P I, D 1964 (W (PLP)

H. T. RAYMOND, J.

‑This Criminal Revision Application is directed against the judgment of acquittal passed by the learned Additional Sessions Judge, Tharparkar at Sanghar (Mr. Mushtak Ali Kazi), on 27‑3‑1962 acquitting the respondents Nos. 1 to 5 of offences under section 302 read with section 149, P. P. C.

2. The facts so far as they are relevant for the purpose of disposing of this criminal revision application are briefly these:‑The applicant Khurshid Ahmed son of Abdul Latif Pathan and the respondents Nos. 1 to 5 are all Pathans, inter related who having crossed over into Pakistan from East Punjab at the time of the Partition settled down in the Town of Shah pur Chakar in houses allotted to them. The house presently occupied by the applicant Khurshid Ahmed and situate in the same street and opposite to the house of Sher Ahmed respondent No. 5 was originally occupied by one Taj Muhammad nephew of Sher Ahmed. This Taj Muhammad migrated to Muzaffargadh and his uncle respondent Sher Ahmed then took possession of this house locking it from the outside. In the year 1959 the applicant Khurshid Ahmed on the strength of his claim got this house allotted to him by the Settlement Authorities and he entered into possession of it on the 9th June 1961. This action on the part of Khurshid Ahmed was greatly resented by res pondent No. 5 Sher Ahmed and ever since then there have been frequent quarrels and cases between the two parties. The respondent Sher Ahmed filed an appeal before the Settlement Commissioner at Karachi against the allotment of his nephew's house to the applicant and a hearing in this matter was fixed at Karachi on the 18th and 19th August 1961. It is in evidence that both the applicant and respondent No. 5 Sher Ahmed came to Karachi for this hearing and both returned from Karachi on 20‑8‑1961.

3. It is the case of the applicant that on reaching Shahdad pur on 20‑8‑1961 he took a bus from there to Shahpur Chakar arriving there at 2‑30 p. m. on that day. On reaching his house he learnt that his wife had gone across the street to her brother Iqbal's house and as he (the applicant) was then suffering from kidney pain he himself went across to the house of his brother in‑law Iqbal. He was soon joined there by his elder brother Saved Ahmed, deceased, his wife's brother Muhammad Jan P. W. 4, his "Sandu" (wife's sister's husband) Sher Ahmed P. W. 5, his friend Sher Muhammad P. W. 9, his wife's cousin Khaliq Ahmed P. W. 10 and his brother‑in‑law and first cousin deceased Allahdad. It is said that all these relations of the applicant collected there to enquire after his health. While they were all together the applicant's son Jawad Ahmed P. W. 12 came running across from his own house to say that stones were being thrown into his house from the house of respondent Sher Ahmed on the opposite side of the street. On hearing this the applicant and his visitors decided to go in a body and remonstrate with the respondent party. But, as they emerged from the main door of Iqbal's house leading into the street they were shot at by the five respondents each of whom was armed with a gun and who were standing shoulder to shoulder on the opposite side of the street. Some 10‑12 rounds were thus fired as a result of which Saeed Ahmed and Allahdad fell dead, Muhammad Jan P. W. 4, Sher Ahmed P. W. 5, Sher Muhammad P. W. 9 were seriously injured and the applicant and Khaliq Ahmed P. W. 10 also sustained gunshot injuries.

4. The applicant immediately rushed to the Shahpur Chakar Police Station two furlongs away where within 15 minutes his F. I. R. Exh. 12 was recorded by the then S. H. O. Khaliq Dad P. W.

17. The entire incident of that afternoon is described in this F. I. R. and the names of the five respondents are also set out therein. The S. H. O. himself immediately repaired to the scene reaching there at about 5 p. m. He prepared a mashirnama of the Vardat as per Exh. 32, mashirnamas of the injuries on Khaliq Ahmed P. W. 10, Muhammad Jan P. W. 4, Sher Ahmed P. W. 5, Sher Muhammad P. W. 9, recorded their statements and sent them to the hospital at Hyderabad. He then prepared inquest reports of the two dead bodies lying there and recovered from the scene three lead pellets and one empty twelve‑bore cartridge. He sent the applicant Khurshid Ahmed and Khaliq Ahmed who were not so seriously injured to the Medical Officer, Shahdadpur. The respondent Sher Ahmed was secured that same evening at Shahdadpur under circumstances which will be dealt with later and the remaining four respondents were secured the next day after the arrival of a First Class Magistrate and the D. S. P., Sanghar with additional police from the neighbouring house of one Mir Muhammad where they were found concealed together in a room bolted from the inside. They were there and then arrested and a mashirnama prepared as per Exh.

