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(On appeal from the Judgment and Orders, dated 7th October, 1978 of the Lahore High Court in Cr, A. No. 791 of 1976 and Cr. Revision No. 66 of 19:7).

(a) Constitution of Pakistan (1973)-

-- Art. 185 (3)-Penal Code (XLV of 1860), Ss. 302 & 326 Sentence Leave to appeal was granted to re-examine case with a view to see whether :firstly a reasonable possibility could not be excluded that one person could have caused injuries and not more than one person ; and secondly, in case all three brothers involved in occurrence and had also come armed with spears, this act on the part of all of them could be treated as without premeditation and if not whether it was a fit case for lesser sentence.-[Sentence].

(b) Penal Code (XLV of 1860)

-- Ss. 302 & 326-Criminal Procedure Code (V of 1898), S. 417-Constitution of Pakistan (1973), Art. 185-Appeal against acquittal Setting aside of acquittal by Supreme Court-Important and consistently followed principles in setting aside acquittal by Supreme Court stated.

In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions : One initial, that, till found guilty, the accused is innocent ; and two that again after the trial a court below confirmed the assumption of innocence. The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below : (a) disregarded material evidence ; (b) misread such evidence ; (c) received such evidence illegally.

In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the view expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason.

The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion ; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

Ali Sher v. The State and 3 others P L D 1980 S C 317 ; State through Advocate- Lieneral, N.-W. F. P. Peshawar v. Amir Nazar and others P L D 1981 S C 286 ; Mst. Habibun Nisa alias Bivi v. Zafar Jqbal and others 1981 S C M R 95 ; Nazir Ahmad v. Muhammad Din etc. 1981 S C M R 415 ; Capt. Mahmood Jan v. Madad Khan and another 1981 S C M R 474 ; Ahmad v. Crown P L D 1951 F C 107 ; Fateh Muhammad v. Bagoo P L D 1900 S C 286 ; Abdul Majld v. Superintendent and Remembrancer of Legel Affairs, Government of East Pakistan P L D 1964 S C 422 ; Feroze Khan v. Capt. Ghulam Nabi P L D 1966 S C 424 ; Usman Khan v. The State P L D 1969 S C 293 ; Noora and another v. The State P L D 1973 S C 469 ; Abdul Rashid v. Umid Ali etc. P L D 1975 S C 227 ; Taj Muhammad v. Muhammad Yousaf etc. P L D 1976 S C 234 ; Farid v. Aslarn P L D 1977 S C 4 and Fazalur Rehman v. Abdul Ghnai P L D 1977 S C 529 ref.

(c) Penal Code (XLV of 1860)

-- Ss. 301 & 326-Appreciation of evidence-Principle of indivisibility of credibility - Maxim : Falsus in uno falsus in' omnibus- Application of principle-Witness found false with regard to implication of one accused about whose participation he had deposed on oath-Credibility of such witness regarding involvement of other accused in same occurrence when shaken-Where it was found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to other accused in same transaction but if testimony of such witness was corroborated by very strong and independent circumstances regarding each one of other accused, reliance might then be placed on such witness for convicting other accused when principle of indivisibility of credibility as laid down in Muhammad faiz Bakhsh v. The Queen is to be ignored-[MaximEvidence].

Ghulam Muhammad v. Crown P L D 1951 Lab. 66 ; Tawalb Khan and another v. The State P L D 1970 S C 13 ; The State v. Mushtaq Ahmad P L D 1973 S C 418 : Muhammad Shufi and 4 others v. The State 1974 S C M R 289 ; Bakka v. The State 1977 S C M R 150 ; Khairu and another v. The State 1981 S C M R 1136 ; Ahmad etc. v. The State 1982 S C M R 1049 ; Aminullah v. The State P L D 1982 S C 429 and Muhammad Nawaz v. The State 1584 S C M R 190 ref.

Muhammad Faiz Balfsh v. The Queen P L D 1959 P C 24 mentioned.

(d) Penal Code (XLV of 1860)

-- Ss. 302 & 326-Appreciation of evidence-Where a witness is interested and also inimical and is thus likely to falsely implicate one or other accused, it was essential to seek independent corroboration regarding each one of other accused.-[Witness].

(e) Penal Code (XLV of 1860)

--- Ss. 302 & 326-Criminal Procedure Code (V of 1898), S. 417 Appeal against acquittal-Appreciation of evidence-Interested and inimical witness found false with regard to implication of one accused about whose participation he had deposed on oath-No strong corroboration forthcoming against other accused-Finding of fact that "by chance something triggered of incident, whose particulars are shrouded in mystry also on record"-Acquittal of such accused, therefore, was maintainable on sound principles-Strong corroboration against one accused through recovery of weapon of offence and admission of such accused available-Conviction of such accused maintained in circumstances.

(f ) Penal Code (XLV of 1860)

Ss. 302 & 326 -Plea of self-defence-Appreciation of evidence-No material available to support statement of accused that any of victim was armed-Act of accused, even if not premeditated, coming within mischief of S. 302-Independent and strong corroboration against accused in recovery of crime weapon and his admission present Appeal of accused against his conviction was, therefore, liable to be dismissed.

(g) Penal Code (XLV of 1860)

Ss. 302 & 326-Sentence, enhancement of-Appreciation of evidence-Attack on deceased proved to be not premeditated-Question of motive and commencement of occurrence dependent upon highly inimical evidence-High Court while examining record and on appreciation of evidence holding that there was something more about cause of occurrence-Finding of fact that "by chance something triggered of incident, whose particulars are shrouded in mystery " present on record-Alleged motive also failing-Two Courts having found material to award lesser of two legal sentences-Approach of Courts below being not so fanciful as to compel to interfere on question of sentence-Supreme Court declined interference under circumstances.-[Sentence].

