TALIB HUSSAIN Versus FAZAL HUSSAIN

1. SALAHUDDIN AHMED, J.- This is an appeal by special leave of this Court from an order of the Lahore High Court setting aside the convictions and sentences of respondent No. 1 Fazal Hussain, son of Nur Muhammad, and three others, and acquitting them. Complainant Talib Hussain had applied for leave to appeal and it was given in respect of respondent Fazal Hussain alone and a non-bailable warrant of arrest was directed to issue against Lim. leave was granted to consider whether the High Court was right in rejecting the evidence of corroboration furnished against respondent Fazal Hussain on the ground that the recovery witness P. W. 20 Ghulam Muhammad, Lambardar, was an interested person and that the crime empties which had been found to match with the gun recovered at the instance of the respondent had not been recovered from the spot but manufactured from the live cartridges surrendered by the respondent.

2. The respondent along with three others, namely, Muhammad Hussain, Eida Khan and Sher Khan, had been tried for the murder of two persons, namely Fazal Hussain, son of Lal Khan, and Alawal Khan. Respondent Fazal Hussain and his brother Muhammad Hussain were convicted under section 302/34 of the Pakistan Penal Code and were each sentenced to death for the murder of Fazal Hussain, son of Lal Khan, and Haji Alawal Khan. They were also convicted under section 307/34 of the Code and sentenced to various terms of imprisonment for having attempted on the life of P. W. 15 Fateh Muhammad and for having caused injuries to P. W. 19 Bahawal Khan and P. W. 29 Mst. Gulab Khatoon. Eida Khan and Sher Khan, who are brothers were convicted under section 302/34 of the Code and sentenced to death each for the murder of Fazal Hussain, son of Lal Khan, only. They were also convicted under section 324/34 of the Code for having caused injuries to P. W. 14 Talib Hussain (complainant appellant herein).

3. According to the prosecution story the incident took place on the 27th of February 1969, at Fajar prayer time in front of the house of P. W. 18 Haji Din Muhammad when appellant Talib Hussain had come out to answer a call of nature, and Haji Alawal Khan (one of the deceased) had been proceeding to the mosque to say his prayers. Respondent Fazal Hussain and his brother Muhammad Hussain appeared at the scene and challenged Haji Alawal Khan, who ran for safety. The two accused persons then climbed upon (a Thara a raised platform) and respondent Fazal Hussain fired with his gun and hit Alawal Khan on the back, and he fell down. This shot was also witnessed by P. W. Bahawal Khan, brother of P. W. Talib Hussain, who had come out in the meantime on hearing the noise. Both the brothers had rushed to rescue Alawal Khan. Eida Khan, an accused, was standing in the lane armed with his licensed gun along with his brother Sher Khan, another accused. Fazal Hussain deceased, uncle of P. W. Talib Hussain, also appeared at the scene, and respondent Fazal Hussain fired at the former, and the pellets hit him. Eida also fired and the pellets bit Fazal Hussain deceased, and he fell down and died at the spot. Sher Khan another accused struck P. W. Talib Hussain on his head and near his left armpit with a knife, and the two grappled with each other. Muhammad Hussain accused injured P. W. Bahawal Khan with a knife. P. W. Gulab Khatoon, mother of P. W. Talib Hussain, and Fateh Muhammad P. Ws., were also injured in the incident, the former by a knife and the latter with a firearm. P. W. Haji Din Muhammad came out of his house and reprimanded the assailants and they left the scene. Alawal Khan, who was then alive, and the three injured P. Ws., Mst. Gulab Kbatoon. Fateh Muhammad and Bahawal were taken to Talagang Hospital. As the doctor was not available, and Alawal's condition was serious, and he was unconscious, he was taken to Campbellpur Hospital by P. W. Sabar Hussain and one Baz Muhammad. Later, Alawal died in the hospital.

4. The respondent and his co-accused were arrested on the very day of occurrence by Sub-Inspector Raja Abdur Razzaq (P. W. 22). In course of preliminary investigations two empties. P-3 and P-4 were recovered from the scene of occurrence and were seized under memo. Exh. P. G. dated the 27th of February 1969, by P. W. Raja Abdur Razzaq, and it was witnessed by P. W. Ghulam Muhammad, Lambardar, and one Rab Nawaz. Rab Nawaz was given up by the prosecution as unnecessary.