37. It is also in the evidence of this S. H. O. that he observed marks of climbing on the walls of the intervening houses between the house of respondent Muhammad Hashim and that of Mir Muhammad in which respondents 1 to 4 were secured.

5. Now, the case for the prosecution against the five res pondents rests upon the oral evidence of the five injured persons, namely, complainant Khurshid Ahmed P. W. 3, Muhammad Jan P. W. 4, Sher Ahmed P. W. 5, Sher Muhammad P. W. 9, Khaliq Ahmed P. W. 10 and three other witnesses who arrived there at the time, namely, Abdul Qayum Khan P. W. 6 a paternal uncle of the complainant, Munshi P. W. 7 a hari of complainant and Khurshid Ahmed son of Muhammad Haneef P. W. 11, Phuphat or first cousin of complainant. It is also in evidence that the five licensed guns of the five respondents‑accused were secured and were sent along with the one empty cartridge recovered from the scene to the Ballistic Expert who opined that that cartridge had not been fired from any one of those five guns. There is also on record the evidence of Yasin Rajput P. W. 8, who is a member of the Shahpur Chakar Union Council and who on coming to the scene that evening learnt from the complainant Khurshid as well as the other Khurshid P. W. 11 that the respondents were responsible for the attack made upon them. But, as neither the complainant A nor Khurshid Ahmed P. W. 11 were asked when giving evidence as to whether they had at all met or spoken to Yasin that evening the evidence of P. W. Yasin as to who were responsible for this attack on the complainant party is clearly inadmissible in law. Thus, the evidence available to the prosecution in this case being of witnesses closely inter‑connected and inter‑related and between whom and the accused party there is recorded enmity over the past ten years the learned trial Judge in the absence of any other reliable corroborative evidence was disinclined to accept this 'evidence as a basis for convicting the respondents of the serious charges preferred against them.

6. We have heard Mr. Abdul Sattar Pirzada appearing on behalf of the applicant at great length and he has taken us in detail through all the evidence on the record of this case. He has argued that the learned trial Judge was wrong in requiring the corroboration of the evidence of eight eye‑witnesses five of whom were injured and whose presence at the scene cannot, therefore, be denied. He has further contended that if such corro boration was at all necessary it is to be found in the circum stances of the case itself, in the number of the assailants and in the fact that they are the persons most likely to be the culprits in this case. He has next submitted that corroboration also comes from the F. I. R. lodged within fifteen minutes of the incident and mentioning the names of all the five respondents accused. A further circumstance which according to him also affords corroboration to the prosecution story is the arrest on the next day of respondents 1 to 4 while concealing themselves in the neighbouring house of Mir Muhammad. The medical evidence, Mr. Pirzada contended, also serves to corroborate the eye‑witnesses in as much as it shows that several of them bore gunshot injuries on their backs. Finally, Mr. Pirzada submitted that the blood stains on the door step of the house of Iqbal and the pellet marks on the kitchen wall as well as the outside wall support the pro secution case that the firing occurred in front of the house of Iqbal and not, as the learned Additional Sessions Judge has suggested, in front of the house of respondent Sher Ahmed.

