' MUNAWAR AHMED MIRZA, J.---This appeal, by leave of the Court, is directed against judgment, dated 17th July, 1994 passed by Lahore High Court in Criminal Appeal No,286 of 1991 and Murder No, 133 of 1991.
2. Wazir Ali alias Kaka son of complainant Rahim Bakhsh was murdered on 21st February, 1989 around 8-30 a.m. At his 'Toka' place for cutting fodder) located in Chowk Begumkot within area of Police Station Shandera. On the fateful day in the morning hours at about 8-30 a.m. Complainant, his daughter-in-law P.W.10 Mst. Barkat Bibi alias Batto wife of Bashir Ahmad and deceased Wazir Ali were present at the 'Toka' when convict/appellant alongwith co-accused Khalid Mehmood (since acquitted) armed with carbine arrived there. Co-accused Khalid Mehmood raised 'Lalkara' that deceased would be taught a lesson for appearing as witness against their family. Then appellant and co-accused opened fire with Carbine, hitting deceased Wazir Ali on his head. Both the accused managed to escape from the scene by firing in the air. P.W.12 Amanat Ali, who is 'Wajtakar' witness, also arrived on the scene and immediately shifted injured Wazir Ali to Mayo Hospital, Lahore, but he expired on the way. P.W.9 Noor Muhammad is stated to have witnessed the incident.
Police on coming to know about incident arrived at the Hospital where Fard-eBian (Exh.PH) of complainant Rahim Bakhsh was recorded and sent to Police Station Shandera, where formal F.I.R.
No,53 of 1989 (Exh.PH/1) was registered. After completion of investigation, challan was sent against convict/appellant and co-accused Khalid Mehmood before Additional Sessions Judge, Lahore to face trial under section 302/34, P.P.C. For causing murder of Wazir Ali alias Kaka. The appellant had refuted the charge and pleaded not guilty. Prosecution thereafter adduced fourteen (14) witnesses to substantiate accusations against said saccused.
3. After closing of prosecution side, trial Court recorded statements of appellant and co-accused under section 342, Cr.P.C. Denying the allegations appellant explained that one Nazar Ali, who was facing trial under section 307, P.P.C., was murdered before occurrence in the present case by Ghulam Sabir and Faqir Muhammad. According to him, murder of Wazir Ali was a blind incident because assailants were not identified, but he has been falsely involved for pressurising him to compromise in above murder case. The appellant and co-accused neither led defence nor opted to appear on oath for disproving the allegations as envisaged under section 340(2), Cr.P.C.
4. Learned Additional Sessions Judge on the appraisement of evidence observed that certain deliberate improvements were made by the eye-witnesses but clearly relying upon testimony of P.W.10 Mst. Barkat Bibi alias Batto as corroborated by P.W.12 Amanat Ali and finding support from medical evidence found appellant guilty for the offence, whereas co-accused Khalid Mehmood was acquitted by extending benefit of doubt. Concluding portion of judgment, dated 26th March, 1991 passed by the Additional Sessions Judge, Lahore is reproduced below:- "(23)The case of Muhammad Tufail is of total denial. The solitary statement of Mst. Barkat Bibi P.W.10 coupled with the statement of Amanat Ali P.W.12 proves the case against Muhammad Tufail accused beyond any reasonable doubt. The previous history of the parties of this case on record clearly proves that the accused had a strong motive to kill the deceased.
(24) For the foregoing reasons I hold Muhammad Tufail accused guilty of committing the intentional murder of Wazir Ali alias Kaka deceased of this case, and convict him accordingly under section 302, P.P.C. And I sentence Muhammad Tufail accused to death subject to confirmation by the Lahore High Court, Lahore. He shall be hanged by the neck till he is dead. I also sentence him to pay fine of Rs,50,000 or in default of payment of fine to undergo two years further R.I. In addition to it he shall pay an amount of Rs,50,000 as compensation to the heirs of the deceased or in default to further undergo one year R.I. The accused has been informed that he can prefer appeal before the High Court, Lahore within seven days of the announcement of this Judgment. Copy of the judgment will be supplied to him free of cost. I acquit Khalid Mehmud accused of the charge by extending him the benefit of doubt. He is on bail. He is discharged from his bail bond. The entire record alongwith the property of this case shall be transmitted to the Lahore High Court, Lahore for the confirmation of the death sentence of Muhammad Tufail accused under section 374, Cr.P.C."
