' MUHAMMAD MUNIR KHAN, J.---These three Criminal Appeals arise from the judgment dated 4-3- 1989 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby, while acquitting Inayat Hussain, Suba Khan and Muhammad Siddique of the charges under section 396, P.P.C. And 460, P.P.C., the conviction and sentence of Bashir Ahmad and Muhammad Ali under the aforesaid charges recorded by the learned Additional Sessions Judge, Attock, was upheld. Criminal Appeal No, 114 of 1990 has been filed by Bashir Ahmad alias Bashira against his conviction and sentence, and Criminal Appeals No,115 of 1992 and 116 of 1992 have been filed by the State, one for the enhancement of sentence of Bashir Ahmad alias Bashira and Muhammad Ali accused, and the other against the acquittal of Inayat Hussain, Suba Khan and Muhammad Siddique accused. We propose to dispose of all the three appeals through this single judgment.
2. In the occurrence which took place on 3-3-1991, at 12-30 a.m. (midnight) in the house (Quarter No, 45 of Railway Colony, Attock) of the deceased, Niaz Muhammad lost his life, Ajmal Khan (P.W.
15), Shams Khan (P.W. 16) and Mst. Mehr Taj Bibi (P.W. 17) received injuries. First Information Report is statement Exh. P.C. Of Ajmal Khan (P.W. 15) brother of the deceased, recorded by Abdul Aziz Si. (P.W.
18) on the spot or the same day at 1-30 a.m., on basis whereof formal FIR (Exh.PC/1) was registered at Police Station Attock on the same day at 1-50 a.m. By Muhammad Hayat Head Constable (P.W.
4). After the investigation, the police submitted challan against ten persons. Haji Anwar, Niamat, Ghulam Haider, Siraj and Manzoor were shown as proclaimed offenders. Bashir Ahmad alias Bashira, Muhammad Ali, Inayat Hussain, Muhammad Siddique and Suba Khan were placed in Column No, 3 of the Challan. So, they were tried by the Additional Sessions Judge, Attock, who, vide his judgment dated 6-6-1984 convicted them and sentenced as under:-
(i) Under section 396, P.P.C. Imprisonment for life, fine of Rs,10,000 each or in default thereof two years' R.I. Each;
(ii) Under section 460, P.P.C. Ten years R.I., a fine of Rs,5,000 each or in default thereof one year's R.I.
Each.
' The sentences were directed to run consecutively. It was also directed that the fine awarded under section 396, P.P.C., if recovered, half of the same shall be paid to the legal heirs of the deceased and the fine awarded under section 460, P.P.C., if recovered, half of it shall be paid to Ajmal Khan (complainant). Benefit of the provisions of section 382-B of Criminal Procedure Code was, however, given to the accused.
3. On appeal, the Lahore High Court, Rawalpindi Bench, Rawalpindi, vide impugned judgment acquitted Inayat Hussain, Muhammad Siddique and Suba Khan (respondents in CrA. No, 116 of 1992) of the charges but upheld the conviction and sentence of Muhammad All and Bashir Ahmad alias Bashira (respondents in CrA.No, 115 of 1992) with the modification that the sentences were to run concurrently.
4. Muhammad Ali convict did not file petition for Leave to Appeals against the judgment of the High Court. Bashir Ahmad alias Bashira, however, filed a petition for leave to appeal in this Court wherein leave was granted on 19-3-1990. While granting leave to appeal to Bashir Ahmad alias Bashira (appellant in CrA. No, 114/90), this Court directed the State to file petitions for leave to appeal for enhancement of the sentence awarded to Bashir Ahmad and co-convict Muhammad Ali, and against the acquittal of the three accused. In compliance with the order of this Court, the State filed two petitions for leave to appeal; one for the enhancement of sentence of the two convicts and the other against acquittal of respondents in CrA. No, 116 of 1992. This Court has granted leave to appeal in these two petitions on 13-4-1992.
