SAIDUZZAMAN SIDDIQUI, J.---The appellant alongwith Azizullah, Sanaullah and Amir Abdullah sons of Haq Nawaz was put on trial before the Additional Sessions Judge, Khanewal, under section 302/34, P.P.C. For committing murder of Amanullah son of Habib Khan. The trial Court acquitted Sanaullah and Amir Abdullah in the case, but found the appellant and Azizullah guilty of the offence under section 302;34, P.P.C. And accordingly convicted them and sentenced them to death in addition to sentence of fine of Rs.10,000 each and in default of payment of fine to undergo one year R.I. The fine on realisation was directed to be paid to the legal heirs of the deceased- as compensation under section 544-A, Cr.P.C.
2. The appellant and Azizullah challenged their conviction and sentence awarded by the trial Court in Criminal Appeal No.81 of 1988. The learned Additional Sessions Judge, Khanewal, also made Murder Reference No.109 of 1988 for confirmation of the death sentence awarded to the appellant and Azizuliah. A learned Division Bench of Lahore High Court accepted the appeal of Azizullah and acquitted him in the case while the appeal filed by the appellant was dismissed and death sentence awarded to the appellant by the trial Court was confirmed. The sentence of fine awarded to the appellant was also maintained. Leave was granted against the judgment of High Court to consider the following contentions:-- "(i) That co-accused Sana Ullah Khan and Amir Abdullah were acquitted by he trial Court while Aziz Ullah Khan was acquitted by the Appellate Court on the same evidence on which Tariq Khan has been convicted;
(ii) Whether ocular evidence against the petitioner was of chance witnesses and whether there is corroboration of the ocular evidence?
(i.e) Whether the medical evidence is in conflict with the ocular evidence? And
(iv) Whether attributing of specific role to any of the assailants amounts to corroboration of the evidence?"
3. According to F.I.R. Which was registered at Police Station Khanewal at about 10 a.m., within an hour of the incident by Habibullah father of the deceased, Amanullah (deceased) had fired at Zia Ullah son of Haq Nawaz with his pistol and injured him on 19-7-1987. On account of this incident Amanullah (deceased) was arrested in a case registered against him under section 307, P.P.C.
However, after about 11 months he was released by the Court on bail in that case. Amir Abdullah (acquitted accused) bore grudge on account of enlargement of deceased Amanullah on bail in the case under section 307, P.P.C. And for this reason, the complainant had forbade his son Amanullah not to visit Chak No.29/10/R in order to avoid confrontation with Amir Abdullah. Two days before the incident Amanullah came to Chak No.29/10/R and on the day of incident at about 8-30 a.m. He went out of the house and sat in front of ' Baithak' belonging to Haq Nawaz Khan son of Daraz Khan. At that the Amir Abdullah, Sanaullah and Azizullah all sons of Haq Nawaz, armed with guns came out of their house from southern side. Simultaneously, the appellant also came armed from northern side. The appellant fired from his gun at Amanullah Khan which hit him on the left flank. Amanullah immediately turned whereupon Azizullah made next fire which hit him on his vest. Amir Abdullah and Sanaullah followed the suit and they also fired at Amanullah which hit him on his back. Amanullah died on the spot. The incident was witnessed by Saifullah Khan son of Habib Ullah (P.W.3), Anwar Khan and Amanullah sons of Haji Muhammad Akram (given up P.Ws.) and Saifullah Khan son of Bahadar Khan (P.W.2).
4. Usual investigation in the case was undertaken by the police and after completion thereof, all the four accused were put on trial before the learned Additional Sessions Judge, Khanewal. It may be mentioned here that during investigation of the case 2 guns were recovered (P.5 and P.6 respectively), from the appellant and Azizullah but they were not sent to ballistic expert as no empties were recovered by the police from the spot at the the of site inspection. The motive alleged in the case against the appellant and the acquitted accused by the prosecution was, the pendency of criminal litigation between the parties in which deceased Amanullah was enlarged on bail. The learned trial Court acquitted Sanaullah and Amir Abdullah giving them the benefit of doubt but convicted the appellant and Azizullah on the ground that according to medical evidence in the case out of 5 injuries found on the dead body of the deceased Amanullah, injuries Nos.l and 2 were found to be the result of one shot while injuries Nos.4 and 5 were described as the possibility of second shot. Injury No.3 according to medical evidence was an exit wound. The learned trial Court held that injuries Nos.l and 2 were specifically attributed to the appellant while injuries Nos.4 and 5 were found to have been caused by the shot fired by Azizullah.
5. The learned Judges of the Division Bench while hearing the appeal filed by the appellant and Azizullah found the case set up by the prosecution against Azizullah doubtful as injuries Nos.4 and 5 found on the person of deceased Amanullah were not only attributed to Azizullah but also to to acquitted accused namely, Sanaullah and Amir Abdullah. Azizullah was, accordingly, acquitted in the case. The learned Judges, however, came to the conclusion that injuries Nos. l and 2 were attributed only to the appellant and, therefore, the prosecution case to the extent of appellant stood fully proved as it found corroboration from the medical evidence in the case.
6. The learned counsel for the appellant contended before us that the case of the appellant was at par with all the other acquitted 3 accused in the case and therefore, following the rule of consistency the appellant should have been extended the benefit of doubt which was granted to the other accused in the case. It is further contended by the learned counsel for the appellant that the enmity between the parties having been established on record and almost admitted by the prosecution witnesses, it was totally unsafe to base the conviction on the interested testimony of the prosecution witnesses without seeking corroboration from other independent and unimpeachable piece of evidence in the case. It is also contended by the learned counsel for the appellant that the motive alleged in the case was only against Amir Abdullah who was acquitted by the trial Court and no acquittal appeal or revision was filed either by the State or by the complainant against his acquittal. It is accordingly contended that there was no direct motive alleged or attributed against the appellant who was brother-in-law of Amir Abdullah and 2 others acquitted accused in the case. It is lastly, contended by the learned counsel that mere attributing specific rule to the appellant could not amount to corroboration in the case in hand as medical evidence did not prove anything except locale and nature of the injuries suffered by the deceased Amanullah.
