MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Criminal Appeals Nos. 440 of 1994 and 441 of 1993 by special leave are from the judgment of the Lahore High Court, Lahore, maintaining the convictions of Aslam and Ahmad appellants on the charges under section 302 read with section 34 of the Pakistan Penal Code instead of section 149 of the Code. Their convictions and sentences under section 148 of the Code were, however, set aside. The sentence of death awarded to Aslam appellant was confirmed while that awarded to Ahmad was reduced to imprisonment for life.
Three convicts, namely, Najabat, Shaman and Manak were acquitted by the High Court of all the charges.
2. In Criminal Petition No. 188-L of 1993, leave to appeal was granted to the convicts-appellants Aslam and Ahmad "to consider, inter alia, whether corroboration of the ocular account was necessary and if so, whether medical evidence showing to fire-arms wounds of entry of almost the same dimension in the facial region of the deceased, which according to the doctor, could result from a single fire, had provided the requisite corroboration against each of the to petitioners". In Criminal Petition No. 171-L of 1993 filed by Manak complainant seeking enhancement of sentence of imprisonment for life to that of death for Ahmad appellant and getting the acquittal of Najabat, Shaman and Manak set' aside, leave was also granted "to consider whether in view of. The evidence on record the principle-of vicarious liability was attracted in the case". As both the appeals have arisen out of the same judgment, we propose to dispose of these appeals through this single judgment.
3. According to the prosecution story, the occurrence which took place on 5-11-1987 at 4-00 a.m., was over demand of the accused of some portion of land out of the State land, Killa No. 22, Square No.28 of Cloak No. 211/J.B. For residential purpose, which was on lease' with Muhammad Saeed deceased. On the day of occurrence, when Manak (P.W.5) had started ploughing the field while Muhammad Saeed had started cleaning the water course, all the five accused duly armed with guns, reached the spot raising 'Lalkaras'. Najabat accused shouted that Muhammad Saeed deceased be not spared whereupon Aslam appellant fired at Muhammad Saeed hitting him on the left side of his face near nose. Then Ahmad appellant fired a shot causing another injury on the right side of his face in his middle of his lips. In consequence, the deceased fell down and expired.
The remaining three accused were alleged to have fired indiscriminately. Manak (P.W.6), Sher Muhammad (P.W.7) and Allah Yar P.W., who was given up as unnecessary, were attracted to the spot and witnessed toe occurrence.
4. Ahmad like his co-accused denied the prosecution allegations against him. When asked as to why the P.Ws., have deposed against him, here is what he had explained in the trial Court:-- "Haq Nawaz, a close relative of Manak P.W., had a dispute with the deceased over the possession of Killa No.22, Square No.28 of Chak No. 211/JB. Haq Nawaz aforementioned was in actual possession of Killa No.22 of Square No.28 of Chak No.211/JB and Muhammad Saeed deceased and Manak P.W., wanted to take forcible possession of the abovementioned property from Haq Nawaz abovementioned. Saeed deceased engaged one Yousaf, rogne of the village, so that he may obtain the possession of that Killa number by constructing a residential house there. On the day of occurrence, Muhammad Saeed deceased alongwith Muhammad Yousaf abovementioned and some other persons were present, at the spot armed with guns and they challenged Haq Nawaz who had also gun with him at that the. Haq Nawaz rushed towards our house which is close to the place of occurrence on the eastern side and he climbed over the roof of our house and then there was cross firing between Saeed deceased and his companions on the one side and Haq Nawaz on the other side. In the meanwhile a fire of Haq Nawaz abovementioned hit the deceased resulting in his death. The deceased and his companions fired many shots towards our house which hit the rear wall of our house. After the occurrence, the complainant party colluded with Haq Nawaz being a close relative and obtained the possession of Killa No.22 of Square No.28 from him and got me and my co-accused persons falsely implicated in this case because the fring was shot from the roof of our house. The P.Ws., are closely related to the deceased and they are also inimical towards us and that is why they have deposed falsely against us."