5. The prosecution case, briefly stated, is that at the. Eventful time, Niaz Ahmad (deceased), the three injured witnesses namely, Ajmal Khan, Shams Khan and Mst. Mehr Taj Bibi alongwith other members of the family were sleeping in Quarter No, 45, Railway Colony, City Attock. Mst. Mehr Taj Bibi woke up to ease herself. She opened the door of the room and saw in the light of electric bulb ten persons present in the courtyard of the house. Before she could bolt from inside, they (ten persons) entered into the room. One of them was armed with pistol, other with gun and the remaining were carrying Lathis and iron-bars in their hands. They asked the inmates of the house to hand over cash, ornaments and other articles to them, otherwise they would be killed. Ajmal Khan grappled with one of the dacoits whereupon the others injured him with Lathis and iron-bars, and also gave him fist and kick blows. When the inmates of the house intervened, the dacoit who was holding gun fired on Shams Khan (P.W. 16) and injured him. The other dacoits also caused him injuries with Lathis and iron-bars. The dacoit who was armed with pistol, fired at Niaz Muhammad (deceased) hitting him on his left flank who fell down on the ground. Some of the dacoits gave him injuries with Lathis and iron-bars. Mst. Mehr Taj Bibi was also injured by one of the dacoits. The dacoits forcibly removed the golden bangles of the wife of the complainant, ear-rings of Mst. Mehr Taj Bibi, Rs,4,000, the licenced gun of Shams Khan P.W., licensed revolver of the complainant, two tape-recorders, one transistor, one wrist watch, purse containing identity card of the complainant, driving licence, two attache cases containing household wearing and other articles. After inflicting injuries to the deceased and the P.Ws. And looting the cash ornaments and other articles the dacoits made good their escape.
6. During the occurrence, Niaz Muhammad (deceased) received four injuries; one caused by the fire-arm on the left side of the chest and the remaining three by blunt weapon on different parts of the body. The injury caused by the fire-arm proved fatal. Niaz Muhammad died as a result of the injuries on the same day at 8-42 a.m. Mst. Mehr Taj Bibi received one simple injury caused on her head with blunt weapon. Shams Khan (P.W.) received as many as ten simple injuries on his person caused by. Blunt weapons. Ajmal Khan (P.W.) suffered 21 simple injuries on his person caused by blunt weapon.
7. During the Nakabandi arranged by Faiz Hussain Shah DSP (P.W.2) two accused namely Bashir Ahmad alias Bashira and Muhammad Ali were arrested at 4-00 a.m. On the same night. At the time of arrest, .12 bore gun (Exh. P. 89) which was taken away by the dacoits from the house of the deceased at the time of occurrence, one empty, four cartridges, currency notes valuing Rs, 95, were recovered from Muhammad Ali. One .12 bore gun, two live cartridges, purse, currency notes valuing Rs, 26, one receipts was recovered from Bashir Ahmad alias Bashira (appellant in Cr.A.
114/90), by Faiz Hussain Shah, DSP, in the presence of Munawar Khan (P.W. 9) and Muhammad Arif (P.W. 14). Although three empties and two lead bullets were recovered from the spot by the police, yet the bullets and empties and the guns recovered from Muhammad All and Bashir Ahmad alias Bashira were not sent to the Forensic Science Laboratory for examination and report.
8. At the time of trial, the prosecution examined as many as 18 witnesses. Dr. Gul-i-Naukhez Ghauri (P.W. 8) has proved the post-mortem report and the medical legal reports of the injuries of the injured prosecution witnesses. Ajmal Khan (P.W. 15), Shams Khan (P.W. 16) and Mst. Mehr Taj Bibi (P.W. 17) claimed to have seen and identified Bashir Ahmad, Muhammad Ali, Inayat Hussain, Muhammad Siddique and Suba Khan committing the crime in the light of electric bulb. Sh.