5. On the very day of occurrence the same Sub-Inspector P. W. Raja Abdur Razzaq in presence of P. W. Ghulam Muhammad, Lambardar, and Rab Nawaz seized a .12 bore shot-gun P-5 along with a bandolier P-6 containing 7 live cartridges and a licence P-8 covering the same at the instance of respondent Fazal Hussain.

6. On the 2nd of March 1969, Eida and Sher Khan (since acquitted) led to the recovery of a .12 bore shot-gun P-10 along with a bag P-12 containing four live cartridges and a licence P-14 and a blood-stained knife P-9 respectively and they were seized by P. W. Raja Abdur Razzaq in presence of the said Ghulam Muhammad, Lambardar, and some other persons who have not been examined. Nothing was recovered from Muhammad Hussain (since acquitted).

7. Subsequently, it was found that the crime empties P-3 and P-4 matched with the gun P-5 recovered at the instance of respondent Fazal Hussain. Respondent Fazal Hussain owned the gun P-5 and bandolier P-6 and the licence P-8 but said that the two empty cartridges P-3 and P-4 had been fired from his gun by the police. H-. further stated that the said crime empties had been prepared by the investigating officer from the cartridges the respondent had surrendered and that no empties were taken from the spot.

8. The Serologist found the blood on the knife P-9 to be of human origin.

9. The accused denied the charges framed against them. Fazal Hussain said that he had been falsely implicated by the witnesses because the respondent was related to Eida and because the prosecution witnesses were inimical to the respondent. No details of enmity, however, were given by him. The other accused persons also denied the charges levelled against them and said that they had been falsely implicated. Sher Khan denied the recovery of the knife P-9.

10. The defence case was disbelieved by the trial Court, and the High Court did not consider it necessary to deal with it.

11. The learned Judges of the High Court on a consideration of the evidence arrived at the finding that although the complainant and- the accused parties descended from a common ancestor, the enmity between the two factions of the same family was clearly borne out, and that, consequently, the testimony of interested eye-witnesses could only be accepted if they received support from independent evidence qua each accused. The Court, however, came to the conclusion that there was no such corroborative evidence. It may be stated here at once that there is hardly any evidence as to the existence of such rival factions.

12. The High Court was also of the view that the injuries sustained by Eida and Sher Khan were suppressed and not mentioned in the first information report. Furthermore that having regard to the numerous injuries sustained by these two accused it was doubtful whether they could wield their weapons and cause injuries as alleged against them.

13. As regards respondent Fazal Hussain the High Court was of the view that the recovery of the two empties from the spot, and the gun, bandolier and licence from him were unworthy of credence because the recovery witness Ghulam Muhammad P. W. was an interested witness, and because the respondent bad said that the empties had not been recovered from the spot and that they were: prepared by the Investigating Officer from the cartridges surrendered by the respondent. The matching of the empties with the gun P-5 was, therefore, of no consequence.

14. With regard to Eida and Sher Khan the High Court was of the view that the recovery of gun from the former and a blood-stained knife from the latter were of no avail as the gun was not connected with the crime, and the knife was recovered 3 days after the occurrence in presence of the same interested witness, Ghulam Muhammad P. W.

15. As regards Muhammad Hussain the High Court was of the view that as nothing was recovered from him there was no corroboration available against him.

16. For the purpose of the present appeal I shall confine myself to the case of respondent Fazal Hussain alone as the leave has been granted against him alone.

17. The High Court has characterised the prosecution evidence as "tainted testimony of highly interested witnesses", and it, therefore, considered that the evidence could only be accepted if it was corroborated by independent evidence.

18. It must be borne in mind that both the parties are inter-related and some of them are closely connected. There are 5 eye-witnesses. Talib Hussain (P. W. 14) and Bahawal (P. W. 19) are brothers. They are cousins of Fazal Hussain deceased. The other deceased, Haji Alawal Khan, son of Mowaz, was their paternal uncle. Mst. Gulab Khatoon (P. W. 16) is the mother of P. Ws. Talib Hussain and Bahawal.

19. Fateh Muhammad (P. W. 15) is closely related to the accused party. The father of Sher and Eida accused is brother of Fateh Muhammad P. W. The father of respondent Fazal Hussain and his brother Muhammad Hussain is a first cousin of the mother of Fateh Muhammad P. W. P. Ws. Talib Hussain and Bahawal and deceased Alawal are collaterals of Fateh Muhammad. Fazal Hussain deceased was son of Fateh Muhammad's maternal uncle. Din Muhammad (P. W. 18) is also son of paternal uncle of Fateh Muhammad.

