1. MUHAMMAD NAWAZ ABBASI, J.--The appellants, namely Shera Masih and Arshad alias Papu Masih, through this appeal with the leave of the Court under Article 185 (3) of the Constitution of Islamic Republic of Pakistan have challenged the judgment passed by a learned Division Bench of the Lahore High Court in Murder Reference No,77 of 1997 and Criminal Appeal No,125 of 1997 through which the conviction and sentence awarded to the appellants by learned Additional Sessions Judge, Kasur, for the charge under section 302(a), P.P.C. 'read with sections 324/34, P.P.C. And 337-F (iii)/34, P.P.C. Vide judgment dated 26-3-1997 was maintained. The appellants were convicted and sentenced in the following manner:- SHERA MASIH
(a) Under section 302(a), P.P.C. Sentenced to death with a direction to pay an amount of Rs,20,000 as compensation to the legal heirs of the deceased and in default of the payment of amount of compensation to undergo simple imprisonment for six months.
(b) Under section 324/34, P.P.C. For the charge of an attempt on the life of Shehzad alias Moti Masih, R.I. For 10 years with a fine of Rs,5,000 and in default of payment of fine to undergo simple imprisonment for six months.
(c) Under sections 337-F(iii)/34 P.P.C., he was sentenced to 3 years' R.I. With direction to pay Rs,5,000 as Daman to be paid to Shehzad alias Moti, the injured witness, and till payment of the amount of Daman, would be kept in jail.
2. ARSHAD MASIH alias PAPPU
(a) Under section 302(b)/34, P.P.C. For the charge of causing Qatli-Amd of Mansha deceased imprisonment for life with a direction to pay Rs,20,000 as compensation to the legal heirs of the deceased and in case of default he had to undergo S.I. For six months.
(b) Under section 324/34, P.P.C. For the charge of an attempt at the life of Shehzad alias Moti R.I. For 10 years with a fine of Rs,5,000 in default thereof to undergo S.I. For six months.
(c) Under section 337-F(iii)/34, P.P.C. For the charge of causing injuries to Shehzad alias Moti, R.I. For 3 years with a fine of Rs,5,000 as Daman and till payment of Daman, he would be kept in jail. The learned trial Judge having extended the benefit of doubt to Akbar Masih, Hayat Masih and Asghar Masih, the co-accused of the appellants, acquitted them from the charges and sent Murder Reference No,77 of 1997 for confirmation of sentence of death awarded to Shera Masih. The appellants namely Shera and Arshad challenged their conviction and sentences through Criminal Appeal No,125 of 1997 whereas Barkat Masih, the complainant preferred Criminal Appeal No,192 of 1997 under section 417(2-A), Cr.P.C. Against the acquittal of Akbar Masih, Hayat Masih and Asghar Masih and a learned Division Bench of Lahore High Court vide judgment dated 19-10-2000 while maintaining conviction and sentences of the present appellants dismissed their appeal. The death sentence awarded to Shera appellant was confirmed and Murder Reference was answered accordingly. The Criminal Appeal No,192 of 1997 filed by the complainant was dismissed in limine vide judgment dated 14-1-1998. The State or complainant have not further challenged the acquittal of abovesaid three acquitted accused before this Court whereas Shera Masih and Arshad Masih alias Papu, the convicts, filed Criminal Petition No,633-L of 2000 before this Court in which leave was granted vide order dated 17-5-2001 in the following terms:-- "2. We have heard the learned counsel for the petitioners at length and with his assistance perused the file of the case. The sole point which requires determination is that on the same evidence, three co-accused of the petitioners namely, Akbar Masih, Hayat Masih and Asghar Masih were acquitted, while on the same set of evidence the present petitioners were convicted by the trial Court. He has drawn our attention to the fact that no crime empty was secured from the spot, therefore, fire- arms recovered at the instance of the petitioners could not be sent to the ballistic expert and in such circumstances recovery of fire-arms could not simpliciter furnish corroboration. It was further pointed out that the trial Court sought corroboration from the recovery of blood-stained earth from the spot which was found to be stained with human blood. We agree with the contention of the