Shamas-ud-Din, Magistrate (P.W. 13) had conducted the parade for the identification of Bashir Ahmad and Muhammad Ali in which the eye-witnesses correctly identified them. It may be noted that the identification parade has been disbelieved by the trial Court and also by the High Court.
Munawar Khan (P.W. 9), Faiz Hussain Shah (P.W. 12) and Muhammad Arif (P.W. 14) have supported the arrest of Muhammad All and Bashir Ahmad on the same night at 4-00 a.m. And also the recoveries from them. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C., the accused denied the incriminating circumstances and raised plea of false implication. They did not produce any witness in defence.
10. Believing the ocular evidence, the arrest of the two accused immediately after the occurrence and the medical evidence, the trial Court convicted and sentenced Bashir Ahmed alias Bashira and four others as stated above. On appeal, the learned High Court was of the view that the rule of prudence required corroboration of the statement of the eye-witnesses. Seeking corroboration from the circumstances of the immediate arrest of Bashir Ahmad and Muhammad Ali, and recovery of stolen gun from Muhammad Ali, the High Court upheld the conviction and sentence of Bashir Ahmad and Muhammad Ali and has acquitted Inayat Hussain, Suba Khan and Muhammad Siddique for want of corroboration.
11. Before us, the learned counsel for the appellant in Criminal Appeal No, 114 of 1990 contended that prosecution has failed to prove its case against Bashir Ahmad alias Bashira beyond reasonable doubt, in that, the eyewitnesses are closely related to the deceased; that no implicit reliance can be placed on their statements without corroboration qua each accused, more particularly when the identification parade has been disbelieved by the Courts below; and that the identification of the culprits in the circumstances of the case by the eye-witnesses was not possible.
12. Learned counsel for the State in Criminal Appeal No, 115 of 1992, while praying for the enhancement of the sentence of the convicts Bashir Ahmad alias Bashira and Muhammad Ali accused, submitted that since the accused had not only committed the dacoity in the house of the deceased but also killed him, therefore, they do not deserve any leniency in the matter of sentence.
' Learned counsel appearing for the State in Appeal No, 116 of 1992 submitted that the eye- witnesses, whose presence in view of the fact of the injuries on their persons cannot be denied, are wholly dependable witnesses and no corroboration at all of their statements was/is necessary for conviction of the accused and as such they have wrongly been acquitted by the High Court.
' It may be noted here that Inayat Hussain and Muhammad Siddique respondents in Criminal Appeal No, 116 of 1992 have absconded after their acquittal from the High Court. Non-bailable warrants issued for their arrest could not be served upon them. Suba Khan respondent was arrested and is presently confined in the Jail. He is being represented by his counsel Mian Abdur Rashid, Advocate, who has supported the reasons given by the High Court for the acquittal of the three accused.
13. We have considered the arguments addressed by the learned counsel carefully. We find that the occurrence took place at about midnight. All the ten accused were not previously known to the eye-witnesses. The eye-witnesses claimed to have seen and identified the accused in the light of electric bulb. The parade proceedings for the identification of Bashir Ahmad alias Bashira and Muhammad Ali accused have not been believed by the trial Court and by the High Court. Except the recovery of stolen gun from Muhammad All accused, the other recoveries do not connect the accused with the crime. The injured eye-witnesses received as many as 32 injuries caused by Lathes and iron bars. The receipt of the injuries, number thereof and the kind of weapons used for inflicting injuries to the witnesses will show that the assailants were face to face and very close to them (witnesses). So, they (eye-witnesses) had enough time and opportunity to identify them and had no motive to involve the accused falsely in the case.