D. M. Awan, Advocate Supreme Court and Wajid Hussain, Advocate-onRecord (Absent) for Appellants.

Sh. Zamir Hussain, Advocate Supreme Court and Imtlaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 1 to 3.

Rao M. Yousuf, Advocate-on-Record on behalf of Sh. Ijaz Ali, Advocateon-Record (absent) for the State.

Dates of hearing : 5th and 6th March, 1984.

JUDGEMENT

MUHAMMAD AFZAL ZULLAH, ACTG. C. J.-These appeals through special leave of this Court are directed against judgment, dated 7th of October, 1978 of the Lahore High Court; whereby a criminal appeal in a case of double murder was partly allowed resulting in the acquittal of Khan Beg and Maqbool Ela:ti respondents (in Cr. A. No. 274/190) and affirmation of conviction and sentence of life imprisonment and 7 years' R. 1. as also fine for offences under sections 302 and 326, P. P. C. against Mumaraz Khan (appellant in Cr. J. A. No. 275/1930) and further also dismissing Criminal Revision filed by Ghulam Sikandar (appalant in Cr. A. No. 274/1980) for enhancement of sentence/reversal of acquittal.

The two deceased in this case are Ghulam Yasin and Fateh Khan. Ghulam Sikandar (appellant in Cr. A. No. 274/ 1980) is neither a witness nor the complainant though he was originally mentioned as a witness but was given up. None from the side of Ghulam Yasin (deceased) moved this Court either against acquittal or for enhancement of sentence. Mst. Alam Khat.on the widow of Ghulam Yasin who herself was injured in the occurrence lodged the F. I. K. on the date of occurrence i.e. 27-9-1974 at 9-30 p.m. at the Police Station which is at 10 miles, regarding the occurrence which had taken place at diggarwella. She appeared as a witness at the trial which was faced by four accused persons namely, Mumaraz convict (appellant in Cr. A. No. 275/1980) his two brothers Khan Beg and Maqbool Elahi acquitted (Cr. A. No. 274/1980) and his father Noor Elahi, who was also acquitted by the trial Court. But leave to appeal against this acquittal was not granted against this accused on account of concession made from the complainant side at the time of the hearing of the leave to appeal petition. Mst. Alain Khatoon was examined at the trial as an injured eyewitness. Her deposition furnishes complete picture of the prosecution case regarding motive as also the attack. It is mutatis mutandis reproduced below

"Deceased Ghulam Yasin was my husband. P. W. Mst. Resham Khatun is my daughter. Deceased Fateh Khan was our collateral and also collateral of accused Nur INN. Accused Nur Ilani is the (step) brother of deceased Ghularn Yasin and father of the remaining 3 accused.

Mst. Resham Khatun P. W. is the wife of accused Mamaraz Khan. He thrashed and turned her out about 2 months before the occurrence. A day prior to the incident, he went to take her back. At that time, deceased Ghulam Yasin, P. W. Din Muhammad, my said daughter and I were in the house. The husband of my daughter asked that she should be sent with him. But my husband refused. Accused Mamaraz Khan said that he would forcibly take away his wife and went away.

"About 1 years back, at diggarwella, my husband and I were going towards our fields to bring fodder. When we reached the land of Ahmad Khan, all the accused emerged from depression land and attacked us. Accused Nur llahi was armed with a stick and Mamaraz Khan, Maqbul Ilahi and Khan Beg with spears. Accused Maqbul llahi and Khan Beg caught my husband and accused Mamaraz Khan speared him in the left side of chest. Then accused Khan Beg injured his left arm with spear, and accused Maqbul Ilahi also speared his left arm. 6hulam Yasin fell down. I raised an alarm and also *tried to save my husband. Accused Nur Ilahi delivered stick blows on my right arm, right ear, left band and back. On hearing my alarm, deceased Fateh Khan reached the spot, and asked 'the accused to desist from attack. At this, accused Khan Beg gave a spear blow in his belly. The spear blow given by accused Maqbul llabi injured his left flank. Accused Mamaraz Khan gave a spear blow on his left shoulder. Accused Mamaraz Khan then caused a spear injury on the right side of his back. Fateh Khan fell down. P. Ws. Ghulam Sikandar and Ahmad Khan also arrived and saw the occurrence. The accused went towards their Dhok. Ghulam Yasin and Fateh Khan died after a short time. I went to P. S. Talagang and lodged the F. I. R. Exh. P. C., which was read out to me and 1 bethumbed it in token of correctness. I was medically examined."

The prosecution examined besides Alam Khatun another eye-witness namely Ahmad Khan P. W. a nephew of Fateh Khan deceased whose testimony was subjected to some doubt by the High Court and was not relied upon. When discarding the testimony of this witness it was observed by the High Court as follows :

"Ahmad Khan (P. W. 11) at the trial stated that he was grazing cattle in his land, but before the police he had stated that he was grazing cattle near his Dhok at the time of incident. He did not show his land to the police or the Patwari. According to Ejaz Hussain Patwari (P. W. 7), point No. 4, from where Ahmad Khan (P. W. 11) witnessed the occurrence, was the property of Hakam Khan etc. This is 146 Karams from his Dhok Ham. The land of Ahmad Khan (P. W. 11) is not shown in the site plan. In cross-examination, Ahmad Khan (P. W. 11) stated that he was at a distance of 300 paces from his Dhok which was about 700 paces from the DhoK of Fateh Khan deceased and that the spot was not visible from these two Dhoks (Dhok Fateh Khan and Dhok Ham). If he was at the relevant time 301 paces from his Dhok which was about 700 paces from the Dhok of Fateh Khan deceased, he should be 350 Karams from the Dhok of Fateh Khan deceased and 121 Karams from the place of occurrence. His admission that the spot was not visible from the two Dhoks negatives even the story put up by the prosecution that Fateh Khan deceased ran to the spot from his Dhok on hearing the alarm. He also admitted that he neither raised alaram, nor attempted to rescue the victims (though Fateh Khan deceased was his uncle) nor informed anybody about the occurrence. All these contradictions and peculiarities in his statement make his presence at the spot very much doubtful. Being related to Fateh Khan deceased, it appears be has been set up as a witness. I, therefore, reject his presence at the spot as an eye. witness."

