1. ' MUKHTAR AHMAD JUNEJO, J---Criminal Appeals Nos. 218 and 219 of 1993 filed with leave of this Court are proposed to be disposed of under this judgment.
2. ' Sibghatullah appellant in Criminal Appeal No, 218 of 1993 was tried with five others in Court of the Additional Sessions Judge, Jhang for murder of Muhammad Ashraf having occurred on 16-4-1987 at 5-30 p.m. At the door of his shop at Adda Sheikhan, Tehsil Chaniot. The trial Court at conclusion of the trial acquitted co-accused Ikramullah, Allah Ditta, Noora and Dosa, but convicted appellant Sibghatullah and co-accused Abid for the offence punishable under section 302 of the P.P.C. Read with section 34 of the P.P.C. The appellant was sentenced to death and to pay fine of Rs,25,000 or to suffer R.I. For five years. Abid was sentenced to suffer imprisonment for life and to pay fine of Rs,25,000 or to suffer further R.I. For five years.
3. ' Appellant Sibghatullah and Abid challenged their conviction and sentence by filing separate Criminal Appeals in the Lahore High Court where Murder Reference No, 285 of 1989 was also received for confirmation of death sentence of the appellant. Muhammad Afzal, complainant in the case, filed revision application for alteration of sentence of Abid to death and for conviction of Ikram Ullah, Allah Ditta, Noora and Dosa. Under the impugned judgment, the High Court maintained conviction and sentence of the appellant only, while dismissing revision application challenging acquittal of the four accused and praying for awarding death penalty to Abid. Instead of awarding death penalty to Abid the High Court acquitted him giving him benefit of doubt. The High Court accepted the Murder Reference in respect of Sibghetullah. Criminal Appeal No, 218 of 1993 has been filed by the appellant challenging his conviction and sentence, maintained by the High Court.
4. Criminal Appeal No, 219 of 1993 has been filed by complainant Muhanimad Afzal against acquittal of respondents Ikram Ullah, Allh Ditta, Noora and Dosa by the trial Court and of Abid by the High Court.
5. ' According to the prosecution, on 16-4-1987 at 5-30 pm. The appellant and the acquitted accused came on horsebacks at shop of the deceased in Adda Sheikhan. They challenged the deceased present in his shop and attacked him. Abid and Ikram Ullah, who had guns, fired the gunshots at the deceased who received injuries over his legs. The appellant, who was armed with a rifle, approached the deceased and successfully fired a rifle shot at his neck. He succumbed to his injuries at the spot. The assailants went away after firing in the air. The incident was witnessed by Muhammad Afzal P.W.5 (deceased's brother), Sher Muhammad P.W.6 (having shop in the vicinity), Muhammad Sharif (father of the deceased) and Sarfraz Khan (business partner of the deceased).
6. Muhammad Afzal P.W. 5 who is a practising lawyer reported the incident at 7-00 p.m. Of the same date to police through A.S.I. Ghulam Hassan, who recorded police report that was later on transcribed in 154, Cr.P.C. Book at Police Station .Barana. Motive for the offence as per the police report, was exchange of hot words and abuses between the appellant and the deceased four days prior to the incident, when the deceased demanded back from Abdullah servant of appellant's brother-in-law a sum of Rs,12,000 earlier advanced to him as loan. Such exchange was followed by slapping of the appellant by the deceased and threats by the former to retaliate.
7. ' After registration of the case, A.S.I. Ghulam Hassan sent dead body of the deceased to the mortuary after preparing its inquest report and injury statement. From the place of incident, the A.S.I. Recovered and sealed two empty cartridges and one empty bullet under Memo. Exs.PM and blood-stained earth under Memo. Exh.PL. He secured under Memo. Exh.PC clothes of the deceased and examined some witnesses. S.H.O. Abdul Majid of P.S. Barana who took over the investigation tried in vain for arrest of the appellant and the co-accused from 18-4-1987 to 23-4-1987. He succeeded in arresting them on 8-5-1987 at Adda Sheikhan in consequence of receiving spy information. S.H.O. Recovered and sealed on the same date a rifle and five cartridges from appellant Sibghatullah under Memo. Exh.PE, a gun with five cartrideges and three other cartridges from Abid under Memo. Exh.PF, and a gun with four cartridges and five other cartridges from Ikram Ullah and under Memo; Exh.PG. From the remaining accused Lathis were recovered under Memos:- Exh.PH, Exh.PI and Exh.PJ. The empties and the recovered weapons were sent to the Ballistics Expert, who gave report in the positive in respect of the guns recovered from Ikram Ullah and Abid and in the negative in respect of the rifle recovered from the appellant. On the basis of this evidence, the appellant and the co-accused were challenged and then tried as mentioned above.