7. We have carefully considered the elaborate arguments of the learned counsel appearing on behalf of the applicant : we have also perused the judgment of the trial Judge and we have been through all the evidence recorded in this case in spite of 10 the fact that this is not an acquittal appeal but only a criminal revision application from an order of acquittal. As to the need for corroboration of the eye‑witnesses in a case such as this we find ourselves in agreement with the view of the learned trial Judge. It is a matter of record that the hostility between the two parties became acute when the applicant/complainant got the house of respondent Sher Ahmed's nephew situate in the same street just opposite Sher Ahmed's own house allotted to him and after he assumed occupation thereof. Since then, there have been a number of Court cases between the two parties both of whom have been run in by the police under section 107, Cr. P. C. This enmity between the two parties is deposed to by almost each and every witness and the complainant himself has admitted that‑ "our relations have been strained with Sher Ahmed since the year 1954 when he filed a case against us." In view, then, of such long standing enmity between the two parties it becomes eminently necessary to seek corroboration of the oral testimony of the interested eye‑witnesses specially in the light of the tendency in this part of the country as observed C by the Bench in the case of Jan Khair Muhammad v. The Crown (I L R 1943 Kar. 148) and even by the Privy Council in Bhuboni Sahu v. The King (P L D 1949 P C 90) namely the tendency to implicate the innocent with the guilty.

8. The need for independent corroborative evidence of the testimony of the eye‑witnesses in this case becomes all the more pronounced when one considers the case as against the respon dent No. 5 Sher Ahmed. This respondent, admittedly, is, as it were, the leader of the respondent party and the one who was most concerned in securing for himself the house of the complai nant which formerly was in the occupation of his own nephew Taj Muhammad. According to the complainant and the other eye‑witnesses it was this respondent No. 5 Sher Ahmed who opened the attack that afternoon by shooting at Saeed Ahmed and Allahdad and killing them both on the spot. And, yet the evidence on record in this case including the statement of Sher Ahmed himself is that on the evening of 20‑8‑1961 he was at Shabdadpur and not at Shahpur Chakar. In his own statement this respondent states that he left Karachi Cantonment Railway Station at 9‑15 p. m. on 20‑8‑1961 reaching Shahdadpur at 2 p.m. the same day. He was then busy at Shahdadpur with his work including the collection of his rents till he was secured by the police near the bus‑stand that evening. Exh. 63 is the receipt that he granted that day at Shahdadpur to the occupant of his premises there. But, besides the statement of this respondent/ accused there is a mass of evidence on record to the effect that this respondent was seen at about 6‑30 p. m. on the day of the incident by Muhammad Jan and Sher Ahmed at the bus stand at Shahdadpur where he was waiting for a bus. Muhammad Jan, Sher Ahmed and Sher Muhammad who were injured in the firing at Shahpur Chakar that evening were sent in a truck to Hyderabad Civil Hospital for treatment. P. W. 16 Rafique Ahmed accompanied them in this truck and by about 6‑30 p. m. as this truck reached Shahdadpur bus‑stand Muhammad Jan is said to have spotted respondent Sher Ahmed standing there waiting for a bus. This information was immediately conveyed to traffic constable Ramzan C. W. 1 who promptly arrested respondent Sher Ahmed and took him to the Shahdadpur Police Station and produced him there before A. S. I. Imtiaz. The entries in the station diary Exhs. 51‑53 made by this A. S. I. disclose that Sher Ahmed was secured at 6‑30 p.m. that evening. A mashfrnama of his arrest was prepared which is Exh. 62 in this case and its contents show that from his possession a canvas bag was secured containing spare clothes, a total sum of Rs. 169 a green fountain pen and papers relating to his claim before the Settlement Authorities. The contents of this bag indicate that this was the very travelling bag which he carried with himself on his visit to Karachi two days earlier and further the presence of this very bag with him at the time of his arrest would go to show that he was then on his return journey from Karachi to Shahpur Chakar via Shahdadpur. There is a discrepancy in the evidence relating to the time of his arrest that evening at Shahdadpur, as to whether he was secured at 5‑15 or 6‑30 p. m. But, it seems to us that in view of the fact that Shahdadpur is a good 19 miles from Shahpur Chakar this difference is entirely imma terial. On the basis of all this evidence the learned Additional Sessions Judge reached the conclusion that respondent Sher Ahmed could not have been at Shahpur Chakar at 4‑30 p.m. that afternoon and have participated in the attack upon the com plainant party. He is of the view that this respondent being the leader of the respondent party has wrongly been implicated in this case and it seems to us that this is a point of view which may well be taken upon the evidence such as it is in this case. A consequence of this finding must necessarily be that the evidence of the prosecution witnesses so far as the remaining respondents are concerned must be examined very closely and that it should not be accepted and relied upon unless substantially corroborated. It has been suggested by the respondents' Advocate that if one accused can wrongly be implicated then what guarantee is there that the rest are correctly involved in this case ?

