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Criminal Petition for Special Leave to Appeal No. 3‑R of 1976, decided on 5th March 1976.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 27th November 1974, passed in Criminal Appeal No. 435 of 1974).

‑‑ Practice and procedure‑Evaluation of evidence‑Rule of prudence requiring independent corroboration of ocular testimony‑Attracted only while dealing with testimony of interested witnesses.‑[Practice and procedure‑Witness‑Evidence].

Practice and procedure‑Evaluation of evidence‑Mere relationship. of prosecution witness with deceased‑Not per se good enough to brand witness with interestedness‑Exception to rule : When parties have a previous background of enmity and witness also inimical and hostile.‑[Practice and procedure‑Evidence‑Witness].

S. 302/149/148‑[Murder case]‑Maxim : Falsus in uno falsus in omnibus‑Indivisibility of credibility, doctrine of‑Murder committed in broad day‑light, witnessed by three eye‑witnesses, elaborate report promptly lodged at Police Station specifically naming all accused including petitioners‑Nature and number of injuries suffered by deceased in conformity with prosecution version and establishing use of weapons wielded by all assailants except one‑No previous bad blood between parties‑High Court, having regard to rather large number of accused persons mentioned by prosecution witnesses and in order to avoid any possible false implication, and by way of abundant caution, looking for corroboration of ocular testimony and such corroboration being available in case of petitioners alone main taining their conviction but acquitting others‑Acquittal of an accused for reason of recovery of gun attributed to him having been disbelieved, held, would not attract doctrine of falsus in uno falsus in omnibus‑Such doctrine, even otherwise, on more realistic view of social conditions and particularly deteriorating standards of truthful ness appropriately substituted by superior Courts, by doctrine of sepa rating grain from chaff‑Principle of indivisibility of credibility, held, not attracted in circumstances‑Conviction maintained.‑(Maxim Witness)

(d) Penal Code (XLV of 1860)‑

‑‑ Ss. 302/149/148 read with Criminal Procedure Code (V of 1898), S. 367‑Judgment, contents of‑Sessions Judge giving no reason what ever for awarding lesser penalty in case of triple murder and High Court's judgment in such regard equally silent‑Revision petition filed for enhancement of sentence summarily dismissed in just one sentence‑Departure from award of normal penalty of death on charge of murder, held, has to be justified by trial Court in first instance and on good grounds too‑High Court, if inclined to dismiss revision filed for enhancement of sentence, has also to give cogent reasons rather than making a short shrift.‑[Judgment‑Revision (Criminal)].

While on the one hand the Sessions Judge gave no reason whatever for .awarding the lesser penalty in this case of triple murder, the High Court's judgment in this regard is equally silent, on the other. The revision petition filed for enhancement of sentence was summarily dismissed in just one sentence. A departure from the award of normal penalty of death on charge of murder has to be justified by the trial Court in the first instance and on good grounds too. In case the High Court is inclined to dismiss the Revision filed by the Stale or complainant, for enhancement as the case may be, it should also give cogent reasons rather than making a short shrift of it.

Ch. Muhammad Sardar Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 5th March 1976.

‑The petitioners herein .are four out of the eleven accused in a case of triple murder allegedly committed on 16‑I1‑1971 after sunrise in the area of village Mangowal, Police Station, Kunjab, District Gujrat. All the eleven accused were convicted by the Sessions Judge for offence under section 148, P. P. C. with an award of two years' R. I. each and under section 302/149, P. P. C. with a concur rent sentence of life imprisonment each. The judgment of conviction dated 28‑5‑1974, was challenged by all the convicts including the petitioners whose convictions and sentences were alone maintained by the High Court with the additional imposition of a fine of Rs. 3,000 each to be awarded to the heirs of the deceased under section 544‑A, Cr. P. C. or two years' R. I. each in default of payment thereof, while their co‑accused were acquit ted, vide the impugned judgment dated 27‑11‑1974.

