' RAJA MUHAMMAD KHURSHID KHAN, J.-Muhammad Sharif appellant, Muhammad Rashid, Muhammad Asif son of Mangoo, Asif son of Natha and Lehrasab were sent to face their trial in the Court of Session Judge, Mirpur under Sessions 302, 307 and 148 read with section 149 of the P. C. For committing the murder of one Muhammad Riaz and causing injuries to Muhammad Afsar and Abdul Aziz P. Ws. The Sessions Judge vide his judgment dated 30-10-1974 acquitted the latter three persons but found appellant Mohammad Sharif and Abdul Rashid (since acquitted by the High Court) guilty of offence under section 302, P. C. And sentenced each of them to death. They were, however, acquitted of the other charges. On appeal and reference before the High Court, Muhammad Rashid was acquitted while the conviction and sentence against Muhammad Sharif appellant was confirmed. The appeal filed by the State against the order of acquittal of the three persons mentioned above was also dismissed.
' Leave to appeal was granted to consider the validity of the reasoning advanced by the High Court in support of the identification of the appellant and to examine whether the appreciation of the evidence in the case on the whole was done in accordance with the well-recognised principles of safe administration of justice.
3. The prosecution case briefly is as follows :- ' It is common ground between the parties that their relations were strained mainly due to the construction of certain shops by complainant Muhammad Nawaz, which was being resented by the accused party. On 14-10-1973, one Ch. Mangoo had invited all villagers to a `Niaz' (religious function). The deceased Riaz as well as some P. Ws. Had gone to his house for participation in the said function. After distribution of the offering (Niaz), these people were coming back to their homes. Muhammad Riaz deceased and Muhammad Afsar were some yards ahead of Muhammad Nawaz, Khan Muhammad Mansaf Dad and Azam Khan. When they reached a place known as "Chamba Darbar" at 5-30 p.m., eleven persons including all the five accused tried by the Sessions Judge, who were lying an ambush in the wheat field of Bostan accused, attacked the complainant party on the instigation of Bostan. It is alleged that Muhammad Sharif appellant, Muhammad Rashid as well as three other persons, namely, Muhammad Asif son of Mangoo, Asif son of Natha Khan and Lehrasab from the accused party were armed with rifles ; Gul Bahar, Kala, Asif son of Natha and Lehrasab were allegedly armed with axes. Farzand and Asif son of Mangoo are stateu to have been armed with revolvers. On the "lalkara" of Bostan, Muhammad Shull appellant fired a rifle shot at Muhammad Riaz which landed on the right siae of his head and right color bone.
Muhammad Rashid then fired a rifle snot which struck the deceased on his left arm. It is further alleged that after he (the deceased) fell down, Lehrasab inflicted a wound with a "Kulhari" on his left hand. When Muhammad Afsar P. W. Implored the accused not to beat Riaz, as he had already breathed his last, he was also attacked by Asif son of Natha and given beating with the blunt side of the axe. Abdul Aziz also is alleged to have been fired at on his left arm by Bostan. Thereafter, the accused withdrew under the cover of firing. As a result of this incident, Riaz lost his life on the spot while Muhammad Afsar and Abdul Aziz got injured.
4. Muhammad Nawaz P. W. 1 lodged the F. I. R. At Police Station, Dudyal at 10-30 p.m. The Police Station is at a distance of six miles from the place of occurrence. Mukhtar Hussain, Moharrir, Head- Constable P. W. No, 16 reached the spot after recording the F. I. R. On 15-4-1973, he recovered, besides some other articles, three '12 bore crime empties, from the scene of occurrence, i,e, from the field of Bostan accused vide recovery memo Exh. P. E. He also on the same day took into possession bloodstained earth vide recovery memo Exh. P. E. From the site where Muhammad Riaz deceased was gunned down. The dead body of Riaz was sent for post-mortem and Muhammad Afsar and Abdul Aziz P. Ws. Were also got medically examined. Dr. Syed Ali Asghar Shah, P. W.
