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Criminal Appeals Nos. 148 and 151 of 1986, decided on 10th January, 1987.

‑‑Ss. 302 & 34‑‑Case against accused resting on ocular testimony‑‑ Trial Court holding two out of three accused guilty of constructive liability but evidence of witnesses not disclosing any overt act against them‑‑Eye witnesses not consistent upon Lalkara'‑‑Hatchet recovered not found stained with blood and no other incriminating evidence existing against said two accused who appeared to have been wrongly implicated‑ Statements of eye‑witnesses which went uncorroborated with regard to other accused also in same occurrence not reliable‑‑Ocular testimony being shaky, medical evidence could not be read as a corroborative piece of evidence‑‑Prosecution failing to bring home charge against accused beyond reasonable doubt‑‑Conviction and sentence with regard to all accused persons set aside in circumstances.

‑‑‑Ss. 302 & 34‑‑Vicarious liability‑‑Enmity between parties admitted‑ Mere presence of accused at scene of occurrence without any constructive part in commission of offence, held, could not bring their case under S.34, Penal Code and they could not be saddled with vicarious liability.

‑‑‑Ss. 302 & 34‑‑Vicarious liability‑‑Once conclusion was arrived at that some of accused were implicated falsely by complainant party to rope in more persons of accused party then statements of eye‑witnesses in regard to other accused, held, were to be considered with caution ‑‑Where testimony of such a witness was corroborated by very strong and independent circumstances regarding others, reliance might then be placed on witnesses for convicting other accused‑‑It could not be accepted as a universal rule that case of each accused be considered in light of evidence and statement of witnesses, even if evidence be discarded in case of one accused, same could be considered against co‑accused‑ Principle that chaff may be sifted from grain would clearly mean that if there was some corroborative piece of evidence connecting other accused then statements of such witnesses may be considered‑‑ Where there was no corroborative piece of evidence and conviction was to be based on statement of such witnesses then it was rule of prudence that statements of such witnesses could not be considered against co‑ accused.

Ghulam Sikandar and another v. Mamaraz Khan and others P L D. 1985 S C 11; Ghulam Muhammad v. Crown P L D 1951 Lah. 66 and Taj Muhammad v. Pesham Khan and others 1986 S C M R 823 rel.

‑‑‑Ss. 302 & 34‑‑Appreciation of evidence‑‑Medical evidence, whether corroborative piece of evidence‑‑If direct piece of evidence was accepted, then medical evidence, might be considered as a corroborative piece of evidence to show that incident as stated by eye‑witnesses had occurred and weapons as alleged were used by culprits‑‑In case ocular testimony was shaky then medical evidence could not be read as a corroborative piece of evidence.‑ ‑[Evidence].

‑‑‑S. 302/34‑‑Motive‑‑Motive, when corroborative piece of evidence‑ Motive a double edged weapon and could be used as a corroborative piece of evidence if there was other strong circumstantial evidence connecting accused‑‑If implicit reliance could not be placed on evidence of interested witnesses then motive could not be used as a corroborative piece of evidence.‑ ‑[Motive].

Lashkari and 4 others v. The State P L D 1981 Kar. 1 and 1986 PCr.LJ 583 rel.

Muhammad Hayat Junejo for Appellants.

Nazir Alam for the State.

Date of hearing: 19th November, 1986.

This judgment would dispose of the above two appeals filed by the appellants against the convictions recorded against them by the learned Additional Sessions Judge, Sanghar by which he convicted the appellants under section 302 and sentenced each one of them to imprisonment for life and fine of Rs.1,000 in default to suffer R.I. for one month more. They were also convicted under section 307, P.P.C. to undergo R.I. for seven years each and to pay a fine of Rs.1,000 each and in default to suffer R.I. for one month more. They were also directed to pay Rs.5,000 each as compensation to the heirs of the deceased and in default to undergo R.I. for six months. The substantive sentences were directed to run concurrently except the imprisonment in default of payment of fine.