5. The appellant feeling aggrieved from above conviction and sentence had preferred Criminal Appeal No,286 of 1991 before Lahore High Court. Murder Reference No,133 of 1991 seeking confirmation of death sentence awarded by trial Court also came up for hearing alongwith said appeal. Eventually High Court mainly relying on the deposition of P.W.10 Mst. Bakhat Bibi alias Batto and 'Wajtakar' evidence of P.W.12 Amanat Ali coupled with other circumstantial factors rejected the appeal whereby death sentence awarded to appellant by trial Court was confirmed vide judgment, dated 17th July, 1994.
6. The appellant had assailed above conviction and sentence awarded by the two Courts below through Criminal Petition for Leave to Appeal No,336-L of 1994 before this Court. Leave was granted on 14th May, 1995 in the following terms:- "(5) The case against the petitioner and the co-accused was founded on the ocular account provided by Noor Muhammad (P.W.9) and Mst. Barkat Bibi alias Batto (P.W.10). The trial Court as well as the High Court accepted their testimony to the extent that it involved the petitioner in the case but rejected it with regard to Khalid Mehmud for the reason that according to the doctor who conducted the post-mortem examination the deceased had only one firearm injury on his head.
(6) In support of this petition it is contended that according to the version as given in the F.I.R. Both Khalid Mehmud and the petitioner had fired at the deceased, Khalid Mehmud had been let off for the reason that the deceased had only one firearm injury; there was no basis for holding that the shot which hit the deceased had been fired by the petitioner, for according to the first information report it was a case of simultaneous firing by two persons and the eye-witnesses even if they were at the spot could not say whose shot had hit the deceased. In the circumstances, the case of the petitioner could not be distinguished from that of Khalid Mehmud, particularly when the latter had been assigned the additional role of raising lalkara.
(7) The contention raised in support of this petition needs examination. Leave to appeal is accordingly granted."
7. Mr. Ijaz Hussain Batalvi, Senior Advocate Supreme Court, appearing for the appellant very ably explaining entire case strenuously contended that conclusions drawn by the High Court were contrary to record and medical evidence. There existed glaring conflict in the deposition of medical officer and ocular version, but erroneous inference have been drawn by the Courts, causing serious prejudice to appellant. It was urged that motive alleged by the prosecution was clearly contradicted by the statement of Mst. Barkat Bibi alias Batto (P.W.10) which affirmed that deceased was not an eye-witness in the case registered against accused party under section 307, P.P.C.
Learned counsel greatly stressed that prosecution at the commencement of case had assigned direct role to the appellant and co-accused (since acquitted) but during trial have chosen to place direct responsibility upon the appellant primarily for bringing oral version in conformity with medical evidence, therefore, deliberately planned improvements made by the witnesses cannot be conveniently ignored. It was emphatically urged that appellant was entitled to the same protection as co-accused Khalid Mehmood for satisfying principle of consistency and equal treatment. To supplement his submissions reliance was placed on the observations contained in cases (i) 1972 SCM R 578 (Darya Khan v. The State) and (ii) 1993 SCM R 1602 (Muhammad Ilyas v. The State).
8. Mr. Dil Muhammad Tarar, Advocate Supreme Court appearing for the State, vehemently opposed the appeal, It was argued by him that statement of Mst. Barkat Bibi was confidence inspiring and fully corroborated by P. W.12 Amanat Ali, therefore, the accusations against appellant were duly substantiated. It was contended that mere fact that one accused for certain omissions or lapses has been granted benefit, the principle of consistency would not require repetition of same error by graning benefit also to the present appellant against whom there existed preponderant evidence assigning specific and distinct role, supported by strong motive.
9. We have minutely perused the record and carefully considered all aspects of case in the light of arguments advanced by learned counsel for parties. It may be seen that prosecution evidence mainly hinges upon testimony of Mst. Barkat Bibi (P.W.10). She has unequivocally mentioned her presence on the spot at the relevant time of incident. According to her version appellant alongwith co-accused had arrived at the scene armed with Carbines. She further deposed that Muhammad Tufail fired with his Carbine which hit Wazir Ali on the left side of his head whereupon he fell down on the ground. Acquitted co-accused Khalid Mehmood also fired but it was not noticed whether same had struck the deceased. No doubt there is improvement in the statement given by P.W.10 Mst. Barkat Bibi before the Court, because in her 161, Cr.P.C. Statement before police she had mentioned about simultaneously firing by appellant and co-accused Khalid Mehmood at deceased Wazir Ali. Her positive assertions in the Court directly attributing the infliction of head injury to deceased by the appellant, however, remained unshaken despite gruelling cross- examination. The record reveals that P.W.9 Noor Muhammad gave obliging statement, but same has not been believed by the trial Court against the appellant or the co-accused. Nevertheless, undoubtedly P.W.9 Noor Muhammad clearly confirms happening of incident and presence of Mst.