Conducted the post- mortem examination on the dead body and also examined, the injured persons on 15-4-1973. Following injuries were found on the person of Riaz :
(1) Firearm wound of entry measuring 0.3" x 0.3' on the right side of clavical at its centre. Dissection shows multiple fractures on right clavical upper second of sternum, upper part of the lower lobe of the lung, making a grove at the level of fifth thoracic vertebrae at its lateral side pellet passing between the corresponding ribs. The pellet come to lie under the skin between the medical border of the shoulder blade and vertebral column, the pellet was taken out.
(2) Fire-arm wound of entry 0.3' x 0.3" on the right side of mendible near the angle of mouth, making multiple fractures of right side lower jaw and mandible with the damage of soft tissue under the tongue.
(3) Fire-arm wound of entry measuring O. 4' x 0. 4" on the front and central part of right pinna with the exit on its back measuring 0. 6' x O. 6".
(4) Incised wound of entry measuring 1" x 0. 4" making a fracture of the 1st phalange of the left thumb of hand.
(5) Incised wound 1.5" x 0.5" making a fracture of the second phalange of the left ring finger.
(6) Incised wound separating the last phalange obliquely on the left middle finger of hand.
(7) Abrasion 4" x 0.5' situated vertically on the left upper arm.
(8) Abrasion lunar shape 3' on the left forearm.
' The stomach of the deceased was found full of undigested food, rice etc. Weighing two pounds.
' In his opinion the cause of death was haemorrhage leading to shock and death resulted from the injuries mentioned above. In the opinion of the Doctor, injuries Nos, 1-3 were the result of a gunshot, 4-6 were caused by sharp edged weapon and 7-8 with blunt weapon. It was instantaneous death and probable time between death and post-mortem was 13-24 hours.
' On the person of Muhammad Afsar, the following injuries were noticed : -(1) Swelling, pain, tenderness bony creptation on the left side of chest at 10, 11, 12 ribs, swelling of the soft tissues measuring 6" x
(2) Abrasion 2 5' in diameter on right arm.
The X-ray report No, F-994 dated 20-4-1973 showed fracture of left 12, 11, 10th ribs.
According to the Doctor, all the injuries were caused by blunt weapon. Injury No, 1 was grievous. No, 2 was simple and duration was 18-24 hours.
Abdul Aziz received the following injuries :-
(1) Fire-arm wound having wound of entry 0.5" x 0.5" on left side of arm and wound of exit measuring 0.8" x 0.7", 1" away from the wound of entry.
(2) Fire-arm wound of entry measuring 0.5" x 0 5" and the wound of exit measuring 0.7" x 0.6", 1" away from the wound of entry on left elbow joint.
(3) Pain, swelling, restricted movement left elbow-joint. Weapon used was gunshot and duration was 12-16 hours.
After getting the X-ray report it was opined by the Doctor that injury No, 5 was a gunshot wound and a grievous one.
5. The investigation then on 16-4-1973 was taken over by Raja Shamim Akhtar, Sub-Inspector. The Police challaned Muhammad Sharif under section 302/307, Muhammad Rashid, Muhammad Asif son of Mangoo, and Asif son of Natha under sections 302, 148 and 149, P. C., Muhammad Rashid was also challaned under section 325 and Lehrasab under sections 302, 324, 148 and 149, P. C. Bostan, Farzand, Bashir, Gul Bahar and Kala were sent up under section 169 of the Criminal Procedure Code as evidence against them was considered to be insufficient.
' The prosecution case rests on the following :-
(1) Ocular witnesses, namely, Nawaz, Afsar, Aziz, Khan Bahadar, Mansaf Dad and Azam Khan.
(2) The recovery of three empty cartridges from the scene of occurrence.
(3) The seizure of blood-stained earth from the scene of occurrence.
(4) The recovery of the gun at the instance of Muhammad Sharif vide recovery memo. Exh. P. K. On 15-4-1973.
(5) The evidence of ballistic expert.
(6) The medical evidence.
' The accused appellant denied to have commited any offence and according to him the case is concocted on account of enmity with the accused party. The trend of the cross-examination, however, shows that according to the defence, Riaz was inadvertently and accidentally gunned down by his own party men when someone from the complainant party fired at him taking him to be Sharif accused.