8. Leave to file these appeals was granted by a learned Bench of this Court on 15-3-1993 to consider if conviction of the appellant was warranted by the evidence on record and circumstances of the case when on the basis of such evidence five accused have earned acquittals, and whether acquittal of the five accused particularly of Ikram Ullah and Abid was not well-reasoned. Another point raised in the leave granting order was whether there was justification for acquittal of Ikram Ullah and Abid on the ground that the assailants who hit legs of the deceased cannot be identified.
9. ' Mr. Ijaz Hussain Batalvi, learned counsel for the appellant argued that acquittal of four accused by the trial Court and of one accused by the High Court indicated that the ocular evidence was not relied upon, at least partly. According to the learned counsel, acquittal of Abid by the High Court gave further blow to the prosecution case because he was attributed gunshots to the deceased over his right leg. It was further argued that the trial Court as well as the High Court found the recoveries unreliable as these were not mentioned in the F.I.R. Or in the inquest report. Learned counsel criticized the investigating agency for not investigating this case with clean hands and added that recovery of rifle from the appellant was shown to have taken place at a village where Bhattis resided and they were inimical to the appellant and that even the Courts below had found the investigation to be unreliable. Lastly, it was argued that the F.I.R. Was recorded after preliminary inquiry and this was not warranted by the law. Dealing with his first point, learned counsel for the appellant argued that the same evidence which was not believed in respect of five accused including two accused who were attributed gunshots, the same cannot be believed in respect of the appellant. In support reliance was placed. On the cases of Ilahi Bux v. The State (1982 SCM R 57) and Ahmad v. The State (1982 SCM R 1049). In respect of the motive, learned counsel was of the view that the same was far-fetched story. He posed a question as to, why Abdullah was kept out and not made an accused and that wife of Abdulah was confined by the deceased as stated by her :brother Nooral. Dealing with evidence of P.W. Muhammad Ramzan, learned counsel argued that he was examined after three days of the incident and that he being maternal uncle of the deceased could not be ignorant about death of the deceased for two days. It was also argued that motive cannot corroborate the ocular evidence and cited the cases of Ismail v. The State 1987 PCr.LJ. 1390, Khushi Muhammad v. State 1977 PCr.LJ 932 and Pir Bakhsh v. State 1981 SCMR 1121 (2).
10. While concluding learned counsel referred to the provisions contained in subsection (4) of section 2 of the Qanun-e-Shahadat which reads as below: "(4) A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
11. ' Mr. Sh. Muhammad Naeem, learned Advocate for Advocate-General, Punjab for State opposed the appeal filed by Sibghatullah and supported the appeal filed by Muhammad Afzal complainant.
12. Learned counsel representing the State argued that appellant Sibghatullah had not alleged enmity with any of the prosecution witnesses or with police. That the enmity has been alleged by said appellant with .Thattis, who have no part in this case to play except that recovery or rifle from said appellant took place in a village where Bhattis also live. Learned counsel for the State emphasised on the evidence of motive given by Muhammad Ramzan P.W.7 and explained that he was unaware about the incident for two days as he had gone to Toba Tek Singh in connection with marriage of his uncle's daughter. Learned counsel for the State referred to cross-examination of A.S.I. Ghulam Hassan P.W.8 and argued that the defence had admitted the incident but not the time of the same.
13. Mr. Naeem did not support acquittal of Ikram Ullah and Abid and argued that they should also have been convicted alongwith Sibghatullah 'those conviction was correct. Lastly, it was argued that no evidence was ,adduced by the accused to rebut the ocular testimony that came against them.
14. ' While acquitting Allah Ditta, Noora and Dosa, learned trial Judge took view that they did not share common intention with the co-accused as they only remained present at the spot and held the horses, and they cannot be said to have come to the scene of incident with an intention to kill the deceased and they did not raise even a finger against the deceased of the witnesses. Acquittal of said three accused was not seriously contested by the learned counsel for State. Complainant Muhammad Afzal, who filed Criminal Appeal No, 219 of 1993, was absent at the time of hearing of the arguments. The trial Court does not appear to have acted incorrectly or with illegality in acquitting said accused.
15. ' Learned trial Judge has not given independent reasons for acquitting Ikram Ullah, but has tried to exonerate him by focusing entire responsibility of killing the deceased on appellant Sibghatullah and Abid..In that respect he has taken the two gunshot injuries on the deceased to have been caused by one shot which was fired by Abid.