The statement of Mst. Alam Khatun so far as it contained the broad features of the case was accepted by the High Court only against Mamaraz who had also produced a spear at the time of his arrest on 28-9-1974. While all other accused namely, Nur Ilahi, Maqbool Elahi and Khan Beg had denied their participation in the occurrence. Mamaraz had put forward a counter-version of self-defence in the case with a different background. It reads as follows

"People suspected illicit relations between P. W. Mst. Alam Khatun and Fateh Khan deceased. She and her family shifted to Fateh Khan's Dhok a year before the occurrence and the scandal got more publicity. I told my wife to persuade the mother to return to her Dhok. My mother-in-law took offence for it and also prevailed upon my wife, who went over to her mother two months prior to the incident. People also started talking that there was a plan to get divorce of my wife in order to marry her to P. W. Ghulam Sikandar son of deceased Fateh Khan. I sent a message to my in-law to return my wife to my house or shift her to village Dhok Ham from Ghulam Sikandar's Dhok. But they, began to demand divorce from me. I refused, at which Ghulam Yasin and Fateh Khan threatened me with dire consequences. I got scared and began to keep a spear with me for protection. In the morning of the day of occurrence, I was told by accused Khan Beg's wife Mst. Ghulam Fatima that the deceased persons were after my life. She is the daughter of Fateh Khan's sister. At the time of occurrence, I was coming back from the field of my maternal uncle Malik Khan. Ghulam Yasin and Fateh Khan attacked me with hate ets. I started fleeing. They chased me. They were not wearing turbans and shoes. On reaching the field of Ahmad Khan, I realised that I could not escape. 1 stopped and had a fight with them. In confusion, terror and excitement, I caused them injuries with the spear. P. W. Mst. Alam Khatun arrived and intervened and I injured her too with the handle and blade of the spear in rage and provocation. I used to keep the blade in my Dab'. While running, 1 fixed it in the handle. I had no intention to kill anybody. P. Ws. Ahmad Khan and Ghulam Sikandar and my brothers and father were not present at that time. On demand by the police, I produced that spear through my relatives."

The learned trial Court in a careful scrutiny of the deposition of Mst. Alam Khatun viz-a-viz medical evidence found that there was no way of reconciling her version that Nur llahi accused caused all the injuries found on her person with a stick. On the contrary she was contradicted by the presence of an incised wound on her right ear 1" x 1/2" x cartilage cut. 'When acquitting Nur Ilahi who was 71 years of age learned Judge found that "he had been entangled on account of being head of the family"-he is the father of the three co-accused. The argument of the defence that Mamaraz only as asserted in his statement under section 342, Cr. P. C. had participated in the occurrence and that Maqbool llahi and Khan Beg his younger brothers were also falsely implicated, like their father, was repelled by making reference to the number of injuries found on the two deceased persons, as likely to have been caused by more than one person. Mamaraz appellants' plea was taken into account and all the three brothers were accordingly convicted under sections 302/34 and 326/34, P. P. C. but with a finding that there was no pre-meditation or pre-planning. Accordingly lesser sentence of life imprisonment was awarded under section 302, P. P. C. for the first offence and 7 years' R. 1. for the second offence with fine of Rs. 3,000 and 1,000 respectively. The entire fine was ordered to be paid as compensation to the heirs of the deceased.

As has already been noticed in the statement of Mst. Alam Khatun, Ghulam Yasin (deceased) was a step brother of Nur llahi acquitted accused while Fateh Khan it is admitted is a distant collateral of both of them. None belonging to the family of Ghulam Yasin whicn admittedly included "sr. Alam Khatun and Mst. Resham Khatun P. W's his widow and daughter respectively, challenged the decision of the trial Court. But Ghulam Sikanadar a given up P. W. son of Fateh Khan filed a revision petition against acquittal of Noor llahi as also for enhancement of sentence awarded to the other accused. When questioned in this behalf during the hearing of this appeal the learned counsel for Ghulam Sikandar was unable to give any explanation for the heirs of Ghulam Yasin having not come f _)rward ; neither in the High Court nor in this Court. His questioning his own client also did not furnish any tangible reason except for a surmise that they might have avoided incurring expenditure in this behalf. But that would not explain why Ghulam Sikandar when incurring the same expense could not keep with him Mst. Alam Khatun, at least formally as a petitioner in the revision petition filed in the High Court or in the petition for leave to appeal filed in this Court. A strong reasonable possibility cannot be excluded that the heirs of Ghulam Yasin might not be interested in pursuing the case in this Court against the acquitted accused. And that may also be due to the reason that there is closer relationship between Ghulam Yasin and Nur Ilahi as compared to their remote relationship with Fateh Khan. The afore-noted aspect might not be relevant at the trial stage but when considering the question of enhancement of sentence or setting aside an acquittal, this circumstance might not be entirely irrelevant.