2. The facts of the prosecution case are that one Murad Nabi, nephew of appellant Naubat and Inayat was murdered for which complainant Shahoo, injured Hussain Bux and P.W. Godo were challaned and the accused were on bail. On 5‑2‑1983 they had to attend the Court of Sessions at Mirpurkhas and, therefore, left their village at about 4‑00 a.m. in order to catch the train from Noabad Railway Station. Deceased Soomar and P.W. Jaro were also with them. When they were about one mile away from Noabad, the appellants came out from the side of watercourse.

Appellants Inayat and Naubat were alleged to have been armed with guns while Hashim son of Saffar and Hashim son of Mawali were armed with hatchets. It is alleged that the accused gave Hakkals' to the complainant party and then Naubat fired which hit Soomar whereafter Inayat fired which hit Hussain Bux. The witnesses had identified all the accused in the light of torch and voice. After departure of the accused the injured were taken by the Complainant and P.Ws. to their Village but on the way Soomar succumbed to the injuries. The complainant Shahoo went to Noabad Police Station and lodged the report. According to the first information report the motive behind the crime was to avenge murder of Murad Mari. The police started investigations. P.W. 6 Wasayo is Mashir of injuries received by Hussain Bux. He is also Mashir of recovery of clothes, dead body, inquest report, Wardat, recoveries of clothes of deceased, arrest of appellant Naubat, recovery of double barrel gun of Naubat, arrest of Inayat, recovery of hatchet from his possession which was not stained with blood, arrest of Hashim son of Saffer and recovery of hatchet which was not blood‑stained.

P.W.7 Dr. Muhammad Aslam examined the injured Hussain Bux and produced. provisional medical certificate Exh. 32 and final certificate as Exh. 33.

P.W. 8 Tapedar Ali Dino prepared the sketch of Wardat as Exh. 36.

P.W. Mirano Khan is corpse bearer.

P.W. Karamat Hussain, S.H.O. is the Investigating Officer. He also produced the report of the Chemical Examiner as Exh. 39 and report of the Ballistic Expert as Exh. 40.

P.W. Dr. Imtiaz Ali performed the post‑mortem on the dead body of deceased Soomar and found the following injuries on his person:‑

(1) Wound of entry 1/2 c.m. x 1/2 c.m. on the anterior border of left deltoid muscle.

(2) Wound of exit 3/4 c.m. x 3/4 c.m. on the posterior border of left deltoid muscle.

(3) Entry wound 3/4 c.m. x 3/4 c.m. about 1" above right ilise crest on right side abdomen.

(4) Entry wound 1/2 c.m. x 1/2 c.m. about 3 inches above left nipple in 3rd intercostal space.

(5) Entry wound 1/2 c.m. x 1/2 c.m. on anterior side of left forearm on ulnar side 5 inches above wrist joint.

(6) Exit wound 3/4 c.m. x 1/2 c.m. on posterior side of left fore‑arm 4 inches below elbow joint, on medical side.

(7) Entry wound 1/2 c.m. x 1/2 c.m. on right side abdomen about 6 inches from umblicus and 3 inches about right ilies crest.

The accused in their statements have denied the allegations.