5. The learned counsel firstly contended that the presence of the eyewitnesses at the time of occurrence was open to serious doubts. He submitted that all the P. Ws. Are inter se related and inimical towards the accused and their presence at the relevant time of occurrence being unnatural they cannot inspire confidence and should not be relied upon without independent corroboration which is lacking in the present case.
' Whether a witness is to be believed depends on the circumstances and facts of each case.
Assessm ent of interested and partisan evidence, is of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount importance is to see whether the witness is a natural witness and if Courts come to the conclusion that the witness is a natural witness then in the case of testimony of such a witness law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness.
Evidence of such a witness, however, is required to he scrutinised with great care and caution in order to eliminate any possibility of doubt and Courts must also A determine as to whether or not he is a witness on whose words implicit reliance can be placed without independent corroboration.
Nevertheless, no inflexible rule can be formulated in this behalf. In each case, the evidence of witnesses has to be evaluated on merits and if it rings true in the context and the circumstances of the case free from any fault and uncontradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration. In a case of this nature, where the statement of an interested but natural witness can believed with implicit faith without difficulty, corroboration is not to b insisted upon as a rule of law or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased an inimical towards the accused. The safe administration of criminal justice demands that Court should draw its own inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party.
7. In the instant case, the P. Ws. Were returning back after participating in the offering (Niaz) and their presence at the scene of occurrence at the reievant time is but natural. Besides, the manner and trend of the cross-examination to suggest that someone from the complainant party fired Riaz to death taking him to be Sharif appellant, also indirectly, tends to support the prosecution stand that at the time of occurrence all the P. Ws. Were present and in view of other circumstances detailed above, their presence cannot be doubted.
8. No independent evidence is even suggested to be available in this case. The absence of independent witnesses, therefore, in view of the circumstances of this case cannot be allowed to be made a launching pad for acquittal. The appellant's participation is attested in totality by the ocular witnesses. Of course, there are some rational discrepancies in their evidence but these discrepancies tend to give a stamp of truth in their say and show that the witnesses were not telling a pre-concerted story.
9. Admittedly the feelings between the accused and the complainant Muhammad Nawaz were not happy. But the dispute between the parties is of the nature, which is more or less a common feature of the village life and do not necessarily lead to blood-feud to pursue a person to be cast in the roll of witnesses even when he may not have seen the incident and in such circumstances the presumption of innocence may not be considered to have been misplaced unless there are corroborations of the evidence.
10. In view of circumstances discussed above, it would not be unsafe to place implicit faith on the P.
Ws. Who are in fact the witnesses of truth to be depended upon in support of conviction.
11. It, therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration but in the present case the ocular evidence gets further support from ample circumstantial evidence. Before discussing the available confirmatory evidence, it would be expedient to determine as to what corroboration means "Corroboration" of the statement of interested witnesses does not mean that the statement of the witnesses is false or untrue. What it really means is that to accept it as wholly true it is desirable that it should have a confirmatory support. In fact when it is said that the statement of witnesses needs corroboration to support it, this finding proceeds on the basis that version of P. Ws.
Is prima facie correct but by way of precaution it needs corroboration to attain clarity. What quantum and quality of the corroboration of the interested witnesses is, required is elaborately gone into in PLD 1962 SC 269. After a thorough probe it was observed therein : "But we had no intention of laying down an inflexible rule that the statement of an interested witness who has, (by which expression is meant a witness who has a motive for falsely implicating an accused person), can never be accepted without corroboration. 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 safe to rely upon his testimony in respect of every person against whom he deposes.
In older, therefore, to be satisfied that no innocent persons are being implicating along with 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 circumstance 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 two do not stand on the same footing."
12. It is, thus, manifest that corroboration is insisted upon only to satisfy the mind of the Court that the witnesses in the circumstances of the case are speaking truth. What facts and circumstances are sufficient to satisfy the mind of the Court about the truthful nature or otherwise of the testimony of an ocular interested witness, is a question which varies from case to case and no hard and fast rule can be formulated on the point.