The High Court after examining the number and nature of injuries found on the two deceased came to the conclusion that they could as well De caused by one person namely Mamaraz, who had admitted his participation in the occurrence. The opinion of the trial Court was accepted in the High Court that the occurrence was not pre-planned. Khan Beg who is the husband of niece (BHANGEE) of Fateh Khan deceased and Maqbool Elabi accused respondents were not found to have "anything to do with the alleged motive". Absence of any recoveries from these two accused also was noticed and it was finally held that they would not have joined with their brother for making murderous assault on the two deceased and a lady. Regarding Mamaraz it was held that he had a grievance against Ghulam Yasin who had refused to return his daughter to the appellant and also against Fateh Khan deceased "he suspected him of carrying on with his mother-iii-law and inducing her to leave Dhok Ham, where she had transferred her residence with her daughter to continue her own liaison with him". The occurrence was considered to have taken place suddenly when Mamaraz "came across Ghulam Yasin deceased and his wife by chance and something triggered of the incident, whose particulars are shrouded in mystery, his grievance against Ghulam Yasin deceased for not sending back his wife, provoked him beyond control to make a murderous assault. The position was not better when Fateh Khan deceased turned upto rescue Ghulam Yasin deceased and Mst. Alam Khatoon, (P. W. 10) for his fury was further whetted by the suspicion he nursed against him'". And for these reasons the sentence awarded to Mamaraz appellant (while acquitting Madbool Ilahi and Khan Beg in appeal) was not enhanced.

Leave to appeal was granted to re-examine the case with a view to seei whether :firstly a reasonable possibility could not be excluded that one person could leave caused the injuries and not more than one person ; and, ' secondly, in case all the three brothers were involved in the occurrence and also come armed with spears, this act -on the part of all of them could e treated as without pre-meditation. If not whether it was a fit case for lesser sentence.

We with the help of the learned counsel have gone through the evidence and had also come armed with spears, this act -on the part of all of them could be treated as without pre-meditation. If not whether it was a fit case for lesser sentence.

We with the help of the learned counsel have gone through the evidence and have also heard lengthy arguments addressed by both the learned counsel for the parties as also the learned counsel appearing for the State.

Several cases were cited by the learned counsel for the parties with regard to the principle to be followed by this Court regarding appreciation of evidence in an appeal against acquittal. Learned counsel for the complainant appellant cited Ali Sher v. The State and 3 others (P L D 1980 S C 317), State through Advocate-General N.-WF.P. Peshawar v. Amir Nazar and others (P L D 1981 SC 286), Mst. Nabiburt Visa alias Bivi v. Zafar 1ghal and others (1981 SCMR95), Nazir Ahmad v. Muhammad Din and others (1981 S C M R 415) and Capt. Mahmood Jan v. Madad Khan and another (1981 S C M R 474).

Learned counsel for the acquitted accused cited Ahmad v. Crown (P L D 1951 F C 107) Fateh Muhammad v. Bagoo (P L D 1960 S C 286) Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan (P L D 1964 S C 422) Feroz Khan v. Capt. Ghulam Nabi (P L D 1966 S C 424) Usman Khan v. The State (P L D 1969 S C 293) Noora and another v. The State (P L D 1973 S C 469) Abdul Rashid v. Umid Ali and another (P L D 1975 S C 227) Taj Muhammad v. Muhammad Yousaf and another (P L D 1976 S C 234) Farid v. Aslam (P L D 1977 S C 4) and Fazalur Rehman v. Abdul Ghani (P L D 1977 S C 529).

It is not. necessary to state and comment upon the facts and circumstances of each of the afore-noted cases nor it is necessary to make an attempt to deduce any one single rule from these judgments which would help'resolve the controversy involved in this case, without proper analysis of the material on record.

However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistantly followed principles can be clearly visualised from the cited and other cases law on the question of setting aside an acquittal by this Court. They are as follows :

(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the ie-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions : One initial, that, till found guilty, the accused is innocent ; and Two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below : (a) disregarded material evidence ; (b) misread such evidence ; (c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however. the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion ; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

In this case the appraisement of the evidence by the learned Courts below can be divided into three parts for purpose of treatment under the foregoing principles, by this Court They are :

One. Acquittal of Nur Elahi accused by the trial Court.

Two. Acquittal of Khan Beg and Maqbul Elabi accused respondents by the High Court ;

Three. Conviction of Mamaraz Khan accused by the trial Court with lesser sentence and its affirmation by the High Court.

Nur Elahi was acquitted by the learned trial Judge on proper analysis of the evidence particularly the star witness, Mst. Alam Khatun who claimed to have been injured by him. Not even an attempt has been made by the learned counsel for Ghulam Sikandar to show that Nur Elahi's acquittal was on account of non-consideration of misreading of any piece of evidence. This accused at the relevant time was very old and being the father of the three accused was falsely involved in order to widen the noss around enemies-it will, in due course, be explained that the relationship between the two sides was enmical. The learned Judge who saw and heard the witness and described the age of Nur llahi as 71 years was constrained to hold "that he had been entangled on account of being head on the family". The finding of acquittal in favour of Nur Ilabi was further affirmed in the elaborate judgment of the High Court when the ocular evidence was brought under searching criticism. The State had chosen not to file an appeal against acquittal of Nur Ilahi and the private revision filed by Ghulam Sikandar, the present appellant was dismissed by the High Court. It needs to be emphasised here again that neither the State nor the family of Ghulam Yasin (deceased) challenged the judgments of the learned Courts below. Learned counsel for Ghulam Sikandar remained unable at all to explain the silence of the heirs of Ghulam Yasin. This is not all. At the stage of grant of leave to appeal he bad also given up the challenge against Nur Ilahi. And consequently the petition for leave to appeal against him, was dismissed. During the hearing of this appeal although the learned counsel did not seek re-appraisal of evidence regarding acquittal of Nur Ilahi it was surmised that in order to convict the two accused acquitted by the High Court it might he possible to comment against the acquittal of Nur Ilahi. This is an extraordinary proposition for an appeal against acquittal. it is surprisingly so artificial in the circumstances of the case that no further comment would be necessary. Above all this Court is not to hold trial of Nur llabi, nor can it come in the shoes of the prosecutor so as to embark upon such an extraordinary course and start with the presumption that the two respondents are guilty and further that same material is to be collected to convict them. Leave to appeal having been refused by this Court against the acquittal of Nur llahi due effect of this acquittal will have to be kept in view. What cannot be done directly against Nur llahi cannot be done indirectly so as to deny the application of salutary principles laid down from time to time regarding administration of criminal justice. Such cases, however, would be a distinguishable from those where the acquittal is not brought under challenge at all, by any party before this Court.