7. In support of his contention that in the present case the evidence of prosecution witnesses could not be accepted without corroboration in view of admitted enmity between the parties, the learned counsel relied on the following passage from the case of Ata Muhammad v. The State (1995 SCM R 599):-- "The maxim 'falsus in uno falsus in ominibus', no doubt, has no universal application and that grain is to be sifted from chaff but it may not be possible in the case where the very P.W. On whose testimony conviction of an accused is maintained has earlier been held not to be worthy of credence so far as other accused charged with effective participation in the same occurrence was concerned. The acquittal of eight co-accused, particularly of Nazir, would adversely reflect on the credibility of the eye-witnesses. The acquittal of the eight co-accused will also show that the eye- witnesses were capable of implicating falsely innocent persons in the case or at least of exaggerating the number of the accused.
The ocular evidence may be classified into three categories---firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the instant case the deceased suffered one fire-arm injury and Khizara suffered three fire- arm wounds caused by .12 bore gun. The possibility of three entry wounds caused by one shot from .12 bore gun is very much there. The number of the injuries of the deceased and the P. W. Does not commensurate with the number of the accused named by the eye-witnesses. In view of the aforesaid infirmities in the ocular evidence we fell that in the instant case the testimony of the eye-witnesses falls within the third category.
Consequent to the above observations, the ocular evidence in this case cannot and should not be accepted unless substantially corroborated. So in order to be satisfied that no innocent person is convicted we have decided to look for some additional evidence/circumstances giving support to the statements of the eye-witnesses so as to create that degree of probabilities of the guilt of the appellants which can be made basis of safe conviction.
11. We are fully conscious that for corroboration it is not necessary that there should be words of an independent witness supporting the statements of interested witnesses and that the same may be afforded by anything in the circumstances of case which may satisfy a reasonable and prudent mind that the witnesses have spoken truth while naming the individual accused. We have anxiously looked around for independent corroboration which could rehabilitate, repair and cure the damage done by the eye-witnesses to their integrity and credibility by implicating ten members of the family out of whom eight have been acquitted but we have not been able to find out any reliable independent corroboration. The circumstances relied upon by the High Court as corroborative evidence, or the circumstances pointed out by the learned counsel for the State, do not constitute requisite independent corroboration. "
In support of his next contention that the case of appellant being at par with other 3 acquitted accused in the case and at least with the co-accused Azizullah, he was also entitled to the acquittal, the learned counsel referred to the case of Rehmat v. State (1995 SCM R 733).
8. The contentions of the learned counsel appear to be forceful. In the case before us, P.W.1 (father of the deceased Amanullah) made a categorical statement in the F.I.R. That all the 4 accused in the case fired at the deceased Amanullah which hit him on different parts of the body. This version was repeated by P.W.1 at the trial before the Court. The other 2 prosecution witnesses namely, Saifullah Khan son of Bahadar Khan P.W.2 and Saifullah Khan son of Habibullah Khan (P.W.3) also specifically attributed injuries to all the 4 accused on the person of the deceased by their respective fire-arms. The learned Trial Court, however, acquitted Sanaullah and Amir Abdullah giving them benefit of doubt as no recovery was effected from them and the possibility of their false involvement in the case could not be ruled out. However, the case of the appellant and Azizullah was found distinguishable from the other 2 accused as guns were recovered from them and accordingly, trial Court convicted them for the offence of murder sentencing them to death as aforesaid. The learned Judges of the High Court while discussing recovery of guns from the appellant and Azizullah made following observations in the impugned judgment with regard to evidentiary value of the recoveries in the case:-- "So fat as the recovery of guns P.5 and P.6 the weapons of offence at the hands of the appellants is concerned we do 'tot find it an evidence of any corroborative value. Admittedly neither any empty and nor the pllets were recovered from the place of occurrence and accordingly nor were sent to the fire-arm expert for their examination. Simple recovery of the guns P.5 and P.6 at the hands of the appellants in our view has no evidentiary value as those have not wedded with the empties or the pellets. We failed to understand that how the learned trial Court considered these recoveries of the weapons of offence as supporting evidence to the implication of Aziz Ullah Khan, appellant when the participation was identical to those of the acquitted accused."
9. We fail to understand that the learned Judges having found the recovery of guns (P.5 and P.6) in the case of no avail and of no corroborative value, on what reasoning the case of acquitted accused Azizullah could be distinguished from the appellant. Apart from the fact that all the prosecution eye-witnesses were unanimous in their assertion that the shot fired by the appellant hit the deceased Amanullah on his left flank while the trial Court as well as the learned Judges of High Court attributed injuries Nos. l and 2 which are near the chest of the deceased, to the appellant, we do not find any distinction between the case of prosecution set up against accused Azizullah and the appellant. The case set up by the prosecution against appellant and Azizullah being at par the acquittal of accused Azizullah in the case which has not been challenged either by the State or by the complainant through any acquittal appeal no rationale was available before the High Court for maintaining the 'conviction and sentence of the appellant. We, accordingly, allow this appeal, set aside the sentences awarded to the appellant Tariq Khan by the trial Court and confirmed by the High Court. The appellant is directed to be set at liberty forthwith unless required by the authorities in some other case. The above are the reasons of our short order which we announced on 30-11-1996.