A perusal of the record shows that the Sessions Judge based the convic tion of all the eleven accused on the ocular account furnished by Inayat (P. W. 14) the first informant, Mst. Sakina (P. W. 16) and Bahadur Khan (P. W. 17) supported by the medical evidence and that of the recoveries of sotas, hatchets and a gun. Of course there was also the evidence of motive. Suba a brother of Matloob Hussain deceased was murdered earlier and a case was registered against some other persons Arshad etc. with whom the present accused had nothing to do. They were acquitted. Matloob Hussain deceased suspected that Karam llahi the principal accused in the instant case who was allegedly armed with a gun but, was. acquitted by the High Court, had a hand in the murder of his brother.. Matloob Hussain deceased wanted Karam Ilahi to offer his defence on oath in the customary manner to which the latter ironically retorted that. he would certainly satisfy him about his innocence. It was for that reason. that the accused allegedly lay in ambush on the fateful day and launch ing a concerted attack killed the three deceased who were closely related inter se.

The High Court distinguished the case of the accused who led to,. recoveries of weapons of offence from that of others against whom no incriminating evidence of recoveries was available. The recovery of a gun attributed to Karam Ilahi the principal accused was disbelieved while the evidence of recovery of a blood‑stained stick from Piran Ditta petitioner and blood‑stained hatchets from Muhammad Hussain, Gulzar and Nazir petitioners of which the blood was traced to human origin were found to, furnish corroboration of the testimony of the three eye‑witnesses. It was on account of this distinguishing feature that convictions of the four petitioners were maintained while those of the other co‑accused were set. aside.

In support of the petition, learned counsel contended : Firstly, that the testimony of the two recovery witnesses, namely, Mian Khan (P. W. 10) and Shah Muhammad (P. W. 11) suffered from the same disability which attached to the testimony of the eye‑witnesses, inasmuch as they were also closely related to the deceased. Secondly, it was submitted that Karam Ilahi the principal accused who had sustained injuries and admitted his presence was acquitted and the testimony of the eye‑witnesses having been, disbelieved in his case. the principle of indivisibility of credibility would be attracted. Lastly, it was submitted that the accused petitioners had no motive to attack the deceased which too lay on the side of the com plainant.

We are not impressed by these contentions. In fact having carefully gone through the facts and circumstances of the case, we find that it was not one of these cases in which independent corroboration of the ocular testimony was necessarily called for. This rule of prudence would be attracted only while dealing with the testimony of interested witnesses. It is well settled that a mere relationship of a witness with the deceased would not per se be good enough to brand him with interestedness unless the parties have a previous background of enmity and the witness is also inimical and hostile. In the instant case, there is nothing to suggest what‑1 ever the existence of previous bad blood between the parties so much so that even in the previous case of the murder of Suba brother of Matloob Hussain deceased none of the petitioners was mentioned as an accused person and in fact they had nothing to do with the accused in that case. It was a case of day‑light occurrence witnessed by three eyewitnesses. An, elaborate report was promptly lodged at the Police Station in which all their accused including the petitioners were specifically mentioned. They were variously armed and the medical evidence lent material support to the prosecution version, except the absence of firearm' injuries attributed Karam Ilahi one of the acquitted accused. Lai deceased had suffered 12 injuries. Matloob Hussain 18 while Ashiq 9. The nature and number of these injuries were in conformity with the prosecution version and estab lished the use of weapons wielded by the assailants except Karam Ilahi. It appears that having regard to the rather large number of accused persons mentioned by the P. Ws. and in order to avoid any possible false implication the learned Judges as a matter of abundant caution, looked for corroboration of the ocular testimony which was available only in the case of the four petitioners. Motive in a case of this nature would be hardly of much consequence. Again the acquittal of Karam Ilahi accused for the reason that the recovery of gun attributed to him was disbelieved would not attract the doctrine of falsus in uno falsus in omnibus, which even other wise, on a more realistic view of our social conditions and in particular the deteriorating standards of truthfulness, is appropriately substituted by the superior Courts by that of separating the grain from the chaff.

In view of the foregoing discussion, we are clearly of the view that no fault can be found with the conviction of the petitioners in this case. The petition is accordingly dismissed.

However, before parting with this case, we would like to observe that) while on the one hand the Sessions Judge gave no reason whatever for awarding the lesser penalty is this case of triple murder, the High Court's judgment in this regard is equally silent, on the other. The revision petition filed for enhancement of sentence was summarily dismissed in just one sentence. We may point out with respect that a departure from the award of normal penalty of death on charge of murder has to be justified by the trial Court in the first instance and on good grounds too. In case the High Court is inclined to dismiss the revision filed by the State or com plainant, for enhancement as the case may be, it should also give cogent reasons rather than making a short shrift of it.

S. A. H. Petition dismissed

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