' After stating as to what in fact corroboration means and connotes, we, now take up the confirmatory evidence available in the case in support of the P. Ws. The confirmatory evidence consists of the following :-
1. Medical Evidence :
(a) Dr. All Asghar Shah who conducted the post-mortem examination on the dead body of Muhammad Riaz found gunshot injuries exactly on the same parts of the body of the deceased, whereat, the ocular witnesses are in agreement that he was fired at by the appellant. This fact clearly testifies the version of ocular witnesses that the deceased was in fact fired at in the way they deposed.
(b) The time of occurrence i,e, 5-30 p m. Is also supported by the doctor as according to him the death occurred 18-24 hours before he conducted the post-mortem examination. The examination was conducted on 15-4-1973 at 11-30 a.m. The deceased, thus, must have been done away at 5-30 or 6-00 p.m. On 14-4-1973.
(c) The medical evidence reveals that stomach of the deceased was full of food, rice etc. Undigested and weighing two pounds. Small intestines were also found to have contained a little amount of rice but large intestine was empty. The Doctor opined that the food may have been, taken an hour or so before the incident. P. Ws.. 1, 3, 4 and 5 are being supported by the Doctor when they say that some rice was also taken by the deceased at the house of Mangoo. Rice have large quantity of sugar easily digestable than some other solid food and. That is probably the reason for the doctor to say that the food may have been taken by the deceased an hour or so before the incident.
' The medical evidence thus lends convincing corroborative support to the eye-witnesses that the deceased also took meals at the house of Mangoo an hour or so before he was shot dead.
2. The injuries on the person of Muhammad Afsar and Abdul Aziz P. Ws. Tend to enhance the credibility of the statement of the prosecution witnesses. According to the doctor, the injuries sustained by them had the duration of 18 to 22 hours prior to their examination. They were examined by the doctor on 15-4-1973 and the life of the injuries on their persons more or less coincides with the time of the occurrence stated by the P. Ws.
3 The presence of blood and its recovery from the site of occurrence also supports the version of eye-witnesses, that the deceased was done to death at the place testified by the eye-witnesses.
4. The injuries on the person of the eye-witnesses is a further affirmation and corroboration of the version of the prosecution witnesses as held in PLD 1964 SC 177. That was a murder case. In that case two eyewitnesses Khamisa and Allah Ditta were injured and that was a circumstance in view of which their presence was held to have been proved beyond any doubt and it was observed at page 183 that "It has been observed by this Court in a number of cases that the mere fact of relationship does not necessarily render a witness's account of the occurrence subject to doubt. Provided his presence is proved beyond doubt (as here by the presence of injuries on the bodies of Khamisa and Allah Ditta) and the number of persons accused is not out of proportion to the nature of their enterprise and the results they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed, as against a mere plea of false implication on the part of the accused persons."
13. In view of the confirmatory and corroborative evidence detailed above, we are satisfied that the eye-witnesses so far as the case of the appellant is concerned, are telling truth and there is nothing to cast any doubt in their say. The recovery of crime empties from the spot and of '12 bore gun from the person of the appellant relied upon as corroborative piece of evidenceE by the Division Bench of the High Court in our opinion shall have to be excluded being of suspicious character for the reason that these articles were not sealed immediately after their recovery.
14. The conviction recorded by the High Court is also condemned on the ground that the evidence against Abdul Rashid (acquitted accused) when disbelieved, it was not safe to sustain the conviction of the appellant on the same evidence. The maxim 'falsus in uno falsus in omni bus'
(false in one particular false in all) is a dangerous one especially in this part of the country `for if whole body of testimony were to be rejected because the witness wa evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to story, however true in the main. When main part of the deposition is true F it should not arbitrarily be rejected because of want of veracity on perhaps some very minor point' (Fields Law of Evidence in British India, 8th edition XL and XLI). Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposit on may not be rejected when the main portion of evidence, which rings true can be legally relied upon. We are supported in our view in PLD 1977 SC (Pak.) 413. In that case 8 persons were tried by the Additional Sessions Judge Sukkur on a charge under section 302/307 read with section 148/149, P. C. And section 13-D of the Arms Act. The Sessions Judge convicted three persons under sections 302/34 and 307/34 and acquitted all the other persons. The three convicted persons went in appeal to the High Court. The State also filed an appeal against the acquittal of the five persons.
