. And stated that he was innocent and the deceased was done to death by his own companions in a melee which started over the scuffle of women of two sides. Muhammad Yousaf appellant, in answer to Question No,6, stated that "I am resident of Tehsil Chiniot and was not present on the spot at the time of alleged occurrence. I have been involved in this case on account of mere suspicion". He also made statement under section 340 (2), Cr.P.C. And stated that he was involved in the case on account of mere suspicion. No witness in defence was produced.
6. On the conclusion of the trial, learned Additional Sessions Judge, Bhalwal, vide his judgment dated 12-9-1990, acquitted the eight co-accused and convicted the appellants under section 302/34 P.P.C. For the murder of Hayat and under section 307/34, P.P.C. For attempt to murder Khizara P.W. And sentenced them as under:--
(i) Under sections 302/34, P.P.C.
' Atta Muhammad--to death and a fine of Rs,40,000 or in default 5 years' R.I., and ' Muhammad Yousaf--to imprisonment for life, and a fine of Rs,40,000 or in default thereof 5 years'
R.I.
(ii) Under section 307/34, P.P.C.
Both the appellants--Ten years' R.I. And a fine of Rs,10,000 each or in default one year R.I. Each.
7. The appeal filed by the appellants against their conviction and sentence was dismissed by the Lahore High Court, Lahore on 5-10-1992. Feeling aggrieved from the judgment of the High Court, the appellants filed Criminal petition for leave to appeal in this Court which was granted on 27-2-1993, to consider whether in the circumstances of the case the evidence of eye-witnesses namely Bati and Khizara had received the requisite corroboration so as to make it a sound basis for conviction.
8. Learned counsel for the appellants has argued that in view of the background of long-standing animosity and criminal litigation between the parties, and the fact that the ocular evidence has been found unreliable to the extent of eight co-accused, the same cannot be relied upon against the appellants without independent corroboration. The learned counsel maintained that the High Court was not right in seeking corroboration from motive, medical evidence and other circumstances stated in the judgment.
9. Defending the impugned judgment, learned counsel appearing for the State argued that injuries.
On the person of Khizara P.W. Established his presence on the spot. Bati and Khizara P.Ws. Live close to the place of occurrence and have given plausible cause of their presence there that implicit reliance can be placed on their testimony without corroboration, and if such corroboration was at all necessary, it is available in the circumstances namely--
(i) promptly lodged F.I.R. Wherein murder of the deceased and injuries to Khizara have specifically been assigned to Atta Muhammad and Muhammad Yousaf appellants respectively;
(ii) medical evidence; and
(iii) motive showing that appellants were most likely assailants of the deceased and Khizara P.W.
10. On careful examination of the evidence, circumstances appearing in the case and in the light of the arguments of the learned counsel for the parties we find that Bati and Khizara P.Ws., on account of their close relationship with the deceased, their enmity with the appellants and criminal litigation between the parties, are the interested witnesses. Ijaz Hussain Inspector P.W.11 has admitted in cross-examination that criminal cases were registered at Police Station Midh Ranjha, between the parties prior to the occurrence. The High Court has also found that there was criminal litigation existing between the complainant and Khizara P.W on one side and Nazir acquitted accused, his brother Atta Muhammad appellant and their relatives on the other, and the parties were pitched against each other since quite some time. The eyewitnesses appear to be basically dishonest as they gave evidence with a motive other than of telling the truth, in that, they even suppressed the facts which they were supposed to know in the ordinary course of events, e.g., when asked in cross-examination, whether Atta. Muhammad got case under section 336/440, P.P.C. Registered against them at Police Station Midh on 10-8-1988 vide F.I.R. No, 183, Bati P.W.
Replied "I do not know". Similarly, Khizara P.W. Expressed his ignorance about the criminal cases F.I.R.
No, 104 under section 307/435/436/148/149, P.P.C. Dated 9-5-1988, F.I.R. No, 118 under sections 436/148/149, P.P.C. Dated 25-5-1988, F.I.R. No, 170 under section 307/148/149, P.P.C. Dated 25-7-1988, and F.I.R. No, 183 under sections 336, 440, 148/149, 447, P.P.C. Dated 10-8-1988, registered at Police Station Midh Ranjha, against him and other members of his family on the report of Atta Muhammad appellant.
' The appellants and the eight acquitted accused are closely related inter se and are members of one family. Bati P.W. Named ten persons as accused in the F.I.R. During investigation he substituted Muhammad Nawaz in place of Liaquat named by him earlier in the F.I.R. At trial, he implicated ten persons as perpetrators of the crime. He claimed to have seen Nazir firing shot from his gun hitting Khizara P.W. Khizara P.W. Also stated that he was injured by the shot fired from a gun by Nazir accused. Despite their testimony, the eight co-accused including Nazir had been acquitted. Neither the State filed appeal nor the complainant filed a revision against their acquittal which has now attained finality. So, the ocular evidence in his case has virtually been found not worth reliance so far as majority of the accused is concerned. The maxim "falsus in uno, falsus in ominibus", no doubt, has no universal application and that grain is to be sifted from chaff but it may not be possible in the case where the very P.W. On whose testimony conviction of an accused is maintained has earlier been held not to be worthy of credence so far as other accused charged with effective participation in the same occurrence was concerned. The acquittal of eight co-accused, particularly of Nazir, would adversely reflect on the credibility of the eye-witnesses. The acquittal of the eight co-accused will also show that the eye-witnesses were capable of implicating falsely innocent persons in the case or at least of exaggerating the number of the accused.