learned counsel that the report of the Forensic Science Laboratory cannot furnish corroboration to the testimony of eyewitnesses qua blood-stained earth. We feel the conviction of the petitioners requires further consideration. We, therefore grant leave to appeal for reappraisal of evidence." The facts in the background as supplied in the First Information Report and set out by the prosecution through the evidence are that on 24-3-1994 a quarrel took place between Asghar Masih, the acquitted accused and brother of Shehzad Masih alias Moti, an injured eye-witness, on a petty issue relating to the striking off the motorcycle of Asghar Masih with the body of brother of Moti Masih. The matter was patched up by the respectables but Asghar Masih being not satisfied extended threats of taking revenge. On 26-3-1994 at .About 1 p.m. The complainant and his brothers namely, Mansha Masih deceased, along with wife of, Mansha Masih namely, Mst. Shamim and Shehzad Masih alias Moti Masih, were present at the shop being run by Barkat Masih at Latifpura Road, Kasur, when Akbar Masih, Asghar Masih and Shera Masih armed with revolvers, Hayat Masih and Arshad Masih alias Papu armed-with pistol and Mst. Mumtaz Masih carrying iron pipe appeared at the shop. Akbar Masih raised Lalkara for taking revenge of the insult of Asghar Masih where upon Hayat Masih and Arshad Masih alias Pupu fired one shot each with their pistol at Shahzad Masih alias Moti which hit on his abdomen and left flank respectively. Mansha Masih deceased when tried to catch hold of Arshad Masih alias Papu, Akbar Masih fired at him which hit on his right flank and at the same time, Shera Masih fired a shot with his revolver which hit on the right shoulder of Mansha Masih whereas the shot fired by Asghar Masih hit on his right shoulder.
3. Mst. Mumtaz, on the intervention of complainant and Mst.Shamim inflicted a blow with iron pipe on the left ear of complainant. Arshad Masih alias Papu and Mst. Mumtaz gave kick blows on the abdoming region of Mst.Shamim who was pregnant. On the hue and cry of the complainant party, Rafiq Masih and others reached at the place of occurrence. Mansha Masih succumbed to the injuries at the spot whereas Shahzad Masih alias Moti was taken to the hospital at Kasur for medical aid. Muhammad Aslam S.-L/S.H.O., P.W.18, while reaching at the shop of Barkat Masih after preparing the injury statement and inquest report of deceased despatched the body to the mortuary for post-mortem examination. The Sub-Inspector during the course of spot inspection recovered bloodstained earth and the crime empties 'from the spot. The Investigating Officer also effected recoveries from the accused and on completion of investigation having come to the conclusion that Mst.Mumtaz Begum was innocent, dropped her from the case and challaned the remaining accused to face the trial. The appellants namely, Shera Masih and Arshad Masih alongwith Akbar Masih were held responsible of causing death of Mansha Masih and injuries to the witnesses. Aslam Masih accused absconded, therefore, the trial Court having completed proceedings under section 512, Cr.P.C.
4. Separated his case and framed charge under section 302/324, P.P.C. Read with 148, P.P.C. Against the appellants and the acquitted accused. Shehzad Masih alias Moti was medically examined by Dr. Altaf, Medical Officer, on 26-3-1994 and was found to have sustained the following injuries:-- "(1) Lacerated wound measuring 1-1/2 x 1/2 invert margins with blackening, depth not proved. Over epigaspric regio in midline 11 c.m. Above umbilicus.
(2) Lacerated wound 1/2 c.m. x 1/2 c.m. Inverted margins located over the left lower lateral lumber region at the distance of 12 cm behind the anterior superior iliac spine. The post-mortem examination of dead body of Mansha Masih was conducted by Dr.Zulfiqar Ahmed, Medical Officer, P.W.6 who found the following injuries on the person of deceased:-- "(1) A circular wound with inverted abraded and black margins on the back of right shoulder 5 c.m.
5. Below the top of shoulder. Size of the wound was 1/2 c.m. x 1/2 c.m (Bullet was found from muscle under this injury).
(2) A circular wound 1/2 c.m. x 1/2 c.m. Inverted abraded and black margins back of right shoulder 11 c.m. Below the injury No,1 .