16. ' While acquitting Abid the. High Court has not disbelieved the ocular evidence but this has been done on the main ground that families of Sibghatullah and Abid were locked in criminal as well as civil litigation. Another ground for acquittal of Abid in words of learned Judges of the High Court was as follows: - ....From the statement of the doctor it is clear that on the left leg in front the deceased had four fire- arm entry wounds and one fire-arm entry wound on the right leg. The former injuries are ascribed to the shot of Ikram Ullah and the latter that of Abid appellant. All the five injuries are of the size of 1/2 C.M. x 1/2 C.M. It is clear from Skiagam of the injuries that they are at the same level. Possibility, therefore, cannot be ruled out that these were the result of one shot. The trial Judge granted the benefit of doubt to Ikram Ullah on this very score. There is force in the argument that it can well be said that the shot of Ikram Ullah might have resulted in the injuries and not that of Abid. So in his case we are put on caution.
17. ' Reasons given by the High Court for acquittal of Abid require to be reassessed in light of the evidence on record. So also the reasons given by the trial Court for acquittal of Ikram Ullah.
18. ' In the case of Pir Bakhsh v. State (1981 SCMR 1121 (2) ), admittedly there was hostility between the parties and the prosecution witnesses had falsely involved four of the five accused and a learned Bench of this Court found that the High Court had rightly disbelieved the testimony of the eye- witnesses in respect of three of the accused and it was found unsafe to apply the principle of sifting the grain from the chaff, for maintaining conviction of the remaining accused. Said case is distinguishable from the instant case, where there was no such hostility between the parties.
19. Acquittal of the accused carrying Sotas in the present case was on the ground of their non- participation in the crime rather than disbelieving the ocular evidence. In the case of Ilahi Bux (1982 SCM R 57) it was held by a learned Bench of this Court that no doubt it is open to the Court to sift grain from the chaff, but before relying only on certain portions of the statements of the prosecution witnesses who have deliberately perjured themselves with regard to another portion of the prosecution story, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate the portion of the statements on which reliance is desired to be placed. In said case maker of the F.I.R. Disowned the story given in the F.I.R. After about a fortnight and filed a private complaint setting up a new case and introducing a new accused and a new offence. Two eye-witnesses mentioned in the F.I.R. Were abandoned in the private complaint and new witnesses were given in their stead. Besides a different weapon was ascribed to an accused. Hence no support can be taken from the said case. In the case of Ahmad (1982 SCM R 1049) a learned Bench of this Court observed that where learned Judge in the High Court rejected a material part of the statements of the eye-witnesses in so far as implication of an accused was concerned, such fact itself detracted from the intrinsic worth of testimony of such eye-witnesses and this showed that either the eye-witnesses were not present at the spot and they had not witnessed the incident, or they had implicated falsely others who had not participated in the occurrence. In said case the trial Court relying on the ocular evidence alone and rejecting the evidence of recoveries convicted all the five accused charged with murder, rioting and causing injuries. The Appellate Court believed the recovery evidence and opinion of the expert relating there and found the ocular evidence to be needing no corroboration and yet acquitted one of the accused who allegedly fired two shots at a witness and maintained conviction of rest of the accused but altered the same from section 302 of P.P.C. Read with section 149 of P.P.C., to under section 302 of P.P.C. Read with section 34 of P.P.C.,. In appeal with leave of this Court, a learned Bench of this Court found the ocular evidence to be requiring corroboration because the same was not relied upon by the High Court in respect of the acquitted accused. Consequently this Court mairm fined conviction in respect of the accused against whom there was corroborativie, evidence in the form of expert opinion that the four empties recovered from the scene of incident were fired from the gun recovered from him. This does not support defence contention about outright rejection of the ocular evidence qua the appellant. In the case of Khushi Muhammad v. State 1977 PCr.LJ 932 Lahore High Court maintained conviction of the accused who allegedly committed murder in dark hours of the night by taking view that there is no inflexible rule of law that a witness who is related to the deceased must invariably be corroborated before his evidence can be relied upon. In the case of Ismail and others v. State 1987 PCr.L.I. 1390 there was recorded enmity between the parties and the view taken taken was that a tainted piece of evidence can be rightly accepted when it is corroborated by another piece of untainted evidence. In the instant case there is no enmity muchless recorded enmity between the parties. The cited cases are therefore distinguishable.