3. The case against the appellants rests on the ocular testimony of P.W.1 Jaro, P.W.2 Hussain Bux, P.W.3 Godo, P.W.4 Shahoo (Complainant) and P.W.5 Umar who was attracted to the scene after the incident. The learned trial Judge accepted the ocular testimony of all these witnesses. He also accepted the motive and medical evidence as the corroborative pieces of evidence. The allegations against accused Inayat and Hashim is to the effect that they were armed with hatchets and they gave Hakals' to the deceased. P.W. Godo has not attributed any overt act against Hashim. P.W. Hussain Bux has deposed that Inayat and Hashim gave Hakals'. P.W. Jaro stated that accused Naubat gave Hakals'. P.W. Shahoo stated that all the accused gave Hakals'. The learned trial Judge has held Inayat and Hashim guilty of constructive liability but the evidence of the witnesses do not disclose any overt act against those persons. The four eye‑witnesses are not consistent upon Lalkara'. The hatchets were not stained with any blood. There is no other incriminating evidence against Hashim and Inayat. The enmity is admitted therefore, even if we accept the testimony of these witnesses that Hashim son of Saffar and Inayat were present at the Wardat they could not be saddled with vicarious liability. Mere presence at the scene of occurrence without any constructive part in the commission of the offence would not bring their case under section 34, P.P.C. They have been implicated with the other accused who allegedly fired at the deceased and injured Hussain Bux. It is thus clear that at least these two persons were wrongly implicated in this case. Once we come to the conclusion that Hashim son of Saffar and Inayat have been implicated by the complainant‑party to rope in more persons of the accused party then the statements of the eye‑witnesses in regard to the other accused is to be considered with caution. It cannot be accepted as a universal rule that the case of each accused to be considered in the light of the evidence and statements of witnesses. Even if evidence be discarded in the case of one accused, the same may be considered against the co‑accused. The principle that chaff may be sifted from the grain would clearly mean that if there is some corroborative piece of evidence connecting the other accused then the statements of such witnesses may be considered. But if there is no corroborative piece of evidence and the conviction is to be based on the statement of such witnesses only then it is rule of prudence now well‑accepted that statements of such witnesses could not be considered against the co‑accused. It is an admitted fact that the parties were inimical. The accused were facing trial for murder of nephew of accused Naubat. Thus, there was blood feud between the parties. The witnesses are related inter se. P.Ws. Umar and complainant Shahoo are cousins of RI A, Jaro. P.W. Godo is nephew of complainant Shahoo. There are some other defects in the evidence of the witnesses. The complainant had lodged the report wherein it is mentioned that the deceased had expired. On the other hand P.W. Godo stated that Soomar was alive when complainant left for lodging the report and he expired afterwards. As regards the actual incident it is the prosecution case that the accused were on the other side of the watercourse and the P.Ws. were standing on the opposite side. The path of watercourse was 2‑1/2" high. The witnesses have stated that they had identified the accused on the torch light and voice. It is doubtful whether the accused persons could be identified in such circumstances when they were standing in a ditch and they were on the other side of the watercourse. It may be contended that at least Hussain Bux would have identified the accused persons as he had received injuries. But the question which requires consideration is whether in the given circumstances the statements of the eye‑witnesses can be accepted when at least two innocent persons have been implicated.

It has been held in the case of Ghulam Sikandar and another v. Maznaraz Khan and others P L D 1985 S C 11 that it is often said that the principle falsus in uno 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 consensus 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 held 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 Lah. 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 the 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.

It would, therefore, be most unsafe to rely on the uncorroborated testimony of the eye‑witnesses as against the other accused also.

It has been held in the case of Taj Muhammad v. Pesham Khan and others 1986 S C M R 823 that when bad blood feud existed between deceased and accused a very strong corroboration of testimony of eye witnesses was necessary.

The trial Court has sought corroboration from the medical evidence and motive. As regards the medical evidence suffice 'it to say that it only proved that the incident had occurred and the deceased or the injured had received injuries. The direct piece of evidence if accepted; then the medical evidence may be considered as a corroborative piece of evidence to show that the incident as stated by the eye‑witnesses had occurred and the weapons as alleged were used by the culprits. In case the ocular testimony is shaky then the medical evidence cannot be read as a corroborative piece of evidence. The trial Court also sought corroboration from motive, as alleged by the complainant and the witnesses. Motive is double‑edged weapon. It can also be said that the accused persons have been involved due to motive. Motive can only be used as a corroborative piece of evidence if there is other strong circumstantial evidence connecting the accused. If implicate reliance cannot be placed on the evidence of interested witnesses then motive cannot be used as a corroborative piece of evidence.

In the case of Lashkari and 4 others v. The State reported in PLD 1981 Kar. I it has been held that motive often used in law as corroboration but in certain cases just a second name of enmity.

Same view was taken in 1986 P Cr. L J 583.

4. The overall conclusion from the above facts is that the prosecution has not been able to bring home the charge against the appellants beyond all reasonable doubt. In view of the infirmities pointed out above, the appeal is accepted and the convictions and sentences recorded against the appellants are set aside. They be released forthwith if not required in any other case.

The appeal was disposed of by a short order, dated 19‑11‑1986 and the above are, the reasons for the same.

M.Y.H./N‑11/K Appeal accepted.

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