20. The grandfather of Shera and Eida was the brother of Haji Din Muhammad aged 60 years (P. W. 18). Haji Din Muhammad's great grand father was brother of the- great grandfather of the father of respondent Fazal Hussain. Fazal Hussain deceased was son of Haji Din Muhammad's paternai aunt and Haji Din Muhammad's wife is sister of Alawal deceased.

21. It may be noticed that P. W. Fateh Muhammad is more closely related to the accused party than to the complainant party. He received multiple fire-arm wounds caused by pellets and suffered grievous injuries causing fracture of first metacarpal bone and index finger of his left hand, and his right hand, too, was incapacitated and lost power to perform its normal duties. There is absolutely no reason to disbelieve him. He was injured in the incident and the suggestion put to him by the defence showed that this was accepted. The trial Court accepted his evidence and the High Court has given no reason at all for disbelieving him. The witness was never asked about the existence of two opposing factions in the family or that he was in the faction that was opposed to the faction of the accused. It is pertinent to mention here that the High Court never considered it necessary to find out whether the prosecution or any of them and the accused or any of them were members of two opposing factions. In those circumstances the High Court's observations that the witnesses were highly interested and, therefore, required independent corroboration before their evidence could be accepted, can by no stretch of imagination apply to this witness. His evidence alone was sufficient to sustain the conviction without any corroboration.

22. Next I come to Haji Din Muhammad P. W. in front of whose house the occurrence took place. He is evidently a venerable person and a natural witness. He appeared to be a person esteemed by both the parties for at his intervention the accused party left the spot. In the earlier stone-throwing incident in which he was injured, he had directed both the parties to get down and not to throw stones and they both obeyed him. He is brother of Ghulam Muhammad, the witness of recovery. He is almost equally related to both the parties. He denied that he deposed falsely because of his close relationship with the two deceased. There was no suggestion of any ill-will between him and any of the accused. He too was not asked anything about the existence of any opposing factions in the family. He was relied on by the trial Court and no reason has been given by the High Court for disbelieving him.

23. Neither P. W. Fateh Muhammad nor P. W. Haji Din Muhammad can by any stretch of imagination be called an "interested witness". In the, case of Nazir v. State (P L D 1962 S C 269 P L D 1962 S C 269) this Court has observed as follows :-

24. "But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstances that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circum stances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."

25. To avoid repetition it is convenient to state here that the nature of corroboration required in the case of an "interested witness" is also indicated !n the observation. Neither of the prosecution witnesses falls within the definition of interested witness as defined by this Court.

26. Similarly in the case of Abdul Rashid v. Umaid All (P L D 1975 S C 227), this Court has observed thus :-

27. "It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested wit nesses yet it is not an inflexible rule to be rigidly and unexceptionally applied. There might be cases in which the witnesses related to the deceased might be otherwise, quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence, even their uncorroborated testimony may be implicitly relied upon of course in the context of other relevant circumstances of each case. Reference may be made in this regard to this Court's judgment in Jahan Khan v. State P L D 1959 S C (Pak.) 488, Niaz v. State P L D 1960 S C 387 and Nazir and others v. State P L D 1962 S C 269. These judgments were referred to with approval in Muhammad Ismail v. Khushl Muhammad and 7 others."

28. The evidence of the two brothers, P. Ws. Talib Hussain and Bahawal, and their mother P. W. Mst. Gulab Khatoon may be taken up together. They are natural witnesses and all three of them had been injured in the occurrence. The first one had two incised injuries including one on the head. The second one had four incised wounds, one on the head, one on back of neck and two on back of chest. Mst. Gulab Khatoon had sustained four injuries including three incised ones, namely, on dorsum w left hand, left elbow joint and ventral surface of left thigh. All the three witnesses denied that the injuries on them were self-inflicted, nor were they so probable. The doctor was also not asked whether their injuries could be self-inflicted. These witnesses have been corroborated by P. W. Fateh Muhammad and Din Muhammad. There does not appear any reason for them to falsely implicate the accused, particularly their assailants.