20. There is plethora of case-law that the maxim "falsus in uno falsus in omnibus" is not of universal application and is not applicable in appraisement of evidence in criminal cases. In criminal jurisdiction the trend of the judgment is for sifting grain from chaff. In the case of Muhammad Nawaz v. State (1969 SCM R 132) it was held that there is little substance in the contention as a principle that a witness found to be false in part shall be disbelieved in whole. In the case of Wali Muhammad and others v. The State PLD 1982 SC 55 it was observed by a learned Bench of this Court that the principle of falsus in uno falsus in omnibus has long since been abandoned by our Courts.
21. ' Normally it is not function of this Court to appraise the evidence, but such appraisal of evidence may be necessary in cases where the trial Court has failed to examine the same with utmost care and caution. In the instant case, learned counsel for the appellant made efforts to make out a case of misreading and non-reading of evidence. Hence it has become necessary to have a look at the evidence. The two eye-witnesses are not unnatural. Muhammad Afzal P.W.5 is real brother of the deceased and in front of whose shop he remained present after being free from his professional work as an Advocate at Chiniot. Sher Muhammad P.W.6 is running a shop in the same locality at Adda Sheikhan and he claimed to be sitting with Muhammad Afzal and Muhammad Sharif in front, of deceased's shop when the incident occurred. Both the witnesses were unanimous in saying that firstly Abid fired at the deceased hitting at right leg and then Ikram Ullah fired at left leg of the deceased and lastly the appellant fired at right side of the neck of the deceased who fell down and breathed his last. Both the eye-witnesses were subjected to some cross-examination. Muhammad Afzal in his evidence spoke of relationship between appellant and co-accused Abid and Ikram Ullah whose sister is wife of maternal uncle of Abid. In his cross-examination Muhammad Afzal stated that Sarfraz lived in a Chak which was 45 miles away and that he had joint business with the deceased. Sarfraz had not been examined as a witness. Muhammad Afzal further stated in cross that he and his family did not own any property in village of the appellant viz. Kot Mohla. That he did not own any property in village of Ikram Ullah which was 3 miles away. P.W. Muhammad Afzal further admitted that he saw living in Chiniot in a rented house and that two days prior to the incident the deceased told him about settlement of previous dispute. Explaining his presence at the Wardat, P.W. Muhammad Afzal 'said that the day of occurrence being Thursday, he was free from the Court at 1-00 p.m. And hence went to Ada Sheikhan at 2.00 p.m. He explained that he always visited his native village where his parents lived and that he went to said village to see his parents. Muhammad Afzal added that he remained at Wardat because his father and brother were also there. There is nothing in the cross-examination of P.W. Muhammad Afzal to doubt his veracity. It was an occurrence of daytime and Muhammad Afzal had no reason to substitute the appellant for the real killer of his brother. Sher Muhammad P.W.6 was running a shop at Ada Sheikhan. In his cross-examination he admitted that the place of occurrence is not visible from his shop. This admission would have helped the defence if this witness had said that he saw the incident from his shop. The witness claimed to have seen the incident while remaining present in front of deceased's shop. This witness admitted that his shop was not adjacent to deceased's shop but that does not reduce value of his evidence. Nor their contradiction was pointed out in the ocular evidence.
22. It would be unjust to treat the ocular evidence to be a piece of tainted evidence. The ocular evidence has stood the test of cross-examination and it has neither been impaired nor rebutted.
23. There is no reason to disbelieve it. It is correct that same evidence was led against Ikram Ullah and Abid who have been acquitted. But their acquittal has been challenged. Even otherwise acquittal of Abid and Ikram Ullah in the circumstances of this case, would not affect intrinsic value of the ocular evidence in light of case-law on the point. The medical evidence is in conformity with the ocular evidence. The ocular evidence is further supported by evidence of motive as given by Muhammad Ramzan P .W .7 .
24. ' For the foregoing reasons it is established on record that appellant Sibghatullah was rightly convicted and awarded sentence and his Appeal No,218 of 1993 does not call for interference and it stands dismissed while re-appraisal of evidence is necessary in respect of Ikram Ullah and Abid to examine if their acquittal can be maintained in light of the evidence on record. Consequently Criminal Appeal No, 219 of 1994 is accepted and acquittal of Ikram Ullah and Abid is set aside and the case against them is remanded to the trial Court for disposal according to law. Trial Court shall issue warrants for appearance of Ikram Ullah and Abid before it and then remand them to custody for facing the trial. Should any of them or both move an application for release on bail, the trial Court shall consider the same on merits notwithstanding any observation made in this judgment, which otherwise too would not binding on the trial Court even at the time of delivering the final judgment.