Barkat Bibi at the relevant time. Therefore, the deposition of P.W.9 lends support to the testimony of P.W.10 Mst. Barkat Bibi as regards place and time of incident and her presence on the scene of occurrence. Besides 'Wajtakar' evidence of P. W.12 Amanat Ali establishes presence of appellant and acquitted co-accused Khalid Mehmood armed with Carbine at the time of incident and their subsequent escape. This not out of place to mention that presence of Amanat Ali is further established from the fact that he shifted injured Wazir Ali from scene of occurrence to Mayo Hospital and identified the dead body at the time of post-mortem examination. Accumulative effect of above evidence certainly discloses strong basis for showing responsibility of appellant for the commision of offence under challenge.
10. Now we advert to the arguments about principle of consistency and whether it was justifiable to punish appellant when on the same evidence and identical set of circumstances co-accused Khalid Mehmood has been acquitted.
11. In case Darya Khan v. The State (1972 SCM R 578), the Court taking into account glaring lacunae and apparent discrepancies of prosecution evidence indicating doubtful identity of the accused, and considering above principle the appeal was allowed. Relevant observations are reproduced below:-- "This doubt is further strengthened by the fact that the broken pieces of only one bullet were found from near the wall at the end of the threshing floor. If indeed two shots had been fired, the second bullet could not have disappeared after passing out of the body of the deceased. The learned counsel appearing for the State submitted that the bullet might have landed in the hay-stack and could not, therefore, be traced. It seems to us that the prosecution cannot find support from such conjectures. The proved facts are that the medical evidence shows that only one shot hit the deceased and this fact appears to be confirmed by the recovery of broken pieces of only one bullet. In this state of the record it would be highly unsafe to hold that both the appellants participated in the assault or that each fired one shot at the deceased.
' Then there is the undoubted fact that the shots came from behind the hay-stacks. The High Court has recorded a finding that "the seat of the injury is indicative of the fact that the accused was not fired at by a person standing, but in all possibility the assailant was squatting on the ground when he fired at the victim." This finding lends support to an argument, presented on behalf of the appellants, that the shots must have been fired by a person taking shelter behind the hay-stacks, thus, successfully concealing his identity from the deceased and the witnesses.
' When the ocular evidence of interested and inimical witnesses is viewed in the light of the glaring contradiction between the account furnished by them and the medical evidence, the recovery of only one bullet from the spot, and the presence of hay-stacks affording opportunity to the assailant or assailants to conceal his or their identity, the case against the appellants becomes highly doubtful. For the same reasons it becomes unsafe to rely on the dying statement made by the deceased. We would accordingly accept this appeal, set aside the conviction and sentences of the appellants and acquit them. They shall be set at liberty forthwith provided that they are not required to be detained in any other connection."
12. Similarly in case Muhammad llyas v. The State (1993 SCM R 1602) this Court found that tainted evidence could not corroborate another tainted piece of evidence and keeping in view apparent weakness of prosecution case and contradictions in the corroborative evidence, the principle of consistency was maintained by giving benefit to appellant. Relevant observations are reproduced below: - "(14). In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against appellants beyond doubt. Ocular evidence of two eye-witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt unfortunate incident has taken place in which two person have lost their lives but not in the manner asserted by the prosecution. On the basis of evidence of these eye-witnesses, co-accused Abbas is acquitted by trial Court and finding is maintained by the High Court. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence and recoveries, but each piece of this evidence is defective and failing in intrinsic value, hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence. We, therefore, hold that it is fit case in which benefit of doubt can be given to the appellants. Conviction and sentence of appellants is set aside and appeal is allowed. They may be set at liberty if not wanted in any other case."