9. It, therefore, becomes necessary to look around for Inde pendent corroborative evidence which may be relied upon to support the evidence of the prosecution eye‑witnesses. The learned counsel appearing on behalf of the applicant has submitted that this corroboration is to be found in the circumstances of the case itself, for example, in the number of assailants, in the fact that they are the most likely culprits in this case and in the fact that their names appear in the F. I. R. lodged within fifteen minutes of the incident. But, these circumstances come from the very mouths of the interested prosecution witnesses themselves. They are not independent circumstances in the sense that they arise from other sources remote from and wholly unconnected with these interested witnesses. It is well established that corroborative evidence to be of any value must necessarily be independent corro borative evidence arising from sources distinct from and independent of the already tainted source. But, this la not the case here and hence, it seems to us, that these circumstances mentioned by Mr. Pirzada are not such as serve to support the case of the prosecution so as to place it beyond all reasonable doubt.

10. The next circumstance relied upon by Mr. Pirzada is the securing of the respondents 1‑4 from the house of Mir Muhammad on the morning following the incident in this case. Coupled with this circumstance is the reference in the mashirnama Exh. 37 relating to the search of the house of Muhammad Hashim respondent No. 3 and to the statement therein that‑ "some dragging marks were found on the western Kacha wall leading to the house of Arfan." We note that this bald sentence in the mashirnama is interpreted by the mashir Muhammad Fayyaz P. W. 14 in these words :‑‑ "Police tracked the marks of scaling over the wall from the house of accused Hashim till the house of Mir Muhammad. It appeared that the persons had been scaling over the walls for entering the house of Mir Muhammad." Now, this mashir Muhammad Fayyaz is a relation of the com plainant party. His wife's niece is the wife of deceased Allahadad's brother, and the argument has been advanced by the Advocate for the respondents that this close connection existing between this mashir and the complainant party is responsible for the biased nature of the evidence of this mashir. It has struck us as some what strange that the two mashirs employed by the police in this case namely Abdul Hamid Khan and Muhammad Fayyaz P. Ws. 13 and 14 should both be closely connected with the complainant party despite the fact that in the town of Shahpur Chakar, there are 4,000 people of different castes such as Shaikhs, Rajputs, Tellies and Sindhis. Besides, the evidence on record including the sketch prepared by the trial Judge himself shows that the house of Mir Mohammad is situate in a different street and not in the same street as the house of respondent Hashim. Hence, the respondents in escaping from the house of Hashim to that of Mir Muhammad would of necessity have to appear in the open street and could not proceed from the house of Hashim to that of Mir Muhammad by merely scaling over the walls of the intervening houses. It is the case of the respondents that they had been to the house of Mir Muhammad to settle some marriage dispute with him. Nothing incriminat ing was secured from anyone of these respondents 1‑4 at the time of their arrest in the house of Mir Muhammad. There fore, this circumstance, by itself, cannot be considered to be so weighty as to justify an order for retrial in this case. There is no connection that can be established between the presence of these applicants in the house of Mir Muhammad the following morning and the attack of the previous afternoon outside the house of Iqbal except perhaps the apparent proximity of these two places.

11. There remains the circumstance of the medical evidence in this case, the blood stains on the steps and pellet marks on the outer wall and the kitchen wall of the house of Iqbal which are relied upon by Mr. Pirzada as affording corroboration to the prosecution witnesses. With regard to the medical evidence it is true that several of the injuries appear on the back of the prosecution witnesses thereby supporting their statement that they were shot at even as they turned to re‑enter Iqbal's house. In like manner, the evidence of blood stains on the steps of Iqbal's house and pellet marks on the kitchen wall and outer wall would no doubt indicate that the Incident had taken place outside Iqbal's house and not anywhere else. Incidentally, we may, in parenthesis, mention here that we are not in agreement with the view of the trial Judge that the scene of offence in this case has been shifted and that it was not outside the main door of Iqbal's house. We feel, the attack did occur outside Iqbal's house and not near the house of respondent 5 Sher Ahmed or anywhere else in that street. But, it seems to us, that these items of corro boration so vehemently stressed by Mr. Pirzada serve only to corroborate the factum of the crime and not the identity of the assailants. Now, corroboration when required is sought for in two respects, that is to say corroboration as to the factum of the incident and corroboration as to the identity of the assailants. The circumstance of blood stains and pellet marks and even the medical evidence would go to support the prosecution eye‑wit‑ E nesses when they say that an incident of shooting had taken place that afternoon outside the main door leading into the house of Iqbal in Shahpur Chakar. But, this corroborative evidence is o no assistance when we come to consider the identity of the accused or the assailants. It is very necessary that corroboration should exist not only as to the factum of the crime but also as to the identity of each and every accused sought to be convicted.

