' MUHAMMAD MUNIR KHAN, J.---This Criminal Appeal No,209 of 1993 arises from the facts that in the occurrence which took place on 28-5-1987 on 11-30 p.m. Outside the house of Alamsher deceased, in village Botala at a distance of three miles from Police Station Mitha Tiwana, District Khushab, Umar Hayat appellant and two acquitted accused Zafar Iqbal and Yar Muhammad allegedly caused the death of Alamsher in furtherance of their common intention, in the presence of Falak Sher (P.W.10--first cousin of the deceased), Muhammad Hayat (P.W.11--father-in-law of the deceased) and Khan Muhammad, P.W. (not produced). The F.I.R. Was lodged by Falak Sher P.W.10 on 29-5-1987 at 1-00 a.m. The F.I.R. Disclosed that at the eventful time the deceased and the eye- witnesses were present in the house of the deceased when on hearing some voices, Alamsher went out of the house and found three persons standing there. He asked them to disclose their identity. They started running away. Alamsher, Falak Sher and Muhammad Hayat, P.Ws. Chased them, upon which Yar Muhammad fired shot at Alamsher which missed. Zafar Iqbal and Umar Hayat fired shots hitting on the head of the deceased who fell down and died.
2. Motive allegedly was that on account of his suspicion about the illicit relation of his wife Mst.
Nighat Khatoon with Umar Hayat appellant, the deceased had repeatedly asked Umar Hayat appellant not to visit his house and that the appellant wanted to remove him out of his way.
3. Dr. Muhammad Salim Akhtar, P.W.6 conducted post-mortem examination on the dead body. He found two entry wounds of fire-arms and two corresponding exit wounds of fire-arms and one contused wound on the head of the deceased. The fire-arm injuries were sufficient to cause death in the ordinary course of nature. He further opined that the fire-arm injuries of the deceased might be the result of single shot. Two crime empties were removed from the spot. Gun P.1 was recovered from Umar Hayat appellant. Report of the Forensic Science Laboratory Exh.PM revealed that the empties were not fired from this gun. Falak Sher (P.W.10) and Muhammad Hayat (P.W.11) have given the ocular account of the occurrence. They claim to have seen the appellant and Zafar Iqbal firing shots which hit the deceased on his head. They also saw Yar Muhammad firing a shot at the deceased which did not hit him. Manzoor Ahmad (P.W.13) and Muhammad Hayat (P.W.11) have deposed about the recovery of two empties from the spot. Rab Nawaz (P.W.8) and Shaukat Ali (P.W.12) supported the recovery of gun P.1 from Umar Hayat. The rest of the evidence is of formal nature.
' When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances and raised the plea of enmity. In reply to question No,6, he stated:-- "One Ghazan, a Stenographer of S.P., Rawalpindi is inimical towards me. He has falsely involved in this case. Falak Sher P.W. Is the son of the first cousin of said Ghazan. The P.Ws. Have got enmity with me. I had also sold a house to Falak Sher P.W. For Rs,70,000 out of which he paid only Rs,40,000 to me. I demanded the balance of Rs,30,000 from him and on this score, we had a fight with each other and since then he is inimically disposed to me. My uncle, Sher All had appeared as P.W.
Against Muhammad Hayat P.W., in a murder case, Ghulam Jillani, a real uncle of Falak Sher 'P.W., had a dispute with Zafar accused over the turn of water. Ghazan, the abovementioned relative of Falak Sher, had previously also falsely involved me in 6/7 cases, within the period of 14 days. I had filed a writ petition in the High Court, regarding those cases."
' In defence, Khalid Nisar S.D.O. Was produced as D.W.1.
4. On the conclusion of the trial, Yar Muhammad was acquitted. Umar Hayat appellant and Zafar Iqbal co-accused were sentenced to death and a fine of Rs,30,000 each or in default five years' R.I.
Each. Feeling aggrieved thereby, they filed an appeal before the Lahore High Court, Lahore. The High Court vide impugned judgment has acquitted Zafar Iqbal and confirmed the death sentence of Umar Hayat appellant. Feeling aggrieved thereby, Umar Hayat filed a petition for leave to appeal against his conviction and the complainant filed a petition for leave to appeal against acquittal of Zafar Iqbal. Leave to appeal was refused to the complainant but granted to the appellant/accused on 15-7-1993 to examine the question as to whether or not, before upholding the appellant's conviction, the High Court followed the settled principles of appreciation of evidence, in criminal cases.
5. Learned counsel for the appellant has argued that the, conviction of the appellant rested on the statements of Falak Sher and Muhammad Hayat P.Ws., that no implicit reliance can be placed on them as they have not been believed to the extent of Zafar Iqbal co-accused to whom they had attributed one of the effective shots found on the deceased. Learned counsel further contended that since the eye-witnesses have exaggerated the number of the accused by involving as many as three persons, out of whom two have been acquitted, the rule of prudence requires independent corroboration of their statements qua the appellant, which was not available; and that while upholding the conviction and sentence of the appellant, the High Court has not kept in view the principles enunciated by the superior Courts for the safe administration of justice in criminal cases.
' Learned counsel for the State has supported the impugned judgment.
6. We have carefully considered the arguments addressed by the learned counsel for the parties.
We feel persuaded to agree with the learned counsel for the appellant. We find that the conviction of the appellant mainly rested on the statements of the eye-witnesses namely, Falak Sher P.W.10 and Muhammad Hayat P.W.11. Falak Sher P.W.10 is first cousin of the deceased and Muhammad Hayat P.W.11 is father-in-law of the deceased. Before the trial Court, the eye-witnesses claimed to have seen Zafar Iqbal firing shot from his gun hitting head of the deceased. They also claimed to have seen Yar Muhammad accused firing shot from his gun at the deceased which did not hit him.
The trial Court found the participation of Yar Muhammad as doubtful. The High Court was of the view that the prosecution has failed to prove its case against Zafar Iqbal. The reasons given by the High Court for his acquittal were that the injuries sustained by the deceased might be the result of one single shot and that he was found innocent during the investigation. Dr. Muhammad Salim Akhtar, P.W.6 has stated that the fire-arm injuries found on the body of the deceased could have been result of one shot. The eye-witnesses have stated that Zafar Iqbal had fired shot from his gun which hit head of the deceased. The High Court has disbelieved them to the extent of Zafar Iqbal for convincing reasons. The eye-witnesses have virtually been disbelieved to the extent of two co- accused. In this view of the matter, we feel that the ocular evidence in this case could not and should not be accepted unless substantially corroborated by independent evidence or circumstances satisfying or tending to satisfy the mind of the Court that they, while naming Umar Hayat appellant had spoken nothing but truth. The circumstance of the recovery of gun from the appellant was of no legal consequence, in that, the Forensic Science Laboratory's Report revealed that the empty recovered from the spot was not fired from the gun allegedly recovered from the appellant. The motive being a double-edged weapon cuts both ways and that which way it actually cuts depends upon the peculiar circumstances of the case. Since the occurrence had taken place at night, the possibility of the involvement of the appellant on account of suspicion cannot be ruled out. The medical evidence contradicts the statements of the eye-witnesses. The case of the appellant is almost at par with that of Zafar Iqbal the acquitted accused. There are no satisfactory basis to uphold the conviction of the appellant. The prosecution has failed to prove its case against the appellant beyond reasonable doubt.
7. Resultantly, the appeal is accepted and the appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case.