' TASSADUQ HUSSAIN JILANI, J.--- Through this criminal appeal, the appellant has challenged the judgment, dated 29-1-1991 passed by Judge, Special Court, Gujranwala whereby while acquitting co-accused Muhammad Munir, Riaz and Shabbir, he convicted the appellant under section 302, P.P.C. And sentenced him to death, a fine of Rs,5,000 or in default to further R.I. For six months and Rs,50,000 as compensation to be paid to the legal heirs of the deceased (under section 544-A, Cr.P.C.) or in default to undergo imprisonment for six months.
2. The prosecution story as given in the F.I.R. Exh.P.G., registered by Zaka Ullah (P.W.9), on the complaint of Tariq Farooq, complainant (P.W.7) is that he along with Javed Iqbal (P.W.8) and Abdul Khaliq (given up P.W.) started from Village Behram on a motor-cycle towards Wazirabad. When they reached opposite the Dera of Muhammad Yousaf, deceased, they saw him giving fodder to his cattle. The complainant alongwith others exchanged greetings. Meanwhile, Arshad, appellant armed with .7 mm rifle, Shabbir accused armed with carbine, Riaz alias Rajju accused armed with klashnikov and Muhammad Munir accused armed with pistol emerged from the back side of the Dera and raised Lalkara that Muhammad Yousaf, deceased would not be spared as he had appeared as a prosecution witness against their brothers in the murder case of Muhammad Ramzan. Muhammad Arshad, appellant, fired a shot which hit Muhammad Yousaf at his chest and he fell down. The afore-referred accused it was further alleged, fired towards the complainant and the eye-witnesses but they left the spot on the motor-cycle and the accused decamped from the spot.
3. After recording the F.I.R. (Exh.P.G.), Zaka Ullah, Inspector (P.W.9) went to the spot. He prepared the injury statement Exh.P.I., inquest report Exh.P.J. And secured blood-stained earth from the spot vide memo. Exh.P.H. He recorded the statements of the witnesses under section 161, Cr.P.C. He also prepared the rough sketch of the place of occurrence, Exh.P.L.
4. Dr. Shaukat Ali Cheerna, Medical Officer, District Headquarter Hospital, Wazirabad (P.W.2) performed the post-mortem examination and found the following injuries on the dead body:--
(1) A fire-arm wound of entry 0.7 c.m. x 0.7 c.m. Into going deep with black area 2.5 c.m. x 2.5 c.m.
On the right and front side of chest 5 c.m. Below the right nipple 7 c.m. From epigastrium and 21 c.m. From the umbilicus.
(2) A fire-arm wound of exit with everted margine 1.5 c.m. x 1.5 c.m. On the back of the right side of chest, 5 c.m. Right to vertevral column 9 c.m. Below the inferior angle of scapula.
' According to him, injury No,1 was sufficient to cause death in the ordinary course of nature as it caused loss of blood and had damaged the liver and the right lung.
5. During trial, the prosecution examined 11 witnesses including the doctor and the Investigating Officer. Nasir Mehmood, appeared as P.W.1. He identified the dead body. P.W.3 is Akhtar Nacjash, Draftsman. He drafted the site plan of the place of occurrence. P.W.4 is Muhammad Tufail Constable who escorted the dead body to the mortuary for post-mortem examination. Kausar Naeem, Head Constable, appeared as P.W.S. He received two sealed parcels containing blood- stained earth and the last-worn clothes of the deceased for safe custody in Malkhana, from Zaka Ullah, Inspector/S.H.O. (P.W.9). P.W.6 is Fazal Kareem who is a witness of the recovery of the pistol from Munir Ahmad, co-accused. Tariq Farooq is P.W.9. He is the complainant also. He made statement in Court which was consistent with the F.I.R. He is nephew of the deceased. P.W.8 is Javed Iqbal. He is an eye-witness who corroborated the statement of P.W.7. He is cousin of complainant (P.W.7). P.W.10 is Khushi Muhammad, S.-I. Who investigated the case and recovered P.7 which is a .7 mm rifle from the appellant. He arrested the accused and the appellant. He also secured klashnikov P.8 with live cartridges P.9/1 to 10 from Riaz co-accused which were taken into possession vide memo. Exh.P.F. P.W.11 is Muhammad Hanif, Constable. He transmitted the sealed parcel containing blood-stained earth to the office of the Chemical Examiner.
6. The appellant-accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication on account of previous enmity with the complainant party.
7. Assailing the judgment of the learned trial Court, learned counsel for the appellant, submitted that the so-called eye-witnesses are not witnesses of the locality where the occurrence took place; that their statements are discrepant on the material particulars; that they have not tendered any explanation for going to the place of occurrence so early in the morning and that the medical evidence is contradicted by the ocular account and therefore, the conviction of the appellant is not sustainable in law.
8. Learned counsel for the State, on the other hand, has supported the impugned judgment by submitting that the F.I.R. Was lodged promptly; that all the accused were specifically named in the F.I.R.; that during trial the eyewitnesses remained consistent and their testimonies have been corroborated by the medical evidence and the factum of recoveries.