12. As to the necessity for corroboration of the testimony of interested eye‑witnesses particularly m murder cases Mr. Muhammad Hayat Junejo appearing on behalf of the respondent. Nos. 1‑5 has referred us to a wealth of case law on the subject. Commencing with cases of our own High Court he has placed before us the judgment of Abdul Aziz Khan and Jamil Husain Rizvi, JJ. in the case of Muhammad Akbar v. The State (P L D 1961 Lab. 348) in which their Lordships have held that the eye‑witnesses being interested persons, their evidence requires independent corroboration as to the participation of each appellant in the occurrence under consideration. In the case of Abdul Hamid v. The State (P L D 1960 Pesh. 141), a Division Bench presided over by Ortcheson,J. held that witnesses being closely related with each other and inimical to the accused, it would be unsafe to rely on their testimony against each in dividual accused except in so far as it receives independent corroboration. Mr. Junejo then cited before us several cases of this very Bench reported in Wazir v. The State (P L D 1960 Kar. 674), Jogi v. The State (P L D 1961 Kar. 179), Ahmad v. The State (P L D 1962 Kar. 583) and Bacho v. The State (P L D 1963 Kar. 891.). In the last of these cases it was held by a D. B. of this Court of which one of us was a member that‑ "since the eye‑witnesses have dishonestly implicated some innocent persons, and the corroborative evidence is extremely weak, unsupported by any reliable evidence that the appellants were entitled to an acquittal." In this case a judgment of Munir C. J. and Muhammad Jan J, in the case of Ghulam Muhammad v. The Crown (P L D 1951 Lab. 66) was relied upon and particularly a passage in that judgment in which it was stated that‑ "generally, when it is proved that some innocent persons have been dishonestly implicated in a crime the Court is entitled and it is safe to acquit even those who have not been able to prove that they were falsely implicated". Mr. Hayat then placed before us the judgments of our Supreme Court in the cases of Niaz and Nazir and more recently in the case of Wasiullah v. Mirza All and others (P L D 1963 S C 25) in which their Lordships stated that where the evidence of eye‑witnesses consists of that of interested persons i.e. enemies of the persons charged, it is proper to ask that the evidence in corroboration should be F exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons beyond reasonable doubt. Again, in the case of Thoba and another v. The State (P L D 1963 S C 40) their Lordships were of the view that where the ocular evidence is of interested and partisan witnesses, such ocular evidence to carry conviction on a capital charge must be supported by some strong circumstance such as might serve to overcome the inherent doubt by which such evidence is necessarily affected.

13. The principles which justify interference by the superior Courts with orders of acquittals have repeatedly been laid down by our own Supreme Court and are to be found enunciated in the cases of Lalu v. The State (P L D 1959 S C (Pak.) 258) Fateh Muhammad v. Bago and another (P L D 1960 S C 286) and this year again in the case of Sirajuddin v. Kala (P L D 1964 S C 26). These principles are that unless it can be demonstrated with certainty that none of the grounds on which the trial Court has purported to acquit is at all supportable, the superior Court G will be reluctant to interfere even though upon the evidence on record and the facts and the circumstances of the case, this Court might well have come to a different conclusion if it was trying the case.

14. In view, then, of this position of the case‑law on the subject and the absence in this case of reliable corroborative evidence, we have reached the conclusion that this is not a case in which a retrial should be ordered. It seems to us that there is no point in submitting the respondents to a retrial after this lapse of time specially when such a course would, in all probability, lead to a repetition of what took place in the trial Judge's Court. We, therefore, dismiss this revision application. K. B. A. Petition dismissed.