The second set of accused is that of Khan Beg and Maqbul Ilahi. The High Court has given cogent reasons for their acquittal. With regard to them also there is no argument either that any material piece of evidence was ignored or misread or that any well-known. .principle was ignored or wrongly applied. The learned trial Judge had faced a serious difficulty when recording conviction against remaining accused after acquitting Nur llahi on clear finding of "entanglement" due to his being "the head of family" ; particularly, in view of the tainted nature of ocular evidence. It was same against all the accused. He, however, had forced to overcome the difficulty by resort to the well known rule of corroboration. Against Mamaraz it was easily discovered in the recovery of the crime weapon and also in his admission, of participation in the occurrence. Against Khan Beg and Maqbool llahi there was no corroboration. They had denied their participation in the occurrence. This denial, it may be added, was not an afterthought. The deposition of the Investigating Officer shows that through their conduct these two accused (as distinguished from Mamaraz) had from the very moment of arrest protected against their involvement and had produced evidence. Such a conduct which is exculpatory in nature could be taken into consideration. Be that as it may, the learned trial Judge when searching from corroboration against these two accused observed that the number of injuries found on the two deceased indicated that the assailants could be three and without saying so in so many words treated this as the necessary corroboration. It may be observed that the nature of injuries would in any case be of no help to the prosecution because all the three .accused other than Nur Ilahi were allegedly armed with sharp-edged weapons.

The total number of injuries on Ghulam Yasin (deceased) was four. Two of them are inlet and exit wounds of a stab on the arm. The third is a skin deep out on the shoulder and the fourth (in reality the third) is the only substantial wound. It is on the chest. The injuries on Fateh Khan (deceased) are also four in number. Excepting one which was a small wound with sharp-edged weapon on the back the other three injuries were of substantial nature-described as dangerous. The Doctor was of the opinion that both the deceased had received injuries with sharp-edged pointed weapon described as of "same nature". He expressed the further important opinion that "it is just possible it may be one and the same weapon". It is not possible to ignore such like opinion in an appeal against acquittal when one reasonable possibility is that only one accused might be involved.

Nur Ilahi having been acquitted as held above due effect of this acquittal on false "entanglement" can be 'given in favour of the accused. He was alleged to have caused only soti blow to Mst. Alum Khatun. She however, suffered at least one incised wound on her right ear ; which could not have been caused by a sot . She also suffered four blunt weapon injuries one is a laceration. It is skin deep only jt" wide, on the back of the right ear. There are three contusions with swellings-on shoulder, the buttock and left arm. They according to the Doctor could have been caused "on the falling on the surface" and the lacerated wound could be caused by "falling on a hard and rough surface". Not sing more can be said for these injuries than what has been described by the Doctor. His opinion with regard to the possible cause of these injuries can be ignored only if there is irrefutably only one other possibility. Here it is not so.

The Investigating Officer, is very clear terms deposed, that his examination of the spot indicated a "fight and scuffle" at the time of occurrence. To imagine that in a scuffie there would be no fall would amount to denial of a very valuable inference to the accused. According to the Mst. Alum Khantun's version she and her husband were alone when the occurrence commenced. If Nur Ilahi was not there and Ghulam Yasin was attacked wherein she tried to intervene, it is unimaginable that she would not have been pushed away and she would not have failen on the ground so as to receive the marks of violence discovered by the Investigating Officer. These are legitimate inferences which can be taken note of. Thus, in case the contusions and very minor insignificant marks of injuries analysed above are excluded as not being direct result of blows by burchh1es whether used from sharp end or a soti the net result would be that she could have suffered the only remaining incised wound on her car from a passing blow being inflicted with a burchhi on her husband. If Nur Ilahi was not there or as asserted he was not carrying a burchhi, this is the only explanation possible in the circumstances. Two or three main blows were given to Ghulam Yasin and about the same number of main blows were inflicted on Fateh Khan. The prosecution case is as clear again from Alam Khatun's deposition,'is (and this is a pivital point) that initially Ghulam Yasin and she were attacked. It was on hearing her alarm that Fateh Khan subsequently reached from his Dhok which is at a considerable distance. Thereafter, on reaching the spot he was attacked It is significant that the learned trial Judge did not appraise the evidence, in this context. Otherwise it was not at all impossible to suppose that in such a sequence of an occurrence divided into parts, even one man with a burchhi could separately incapacitate two empty handed persons one after the other. A mistake was made in reading the evidence when visualising as if all the three injured were made victim of one concerted attack. And that being so the number of injuries three or four on each man would show that ti a culprits were three. Although the learned Judge did not observe so, but it was surmised during the bearing that perhaps the accused were three in number that is only one or the other victim did not escape unhurt or with lesser harm and that the victims might have been surrounded by sufficient number of accused that is why they could not escape. This theory could run counter to what has already been stated. Mst. Alum Khatun the eye-witness gave the exact version of what had happened at the spot. She deposed in examination-in-chief that the accused injured her and her husband and then

"Ghulam Yasin fell down.-I raised an alarm and also tried to save my husband. Accused Nur Ilahi delivered stick blows on my right arm, right ear, left hand. On hearing my alarm, deceased Fateh Khan reached the spot, and asked the accused to desist from attack."