The High Court dismissed the appeal of the State and allowed the appeal of the three convicted persons. The State went in appeal to the Supreme Court and the Supreme Court convicted Nazo and Abdul Hamid, respondents Nos, 4 and 6 in the case as according to the Supreme Court, their acquittal amounted to grave miscarriage of justice. The appeal against the 3rd accused was however refused.
15. It would thus appear that the Courts are required to dig out the truth and the evidence is to be closely sifted as regards other accused and is not to be rejected altogether. The contention of the learned counsel fo the appellant that the prosecution should not be relied upon in respect of the appellant as well especially when it is disbelieved in respect of the acquitted accused, therefore, is not available in this case.
16. Besides, we are not satisfied that the acquittal earned by Abdul Rashid in the High Court, due to the lack of confirmatory evidence, is well-founded. Abdul Rashid was given benefit of doubt for the failure of the prosecution to produce corroborative evidence of the eye-witnesses and we have already held that corroboration of the ocular evidence need not be insisted upon in this case. In a case reported in PLD 1957 SC (India) 68, a similar contention was raised which was repelled by the Supreme Court with the observation that : "There would have been a great deal of force in this judgment not as a question of principle but as a matter of prudence, if we were satisfied that the acquittal of the other four accused persons was entirely correct."
17. It has also been contended that from the statements of Hamayat Khan, father of the appellant who was tendered for cross-examination and P. W. 9, Fazal Khan, a close relative of the deceased, it becomes doubtful that the occurrence took place at 5-30 p.m. As alleged by the prosecution rather it appears that the occurrence took place at 8-30 p.m. At dark hour of the night when the identification of the accused, if not impossible, was improbable. The High Court also contra to the case of the prosecution was led to believe that the occurrence probably took place at 8-30 p.m.
' After having given our considered thought, with due deference to the High Court, we are of the view that the conclusion arrived at by the High Court is not well-founded for the reasons :
(a) Of course, Hamayat and Fazal Khan, P. Ws. During their cross-examination state that the occurrence took place after rain but it will be demanding too much out of their statement to say that th occurrence took place at 8-30 p.m. And not at 5-30 p.m. These witnesses in the same breath corrected themselves that the oceurren took place before rain. The demand of law is that the statement o a witness should be read as a whole to know as to what it conveys. The reading of their statements leaves clear impression that the occurrence took place at 5-30 p.m. In broad daylight.
(h) Besides, it is also significant that it had never been the case of defence that the incident took place. At 8-30 p.m. And not at 5-30 p.m. Had it been so the eye-witnesses must have been pointedly cross-examined on the point. The omission to cross-examine the eye-witnesses on the score tends to support the logical conclusion that the occurrence took place at 5-30 p.m. And testimony of witnesses shall have to be believed on the point. Dealing with a similar point in PLD 1963 Kar. 465, it was held that if a party declines to put his essential and material case in cross- examination, testimony of the witnesses cannot be disputed.
(0 The life of the injuries on the person of Muhammad Afsar and Abdul Aziz P. Ws, fits in with the time of occurrence. They were examined on 15th April, 1973 and according to the doctor, at the time of examination the life of the injuries was 18-24 hours.
(d) The life of the injuries on the person of the deceased being between 18-24 hours at the time of post-mortem examination, also satisfies our mind that the occurrence took place at 5-30 p.m. The post mortem examination was conducted on 15-4-1973 at 11-30 a.m. The life of the injuries was found to be between 18-24 hours at that time. By calculation of the time of death, i,e, 5-30 p.m. It exactly fits in with the prosecution version.
18. The above consideration of evidence, both direct and circumstantial, in our opinion establistes the guilt of the appellant for the murder of Muhammad Riaz beyond any reasonable doubt. The appeal, therefore, fails and is dismissed. The appellant shall he informed of the result through Jail authorities.