' The ocular evidence may be classified into three categories--firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the instant case the deceased suffered one fire-arm injury and Khizara suffered three firearm wounds caused by .12 bore gun. The possibility of three entry wounds caused by one shot from .12 bore gun is very much there. The number of the injuries of the deceased and the P.W. Does not commensurate with the number of the accused named by the eye-witnesses. In view of the aforesaid infirmities in the ocular evidence we feel that in the instant case the testimony of the eyewitnesses falls within the third category.
' Consequent to the above observations, the ocular evidence in this case cannot and should not be accepted unless substantially corroborated. So in order to be satisfied that no innocent person is convicted we have decided to look for some additional evidence/circumstances giving support to the statements of the eye-witnesses so as to create that degree of probabilities of the guilt of the appellants which can be made basis of safe conviction.
11. We are fully conscious that for corroboration it is not necessary that there should be words of an independent witness supporting the statements of interested witnesses and that the same may be afforded by anything in the circumstances of case which may satisfy a reasonable and prudent mind that the witnesses have spoken truth while naming the individual accused. We have anxiously looked around for independent corroboration which could rehabilitate, repair and cure the damage done by the eye-witnesses to their integrity and credibility by implicating ten members of the family out of whom eight have been acquitted but we have not been able to find out any reliable independent corroboration. The circumstances relied upon by the High Court as corroborative evidence, or the circumstances pointed out by the learned counsel for the State, do not constitute requisite independent corroboration.
12. We know by our experience that time of recording of F.I.R. Is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. Was lodged by Bati eye-witness himself.
So, his previous statement recorded in the F.I.R. Does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion. Mere repetition of a story will not give it any force or prove its truth.
13. The next circumstance relied upon by the High Court as corroborative evidence was the motive.
It is by now well recognized that enmity is a double-edged weapon and it cuts both ways. Which way it actually cuts, depends upon the circumstances of each case. In the instant case, besides dispute between the parties over the possession of land, there was criminal litigation between the eye-witnesses and the accused, and the parties were pitched against each other. So the benefit of the maxim "enmity cuts both ways" should not be given to the prosecution. It should rather go to the favourite child of the law.
14. We are also aware of the growing tendency on the part of the complainant party that whenever there are more than one accused, the complainant would often assign major role or fatal injury to the head of the G family or a person who is most active and dynamic amongst them so that he may not be able to pursue the case of the accused. Therefore, the reasonable possibility of the false implication of the appellants or false attribution of fatal shot to Atta Muhammad and fire-arm injury to Muhammad Yousaf on account of enmity, cannot be excluded. Furthermore, eye-witness Bati is the solitary witness of the motive. He cannot corroborate himself.
15. No doubt the complainant in the F.I.R. And the eye-witnesses in their statements before the Court have attributed the specific role to the appellants, but this too does not provide independent corroboration to the ocular evidence for the reasons that the same does not come from any independent source. Although they assigned specific role of causing fire-arm injury to Nazir accused, yet he has been acquitted. So this circumstance will not take the ocular testimony any further and will not lend any corroboration to their statements.
16. Another question that arises with reference to the corroboration is whether medical evidence can corroborate the ocular evidence qua. The appellants. The answer is in the negative. When we talk of corroboration, it is always with regard to the story of the prosecution and with regard to the identity of each accused. The medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon used for causing the injury; duration between the injury and the death, presence of the injured P.Ws. Or of the accused on the spot, but it would not connect the accused with the commission of the crime. The circumstance of Muhammad Yousaf living at a distance of 25 miles from the spot relied upon by the High Court to hold him an hired assassin cannot furnish any support to the ocular evidence. The finding of the guilt should be rested surely and firmly on the evidence produced in the case and plain inference that may irresistibly be drawn from the evidence. If a criminal case is to be decided merely on surmises and conjectures or high probabilities to prove the guilt of an accused, the golden rule of benefit of doubt to the accused which is deep-rooted in our country and has been dominant feature of administration of justice with consistent approval of this Court, will be reduced to naught.
17. The prosecution case is pregnant with serious doubts and is full of confusions. The eye- witnesses have shown reckless disregard for the truth and have thrown the noose wide enough to implicate as many persons from the side of the accused as they wished. The case of the appellants is at par with the case of Nazir acquitted accused. There is chaff and chaff all around and not a grain to sift.
18. The upshot of the above discussion is that there being no judicial certainty and circumstantial guarantee of the participation of the appellants in the occurrence to uphold their conviction, the appeal is accepted, the conviction and sentence of the appellants is set aside and they are acquitted of the charge. They shall be released forthwith if not required to be detained in any other case.
' We had allowed the appeal and ordered the release of the appellants by a short order dated 8-2- 1995 and these are the reasons therefor.
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