It is thereafter that Fateh Khan was also attacked. The nature of injuries on Fateh Khan snows that even after receiving the first blow which according to Mst. Alam Khatun he received in his belly (according to the Doctor it was in the pit of the stomach and had even penetrated the lever in its central part upto the depth of 2 ") be could not have at all run away. There was no question of any body surrounding him for causing that blow. And even if there was some such possibility it must have ended when according to Mst. Alam Khatun he received the second blow in his chest which according to the Doctor had penetrated the left lung as also the heart. If it is imagined that the second injury was inflicted in the first instance Mst. Alam Khatun as against her deposition to be imagined not to be able to see clearly in such a fight the sequence ; even then it was not at all possible for Fateh Khan to have made an attempt to run away. Thus visualising a surrounding circle by a large number of accused will be against the record of the case. However, the learned trial Judge who had taken note only of the number of injuries being much that they could have been inflicted by three persons and not one, the other circumstance can be kept apart.

If the possibility visualised by the learned trial Judge is real then in the realm of such possibilities there could be more assailants as well as three or two and as analysed above, even one cannot be excluded. The total number of direct blows considered in the sequence given by Mst. Alam Khatun being in two parts, as observed already one person could have caused the blows found on the two set of victims, separately injured. To hold that three or four blows cannot be inflicted by one person at one time on an empty handed victim would if made a rule adversely effect the administration of criminal justice and would result in much larger miscarriage of justice ; because in many cases coming before the Courts after one accused is held responsible and punished for causing even a greater number of blows with a weapon on empty handed persons.

There is another aspect of the matter also coming back to the possibility visualised by the learned trial Judge that three persons might have caused all the injuries; though as analysed earlier , they in the sentence and manner alleged in this case could have been caused by even one person, it would not be realistic to imagine that the only reasonable possibility is of three accused participating and not two. I he number of direct blows are such that they could as well have been caused by two persons. And if the sequence is divided into two parts it will be negation of all rules and inferences of logic if the possibility of (one or) two accused is given up in favour of only one possibility that they were three Although one culprit is a reasonable possibility, in case of two, a further question arose during the hearing of the appeals as to how to select the second one out of Khan Beg and Maqbul Illahi without strong corroboration for this, in addition to the other reasons to be presently discussed.

Mr. D. M. Awan candidly admitted that if there could be three there could be two also and at the same time stated that the rule regarding number of injuries would then be not applicable. He after consulting his client suggested another formula as if it was essential to convict two persons because two lives have been lost. Such an argument on the mathematical lines alone would be too dangerous to be accepted. However, whatever worth the suggested solution needs to be noticed. According to him the circumstantial direction in this controversy points towards &ban Beg rather than Maqbul Illahi. For this the reason advanced is based on the statement of Sultan Mahmood P. W. 8. "Accused Khan Beg and Mamaraz are cultivators and lived with their families in the said Dhok to the south-west of the spot". And that "Maqbul Ilahi accused has a shop in the village Dhok Ham", which admittedly is the main village and is away from the Dhok of Khan Beg and Mamaraz. Learned counsel argued that it is more likely that the second person joining Mamaraz, would be Khan Beg who might have come from their nearby Dhok. While Maqbul Ilahi lived to the village, therefore, it was less likely for him to do so. The suggestion to say the least is conjectural. This cannot be the basis of selection from amongst Khan Beg and Maqbul Ilahi. The tainted nature of ocular evidence and the acquittal of Nur 1lahi would require very strong and convincing corroboration. Apart from the foregoing surmise made by the learned counsel, he failed to point out any other against these two accused.

It is often said that the principle falsus in ono falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently ; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no censensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is half-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (P L D 1951 Lab. 66) propounded by late Chief Justice Muhammad Munir that. where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in toe same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused. For further and practical application of this rule the following cases can be instructive ; (particularly if the principle of indivisibility of credibility laid down in the Privy Council case Muhammad Faiz Bakhsh v. The Queen (P L D 1959 P C 24) is to be ignored :

Tawaib Khan and another v. The State P L D 1970 S C 13.

The State v. Mushtaq Ahmad P L D 1973 S C 418 ;

Muhammad Shafi and others v. The State 1974 S C M R 289 ;

Bakka v. The State 1977 S C M R 150 ;

Khairu and another v. The State 1981 S C M R 1136 ;

Ahmhd etc. v. The State 1982 S C M R 1049 ;

Aminullah v. The State P L D 1982 S C 429 and

Muhammad Nawaz v. The State 1984 S C M R 190.

It is to be empbasised that the sub-rule of "separating the grain from i the chaff", has been demonstratedr in many cases by applying the sure test.

whether the same tainted ocular evidence has received corroboration f=in, dependent and equally strong inculpatory evidence/circumstance (sic)/acd.

The afore-discussed main rule shall suffer serious change if and. when it is examined in the light of the Islamic Principles. But for the time being even if the rule generally followed by the superior Courts is applied to this case it would be very essential to seek ,trong and independent corroboration against each one of the accused on account of various reasons discussed in the High Court judgment as also in this judgment. No such corroboration is forthcoming against Khan Beg and Maqbul I11ahi. Therefore, maintaining their acquittal on this ground alone would be amply justified.