29. I now proceed to consider the recoveries. Gun P-5, bandolier P-6 an licence P-7 were recovered at the instance of respondent Fazal Hussain on the very day of occurrence. and was witnessed by P. W. Ghulam Muhammad, Lambardar. The Lambardar was an appropriate person to witness the seizure, and he was not at all challenged about these recoveries. There i9 absolutely no suggestion to him as to why he should falsely implicate the respondent. The mere fact that he was brother of P. W. Din Muhammad, a witness o occurrence, who himself had no reason to falsely implicate the respondent, is not a reasonable ground to reject his evidence. The High Court war clearly in error when it observed that the recovery was witnessed by `admittedly' interested witness. There is no such admission. Besides the Court totally ignored the evidence of the investigation officer (P. W. 22) in this connection. P. W. 22 was not cross-examined at all about the recovery of the gun, bandolier and the licence. The recovery of these have been admitted by respondent Fazal Hussain. In these circumstances it was against all principles applicable to appraisement of evidence that the evidence of their recovery was discarded. The admission of these recoveries furnished good corroboration of the evidence of P. W. Ghulam Muhammad, if at al any corrobora ion was needed.

30. The Investigating Officer Raja Abdur Razzaq (P. W. 22) and Ghulam Muhammad P. W. have categorically stated that the empties P-3 and P-4 were recovered from the spot, and they are corroborated by Foot-Constable Abid Hussain (P. W. 10) who said that on the 28th of February 1969, the Investigating Officer handed over to him, among other things, one parcel containing empty for safe custody in the Malkhana. There is no reason $o disbelieve the evidence merely because the defence suggested that the empties were prepared by the Investigating Officer from the cartridges surrendered by respondent Fazal Hussain. The suggestion wag categorically denied by the witnesses to whom it wag put. Besides, it appeared highly improbable. Unless we are in a position to condemn all the police officers as dishonest and wholly devoid of conscience one cannot reject their evidence for no other fault than that they are police officers particularly when no motive has been suggested to them for manufacturing false evidence and when under the law it is their duty to conduct investigations.

31. To sum up, I find no reasonable ground at all for discarding the evidence for recovery of the empties from the spot and the gun, bandolier and the licence from respondent Fazal Hussain. These articles were sealed and remained in proper custody and reached the firearm expert intact on 8-3-69. There is hardly any evidence to show that they were tampered with. The firearm expert proved that the empties P. 3 and P. 4 matched with the gun P.

5. Thus, there was adequate reliable evidence to corroborate the . ocular evidence even in the case of the evidence that needed corroboration.

32. The High Court was also impressed by the alleged omission on the part of the prosecution to explain the several injuries sustained by co-accused Fida ,and Sher Khan.

33. In the first information report P. W. Talib Hussain stated that accused Sher Khan caught hold of him and struck him with a knife on the head and left side of armpit and the two grappled with each other. P. W. Talib Hussain repeated this in his evidence before tire Sessions Court and also said that P. W. Babawal gave a stick blow, to Eida. P. W. Bahawal stated that he gave stick blows to accused Sher Khan. Their mother P. W. Mst. Gulab Khatoon said she saw Talib and Shera grappling and Bahawal giving stick blows to Eida and Shera. In her cross-examination it was brought out that she had told the committing Court that she had seen Shera in injured condition. P. W. Fateh Muhammad said that P.W. Bahawal struck Eida on the head and on the back with a stick and that P. W. Talib grappled with Shera. P. W. Haji, Din Muhammad stated that he saw Shera accused and Talib lying beside the door of his house and grappling. It will thus be seen that it was not correct to say that the prosecution totally omitted to give any explanation for the injuries upon the accused Eida and Sher Khan. Both these accused had received simple injuries with some blunt substance. Besides it is not always the duty of the prosecution to explain the injuries on an accused, person.

34. In the case of State v. Rab Nawaz (P L D 1974 S ,C 87) this Court has observed thus with 'reference to the two cased of Safdar Ali v. Crown (P L D 1953 F C 93) and Muhammad Aslam v. Crown (P L 'D 1953 F C 115) :-

35. "It is wholly fallacious to read the two precedent cases, as laying down the bread principle of general application to the criminal cases, that it is always the duty of the prosecutions to explain each injury on the accused person, regardless off, its nature. It is equally wrong to suggest that the prosecution's failure to explain any such injury would per se affect its case with the general doubt so as to entitle the accused to acquittal. To accept the argument, of the respondent's learned counsel in its entirety would be to pervert the principle laid down in the two precedent cases upon which the argument proceeded. As explained already, the question whether the prosecution's failure in this respect, reacts on the whole case so as to create a doubt will depend on the totality of a case and not a single element in the entire gamut."