His four other co-accused including Aslam appellant when similarly asked they maintained that "they fully endorsed the defence version set up by their co-accused Ahmad",
5. At the trial, the prosecution examined Manak (P.W.5) and Sher Muhammad (P.W.6) as eye- witnesses. Both of them had supported the prosecution case in the witness-box. The learned trial Judge did not entertain the contention raised on behalf of the defence that as the column of death in the Post-Mortem Report Exh.PA had been left blank, therefore, the F.I.R., was lodged with considerable delay after prevarication and consultation and held that it may be reflection of inefficiency of the Investigating Officer, but it did not imply that the F.I.R., was lodged with delay. In this context, it was rightly held that an occurrence which took place at 4-00 p.m., and had been reported at the Police Station at 5-30 p.m., which was 14 miles away from venue of the crime, was promptly lodged case excluding any possibility of pre-consultations. The criticism raised qua the propriety of the motive part of evidence, was equally brushed aside saying that it was defence case that Yousaf rogne was interested in raising residential premises in the land to the annoyance of the appellants and that they could not have been seeking a parcel of land for the purpose of construction because within the circumference of to Kanals they had their own house. Testimony of both the eye-witnesses was held credible notwithstanding their relationship, in that, both of them were not shown to have got animus for false charge. The emphasis bail on behalf of the appellants that the ocular account of the occurrence was not in consonance with the medical evidence was held, to be highly misplaced inasmuch as the to injuries sustained by the deceased could not be the result of one shot as conceded by Dr. Liaqat Ali (P.W.1) according to whom it was just a possibility and not a confirmed view. As this argument had been stressed not only before the learned Judges in the High Court, but also reiterated with vehemence before us, it is desirable to mention the injuries suffered by the deceased. Muhammad Saeed deceased had the following to injuries on the face:-- "(1)A fire-arm entrance wound 1/1-2 c.m. x 2/1-2 c.m. Just on right side of both upper and lower lips.
Upper to central incisors and one lateral incisor on right side were broken. Lower lateral incisor tooth on right side was also broken. Both lips and tongue on front were injured.
(2) A fire-arm entrance wound 1/1-2 c.m. x 1/1-4 c.m. On left side of cheek, close to nose 1/1-2 c.m.
Below inner part of left eye. The bone underneath the injury was fractured."
In the opinion of the doctor, the death had occurred due to haemorrhage and shock due to injury No.2 which was sufficient to have caused death.
6. A noticeable feature in the evidence of the to eye-witnesses is that although in respect of Ahmad and Aslam appellants, they had described in detail and assigned a specific injury to each one of them, in the case of Najabat, Shama and Manak they were lumped together with the to appellants and it was said that they opened indiscriminate firing after the first to shots.
7. The learned trial Judge believed the motive, the ocular evidence and the medical evidence and convicted all the accused under section 302 read with sections 149 and 148 of the Code and while awarding various terms of imprisonment and fines, to Najabat, Shama and Manak, but Ahmad and Aslam were sentenced to death with fines.
8. On appeal by the convicts and reference by the learned trial Court, the learned counsel appearing on their behalf reiterated his contentions which had been raised before the learned trial Judge besides the additional grounds: firstly, that Sher Muhammad (P.W.6) was a chance witness whose uncorroborated testimony was not worthy of reliance and, secondly, that it was a case of to versions wherein the defence version derived ample support from the evidence of Muhammad Ikramullah Investigating Officer who had fully owned the plea of the innocence of the convicts and that it was Haq Nawaz who was the real culprit.
9. The learned Judges of the Division Bench were not persuaded to accept either of the contentions raised before them on behalf of the appellants on the following reasonings:-- "In this case, there is no background of enmity except the motive mentioned in the first information report itself. The occurrence took place in the broad daylight and matter was reported to the police with great promptitude, which all together eliminates the chances of false implication of the accused persons. The prosecution has established the motive in this case and ocular version is being fortified by the medical evidence, so far as the role attributed to Ahmad and Aslam appellants is concerned because the deceased received to independent fire shots on his person as deposed by the doctor. The argument of the learned defence counsel that doctor admitted these to injuries could be the result of single shot is devoid of force and hence repelled because the doctor in his post-mortem report specifically affirmed that deceased received to entry wounds on the person. But the case of Najabat, Shaman and Manak appellants is distinguishable from the case of Ahmad and Aslam appellants as there is no independent corroboration of the ocular version with respect to the part played by Najabat, Shaman and Manak appellants. Unfortunately, in our country, there is tendency to involve some innocent persons alongwith the actual culprits.