14. Despite these observations we feel that the rule of prudence does require independent corroboration of the statements of the eye-witnesses qua each accused as an abundant caution, because the evidence of identity based on personal impression has to be approached with considerable caution specially when the whole case hinges upon such evidence. The testimony of sense cannot be implicitly relied upon even when the veracity of the witnesses cannot be challenged. Chances of error in identification become greatly increased when the identification is based on glimpse in the confusion and pandemonium of the moment at the night even though the night is moonlit or the place of occurrence is fitted with electric bulb. So, for the safe administration of justice, the High Court was justified in seeking corroboration qua each convict. We find that the weighty circumstances of immediate arrest of Bashir Ahmad alias Bashira and Muhammad Ali accused, on the same night, at 4-00 a.m., at some distance from the place of occurrence; coupled with the recovery of stolen gun from Muhammad Ali at the time, furnishes strong corroboration to the statements of the eye-witnesses qua them (Bashir Ahmad and Muhammad Ali). Needless to mention that the additional circumstances, corroborating the ocular testimony, need not be such that it can of its own prohibitive force bring home the charge to the accused. It should, however, be the circumstance which points to the inference that the peculiar accused, whose case is being considered, did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration, must depend on the particular circumstances of each case. We are convinced that the circumstance of the immediate arrest and recovery of stolen property from Bashir Ahmad alias Bashira and Muhammad Ali at that time points to the inference that they (Bashir Ahmad alias Bashira and Muhammad Ali) did participate in the commission of the crime. So, no exception can be taken to their convictions recorded by the trial Court and upheld by the High Court.
15. Adverting to the question of sentence of Muhammad Ali and Bashir Ahmad alias Bashira, and the prayer made by the State for the enhancement of their sentence from imprisonment for life to death, we find that Shams Khan (P.W. 16), the father of the deceased, has clearly stated that Suba Khan accused had fired at the deceased with his revolver. None of the eye-witnessesI E has attributed the fatal injury to Bashir Ahmad alias Bashira or Muhammad Ali. In this view of the matter, it cannot be said that there are no mitigating circumstances in their favour for lesser penalty. Even otherwise, the sentence awarded to them is a legal sentence. We do not see any compelling reasons to interfere with the same.
16. Taking up the State Appeal against the acquittal of three accused, we find that there is no additional circumstance to corroborate the statements of the eye-witnesses qua them. It has been stated by Shams Khan (P.W. 16) that Suba Khan accused had small beard at the time of occurrence but in the FIR it has nowhere been stated, that any of the accused had beard. Suba Khan was also not subjected to identification parade. There is no additional corroboration of the ocular evidence qua the accused Inayat Hussain and Muhammad Siddique. The reasons given by the High Court for their acquittal are supportable from the evidence. The reasons are neither ridiculous nor artificial.
17. The upshot of the above discussion is that there being no merit in all the three appeals, the same are dismissed. Inayat Hussain and Muhammad Siddique (respondents Nos. 1 and 3 in Criminal Appeal No, 116/1992) have absconded after acquittal from the High Court. Suba Khan (respondent No,2 in CrA. No, 116/1992) was arrested in execution of the non-bailable warrants issued by this Court and is confined in the Jail. He is represented by his counsel. In these circumstances, the appeal (No, 116/1992) could proceed against Suba Khan accused/respondent alone and could again be heard and decided against others (Inayat Hussain and Muhammad Siddique) after their arrest. Although no order can be made to the prejudice of the accused, particularly in appeal against acquittal unless they have had an opportunity of G being heard either personally or by counsel, yet there is no legal bar for the dismissal of the appeal against acquittal in the absence of the accused or without hearing them. The case of Muhammad Siddique and Inayat Hussain (respondents) stands at par with the case of Suba Khan. There is no additional circumstance to corroborate the ocular testimony qua them (Muhammad Siddique and Inayat Hussain, respondents). We feel that no useful purpose would be served by keeping the Appeal No, 116 of 1992 partially pending after decision to the extent of Suba Khan. The other two accused are also entitled to the benefit of this judgment. So, we direct that Suba Khan shall be released forthwith if not required to be detained in any other case and the non-bailable warrants issued against Muhammad Siddque and Inayat Hussain (respondents Nos.1 and 3 in Criminal Appeal No, 116/1992) are recalled.
' The appeals were dismissed by short order dated 18-12-1994 and these are the reasons therefor.