13. The facts of instant case are, however, distinguishable and afore-quoted rule would not be directly attracted. The testimony of P.W.10 Mst. Barkat Bibi has been believed by both the Courts below wherein said witness has categorically expressed that carbine fired by appellant had caused head injury to deceased. The deposition of this witness is quite natural and substantially confidence inspiring. The pivotal question which needs elucidation would be whether minor improvements of which co-accused had already been granted benefit should also be extended to the appellant, despite strong and tangible evidence connecting him with crime, merely on the principle of consistency. On the available material and peculiar facts of present case we are not inclined to endorse principle of consistency in blinded-folded manner. This view find support from case Noor Muhammad v. The State (PLD 1977 SC 407) wherein it was observed that if any of the subordinate Courts has committed error in appreciation of evidence then such wrong on being satisfied should not be repeated. Following observations from above report are highly instructive and are reproduced here:- "Having considered these contentions, we have not been able to find much substance in them. In the first instance we are not impressed by the grounds of discrimination spelt out by the learned Judge in the High Court in favour of Riaz accused finding him entitled to benefit of doubt. He was admittedly a first cousin (Khalazad) of Noor Muhammad petitioner and, therefore, shared the motive for avenging the murder of the latter's father. Again the use of two types of weapons as clearly established by medical evidence left one in no manner of doubt that there were two assailants as alleged by the prosecution. It was a case of broad 'daylight occurrence and there could be hardly any question of mistaken identity nor for the matter of that of false substitution which is a very rare phenomena indeed. In the circumstances, therefore, the use of chhuris as attributed to Riaz stood established by medical evidence. His sharing of motive also lent support to the ocular testimony of the three eye-witnesses including Ahmed Din who had no enmity with the accused. Even on the view taken by the Courts below that it was a case under section 304, Part I, P.P.C. The acquittal of accused Riaz was wholly unwarranted. Since, however, there is no petition before us challenging his acquittal, that seems to-be the end of the matter in so far as his case is concerned. But his acquittal on untenable ground would hardly furnish any justification to re- examine the case of the petitioner who on the basis of the concurrent assessment of the Courts below was found guilty under section 304, Part I, P.P.C. Though tried on charge of murder, there being no State appeal against the acquittal of the petitioner from charge of murder or a revision for enhancement of sentence.
' Although the learned counsel did not place on record the statement of the witnesses, yet from the perusal of the judgment, the impression gathered by us is that Mehr Khan was accidentally hit and have been successfully tackled by the accused had gone out of the way to demolish the case of the prosecution. Having come to the conclusion that the acquittal of Riaz was unjustified, we find no substance in the contention raised by the learned counsel that as the fire-arm injuries attributed to the petitioner did not prove fatal, his case stood on a better footing or he was equally entitled to benefit of doubt. Once the community of intention to murder stands established the question of fatality of injuries would be wholly irrelevant. Where the interest of justice is at variance with consideration of consistency, the former must prevail and merely on that pretext we would not repeat the mistake committed by the High Court, as two wrongs would not make one right. In short, there is no force in this petition which is hereby dismissed."
14. Now keeping in view the principles enunciated in the cited decisions, it may be observed that the so-called rule of consistency while taking a decision on the merits of the case, is only a requirement of caution and prudence which is attracted and made applicable after scrutiny of facts and circumstances relating to each accused in a case, It may be affirmed that there is no established principle that once a co-accused is rightly or wrongly acquitted by a Court, the other automatically becomes entitled to the same treatment in appeal by pressing the plea of consistency irrespective of the state of the evidence on record against him. We may further observe that, while considering a case involving such features, the appellate or revisional Courts are required to consider whether or not the material on record connects each accused/convict with the commission of offence for which he is charged and satisfy its judicial conscious by application of mind while acquitting any co-accused after properly considering all the relevant evidence against him and whether the judgment under appeal suffers from any material misappreciation, irregularity or illegality which, instead of advancing fairness and established principles of law and justice, in fact impedes the ends of justice. In such eventualities the principle of consistency if applied, perhaps, instead of doing right may adversely affect proper administration of justice.
In the circumstances, we are of the view that it is mandatory for the appellate or revisional Courts, when confronted with such a situation to examine the distinct features of evidence against each accused and look for independent corroboration, if necessary, and not blindly follow the so-called rule of consistency. Such exercise would avoid miscarriage of justice. We consider it appropriate to make this observation so that, merly on the alter of the so-called rule of consistency, the error in blindly following the fate of a co-accused may not be committed.
In the instant case, as observed above, testimony of Mst. Barkat Bibi, coupled with other corroborative evidence and circumstances, establishes beyond reasonable doubt the guilt of the appellant by connecting him with the crime alleged against him. Therefore, we uphold the conviction recorded against the appellant by the Courts below.
15. Adverting now to the question of sentence. We have noted that the prosecution had ascribed a strong motive for commission of the offence by the accused but the same was not proved, rather P.W. 10, Mst. Barkat Bibi refuted it. We are conscious of the principle that it is not necessary to establish motive in every case but in the facts of this case, it may be observed that the prosecution having assigned a specific strong motive and then failing to establish the same, a case is made for awarding lesser punishment.
16. For the above discussions while upholding the conviction we are inclined to commute Death Sentence and convert into Imprisonment for Life, Appellant shall also be entitled to benefit of section 382-B, Cr.P.C. Appeal is partly allowed in the above terms.