(3) A circular wound 1/2 cm x 1/2 cm with inverted blck and abraded margins right side of chest 14 c.m. Below the arm-pit at the level of fifth rib. On dissection right fourth rib was fractured at its front and under the injury No,2. Bullet was found under the skin at this level. Right fifth rib was fractured under the injury No,3 on the back. Left third rib was fractured near its front end. Bullet was found in the muscles in the armpit." Lady Doctor Asia, P.W.10 and Dr. Zia, Medical Officer, P.W.11 medically examined Mst.Shamim and Barkat Masih respectively and the injuries on their person were found simple in nature. The ocular account in the present case was furnished by Shahzad Masih, P.W.12 aijd Barkat Masih P.W.13 and the prosecution tendered in evidence the reports of Chemical Examiner, Serologist and Forensic Science Laboratory. The appellants namely Shera Masih and Arshad Masih made the following statement under section 342, Cr.P.C.: "The P.Ws, are related inter se. The actual fact is that my mother Jewan, Rano, my aunt etc., passed in front of the shop of Ashiq belonging to complainant party after having purchased the articles in connection with the marriage of Arshad when Moti and Mansha cut jokes and also gave slaps to them when they alighted from a tonga. I and Arshad rushed to the spot to save our womenfolk Moti brought out a pistol and tried to fire at Arshad. Arshad grappled with Moti in order to snatch the pistol and during this grappling the pistol went off and hit Moti and Arshad took hold of the pistol.
6. Again Moti snatched the pistol from Arshad. Then Arshad fired which hit Moti and he fell down. On seeing this, Mansha who was armed with a pistol fired at me which did not hit me. In order to save my life, Arshad fired at Mansha from a close range while he was facing me and his back was towards Arshad. Rest of the accused were not present at the spot and have been involved in this case due to relationship." The acquitted accused denied their presence and participation in the occurrence. The learned Judges in the High Court having undertaken the exercise of detailed scrutiny of the evidence upheld the conviction and sentences awarded to the appellants and dismissed their appeal. Learned counsel for the appellants has contended that the eye-witnesses, who have claimed to have sustained injuries during the occurrence, were disbelieved by the trial Court qua the acquitted accused, therefore, no implicit reliance could be placed on their testimony to hold the appellants guilty of the charge for want of independent corroboration. The next contention was that the principle of safe administration of criminal justice would seriously be prejudiced and offended by distinguishing the case of appellants from acquitted accused on the basis of principle of sifting the grain from the chaff. It has been argued by the learned counsel that since no corroborative evidence was available to identify the role of individual accused, therefore, they would stand at par to each other and could not be treated differently and added that the case of appellants being not distinguishable to that of the acquitted accused, they in the light of the principle falsus in uno falsus in omnibus, would also be entitled to the same benefit. The third contention of the learned counsel was that version of case given by Arshad Masih in his statement under section 342, Cr.P.C. Regarding the exercise of right of private defence to save the life of Shera appellant at the hands of complainant party was supported by the prosecution evidence and learned counsel while concluding his arguments has submitted that the circumstances under which the occurrence took place, would sufficiently show that the complainant party was aggressor and the deceased and injured witnesses sustained injuries as a result of resistance put by the accused to the aggression committed upon them, therefore, their conviction and sentences would be bad in law. The learned counsel lastly submitted that the medical evidence is not the proper 'Source to identify the role of an accused, and therefore, it is not safe to distinguish the case of appellant on the basis of medical evidence and further the statement of the appellant under section 342, Cr.P.C. Can either be accepted or rejected in toto and the same cannot be bifurcated into parts to be used against the accused and consequently the admission of appellants relating to their participation in the occurrence would not be beneficial to the, prosecution. In the net result, the argument of learned counsel was that in the given circa stances, the appellants would stand at par to that of acquitted accused and their conviction and sentence is not sustainable. Learned counsel appearing on behalf of the State has contended that it was bright daylight occurrence in which one member of the complainant party lost his life and three sustained injuries and that the defence version being not supported by any evidence was rightly excluded from the consideration by the learned trial Judge and also by the High Court as the prosecution was successful in proving the guilt of the appellants beyond reasonable doubt. The prosecution mainly relied upon the ocular evidence of injured witnesses duly supported by the medical evidence and the admission of accused. The distinguishable feature of the case of appellants o that of the acquitted accused is that the appellants while taking the plea o self- defence have admitted their presence and participation in the occurrence whereas the acquitted accused