The same would be the result if the entire case is examined on the basis of another highly valued principle constantly followed by the Courts in Pakistan, namely that where a witness is interested and also enmical and is thus likely to falsely implicate one or the other accused, it is essential to seek' independent corrobora ion. In this case there were two eye-witnesses both of them are closely related to the deceased persons Ahmad Khan P. W, who is the nephew of Fateh Khan (deceased) has otherwise been excluded by the High Court from consideration for good reasons. Mst. Alam Khatun thus is the only eye-witness worth consideration in this behalf. Her being an injured witness would only corroborate her in so far as her presence is concerned. But if she is an interested and inimical witness this circumstance would not corroborate her with regard to the participation of each accused. That is why both the Courts below sought for corroboration ; which was found against Mamaraz only. Against the other two accused as analysed above, the High Court did not find any corroboration while the trial Court had tried to find it in the number of injuries ; which reasoning on exposure has not stood the test of reason.

The mere circumstance that Mst.. Alam Khatun is the wife of Ghulam Yasin deceased who is related to the accused and thus would not need corroboration in the circumstances of this case has not impressed at learned Courts below when applying the rule of corroboration against Mamaraz. The appraisal of her testimony vis-a-vis her interest to falsely implicate is not against any principle.

At this stage it is necessary to see how much venom this woman had against the accused on account of the estrangement between Mamaraz accused and her daughter Mst. Reshum Khatun who appeared as P. W. 9

as also her grudge due to her own defamation. This witness stated that there was no issue from her daughter's wedlock and that two months prior to the occurrence Mamaraz not only gave her beating but also turned her out of his house. During this estrangement he also threatened her family that he would forcely left her away. In this background when questioned about the enmity Mst Reshum Khatun P. W. stated that she was not at fault and that only her husband was responsible for this desertion. Therefore, she and her parents had clear grievance against Mamaraz. Mst. Alam Khatun P. W. tried to be clever in disclaiming at the trial her hatred for Mamaraz and thus for his family which she had admitted before the Committing Magistrate. She falsely tried to extricate herself from a previous admission, on oath thus by mistake I stated before the Talagang Magistrate that I have developed hatred for him and my Baradri also hates him. i had no talk with accused Mamaraz Khan when he visited our house. By mistake I stated before the Talagang Magistrate that he behaved rudely for which I took offence." Although an attempt was made to whittle down the enmity engendered by these facts though an explanation that although there was an estrangement yet from the complainant side a reunion also possible. Therefore, it was no enmity. I his aspect was specifically put to Mst. Alam Khatun. She answered as follows :

"I could not visualise a reunion of accused Mamaraz Khan and my daughter. By mistake . I stated before the Talagang Magistrate that 1 refused to send my daughter for this reason."

Mst. Alam Khatun's deposition thus shows that she was gravely offended against Mamaraz and she also expressed her annoyance in one or the other form but she attempted to deny the same in a clumsy manner. This is not all. She made another very important but false denial. It was the defence case that the only reason for estrangement between the spouses-Mamaraz and his wife, was the bad character of Mst. Alam Khatun. She was being criticised by Mamaraz and his family. She was accused by them of illicit relations with Fateh Khan deceased. For this very reason she and her family (though earlier living with the accused family in their Dhok) had shifted to the .. hok of Fateh Khan. Not only this she admitted that she was running the shop owned by Fateh Khan. This is less important when compared with what she had admitted on oath before the Committing Magistrate ; but denied the same at the trial. She tried to explain that it was' in confusion that she stated before the Talagang Magistrate "that the accused used to suspect so" and "not the other people''. Her statements including the Urdu versions having been seen no doubt remains that she had clearly stated that "the accused" had blamed her of having illicit intimacy with Fateh Khan. It can be well-understood that this very sore point was not only the cause of estrangement between the Mamaraz and his wife but also between the two families. They were all separated and thus bare serious grudge. It is interesting to note that no reason has been advanced by the prosecution for the otherwise serious estrangement between Mamaraz and his wife. The only explanation from the defence and admitted by Mst. Alam Khatun in her cross-examination in her earlier statement is that the accused party had suspected hfst. Alam Khatun of a liaison with Fateh Khan. Sultan Mahmood P. W. 8 admitted that although "the house" of the accused is in the main village Ham. their Dhok is near the place of occurrence and "that Dhok is the original Dhok of Ghulam Yasin deceased. Before shifting he lived there. The shifting was to Dhok of Fateh Khan. All this was also admitted by Mst. Alam Khatun before the Committing Magistrate. But she denied it at the trial for obvious reasons, so as to contradict the defence version on the point of enmity. This denial was also clumsy. She stated that, "By mistake I stated before Talagang Magistrate that we and the accused used to live at the Dhok of Aulia (her father-in-law) and from there we shifted to the Dhok of deceased Fateh Khan." It is strange that on every sensitive admission she made a volta face with the excuse of "By mistake". Mst. Alam Khatun is clearly inimical witness and was the most likely person to have falsely implicated one or the other accused. Therefore, it was absolutely essential to seek corroboration against each one of them As noted earlier, though there is strong corroboration against Mamaraz's through the recovery of the weapon of offence and his admission ; there is no corroboration against Khan Beg and Maqbul llabi. Their acquittal, therefore,) is maintainable on sound principles. It does not merit interference by this' Court. The appeal against them merits dismissal.

The third part of the case relates to culpability of Mamaraz. Leave to appeal was also granted to him on a Jail petition mainly because leave was granted to the prosecution side. He admitted his presence and pleaded self-defence. There is no material to support his statement that any of the victims was armed. His act as would be presently seen even if not premeditated comes within the mischief of 302, P. P. C. The learned Courts below found independent and strong corroboration against him in the recovery of the crime weapon and his admission. His appeal is thus liable to be dismissed. This however, will not close his case as in the appeal against acquittal the question of sentence to Mamaraz was also noted for consideration.