The Courts of law usually look for some corroboration by way of abundant caution even if the presence of eye-witness is established at the spot. Applying this principle, we accept the appeal qua Najabat, Shaman and Manak and acquit them and direct that they be released forthwith if not required to be detained in any other case. The appeal of Ahmad and Aslam appellant is dismissed on merits. This brings us to this aspect of the case, what should be the appropriate sentence in the present case. We find lot of force in the submission of learned defence counsel that sentence awarded to Ahmad needs reduction as fatal shot is attributed to Aslam appellant, we order accordingly and reduce the sentence of Ahmad from death to imprisonment for life. While maintaining his conviction under section 302, P.P.C., the sentence of fine is also maintained as directed by the learned trial Court. He is also given benefit of section 382-B, Cr.P.C. The sentence of death of Ahmad appellant is not confirmed. There is no mitigating circumstance in favour of Aslam appellant because fatal shot to the deceased is attributed to him, so his sentence of death is confirmed and sentence of fine as awarded by the learned trial Court is maintained. The revision petition is dismissed."
10. The point strenuously argued before us is the same that was argued in the High Court, namely, that deceased being the husband of the sister of Manak (P.W. 5), his testimony should not be accepted without corroboration and such corroboration cannot be afforded by the medical evidence which was itself not in conformity with the eye-witness account furnished by the eye- witnesses.
11. The contention that a witness, who is related to the deceased, is an interested witness, has since long been repelled by this Court. It is settled proposition by now that an interested witness is the one who has a motive for falsely implicating an accused person. Now it is not always true that a witness who is related to the deceased or the P.Ws. Is necessarily an interested witness or that an interested witness is always not worthy of reliance. In Niaz v. The State (PLD 1960 SC 387) in which the credibility of an interested witness was examined in its true perspective, the learned Judges had no intention of laying down any rule of law qua the credibility of the interested witnesses though they were explaining for the guidance of the Courts their own approach to the problem that generally confront the cases of crime by violence. The following observations of Kaikaus, J. Who was speaking for the Bench comprising S.A. Rehman, Fazal-e-Akbar arid Hamoodur Rehman, JJ. In the case of Nazir v. The State (PLD 1962 SC 269), are illuminating:-- "There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is sale to rely upon his testimony in respect of every person against whom lie deposes. In order, therefore; to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be' whether some innocent person had not been implicated in addition to those who were guilty the circumstances relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the to do not stand on the same footing. "
Again in Nazir Hussain v. The State (PLD 1965 SC 188), the rule laid down in the precedent case of Niaz (supra) was reiterated holding that:-- "We are also unable to agree with the High Court that the mere relationship of Murad Ali Shah with the deceased was sufficient to reject his evidence nor can we agree that the High Court was right in treating Latif as an interested witness merely because he was employed as Mistry at the Mill of the deceased. As has been pointed out by this Court in the case of Nazir v. The State (PLD 1962 SC 269). There is no inflexible rule that the statement of an interested witness can never be accepted without corroboration. In the present case we are not prepared to accept that Murad Ali Shah is an interested witness."
Muhammad Saeed deceased was admittedly the husband of the P.W,5 Manak's sister, It has been urged before us that being closely related to the deceased, he was an interested witness and in consequence his evidence having remained uncorroborated ought to have been discarded.
12. In the final analysis, it is neither the relationship of the witnesses with the deceased or with the P.Ws. Inter se nor in the appropriate cases even their being the interested witnesses that provides an ultimate guidance for according credence to their testimony, For this process it is virtually inherent worth of evidence of a witness that determines his reliability.
13. The evidence of Manak P.W,, when put to test on aforesaid .Premises, we have no manner of doubt that he was rightly held as worthy of reliance by the learned Judges in the High Court. In any case the evidence of Sher Muhammad (P,W, 6), who is neither related to the deceased nor to Manak P.W,, nor like Manak P,W, has any animus for falsely implicating the appellants on a capital charge, lends full support to the testimony of Manaki P.W. He was, therefore, rightly adjudged as reliable.