have denied their presence at the spot and were also found innocent by the police during the investigation. Thus in the given situation, the guilt or innocence of the appellants would depend upon the determination of question as to whether the defence version was true or the version of the occurrence given by the prosecution was correct. Keeping in view the distinguishable feature of the case of appellants, their culpability would definitely be judged in the light of principle of sifting the grains from the chaff and following the rule of independent corroboration. W may observe that in such cases, the rule of false in one false in all (falsus in uno falsus in omnibus) cannot be strictly followed as a universal rule rather to find out truth and the extent of responsibility of an accused, the credibility of the eyewitnesses. Is tested through independent corroboration. The evidence of a witness cannot be brushed aside ,and ruled out of consideration against all accused for mere reason that one or more accused in the case ere found not guilty and were acquitted rather the Court in such a situation while following the rule of sifting the grain from chaff would fix the responsibility of an accused. This is settled principle that in a case in which the witnesses are found false against one accused, the evidence of such witnesses being of doubtful character would not be acceptable qua the remaining accused without the independent corroboration and thus if the evidence of a witness is discarded to the extent of one accused, the same should not be automatically excluded from consideration qua other accused as the same can still be used against the remaining accused if it is found supported by any other evidence of independent character. We are, therefore, of the opinion that principle of falsus in uno falsus in omnibus cannot be accepted as mandatory rule and given preference over the principle of sifting the grain from the chaff, as by doing so the true spirit of criminal administration of justice shall be defeated. This view is also supported by the following judgments of this Court:-- State v. Mushtaq Ahmed (PLD 1973 SC 418), Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Sardar Khan v. State (1998 SCM R 1823), Nazeer Ahmad v. State (1998 SCM R 1768), Piyaro v. State (1998 SCM R 1749), Ahmad Khan v. Nazir Ahamd (1991 SCMR 803), Tawaib Khan v. State PLD 1970 SC 13, Samano v. State 1973 SCM R 162, Abdus Samad v. State (1973 SCM R 215), and Muhammad Nawaz v. State (1969 SCM R 132).
7. We, therefore, hold that in a case in which it is found that veracity of the eye-witnesses and direct evidence alone is not enough to satisfy the mind of Court and corroboration from independent source is felt necessary, the ocular evidence should be read together with corroboratory and confirmatory evidence to determine the guilt of a person. However, the corroboration may be sought from direct or circumstantial evidence and it need not amount to confirm the whole story narrated by the witness rather it would be sufficient only in material points under consideration and further the degree of corroboration rests on substantial discretion of the Courts which vary in the facts and circumstances of each case. The corroboration is insisted upon when the evidence is not of such a degree which should be made basis of conviction such as in case of enmity between the parties or the witnesses are interested, related or inimical and or not independent or in a situation in which it is felt that without corroboration conviction only on the basis of ocular account is not safe. The corroboration can even be sought from the suggestion put by defence to the witnesses in cross-examination and admission of accused which may satisfy the mind of the Court regarding truthfulness of the witnesses as the rule of corroboration being rule of abundant caution is followed only to satisfy the mind of the Court regarding the guilt of an accused and it is not an inflexible rule to be followed necessarily in each case in all circumstances. There is ample case-law on the point that the rule of independent corroboration need not to be insisted in the cases in which no exaggeration in the statements of witnesses is found and their veracity is not suffering from any apparent defect but in a case in which it is felt necessary it should not be insisted in each and every detail rather due importance should be given to the conclusion drawn by the trial Court as it had the opportunity of watching the demeanours of witnesses to form first hand impression to the truthfulness or otherwise of their evidence. There is no cavil to the proposition advanced by the learned counsel for the appellant that an accused is not required to establish special plea taken in defence beyond reasonable doubt rather it is the duty of the Court to examine as to whether such plea was reasonably possible acceptable and the benefit of the doubt if any, arising in the light of said plea would necessarily go to the deceased. The defence plea of the accused even if is not supported by any evidence direct or circumstantial and being improbable is discarded, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing on its own legs and there can be no exception to the above settled principle of law but this rule would not debar the Court to use the admission of an accused regarding his participation in the occurrence as a confirmatory circumstance. The admission of occurrence by the accused with a different version is not confession of guilt and the Court, without