This question has also engaged our serious attention. Both the learned Courts below have found it as a fact that the attack on the deceased was not premeditated. Not only this all the three counsel including the one for the complainant appearing before the High. Court had also then taken the position that there was no premeditation. Mr. D. M. Awan the present learned counsel f9r Ghulam Sikandar did not deny this fact recorded in the High Court judgment' but explained that position taken then should be ignored as an individual act of a counsel. The concession was made in the context of a factual controversy as to how and why the occurrence took place. And the fact remains the position taken by the counsel in the High Court might have contributed to some extent to the forming of the opinion by the High Court. In an appeal for enhancement of sentence to death filed by the same party this aspect cannot be ignored. Apart from the question that on this issue of fact, the counsel might have been instructed by his client, and further in this Court the inaction by the heirs of Yasin deceased is not without significance.

The observations and findings in the two judgments, in this behalf, are indeed very weighty. The learned trial judge noted important facts on this issue thus

Mst. Alam Kbatun has admitted that their field containing fodder was about 150 paces south of the Dbok of Fateh Khan daceased. It is obvious from the statement of the Patwari that the place of occurrence was also to the south of this Dhok and was 108 paces ahead of the fodder field. It is strange that the husband and wife went 108 paces ahead of their destination and were attacked there. Moreover, it seems queer that the accused were aware of the visit of the husband and wife to the fodder crop at digarvela. They certainly could not acquire knowledge in this behalf Both these elements falsify the prosecution on the point of a premeditated attack. The accused had not ambushed deceased Ghulam Yasin and his wife, as alleged by the prosecution."

The learned Judge explained away the use of crime weapon like spear by villagers who "keep with them some sort of weapon like stick or a hatchet or a spear and this does not necessarily reflect on their dreadful intention". It may be added that the Dhok of Mamaraz is admittedly near the place of occurrence. If Fateh Khan deceased could reach the spot from faither Dhok to intervene in the occurrence, it was not impossible for Mamaraz to have brought the Barchhi from his Dhok after the facile scuffle in which Mst. Alam Khatun seems to have received the marks of violence-the scuffle evidence was observed by the Investigating Officer during the inspection of the spot. This aspect of absence of the premeditation is not to be considered in isolation. The High Court has extended the point further to logical and with reference to important material in evidence. .

While considering the motive, it is indeed very surprising that the threat given by Mamaraz that be "would forcibly take away his wife" is not at all projected by his conduct in the occurrence. His wife was not at the spot.

There was no question of forcibly' taking her away then. - Why should he attack her parents or Fateh Khan in a field mid-way between two Dhoks, is not explained. Here it is significant that his wife (P. W. 9) categorically stated that her parents were "willing to send her back" and she was prepared "to join my husband". If that is true why should he attack them. This is not all. The two deceased were bare headed and without shoes. No fodder (fly..) (the excuse in Alam Khatun's version) was found by Investigating Officer nor. any Jawar field was near the spot. Above all, he deposed that there is no path either on which the couple was supposed to be going for lifting the fodder, "in the land of occurrence". It was Ramazan (digarvela) and also an odd time for bringing fodder. All this. shows as held by High Court that there is some thing more about the cause of this unfortunate occurrence.

The High Court has dealt with this issue on two suppositions taken from evidence : One, that there was some estrangement between the families on account of Mst. Resham Khatoon's desertion, which caused some unpleasantness. On her parents chance and sudden meeting with Mamaraz where in on account of previous provocation on this question, he fought with and injured them. And second, which is more realistic and important, that he had a burning suspicion he nursed' against these people on account of the illicit intimacy between his mother-in-law and Fateh Khan ; which had induced her to shift to latter's Dhok alongwith his (Mamaraz's) wife to continue "her own liaison". The admission of Mst. Alam Khatun that she made statement about this accusation, before the Committing Magistrate is a matter of record. In all these circumstances the finding of fact that "by chance some thing triggered of the incident, whose particulars are shrouded in mystery", cannot be set aside in the appeal against acquittal.

Apart from the foregoing findings and principles : regarding the mystry shrouded as it is ; failure of alleged motive, regarding the and what really triggered the existing smoildering provocation and suspicion ; and regarding the family honour involving Alam Khatun and Fateh Khan, with Ghulam Yasin instead of protecting the honour siding with them, another rule also applies that the two Courts having found material to award lesser of the two legal sentences, their approach is not so fanciful as to compel this Court to interfere on this point. it is particularly so when even the questions of motive and the commencement of occurrence, is dependent upon the same highly enmical. evidence. Any admission of her own fault at the trial which might help the accused even if true is beyond a witness like Mrt. Alam Khatun the only witness who was there from start to end. The defence has exposed her integrity in this behalf. For all these reasons prayer for enhancement of sentence to death is refused. But enhancement of fine so as to pay the same as compensation under section 545, Cr. P. C. in addition to what the learned trial Court ordered under section 544-A, Cr. P. C. will be in the interest of justice. Accordingly Mamaraz respondent is awarded sentence of fine of Rs. 25,000 under section 302, P. P. C. on each count (totalling Rs. 50,00()) and Rs 10,000 under section 326, P. P. C. and in default 5 years' R. 1. on each count under section 302, P. P. C. and 2 years' R. 1. under section 326, P. P. C. On realization of the fine Rs. 50,000 shall be paid as compensation to the heirs of the two deceased and Rs. 10,000 to the injured P. W. To this extent the appeal against acquittal (Cr. A No. 274 of 1980) is partly allowed against Mamaraz. Otherwise both the appeals are dismissed.

M. z. M. Appeal partly allowed.

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