9. We have heard learned counsel for the parties and have also gone through the record.
10. Admittedly, all the eye-witnesses named in the F.I.R., namely, Tariq Farooq P.W.7, Javed Iqbal, P.W.8 and Abdul Khaliq (given up P.W.), are not the residents of the place where the occurrence took place. It is in evidence that village Behram (where the occurrence took place) is about eight miles away from Wazirabad of which Javed Iqbal is a resident. P.W.8 is a resident of village Laverewala (where Abdul Khaliq, given up P.W.) which is at a distance of two miles from village Behram. Similarly, P.W.7 is also resident of Wazirabad, although, he claims to have duel residence and submitted that he lived in village Behram as well. However, in cross-examination, this witness admitted that the motor-cycle on which they were going at the time of occurrence was lying in his house at Wazirabad and that his licence is also entered in the G.P.O. At Wazirabad. The afore- referred facts disclosed in his cross-examination indicate that he lived in Wazirabad in those days.
The ocular account of the prosecution case, therefore, consists of witnesses whb were chance witnesses and they have not satisfactorily accounted for their presence at the spot in early hours of a winter morning. The enmity of the complainant and the accused party is established inasmuch as P.W.7 in his cross-examination, admitted that: "It is correct that we and the accused have enmity due to murder of my father and my brother."
The evidence of chance, interested and inimical witnesses cannot be relied upon unless their testimony is corroborated by some independent circumstance. This corroboration is lacking in this case. In Dilmir and another v. The State 1970 SCM R 840, it was held as under:- "(b) Penal Code (XLV of 1860), S.302---Murder---Benefit of doubt---Prosecution evidence consisting of statements of three eye-witnesses--Such witnesses interested in deceased and inimical towards accused---Evidence of witnesses not corroborated by any circumstances--- Possibility of accused having been wrongly roped in not ruled out---Accused given benefit of doubt and acquitted."
' Similarly in Sahib Masih and others v. The State 1982 SCMR 109, it was held as under:-- "(a) Penal Code (XLV of 1860)--- ----Conviction and sentences of appellants altered by High Court from.302/149 to one under S.302/34 after setting aside their convictions and sentences under S.323/324/148/149---Supreme Court finding that testimony of interested witnesses had remained uncorroborated and was not found intrinsically sound enough to be sufficient to warrant convictions and sentences of appellants---Supreme Court allowing appeal and setting aside convictions and sentences of three appellants including death sentence to one appellant.
(b) Ocular evidence--- ----Ocular account by interested witnesses---Evidentiary value---It is expected that their statements ring true or are not intrinsically unsound or inconsistent---When that test is satisfied then in case of ordinary interested witnesses independent corroboration of some sort is looked for and ensured---Motive by itself is a corroboratory factor in such case serves as a double-edged weapon---It could prompt false and it could as well prompt revenge in form of aggression---In determining intrinsic worth or consistency of statements of interested eye-witnesses, mere presence of motive is not sufficient---Held, in instant case ocular account given by interested witnesses and corroborated by motive was not reliable as there were certain features which reduced intrinsic value of statements of these witnesses and made them suspicious and was contradicted by the medical evidence."
11. We note that the ocular account is discrepant on material particulars. For instance, P.W.7 stated that the accused fired 15/20 shots during the I C occurrence whereas P.W.8 stated that the accused fired 6/7 shots. Similarly, P.W.7 stated that only one buffalo was seen at the spot at the time of occurrence whereas P.W.8 stated that there were four cattle at the spot.
12. The prosecution evidence has been disbelieved with regard to co-accused who stand acquitted. The same evidence cannot form basis for conviction of the appellant without independent corroboration. In Ghulam Muhammad v. The State PLD 1975 SC 588 the prosecution evidence was disbelieved with regard to seven out of ten accused. The Honourable Supreme Court, acquitted the remaining three accused as well on the ground that the same evidence regarding the three convicted accused could not be relied upon without some independent circumstance.
Similarly, in Abdul Rehman and others v. The State 1983 SCM R 958, the convicted accused were acquitted as the prosecution evidence with regard to co-accused who stood acquitted had been disbelieved by the High Court as there was no additional corroborative evidence to warrant conviction of the co-accused. It was held:-- "Ocular evidence--- ----Testimony of two eye-witnesses qua guilt of two appellants--- ' Witnesses found to have falsely implicated three acquitted co-accused--Held, this was a case which eminently required independent corroboration as to participation of .Appellants in wake of perjured evidence of eye-witnesses qua acquitted co-accused."
Thus, in the afore-referred successive precedent case-law, it has been laid down by this Court as also by the august Supreme Court that veracity of a witness is E not divisible unless there is material independent corroborative circumstance to warrant the same.
13. For what has been discussed above, we are of the view that in accord with the well-established principles for a safe administration of criminal justice, in the instant case, the evidence of prosecution witnesses remained uncorroborated and was not found sound enough to warrant conviction and sentence of the appellants. The appeal, therefore, is accepted and the conviction and sentences of the appellant' are set aside. He shall be released forthwith unless detained in any other case.