splitting up it, can reject or accept the same in toto but if the admission in part or full is of the nature which provides support to prosecution case, the same can be used for the purposes of corroboration. In the present case, the acquitted accused denied their presence in the occurrence while the appellants had admitted their participation taking the plea of self-defence but this special plea taken by the accused being not supported by any evidence direct or circumstantial was found improbable. The accused except taking the defence plea in their statement under section 342, Cr.P.C. Have neither produced any evidence in support of their version nor they bothered to make their own statement o oath under section 340(2), Cr.P.C. To substantiate their plea. The mere putting a version which was neither reasonably possible nor was spelling out from the evidence on record, would not be enough to dislodge the direct evidence of injured eye-witnesses specially when there was no enmity between the parties in the background. The defence version being of no s distance and foundation, would not be given any importance but the admission made by the appellants in the defence version of their participation in e occurrence in which the deceased and witnesses sustained injuries wouId provide a strong source of corroboration to the prosecution case. The next question relates to nature of corroboration of medical evidence. Undoubtedly, the medical evidence is not independently sufficient source of corroboration to fix the culpability of an (accused) but in a case of direct ev dence, it can always be helpful to identify the role of an accused assigned o him by the eye-witnesses. Thus the medical evidence in the present case to that extent would also provide corroboration to the ocular account to deternine the guilt of the appellants. The next piece of evidence in the present case was the motive set up by the prosecution which was attributed to Asghar Masih who according to the prosecution story, had picked up a quarrel 11h brother of first informant over a petty matter two days prior to the o urrence.
8. The place of occurrence is the shop of Barkat Masih which is situated near the residential houses of the parties and the accused party having noted the presence of complainant party at the shop suddenly came the while armed with lethal weapons and opened firing at the complainant part .
9. We have not been able to find out from the evidence any other motive of the occurrence or enmity of the accused with the complainant party and thus the irresistible conclusion would be that accused due to the quarrel in question having nursed grudge against the complainant party, attacked upon them. The perusal of the F.I.R. As well as the statements of complainant, Shahzad alias Moti Masih and Mst. Shamim Bibi widow of Mansha Masih, would show that Hayat Masih and Akbar Masih, the acquitted accused and Shera Masih the present appellant, were specifically attributed the role of causing fire-arm injuries to Mansha deceased and as per medical evidence, deceased sustained three fire-arm injuries in the occurrence out of which two injuries i,e, injuries Nos.2 and 3 on his person were found by the doctor sufficient to cause death in the ordinary course of nature which were attributed to Shera Masih and Asghar Masih. The trial Court keeping in view the admission of Shera and Arshad appellants held them guilty of committing the murder of Mansha Masih and High Court while maintaining their conviction and sentences dismissed their appeal. From the scrutiny of evidence, we are convinced that no exception can be taken to the findings of guilt of the appellants arrived at the trial Court and upheld by the High Court but we find similarity in the case of Shera Masih and Arshad Masih in the matter of sentence which escaped the notice of the trial Court and also of the High Court. The injury attributed to Shera Masih was not individually found fatal to the life of deceased by the doctor who conducted post-mortem upon the dead body. The prosecution case is that all the three accused namely Akbar and Asghar Masih (acquitted accused) and Shera Masih appellant caused injuries to the deceased and according to the medical evidence death was the cause of collective result of injuries Nos.2 and 3 but Asghar Masih was acquitted and his acquittal was not challenged either by the State or the complainant. Shera Masih in the light of the role assigned to him in the occurrence would stand at par to Asghar Masih and thus would not be alone responsible for causing death of Mansha Masih, therefore, the imposition of extreme penalty of death upon him in the given circumstances would not be proper and justified. We having examined the evidence in detail, have found that no exception can be taken to the conclusion of the guilt of appellants drawn by the learned Judges in the High Court except that Shera appellant would also be entitled to lesser penalty.
10. For the foregoing reasons, we hold that conviction awarded to the appellants under sections 302(a)(b)/34, 324/34 and 337-F (iii)/34, P.P.C. Was not interferable and we while maintaining the same reduce the sentence of the Shera Masih, appellant No,1, from death to life imprisonment with further direction that he will also be entitled to the benefit of section 382-B, Cr.P.C. The remaining sentences of both the appellants, which were upheld by the High Court, are maintained with no alteration. The appeal, with the above modification in the sentence of Shera Masih, is dismissed.