36. I would, therefore, allow the appeal and convict respondent Fazal Hussain under section 302, P. P. C. for the murder of Fazal Hussain and Alawal and sentence him to death on each count and to pay Rupees ten thousand, as compensation to the heirs of the two deceased persons, Fazal Hussain and Alawal. Fifty per cent of the compensation shall go to the heirs of Fazal Hussain and fifty per cent to those of Alawal. The beers shall receive shares according to law.

37. MUHAMMAD `AFZAL CHEEMA. J.-I have had the privilege of going through the judgment proposed to be _ delivered by my learned brother Salahuddin Ahmed, J. but with the utmost respect and regret, find myself unable to agree with the conclusions reached by his Lordship. .

38. The essential facts of the case have been detailed in the judgment of my learned brother and need not be reiterated by me, I therefore straightaway come to the points in issue.

39. I fully agree in principle with his Lordship that it is not an indispensable requirement of law to look for independent corroboration of the testimony E of interested witnesses before placing reliance on it. I am also in respectful agreement with my learned brother that in the instant case the: parties were closely related inter se and although the record does reflect some background of enmity between them yet the characterisation by the High Court of all the witnesses "as highly interested" is an over-statement. Nevertheless the rather peculiar- circumstances of the case, in my hunable opinion, called for aI ve.ry careful and cautious sifting of the evidence and the High Court was not far wrong when it insisted on independent corroboration in respect of the testimony of each of the P. Ws.

40. Apart from the motive alleged by the prosecution, namely, the registration of a theft case against Eida a co-accused of the respondent for the removal of the ear-rings of the sister of Talib and Bahawal P. Ws. his transfer as a teacher to a distant place through the efforts of deceased in his capacity as Chairman of Union Council, and the immediate motive which precipitated the occurrence namely the previous evening's quarrel and grappling between some members of the two parties, it is also the own case of the defence that Eida was suspected of having illicit connection with the sister of the complainant. In the circumstances, therefore, there could be hardly any doubt or dispute that at least for this reason if on no other account the parties were at daggers drawn. But in my humble opinion there is a still greater reason which not only casts serious doubts on the veracity of the prosecution version but also reacts on the credibility of the witnesses despite, their established presence at the spot as proved by fire-arm ansd knife injuries on their persons. This circumstance is the glaring and staring omission in the F. I. R. of any reference whatever to the 11 blunt weapon injuries suffered by Eida accused and six blunt weapon injuries suffered by his brother Shera accused during the occurrence, of which a very delayed and unconvincing explanation was sought to be offered by the P. Ws No doubt the F. I. R. does not constitute substantive evidence yet it lays the foundation of the prosecution case whose solidity or infirmity, as the case may be, goes a long way to determine its final outcome. Significantly enough before the committing Magistrate too Talib Hussain complainant did not make even a passing reference to this important aspect of the case, and at the trial also the only explanation offered by this star witness of the prosecution who had actually participated in the occurrence and grappled with Shera accused receiving knife blows at his hand was that his brother Bahawal gave a solitary stick blow to Eida accused. In cross-examination also he reaffirmed this position of Bahawal having given only one stick blow to Eida who was admittedly armed with a shot-gun and had also effectively fired with it at Fazal Hussain deceased after he had already been hit by the shot fired by Fazal Hussain respondent. In order to properly appreciate the significance of the injuries of these two accused and the plausibility or otherwise of the explanation offered by the P. Ws. it is necessary to reproduce them in detail.

41. They are as follows

42. Eida

(1) Contused wound 2J" x J" skull deep (1/3' deep), 5" above the left ear on the left aside of the head.

(2) Contused wound 1J" x 1', 1/3" deep on the top of the head, in the central position just above the occipital.

(3) Contused wound 2" x 4" skin deep 1" behind the injury No. 2

(4) Contused wound 1J" x J" on the left side of the head at the back, scalp deep (1/3").

(5) Contused wound J" x 1/8" skin deep on the back of the left ear on the mestoid region swelling of the mestoid present.

(6) Contusion 5' x 3J' on the back of the left shoulder.

