' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 25-7-1992.
2. The facts to be noted are that Hafiz Muhammad Jaffar P.W.10 lodged a report about the incident wherein he stated that on the day of occurrence i,e. 29-7-1987 his son Abdur Rehman deceased did not come to the house till 9-00 p.m. Muhammad Jaffar complainant alongwith Muhammad Aslam P.W.11 went on a motor-cycle to find out the deceased Abdur Rehman. They saw a motor- cycle coming from the opposite side; when their motor-cycle reached on a culvert, four persons, were standing on a culvert; one of them, Muhammad Ishaque, tried to stop the said motor-cyclist, - while standing in front of the motor-cycle; two persons namely Muhammad Ramzan and Mustaq All stood on one side of the moto-cyclist, while the fourth person Muhammad Ashfaq was standing on the back side of the motor-cycle and armed with a gun and he fired at the motor-cyclist which hit him on his back side. The complainant identified the above four persons in the light of the motor-cycle. After receipt of the injury, the motor-cyclist S fell down, who was identified by the complainant as his son Abdur Rehman. After usual investigation, the four persons were sent up to face the trial before the Special Court for Speedy Trials, who vide judgment dated 7-5-1988 acquitted Muhammad Ramzan and Mushtaq Ali from all the charges giving them the benefit of doubt; convicted Muhammad Ashfaq (the present appellant) and Muhammad Ishaq, under section 392/34, P.P.C. To rigorous imprisonment for 14 years each, plus a fine of Rs,20,000 each, or in default whereof to further R.I. For 3-1/2 years to each. Muhammad Ashfaq, the petitioner, was also sentenced to death under section 302, P.P.C. Plus a fine of Rs,30,000 or in default whereof further 5 years' R.I. It was further directed that the fine, if recovered, 50% of which shall be paid to the heirs of the deceased as compensation. The learned High Court, by means of the impugned judgment, dismissed the appeal of the appellant and acquitted Muhammad Ishaque the co-accused.
3. We have heard the learned counsel for the parties at some length and also gone through the record. In order to bring home the charge against the accused person, the prosecution relied upon the ocular testimony of Hafiz Muhammad Jaffar P.W.10, the father of the deceased, and Muhammad Aslam P.W.11, the uncle of the deceased, coupled with the recoveries made on the pointation of the accused person.
4. Leave was granted to consider that when the witnesses did not recognize the rider of the motor- cycle coming from the opposite direction until he fell, how could they recognize the appellant who was behind him? The two Courts did not place an implicit reliance on the ocular testimony of the aforesaid two witnesses and they sought corroboration against the present appellant the recovery of gun on 9-8-1987, which matched with the empty recovered from the place of occurrence was considered. To be a corroborative piece of evidence. The learned trial Judge, while acquitting Muhammad Ramzan and Mushtaq Ali, has observed as under:-- "The only allegation against Muhammad Ramzan accused is that he stood on the right side of the deceased alongwith Mushtaq Ali accused and no overt act has been attributed to him. So far as Mushtaq Ali accused is concerned, the only part attributed to him that he removed the hand-bag P.4 from the handle of motor-cycle of the deceased before the accused ran away. No doubt that knife P.9 alongwith currency notes of Rs,850 were recovered at the instance of Muhammad Ramzan accused, but the same cannot furnish ample corroboration to the ocular evidence referred above because knife P.9 was never used by him and it is very easy to plant the recovery of Rs,850 on him. So far as Mushtaq Ali accused is concerned, no doubt Dang` P.10 was recovered at his instance alongwith hand-bag P.4 containing National Identity Card P.5, Registration Book P.6 and Insurance Book P.7, but the same according to my estimation cannot also furnish ample corroboration to the ocular evidence for the reason that `Dang` was never used by him while it is beyond comprehension that he retained hand-bag P.4 alongwith the documents contained therein under the pillow and that too without the robbed amount of Rs,850. It seems that in order to widen the net as far as possible iii order to involve more and more accused of the same family the prosecution has tried firstly by showing their presence at the spot alongwith his other two caucused/brothers and secondly attempt has been made to connect them with the offence for which they have been charged by showing the recovery of aforesaid articles from them. I cannot overlook the tendency of witnesses in our country to widen their net as far as possible to involve more and more accused of the same family. This being the position by way of abundant precaution I acquit both the aforesaid two accused namely (1) Muhammad Ramzan and (2), Mushtaq Ali."