14. We are also conscious of the exaggeration made by the to P.Ws. In implicating the three accused who have been acquitted in the case. The learned Judges in the High Court were right in arriving at the conclusion that in our society the tendency is common that people involve innocent persons alongwith those who are guilty. In Tawaib Khan v. The State (PLD 1970 SC 13), a similar objection was repelled by Sajjad Ahmed. Jan, J. In the following at remarks:-- "But, I consider that in the matter of the administration of criminal justice taking in view the present state of our society, the assessm ent of evidence whether it is statement of a witness or statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein------------.The maxim ' falsus in uno falsus in ominibus' has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions the grain has to be sifted from the chaff' in each case, in the light of its own particular circumstances."
15. In the present case judging the evidence of Manak and Sher Muhammad P.Ws. In the light of the principles enunciated in the case of Tawaib Khan (supra), which have been consistently followed by this Court till now, we have formed the opinion that whereas the charge against Aslam and Ahmad, who had fired effectively one shot each at the deceased, the charge against their three other co-accused, namely, Najabat, Shaman and Manak is not at all free from doubt. The injuries suffered by the deceased in relation to the role, which has been ascribed by the to P.Ws. To his to assailants, furnish the best test to find t--out as to what is the truth, or at least to discover what is doubtful and exaggeration.
16. The learned counsel for the appellants was at pains to point out that the possibility that to injuries on the face of the deceased could be the result of one shot could not be ruled out. In this regard, suggestion owned by Dr. Liaqat Ali in his cross-examination and distance of 131 feet from the place of firing at the deceased, was pointedly-referred. The concession of Dr. Liaqat Ali P.W. 1 qua the possibility of one shot is not of much consequence firstly, because possibility cannot take the place of firm opinion; secondly, owning such a concession in the cross-examination is contrary to his categorical statement in his examination-in--chief that the deceased had sustained to injuries which had been described separately; and, thirdly, assuming for argument's sake that it was possible as per medical evidence, it is in clear contradiction to the eye-witness account which has been found truthful. In such an eventuality, medical opinion resting on the brink of possibility shall give way to the eye-witness account.
17. Much capital was sought to be made from the friendly concessions made by Muhammad Ikramullah (P.W. 7), who had investigated the case. The concessions, to say the least, reflect the extent of deterioration of police discipline and complete disregard of the Courts' authority. We have noticed with dismay the audacity of the Investigating Officer to have made very damaging concessions in the Sessions Court to the prosecution case, who had the courage without impunity to own every suggestion that was put in his mouth. It was indeed highly unscrupulous on his part.
He was certainly a venturesome fellow if not a dare devil. Very sad aspect of the case is that the learned trial Court-had conveniently ignored the abominable conduct of a police officer of the rank of D.S.P. In short, the appellants cannot be allowed to draw any premium from his unchaste concessions for reasons which are not far to seek.
18. The next contention of the learned counsel for the appellants was that looking to the distance (150 feet between points 1 and 4), the to eye-witnesses could not possibly notice the exact locale of the to injuries sustained by the deceased and, therefore, their presence on the spot was rendered highly doubtful. The argument is equally fallacious, in that, this distance was not that large to have not enabled the to P.Ws. To witness the occurrence.
19. Learned counsel's next submission with reference to the statement of Ahmad appellant reproduced in para. 4 of the judgment was that it was a case of to versions one of the prosecution and another of the defence and that at worst the appellants were liable under section 304 of the Code and not under section 302 thereof because the complainant side had also fired at the appellants as was evident from firing marks on the wall of their house. In support of this proposition, reference was made to the law on 'free fight: laid down by this Court in Syed Ali Bepari v. Nibaran Mollah (PLD 1962 SC 502). We have already discredited the testimony of lkramullah, Investigating Officer on the friendly and unchaste concessions, which also included this aspect as well. Further, the plea of 'free fight' was never taken either during the trial or in the course of the hearing of the appeal in the High Court nor is it discernible from the record. This plea is, therefore, absolutely misconceived.
20. The last contention that the death sentence awarded to Aslam appellant was not warranted, is also untenable. The learned Judges in the High Court, after reappraisal of eye-witness account of the occurrence, have rightly attributed the fatal injury to Aslam convict-appellant. He was, therefore, rightly awarded the sentence of death.
21. In view of what has been observed above, there is no substance in both the appeals, which are dismissed.