(7) Contusion 4J' x 1" on the back of the left chest.

(8) Multiple small contusion on the back of the left chest 2J" x 1", near the vertebral column.

(9) Contusion 5 J" x 1" on the back of lower chest.

(10) Contusion 3" x 1" on the back of the right iliac crest.

(11) Contusion 1" x J" on the back of the left loin.

(12) Multiple small abrasion on the sacral region.

43. Shera

(1) Contused wound 2" x F on the back of the head in the middle, 2' below the occipital.

(2) Contusion 3' x 1" on the back of left shoulder.

(3) Contusion 3J" x 1" on the back of lower chest.

(4) Contusion 4" x 1' on the back of the left hip 2" below the iliac crest.

(5) Contusion 5" x 1", 1' below the injury No. 4.

(6) Contusion 3J' x 1", 1" below the injury No. 5.

44. From the nature, number and dimensions of the injuries it is abundantly clear that they are not the type of injuries which would have gone unnoticed. H On the other hand they are strongly suggestive of a concerted attack by more than one person and go a long way to show the patent absurdity of the explanation offered for the first time by Talib Hussain at the trial Court, namely, that his brother Bahawal had given only one stick blow to Eida Bahawal himself appeared as P. W.

19. He stated that after Eida had fired the fatal shot at Fazal Hussain deceased, he ran towards Eida and gave him stick blows. It was for the first time that he admitted at the trial having also hit Shera with his stick making a marked improvement on his statements before the police and the committing Magistrate. Fateh Mohammad, P. W. 15 and Mst. Ghulam Khatoon, P. W. 16 placed a stick in the hand of Bahawal with which he allegedly gave blows to Eida but furnished no explanation whatever of the blunt weapon injuries suffered by Shera. But the question is not only of the significant suppression or of the omission to, explain the injuries of Eida in the first instance or of the delayed and untenable explanation offered or for that matter of the conspicuous absence of explanation of the injuries of Shera, nor is the matter otherwise confined only to the improvements introduced by the P. Ws. in their statements referred to above. There is another more important and disturbing feature of the case of which the prosecution has equally failed to offer a satisfactory explanation. The pertinent question would be as to whether the 18 injuries suffered by Eida and Shera could conceivably be the doing of one man, namely Bahawal, as the prosecution would have us believe, particularly when Eida was armed with a gun and Shera with a knife. It was the same gun with which Eida had allegedly fired one of the fatal shots at Fazal Hussain deceased and yet he made no attempt to fire a second shot at Talib or Bahawal and instead quietly submitted himself to the receipt of 12 extensive Injuries.

45. A scrutiny of the injuries reveal that Eida had suffered at least 4 injuries on the head, two measuring 5J' X 1" and 4J' x 1' on the back of chest one measuring 5" x 3J" on the back of left shoulder. Similarly Shera had suffered one contused wound on the back of head, one contusion 3J' x 1" on the back of lower chest, 3 contusions 4" x 1", 5' x 1' and 31" x 1" closed to each other below the iliac crest. All this would go a long way to falsify the prosecution version partly because it could not be the doing of one man and partly because of the conspicuous absence of any explanation whatever of the injuries of Shera.

46. The next question for consideration would be of the stage in the fight at which the two brothers received these injuries. If they had been hit at the very outset they would have been completely disabled and fallen flat. The gun of Eida should in all probability have been captured and he would not have been in a position to fire at Fazal Hussain deceased. If on the other hand as the prosecution would have us believe they were bit subsequent to the firing by Fazal Hussain respondent and his co-accused Eida, even so the injuries would have completely incapacitated them and in that event also both of them could have been easily disarmed and yet we find nothing on the record to suggest anything of the kind. It is these inherent improba bilities which react on the entire prosecution case and make it unsafe to accept its version even if one is inclined to hold that Haji Ghulam Muhammad was a truthful witness of the recovery of the gun effected at the instance of Fazal Hussain respondent. It appears to me, therefore, that the occurrence had not taken place in the manner alleged by the prosecution.