' The allegation against Mushtaq Ali was that he removed the hand-bag from the deceased's motor-cycle. The notes were recovered at the instance of Muhammad Ramzan accused, but the recovery of currency notes was discarded on the ground that it can be easily planted. Similarly, the recoveries of National Identity Card, Registration Book and Insurance Book from Mushtaq were also disbelieved against these accused by the trial Court. The trial Court further held that:- "Being mindful of the fact that both the eye-witnesses namely Hafiz Muhammad Jaffar P.W.10 and Muhammad Aslam P.W.11 have also implicated Muhammad Ramzan and Mushtaq Ali accused. I am also aware that maxim 'falsus in uno falsus in omnibus', has all along been discarded by the Courts in our country and the rule that integrity of a witness is indivisible has not been endorsed by the superior Courts of our country without reservation as one of the universal application. The Courts are thus under a duty to sift the grain from the chaff in each case in the light of its own peculiar circumstances. This being the position and in view of what has been discussed above, the ocular evidence referred above which is amply corroborated by the circumstantial evidence referred above and the same is incompatible with the innocence of at least the two accused namely Muhammad Ashfaq and Muhammad Ishaq and no reasonable explanation thereof has been offered by the defence and as such according to my estimation at least both the above referred accused in furtherance of their common intention waylaid Abdur Rehman deceased for committing robbery and when he did not stop, Muhammad Ashfaq accused fired at him?
5. The High Court acquitted Muhammad Ishaque for the following reasons:-- "Adverting to the case of Ishaque appellant, we are of the view that since nothing was recovered from him, and in fact, the recovery has been effected from the acquitted co-accused, therefore, the conviction of appellant Ishaque should not be sustained keeping in view the safe administration of justice, therefore, he is entitled to the benefit of doubt."
' On the other hand, the High Court took into consideration the following facts while maintaining the conviction of the present appellant:- "P.W.10 Hafiz Muhammad Jaffar complainant and the father of the deceased deposed that he fully knew all the appellants before the occurrence, and the statement and the cross-examination of the complainant shows that the credibility of the witness could not be impeached. Similarly, P.W.11 also categorically stated that he had identified the appellants in the light of their motorcycle."
' The High Court further observed:- "It cannot be said that the identification was difficult, and the appellants had been falsely involved in this case. Since, the complainant knew the appellants even before, and the existence of the motor-cycle's light cannot be ruled out, therefore, we are of the view that the complainant had identified them. The witnesses are truthful because in the first instance because of the cross-lights of the motor-cycles, they at once could not identify them but subsequent thereto, they had come to know the identity of the culprits."
' Having made the above observations, the High Court then recorded the following finding against the appellant:- "After anxious consideration we are of the view that complainant P.W.10 Hafiz Muhammad Jaffar who is the father of his deceased son would not substitute the appellants Ashfaq with the real culprit, and would let him go scot free. The phenomena of substitution is rate in murder case, and thus, we are satisfied about the participation of appellant Ashfaq in the crime. Recovery of gun at his instance has been proved. There was hardly any justification to fabricate the same, because the empty in the first instance was sent on 5th of August, 1987 and was brought back, and was re- delivered on 9th of August, 1987, whereas, the gun was recovered on 9th August, 1987 and was sent to the Laboratory on 12th of August, 1987."
6. As the eye-witnesses have not been totally believed, and the conviction is recorded on the basis of recovery from the appellant, we have to examine whether the recovery from the appellant can be used as a corroborative piece of evidence. The appellant alongwith the other accused was arrested on 1-8-1987. The recovery of the gun is alleged to have been made on 9-8-1987. According to Munawar Hussain P.W.5 he delivered the parcel containing blood-stained earth to the Chemical Examiner on 5-8-1987, but he brought back the other parcel containing .12 bore crime empty because the relevant office was closed on 5-8-1987. On 8-8-1987 the aforesaid sealed parcel was again handed over to him and he delivered the same to the Office of Director Forensic Science Laboratory, Lahore on 9-8-1987 intact. He further deposed that on 12-8-1987 another sealed parcel containing .12 bore gun was handed over to him by the M.H.C. And he delivered the same to the office of Director, Forensic Science Laboratory, Lahore on the same day intact. The witness could not say as to why he had not delivered the parcel containing crime empty on the same day. This witness has been produced in order to show that crime empty was sent to the Ballistic Expert on 5- 8-1987 i,e. Before the recovery of the gun, but the report of the Ballistic Expert belied the statements of P.W.5 and the Investigating Officer. According to this report, the parcels were received on 11-8- 1987 and on 13-8-1987. It is, therefore, clear that the parcel containing the alleged crime empty was not delivered on 9-8-1987, as alleged by the prosecution. The crime empty was sent to the Ballistic Expert after the recovery of the gun, therefore, the recovery has become doubtful. The quality of evidence produced by the prosecution is not such which may be used for the conviction of the appellant. The gun was stated to be lying underneath the beds lying on the 'Charpai' in the residential room of the appellant. The recovery of gun is itself doubtful in the above circumstances.
The High Court itself acquitted one accused for the safe dispensation of justice.
' For the reasons discussed above, we allow this appeal, set 'aside the conviction and sentence recorded against the appellant. He be released forthwith, if not required in any other case.