47. Allahyar grand-father of Shera and Eida was the real brother of Haji Din Muhammad P. W. 18 and Ghulam Muhammad P. W.

20. Fazal Hussain deceased was the son of their paternal aunt and wife of Haji Din Muhammad was the sister of Alawal deceased. They were related to both the parties though the balance of relationship seems to be tilted in favour of the complainant party. But even so as rightly held by my learned brother, Salahuddin Ahmed, J. the High Court was not justified in characterising them as highly interested witnesses. The mere fact that the Ghulam Muhammad was wrongly disbelieved as a recovery witness against Eida would not per se be good enough to justify the rejection of ties testimony as a recovery witness against Fazal Hussain respondent as two wrongs would not make one right and a repetition of mistake could not be justified on the ground of consistency. But this is not all. Two empties P. 3 and P. 4 were recovered by the Sub Inspector from the spot on 27-2-1969 when he arrived there. A reference to these empties was conspicuous by its absence in the otherwise elaborate F.

1. R. lodged by Talib Hussain at 10 a.m. the same day. Fazal Hussain led to the recovery of his licensed gun along with seven -12 bore cartridges which remained in the possession of the police till 6-31969 where they were dispatched to the fire-arm expert. It was positively alleged by Fazal Hussain in his statement under section 342, Cr. P. C. that the crime empties had been prepared by the police from his gun after its recovery when it was produced by him. In the circumstances therefore, in my humble opinion, when possibility of fabrication cannot be wholly excluded it would not be safe to rely on the report of the expert according to which the gun of Fazal Hussain was found wedded to the empties recovered from the spot. From that point of view also such an evidence cannot be accepted as satisfactory corroboration so as to set at rest the suspicions assailing the judicial mind in regard to the truthfulness of the P. Ws. But as stated earlier a greater reason for coming to a different conclusion from the one arrived at by my learned brother is the so-called explanation or want of it by all the P. Ws: of the injuries sustained by Eida and Shera which impliedly lends some support to the defence version that they were attacked in the first instance. In my humble opinion the principles laid down by the Federal Court of Pakistan in Safdar All's case (P L D 1953 F C 93) could be legitimately invoked.

48. In view of the above discussion I am of the view that the occurrence had not taken place in the manner alleged by the prosecution and therefore even Fazal Hussain respondent would be entitled to benefit of doubt. I would accordingly dismiss the appeal.

49. DORAB PATEL, J.-I have had the advantage of reading the judgments proposed to be delivered by my learned Brothers Salahuddin Ahmed, J. and Muhammad Afzal Cheema. J. and as I agree with my learned Brother Cheema, J. I would add a few words of my own.

50. As the relevant facts have been stated in the judgments of my learned Brothers I. would only point out here that the High Court 'had acquitted the first respondent because it was of the view that the ocular evidence was tainted by enmity and was not corroborated by any independent evidence. The petition for leave against this judgment was admitted only against the first respondent because of the contention that the ocular evidence against the first respondent was corroborated by the recovery of the gun which was produced at his instance and the recovery of empties which matched with the gun. And it was further contended that the evidence of the recovery of the gun had been wrongly disbelieved.

51. My learned Brother Salahuddin Ahmed, J. is of the view that the ocular evidence is not tainted by enmity. But, in my humble opinion, the question whether a witness is inimical to the accused is only one of the several means for assessing his veracity. The question is always of the veracity of the witness and as explained in detail by my learned brother Cheema, J. the `L description of the occurrence given by all the eye-witnesses was false.

52. Similarly the attempt of the eye-witnesses in their cross-examination to explain away the injuries inflicted by them on the party of the first respondent was also false. And even as P. W. Muhammad Din, who was a venerable old man, his evidence was not better than that of the other eye-witnesses. There fore, on the- rule laid down in Nazir's case (P L D 1962 S C 269)s the ocular evidence cannot be accepted without corroboration by independent and reliable evidence.

53. Now, the corroboration relied upon by the prosecution against the first respondent was the recovery of the gun at his instance and the recovery of the empties because the report of the firearm expert was positive. However, the gun and the empties were forwarded to the expert after a long delay which had not been satisfactorily explained and further in order to prove the recovery of the gun, apart from the Investigating Officer, the prosecution only examined P. W. Ghulam Muhammad, who was a brother of Muhammad Din, who had given false evidence. Id these circumstances, the view of the High Court that there was no independent corroboration of the ocular evidence was a reasonable and possible view, and, in my humble opinion, it cannot be said that there is any error of law in the appreciation of evidence by the High Court. Accordingly I would dismiss the appeal.

ORDER OF THE COURT

54. In accordance with the views of the majority, the appeal is dismissed.

55. S. A. H. Appeal dismissed.